Full opinion text
OPINION ALICE M. BATCHELDER, Chief Circuit Judge. This habeas ease arises from Lee Moore’s conviction in Ohio state court of aggravated murder, aggravated robbery, and kidnapping. In cross-appeals, Warden Betty Mitchell appeals the district court order conditionally granting Lee Moore’s petition based on claims of ineffective assistance of counsel at sentencing and improper jury instructions. Lee Moore appeals the denial of several other claims for relief. For the following reasons we REVERSE the district court’s grant of habe-as relief with respect to Moore’s claims of ineffective assistance of counsel at sentencing and improper jury instructions and AFFIRM the district court’s denial of ha-beas relief with respect to all other claims. FACTS The Ohio Supreme Court summarized the facts of the case as follows: On the evening of January 14, 1994, defendant-appellant, Lee Edward Moore, Jr., and Jason Holmes abducted Melvin Olinger at gunpoint and forced him into the trunk of his blue Ford Taurus. Moore drove Olinger’s car to Mt. Healthy, dropped Holmes off, and picked up Larry Kinley. The two drove Olinger’s car to a factory area in Cincinnati, where Moore ordered Olinger out of the trunk, robbed him of his wallet, and shot him in the head, killing him. Moore later admitted committing the crimes but claimed that the shooting was accidental. Moore was subsequently convicted of aggravated murder, kidnapping, and aggravated robbery, and sentenced to death. On January 14, at approximately 7:20 p.m., Melvin Olinger, a suburban Chicago businessman, visited his parents in Fairfield. Olinger then went to a funeral home during calling hours for a friend who had passed away. Later, he went to Gina’s, a bar, around 9:00 to 9:30 p.m., where he talked with Charlotte James. He told her that he was going to visit his mother that evening before returning to Chicago the next day. Olinger stayed in the bar for about fifteen minutes. That same evening, Moore and Jason Holmes drove to Fairfield, intending to steal a car. Moore waited outside Gina’s and saw Olinger get out of his blue Ford Taurus and enter the- bar. When Olinger returned to his car, Moore confronted him with a gun and told Olinger to get in. Moore drove the Taurus to the rear of the bar and forced Olinger to climb into the trunk. Moore drove the Taurus to Larry Kinley’s house in Mt. Healthy while Holmes followed in Moore’s Ford Fairmont. Moore and Kinley drove to a store in the Taurus, leaving Holmes • behind to babysit. Moore told Kinley how he had stolen the car and that he was going to get it painted and modified. Moore told Kinley that he was driving to the Cum-minsville area of Cincinnati to show the car to a friend. Instead, Moore drove to a factory area at 3366 Llewellyn Street. On the way, Moore told Kinley that he was going to kill the man in the trunk. When Kinley asked Moore why he was going to kill the man, Moore responded, “This ain’t nothing.... We’re not going to get caught for it.” Upon driving into the factory area, Moore headed toward a dumpster. He stopped the car and let Olinger out of the trunk while Kinley remained in the car. Kinley testified that he didn’t see what happened because the trunk lid was up, but that he heard Moore tell Olinger to empty his pockets. Kinley testified that Moore directed Olinger to the corner by the dumpster and that he heard Olinger beg and plead to Moore about Olinger’s sick mother. • Kinley heard a gunshot, then Moore jumped into the car. According to Kin-ley, Moore laughed and asked him, “Did you see his dome get shot off?” After leaving the scene, Moore directed Kinley to take the credit cards out of Olinger’s wallet. Kinley said that Moore sounded upset because he had forgotten to ask Olinger for the personal identification number to his Jeanie card. In a taped statement to police, Moore claimed that he asked Olinger for his wallet after directing him to the dumpster. When Olinger dropped the wallet and stepped forward, Moore said that he panicked and “accidentally pulled the trigger. But it was an accident.... I had a large amount of drinks an’ ... some marijuana. An’ it truly truly was an accident.” Moore and Kinley returned to Kin-ley’s house, where Moore told Holmes what had happened. Moore told Holmes that he planned to keep the Taurus and that Holmes could use his Fairmont any time he wanted. At Moore’s request Kinley took the Michigan plates off Olinger’s Taurus. Kinley then took one of the plates off Moore’s Fairmont and put it on the Taurus. The next day, Moore and Kinley went out to get “some stuff.” Moore used Olinger’s credit card to purchase over $1,000 worth of clothing and jewelry at two J.C. Penney stores in the Cincinnati area. A sales clerk became suspicious and contacted Penney’s loss prevention officer. The officer observed two black males place their purchases in the trunk of a blue Ford Taurus with Ohio tags and drive away. At approximately 5:30 p.m. on January 20, police apprehended Moore and Kinley as they waited for an order in the drive-through lane of a McDonald’s restaurant. Moore was placed in a holding cell at the Mt. Healthy police station. Officers confiscated several items of clothing from Moore which were believed to have been purchased with Olinger’s credit card. Shortly after midnight, Moore was advised of his Miranda rights and signed a waiver of rights form. Moore was then taken to the downtown Cincinnati police station for questioning. Although the weather was cold and snowy, Moore was required to walk a short distance to and from the police car in his stocking feet, since his shoes had been confiscated as evidence. At approximately 6:30 a.m., while “crying a little bit” and sniffling, Moore admitted to police that he had robbed and kidnapped Olinger and that he had shot and killed Olinger. He claimed that the shooting was accidental. Based on information supplied by Kin-ley, police located Olinger’s body. The chief deputy coroner determined that Olinger had died of a single gunshot wound to the head fired from a distance of between six and twenty-four inches away. The grand jury indicted Moore on three counts of aggravated murder, one count of aggravated robbery, and one count of kidnapping. All counts carried a firearm specification. All three aggravated murder counts carried three death-penalty specifications: (1) aggravated murder to escape detection for kidnapping and/or aggravated robbery (R.C. 2929.04[A][3]); (2) aggravated murder committed in connection with kidnapping where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7]); and (3) aggravated murder committed in connection with aggravated robbery where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7]). The defense essentially admitted Moore’s involvement in the crimes. It argued that Moore had not formed the specific intent to kill Olinger. After deliberation, the jury found Moore guilty as charged. Prior to the mitigation hearing, the trial court merged the three death specifications of Count I (aggravated murder committed with prior calculation and design) into one specification: murder to escape detection for kidnapping and/or aggravated robbery. The court also merged the two felony murder counts into one count and merged the three specifications attached to these counts into two: murder during kidnapping and murder during aggravated robbery. During the mitigation hearing, several witnesses testified on Moore’s behalf, and Moore gave a remorseful unsworn statement admitting the wrongfulness of his actions. The jury recommended death, and the court imposed the death penalty. The court also imposed consecutive prison sentences for Moore’s other convictions. Upon appeal, the court of appeals affirmed the convictions and sentence of death. State v. Moore, 81 Ohio St.3d 22, 689 N.E.2d 1, 5-7 (1998). PROCEDURAL HISTORY Moore was tried and convicted in 1994. The Ohio Court of Appeals affirmed his conviction and sentences in June 1996, State v. Moore, No. C-950009, 1996 WL 348193 (Ohio Ct.App. Jun. 26, 1996), and the Ohio Supreme Court affirmed in February 1998, State v. Moore, 81 Ohio St.3d 22, 689 N.E.2d 1 (1998). While his first appeal was pending, Moore filed a petition for post-conviction relief in the trial court. The trial court denied the petition, and the Ohio Court of Appeals affirmed that decision in September 1998. State v. Moore, No. C-970353, 1998 WL 638353 (Ohio Ct.App. Sept. 18, 1998). The Ohio Supreme Court denied review in 1999. State v. Moore, 84 Ohio St.3d 1472, 704 N.E.2d 579 (1999) (table). Moore applied to reopen his appeal under Ohio App. R. 26(B) in September 2000. The Ohio Court of Appeals denied the application as untimely and on the basis of res judicata. The Ohio Supreme Court affirmed that decision, holding that Moore failed to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal. State v. Moore, 93 Ohio St.3d 649, 758 N.E.2d 1130, 1133 (2001). Moore filed his petition for a writ of habeas corpus in June 2000. He raised twenty-five claims. After a period of discovery, the magistrate judge recommended granting the petition in part and denying it in part. Both the Warden and Moore filed objections. The magistrate judge filed a supplemental report and recommendation (“R & R”), and the parties again filed objections. The district court adopted the magistrate judge’s R & R in part and rejected it in part. The district court granted relief on Claim (2)(B), one of Moore’s claims of ineffective assistance of counsel at sentencing, and on Claims (6) and (16), his claims of improper jury instructions in the penalty phase. Moore v. Mitchell, 531 F.Supp.2d 845, 921-22 (S.D.Ohio 2008). Moore applied for a certificate of appealability (“COA”) as to ten claims and subclaims. The magistrate judge recommended granting Moore a COA as to seven of those claims and sub-claims, and the parties filed objections. The district court adopted the magistrate judge’s R & R in part and modified it in part, issuing Moore a COA as to eleven claims and subclaims. This court granted Moore’s application to expand the COA to include two additional claims. Moore did not brief his claims concerning erroneous mitigation instructions (Claim (16)) or erroneous guilt phase instructions (Claim (21)(A)) on appeal, and thus has waived review of them. See Fed. R.App. P. 28(a)(9)(A); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir.2010). STANDARD OF REVIEW This court reviews de novo a district court’s legal conclusions and mixed questions of law and fact and reviews its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under 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 the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Id. To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). To analyze whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, courts look only to the holdings of the Supreme Court’s decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Courts consider lower court decisions to the extent they shed light on the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). Finally, the state court’s factual findings are presumed correct unless rebutted by the habeas petitioner by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004). Claim (1) Moore alleges that his mitigation specialist, Charles Stidham, had an undisclosed actual conflict of interest because he simultaneously represented Moore’s accomplice, Jason Holmes, in Holmes’s appeal from his convictions involving the same crimes. Holmes was tried separately from Moore and was convicted of aggravated murder, aggravated robbery, and kidnapping with specifications. State v. Holmes, No. C-940385, 1995 WL 229063 (Ohio Ct.App. Apr. 19, 1995). The district court held that Moore procedurally defaulted this claim because he did not raise it on direct appeal or post-conviction relief. Moore, 531 F.Supp.2d at 863. In his Rule 26(B) application, he claimed ineffective assistance of appellate counsel for failing to raise the claim. The Ohio Court of Appeals denied that claim and the Ohio Supreme Court affirmed. Moore, 758 N.E.2d at 1132-33. Whether a petitioner’s federal habeas claim is barred by procedural default is a question of law reviewed de novo. Abela v. Martin, 380 F.3d 915, 922 (6th Cir.2004). The district court properly held that Moore procedurally defaulted this claim. “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). When a petitioner has failed to present the grounds of his claim to the state courts and has exhausted his grounds because no state remedy remains available, his grounds are procedurally defaulted. Id. at 847-48, 119 S.Ct. 1728. The prisoner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims and actual prejudice to his defense at trial or on appeal. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The only exception is if review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Moore did not raise this claim on direct appeal or in his post-conviction petition, and he has no state remedies available. Ohio law permits second, successive, or untimely petitions only under limited circumstances. Ohio Rev.Code § 2953.23. Successive post-conviction relief petitions are barred unless the petitioner was unavoidably prevented from discovering the facts on which he later seeks to rely in a successive petition, or the United States Supreme Court has recognized a new right that applies retroactively to the petitioner. In addition, the prisoner must show that, but for the error, no reasonable fact-finder would have found him guilty, or, in a death penalty case, eligible for the death sentence. Ohio Rev.Code § 2953.23(A)(1); Broom v. Mitchell, 441 F.3d 392, 400 (6th Cir.2006). Moore’s conflict of interest claim does not meet these requirements because his claim does not rely on a new right recognized by the Supreme Court, and he does not allege that Stidham’s alleged conflict of interest affected his eligibility for the death sentence. Accordingly, Moore could not raise this claim in a successive post-conviction petition, and the claim is defaulted. See O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728. Moore argues that cause and prejudice excuse this procedural default. Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639. Cause may exist if his appellate counsel was ineffective in failing to raise the issue. Id. at 492, 106 S.Ct. 2639; McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir.2004). “Ineffective assistance under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] is deficient performance by counsel resulting in prejudice, with performance being measured against an objective standard of reasonableness under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citations and internal quotation marks omitted). In the appellate context, “To establish deficient performance, [petitioner] must demonstrate his appellate counsel made an objectively unreasonable decision by choosing to raise other issues instead of [the challenged issue], meaning that issue ‘was clearly stronger than issues that counsel did present.’ ” Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir.2009) (quoting Smith v. Robbins, 528 U.S. 259, 285, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). To show prejudice, Moore must demonstrate “ ‘a reasonable probability that, but for his counsel’s unreasonable failure to’ raise this issue on appeal, ‘he would have prevailed.’ ” Id. (quoting Robbins, 528 U.S. at 285, 120 S.Ct. 746). But, taking a step back, a petitioner cannot show that appellate counsel was ineffective for failing to raise a claim on appeal if the underlying claim itself lacks merit. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir.2008). Moore urges us to review the Ohio Supreme Court’s decision de novo because the state court’s decision was so brief and “summary.” However, we still accord the state court’s decision the appropriate deference under AEDPA. In Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court recently clarified that even summary decisions by state courts are entitled to the AEDPA standard of review under § 2254(d). “There is no merit to the assertion that compliance with § 2254(d) should be excused when state courts issue summary rulings.” Id. at 784. Summary rulings on the merits do not receive de novo review. Id. at 786. Though the state court’s reasons may not be clear, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported or ... could have supported ... the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. Showing proper deference to the state court’s decision in Moore’s Rule 26(B) application, we conclude that the state court did not unreasonably apply Strickland because the underlying claim— a mitigation expert’s conflict of interest — is meritless. A claim that an attorney had a conflict of interest is analyzed under a modified version of the two-part Strickland test for ineffective assistance of counsel. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). The defendant must show that his attorney performed deficiently by demonstrating that the attorney actively represented conflicting interests. Id. An actual conflict of interest is one that adversely affects counsel’s performance. Mickens v. Taylor, 535 U.S. 162, 171 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). For example, if counsel fails to pursue an obvious defense that would have inculpated counsel’s other client and there is no benefit from foregoing the defense or other explanation, the defendant has presented evidence of his counsel’s conflict of interest. See McFarland, 356 F.3d at 707. If the defendant shows an actual conflict of interest, prejudice to his defense is presumed. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052. First, it is not clear that Stidham was even serving as counsel as that term is used in the Sixth Amendment. Though an attorney by trade, Stidham appears to have been employed by Moore’s attorneys, Daniel James and Timothy Deardorff, as a mitigation specialist. The right to conflict-free representation stems from the Sixth Amendment’s guarantee of effective assistance of counsel. Mickens, 535 U.S. at 166, 122 S.Ct. 1237. Since there is no constitutional right to a mitigation specialist, see Jells v. Mitchell, 538 F.3d 478, 495 (6th Cir.2008), much less an effective one, there is no constitutional right to a specialist free of conflicts. Even if we assume that Stidham served as Moore’s counsel, Moore does not point to any evidence that Stidham’s work with Holmes prejudiced him. Moore basically argues that because he was representing both, there must have been harm done to him, and thus an actual conflict. This reasoning is flawed. We do not find per se conflicts. We look for actual conflicts: To find an actual conflict, we require petitioner to point to specific instances in the record to suggest an actual conflict or impairment of [his] interests and demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. McElrath v. Simpson, 595 F.3d 624, 631 (6th Cir.2010) (internal quotation marks omitted). Moore does not point to any such instances. Here, Moore and Holmes were tried at separate trials, before separate juries. There is no evidence that Stidham did anything for Holmes on appeal to the detriment of Moore. Moore does not explain what additional mitigation evidence should have been presented, but for the alleged conflict of interest. Moore cannot show ineffective assistance of his appellate counsel for failing to raise the issue on appeal because the underlying claim lacks merit. Davie, 547 F.3d at 312. The state court did not unreasonably apply Strickland in so holding. The claim is procedurally defaulted and that default is unexcused. Claims (2)(A), (B), and (C) Claim (2) (A) Moore claims that his trial counsel, attorneys James and Deardorff, were constitutionally ineffective for their decision to employ the mitigation specialist, Stidham, who, according to Moore, failed to adequately assist in preparation for the mitigation phase of his trial. Moore raised one ineffective assistance claim on direct appeal before the Ohio Supreme Court (Claim (2)(B)), but he did not raise this specific claim. Moore also raised other claims in his state postconviction petition but — again—not this one. In his Rule 26(B) application before the state court, he alleged ineffective assistance of appellate counsel for failing to raise this claim on direct appeal. The state court rejected the claim. The district court also denied relief on the claim. Moore has procedurally defaulted Claim (2)(A). Here, Moore was represented by Timothy Deardorff both at trial and on direct appeal before the Ohio Court of Appeals. Normally, counsel are not expected to raise the issue of their own ineffectiveness; failure to do so will not bar the claim because of res judicata. See State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784, 785-86 (1994) (“[SJince counsel cannot realistically be expected to argue his own incompetence, res judicata does not act to bar a defendant represented by the same counsel at trial and upon direct appeal from raising a claim of ineffective assistance of counsel in a petition for post-conviction relief.” (citation and internal quotation marks omitted)). However, Moore was represented by different counsel before the Ohio Supreme Court (where he brought another, different ineffective assistance claim) and throughout his state postconviction proceedings. Because Moore did not raise this claim at those opportunities, he has procedurally defaulted it. Moore urges us to find cause because his appellate counsel was ineffective for failing to raise this ineffective assistance of trial counsel claim on direct appeal. He alleged this in his Rule 26(B) application, but the state court denied it. Because the state court ruled on this matter on the merits, its decision is entitled to AEDPA deference. See § 2254(d)(1). In order to assess the claim of ineffective assistance of appellate counsel as an excuse for defaulting the underlying claim, we may look to the strength of the underlying claim. Davie, 547 F.3d at 312. We agree with the district court that this claim has no merit. Moore cannot show he was prejudiced by his counsel’s use of Stidham as a mitigation specialist because he has never identified any new mitigation evidence that Stidham should have aided in discovering. See Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010). We affirm the district court in denying relief because Moore has procedurally defaulted Claim (2)(A). That procedural default is not excused because even if his appellate counsel had raised the issue, the underlying claim was meritless. Claim (2)(B) Moore claims that trial counsel was ineffective at mitigation because Moore’s expert witness gave damaging testimony during cross examination. Moore argues that this would not have happened if trial counsel been prepared and known how the expert was going to testify. Facts At the penalty phase, the defense put on the stand its expert witness, Dr. David Chiappone, a psychologist. As the prosecutor questioned him on cross-examination, the following exchange took place: Q. Dr. Chiappone, you reviewed all these tests, all these records. And again, you’re still trying to find why Lee Moore did what he did. Did you ever ask him why he killed Melvin Olinger? A. Yes, I did. Q. What did he tell you? A. Well, what struck me is he had a difficult time explaining it, if you will. I asked him several times. It’s almost like he didn’t know what to do. He said he wasn’t sure what to do. He said he was afraid the man would identify him. Q. So he shot him so he would not be identified? A. That’s the implication — [objection overruled]. Q. Doctor, are you familiar with the previous statement that Lee Moore gave to the police, wherein he claimed this was all an accident? A. Yes, I am aware of that. Q. Did you specifically confront Lee Moore with that and ask him whether or not this was an accident when he shot Melvin Olinger? A. I’m not sure if he used the word accident, but I did confront him about the information regarding his report to the police officers. Q. About the way he characterized it to the police? A. Correct. Q. What was your memory of how he characterized it at the time? A. Well, he told me that he made that up when he talked to the police, because he wanted to make it look like it was an accident. Q. So when he gave that statement to the police about dropping the wallet and the gun just went off and it was an accident, he told you that he made that up? A. That is correct. (Emphasis added.) On redirect, Moore’s counsel tried to rehabilitate Dr. Chiap-pone’s testimony: Q. Now, Doctor, when you talked to Mr. Moore, do you remember that he told you — that he indicated that the man dropped the wallet, but that’s the part of the statement that he made up to the police, that the man actually did not drop the wallet, that he claimed that he did? Is that correct? A. Yes. On direct appeal, proceeding with different counsel before the Ohio Supreme Court, Moore raised the claim that his trial counsel did not prepare adequately based on this exchange. There was no evidence before the state court other than the trial transcript. The court denied his claim, finding that Moore had failed to show deficient performance and failed to show prejudice. Moore, 689 N.E.2d at 14-15. On state post-conviction relief, Moore asked for an evidentiary hearing and/or discovery, but the court denied his request and denied relief. See Moore, No. C-970353, 1998 WL 638353 at *3-4. The district court granted Moore’s motion for discovery but denied his motion for an evidentiary hearing. In discovery, Moore took the depositions of trial attorneys James and Deardorff, mitigation specialist Stidham, and psychologist Dr. Chi-appone, among others. The district court granted the joint motion of the parties to expand the record to include these depositions as well as the files of James, Dear-dorff, and Stidham. The district court granted relief on Claim (2)(B). Moore, 531 F.Supp.2d at 870. Evidence before the federal habeas court Initially, we note that because of a recent Supreme Court case, we must conclude that neither the district court nor this court may consider the additional evidence introduced in federal court. In Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), the Court held that review under § 2254(d)(1) is limited to the record before the state court when it ruled on the merits. Id. at 1398. The Court held that this does not render meaningless the provisions - of § 2254(e)(2). Id. at 1400-01. According to the Court, those provisions, which address when a petitioner is entitled to an evidentiary hearing, are limited to cases where the underlying claim on habeas was not adjudicated on the merits by the state court. Id. Moore’s case presents a slightly different factual wrinkle. While the State originally opposed Moore’s motions for discovery, it moved jointly with Moore to admit the fruits of discovery into the record. Thus we are faced with the novel question stemming from Pinholster: May a federal habeas court consider additional evidence not before the state courts, despite the prohibition Pinholster found in § 2254(d)(1), when the parties jointly move to expand the record? In a supplemental brief filed after Pinholster was decided, Moore contends that a federal habeas court may consider such evidence under these circumstances. We hold that it may not. In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the Court flirted with addressing whether parties could jointly agree to expand the record with additional evidence for the court’s consideration of the merits of the claims where § 2254(d)(2) was applicable. In that case, the petitioner raised a Batson challenge in his habeas petition. Among other evidence, the Court considered juror questionnaires and juror information cards. Id. at 256-260, 125 S.Ct. 2317. Apparently, these were added to the habe-as record after petitioner’s initial filing in a “joint lodging.” Id. at 257 n. 15, 125 S.Ct. 2317. The Court indicated that the State did not object to the juror questionnaires in the district court or the Fifth Circuit, and most of the State’s arguments before the Supreme Court relied upon the questionnaires, urging the Court to consider them. Id. The Court noted that neither party referred to § 2254(d)(2) as limiting the habeas court to considering only the state court record. Id. But, the Court also noted that it was not clear whether the questionnaires went beyond the materials that the state court had before it. Id. (After all, the juror questionnaires were only generated as part of the jury selection process in the state court.) The Court held that it need not determine whether the strictures of § 2254(d)(2) are waivable. Id. The Supreme Court has given plenty of indication that the restrictions of AEDPA are strong and binding on federal courts. These restrictions have all the hallmarks of a jurisdictional limitation on the power of the federal courts themselves. In Harrington, the Court stated that “Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.” 131 S.Ct. at 787 (emphasis added). AEDPA has “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). This modification of the courts’ role is binding on the courts themselves: “Under AED-PA, Congress prohibited federal courts from granting habeas relief unless a state court’s adjudication of a claim ‘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.’ ” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (emphasis added) (quoting § 2254(d)(1)); see also Premo v. Moore, — U.S. -, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011) (“AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains.” (emphasis added)); Williams, 529 U.S. at 399, 120 S.Ct. 1495 (O’Connor, J., concurring) (“In [AEDPA], Congress placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners.” (emphasis added)); Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir.2003) (“[AEDPA] contains unequivocally mandatory language.”); Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir.2001) (noting that AEDPA “significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners” (italics omitted)). Pinholster itself emphasized the binding nature of AEDPA as a restriction on the courts themselves: “[AEPDA] sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” 131 S.Ct. at 1398 (emphasis added). Congress’s intent in AEDPA was “to channel prisoners’ claims first to the state courts.” Id. at 1398-99. Pinholster’s holding was unequivocal: “We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Id. at 1398. Furthermore, at least one circuit has held that the deferential standard of review under § 2254(d) is not waivable. See Eze, 321 F.3d at 121 (holding that AEDPA standard of review under § 2254(d)(1) was not waivable). This court has previously discussed in dicta waivability of AEDPA’s requirements, specifically with regard to § 2254(e)(2). In Richey v. Bradshaw, 498 F.3d 344 (6th Cir.2007), the district court had relied on new evidence introduced into the federal record in ruling on petitioner’s ineffective assistance of counsel claim. Id. at 351-52. We speculated as to whether the state had implicitly waived the requirement that the habeas court be confined to the state court record. Id. at 351-55. We noted that the state urged the district court to consider the evidence and had itself suggested that evidence be added via expansion of the record rather than an evidentiary hearing. Although we discussed “waiver” of the requirements of § 2254(e)(2), that discussion was unnecessary to our decision because the district court had explicitly held that “[Petitioner] did attempt to develop the factual basis for his claims in state court.” Id,, at 352. This meant that Petitioner had met the requirements of § 2254(e)(2) and additional evidence therefore could be considered by the federal habeas court. The state never challenged that part of the district court’s holding on appeal. Id. The state had not waived the requirements of § 2254(e)(2), but it waived any argument contesting the district court’s factual findings concerning § 2254(e)(2) by not raising any such argument on appeal. Even if AEDPA were not jurisdictional, our conclusion would be the same in this case because it is well established that parties may not stipulate to a standard of review. See Reg’l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 712 n. 10 (6th Cir.2006). In this circuit, when we have held that new evidence was properly introduced in the federal habeas court, we have applied de novo review to those relevant claims adjudicated on the merits in state court. See Brown v. Smith, 551 F.3d 424, 429 (6th Cir.2008). We have held that de novo review would be appropriate in these cases because it would be impossible and even nonsensical to determine if a state court unreasonably applied clearly established law to facts it did not have before it. Id.; see also Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (noting this approach without endorsing it); cf. Pinholster, 131 S.Ct. at 1399 n. 3 (‘What makes the consideration of new evidence strange is ... the notion that a state court can be deemed to have unreasonably applied federal law to evidence it did not even know existed.”). Here, by agreeing to look at evidence beyond the state record we would be permitting the parties to declare their own standard of review. Permitting that does violence to both the evidentiary restrictions of AEDPA and the principle that parties are not free to dictate this court’s standard of review. Besides, this method of reaching de novo review, assumed in Holland, was flatly rejected in Pinholster. See 131 S.Ct. at 1400 (“Today, we reject that assumption and hold that evidence introduced in federal court has no bearing on § 2254(d)(1) review.”). In any event, the Warden has not waived any objection to consideration of an expanded habeas record. Moore’s argument is that by jointly moving to expand the record with new evidence obtained through discovery, the State has implicitly waived the strictures of § 2254(d)(1). Obviously, there has been no express waiver. And this is not a case where the State did not object to discovery at all or where the State itself relies on new evidence obtained in discovery to bolster its case. On the contrary, the State generally opposed all of Moore’s attempts to collect new evidence. First, Moore made several motions, renewed motions, and amended motions for discovery, each of which the Warden opposed, each of which the court denied. After those false starts, Moore again moved for discovery; Moore filed a corrected motion; the Warden opposed the motion; Moore replied to the response; and the court granted in part and denied in part Moore’s motion for discovery. Moore objected to the magistrate’s denial in part of his motion and the district judge overruled his objection. Moore then moved for an evi-dentiary hearing; the Warden opposed it; Moore responded; the magistrate denied the motion; the district judge overruled the objection to the denial. The parties then jointly moved to expand the record with the newly taken depositions from discovery. In its briefs before the district court, the Warden argued that the district court should not consider the new depositions. We decline to find that the State waived this argument where it opposed the admission of additional evidence and all consideration of it at every turn before the district court, with the exception of one instance in which it cooperated with Moore to move the court to expand the record with the evidence. Since the court had already approved of the scope and nature of discovery, the state could have reasonably concluded that further opposition was futile. In any event, expansion of the record does not necessarily require that the district court consider that evidence in evaluating the merits of the habeas claim. Expansion of the record can assist the district court in deciding other issues besides the merits of the claim. Habeas Rule 7, 2004 amendment note (“[A] court may wish to expand the record in order to assist it in deciding an issue other than the merits of the petition.”). For example, it can sometimes be necessary to see if a petitioner has met the diligence requirement of § 2254(e)(2) for claims not adjudicated on the merits by the state court. See, e.g., Boyko v. Parke, 259 F.3d 781, 789-90 (7th Cir.2001). We hold that Pinholster is applicable to this case because the requirements of § 2254(d)(1) are not waivable. We may not consider additional evidence not presented to the state courts on this claim. After oral argument, Moore moved to file supplemental briefing on the effect that the just-decided Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), had on his ineffective assistance of trial counsel claims. We granted his motion. In his supplemental brief, Moore stipulates that Martinez is only relevant if we decide Pinholster prevents admitting his new evidence. But if we so rule, he argues, then we must remand the case to the district court to allow factual development of his claim that his trial counsel was ineffective, and that Martinez mandates we do this because his collateral counsel was insufficiently diligent in developing that record in state court. Moore is wrong for at least two reasons. First, Martinez is inapplicable to his case. In Martinez, the Supreme Court “narrow[ly]” answered a “precise question”: “whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding.” 132 S.Ct. at 1315. The Court carefully defined “initial review collateral proceeding” to mean state court proceedings that, by operation of state law, “provide the first occasion to raise a claim of ineffective assistance of counsel” because the state “barred the defendant from raising the claim on direct appeal.” Id. at 1315, 1320. The Court concluded that, in that circumstance, inadequate assistance of collateral counsel may constitute cause to excuse the procedural default of an ineffective assistance of trial counsel claim, thus allowing federal courts to look past the default on habeas review and at the merits of the claim. Id. at 1320. But the Court repeatedly emphasized the “limited nature” of its holding, which “ad-dresse[d] only the constitutional claims” present where the state has banned a defendant from raising his ineffective assistance of trial counsel claim on direct appeal. Id. We respect Martinez’s emphasis that its conclusion was a narrow one and join our sister circuits in refusing to expand it. See, e.g., Ibarra v. Thaler, 687 F.3d 222, 224 (5th Cir.2012); Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.2012); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.2012). By its terms, Martinez does not address the type of situation that Moore presents here. Not only does Ohio permit ineffective assistance of trial counsel claims to be made on direct appeal, Moore raised this claim on direct appeal and the Ohio Supreme Court rejected it on the merits. Moore, 689 N.E.2d at 13-14. Second, and relatedly, Moore is not asking that we afford a Martinez-like review of a procedurally defaulted claim, but rather that we turn Martinez into a route to circumvent Pinholster. Moore’s argument is not merely that Martinez permits us to review the merits of his claim; we already do that below, albeit through the lens of AEDPA deference, and Martinez is irrelevant to that analysis. Instead, he argues that we should remand to allow factual development of his allegation that collateral counsel was ineffective, and then, if collateral counsel is found ineffective on that newly developed record, permit that record to inform his ultimate claim for relief regarding whether trial counsel was ineffective. In other words, he wants this Court to grant him permission to obtain new facts to challenge the Ohio Supreme Court’s rejection of his ineffective assistance of trial counsel claim. As explained above, though, Pinholster plainly bans such an attempt to obtain review of the merits of claims presented in state court in light of facts that were not presented in state court. Martinez does not alter that conclusion. Deficient performance The district court erred in granting relief on this claim. The state court certainly did not unreasonably apply Strickland in reaching the conclusion that counsel’s performance was not deficient. Moore’s argument is basically that trial counsel should have been aware that Dr. Chiappone was going to testify that Moore said he had lied to police. The idea is that Moore’s counsel was (or should have been) pursuing a residual doubt theory during mitigation, and that theory was damaged by Dr. Chiappone’s testimony. Moore argues that counsel were deficient in their performance as evidenced simply by the fact that they allowed Dr. Chiappone to take the stand and testify as he did, and that the prosecutor succeeded in bringing out the damaging statements. Had counsel prepared properly and “investigated” reasonably by interviewing Dr. Chiappone in preparation for trial, they would have known what Moore had told him, and would have not called him as an expert witness, so the theory goes. Deficient performance can be shown where counsel fail to make a reasonable investigation that they should have made. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Because we are limited to reviewing the evidence that was before the state court, we cannot look at the additional evidence Moore attempted to introduce in the district court and we simply have no evidence as to the preparation that Moore’s counsel undertook. We have only the trial transcript to look to. We do not know if Moore’s counsel failed to prepare Dr. Chiappone adequately, failed to ask him what Moore had told him, or anything of the sort. Nor do we know if they undertook a thorough preparation. There is no evidence either way. The fact that Dr. Chiappone testified as he did is equally compatible with the conclusion that Dr. Chiappone actively concealed this information from trial counsel, did not remember it when trial counsel asked and only remembered on the stand, or made it up on the spot. It would be the same as a witness’s blurting something out unexpectedly, with no warning, with no evidence whatsoever as to trial counsel’s preparations. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Analogous reasoning applies when considering whether a state court based its decision “on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). Counsel’s performance is entitled to great deference and a presumption of reasonableness. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As a sister circuit has stated, in choosing to call a witness, “[f]or counsel’s [decision] to rise to the level of constitutional ineffectiveness, the decision ... must have been completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997) (internal quotation marks omitted). Moore’s case is similar to Hamilton v. Workman, 217 Fed.Appx. 805 (10th Cir.2007) (order denying certificate of appeala-bility). There, the court found no ineffective assistance of counsel where counsel called an expert witness who, to counsel’s surprise, gave a forensic opinion regarding a blood splatter that contradicted one of the defense’s theories. Id. at 809. When counsel elected to call the expert as a witness, he had no knowledge that the expert’s testimony would be inconsistent with defense’s theory, despite having conducted adequate inquiry. Id.; see also Manning v. Rogers, 183 Fed.Appx. 521, 525 (6th Cir.2006) (holding state court did not unreasonably apply Strickland in holding that counsel was not ineffective for calling expert witness whose testimony, while helpful, was “disappointing”). Moore cites Combs v. Coyle, 205 F.3d 269 (6th Cir.2000), in support of his claim. In Combs, the defendant pursued at the guilt phase the theory that “he was too intoxicated from alcohol and drugs to form the requisite intent to kill [the victims].” Id. at 273. One of the defendant’s expert witnesses, a psychologist, testified on cross-examination that while the defendant was intoxicated, he nevertheless acted with intent and purpose. Id. This was understandably damaging to his defense. Under a pre-AEDPA standard, this court held that counsel’s performance was deficient because counsel had presented the psychologist’s testimony without undertaking a full investigation. Id. at 288. The court stated, “Regardless of whether Combs’s counsel should have known or instead actually knew [the expert’s] opinion regarding Combs’s intent, however, counsel’s decision to put him on the stand was objectively unreasonable.” Id. The court did not discuss the investigation or preparation undertaken by the defendant’s counsel; neither did it discuss any preparation of the expert witness. Nevertheless, Combs is distinguishable. First, it employed a pre-AEDPA standard. Id. at 277 n. 5. Second, the expert witness’s testimony was particularly damaging because it occurred at the guilt phase, and defense’s sole strategy was showing that intoxication prevented the defendant from forming the requisite intent. Id. at 273. “[The expert witness’s] testimony directly contradicted the sole defense theory that Combs lacked the requisite intent to commit murder.” Id. at 288. While that goes somewhat to the “prejudice” prong, it also applies to the “deficient performance” prong of Strickland in that it reveals how glaringly deficient counsel was. Combs’s counsel called the expert witness for one purpose and the witness failed them. Id. Third, while the court in Combs did not discuss the actual preparation that trial counsel undertook, it is clear that the court had more evidence than simply the trial transcript before it, since it referenced a deposition of Comb’s trial counsel. See id. Here, there is no indication that Moore’s counsel was relying on the residual doubt mitigation theory. Moore’s trial was in 1994 and, at that time, residual doubt was a legally viable mitigation theory. After Moore’s trial, the Ohio Supreme Court categorically rejected that theory in State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997). We look to the performance of Moore’s counsel under the prevailing standards at the time of trial, and residual doubt was at that time a valid mitigation theory. But while it was still a valid theory in 1994, there is no indication that it was central to Moore’s mitigation case. The decision not to pursue residual doubt is a tactical matter, entitled to deference. As the Ohio Supreme Court stated, [TJhis is a tactical matter that deserves wide latitude. The merits of arguing residual doubt to a jury which has just unanimously determined that a defendant has committed the crime beyond a reasonable doubt are dubious. When arguing for mercy for a client based upon a terrible upbringing, it was probably best for [defendant’s counsel to avoid issues that could offend or alienate jurors. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030, 1039 (1996). Indeed, there is no indication that Moore’s counsel was actively pursuing residual doubt at all. In the opening statement at mitigation, Moore’s counsel did not foreshadow residual doubt as being a central theme of mitigation. Counsel stated, “All I can do today is show you basically two things: I can show you Lee’s background. I can show you the factors that I think will convince you that maybe the death penalty is not sufficient in this matter.” “[W]e’re going to talk about his family background, we’re going to talk about his age, and we’re going to talk about other things that will play into your decision....” Counsel indicated that he would focus on Moore’s “history and his character and his background and his family,” his “relative youth,” and his “education.” Dr. Chiappone’s testimony generally followed these lines. He focused on: Moore’s background, the effect of his parent’s divorce, the bullying he endured, substance abuse, and how well he would fit into a structured environment such as prison. There is no indication that counsel intended to use Dr. Chiappone to develop the theory of residual doubt. The rest of the mitigation case focused on family and friends, emphasizing Moore’s background and his remorse. Moore gave an unsworn statement in which he said, “I realize I must be punished for the crimes I committed, and I have no problem at all with taking responsibility for my actions.” However, he also said, “I want you to know that I believe I accidentally pulled that trigger.” In his closing argument, Moore’s counsel stated, “Did he accidentally shoot him? That’s what he said he did. I don’t know if it’s true, but it doesn’t matter anymore. You say he didn’t.... We’re not here saying, ‘Hey, wait a minute. You’d better reconsider what you did, what you said in the first phase, maybe he wasn’t guilty.’ ” The main thrust of counsel’s argument— and indeed, probably his best strategy— was the focus on Moore’s taking responsibility for his actions, not trying to blame someone else, and feeling remorse. Counsel closed with the statement, “Remorse alone — remorse alone can be enough to overcome the crime he committed.” Residual doubt was simply not the focus of the mitigation phase. Nor would we expect it to be, when the jury had already found that Moore killed the victim intentionally. Counsel did not foreshadow residual doubt in his opening statement. True, Moore’s unsworn statement emphasized that he still claimed he had accidentally shot the victim. But residual doubt was not the theory upon which the defense was counting until Dr. Chiappone unexpectedly undercut it. If we truly give counsel’s decisions a strong presumption of reasonableness, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, we must presume that the decision not to focus on residual doubt was a sound trial strategy. The jury had already found Moore guilty beyond a reasonable doubt of intentionally killing the victim. It was reasonable for counsel not to pursue this theory. It was reasonable for counsel to focus instead on his strongest mitigation theories: background, bullying, divorce, taking responsibility, and remorse. Furthermore, unlike the witness in Combs, Dr. Chiappone did not undercut the sole reason for which counsel called him to testify. He was called to testify as to the background and mental evaluation of Moore. He offered some additional testimony on alcohol and drugs. His sole purpose was not the presentation of a residual doubt theory. Nothing else he testified to even contributed to such an argument. On the basis of the evidence properly before us, we cannot say that the state court unreasonably concluded that Moore’s counsel did not perform deficiently in their preparation for the mitigation phase. Prejudice Even if Moore could show that counsel’s performance was deficient, Moore could not show “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. The Ohio Supreme Court was charged with examining whether “there is a reasonable probability that at least one juror would have struck a different balance,” Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and with reweighing the mitigation and aggravation evidence, Strickland, 466 U.S. at 695, 104 S.Ct. 2052. We review to consider whether the Ohio Supreme Court violated or unreasonably applied clearly established federal law in its analysis. We conclude that it did not and that Moore was not prejudiced. Dr. Chiappone’s statements were indeed unfortunate and appear damaging to Moore’s case. But we must not lose sight of what Dr. Chiappone actually testified to, as clarified by Moore’s counsel. Moore’s counsel rehabilitated Chiappone’s testimony somewhat by clarifying that when Moore admitted he lied to the police, he lied about the victim dropping his wallet, not about the shooting being an accident. Counsel’s point was to show that Moore made up the wallet-dropping (which Moore said startled him and caused him to accidentally shoot the victim point blank in the head) to support his explanation that the shooting was accidental. The mitigation evidence in favor of Moore was not strong. Moore came from a divorced family. He was of average intelligence. By some accounts he was “spoiled” as a child. He suffered from bullying and was occasionally attacked by other neighborhood children when he was younger. But there were no accounts of parental abuse and neglect, no history of witnessing violence, no indication of low intelligence, nor evidence of any of the typical mitigation factors. And support for any theory of residual doubt was even weaker; there was ample testimony in the guilt phase indicating that Moore acted intentionally and that the shooting was not an accident. Moore and Kinley drove to a remote location with the victim in the trunk of the victim’s own car. Kinley testified that when he asked Moore why he was going to kill the victim, Moore responded, “This ain’t nothing.... We’re not going to get caught for it.” Moore, 689 N.E.2d at 5. At the remote location, Moore got the victim out of the trunk and directed him over to a nearby dumpster. He shot him in the head. Kinley testified that Moore laughed afterwards and asked him, “Did you see his dome get shot off?” Id. There was nothing in Moore’s post-shooting reaction consistent with his claim that the shooting was accidental. The jury had already found beyond a reasonable doubt that Moore acted intentionally. In short, there was little “residual doubt” theory to pursue, and there is virtually no probability that without the damage done to any such theory at least one juror would have voted against the death penalty. Finally, the potential damage done by Dr. Chiappone’s testimony is distinguishable from that in Combs. In Combs, the testimony was devastating because it eliminated the defense’s only defense theory— that intoxication prevented Combs from forming intent — and it also helped establish one of the prosecution’s required elements — intent. Combs, 205 F.3d at 288. Here, the damage was not so great because the mitigation case was weak and did not explicitly require pursuing a residual doubt theory, and the testimony was presented at sentencing, not at the guilt phase. See also Pinholster, 131 S.Ct. at 1411 (“Those cases [decided on a pre-AEDPA standard] offer no guidance with respect to whether a state court has unreasonably determined that prejudice is lacking.”). Applying the AEDPA standard of deference, we conclude that the Ohio Supreme Court was not objectively unreasonable in holding that Moore was not prejudiced. Claim (2)(C) Moore also claims that his trial counsel, Deardorff, was ineffective in the opening and closing arguments he delivered at the penalty phase. Moore raised this claim in his state post-conviction petition. The state trial court denied the petition and the Ohio Court of Appeals reviewed the claim on the merits. See Moore, No. C-970353, 1998 WL 638353, at *3-4. We therefore apply AEDPA deference in reviewing the state court rulings. Moore points to statements counsel made that, taken