MEMORANDUM OF OPINION AND ORDER NUNC PRO TUNC TO MARCH 31, 2014 (CLERICAL ERROR)

LESLEY WELLS, District Judge.

This matter is before the Court upon Petitioner Raymond Smith's ("Petitioner" or "Mr. Smith") Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. Through this petition, Mr. Smith challenges the constitutionality of his conviction, rendered by an Ohio court. (ECF No. 44.) The Respondent, Warden Margaret Bagley ("Respondent"), filed a Return of Writ. (ECF No. 71.) Mr. Smith filed a Traverse, and Respondent, a Sur-Reply. (ECF Nos. 127 and 131, respectively.) For the following reasons, the Petition for Writ of Habeas Corpus is denied.

I. Factual History

On March 8, 1995, a Lorain County, Ohio, grand jury indicted Mr. Smith for the aggravated murder of Ronald Lally. The grand jury also separately indicted Mr. Smith's son Daniel ("Danny") Smith and Stanley Jalowiec for Mr. Lally's murder. The indictment charged Mr. Smith with one count of murder with prior calculation and design pursuant to Ohio Revised Code § 2903.01(A). It also included a firearm specification under Ohio Revised Code § 2941.141, and a capital specification under Ohio Revised Code § 2929.04(A)(8), alleging that Mr. Smith purposely killed Mr. Lally in order to prevent him from testifying against him in a separate criminal proceeding. (ECF No. 122-1, 12.) Mr. Smith entered a plea of not guilty to all charges. (Id. at 17.)

The Ohio Supreme Court set out the following factual history, as adduced by the evidence presented at trial, upon considering Mr. Smith's direct appeal of his conviction and sentence:

State v. Smith, 87 Ohio St.3d 424, 424-29, 721 N.E.2d 93, 99-103 (Ohio 2000).

II. Procedural History

A. State-Court Proceedings

1. Trial

Mr. Smith's trial commenced on November 28, 1995. He was represented by Attorneys Harvey B. Bruner and Bret Jordon. Mr. Smith retained Attorney Bruner in August 1995 to replace court-appointed counsel Kenneth Lieux and Thomas Elwell, Jr. On December 5, 1995, a jury found Mr. Smith guilty of the murder charge and both the capital and firearm specifications. (ECF No. 122-1, 221-26.) The penalty phase of the trial commenced on January 4, 1995. The next day, January 5, 1995, the jury recommended that Mr. Smith be sentenced to death. (Id. at 238-40.) The trial court accepted the jury's recommendation and sentenced Mr. Smith to death that same day. (Id. at 241-43.) The court issued its opinion and findings in support of its imposition of the death sentence on February 2, 1995. (Id. at 249-53.)

2. Direct appeals

Mr. Smith filed a timely appeal of the trial court's decision to the Ninth District Court of Appeals, again represented by Attorneys Bruner and Jordan. (ECF No. 122-2, 5-6.) He raised fourteen assignments of error as follows:

(ECF No. 44-1.) The court of appeals affirmed Mr. Smith's conviction and sentence on March 25, 1998. State v. Smith, No. 96CA006331, 1998 WL 158966 (Ohio Ct. App. March 25, 1998). It then appointed new counsel, Attorneys Irving B. Sugerman and Nicholas Swyrydenko, to represent Mr. Smith on his direct appeal to the Supreme Court of Ohio. (ECF No. 122-4, 190.)

Mr. Smith timely appealed the court of appeals' decision to the Ohio Supreme Court on July 23, 1998, advancing the following eleven propositions of law:

(ECF No. 44-2.) The Ohio Supreme Court affirmed Mr. Smith's conviction and sentence on January 5, 2000. State v. Smith, 87 Ohio St.3d 424, 721 N.E.2d 93 (Ohio 2000).

3. Post-conviction proceedings

a. first post-conviction petition

During this time, Mr. Smith also initiated state post-conviction proceedings in the trial court under Ohio Revised Code § 2953.21. On July 2, 1996, Mr. Smith's appellate counsel Attorney Bruner filed a motion for appointment of counsel to file a motion for a new trial and a petition for post-conviction relief as well as transcripts of the trials of Smith's co-defendants, Daniel Smith and Stanley Jalowiec. (ECF No. 122-7, 12-13.) The State objected, and the motions were denied. (Id. at 14-17.) On January 24, 1997, Mr. Smith, now represented by Attorney Mark Rudy, filed a post-conviction petition. (Id. at 18-22.) Mr. Smith filed an amended petition on January 27, 1997, and a second amended petition on January 28, 1997. (Id. at 23-92, 93-115.) Mr. Smith also filed a motion for discovery and expert assistance on January 28, 1997. (Id. at 116-22.) Mr. Smith then filed an amended petition on February 28, 1997, to add several pages to the second amended petition that were inadvertently omitted. (ECF No. 122-8, 1-3.)

The second amended petition presented twelve claims, including thirty-four sub-claims, as follows:

(ECF No. 44-3.) The trial court dismissed Mr. Smith's petition without a hearing on June 29, 1998. (ECF No. 122-8, 117-27.)

On July 29, 1998, Mr. Smith, now represented by Attorney Keith Yeazel, appealed the trial court's denial of his post-conviction petition to the Ninth District Court of Appeals. (ECF No. 122-9, 11-12.) He asserted the following four assignments of error:

(ECF No. 122-10, 2.) The court of appeals affirmed the trial court's decision on March 15, 2000. State v. Smith, No. 98CA007169, 2000 WL 277912 (Ohio Ct. App. March 15, 2000).

Mr. Smith timely appealed the court of appeals' decision to the Ohio Supreme Court. (ECF No. 122-11, 3-4.) He raised the following six propositions of law:

(Id. at 6-7.) The Ohio Supreme Court declined jurisdiction to hear the appeal on July 19, 2000. State v. Smith, 89 Ohio St.3d 1453, 731 N.E.2d 1140 (Ohio 2000) (Table).

b. second post-conviction petition

On March 15, 2000, Mr. Smith, still represented by Attorney Yeazel, filed a successive petition for post-conviction relief and complaint for declaratory judgment in the trial court. The petition raised the following three claims for relief:

The petition sought declaratory relief finding Ohio's death penalty scheme unconstitutional on its face and as applied to Mr. Smith. (ECF No. 123-4, 12-99.)

On February 8, 2002, Mr. Smith, still represented by Attorney Yaezel, filed an amended successor post-conviction petition, supplementing his petition with the following claim:

(Id. at 153-202.) Mr. Smith also filed that day a motion for leave to conduct discovery and a motion to request funding to employ a jury composition expert. (Id. at 102-52.) The court denied Mr. Smith's request for expert funding on March 1, 2002. (Id. at 203.)

On July 1, 2004, the State of Ohio filed a motion to dismiss Mr. Smith's second postconviction petition. (Id. at 229-34.) On July 13, 2004, the trial court granted the State's motion and dismissed Mr. Smith's second post-conviction petition, as well as the amendment to the second petition and motion for additional discovery. (Id. at 251-52.)

On August 9, 2006, Mr. Smith appealed that dismissal to the Ninth District Court of Appeals. (ECF No. 123-5, 14.) He presented the following three assignments of error:

(Id. at 39.) On May 27, 2005, the court of appeals affirmed the trial court's decision. (ECF No. 123-6, 35-44.) On June 28, 2005, Mr. Smith appealed the court of appeals' decision to the Ohio Supreme Court, which declined jurisdiction to hear the case on October 12, 2005. (ECF No. 123-7, 3-4, 48.)

c. Murnahan application

On March 7, 2001, Mr. Smith filed a motion in the Ninth District Court of Appeals seeking to have counsel appointed to represent him in filing an application to reopen his direct appeal in that court pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (Ohio 1992). (ECF No. 122-12, 5-17.) The court denied the motion on March 20, 2001. (Id. at 20.) Mr. Smith appealed the denial of Rule 26(B) counsel to the Ohio Supreme Court on April 3, 2001. (ECF No. 123-1, 3-12.) The court declined jurisdiction to hear the appeal on June 27, 2001. State v. Smith, 92 Ohio St.3d 1428, 749 N.E.2d 756 (Ohio 2001) (Table).

Mr. Smith then filed his Rule 26(B) Murnahan application in the Ninth District Court of Appeals pro se, on July 17, 2001. (ECF No. 123-2, 5-76.) He presented five claims for relief in his application, as follows:

5. Mr. Smith was denied effective assistance of counsel on appeal.

(ECF No. 44-6.)

The court of appeals denied Mr. Smith's application on August 2, 2001. (ECF No. 123-2, 103-04.) On August 27, 2001, Mr. Smith filed a timely appeal of the appellate court's decision to the Ohio Supreme Court, as well as a motion to appoint counsel to represent him in that appeal. (ECF No. 123-3, 3-16.) The Ohio Supreme Court denied his request for counsel on September 26, 2001. (ECF No. 123-3, 17.) The court affirmed the court of appeals' denial of his application on May 1, 2002. State v. Smith, 95 Ohio St.3d 127, 766 N.E.2d 588 (Ohio 2002). The United States Supreme Court denied certiorari on October 15, 2002. Smith v. Ohio, 537 U.S. 951 (2002).

d. third post-conviction petition: Atkins claim

On June 6, 2003, Mr. Smith, represented by Attorneys Jeffry Kelleher and Alan Rossman, filed a third successive post-conviction petition with the trial court, asserting that his sentence should be vacated under Atkins v. Virginia, 536 U.S. 304 (2002), because he is mentally retarded and therefore ineligible for execution, and requesting an evidentiary hearing and an independent expert to assist counsel. (ECF No. 123-4, 204-21.) Concurrently, Mr. Smith filed a motion to appoint Attorneys Kelleher and Rossman as counsel for his Atkins claim. (Id. at 222-28.) On July 13, 2004, the court granted Mr. Smith's motion for appointment of counsel and appointed Attorney Kenneth Lieux to act as local counsel. (Id. at 248.) It also granted the State's motion for appointment of an independent mental assessment of Mr. Smith. (Id. at 249.) On September 28, 2004, the trial court granted permission for Attorney Lieux to withdraw as counsel and appointed Attorney Rossman. (ECF No. 123-8, 12.) The trial court also granted Mr. Smith's request for a state-funded expert. (Id. at 33.)

A three-day hearing was held on Mr. Smith's Atkins claim, beginning on December 14, 2006, and ending on January 17, 2006. (Id. at 48, 49, 57.) On April 25, 2008, the trial court vacated Mr. Smith's death sentence on the ground that he is mentally retarded, and imposed a sentence of life imprisonment without the possibility of parole. (Id. at 96-124.)

Mr. Smith, represented by Attorney Kelleher, appealed the court's decision regarding his new sentence on May 30, 2008. (ECF No. 123-9, 3-4.) The State cross-appealed. (Id. at 10-11.) Mr. Smith filed a motion to dismiss the cross-appeal as untimely, which the court granted on July 16, 2008. (ECF No. 123-10, 18.) On October 1, 2008, the court dismissed the appeal pursuant to the parties' joint stipulation. (Id. at 45.)

B. Habeas Proceedings

Mr. Smith filed a Notice of Intention to File a Habeas Corpus Petition in this Court on August 2, 2000. (ECF No. 1). He also filed that day a Motion for the Appointment of Counsel and a Motion to Proceed In Forma Pauperis. (ECF Nos. 3 and 4, respectively.) The Court granted both motions (without waiving the filing fee) and appointed Alan Rossman and Jeffry Kelleher to represent Mr. Smith. (ECF Nos. 7 and 8.)

On January 11, 2001, Mr. Smith filed motions requesting funding for a private investigator and to conduct discovery. (ECF Nos. 22 and 23.) The Court denied the motion for discovery on February 23, 2001. (ECF No. 32.)

On October 11, 2001, Mr. Smith filed the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 44.) He also filed a motion to stay his case in order to exhaust claims in state court. (ECF No. 45.) On November 21, 2001, he filed a request for leave to conduct discovery related to his Confrontation Clause, due process and prosecutorial misconduct claims; motion to expand the record with psychological records of Michael Smith; and ex parte motion requesting funding of a psychologist. (ECF Nos. 57, 59, 60.) On January 2, 2002, he filed a second request for leave to conduct discovery related to his proportionality review claim. (ECF No. 68.)

Respondent filed a Return of Writ on January 4, 2002. (ECF No. 71.) On January 7, 2002, Mr. Smith filed a second motion to expand the record regarding his seventeenth and eighteenth claims for relief. (ECF No. 72.) On January 22, 2002, the Court stayed the case pending state-court proceedings. (ECF No. 78.) On April 28, 2004, Mr. Smith filed a motion for an order declaring his claims exhausted. (ECF No. 92.) The Court denied the motion on December 17, 2004. (ECF No. 95.) On May 23, 2005, the Court granted Mr. Smith's first motion to expand the record and denied without prejudice his first and second motions for leave to conduct discovery, motion for funds to employ a psychologist, and second motion to expand the record. (ECF No. 99.) On September 29, 2006, Mr. Smith moved to have his Atkins claim declared exhausted. (ECF No. 101.) The Court denied that motion, with leave to renew it. (ECF No. 103.) On June 9, 2008, the Federal Public Defender replaced Alan Rossman as Mr. Smith's counsel.1 (ECF No. 105.)

Mr. Smith moved to lift the stay based on his completion of state-court proceedings on January 28, 2009, which the Court granted on March 3, 2009. (ECF No. 106.) On November 16, 2009, Mr. Smith dismissed several of his claims, primarily those related to his sentence.2 (ECF No. 109.)

That same day, Mr. Smith requested certain discovery to support his claims based on the Confrontation Clause of the Sixth Amendment, prosecutorial misconduct, and the suppression of exculpatory and/or impeachment evidence relating to the unavailability at trial of a key witness for the prosecution, Mr. Smith's son Michael Smith, and the trial court's admission of Michael Smith's deposition into evidence. (ECF No. 110.) On April 27, 2010, the Court granted limited discovery related to Michael Smith's unavailability at trial, including the Lorain County Prosecutor's files for Mr. Smith's and his co-defendants' cases, Elyria Police Department documents, and depositions of the lead prosecutor and two detectives. The Court denied Mr. Smith's request to obtain documents from the Lorain County Probation Department. (ECF No. 113.)

Respondent refiled her Return of Writ with an Amended Appendix on October 17, 2012, after having also filed an updated Appendix. (ECF Nos. 125 and 122-124, respectively.) After requesting and receiving two extensions of time, Mr. Smith filed his Traverse on November 2, 2012. (ECF No. 127.) After requesting and receiving an extension of time, Respondent filed a Sur-Reply on January 7, 2013, rendering this matter ripe for disposition. (ECF No. 131.)

III. Petitioner's Grounds for Relief

Mr. Smith now asserts ten grounds for relief.3 They are:

1. The ineffective assistance of Petitioner's trial counsel with respect to the taking of the deposition of Michael Smith and the admission of the deposition at trial violated Petitioner's rights to the effective assistance of counsel at trial, and his right to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

2. The trial court's admission of the deposition of Michael Smith violated Petitioner's rights, including his right of confrontation and his right to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

3. The misconduct of the prosecutor with respect to the taking of the deposition of Michael Smith, the unavailability of Michael Smith to testify at Petitioner's trial and the introduction of the deposition at trial violated Petitioner's rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

4. The numerous errors committed by the trial court violated Petitioner's right to due process, equal protection, a fair trial, the effective assistance of counsel at trial, and to be free from cruel and unusual punishment, as guaranteed by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

5. The acts and omissions of Petitioner's trial counsel before and during the culpability phase of Petitioner's trial deprived Petitioner of his rights to the effective assistance of counsel, due process of law, equal protection and to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments.

6. Petitioner was denied his right to a fair trial, due process of law, equal protection and to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments, when the State withheld exculpatory Brady, Napue, and Kyles material.

8. The Prosecutor's use of discriminatory peremptory challenges at Petitioner's trial violated Petitioner's right to a fair trial, equal protection, due process of law and to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments.

14. Petitioner's rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when the trial court failed to suppress and admitted Petitioner's statements to police as evidence at Petitioner's trial.

15. Petitioner received the ineffective assistance of counsel on his direct appeal and was thereby deprived of his rights to equal protection, due process of law and to be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments.

19. Because Ohio's post-conviction scheme, Ohio Rev. Code §§ 2953.21, et seq., fails to provide an adequate and effective corrective process for reviewing constitutional challenges to a conviction or sentence, and because Ohio Rev. Code §§ 2952.23(A)(2) is facially unconstitutional and unconstitutional as applied to Petitioner, Petitioner was deprived of his rights to due process, equal protection, the effective assistance of counsel, and to be free from cruel and unusual punishment, as guaranteed by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

(ECF No. 127, passim.)

IV. Standard of Review

Mr. Smith's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), since it was filed after the Act's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). AEDPA, which amended 28 U.S.C. § 2254, was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and `to further the principles of comity, finality, and federalism.'" Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 362, 436 (2000)). As the United States Supreme Court recently explained, the Act "recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Burt v. Titlow, 134 S.Ct. 10, 15 (2013). AEDPA, therefore, "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Id.

One of AEDPA's most significant limitations on the federal courts' authority to issue writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state-court decision either:

28 U.S.C. § 2254(d). Habeas courts review the "last explained state-court judgment" on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis original).

A state-court decision is contrary to "clearly established federal law" under § 2254(d)(1) only "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, 529 U.S. at 412-13. "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Even if the state court identifies the "correct governing legal principle," a federal habeas court may still grant the petition if the state court makes an "unreasonable application" of "that principle to the facts of the particular state prisoner's case." Id. at 413. A state-court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407. As the Supreme Court has advised, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).

A state-court decision is an "unreasonable determination of the facts" under § 2254(d)(2) only if the court made a "clear factual error." Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). Review under this clause, as its plain language indicates, also is limited to "the evidence presented in the State court proceeding." Furthermore, the petitioner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." Burt, 134 S. Ct. at 15; Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). This requirement mirrors the "presumption of correctness" AEDPA affords state-court factual determinations, which only can be overcome by clear and convincing evidence.4 28 U.S.C. § 2254(e)(1). The Supreme Court repeatedly has declined to define the "precise relationship" between § 2254(d)(2) and § 2254(e)(1). Burt, 134 S. Ct. at 15; see also Wood v. Allen, 558 U.S. 290, 300 (2010). It has explained, however, that it is

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003). "[I]t is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was `based on' that unreasonable determination." Rice, 660 F.3d at 250. And, as the Supreme Court has cautioned, "`a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Burt, 134 S. Ct. at 15 (quoting Wood, 558 U.S. at 301).

Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended by AEDPA, is an intentionally demanding standard, affording great deference to state-court adjudications of federal claims. In Harrington v. Richter, 131 S.Ct. 770 (2011), the Supreme Court held that as long as "fairminded jurists could disagree on the correctness of the state court's decision," then relief is precluded under that provision. Id. at 786 (internal quotation marks omitted). The Court admonished that a reviewing court may not "treat[] the reasonableness question as a test of its confidence in the result it would reach under de novo review," and that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 785. Rather, § 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems" and does not function as a "substitute for ordinary error correction through appeal." Id. (internal quotation marks omitted). Thus, a petitioner "must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. This is a very high standard, which the Court readily acknowledges: "If this standard is difficult to meet, that is because it is meant to be." Id. at 786.

Nevertheless, the Supreme Court recognized in Harrington that AEDPA "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Id. at 786. "[E]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief." Miller-El, 537 U.S. at 340. Rather, "under AEDPA standards, a federal court can disagree with a state court's factual determination and `conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.'" Baird v. Davis, 388 F.3d 1110, 1123 (7th Cir. 2004) (quoting Miller-El, 537 U.S. at 340) (Posner, J.).

Federal courts, therefore, retain statutory and constitutional authority, absent suspension of the writ,5 to remedy detentions by state authorities that violate federal law, as long as AEDPA's limitations are observed. Rice, 660 F.3d at 251. And the deference AEDPA demands is not required if those limitations do not apply. Federal habeas courts may, for example, review de novo an exhausted federal claim that was not adjudicated on the merits in state court. See Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005). They likewise may review de novo claims adjudicated on the merits in state court if the petitioner meets the criteria for one of § 2254(d)'s exceptions. See Wiggins, 539 U.S. at 534 (performing de novo review under Strickland's second prong because the state court unreasonably applied the law in resolving Strickland's first prong); Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (holding that the unreasonable application of Ford under § 2254(d)(1) permitted a plenary review of the "underlying [] claim . . . unencumbered by the deference AEDPA normally requires."). See also Rice, 660 F.3d at 252 (citing Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), and Smith v. Bradshaw, 591 F.3d 517, 522, 525 (6th Cir. 2010) (each applying de novo review to federal habeas claims where none of the AEDPA limitations applied)).

V. Exhaustion and Procedural Default

In addition to § 2254(d)'s limitations, AEDPA precludes habeas review of some claims that have not been properly exhausted before the state courts, or were procedurally barred by the state courts.

A. Exhaustion

Section 2254(b)(1) provides that a federal court may not award habeas relief to an applicant in state custody "unless it appears that — the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509 (1982). Thus, exhaustion is fulfilled once a state supreme court provides a convicted defendant an opportunity to review his or her claims on the merits. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). If under state law there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).6

When a habeas court finds a claim to be unexhausted, it can, for good cause, stay the action and permit the petitioner to present his unexhausted claim to state court and then return to federal court for review of his perfected petition. Rhines v. Weber, 544 U.S. 269, 277 (2005). The court need not wait for exhaustion, however, if it determines that a return to state court would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). In addition, AEDPA's § 2254(b)(2) permits courts to deny unexhausted habeas claims on the merits where appropriate. See 28 U.S.C. § 2254(b)(2); Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012) (denying petitioner's claim on the merits "notwithstanding a failure to exhaust" the claim).

B. Procedural Default

Even where a state prisoner exhausts available state-court remedies, a federal court may not consider "contentions of general law which are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). If a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). To be independent, a state procedural rule and the state courts' application of it "must rely in no part on federal law." Fautenberry v. Mitchell, No. C-1-00-332, 2001 WL 1763438, at * 24 (S.D. Ohio Dec. 26, 2001) (citing Coleman, 501 U.S. at 732-33). To be adequate, a state procedural rule must be "`firmly established and regularly followed'" by the state courts at the time it was applied. Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 618 (2009). If a petitioner fails to fairly present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims. O'Sullivan v. Boerckel, 526 U.S. at 848; Rust v. Zent, 17 F.3d at 160.

In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit outlined the now familiar test to be followed when the state argues that a habeas claim is defaulted because of a prisoner's failure to observe a state procedural rule. It is:

Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin, 785 F.2d at 138) (further citations omitted).

In determining whether the Maupin factors are met, the federal court again looks to the last explained state-court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). If the last state court rendering a reasoned opinion on a federal claim "clearly and expressly states that its judgment rests on a state procedural bar," then the claim is procedurally defaulted and barred from consideration on federal habeas review.7 Harris v. Reed, 489 U.S. 255, 263 (1989). Conversely, if the last state court to be presented with a particular federal claim reaches the merits of that claim, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review. Ylst, 501 U.S. at 801.

If the three Maupin factors are met, the claim is procedurally defaulted. However, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates that (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on federal habeas review. Maupin, 785 F.2d at 138; Hutchison v. Bell, 303 F.3d 720, 735 (6th Cir. 2002); Combs, 205 F.3d at 274-75.

A petitioner can establish cause in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); Mohn v. Bock, 208 F.Supp.2d 796, 801 (E.D. Mich. 2002). Objective impediments include an unavailable claim, or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488; Mohn, 208 F. Supp. 2d at 801. Second, constitutionally ineffective assistance of counsel constitutes cause. Murray, 477 U.S. at 488-89; Rust v. Zent, 17 F.3d at 161; Mohn, 208 F. Supp. 2d at 804.

If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective-assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause. Murray, 477 U.S. at 488-89. If the ineffectiveassistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective-assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

To establish prejudice, a petitioner must demonstrate that the constitutional error "worked to his actual and substantial disadvantage." Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). "When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice." Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000).

Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray, 477 U.S. at 495-96). When the Court extended this exception to claims of capital sentencing error, it limited the exception in the capital sentencing context to cases in which the petitioner could show "`by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.'" Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).

The Court will address the issues of exhaustion and procedural default presented in this case when it reviews Mr. Smith's individual claims.

VI. Analysis of Petitioner's Grounds for Relief

A. First and Fifth Grounds for Relief: Ineffective Assistance of Trial Counsel

For his first and fifth grounds for relief, Mr. Smith claims that his trial counsel violated his Sixth Amendment right to effective assistance of counsel. Specifically, he complains that counsel:

(ECF No. 44, 1-20, 55-62.)

1. Procedural Posture

As will be demonstrated below, several of Mr. Smith's ineffective-assistance claims have not been presented to state court, and are therefore unexhausted. Mr. Smith argues that Respondent has waived the defense of exhaustion. (See ECF No. 127, 3.) Respondent counters that she did not waive the defense, but only argued earlier in these proceedings that the Court need not stay Mr. Smith's habeas proceedings because he most likely will have exhausted his claims before the Court issued its final judgment. (ECF No. 71, 30-35.) The Court need not resolve this issue, however, because AEDPA's § 2254(b)(2) permits courts to deny unexhausted habeas claims on the merits where appropriate. See 28 U.S.C. § 2254(b)(2); Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012) (denying petitioner's claim on the merits "notwithstanding a failure to exhaust" the claim).

Respondent also argues that Mr. Smith's habeas claims of ineffective assistance of trial counsel "greatly exceed" the ineffective-assistance claims he properly presented in state court, and, therefore, are procedurally defaulted to the extent that they were not properly advanced on direct appeal or in post-conviction proceedings. (ECF No. 131, 2-4, 26-27.) Mr. Smith counters that none of his ineffective-assistance claims is defaulted because they either were properly presented to a state court, or, where the state courts found claims procedurally barred, the bar was misplaced and should not be recognized here. He further argues that any barred claims can be excused by a showing of cause and prejudice. (ECF No. 127, 3-8, 111-13.)

a. ineffective-assistance claims raised on direct appeal

Mr. Smith raised eight claims of ineffective assistance of trial counsel in his seventh proposition of law to the Ohio Supreme Court. (ECF No. 122-5, 114-18.) Of those claims, the following are identical or similar to his habeas ineffective-assistance claims:

(Id. at 114-18.)

Accordingly, sub-claims 1(m), (o), and (s); 2(a); 3(a)-(d), (f), and (g); 4(a) and (b); and 5(b) and (c), as numbered above, were properly presented to state court and may be reviewed. Any ineffective-assistance claims Mr. Smith raised to the court of appeals on direct review but not to the Ohio Supreme Court are procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999) (holding that a claim is procedurally defaulted where the petitioner did not appeal the claim to the state supreme court).

b. ineffective-assistance claims raised on post-conviction

Mr. Smith also raised several ineffective-assistance claims in his second amended petition in his first post-conviction proceeding. Among those claims, the only ones that he also has raised here were included in his fifth claim of relief, in which he argued that his trial counsel failed "to renew the Motion in Limine and/or request an opportunity to voir dire Detective Leiby as to the whereabouts of Michael Smith, and/or ask for a continuance in order to secure the appearance of Michael Smith, and/or demand the return of the fugitive Michael Smith, and/or request a bench warrant for Michael Smith." (ECF No. 122-7, 105.) The trial court overruled this claim, however, on the ground that it was unsupported by the record or outside evidence, and barred by the doctrine of res judicata. (ECF No. 122-8, 121-22.)

Mr. Smith appealed the ruling only on procedural grounds, such as the misapplication of res judicata and the failure to hold an evidentiary hearing and allow discovery. The court of appeals affirmed the trial court's decision, and the Ohio Supreme Court declined jurisdiction. See State v. Smith, 2000 WL 277912, at **1-2 (Ohio Ct. App. March 15, 2000); State v. Smith, 89 Ohio St.3d 1453, 731 N.E.2d 1140 (Ohio 2000) (Table).

Mr. Smith advances three arguments that the court of appeals' dismissal of his ineffectiveassistance claims was incorrect, and the claims were properly presented to the Ohio courts. First, he contends that the appellate court's decision violated the rule announced in State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), that res judicata does not apply when trial and appellate counsel are the same because of the lawyer's inherent conflict of interest. (ECF No. 127, 4.) Attorneys Bruner and Jordan were Mr. Smith's trial and appellate counsel. However, the court reasoned that because Mr. Smith's ineffective-assistance claims dealt primarily with his original trial counsel, Attorney Lieux, who withdrew four months before trial and did not represent Mr. Smith on appeal, there was no conflict of interest. The court also observed that Mr. Smith's appellate attorneys did raise some of his post-conviction ineffective-assistance claims on direct appeal. Smith, 2000 WL 277912, at *2. This Court agrees.8

Mr. Smith next attacks the court of appeals' ruling on the ground that it was "premature because in July of the following year, Mr. Smith presented this claim to that court in an application to reopen his direct appeal." (ECF No. 127, 4.) This argument also fails. As will be explained below, only claims of ineffective assistance of appellate counsel can be asserted in an application to reopen a direct appeal, or a Murnahan appeal; such appeals do not revive other claims underlying the ineffective-assistance claims.

Mr. Smith's third argument is that the court of appeals improperly applied res judicata to his ineffective-assistance claims because they were supported by evidence dehors the record. (ECF No. 127, 5.) He cites as support cases in which the Sixth Circuit declined to observe Ohio's procedural bar and instead proceeded to the merits of an ineffective-assistance claim when it concluded that Ohio improperly invoked the rule to bar post-conviction ineffective-assistance claims that were supported by evidence dehors the record. See Richey v. Bradshaw, 498 F.3d 344, 359 (6th Cir. 2007); Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005); and Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001). Mr. Smith appears to argue that, as in those cases, the appellate court misapplied res judicata to his ineffective-assistance claim because Michael Smith's mental health records demonstrated that, had his trial counsel placed them in the record when he received them during trial, he could have persuaded the trial court to exclude the Smith deposition on confrontation and competency grounds. (ECF No. 127, 5.)

In the Sixth Circuit cases that Mr. Smith cites, however, the petitioners had presented to the court competent, relevant and material evidence outside the record to support their claims. Here, Mr. Smith did not submit any evidence outside the record to support his ineffectiveassistance claims. In the fifth claim of relief in his second amended petition, he cited only to the trial transcript, which was part of the trial court record and which the court reviewed. (See ECF No. 122-8, 122.) There is no reference to Michael Smith's health records in the petition, and no such records were presented to the court. Insofar as these claims are concerned, the court of appeals was correct in finding that Mr. Smith "did not attempt to support" them "with evidence dehors the record." Smith, 2000 WL 277912, at *2. This argument also is not well-taken.

c. ineffective-assistance claims raised in Murnahan application

Mr. Smith contends that he presented "most" of his habeas claims of ineffective assistance of trial counsel to the Ohio courts through his application to reopen his direct appeal of right under Ohio Civil Rule 26(B), or Murnahan application, including all of the claims relating to the Smith deposition. (ECF No. 127, 6-8, 112-13.) Respondent correctly points to White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), in which the Sixth Circuit expressly rejected Mr. Smith's argument in the context of exhaustion. It held that the petitioner's claim regarding peremptory challenges of potential jurors and his ineffective-assistance-of-appellate-counsel claim "are analytically distinct," and a Murnahan application "cannot function to preserve the peremptory challenge argument." Id. at 526 (citing Prather v. Rees, 822 F.2d 1418, 1421 (6th Cir. 1987) (where difference between two similar claims is difference in legal theory, exhaustion of one claim is not sufficient to find exhaustion of other claim). See also Abshear v. Moore, 546 F.Supp.2d 530, 541 (S.D. Ohio 2008) ("Because claims of ineffective assistance of appellate counsel are based on a different legal theory from the underlying claims, . . . [a Murnahan] application does not preserve the underlying claims from default."). Mr. Smith's claims of ineffective assistance of trial counsel, therefore, are distinct from his claims regarding his appellate counsel, even if they serve as the basis for those claims. Once the Ohio Supreme Court rejected his Murnahan application, therefore, that appeal does not preserve the underlying ineffective-assistance-of-trial-counsel claims used in it to prove ineffectiveness of appellate counsel.

d. conclusion

Thus, sub-claims 1(m), (o), and (s); 2(a); 3(a)-(d), (f), and (g); 4(a) and (b); and 5(b) and (c), as numbered above, were properly presented to state court and are therefore ripe for review. The ineffective-assistance sub-claims Mr. Smith raised in his first post-conviction proceeding are procedurally defaulted, because the state courts found them barred by the doctrine of res judicata. See supra Part VI.A.2. The remaining sub-claims are procedurally defaulted because they were never presented to the Ohio Supreme Court. See Wainwright v. Sykes, 433 U.S. 72 (1977); Murray v. Carrier, 477 U.S. 478 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (all holding that failure to raise a constitutional issue on direct appeal constitutes procedural default).9

2. Merits

Even if all of Mr. Smith's claims of ineffective assistance of counsel were ripe for review, they lack merit. To succeed on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id at 687. To determine if counsel's performance was "deficient" pursuant to Strickland, a reviewing court must find that the representation fell "below an objective standard of reasonableness." Id. at 688. It must "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Id. at 689.

Second, the petitioner must show that he or she was prejudiced by counsel's errors. To do this, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "It is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding.'" Id. at 693 (citation omitted). Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

If a petitioner fails to prove either deficiency or prejudice, his ineffective-assistance claim will fail. See Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006) (citing Strickland, 466 U.S. at 697). The Supreme Court recently explained, "Surmounting Strickland's high bar is never an easy task. . . . An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve." Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citations and internal quotation marks omitted).

Thus, as the Supreme Court often has repeated, "[j]udicial scrutiny of a counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight . . . ." Strickland, 466 U.S. at 689. The Court recently emphasized, "Strickland specifically commands that a court `must indulge [the] strong presumption' that counsel `made all significant decisions in the exercise of reasonable professional judgment,'" recognizing "the constitutionally protected independence of counsel and . . . the wide latitude counsel must have in making tactical decisions." Cullen v. Pinholster, 131 S.Ct. 1388, 1406-07 (2011) (quoting Strickland, 466 U.S. at 689-90).

Under AEDPA, a habeas court is limited to determining whether a state-court decision regarding an ineffective-assistance claim was contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003) (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of § 2254(d)(1) applies). The Supreme Court recently observed that the standards imposed by Strickland and § 2254(d) are both "highly deferential," so that in applying them together, "review is `doubly' so." Harrington, 131 S. Ct. at 788. Therefore, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

a. taking and admission of Smith deposition

Mr. Smith asserts numerous claims of ineffective assistance related to the taking and admission of his son Michael's deposition. (ECF No. 127, 25-43.) He presented only two of these arguments to the Ohio Supreme Court: that his counsel was deficient for failing to object to Det. Leiby's testimony regarding Mr. Smith's remarks at the end of the deposition; and for failing to question Det. Leiby at trial about a telephone conversation he had had with Michael. (ECF No. 122-5, 42-46.) The court first found, in regards to Mr. Smith's ineffective-assistance claims as a whole, that "in no instance does appellant demonstrate prejudice, `a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different.'" Smith, 87 Ohio St. 3d at 439, 721 N.E.2d at 110 (citation omitted). The court also rejected the two specific claims at issue here, reasoning:

Id. at 440-41, 721 N.E.2d at 111. This Court finds the Ohio court's decision regarding these claims is neither contrary to, nor an unreasonable application of, Strickland.

The Court reviews Mr. Smith's remaining ineffective-assistance sub-claims related to the Smith deposition de novo. These claims lack merit for the simple reason that Mr. Smith has not shown any prejudice resulting from the deposition's admission. To do so, he would have to demonstrate "a reasonable probability" that if counsel had performed better, either Michael would have been proven incompetent to testify in person or by deposition; or Michael would have been found and available to testify, and he either would have been entirely discredited on crossexamination or he would have completely changed his testimony to support his father's defense. Mr. Smith concedes, however, that "it is conjecture" that counsel's further investigation into Michael's mental health would have established his incompetency to testify. (ECF No. 127, 31.) And Mr. Smith makes no showing at all, other than conclusory statements, that Michael's live testimony would have been so different from his deposition testimony that it would have changed the result of the trial. In fact, Michael Smith did testify at Stanley Jalowiec's trial, and his account of the events surrounding Mr. Lally's murder was essentially the same as his deposition testimony. See Jalowiec v. Bradshaw, 657 F.3d 293, 299-300 (6th Cir. 2011). These claims are purely speculative.

b. voir dire

Mr. Smith also contends that his trial counsel erred in their performance during the voir dire phase of his trial. His entire argument is this:

(ECF No. 44, 57.) The Ohio Supreme Court addressed this claim, stating:

Smith, 87 Ohio St. 3d at 439-40, 721 N.E.2d at 110-11.

This Court does not consider the Ohio Supreme Court's conclusion to be contrary to, or an unreasonable application of, Strickland. The failure to ask potential jurors life-qualifying questions is not per se ineffective assistance of counsel. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court held that it was permissible to ask prospective jurors about their views concerning the death penalty during voir dire in capital cases. These "death-qualifying" questions would ensure the impartiality of jurors by allowing the State to properly exercise challenges for cause against potential jurors unwilling to return a capital sentence. Id. at 520-23. In Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme Court determined that defense counsel had the same ability to identify those jurors who would always impose the death penalty. Morgan held that "on voir dire the court must, on defendant's request, inquire into the prospective jurors' views on capital punishment," because a prospective juror who would always impose the death penalty must not be empaneled. Id. at 726. It declared, "If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Id. at 729. However, as the Sixth Circuit has explained, "Morgan does not mandate that life-qualifying questions be asked of potential jurors in every case. Instead, Morgan holds that a defendant has the right to life-qualify his jury upon request." Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001). Indeed, the Sixth Circuit has observed that "[c]ounsel is accorded particular deference when conducting voir dire. An attorney's actions during voir dire are considered to be matters of trial strategy." Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001).

In this case, Mr. Smith has not set forth any evidence to rebut the presumption that his trial counsel conducted voir dire in a reasonable manner in accordance with trial strategy. Moreover, he also has not demonstrated why Jurors Ellingsworth and Gosselin should not have been excused for cause under Witherspoon. In fact, as the Ohio Supreme Court noted, Attorney Bruner did question Juror Gosselin extensively, as did the trial court. He also objected when the court excused her, and the trial court explained that its ruling was based on the juror's inconsistent answers regarding the death penalty. (ECF No. 70, 89-92, 94-99.) As to Juror Ellingsworth, the prosecutor and trial court questioned her thoroughly and her opposition to the death penalty was clear. Mr. Smith cannot show that further questioning by defense counsel would have altered her view or the ruling. (Id. at 66-71.) This claim is meritless.

c. introduction and admission of prejudicial evidence

For these sub-claims, Mr. Smith complains that his trial counsel failed to object to the State's introduction of certain prejudicial evidence and to the trial court's admission of that evidence. This evidence includes: the complete Lorain County Common Pleas Court file for Mr. Smith's 1993 indictment for aggravated drug trafficking; the same file regarding Danny Smith's 1993 indictment for aggravated drug trafficking; the Elyria police report regarding Mr. Smith's arrest for the 1993 drug trafficking charge; the Elyria police report regarding Danny Smith's arrest for the 1993 drug trafficking charge; the September 15, 1993, Elyria police dispatcher's report; Mr. Lally's informant agreement with the police; the tape recording of the "controlled buy" between Mr. Lally and the Smiths; and tape recordings and transcriptions of Mr. Smith's statements to the police. (ECF No. 44, 58.)

The Ohio Supreme Court considered this claim with respect to Mr. Smith and Danny Smith's prior criminal record and, in particular, the underlying 1993 drug trafficking charge. It observed:

Smith, 87 Ohio St. 3d at 441, 721 N.E.2d at 111-12. This decision is a reasonable application of Strickland. Tactical decisions governing the admission of evidence are central to trial strategy. Therefore, as noted above, a petitioner claiming ineffective counsel must show that his or her counsel's actions were not supported by a reasonable strategy. Strickland, 466 U.S. at 689. Mr. Smith has not met that burden concerning the introduction of this evidence.

As to the remaining evidence Mr. Smith complains of — namely, the dispatcher's report concerning Danny Smith and Mr. Lally's confrontation and Mr. Smith's statements to police — Mr. Smith provides no argument or support demonstrating his counsel's deficient performance or resulting prejudice, and these claims also are meritless. See United States v. Crosgrove, 637 F.3d 646, 663 (6th Cir. 2011) ("Because there is no developed argumentation in these claims, the panel declines to address Cosgrove's general assertions of misconduct in witness questioning and closing statements."); 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)).

d. failure to object to prosecutorial misconduct

Mr. Smith also complains that his counsel were ineffective for failing to object to numerous instances of prosecutorial misconduct, including the prosecutor's misrepresentation to the jury regarding Michael Smith's whereabouts, the prosecutor's references to Mr. Smith's criminal record, and "numerous instances of prosecutorial misconduct" described in his third ground for relief. (ECF No. 44, 59-61.) The Ohio Supreme Court addressed the two particular comments of the prosecutor to which Mr. Smith argued his counsel should have objected. It concluded:

Smith, 87 Ohio St. 3d at 440, 721 N.E.2d at 111. This decision is not an unreasonable application of, or contrary to, Strickland.

Mr. Smith's remaining ineffective-assistance claims based on prosecutorial misconduct also fail. As explained below, the Court finds no merit in Mr. Smith's claims of prosecutorial misconduct in his third ground for relief, and therefore does not find ineffective assistance of counsel based on the failure to object to such conduct.

e. jury instructions

For these sub-claims, Mr. Smith contends that his counsel were ineffective for failing to request certain jury instructions, such as an "addict-informer" instruction, and instructions limiting the Smith deposition, Det. Leiby's testimony regarding the underlying drug offense and Mr. Smith's prior criminal record, and the jury's consideration of "any of the errors noted above." (ECF No. 44, 60-61.)

Mr. Smith presented his claim to the Ohio Supreme Court regarding the jury instruction limiting Det. Leiby's testimony regarding Mr. Smith's drug offense about which Mr. Lally was to testify, but the court did not directly address it. The court did conclude, however, that "Leiby's testimony was relevant and probative of appellant's motive in committing the crime and in proving the death penalty specification." Smith, 87 Ohio St. 3d at 440, 721 N.E.2d at 111. It also rejected Mr. Smith's argument that the trial court erred in not giving a limiting instruction concerning Det. Leiby's testimony because "Leiby's testimony as to the underlying offense was necessary to show that Lally was murdered to prevent his testimony against both appellant and Danny in the underlying drug trafficking cases. Thus, it was relevant to prove and support the death penalty specification . . . ." Id. at 437, 721 N.E.2d at 108. The Court agrees that Det. Leiby's testimony was relevant, and therefore finds no deficiency in counsel's failure to request a limiting instruction when the trial court most likely would have denied such a request on that ground.

Similarly, the Court finds no deficiency in the fact that counsel did not request a jury instruction limiting the portion Det. Leiby's testimony that referenced Mr. Smith's prior criminal behavior. As noted above, the Ohio Supreme Court held that Mr. Smith's counsel was not ineffective for failing to ensure that Mr. Smith's prior convictions were not disclosed to the jury. It observed that counsel, as part of his trial strategy, used the knowledge of Mr. Smith's criminal record to argue that although Mr. Smith may have been involved with drugs, he was not a murderer. Id. at 441, 721 N.E.2d at 111-12. It follows, then, that requesting a jury instruction limiting this testimony would have been futile and does not amount to ineffective assistance of counsel.

Mr. Smith's remaining ineffective-assistance claims related to jury instructions — those concerning an "addict-informer" instruction, limiting instructions regarding the Smith deposition, and limiting instructions "as to any of the errors noted above" — also fail. Mr. Smith has not provided any argument whatsoever to show that these claims meet the Strickland standard, either that counsel was unconstitutionally deficient or that he suffered any prejudice. These sub-claims, therefore, are waived.

f. conclusion

Accordingly, this Court concludes that to the extent the Ohio Supreme Court ruled on Mr. Smith's ineffective-assistance claims, its findings were neither an unreasonable application of, nor contrary to, Strickland. As to the remaining claims, it finds that Mr. Smith's trial counsel did not perform so deficiently that there was a reasonable probability that the jury would have returned a different verdict.

B. Second, Fourth, and Fourteenth Grounds for Relief: Trial Court Error

Mr. Smith argues in his second, fourth and fourteenth grounds for relief that the trial court deprived him of a fair trial, in violation of his constitutional rights. Specifically, he claims that the trial court erred by:

(ECF No. 44, 20-22; 34-55; 94-97.)

1. Procedural Posture

Respondent concedes that Mr. Smith raised sub-claim 1 (asserted in his second ground for relief) and sub-claims 4(a) and 5(a) through (e) (asserted in his fourth ground for relief) to the Ohio Supreme Court, and they are therefore ripe for habeas review.10 She argues, however, that the remaining sub-claims to Mr. Smith's fourth ground for relief are procedurally defaulted: subclaims 2 (also Mr. Smith's fourteenth ground for relief) and 4(b) were raised to the court of appeals, but were never presented to the Ohio Supreme Court; 8(b) and (c) were raised to the Ohio Supreme Court but reviewed only for plain error;11 and the rest because they were never presented to the Ohio Supreme Court. (ECF No. 71, 64-66.)

Mr. Smith does not address the issue of procedural default of his fourth ground for relief at all. (See ECF No. 127, 110.) He concedes in his Traverse, however, that his fourteenth ground for relief (sub-claim 2 as enumerated above), based on the trial court's failure to suppress Mr. Smith's statements to police, is unexhausted and abandons it. (Id. at 137-38.)

The Court finds that Mr. Smith's sub-claim 1 of his second ground for relief and subclaims 4(a) and 5(a) through (e) of his fourth ground for relief are preserved for habeas review. The remaining sub-claims are procedurally defaulted.12

2. Merits

a. authorizing and admitting Smith deposition

In his second and fourth grounds for relief, Mr. Smith argues that the trial court deprived him of a fair trial when it permitted, and then admitted, his son Michael's deposition, violating in particular his Sixth Amendment right to confront a witness. Specifically, he argues that the court erred by granting the State's motion to take Michael's deposition to preserve his testimony when the State failed to show that it was probable that Michael would be unable to attend Mr. Smith's trial. The trial court also erred, he claims, when it allowed the impermissible "joinder" of Mr. Smith's co-defendants in participating in the deposition. And the court should have granted Mr. Smith's motion in limine to exclude the Smith deposition, because the State failed to show that it had made a reasonable, good faith effort to secure Michael's attendance at trial or that the deposition carried any "indicia of reliability." Instead, Mr. Smith maintains, the trial court wrongfully admitted the full deposition into evidence.13 (ECF No. 44, 20-22.)

The Ohio Supreme Court fully addressed all but the "joinder" claim on direct appeal. It opined:

Smith, 87 Ohio St. 3d at 431-32, 721 N.E.2d at 104-05.

The Sixth Amendment's Confrontation Clause protects a defendant's right "to be confronted with the witnesses against him." U.S. Const. amend. VI. This right is secured for defendants in state as well as in federal criminal proceedings. Pointer v. Texas, 380 U.S. 400 (1965). The Supreme Court long ago explained that the Clause's

Barber v. Page, 390 U.S. 719, 721 (1968) (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)). The Court has emphasized that "a primary interest secured by [the Confrontation Clause] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965). Cross-examination, it has stated, "is critical for ensuring the integrity of the fact-finding process," Kentucky v. Stincer, 482 U.S. 730, 739 (1987), and "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, the Court has recognized that cross-examination is the "`greatest legal engine ever invented for the discovery of truth.'" California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 J. Wigmore, Evidence § 1367, at 29 (3d ed. 1940)).

Accordingly, there traditionally has been an exception to the confrontation requirement where a witness is unavailable and has given testimony at a deposition at which the defendant had an opportunity to cross-examine the witness. The "clearly established Federal law" on this issue for purposes of this Court's review under § 2254(d) is set forth in Ohio v. Roberts, 448 U.S. 56 (1980).14 In Roberts, the Supreme Court held that an unavailable witness's out-of-court statements were admissible only if they bore "adequate indicia of reliability." Id. at 66 (internal quotation marks omitted). Where the statements did not fall within "a firmly rooted hearsay exception," they were inadmissible "absent a showing of particularized guarantees of trust worthiness." Id. The "relevant circumstances" for determining whether evidence satisfied this standard included only those that surrounded the making of the statement and that rendered the declarant "particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 819 (1990).

The Supreme Court never established exact requirements for a statement to be deemed trustworthy. See Wright, 497 U.S. at 822 ("We . . . decline to endorse a mechanical test for determining `particularized guarantees of trustworthiness' under the Clause."). The Court emphasized instead that "the unifying principle" was whether the declarant "was particularly likely to be telling the truth when the statement was made." Id. It took a "general approach" to determining trustworthiness, affirming that "courts have considerable leeway in their consideration of appropriate factors." Id. at 814, 822.

Mr. Smith maintains, as a preliminary matter, that this Court should review his claim de novo, because the Ohio Supreme Court failed to address Roberts or any other federal constitutional law and limited its discussion only to Rule 15 of the Ohio Rules of Criminal Procedure. (ECF No. 127, 57-59.) In fact, as shown above, the Ohio Supreme Court directly addressed Mr. Smith's "right to confront" Michael Smith after discussing the state procedural rule. Moreover, the Supreme Court has held that AEDPA deference applies regardless of whether the state court provided little or no reasoning at all for its decision. Harrington v. Richter, 131 S. Ct. at 784. Indeed, a state court need not cite or even be aware of Supreme Court cases under § 2254(d). Id. The Court in Harrington explained,

Id. AEDPA deference applies to this claim.

Mr. Smith argues in the alternative that if AEDPA applies, the Ohio Supreme Court's decision is contrary to, or an unreasonable application of, Roberts and its progeny under § 2254(d)(1). He first contends that because the Ohio Supreme Court referred in passing to a "conspiracy among [Mr. Smith], Danny, Michael, and Jalowiec," Michael Smith was a coconspirator, and therefore his deposition testimony was "presumptively unreliable." He cites as support Richardson v. Marsh, 481 U.S. 200, 208 (1987); Douglas, 380 U.S. at 419; and Lee v. Illinois, 476 U.S. 530, 541 (1986), among others. (ECF No. 127, 54-56.) The Court disagrees. Michael Smith was never indicted for this offense, and Mr. Smith points to no evidence admitted at trial of Michael's involvement in Mr. Lally's murder beyond that of a bystander. At his deposition, Michael specifically denied being involved in any conspiracy to kill Mr. Lally; he testified that he had no knowledge of the planned murder and cowered in the car while it took place. (See, e.g., ECF No. 125-2, 13, 21, 32, 47-48, 81-83, 89-90.)

Mr. Smith also argues that the Ohio Supreme Court unreasonably applied Roberts when it based its determination that Michael's deposition testimony was sufficiently trustworthy on the sole fact that Michael was cross-examined by Mr. Smith's counsel as well as the other two defendants' counsel. He asserts that the court did not undertake the "fact-intensive review a court must conduct in order to assess the `particularized guarantees' of reliability" that is required by Supreme Court jurisprudence on this issue. (ECF No. 127, 61-62.) Again, the Supreme Court held in Harrington v. Richter that even a summary denial of a constitutional claim can satisfy § 2254(d). It stated,

Harrington, 131 S. Ct. at 784-85. Mr. Smith has not overcome the presumption that the state court adjudicated his constitutional claim on the merits, and this argument is not well-taken.

Mr. Smith further contends that the Ohio court's decision regarding his right to confrontation was an unreasonable determination of the facts under § 2254(d)(2). He points to several reasons why Michael's deposition testimony lacked the required indicia of reliability. First, he cites the "total failure of any judicial oversight," including the court's failure to review the transcript and rule on objections to it. (ECF No. 127, 63.) Without a motion from counsel, however, the trial court had no obligation to review the transcript or rule upon the admissibility of any portion of it. This argument relates more to the ineffectiveness of counsel than the reliability of the deposition testimony.

Mr. Smith also complains that the prosecutor twice vouched for Michael's credibility when he objected during the deposition and stated that the record was consistent with his testimony. (Id. at 63-64.) The prosecutor's comments did not constitute impermissible vouching. See infra Part VI.C.2.a.iv. And even if they did, the prosecutor's opinion of Michael's testimony has no bearing on the inherent trustworthiness of the testimony itself.

Mr. Smith argues next that the greatest factor contributing to the unreliability of the deposition was the fact that counsel for his co-defendants participated in it and cross-examined Michael. (Id. at 64-65.) This argument is not persuasive. The testimony elicited from the other two defendants' counsel may have been damaging to Mr. Smith, but that does not impact the testimony's reliability. If anything, the additional cross-examination may have enhanced its trustworthiness.

Mr. Smith also maintains that the deposition was unreliable because it contained "inadmissible hearsay," and cites one example. (Id. at 65.) Again, this defect does not relate to the truthfulness and reliability of Michael's testimony as a whole. Furthermore, counsel did not object to the one instance of hearsay to which Mr. Smith refers, and the trial court was never asked to rule upon its admissibility.

Mr. Smith next finds the deposition's reliability compromised because Michael testified at the deposition for a brief time, comprising seventeen pages of the 96-page transcript, without being sworn in. (Id. at 65-66.) At that point, the prosecutor commented, "Let the record reflect that the Court Reporter has pointed out that we neglected to swear in Mr. Smith. By stipulation of the parties, the attorneys have agreed to swear him in now and affirm what he said has been the truth." One of the attorneys present refused, stating, "I'm not agreeing to that," and the prosecutor then agreed to start the deposition over after swearing Michael in. (ECF No. 125-2, 17.) Mr. Smith complains that this episode permitted the jury to "read and consider twice" Michael's testimony. This argument is misplaced. The jury had the transcript during its deliberations and could read the sworn or unsworn testimony as many times as it wished. Mr. Smith also asserts that the prosecutor's proposed stipulation created the impression that defense counsel stipulated to the truth of the testimony because defense counsel did not object to the statement. But one of the attorneys did object to the prosecutor's characterization of the situation, and the parties began the deposition over after properly swearing in Michael. Finally, Mr. Smith protests that a co-defendant's counsel referred to one particular unsworn statement. That isolated incident, however, would not affect the testimony's reliability.

Mr. Smith contends that the deposition's trustworthiness was further undermined when the jury was allowed to consider the prosecutor's instructions to Michael not to answer any questions about "his family or his personal life as a result of him being in fear," and Mr. Smith's counsel did not object, seek to pursue the line of questioning, or seek judicial review of the matter. (ECF No. 127, 66-67.) Defense counsel did, however, question Michael extensively about his drug use and mental health. (See, e.g., ECF No. 125-2, 33-36, 40-45.) Beyond that, this argument relates more to the ineffectiveness of counsel than the reliability of the Smith deposition testimony.

Mr. Smith also complains that repeated comments by the prosecutor that Mr. Smith posed a threat to Michael and the State was protecting him impacted the deposition's reliability. (ECF No. 127, 67-68.) As Mr. Smith concedes, however, his counsel did not object to the statements, and the trial court therefore had no obligation to strike them.

Mr. Smith maintains that the deposition testimony was unreliable because the deposition was not conducted in accordance with the Ohio Rules of Civil Procedure, as it included unsworn testimony, was never submitted to Michael for review and signature, and was never filed with the trial court. (ECF No. 127, 68.) These procedural flaws had negligible impact on the deposition's reliability.

Mr. Smith argues that the deposition also was unreliable because it occurred "at a time considerably after the event." (Id.) But this would be true even if Michael had testified at trial and does not impact the deposition testimony's reliability.

Mr. Smith's next complaint is that Det. Leiby, who attended the deposition, testified at trial that "to the best of my knowledge" the transcript was "a true and accurate transcript," but he also acknowledged that he had "looked at it briefly." (ECF No. 127, 69.) The detective's statement suggests nothing more than that the transcript is a true record of the testimony, not that the testimony itself is true. And Mr. Smith offers no other evidence that the transcript is not an accurate record of Michael's testimony.

Mr. Smith argues that the testimony's reliability was undermined by the reference in the deposition transcript to, and Det. Leiby's testimony about, Mr. Smith's use of the word "kill" at the end of the deposition. (Id.) The deposition transcript records that, at the end of the Smith deposition, Mr. Smith said, "— kill —." (ECF No. 125-2, 95.) Det. Leiby testified at trial that what Mr. Smith said was, "I raised the boy, now I got to kill him." (ECF No. 70, 706.) Mr. Smith's counsel cross-examined Det. Leiby on that point. He also presented a witness, a private investigator for one of the co-defendants, who attended the deposition and testified that his impression of what Mr. Smith said was, "[H]e stated, `That is my son, I raised him,' and then he shrugged his head and shrugged his shoulders, `and now I am going to kill him?' And I took it as a question." (Id. at 721.) Again, the problems posed by Mr. Smith's utterance of the word "kill" and the State's use of that statement possibly relate to the ineffectiveness of counsel, and they may have been damaging to Mr. Smith. But they do not undermine the reliability of Michael's deposition testimony.

Finally, Mr. Smith asserts that the ineffectiveness of his counsel must also be considered in determining the reliability of the deposition testimony. He argues that the Supreme Court in Roberts considered the effectiveness of the defense counsel's cross-examination in deciding whether prior testimony of an unavailable witness was reliable. (ECF No. 127, 70-71.) The Roberts Court stated in a footnote,

Roberts, 448 U.S. at 74 n.12. This is not such an extraordinary case. The Court finds Mr. Smith's counsel performed a reasonable cross-examination of Michael Smith and has otherwise denied Mr. Smith's related ineffective-assistance claims. See supra Part VI.A.2.a.

The Sixth Circuit recently observed in deciding a habeas Confrontation Clause claim,

Miller v. Stovall, ___ F.3d ___, No. 12-2171, 2014 WL 519627, at * 3 (6th Cir. Feb. 11, 2014). Here, the Ohio Supreme Court's decision that the trial court did not violate Mr. Smith's right to confront his son Michael by permitting and then admitting Michael's deposition at trial was reasonable.

As an eyewitness to the murder, Michael Smith's testimony was critical to the State's case. The trial court permitted the deposition out of concern for Michael's safety, which later was corroborated by Mr. Smith's comment at the end of the deposition. At the deposition, Mr. Smith and his counsel confronted Michael face-to-face and counsel vigorously cross-examined him, as did counsel for Mr. Smith's co-defendants. At trial, the court conducted a hearing before admitting the deposition, at which the State demonstrated its good-faith but unsuccessful efforts to secure Michael's presence. Thus, the trial court acted fairly and reasonably in handling the Smith deposition, balancing Mr. Smith's critical right as a defendant in a capital case to confront the witnesses against him with the State's important interest in preserving crucial, reliable testimony. As the Supreme Court declared in Roberts, "[E]very jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings." Roberts, 448 U.S. at 64. See also Mattox, 156 U.S. at 243 ("general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case"); Martinez v. Court of Appeal, 528 U.S. 152, 163 (2000) ("[T]he overriding state interest in the fair and efficient administration of justice" is significant enough to "outweigh an invasion of the appellant's interest in self-representation."); United States v. Scheffer, 523 U.S. 303, 308-09 (1998) ("A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant's interest in presenting such evidence may thus `bow to accommodate other legitimate interests in the criminal trial process.' . . . [The interests here] include ensuring that only reliable evidence is introduced at trial [and] preserving the court members' role in determining credibility . . . ." (footnote and citations omitted) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)).15

b. trying the case to a tainted jury

For this sub-claim, Mr. Smith asserts that he was denied his Sixth Amendment right to a "trial, by an impartial jury . . . ." U.S. Const. amend. VI. His entire argument is as follows:

(ECF No. 44, 34.) This claim is meritless. Mr. Smith provides little authority and no evidence to support it. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976) ("pretrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial"); Murphy v. Florida, 421 U.S. 794, 799 (1975) (in order to establish prejudice, trial must be "entirely lacking in the solemnity and sobriety to which a defendant is entitled"); DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998) (prejudice is presumed only where it is shown that the atmosphere in the community or the courtroom is sufficiently inflammatory).

c. evidentiary rulings

Mr. Smith asserts in numerous sub-claims that the trial court violated his constitutional right to due process by allowing certain arguments by the prosecutor and admitting certain evidence introduced by the State. Specifically, he complains about the court's admission of: certain statements of Danny Smith; Mr. Smith's prior criminal record; false and misleading arguments by the prosecutor; evidence and arguments that Mr. Smith had a prior conviction for aggravated drug trafficking; evidence and arguments that Mr. Smith was engaged in prior offenses of aggravated drug trafficking; and arguments that Mr. Smith probably had his son Michael killed to prevent his testimony. (ECF No. 44, 38-51.)

"[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). See also Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Generally, therefore, "alleged errors in evidentiary rulings by state courts are not cognizable in federal habeas review." Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012). Evidentiary rulings made by state courts only "rise to the level of due process violations [if] they `offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).

i. Danny Smith statements

The Ohio Supreme Court addressed Mr. Smith's claims regarding statements Danny Smith made to Officer Homoki, Sandra Williams and Terry Hopkins that he contends were inadmissible. It reasoned:

Smith, 87 Ohio St. 3d at 433-35, 721 N.E.2d at 105-07.

Mr. Smith does not provide any argumentation to show that the Ohio Supreme Court's decision regarding these claims was unreasonable under § 2254(d)(1) other than conclusory assertions that the statements' admission violated his constitutional rights. These claims, therefore, fail.

Mr. Smith's remaining claims regarding evidentiary rulings primarily concern testimony and evidence related to Mr. Smith's indictment for the underlying 1993 aggravated drug trafficking, his prior convictions, Danny Smith's subsequent indictments, and his threat against his son Michael. These sub-claims were either never presented to the state courts or adjudicated on the merits by them, so this Court reviews them de novo.

ii. underlying 1993 aggravated drug trafficking indictment

As explained above in relation to Mr. Smith's ineffective-assistance claim, evidence concerning Mr. Smith and Danny Smith's 1993 indictment for aggravated drug trafficking was relevant and probative of Mr. Smith's motive for murdering Mr. Lally and in proving the death penalty specification. See supra Part VI.A.2.c. These sub-claims lack merit.

iii. Mr. Smith's prior convictions

Mr. Smith's sub-claims related to testimony, evidence and argument regarding his prior convictions similarly fail. Certain of this evidence was contained in the court file for the 1993 aggravated drug trafficking indictment, which, as discussed above, was a critical piece of evidence to prove the death penalty specification. In addition, as noted in connection with Mr. Smith's ineffective-assistance claim, Mr. Smith's counsel, as part of his trial strategy, used evidence of Mr. Smith's prior convictions to argue that while Mr. Smith may have been involved with drugs, he was not a murderer. See supra Part VI.A.2.c.

iv. Danny Smith's subsequent indictments

Mr. Smith further argues that the trial court erroneously permitted Det. Leiby to testify regarding certain statements Danny Smith made to him on April 28, 1994, and January 7, 1995. He complains that this testimony prejudiced Mr. Smith by revealing that Danny Smith was charged with additional criminal offenses after the murder occurred, then offered to make a deal with the prosecutor in exchange for information about Mr. Smith's role in the murder. Danny Smith also provided information that corroborated the State's case against Mr. Smith — namely, that he had driven his father and brother to the area where the State contended Mr. Jalowiec later met them with Mr. Lally. (ECF No. 44, 43-44.) The trial court overruled defense counsel's objection to this testimony on the ground that it was admitted not to show that Danny was ultimately convicted for these offenses, but for the limited purpose of explaining why Danny contacted the police, which in turn led to Mr. Smith's statements to police and subsequent arrest. (ECF No. 70, 695-98, 702-03.) Mr. Smith does not explain why the trial court's admission of this testimony violated his due process rights. As the trial court ruled, this testimony was necessary and relevant. This sub-claim is meritless.

v. Mr. Smith's threats to harm Michael Smith

For this sub-claim, Mr. Smith asserts that the trial court should not have permitted the prosecutor to argue in his opening statement, "Now, as a result of the fact that this group of people had been known to kill all those that are testifying against them, the State moved this Court to take [Michael's] deposition to preserve his testimony."16 (ECF No. 44, 49.) As will be explained below, the Court does not find this comment to be improper, and it therefore does not support a claim of trial court error. See infra Part VI.C.2.b.ii.

c. insufficiency of evidence

Mr. Smith argues for this sub-claim that the trial court erred by not dismissing all charges against Mr. Smith for insufficient evidence relating to three elements of aggravated homicide: the venue of the trial court, prior calculation and design, and Mr. Lally's cause of death. (ECF No. 44, 38.) This claim repeats the claim Mr. Smith originally asserted in his tenth ground for relief but has since abandoned. The Court, therefore, assumes this claim also is abandoned.

d. failing to give limiting or curative jury instructions.

In this last sub-claim, Mr. Smith states that the trial court "did not give any limiting instructions with regard to this highly prejudicial testimony." (ECF No. 44, 51.) It is unclear exactly to which testimony Mr. Smith is referring or what instructions should have been given. Nor does Mr. Smith provide any legal authority to support this claim. To the extent that Mr. Smith is arguing that the trial court should have given an instruction limiting Det. Leiby's testimony regarding Mr. Smith's 1993 drug trafficking charges and other prior convictions, the Ohio Supreme Court conducted a plain-error review of this claim (because Mr. Smith had waived the claim by not presented it to the court of appeals) and rejected it. As explained with regard to Mr. Smith's related ineffective-assistance claim, the court found Det. Leiby's testimony regarding the underlying offense was necessary to prove Mr. Smith's motive in the murder — preventing Mr. Lally from testifying against him and his son. Smith, 87 Ohio St. 3d at 437, 721 N.E.2d at 108. It added, "In addition, absent a request, the trial court was under no duty to provide a limiting instruction as to what parts of Leiby's testimony the jury should consider." Id., 721 N.E.2d at 108-09. This Court agrees. If Mr. Smith asserts additional bases for this claim, they are waived for lack of argumentation. These sub-claims, too, lack merit.

C. Third Ground for Relief: Prosecutorial Misconduct

For his third ground for relief, Mr. Smith claims that the prosecutor violated his constitutional rights in numerous ways. Specifically, he complains that the prosecutor:

6. discriminatory use of peremptory challenges.

(ECF No. 44, 22-34.)

1. Procedural Posture

Respondent argues that the following prosecutorial-misconduct sub-claims are procedurally defaulted: sub-claims 5(b), (d), and (e), because they were presented on direct appeal to the Ohio Supreme Court but were deemed waived and therefore reviewed only for plain error; sub-claim 1, because it was raised for the first time on post-conviction but not appealed; subclaim 6, because it was not raised to the Ohio Supreme Court on direct appeal and was not raised to the court of appeals on post-conviction; and sub-claims 2, 3, 4, and 5(c), because they were never presented to the state courts. Respondent does not address the procedural posture of subclaim 5(a). (ECF No. 71, 78-79.)

a. the Smith deposition

Mr. Smith denies that his sub-claims 1 through 4, related to the Smith deposition, are procedurally defaulted. He contends that he raised these claims on post-conviction as his ninth and twelfth claims,17 and the court erroneously denied them on the merits because he failed to present any evidence dehors the record. He explains that he had attached the affidavit of Ditanvia Geiger, in which she averred: "During a conversation between Michael Smith and I, Michael told me that Jonathan E. Rosenbaum, an Assistant County Prosecutor from Lorain County, and Detective Al Leiby, of the Elyria Police Department, sent him to the State of Arizona prior to the trial of Raymond Smith." He argues that he appealed this ruling to the court of appeals by requesting a hearing on the merits of the claim, to which it incorrectly applied res judicata. (ECF No. 127, 87-88.) The Court disagrees.

Mr. Smith's ninth claim of relief in his post-conviction petition stated:

(ECF No. 122-7, 111.) Although there is no Exhibit H attached to the Second Amended Petition or to the Amended Petition in the Appendix filed in this case, the post-conviction court noted in its decision that Exhibit H consisted of three pages of the trial transcript. (ECF No. 122-8, 124.) In the only relevant portion of those pages, the prosecutor informed the trial court,

(See ECF No. 70, 734.) Mr. Smith's twelfth claim of relief in his post-conviction petition stated:

(Id. at 113.) Ms. Geiger's affidavit is the only document attached to the petition, but is unmarked. (Id. at 115.)

The trial court denied Mr. Smith's ninth claim of relief because it alleged without any support that the State knew where Michael Smith was at the time of trial. And, because the only evidence Mr. Smith submitted as support — the trial transcript — already was part of the record, it found the claim was barred by the doctrine of res judicata. (ECF No. 122-8, 124-25.) The trial court also denied Mr. Smith's twelfth claim of relief. It decided that "[e]ven though the petitioner has offered some evidence outside the record, his petition fails because he has failed to attach any evidentiary documents to the petition which demonstrate that he was prejudiced in any way." (Id. at 126.) It concluded,

(Id. at 127.)

Mr. Smith did not appeal either of the claims expressly, but more generally appealed the dismissal of his petition without a hearing. (ECF No. 122-10, 2.) The court of appeals found that Mr. Smith "did not attempt to support any of his claims with evidence dehors the record." (ECF No. 122-10, 130.) It added in a footnote that "[a]lthough Smith has suggested that he submitted evidence to support some of his claims, this Court was unable to find any such evidence in the record." (Id. at n.1.) The court then held that "[b]ecause each of Smith's twelve claims for postconviction relief was barred by the doctrine of res judicata, the trial court did not err in dismissing his petition without a hearing." (Id. at 131.)

This Court finds that, as Respondent argues, Mr. Smith did not raise sub-claims 2, 3 and 4 in his post-conviction petition and they are procedurally defaulted.18 The Court also agrees with Respondent that sub-claim 1 is procedurally defaulted. Mr. Smith's argument that the court of appeals improperly applied res judicata to his prosecutorial-misconduct claim based on Michael Smith's unavailability because it was supported by evidence dehors the record — namely, Ms. Geiger's affidavit — is unavailing.

First, the Court respects the state appellate court's representation that it could not find Mr. Smith's supporting evidence in the record. And the Court must look to the last reasoned state court opinion to determine procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). Moreover, even if the court had reviewed the Geiger affidavit, it still could properly have found that the affidavit was insufficient to overcome the res judicata bar.

Ohio courts routinely apply the res judicata rule to claims raised in petitions seeking postconviction relief, since the doctrine prevents post-conviction relief on "any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment or conviction, or on an appeal from that judgment." State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169, 171 (1982) (emphasis original). There is an exception to Ohio's res judicata doctrine, however, when a petitioner presents evidence dehors, or outside, the record to support a claim on post-conviction. See, e.g., State v. Smith, 17 Ohio St.3d 98, 101, 477 N.E.2d 1128, 1131-32 n.1 (Ohio 1985); State v. Perry, 10 Ohio St.2d 175, 179, 226 N.E.2d 104, 107 (Ohio 1967) (if the defendant "had no means of asserting the constitutional claim there asserted until his discovery, after the judgment of conviction, of the factual basis for asserting that claim," then the claim "was not one that could have been raised . . . before the judgment of conviction, and hence could not reasonably be said to have been . . . waived").

The Ohio Supreme Court has cautioned, however, that evidence dehors the record will not overcome the res judicata bar in cases where "the allegations outside the record upon which [a petitioner] relies appear so contrived, when measured against the overwhelming evidence in the record of trial counsel's competence, as to constitute no credible evidence and, thus, to justify the trial court's application of the principles of res judicata." Cole, 2 Ohio St. 3d at 114, 443 N.E.2d at 171. Accordingly, Ohio courts have limited this "new evidence" exception to evidence that "demonstrate[s] that the petitioner could not have appealed the constitutional claim based upon information in the original record." State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362, 367 (Ohio Ct. App. 1995). It must be "competent, relevant and material," and meet a "threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery."19 Id. (internal quotation marks and citation omitted).

The Sixth Circuit repeatedly has held that the res judicata doctrine is an adequate and independent state ground to procedurally bar claims asserted in federal habeas actions. See, e.g., Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000). The court also has held, however, that "an incorrect application of a state res judicata rule does not constitute reliance on an adequate and independent state ground." See Wogenstahl v. Mitchell, 668 F.3d 307, 341 (6th Cir. 2012) (citing Durr, 487 F.3d at 434-35, and Richey v. Bradshaw, 498 F.3d 344, 359 (6th Cir. 2007) (noting that the court has "declined to observe Ohio's procedural bar and instead [has] proceeded to the merits of an ineffective-assistance claim when we have concluded that Ohio improperly invoked its res judicata rule")).

Mr. Smith argues "[b]ecause Petitioner did support this claim with evidence outside the record the application of res judicata as a procedural bar was erroneous and should not be enforced." (ECF No. 127, 89.) He points to the Sixth Circuit case Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005), for the proposition that "when a habeas petitioner raises a claim in state postconviction court based on evidence outside the record, that claim is not procedurally defaulted even if the state post-conviction court finds to the contrary . . . ." (Id.) Indeed, the court held in Hill that claims raised in post-conviction "are not barred by res judicata under Ohio law when evidence outside the direct-appeal record is presented . . . ." Hill, 400 F.3d at 314. Since Hill, the Sixth Circuit has held in several cases that a habeas petitioner's claim was not procedurally defaulted because Ohio's res judicata bar was misapplied to the claim. See, e.g., Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir. 2007) (finding petitioner's ineffective-assistance claim "relies on evidence outside of the trial record and therefore was not defaulted when he failed to raise it on direct appeal"); Richey, 498 F.3d at 359-60; White v. Mitchell, 431 F.3d 517, 526-27 (6th Cir. 2005); Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001) (all holding same).

Mr. Smith, however, oversimplifies and misrepresents Hill's holding. In the cases in which the Sixth Circuit has followed Hill, the court has made it clear that Hill does not circumvent Ohio's res judicata doctrine by permitting habeas courts to reach the merits of any claim dismissed on res judicata grounds just because a petitioner presents some supporting evidence outside the record. Rather, the court disregarded the procedural bar only where the evidence at issue was competent, relevant and material, as the doctrine requires. For example, the evidence at issue in Hill was an affidavit from an addiction specialist, who testified during the petitioner's mitigation phase that he had been contacted after the guilt phase of the trial, did not meet the petitioner until the morning he testified, and that, had he evaluated the petitioner earlier, he could have testified specifically about the petitioner and his addiction as opposed to addiction in general. Hill, 400 F.3d at 314. In Greer, the evidence at issue concerned witnesses who never appeared at trial, as well as the testimony of trial counsel respecting trial strategy, which the court stated was "by definition dehors the record." Greer, 264 F.3d at 675. In Richey, the court observed,

Richey, 498 F.3d at 360. See also White, 431 F.3d at 527 (noting the similarity of claims and "quality of evidence presented" in that case and in Hill, where petitioner submitted affidavits of mitigation experts and two additional experts). Hill, therefore, did not create an exception allowing habeas petitioners to bypass Ohio's res judicata doctrine; it merely made explicit that habeas courts will not automatically enforce this procedural bar, but will review the ruling to ensure that it complies with Ohio law.

For the reasons explained more fully below, the Court finds that Ms. Geiger's affidavit would not have materially changed the case that could have been presented on direct appeal. The Ohio court, therefore, properly applied res judicata to this claim, and it is procedurally defaulted.

b. misrepresentations at trial

Mr. Smith also denies Respondent's argument that his sub-claim 5, related to the prosecutor's misrepresentations at trial, is procedurally defaulted as never presented to state courts. He contends he raised the claims in his Murnahan application. (ECF No. 127, 95-98, 107.) For the reasons stated above, however, see supra Part VI.A.1.c, this arguments fails and these claims are procedurally defaulted.20

c. discriminatory use of peremptory challenges

Mr. Smith does not address the procedural posture of this sub-claim. The Court agrees with Respondent that it is procedurally defaulted. Although Mr. Smith raised this claim on direct appeal to the court of appeals, he did not raise it to the Ohio Supreme Court. (See ECF No. 122-5, 936-1115.) Mr. Smith reasserted it as the eleventh claim of relief in his post-conviction Second Amended Petition, which the trial court denied on the ground of res judicata. (ECF No. 122-8, 9-10.) The court of appeals affirmed. (ECF No. 122-10, 131 ("Because each of Smith's twelve claims for post-conviction relief was barred by the doctrine of res judicata, the trial court did not err in dismissing his petition without a hearing.").) This sub-claim, too, is procedurally defaulted.21

d. conclusion

The Court, therefore, finds each of Mr. Smith's sub-claims to his claim of prosecutorial misconduct procedurally defaulted.22

2. Merits

Even if all of Mr. Smith's prosecutorial-misconduct claims were preserved for review, they lack merit. As the Supreme Court has observed, "Although the State is obliged to `prosecute with earnestness and vigor,' it `is as much [its] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Cone v. Bell, 556 U.S. 449, 469 (2009) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). To assert a successful claim for prosecutorial misconduct in a habeas proceeding, however, a prosecutor's conduct must be "so egregious as to render the petitioner's trial fundamentally unfair." Buell v. Mitchell, 274 F.3d 337, 364 (6th Cir. 2001). It "is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)); Durr v. Mitchell, 487 F.3d 423, 439 (6th Cir. 2007). Thus, the analysis must focus on "`the fairness of the trial, not the culpability of the prosecutor.'" Byrd, 209 F.3d at 529 (quoting Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).

The Sixth Circuit has stressed the narrow scope of a habeas court's review of this due process claim, stating, "We do not possess supervisory powers over state court trials." Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000). "[I]t is the responsibility of the [state courts] to police their prosecutors; we have no such authority." Cook v. Bordenkircher, 602 F.2d 117, 119 n.5 (6th Cir. 1979). It recently set forth the standards to apply to habeas claims of prosecutorial misconduct, explaining that courts must apply a "two-part test to determine whether the state court reasonably applied the federal standard in holding that prosecutorial misconduct did not render [the petitioner's] trial fundamentally unfair." Wogenstahl v. Mitchell, 668 F.3d 307, 238 (6th Cir. 2012) (quoting Irick v. Bell, 565 F.3d 315, 324 (6th Cir. 2009)). First, the court must determine whether the prosecution's conduct was improper. Second, it must determine whether that improper conduct was flagrant by considering four factors: (1) whether the evidence against the defendant was strong; (2) whether the conduct of the prosecution tended to mislead the jury or prejudice the defendant; (3) whether the conduct or remarks were isolated or extensive; and (4) whether the remarks were made deliberately or accidentally. Id.

Claims of prosecutorial misconduct "must be answered in light of the totality of the circumstances in the case." Lundy v. Campbell, 888 F.2d 467, 473 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). To constitute a denial of due process, the misconduct must be "so pronounced and persistent that it permeates the entire atmosphere of the trial." Id.

a. the Smith deposition

Mr. Smith asserts several complaints concerning the prosecution's conduct surrounding the Smith deposition. He claims that the State misrepresented the unavailability of Michael Smith for trial; interfered with the Smith deposition; interfered with Mr. Smith's access to Michael Smith; and improperly testified at the deposition. (ECF No. 44, 24-25.) Because the state courts did not adjudicate these claims on the merits, this Court reviews the claims de novo.

i. unavailability of Michael Smith

Mr. Smith argues that prosecutors misrepresented the basis for taking Michael Smith's deposition and then later lied to the trial court that he was unavailable to testify at trial in order to use the deposition testimony in place of his live testimony. As noted above, Mr. Smith supports this claim with the affidavit of Ditanvia Geiger, in which she averred: "During a conversation between Michael Smith and I, Michael told me that Jonathan E. Rosenbaum, an Assistant County Prosecutor from Lorain County, and Detective Al Leiby, of the Elyria Police Department, sent him to the State of Arizona prior to the trial of Raymond Smith." (ECF No. 110-2, 1.) He maintains that the failure to present Michael Smith in person at trial prejudiced him because his testimony was so damaging. (ECF No. 44, 25.)

Respondent argues that the Ohio Supreme Court's factual findings on this issue contradict Mr. Smith's claim and are binding on this court. (No. 71, 81-82.) As already noted in connection with Mr. Smith's Confrontation Clause argument, the Ohio Supreme Court addressed in detail the circumstances surrounding the Smith deposition. It concluded:

Smith, 87 Ohio St. 3d at 431-32, 721 N.E.2d at 104. See also Part VI.B.2.a. Mr. Smith counters that it is the trial court's recognition of Ms. Geiger's affidavit on post-conviction as "some evidence outside the record" that is entitled to AEDPA's presumption of correctness. (ECF No. 127, 94.)

The Court agrees with Respondent. Under AEDPA, state-court factual determinations are presumed to be correct and only can be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Even if the Court accepts that Ms. Geiger's affidavit is some evidence outside the record, that does not make the affidavit clear and convincing evidence that the Ohio Supreme Court was wrong in its assessment of the State's representations regarding Michael Smith's availability for trial. It is not. The Ohio Supreme Court carefully examined the issues surrounding the Smith deposition and was satisfied that the State had acted in good faith; the affidavit simply is not strong enough evidence to rebut that finding. This sub-claim fails.

ii. interference with deposition

Mr. Smith makes the conclusory assertion that the prosecutor improperly and "repeatedly interrupted cross-examination" during the Smith deposition, referencing three instances as examples. (ECF No. 44, 26.) He provides no analysis, however, and after reviewing the cited examples the Court finds nothing improper in the prosecutor's conduct.

iii. interference with Mr. Smith's access to his son

For this sub-claim, Mr. Smith argues that the prosecutor improperly prevented his counsel from speaking to Michael Smith. He points to the following exchange between Mr. Smith's counsel, Thomas Elwell, Jr., and Michael Smith that occurred at the end of the Smith deposition:

(ECF No. 127, 99-100; ECF No. 125-2, 148-49.) Mr. Smith claims that "[t]he Prosecutor's alleged concern for Michael's safety was spurious." (ECF No. 44, 26.)

Respondent notes that the prosecutor suggested that counsel request a hearing if they wanted Michael to answer questions about his family or personal life, but they did not. (ECF No. 71, 82.) The prosecutor stated, "I've explained to [Michael] that he does not have to answer any questions regarding his family or his personal life as a result of him being in fear, so I will object to those questions and tell him not to answer. If you need to have a hearing, I guess we'll have to consult with Judge Glavas." (ECF No. 125-2, 127.)

The Court does not find anything improper in the prosecutor's stance regarding discovery of personal information about Michael Smith. Mr. Smith has not provided any evidence to show that the prosecutor's concern for Michael's safety was unfounded, or that he could not have requested further discovery from the court if he had wished. This sub-claim, therefore, lacks merit.

iv. improper comments during the deposition

For this sub-claim, Mr. Smith arguesthat the prosecutor improperly stated during the Smith deposition that Michael Smith was "in fear" and "in danger." He also complains that the prosecutor vouched for Michael during his deposition by twice commenting that Michael's deposition testimony was consistent with his prior statement to police. He claims "[t]his misconduct injected inadmissible, prejudicial evidence against Petitioner and deprived him of a fair trial . . . ." (ECF No. 44, 27.)

Regarding the comments about Michael Smith's fear of testifying, the Court already has found the prosecutor's objections to questions about Michael's family and personal life on the ground that his life had been threatened to be permissible.

The Court similarly finds that the prosecutor did not improperly vouch for Michael Smith during the deposition by stating that his testimony was consistent with a previous statement to police. In Wogenstahl v. Mitchell, the Sixth Circuit explained that "[i]mproper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the [government] behind the witness." Wogenstahl, 668 F.3d at 328 (quoting Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008)). It continued, "Generally, improper vouching involves either blunt comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony." Id. (quoting United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)). Thus, "[i]t is patently improper for a prosecutor either to comment on the credibility of a witness or to express a personal belief that a particular witness is lying." Id. (quoting Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005)). Nevertheless, "[a] state's attorney is free to argue that the jury should arrive at a particular conclusion based upon the record evidence." Id. at 329 (quoting Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999), abrogated on other grounds as recognized by Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000)). The court held in Wogenstahl that the prosecutor's comments regarding the veracity of state witnesses and an FBI agent "verge[d] on improper vouching," but that they were harmless given that the evidence against the petitioner was strong, and the comments were isolated and unlikely to mislead the jury or prejudice the petitioner. Id. at 329.

Similarly, the Court finds here that the two statements of which Mr. Smith complains relating to Michael Smith's consistency with his statement to police is not stating "a personal belief in the witness's credibility," but is stating a verifiable fact. In both instances, counsel for Mr. Smith's co-defendant were able to contest the prosecutor's statements and question Michael accordingly to clarify his testimony. Moreover, as in Wogenstahl, the complained-of comments were isolated and unlikely to mislead the jury or prejudice Mr. Smith. (ECF No. 125-2, 31-32, 46.)

b. misrepresentations at trial

Mr. Smith also complains that the prosecutor violated his constitutional rights by misrepresenting certain facts to the jury. (ECF No. 44, 27-32.)

i. the existence of a drug enterprise

Mr. Smith objects to the following comment by the prosecutor: "So, as a business decision it [the murder] had to be done. They wanted to continue to be drug pushers." (Id. at 28.) The prosecutor said this during his closing argument. (ECF No. 70, 747.)

As the Sixth Circuit explained in Wogenstahl, "The prosecution necessarily has `wide latitude' during closing argument to respond to the defense's strategies, evidence and arguments." Wogenstahl, 668 F.3d at 329 (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). The propriety of the prosecution's closing argument depends on the circumstances of the case and "what the defense has said or done (or likely will say or do)." Id.

The prosecution's reference to Mr. Smith and his son's drug trafficking during his closing argument was supported by evidence that had been presented in court and demonstrated no special knowledge of the prosecution. Moreover, the remarks were not so flagrant that they rendered Mr. Smith's trial fundamentally unfair. The comment was isolated and unlikely to mislead the jury or prejudice Mr. Smith.

ii. that Mr. Smith killed his son Michael

Mr. Smith also claims that the prosecutor "suggested" to the jury that Mr. Smith killed his son Michael during his opening statement. (ECF No. 44, 28-29.) The prosecutor stated, "Now, as a result of the fact that this group of people had been known to kill all those that are testifying against them, the State moved this Court to take [Michael's] deposition to preserve his testimony."23 (ECF No. 70, 446.)

The Court does not agree that the prosecutor implied that Mr. Smith had murdered Michael. After the statement at issue, he continued,

(Id.) The prosecutor fairly and truthfully explained the circumstances surrounding the Smith deposition. This sub-claim is meritless.

iii. Mr. Smith's 1993 drug trafficking charge

Mr. Smith in this sub-claim argues that the prosecutor improperly introduced Mr. Smith's case file for the 1993 drug trafficking charges and stated in closing argument, "If you look at Mr. Smith's court file, that was dismissed because the witness was killed, you will see the indictment that he has prior convictions, he is not a good candidate for probation." (ECF No. 44, 29-30.) As explained above, this information was relevant and admissible. See supra Parts VI.A.2.c. and VI.B.2.c.ii. This claim lacks merit.

iv. Mr. Smith's prior criminal record

Mr. Smith also complains that the prosecutor impermissibly disclosed Mr. Smith's prior criminal record. (ECF No. 44, 30-31.) This claim similarly fails because this evidence was relevant and admissible, even to the defense. See supra Parts VI.A.2.c. and VI.B.2.c.iii.

v. suggesting defense counsel was misleading the jury

Finally, Mr. Smith argues that during his closing argument, the prosecutor improperly suggested that defense counsel was misleading the jury. (ECF No. 44, 32.) He complains about the following remarks:

(ECF No. 70, 789-90.) As noted above, "The prosecution necessarily has `wide latitude' during closing argument to respond to the defense's strategies, evidence and arguments." Wogenstahl, 668 F.3d at 329 (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). The propriety of the prosecution's closing argument depends on the circumstances of the case and "what the defense has said or done (or likely will say or do)." Id. The Court finds nothing improper in these remarks.

c. discriminatory use of peremptory challenges

Mr. Smith's sub-claim regarding the prosecutor's discriminatory use of peremptory challenges is the subject of his eighth ground for relief, which he has abandoned. See infra Part VI.E.

d. cumulative effect

Mr. Smith asserts that the errors addressed above, when viewed cumulatively, rendered his trial fundamentally unfair. (ECF No. 44, 33-34.) Indeed, "[e]rrors that might not be so prejudicial as to amount to a deprivation for due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair." Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983).

Even when considering these sub-claims together, however, this Court concludes that Mr. Smith's claims of prosecutorial misconduct do not entitle him to habeas relief. The Court finds no instances of improper conduct, and even if the conduct that verged on improper were viewed cumulatively, Mr. Smith has failed to demonstrate flagrancy, or that it was "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial." Wogenstahl, 668 F.3d at 335. As the Supreme Court has noted, "[a litigant] is entitled to a fair trial but not a perfect one, for there are no perfect trials." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (internal quotation marks and citations omitted).

D. Sixth Ground for Relief: Suppression of Exculpatory Evidence

For his sixth ground for relief, Mr. Smith claims that prosecutors violated his constitutional rights when they failed to disclose numerous pieces of exculpatory evidence prior to trial, as required under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he alleges that the State failed to disclose the following information:

2. Det. Leiby procured deals and other inducements for prosecution witnesses Carl Hartman and Corinne Fike; and

3 Det. Leiby directly influenced Judge McGough to ensure that co-defendant Danny Smith received the maximum possible sentence in a different case.

(ECF No. 44, 62-66.)24

1. Brady v. Maryland and its progeny

The Supreme Court held in Brady v. Maryland that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The Court has explained that this protection "will serve to justify trust in the prosecutor as `the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles v. Whitley, 514 U.S. 419, 440 (1995) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). As Justice Marshall wrote, "The message of Brady and its progeny is that a trial is not a mere `sporting event'; it is a quest for truth in which the prosecutor, by virtue of his office, must seek truth even as he seeks victory." Monroe v. Blackburn, 476 U.S. 1145, 1148 (1986) (Marshall, J., dissenting).

In order to establish a Brady violation, a petitioner must satisfy the following three requirements: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

The Supreme Court has held that Brady applies regardless of whether the defendant has expressly requested such evidence. Strickler, 527 U.S. at 280. In addition, courts have stressed that the inquiry must be objective, independent of the intent of the prosecutors. Brady, 373 U.S. at 87; Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). Finally, a showing of prejudice need not mean that the evidence would have led to an acquittal, but merely "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433-34.

2. Procedural Posture

Respondent contends that this entire claim is procedurally defaulted, because Mr. Smith raised it in his second post-conviction petition and it was denied on procedural grounds. (ECF No. 71, 86.) This Court cannot find, and Mr. Smith does not identify, any claim he raised in state court related to sub-claim 1, regarding the prosecutor withholding the Arizona phone number(s) that Michael Smith called when he was in the State's custody at or about the time of the deposition and the fact that Michael Smith was in Arizona at the time of the trial. That subclaim, therefore, is procedurally defaulted and unexhausted.25

Mr. Smith did, however, raise sub-claims 2 and 3 in his second post-conviction petition, and the claims were denied as untimely. See supra Part II.A.3.b. Mr. Smith first argues that this procedural bar should be excused because it does not promote a legitimate state interest, as required. He cites Henry v. Mississippi, 379 U.S. 443 (1965), in which the Supreme Court stated,

Id. at 447-48. Mr. Smith appears to contend that there is never a legitimate state interest in enforcing a procedural bar against a Brady claim because to do so would reward the state for engaging in deceptive practices. He relies for support of this proposition on Rickman v. Dutton, 864 F.Supp. 686, 706 (M.D. Tenn. 1994), in which a district court held that there could be no legitimate procedural default of a false-testimony claim. (ECF No. 127, 120-21.)

This argument, however, is not well-taken. First, Rickman does not apply here. Mr. Smith has not demonstrated that a government witness testified falsely at his trial. Moreover, the Sixth Circuit affirmed Rickman on other grounds, and Mr. Smith does not cite any cases that have followed Rickman. Indeed, the Supreme Court found Brady claims to be procedurally defaulted in the seminal case Strickler, 527 U.S. at 296 (petitioner could not show either materiality under Brady or prejudice that would excuse petitioner's procedural default), and the Sixth Circuit routinely has held that Brady claims were procedurally barred. See, e.g., Jalowiec v. Bradshaw, 657 F.3d 293, 313-14 (6th Cir. 2011); Henness v. Bagley, 644 F.3d 308, 324-25 (6th Cir. 2011). The Supreme Court noted in Henry, after affirming the principle quoted above, that its ruling "will not lead inevitably to a plethora of attacks on the application of state procedural rules," when in most cases "the state rule is a reasonable one and clearly announced to defendant and counsel . . . ." Henry, 379 U.S. at 448 n.3. The procedural default at issue here stemmed from Mr. Smith's untimely assertion of his Brady claims on appeal in state court. Rules governing the timeliness of appeals, of course, are fundamental to state appellate procedure, and federal courts long have recognized that the failure to comply with those rules is a reasonable and valid basis on which to bar habeas review. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Van Hook v. Bobby, 661 F.3d 264, 270-71 (6th Cir. 2011); Coleman v. Mitchell, 244 F.3d 533, 539-41 (6th Cir. 2001).

Mr. Smith next argues that the State's misconduct provides cause and prejudice for any procedural default. (ECF No. 127, 122-27.) As the Supreme Court has noted, the cause and prejudice necessary to excuse procedural default can "parallel two of the three components of the alleged Brady violation itself," suppression and favorability. Strickler, 527 U.S. at 282. Because the Court determines that Mr. Smith cannot satisfy these first two prongs of the Brady test, as will be explained more fully below, it follows that he cannot demonstrate cause and prejudice for procedural default purposes.

3. Suppression and Favorability Analysis

To meet Brady's suppression requirement, the petitioner must show that the evidence was in the prosecution's exclusive control. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). A defendant should not be required to "scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed." Banks v. Dretke, 540 U.S. 668, 695 (2004). Nevertheless, it is the defendant's duty to be vigilant in seeking exculpatory material. There is no Brady violation "where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available . . . from another source because in such cases there is really nothing for the government to disclose." Coe, 161 F.3d at 344 (internal quotation marks and citations omitted).

Evidence is considered to have exculpatory or impeachment value if it "would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense." Kyles, 514 U.S. at 441.

Applying the above Supreme Court precedent, the Court will now address each of Mr. Smith's individual Brady claims, analyzing the exculpatory and suppression prongs of Brady. If those requirements are met, the Court will address the materiality prong of Brady, cumulatively. See id. at 436 n.10 ("We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately . . . ."). Because the state courts never adjudicated these claims on the merits, this Court reviews the claims de novo. See, e.g., Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007).

a. Michael Smith's location in Arizona

Mr. Smith claims that the prosecutors knew Michael Smith had called Arizona telephone numbers while he was in protective custody around the time of his deposition, and they knew he was in Arizona at the time of Mr. Smith's trial. He supports these contentions with Ms. Geiger's affidavit, in which she averred: "During a conversation between Michael Smith and I, Michael told me that Jonathan E. Rosenbaum, an Assistant County Prosecutor from Lorain County, and Detective Al Leiby, of the Elyria Police Department, sent him to the State of Arizona prior to the trial of Raymond Smith."26 (ECF No. 110-2, 1.)

As to the Arizona telephone numbers that Michael Smith called while he was in protective custody around the time of his deposition, Mr. Smith's counsel knew that information at trial. At the hearing the trial court conducted regarding the admissibility of Michael Smith's deposition, Det. Beaman gave Mr. Smith's attorney a log of the telephone calls Michael made while in protective custody. (ECF No. 70, 333-34.) Attorney Bruner specifically asked Det. Beaman about an Arizona phone number. (Id. at 335.) This information was not suppressed.

As to Michael's presence in Arizona during the trial, Ms. Geiger's affidavit does not establish suppression or favorability. As explained above, the Ohio Supreme Court carefully examined the issues surrounding the Smith deposition and was satisfied that "the state's efforts to procure Michael's live testimony appear to have been reasonable, adequate, and made in good faith." Smith, 87 Ohio St. 3d at 431, 721 N.E.2d at 104. This Court does not find Ms. Geiger's affidavit clear and convincing evidence that the Ohio Supreme Court was wrong in that assessment. See supra Parts VI.B.2.a and VI.C.2.a.i.

b. prosecution deals for witnesses

Mr. Smith also claims that the prosecution wrongfully withheld information that Det. Leiby directly influenced the setting of a recognizance bond to keep Carl Hartman out of jail for a probation violation, and that he caused State witness Corinne (JoAnn) Fike's car to be impounded for approximately one year in order to obtain favorable testimony. (ECF No. 44, 63.) But he does not cite any evidence whatsoever to support these claims. Mr. Smith does not even explain Carl Hartman's role in his case; he was not a witness at his trial. This claim fails.

c. Danny Smith's sentence in unrelated criminal case

Finally, Mr. Smith complains that prosecutors withheld the fact that Det. Leiby directly influenced Judge McGough to ensure that co-defendant Danny Smith received the maximum possible sentence in a different case. Again, Mr. Smith does not provide any evidence to support this claim, nor does he explain the significance of this information. This claim also fails.

4. Conclusion

Because Mr. Smith did not satisfy Brady's suppression and favorability prongs, the Court need not examine the collective materiality of the information at issue. Mr. Smith's Brady claims are denied.

E. Eighth Ground for Relief: Discriminatory Jury Selection

Mr. Smith's eighth ground for relief is based on Batson v. Kentucky, 476 U.S. 79 (1986), which forbids prosecutors from using race as the basis for excusing potential jurors from serving on a jury. Mr. Smith concedes in his Traverse that this claim is unexhausted and abandons it. (ECF No. 127, 135-36.)

F. Fifteenth Ground for Relief: Ineffective Assistance of Appellate Counsel

For his fifteenth ground for relief, Mr. Smith complains of numerous instances of ineffective assistance of appellate counsel. Specifically, he argues that his appellate counsel failed to raise the following claims on direct appeal:

(ECF No. 44, 97-109.)

1. Procedural Posture

Mr. Smith raised these claims in his Murnahan application, which the Ohio Supreme Court adjudicated on the merits and denied. State v. Smith, 95 Ohio St.3d 127, 766 N.E.2d 588 (Ohio 2002). This claim, therefore, is preserved for federal habeas review.

2. Merits

In reviewing this claim, the Ohio Supreme Court opined:

Smith, 95 Ohio St. 3d at 127, 766 N.E.2d at 589-90.

A defendant is entitled to effective assistance of counsel in his first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The two-part test enunciated in Strickland is applicable to claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2002). Thus, Mr. Smith must demonstrate that appellate counsel's performance was deficient, and that the deficient performance so prejudiced the appeal that the appellate proceedings were unfair and the result unreliable. Strickland, 466 U.S. at 687. In reviewing the Ohio Supreme Court's conclusions under § 2254(d)(1), this Court must determine "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S. Ct. at 788. An appellant has no constitutional right, however, to have every non-frivolous issue raised on appeal, Jones v. Barnes, 463 U.S. 745, 750-54 (1983), and tactical choices regarding issues to raise on appeal are properly left to the sound professional judgment of counsel, United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "[O]nly when issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome." Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (internal quotation marks and citations omitted).

Mr. Smith's claims of ineffective assistance of appellate counsel reassert his claims of ineffective assistance of trial counsel, prosecutorial misconduct and trial court error. As this Court finds no merit in those underlying claims, it also finds no merit in these claims. The Ohio Supreme Court's decision denying Mr. Smith's Murnahan application was reasonable and correct.

G. Nineteenth Ground for Relief: Unconstitutionality of Ohio's Post-Conviction Procedures

In his nineteenth ground for relief, Mr. Smith broadly challenges the constitutionality of Ohio's post-conviction scheme, found in Ohio Revised Code § 2953.21. (ECF No. 44, 120-29, 136-46.) Mr. Smith raised this claim to the Ohio Supreme Court in his appeal of the denial of his first post-conviction petition. (ECF No. 122-11.) It is therefore preserved for habeas review.

The claim, however, lacks merit. It is well-settled that post-conviction state collateral review is not a constitutional right, even in capital cases. See, e.g., Murray v. Giarratano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); Estelle v. Dorrough, 420 U.S. 534, 536 (1975). Accordingly, the Sixth Circuit repeatedly has held that allegations of constitutional violations, such as the denial of rights to effective assistance of counsel, due process and equal protection, in collateral proceedings are not within the scope of federal habeas corpus review. See, e.g., Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) ("error committed during state post-conviction proceedings can not [sic] provide a basis for federal habeas relief"); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) ("habeas corpus cannot be used to mount challenges to a state's scheme of post-conviction relief"); Kirby v. Dutton, 794 F.2d 245, 248 (6th Cir. 1986). The Sixth Circuit has explained that "the writ is not the proper means by which prisoners should challenge errors or deficiencies in state post-conviction proceedings . . . because the claims address collateral matters and not the underlying state conviction giving rise to the prisoner's incarceration." Kirby, 794 F.2d at 247.

VII. Certificate of Appealability Analysis

This Court must now determine whether to grant a Certificate of Appealability ("COA") for any of Mr. Smith's grounds for relief. The Sixth Circuit has determined that neither a blanket grant nor a blanket denial of a COA is an appropriate means by which to conclude a capital habeas case as it "undermine[s] the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see also Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for certificate of appealability for district court's analysis of claims). Thus, in concluding this Opinion, this Court now must consider whether to grant a COA as to any of the claims Mr. Smith presented in his Petition pursuant to 28 U.S.C. § 2253.

That statute states in relevant part:

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court . . .

(2) A certificate of appealability may issue under paragraph (12) only if the applicant has make a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole difference between the pre- and post-AEDPA statutes is that the petitioner must now demonstrate he was denied a constitutional right, rather than the federal right that was required prior to AEDPA's enactment.

The United States Supreme Court interpreted the significance of the revision between the pre- and post-AEDPA versions of that statute in Slack v. McDaniel, 529 U.S. 473 (2000). In that case, the Court held that § 2253 was a codification of the standard it set forth in Barefoot v. Estelle, 463 U.S. 880 (1983), but for the substitution of the word "constitutional" for "federal" in the statute. Id. at 483. Thus, the Court determined,

Id. at 483-04 (quoting Barefoot, 463 U.S. at 893 n.4).

The Court went on the distinguish the analysis a habeas court must perform depending upon its finding concerning the defaulted status of the claim. If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484. A more complicated analysis is required, however, when assessing whether to grant a COA for a claim the district court has determined is procedurally defaulted. In those instances, the Court opined, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

After taking the above standards into consideration, the Court finds as follows:

The Court will not issue a COA for grounds for relief: 1 (ineffective assistance of trial counsel), sub-claims 1(m), (o), and (s); 5 (ineffective assistance of trial counsel), sub-claims 2(a), 3(a) through (d), (f), and (g), 4(a) and (b), and 5(b) and (c); 4 (trial court error), sub-claims 4(a), and 5(a) though (e); 8 (discriminatory jury selection); 15 (ineffective assistance of appellate counsel), sub-claims 1, 2, and 4; and 19 (unconstitutionality of Ohio's post-conviction procedures). No jurist of reason would debate the Court's conclusions on these claims.

No COA will issue for grounds for relief: 1 (ineffective assistance of trial counsel), except sub-claims 1(m), (o), and (s); 3 (prosecutorial misconduct), all sub-claims except 1; 4 (trial court errors) all sub-claims except 4(a), and 5(a) though (e); 5 (ineffective assistance of trial counsel), except sub-claims 2(a), 3(a) through (d), (f), and (g), 4(a) and (b), and 5(b) and (c); 14 (trial court error regarding Mr. Smith's statements to police), because they are unequivocally procedurally defaulted.

This Court will issue a COA for the following grounds for relief: 2 (trial court error regarding admission of Michael Smith deposition); 3, sub-claim 1 (prosecutorial misconduct regarding availability of Michael Smith to testify at trial); 6, sub-claim 1 (Brady claim regarding information about Michael Smith's whereabouts); 15, sub-claim 3 (ineffective assistance regarding prosecutorial misconduct claim concerning Michael Smith deposition). A reasonable jurist could debate this Court's conclusions regarding the State's involvement in Michael Smith's unavailability for trial and the State's efforts to locate Michael Smith to testify at Mr. Smith's trial; the trial court's ruling on those issues; and appellate counsel's failure to raise those issues on appeal.

VIII. Conclusion

For the foregoing reasons, the Petition is denied. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could be taken in good faith as to the subclaims specified above asserted under grounds for relief 2, 3, 6, and 15, and the Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate

Procedure 22(b) as to those claims only. As to all remaining claims, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.