Opinion
Case No. 1:02-cv-307.
September 10, 2007
OPINION AND ORDER
Final judgment dismissing petitioner's death penalty habeas corpus action was entered on December 1, 2006. Petitioner filed a timely notice of appeal on December 27, 2006. This matter is before the Court upon petitioner's motion for a certificate of appealability (Doc. #'s 78, 79, and 82.)
On August 19, 2003, this Court issued an Opinion and Order dismissing six of petitioner's twenty-five claims as procedurally defaulted or plainly lacking in merit: 3, 16, 17 (except sub-parts A, B, C, and I), 20, 21 (as to allegations that prosecutors enjoy unfettered discretion and that prosecutors are not required to prove the absence of mitigating factors), and 24. On September 9, 2004, the Court issued an Opinion and Order concluding that nine additional claims lacked merit or were barred by procedural default: 9, 10, 11, 12, 13 (sub-parts G, H, I, and L), 19, 20, 23, and 25 (except sub-part D). Finally, on December 1, 2006, this Court issued an Opinion and Order rejecting the remainder of petitioner's claims on the merits. This matter is now before the Court upon petitioner's motion to certify issues for appeal.
I. Standard of Review
An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir. 1997). He need not demonstrate that he will prevail on the merits; he need only demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4. "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir. 2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when the petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
Petitioner seeks a certificate of appealability on most of his constitutional claims.
II. Claims dismissed on the Merits
First Ground for Relief: Petitioner Goff was denied the right to a fair trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the trial judge refused to give a critical instruction that jurors consider a life sentence even if all twelve do not initially reject a recommendation of death.
In his first ground for relief, petitioner argued that he was denied a fair trial because the trial court failed to instruct the jury that it could consider a life sentence even if it had not unanimously rejected a sentence of death, and that a single juror could block the imposition of the death penalty. Petitioner also argued that the trial court erred in refusing to instruct the jury that it need not unanimously agree on the existence of a mitigating factor before weighing that factor.
On direct appeal, the Ohio Supreme Court concluded that the trial court's instruction was not contrary to Ohio law. The court noted that the jury was instructed that a finding that the aggravating circumstances outweighed the mitigating factors had to be unanimous, and that if the jury did not make the unanimous finding, the jury had to return one of the life verdicts. The court explained that although it would have been preferable to give the instruction requested by petitioner, the substance of what the jury had to determine under Ohio law was included in the charge given by the trial court, and petitioner was not prejudiced by the failure to give the requested instruction.
This Court held that the Ohio Supreme Court's decision rejecting petitioner's claim was not contrary to clearly established federal law, i.e. Caldwell, because the instructions given to the jury were not incorrect under Ohio law. The Court concluded that the instructions contained no language that would have suggested to the jurors that they had to unanimously reject the death penalty before considering the life sentence options, and there was no language from which the jurors could reasonably have concluded that they were not free to consider the life options absent a unanimous rejection of the death penalty.
In arguing for a certificate of appealability on this issue, petitioner explains that the Sixth Circuit in Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003), declared a similar jury instruction unconstitutional. Petitioner argues that reasonable jurists could debate whether this claim is viable "[s]imply from the fact that the Sixth Circuit has found instructions similar to this unconstitutional. . . ." (Doc. # 78 at 4).
The Court is satisfied that this ground for relief warrants further consideration on appeal. Although this Court found the instructions at issue in Davis to be distinguishable from the instructions given by the trial court in this case and recognized in its Opinion and Order that the validity of Davis as precedent has been questioned to the extent that it is in conflict with the earlier Sixth Circuit decisions in Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), Roe v. Baker, 316 F.3d 557 (2002), and Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), in which habeas relief was denied in cases involving similar jury instructions, the opinion in Davis is an indication that reasonable jurists could differ on this point. Accordingly, the Court finds that petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find the Court's resolution of this issue debatable or wrong, sufficient to warrant certification under 28 U.S.C. § 2253(c). Petitioner's motion to certify his first ground for relief is GRANTED. Accordingly, the Court certifies the following issue for appeal:
1. Was Petitioner Goff denied a fair trial when the trial judge refused to give an instruction that jurors could consider a life sentence even if all twelve did not initially reject a recommendation of death?
Second Ground for Relief: Petitioner Goff's death sentence is unconstitutionally unreliable because the trial court refused to give an instruction on the meaning of mitigating factors, thus leaving the jurors with no standard to determine the weighing process necessary in making its recommendation, resulting in a violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
In his second ground for relief, petitioner argued that he was denied a fair trial because the trial court refused to give the instruction he requested defining mitigating circumstances. Petitioner argued that the instruction given by the court left the jury without any guidance, and vested the jury with almost total discretion.
This Court held that petitioner's requested definition of mitigating factors was not constitutionally required under Buchanan v. Angelone, 522 U.S. 269 (1988), and that the state courts did not misapply the law of the United States Supreme Court in rejecting petitioner's argument. The Court explained that the instructions given in this case, which instructed the jury to consider "all the evidence," were consistent with Ohio law, and allowed the jury to consider the mitigating evidence presented by petitioner. The Court determined that so long as the jury is not prevented from considering any relevant mitigating evidence, states are not required to affirmatively structure the manner in which juries consider mitigating evidence, and complete jury discretion is constitutionally permissible.
Petitioner requests a certificate of appealability on this claim, arguing that the Supreme Court cases of Penry v. Lynaugh, 492 U.S. 302 (1989), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Boyde v. California, 494 U.S. 370 (1990), stand for the proposition that states must have a definitional structure upon which they can give effect to the mitigation testimony presented.
The Court is satisfied that reasonable jurists could find its decision wrong or debatable. Given the importance of the constitutional rights involved, the significance of the three Supreme Court cases cited by petitioner, and the fact that jury instructions in a capital case require careful scrutiny to ensure the heightened degree of reliability required of capital sentencing decisions, the Court is satisfied that petitioner's second ground for relief is deserving of further litigation on appeal. Accordingly, the Court certifies the following issue for appeal:
2. Did the trial court err when it failed to instruct the jury on the meaning of mitigating factors?
Third Ground for Relief: Petitioner Goff's death sentence is constitutionally unreliable when the trial court refuses to give an instruction at the penalty phase that "a life sentence is a life sentence;" and the fact the jurors were led to believe Petitioner Goff could be released on parole tainted the jurors' decision, and violated Petitioner Goff's Eighth and Fourteenth Amendments to the U.S. Constitution.
In his third ground for relief, petitioner argued that the trial court erred in refusing to instruct the jury that petitioner would not be eligible for parole, in light of the fact that petitioner's propensity for "future dangerousness" was introduced through testimony at the mitigation hearing. Respondent argued that petitioner's third ground for relief was procedurally defaulted.
Rather than undertaking a procedural default analysis, this Court dismissed petitioner's third ground for relief on the basis that the claim plainly lacked merit. (Doc.# 48). The Court concluded that a capital defendant is not entitled to an instruction about his parole ineligibility if a sentence of life imprisonment without the possibility of parole is not a sentencing option. At the time that petitioner was convicted and sentenced, there were only three sentencing options for capital juries to consider: death, life imprisonment with parole eligibility after serving twenty years, and life imprisonment with parole eligibility after serving thirty years. The Court found that petitioner's argument that the trial court was constitutionally required to instruct the jury that petitioner would not be eligible for parole, or that "a life sentence means a life sentence," lacked merit because that instruction would have been false and misleading.
In arguing for a certificate of appealablity on this issue, petitioner claims that the requested instruction was constitutionally required under Simmons v. South Carolina, 512 U.S. 154 (1994), because, as a practical matter, the trial court could have imposed petitioner's other sentences to run consecutively and thereby created a life sentence. Petitioner also argues that the requested instructed was required in his case because the jury inquired of the trial court during its deliberations as to whether petitioner's sentences would be consecutive or concurrent, suggesting that they were considering a sentence less than death.
Although the weight of authority seems to be stacked against petitioner, the Court finds this issue is deserving of further proceedings. Pursuant to Simmons, where the state argues "future dangerousness" in seeking the death penalty, due process requires that the defendant be permitted to offer relevant evidence about parole eligibility. Critical to the applicability of Simmons are, (1) the availability of only two sentencing alternatives for the jury's consideration — death and life imprisonment without possibility of parole, and (2) introduction of the defendant's future dangerousness. Although the possibility of a sentence of life imprisonment without the possibility of parole was not an option in petitioner's case, the trial court ultimately could have imposed petitioner's other sentences to run consecutively, thereby ensuring as a practical matter that petitioner would never be released from prison. As such, the Court finds that reasonable jurists could find its decision dismissing petitioner's third ground for relief to be debatable or wrong, sufficient to warrant further proceedings on appeal. The Court certifies the following issue for appeal:
3. Did the trial court err in refusing to instruct the jury that "a life sentence is a life sentence," thereby allowing the jury to believe that petitioner could be released on parole, when the state argued the future dangerousness of petitioner during the penalty phase of his trial?
Fourth Ground for Relief: Petitioner Goff's right to a fair trial was violated when the prosecutor failed to disclose a plea agreement and favorable treatment given to a key prosecution witness, such misconduct by the prosecutor thereby tainting the trial proceedings contra the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
In his fourth ground for relief, petitioner explained that a prosecution witness, Keith Lamar Jones, was incarcerated at the same correctional facility as petitioner, and testified that petitioner confessed to the burglary of Myrtle Rutledge's residence and also to her murder. Petitioner asserted that at the time of his testimony, Jones had a pending federal charge against him involving the improper use of a false social security number, and the prosecutor was aware of the pending federal charge when Jones was called as a witness in petitioner's case. Petitioner argued that the prosecutor failed to inform his defense counsel that Jones had entered into a federal plea agreement resolving the pending charge, and that the agreement included a provision allowing for a downward departure from the federal sentencing guidelines in the event that Jones cooperated with a governmental agency, such as the Clinton County Prosecutor's Office.
This Court concluded that petitioner was not denied a fair trial by reason of the failure of the state prosecutors to discover and disclose Jones's plea agreement prior to his testimony at petitioner's trial. In so holding, the Court found that the Ohio courts correctly applied federal law in addressing this claim, and their decisions neither contravened nor unreasonably applied clearly established federal law as determined by the Supreme Court of the United States. The Court further concluded that the state court decisions were based on a reasonable determination of the facts in light of the evidence presented in the state court proceedings. The state courts found no evidence that the state prosecutors ever promised Jones any consideration in exchange for his testimony, and there was no evidence of any prior promises or agreements. This Court agreed, and noted that the evidence was uncontroverted that the county prosecutors in petitioner's case were unaware of the federal charges pending against Jones until the Clinton County sheriff's deputies attempted to obtain custody of Jones at the Franklin County jail in order for him to testify and learned that they were unable to secure his release without a federal court order. Moreover, Jones's own attorney was unaware that Jones was scheduled to be a witness in petitioner's trial.
Petitioner seeks a certificate of appealability on this ground for relief. In light of the significance of Jones's testimony to the state's case against petitioner, the heavily fact-intensive nature of this claim, and the importance of the Constitutional rights involved, the Court is satisfied that petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find the Court's resolution of this issue debatable or wrong, sufficient to warrant certification under 28 U.S.C. § 2253(c). Petitioner's motion to certify his fourth ground for relief is GRANTED. Accordingly, the Court certifies the following issue for appeal:
4. Was Petitioner Goff's right to a fair trial violated when the county prosecutors failed to discover and disclose a federal plea agreement and favorable treatment given to a key prosecution witness?
Fifth Ground for Relief: When Petitioner Goff requests that the trial court instruct the jury they are to consider specific mitigating factors introduced at the mitigation hearing, the failure of the court to do so results in an unreliable death sentence contra the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued in his fifth ground for relief that the jury should have been instructed that they were to consider specific mitigating factors introduced at the mitigation hearing. In particular, petitioner claims that the jury should have been specifically instructed to consider petitioner's personality disorder, residual doubt about petitioner's guilt, petitioner's potential for rehabilitation, petitioner's positive adjustment to life in prison, petitioner's devotion to his family, petitioner's lack of parental nurturing, and his youth.
In denying petitioner's claim, this Court held that the state courts properly applied federal law as announced in Buchanan and Boyde. The state courts held that the instructions given by the trial court comported with Ohio law, and petitioner was not denied due process by reason of the instructions, as the trial court was not required to tailor the instructions to the evidence presented by petitioner. This Court concluded that the trial court's instructions permitted the jury to consider all the evidence presented by petitioner in mitigation.
Petitioner argues that the trial court's general instruction that the jury consider all the mitigation evidence is contra the United States Supreme Court's decisions in Skipper v. South Carolina, 476 U.S. 1 (1986), and Penry v. Lynhaugh, 492 U.S. 302 (1989), because it did not stress to the jury that it was to consider and give effect to the specific mitigation evidence presented in his case. The Court finds that petitioner has made a substantial showing that he was denied a constitutional right and that reasonable jurists could find this issue debatable or wrong, sufficient to warrant certification under 28 U.S.C. § 2253(c). Although challenged jury instructions must be so egregious as to infect the entire trial with unfairness before habeas corpus relief will issue, jury instructions in a capital case require careful scrutiny to ensure the heightened degree of reliability required of capital sentencing proceedings. That being so, petitioner's questions about the penalty phase jury instructions are reasonably debatable among jurors of reason. Petitioner's motion to certify his fifth ground for relief is GRANTED:
5. Did the trial court commit constitutional error when it failed to instruct the jury that it was to consider the specific mitigating factors introduced at the mitigation hearing?
Sixth Ground for Relief: When Petitioner Goff specifically requests that the trial court instruct the jury not to consider "the nature and circumstances of the offense" in their weighing process, and in its listing of the mitigating factors, the failure of the court to so instruct left the jury with open discretion to consider this non-statutory aggravating factor contra the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued that he was denied a fair trial when the trial court instructed the jury over his objection that it could consider the nature and circumstances of the offense as a mitigating circumstance. This Court rejected petitioner's claim, finding that the decisions of the state courts were neither contrary to, nor an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The Ohio Supreme Court concluded that the trial court was required, pursuant to § 2929.04(B) of the Ohio Revised Code, to instruct the jury to consider the nature and circumstances of the offense as a mitigating factor, and this Court concluded that a state statute which requires the jury to consider the circumstances of the crime for which the defendant was convicted is not unconstitutional. Furthermore, even if the instruction had been incorrect under Ohio law, that error would not provide a basis for federal habeas relief because the brief mentioning of an inapplicable mitigating factor does not so infect the entire trial that the resulting conviction violates due process.
Petitioner seeks a certificate of appealability with respect to this claim, arguing that the jury should only be permitted to consider the nature and circumstances of the offense when the nature and circumstances are mitigating. Petitioner contends that this instruction was highly significant in his case, and argues that he was prejudiced by the fact that the jury was instructed to consider in mitigation all of the previous details of the murder.
The Court is satisfied that this issue warrants further consideration on appeal, as jurists of reason could find the Court's decision debatable or wrong. Petitioner has made a substantial showing that the jury's consideration of the details of the murder, details that were certainly not mitigating, deprived him of his constitutional rights. The Court certifies the following issue for appeal:
6. Was Petitioner Goff denied a fair trial when the trial court instructed the jury, over petitioner's objection, that it could consider the nature and circumstances of the offense as a mitigating factor?
Seventh Ground for Relief: When the trial court refuses to give a specific instruction that the jury is not to consider the aggravated murder itself but only the aggravating circumstances in determining punishment, the failure to give such an instruction grants the jury open discretion, resulting in an unreliable and arbitrary verdict contra the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued that the trial court erred because it failed to instruct the jurors that they were to weigh only the aggravating circumstance and not the aggravated murder itself in determining punishment. In rejecting this argument on direct appeal, the Ohio courts determined that the charge given by the trial court was not erroneous, and concluded that there was no language in the instructions which would have lead the jurors to conclude that they were free to consider the circumstances of the aggravated murder in the weighing process. In denying petitioner's claim, this Court held that where the trial court instructs the jury in accordance with state law and sufficiently addresses the matters of law at issue, no error results, and the petitioner is not entitled to habeas relief.
Petitioner seeks a certificate of appealability on this claim, arguing that the jurors were permitted to weigh the facts surrounding the murder of Myrtle Rutledge against the mitigating factors, as opposed to only being permitted to weigh the specific aggravating circumstance of the crime against the mitigation evidence.
The Court finds that petitioner has made a substantial showing that he was denied a constitutional right, sufficient to warrant further scrutiny on appeal. Instructions concerning the weighing process to be employed by a capital sentencing jury are of the utmost importance and implicate the most fundamental of constitutional rights. As such, the Court finds that reasonable jurists could find this Court's decision debatable or wrong, and accordingly, the Court certifies petitioner's seventh ground for relief for appeal:
7. Did the trial court err in refusing to give a specific instruction that the jury not consider the aggravated murder itself but only the aggravating circumstances in determining punishment?
Eighth Ground for Relief: When Petitioner Goff's drug impairment is introduced as an integral part of the mitigation proceedings, the failure on the part of the trial court to instruct the jury to consider this as a mitigating factor, upon the defense request, constitutes violations of Petitioner Goff's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued in his eighth ground for relief that it was constitutional error for the trial court to fail to instruct the jury that it could consider petitioner's drug impairment a mitigating factor. In rejecting this claim, the Court concluded that the decisions of the state courts were not contrary to and did not involve an unreasonable application of clearly established federal law, as the instructions given in this case were proper under Ohio law. The Ohio Supreme Court, applying Buchanan, Eddings, and Boyde, held that the trial court's instructions did not foreclose the jury's consideration of any mitigating evidence, and that there was no reasonable likelihood that the jurors understood the instructions to preclude consideration of relevant mitigating evidence offered by petitioner. Petitioner now seeks a certificate of appealability with respect to this claim.
In a previous section of this Opinion and Order, the Court certified petitioner's fifth ground for relief for appeal. In that ground for relief, petitioner argued that the trial court erred when it failed to instruct the jury that it should consider certain specific mitigating factors presented by petitioner. The Court finds that petitioner's eighth ground for relief is an extension of the arguments presented in his fifth ground for relief. Because the Court has certified petitioner's fifth ground for relief for appeal, the Court will also certify petitioner's eighth ground for relief for appeal. The importance of proper jury instructions at the mitigation phase of a capital trial cannot be understated, and the determination of whether such instructions violate a constitutional right is necessarily a fact-intensive determination. The Court finds that reasonable jurists could find its decision denying petitioner's eighth ground for relief to be debatable or wrong, sufficient to warrant further scrutiny on appeal. The Court certifies the following issue for appeal:
8. Was Petitioner Goff denied a fair sentencing proceeding when the trial court refused to give a special instruction to the jury that it must consider petitioner's drug impairment as a mitigating factor when petitioner's drug impairment was introduced as an integral part of the mitigation proceedings?
Thirteenth Ground for Relief: Petitioner Goff was denied effective assistance of appellate counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution.
Petitioner argued in his thirteenth ground for relief that his appellate attorneys provided constitutionally ineffective assistance of counsel. The habeas corpus petition set forth twelve sub-parts to this claim. On September 9, 2004, this Court issued an Opinion and Order finding that sub-parts G, H, I, and L were barred by procedural default because they had not been presented to the state courts in petitioner's Rule 26(B) application for reopening of his direct appeal. Subsequently, on December 1, 2006, the Court rejected petitioner's remaining claims of ineffective assistance of appellate counsel on the merits.
Petitioner does not seek to appeal the allegations of ineffective assistance of appellate counsel that this Court dismissed as procedurally defaulted, and requests a certificate of appealability only as to those claims that the Court considered and rejected on the merits: sub-parts A, B, C, D, E, F, J, and K. In those sub-parts, petitioner alleged that appellate counsel should have raised the following claims of ineffective assistance of trial counsel on appeal:
(A) Ineffective trial counsel in informing the entire jury panel, individually, that Petitioner Goff was absolutely not going to testify in the upcoming trial proceedings, thereby denying Petitioner Goff any right to testify in his own case.
(B) Trial counsel failed to request the trial court for an informant-accomplice jury instruction relevant to the prosecution witnesses who testified in the first phase of his jury trial. (ineffective trial counsel).
(C) Trial counsel failed to recognize that the alternative juror who was substituted at mid-stream of the mitigation hearing, was an outside individual tainting the entire process of the jury deliberations and its decisions.
(D) The failure on the part of trial counsel to recognize that a principal offender definition was necessary as an instruction under the facts of Petitioner Goff's case.
(E) The failure on the part of trial counsel to properly prepare the psychologist who testified in Petitioner Goff's mitigation hearing.
(F) The failure of trial counsel to recognize that James Goff was constitutionally entitled to allocution before sentencing.
(J) The failure on the part of trial counsel to exclude references to Mr. Goff's request for an attorney at the first phase.
(K) The failure by trial counsel to raise an "actual conflict" issue known at the beginning of trial, but not communicated until the mitigation phase.
The Court is persuaded that a certificate of appealability should issue with respect to sub-parts A, B, C, D, E, F, J, and K of petitioner's thirteenth ground for relief. Criminal defendants are entitled to the effective assistance of counsel on the first appeal as of right, Evitts v. Lucey, 469 U.S. 387 (1985), and, although the narrowing of issues generally is regarded as the hallmark of effective appellate advocacy, Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U.S. 745, 754 (1983), at least one court within this district has remarked that the "winnowing" or "narrowing" of issues should be undertaken cautiously when the defendant's life is at stake. Jamison v. Collins, 100 F.Supp. 2d 647, 740-41 (S.D. Ohio May 10, 2000) (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) ( affirmed Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002)).
In light of the seriousness with which the Sixth Circuit regards claims of appellate counsel ineffectiveness, the fact-intensive nature of such claims, and the prevailing view that appellate attorneys in death cases should err on the side of inclusiveness when raising and preserving issues on appeal, the Court finds petitioner's requests to be well founded. Petitioner meets the standard for certification set forth in 28 U.S.C. § 2253(c) and the Court is satisfied that reasonable jurists could find debatable petitioner's allegations of appellate counsel ineffectiveness. Accordingly, the Court certifies sub-parts A, B, C, D, E, F, J, and K of petitioner's thirteenth ground for relief for appeal:
9. Did petitioner's appellate attorneys provide constitutionally ineffective assistance of counsel by failing to raise the following issues on appeal?
(A) Ineffective assistance of trial counsel for informing the entire jury panel that Petitioner was absolutely not going to testify in the upcoming trial proceedings, thereby denying Petitioner any right to testify in his own case.
(B) Ineffective assistance of trial counsel for failing to request the trial court for an informant-accomplice jury instruction relevant to the prosecution witnesses who testified in the first phase of his jury trial.
(C) Trial counsel's failure to recognize that the alternative juror who was substituted at midstream of the mitigation hearing, was an outside individual tainting the entire process of the jury deliberations and its decisions.
(D) Trial counsel's failure to recognize that a principal offender definition was necessary as an instruction under the facts of Petitioner's case.
(E) The failure on the part of trial counsel to properly prepare the psychologist who testified in Petitioner Goff's mitigation hearing.
(F) The failure of trial counsel to recognize that James Goff was constitutionally entitled to allocution before sentencing.
(G) Trial counsel's failure to exclude references to petitioner's request for an attorney at the first phase of petitioner's trial.
(H) The failure by trial counsel to raise an "actual conflict" issue known at the beginning of trial, but not communicated until the mitigation phase.
Fourteenth Ground for Relief: When Petitioner Goff timely requested special jury instructions, which were constitutionally pertinent to his trial, the refusal by the trial court to give them constitutes a violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Petitioner requested that the trial court instruct the jury to consider mercy in their deliberations. The state courts held that the trial court did not err in rejecting petitioner's proposed instruction, because a capital defendant is not entitled to an instruction that mercy may be deemed a mitigating factor. This Court rejected petitioner's claim and concluded that where the trial court instructs the jury in accordance with state law and sufficiently addresses the matters of law at issue, no error results, and the petitioner is not entitled to habeas relief. The Court also noted that the use of mercy instructions may be constitutionally impermissible in light of the probability that they could result in arbitrary and unpredictable results.
In his motion for a certificate of appealability, petitioner asserts that he listed five separate special jury instructions that the trial court erred in failing to give to the jury, yet this Court only addressed the special instruction concerning mercy. According to petitioner, the Court did not address his arguments that the trial court should have instructed the jury on residual doubt, failed to give the proper instruction on reasonable doubt, failed to instruct the jury to consider petitioner's positive adjustment to incarceration and his diminished tendencies toward future dangerousness as mitigating factors, and failed to instruct the jury that it did not have to unanimously agree on the existence of a particular mitigating factor. The Court notes that although it did not address these remaining arguments as part of petitioner's fourteenth ground for relief, the Court considered and rejected each of those arguments as part of its resolution of petitioner's other grounds for relief.
The Court finds that petitioner has not met the standard for issuing a certificate of appealability on his fourteenth ground for relief. As the Court recognized, an instruction that the jury consider mercy in their weighing process is not constitutionally required, and the giving of such an instruction may be constitutionally impermissible. See Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir. 1999). As such, the Court cannot find that reasonable jurists would find the Court's decision denying relief on petitioner's fourteenth ground for relief to be debatable or wrong, and the Court cannot certify this issue for appeal.
Fifteenth Ground for Relief: When the trial court refuses to consider substance abuse as an important mitigating factor in its opinion, but instead equates drug impairment with culpability, the result is an arbitrary sentence in violation of Petitioner Goff's Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
In his fifteenth ground for relief, petitioner argued that the trial court considered petitioner's substance abuse problems against him, and refused to consider substance abuse as a mitigating factor. The Ohio courts determined that the trial court's sentencing opinion did not constitute error under Ohio law, because the trial court's statement that it was assigning no weight to the factor of defendant's alcohol and drug impairment indicated that the trial court did consider this mitigating evidence in the weighing process. In addition, the Ohio Supreme Court held that any error in the trial court's weighing analysis was corrected by independent review on appeal.
In rejecting the merits of petitioner's claim, this Court concluded that the Ohio courts' interpretation of the trial court's opinion was not arbitrary and capricious or unsupported by the record, and found that the reweighing process of the Ohio appellate courts was not based on a mistaken interpretation of the trial court's sentencing opinion. The Court found that no constitutional claim is stated where a state's highest court independently reweighs the aggravating circumstances and the mitigating factors and cures any error through independent re-evaluation of the appropriateness of the death sentence.
Petitioner seeks a certificate of appealability with respect to his fifteenth ground for relief. Petitioner relies on Parker v. Dugger, 498 U.S. 308 (1991), in which the Supreme Court held that the Florida Supreme Court acted arbitrarily and capriciously by failing to adequately treat the defendant's nonstatutory mitigating evidence. Although the Court concluded that Parker was distinguishable from petitioner's case, the Court finds that reasonable jurists could find its decision debatable or wrong, and petitioner has made a substantial showing that he was denied a constitutional right. Petitioner's fifteenth ground for relief is a fact-intensive claim involving substantial constitutional rights and the Court is of the opinion that further litigation on appeal is warranted. The Court certifies the following issue for appeal:
10. Was Petitioner Goff denied a fair sentencing determination when the trial court refused to consider substance abuse as an important mitigating factor in its opinion?
Seventeenth Ground for Relief: Petitioner Goff was denied the effective assistance of counsel during the trial phase and the mitigation phase of his capital case as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. constitution.
Petitioner argued in his seventeenth ground for relief that his trial counsel provided constitutionally ineffective assistance at both phases of his trial. Petitioner set forth sixteen sub-parts to this claim, labeled as sub-parts (A) through (O) of his seventeenth ground for relief.
On August 19, 2003, this Court issued an Opinion and Order concluding that the following sub-parts were barred by procedural default, due to petitioner's failure to raise them on direct appeal: E, F, G, K, M, N, and O. The Court further found that sub-parts D, H, J, and L were procedurally defaulted due to petitioner's failure to raise them in a state postconviction action. In its Opinion and Order of December 1, 2006, the Court considered and rejected petitioner's remaining claims — those set forth in sub-parts A, B, C, and I — on the merits. Petitioner does not seek to appeal the allegations of ineffective assistance of trial counsel that this Court dismissed as procedurally defaulted, and requests a certificate of appealability only as to those claims that the Court considered on the merits. Those subparts are as follows:
(A) Trial counsel failed to object to the trial court's emphasizing the death penalty at voir dire;
(B) Trial counsel failed to inquire adequately about various mitigating circumstances particular to Petitioner Goff;
(C) Trial counsel failed to object to improper argument on the part of the prosecution at the mitigation hearing;
(I) Trial counsel failed to investigate possible resolution of the entire case.
The importance of effective representation by counsel during a capital trial cannot be understated, and claims of trial counsel ineffectiveness in death penalty cases require careful attention. The Court of Appeals for the Sixth Circuit, as well as numerous district courts within the Sixth Circuit, have paid particular attention to the adequacy of defense counsel performance during or in connection with the penalty phase of a capital trial. Given the fact-intensive nature of such inquiries, as well as the constantly-evolving body of case law on the issue, such claims defy hard and fast rules that can be applied with ease in subsequent cases, and instead, require case-by-case review.
Although some of petitioner's counsel ineffectiveness allegations are more substantial than others, the majority of his allegations involve issues that have garnered substantial consideration by federal courts and have, in some cases, resulted in the reversal or setting aside of death sentences. For these reasons, the Court is satisfied that petitioner's claims could be reasonably debated by jurists of reason sufficient to satisfy the standard set forth in § 2253(c). Accordingly, the Court certifies for appeal sub-parts A, B, C and I of petitioner's seventeenth ground for relief:
11(a). Were Petitioner Goff's attorneys ineffective for failing to object to the trial court's emphasizing the death penalty during voir dire?
11(b). Were trial counsel ineffective for failing to adequately inquire about various mitigating factors particular to petitioner's case?
11(c). Were trial counsel ineffective for failing to object to improper argument by the prosecution at the mitigation hearing?
11(d). Were trial counsel ineffective for failing to investigate possible resolution of the entire case?
Eighteenth Ground for Relief: When the trial court commits numerous errors of constitutional significance throughout both phases of Petitioner Goff's case, the cumulative effect results in a violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
In his eighteenth ground for relief, petitioner argued that he was denied a fair trial due to the cumulative effect of the trial errors set forth in his petition, including the trial court's refusal to give his requested jury instructions, the trial court's conduct during voir dire, alleged prosecutorial misconduct, and the alleged failure to accord him the right of allocution. This Court concluded that the Ohio courts' rejection of this claim was not contrary to Supreme Court case law so as to warrant relief under the AEDPA, because the Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief.
In his motion for a certificate of appealability on this claim, petitioner argues that the trial court made a series of errors in his case which resulted in constitutional violations. However, petitioner fails to cite to any Supreme Court precedent obligating state courts to consider alleged trial court errors cumulatively, and the law of this Circuit is that cumulative error claims are not cognizable in habeas corpus proceedings. In light of the Sixth Circuit's decisions in Willims v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006), Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), and Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002), the Court cannot find that reasonable jurists would find the Court's decision denying petitioner's eighteenth ground for relief debatable or wrong. Resolving every doubt in petitioner's favor, the Court is not persuaded that petitioner has made a substantial showing that he was denied a constitutional right, and the Court cannot certify this issue for appeal.
Nineteenth Ground for Relief: Where Petitioner Goff is denied the right to allocution before sentencing, the result is a constitutional violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution requiring automatic re-sentencing.
Petitioner argued in his nineteenth ground for relief that he was denied his constitutional right to allocution. Petitioner claimed that during his sentencing hearing on August 18, 1995, he was never given the opportunity to speak before the trial court imposed sentence. Petitioner argued that he had a right to allocution, and when that right has been denied, re-sentencing is required. Respondent argued that petitioner's claim was procedurally defaulted. Petitioner offered the ineffective assistance of appellate counsel as cause and prejudice to excuse the default.
Rather than undertaking a procedural default analysis, this Court dismissed petitioner's nineteenth ground for relief on the basis that the claim plainly lacked merit. Specifically, in its Opinion and Order of September 9, 2004, the Court concluded that there simply is no constitutional right to allocution. The Court recognized that there did exist a common law right to allocution and many states provide for the right by statute. That said, there is no right to allocution under the federal constitution. Because federal habeas corpus relief exists only to redress violations of federal constitutional rights, the Court found that petitioner was not entitled to relief on his nineteenth ground for relief.
Petitioner seeks a certificate of appealability on this ground for relief. Petitioner points out that because he was unable to speak at his sentencing, the trial court, the court of appeals and the Ohio Supreme Court were never given an opportunity to hear what petitioner had to say, and "[t]he weighing process was thus upset so that Petitioner Goff received an arbitrary affirmance through the trial court and the State appellate courts." (Doc.# 79, at 12).
The Court is satisfied that petitioner has established that reasonable jurists could find the Court's decision debatable or wrong. Given the importance of the constitutional rights involved, the fact-intensive nature of the issue, and the fact that petitioner certainly would have been entitled to a resentencing had the issue been raised on appeal, the Court is satisfied that petitioner's nineteenth ground for relief is deserving of further litigation on appeal. Accordingly, the Court certifies the following issue for appeal:
12. Were Petitioner Goff's constitutional rights violated when he was denied the right to allocution before sentencing?
Twenty-Second Ground for Relief: When the trial court fails to excuse a prospective juror whose views on capital punishment would prevent or substantially impair his ability to consider mitigating factors, and counsel is forced to use a peremptory challenge on said juror, the result is a violation of petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued in his twenty-second ground for relief that he was denied a fair trial because the trial court failed to excuse a prospective juror for cause, and as a result of the court's error, petitioner was forced to exercise a peremptory challenge to excuse the juror. The Court held that the state courts did not act contrary to, or unreasonably apply, clearly established federal law in denying petitioner's claim. Pursuant to Ross v. Oklahoma, 487 U.S. 81 (1988), a petitioner who has been forced to use a peremptory challenge to exclude a juror who should have been excused for cause cannot state a constitutional claim unless the resulting jury was unfair or biased. Stated differently, "[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id. at 88.
The Court finds that petitioner's twenty-second ground for relief is clearly lacking in merit, and the Court is not persuaded that jurists of reason would find its decision denying petitioner's claim debatable or wrong. Accordingly, the Court cannot certify this issue for appeal.
Twenty-Fifth Ground for Relief: Prosecutorial misconduct committed throughout the stages of Petitioner Goff's capital trial violated his constitutional rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued in his twenty-fifth ground for relief that he was denied a fair trial and due process due to prosecutorial misconduct. Specifically, petitioner alleged that the prosecutor engaged in misconduct by (A) stating during opening statements that a witness by the name of Margaret Cox would testify that she saw petitioner standing near the victim's car the day before the victim's body was discovered, and then failing to call Ms. Cox to testify; (B) presenting testimony suggesting that a pubic hair found at the scene could have belonged to petitioner, and failing to preserve the hair for retesting; (C) attempting to utilize a jailhouse informant for the purpose of obtaining incriminating statements from petitioner; (D) arguing during the penalty phase closing arguments that the jury had a duty to set a standard of behavior for society; and (E) failing to determine and disclose that witness Keith Jones would be seeking, following his testimony against petitioner, a "substantial assistance" motion for leniency in connection with unrelated federal charges that he was facing.
In the Court's Opinion and Order of September 9, 2004, the Court dismissed sub-parts A, B, C, and E of petitioner's twenty-fifth ground for relief on the basis that they were procedurally defaulted, and petitioner could not establish cause and prejudice to excuse the default. Subsequently, in its Opinion and Order of December 1, 2006, the Court rejected sub-part (D) of petitioner's twenty-fifth ground for relief on the merits. The Court concluded that the decisions of the Ohio courts that the prosecutor's comments did not deny petitioner a fair trial were not contrary to, nor did they involve an unreasonable application of, clearly established federal law. The Court held that petitioner failed to show that the prosecutor's reference to the standards of the community and appeal to the emotions of the jurors affected his substantial rights or the fairness of his trial.
Petitioner seeks a certificate of appealability with respect to all five sub-parts of his twenty-fifth ground for relief. However, with respect to sub-parts A, B, C, and E, petitioner fails to provide any argument or showing that the Court's decision that those claims are procedurally defaulted is debatable or wrong. Resolving every doubt in petitioner's favor, the Court finds that petitioner cannot establish that reasonable jurists would find the Court's procedural ruling debatable or wrong under the standard set forth in 28 U.S.C. § 2253(c). Accordingly, the Court cannot certify sub-parts A, B, C, and E for appeal.
With respect to sub-part (D), the Court grants petitioner's motion for a certificate of appealability. Claims of prosecutorial misconduct turn on the unique facts of each case, and only a full review of the proceedings will reveal whether a constitutional violation occurred. In this case, the remarks made by the prosecutor occurred at the conclusion of the penalty phase of petitioner's trial, just before the jury began deliberating with respect to petitioner's punishment. Due to the fact intensive nature of this claim, the importance of the constitutional rights involved, and the considerable attention that the Sixth Circuit has given to claims of prosecutorial misconduct, the Court finds that reasonable jurists could disagree with its decision and this issue is deserving of further scrutiny. Accordingly, the Court certifies the following issue for appeal:
13. Was petitioner denied a fair trial due to allegedly improper argument by the prosecution which referred to the standards of the community and appealed to the emotions of the jurors?
III. Procedurally Defaulted Claims
Ninth Ground for Relief: When the trial phase of Petitioner Goff's case has been completed and the verdict rendered, it is constitutional error for the trial court to substitute alternates at the mitigation phase since they were not present nor involved in any fashion in the deliberative process, thus being a violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.
In his ninth ground for relief, petitioner argued that a constitutional, structural error occurred when a sitting juror was replaced by an alternate juror during the mitigation phase of his trial. Specifically, petitioner argued that it was error to replace a sitting juror with an alternate juror because the alternate jurors did not participate in, and were not present during, the earlier trial phase deliberations that resulted in the guilty verdicts against petitioner. In its Opinion and Order of September 9, 2004, this Court concluded that petitioner's claim was procedurally defaulted, and that petitioner could not establish ineffective assistance of appellate counsel sufficient to constitute cause and prejudice to excuse the default.
Petitioner seeks a certificate of appealability on this issue, arguing that reasonable jurists could debate the Court's procedural ruling. Petitioner contends that ineffective assistance of appellate counsel constitutes cause to excuse the default of this claim, and that he was prejudiced by his appellate counsel's ineffectiveness.
The Court notes that the specific ineffective assistance of appellate counsel claim that petitioner relies on as cause for the default of this ground for relief was asserted as an independent claim of appellate counsel ineffectiveness in subpart (c) of petitioner's thirteenth ground for relief. The Court denied that claim on the merits in its Opinion and Order of December 1, 2006. The Court concluded in a previous section of this Opinion and Order that ground 13(c) — the independent claim of ineffective assistance of appellate counsel — was deserving of further scrutiny on appeal. Because the Court certified sub-part (c) of petitioner's thirteenth ground for relief for appeal, the Court will also certify its ruling regarding the procedural default of petitioner's ninth ground for relief, as the default of this claim necessarily depends on the correctness of the Court's ruling on the merits of the independent ineffective assistance of appellate counsel claim set forth in ground 13(c). Accordingly, the Court certifies the following issue for appeal:
14(a). Was it constitutional error for the trial court to substitute an alternate juror for a sitting juror at the mitigation phase of petitioner's trial when the alternate juror was not present during nor involved in the guilt phase deliberations?
14(b). Did the district court err in determining that petitioner's ninth ground for relief was procedurally defaulted?
Tenth Ground for Relief: When the capital specification, accompanying the first two counts of the indictment, alleges petitioner Goff was a `principal offender,' and evidence from prosecution witnesses state at least one other individual was involved, constitutional error occurs when the jury is never given the definition of what a principal offender is, and the verdict forms themselves never reflect that Mr. Goff was found to be a principal offender contra the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued in his tenth ground for relief that it was error for the trial court to fail to instruct the jury on the definition of "principal offender," where the death penalty specification attached to the first two counts of the indictment alleged that petitioner was a principal offender and evidence adduced at trial suggested that at least one other person was involved in the offenses. Petitioner alleged that the error was compounded by the fact that the verdict forms did not reflect a finding on the part of the jury that petitioner was a "principal offender." In its Opinion and Order of September 9, 2004, the Court concluded that this ground for relief was procedurally defaulted because petitioner did not present this claim to the state courts, and that petitioner could not establish ineffective assistance of appellate counsel as cause and prejudice to excuse the default of this ground for relief.
Petitioner argues that the Court should certify his tenth ground for relief for appeal, because reasonable jurists could find the Court's procedural ruling debatable or wrong. Petitioner asserts that the outcome of his trial would have been different if the jury had been given the definition of principal offender.
The Court notes that the ineffective assistance of appellate counsel claim that petitioner relies on as cause to excuse the default of this ground for relief was asserted as an independent claim of appellate counsel ineffectiveness in sub-part (d) of petitioner's thirteenth ground for relief. In its Opinion and Order of December 1, 2006, the Court denied that claim on the merits. However, like petitioner's ninth ground for relief, the Court concluded in a previous section of this Opinion and Order that ground 13(d) — the independent claim of ineffective assistance of appellate counsel — was deserving of further scrutiny on appeal. Because the Court certified sub-part (d) of petitioner's thirteenth ground for relief for appeal, the Court will also certify its ruling regarding the procedural default of petitioner's tenth ground for relief, as the default of this claim necessarily depends on the correctness of the Court's ruling on the merits of the underlying ineffective assistance of appellate counsel claim set forth in ground 13(d). Accordingly, the Court certifies the following issue for appeal:
15(a). When the capital specification accompanying the first two counts of the indictment alleges that petitioner was a principal offender, is it constitutional err for the trial court to fail to define the term "principal offender" and for the verdict forms to fail to reflect that petitioner was found to be a principal offender?
15(b). Did the district court err in determining that petitioner's tenth ground for relief was procedurally defaulted?
Eleventh Ground for Relief: When informants testify as significant witnesses in the prosecution's case-in-chief, no guiding instruction to the jury leaves them with no specific standards upon which to base their credibility, and the result is a violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.
In his eleventh ground for relief, petitioner argued that the trial court erred to his prejudice by failing to give a jury instruction on the credibility to be afforded to testimony by accomplices. According to petitioner, the testimony of two jailhouse informants and two accomplices was crucial to the state's case against him, and he was constitutionally entitled to a jury instruction on accomplice credibility, instead of the general credibility instruction that the trial court gave the jury.
In its Opinion and Order of September 9, 2004, this Court concluded that petitioner's eleventh ground for relief was procedurally defaulted because petitioner failed to present this claim to the state courts. Although the Court noted that this issue may have been a viable issue that appellate counsel could very well have raised, the Court determined that petitioner could not establish that the ineffective assistance of appellate counsel constituted cause and prejudice to excuse the default of this ground for relief.
In seeking a certificate of appealability with respect to his eleventh ground for relief, petitioner argues that reasonable jurists could find the Court's procedural ruling debatable or wrong, and he asserts that when informant or accomplice testimony is presented, a guiding instruction is constitutionally required.
As with petitioner's ninth and tenth grounds for relief, the specific ineffective assistance of appellate counsel claim that petitioner relies on as cause to excuse the default of this ground for relief was asserted as an independent claim of appellate counsel ineffectiveness in sub-part (b) of petitioner's thirteenth ground for relief. In its Opinion and Order of December 1, 2006, the Court denied that claim on the merits. However, the Court has concluded that ground 13(b) is deserving of further litigation on appeal. Because the Court certified sub-part (b) of petitioner's thirteenth ground for relief for appeal, the Court will also certify its ruling regarding the procedural default of petitioner's eleventh ground for relief, as the default of this claim necessarily depends on the correctness of the Court's ruling on the merits of the underlying ineffective assistance of appellate counsel claim set forth in ground 13(b). Accordingly, the Court certifies the following issue for appeal:
16(a). Was it constitutional error for the trial court to fail to instruct the jury regarding the credibility to be afforded to testimony by accomplices and informants?
16(b). Did the district court err in determining that petitioner's eleventh ground for relief was procedurally defaulted?
Twelfth Ground for Relief: When Petitioner Goff's constitutional right to testify is violated at his capital jury trial, the result is a structural error in the proceedings, which cannot be cured by the harmless error doctrine, and the effect is contra the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued in his twelfth ground for relief that his trial attorneys usurped his fundamental right to testify. Petitioner alleged that by informing prospective jurors during voir dire that petitioner would not take the stand to testify, trial counsel essentially locked petitioner into a position that violated his constitutional right to testify.
In its Opinion and Order of September 9, 2004, the Court dismissed petitioner's twelfth ground for relief on the basis of procedural default, finding that petitioner failed to present this claim to the state courts. The Court determined that petitioner could not establish ineffective assistance of appellate counsel sufficient to constitute cause and prejudice to excuse the default of this ground for relief.
Petitioner seeks a certificate of appealability with respect to his twelfth ground for relief, arguing that reasonable jurists could find the Court's procedural ruling debatable or wrong, and that the outcome of his trial would have been different if he had the option to testify in his own defense. As with petitioner's ninth, tenth, and eleventh grounds for relief, the allegation of ineffective assistance of appellate counsel that petitioner relies on as cause to excuse the default of this claim was asserted as an independent claim of appellate counsel ineffectiveness in sub-part (a) of petitioner's thirteenth ground for relief. The Court has concluded that its decision denying relief on sub-part 13(a) is deserving of further consideration on appeal. Because the Court certified sub-part (a) of petitioner's thirteenth ground for relief for appeal, the Court will also certify its ruling regarding the procedural default of petitioner's tenth ground for relief, as the default of this claim necessarily depends on the correctness of the Court's ruling on the merits of the underlying ineffective assistance of appellate counsel claim set forth in ground 13(a). Accordingly, the Court certifies the following issue for appeal:
17(a). Was Petitioner Goff's constitutional right to testify violated when his counsel informed the jury during voir dire that he would not testify at his trial?
17(b). Did the district court err in determining that petitioner's twelfth ground for relief was procedurally defaulted?
Sixteenth Ground for Relief: When the trial court, at the completion of individual voir dire, concludes by asking each juror if they could sign a death verdict, the resulting effect, emphasizing death and no alternative, is a violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.
Petitioner argued in his sixteenth ground for relief that the trial court erred in asking each prospective juror whether that juror could sign a death verdict. This Court concluded, in its Opinion and Order of August 19, 2003, that this ground for relief was procedurally defaulted, and that petitioner failed to allege or establish cause and prejudice to excuse the default of this claim.
In his motion for a certificate of appealability, petitioner alleges, for the first time, that ineffective assistance of appellate counsel constitutes cause and prejudice sufficient to excuse the default of this claim. Petitioner also asserts that he would be entitled to relief on the merits of this claim, because the trial judge has "enormous influence, and how he presents a question like this, and where he presents it, has significance on how the jurors leave the voir dire process." (Doc.# 79, p. 10).
Resolving every doubt in petitioner's favor, the Court is not persuaded that petitioner has made a substantial showing that he was denied a constitutional right, or that reasonable jurists would find the Court's procedural ruling debatable or wrong. In this Court's Opinion and Order of August 19, 2003, the Court found that petitioner presented no allegation of cause and prejudice to excuse the default of this ground for relief. Now, for the first time, petitioner argues that this ground for relief is not defaulted, and presents a cause and prejudice argument that has never been offered before. Additionally, the underlying argument of ineffective assistance of appellate counsel that petitioner asserts as cause and prejudice has never been presented to this Court in any fashion. The Court is not persuaded that petitioner meets the standard for the issuance of a certificate of appealability as to his sixteenth ground for relief.