Henness v. Bagley

Full title: WARREN KEITH HENNESS, Petitioner, v. MARGARET BAGLEY, Warden, Respondent

Court: United States District Court, S.D. Ohio, Western Division at Dayton

Date published: Oct 31, 2007

Case No. 2:01-cv-043 (S.D. Ohio Oct. 31, 2007)

Opinion

Case No. 2:01-cv-043.

October 31, 2007

DECISION AND ORDER

MICHAEL MERZ, Magistrate Judge

In this capital case, Warren Keith Henness petitions the court for a Writ of Habeas Corpus (Doc. Nos. 8, 86.) Respondent has filed a Return of Writ and an Amended Return of Writ (Doc. Nos. 13, 98), and Henness has filed his Traverse (Doc. No. 102). The matter is now ripe after the evidentiary hearing.¹

1 For the sake of brevity, all record references to the Amended Petition (Doc. No. 86) and the Amended Return of Writ (Doc. No. 98), will appear as "Petition, Doc. No. 86," and "Return of Writ, Doc. No. 98."

The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Doc. No. 99).

In his petition, Henness raises the following twenty-four grounds for relief:

First Ground for Relief

Warren K. Henness was denied his right to the effective assistance of counsel at the pretrial and trial phases of his capital trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.

Second Ground for Relief

Warren K. Henness was denied his right to the effective assistance of counsel at the mitigation phase of his capital trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.

Third Ground for Relief

Warren K. Henness' rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress his statement . . . because his statement was made during a custodial interrogation following an unfulfilled request for counsel. . . .

Fourth Ground for Relief

Warren K. Henness was denied his constitutional right to a fair and impartial trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments as a result of prosecutorial misconduct during the arguments to the jury.

Fifth Ground for Relief

Warren K. Henness was denied his constitutional right to a fair and impartial trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments as a result of certain prosecutorial misconduct during both phases of the case.

Sixth Ground for Relief

Warren K. Henness was denied his constitutional right to a fair and impartial trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments as a result of the prosecutor['s] concealing exculpatory information from the defense. . . .

Seventh Ground for Relief

Warren K. Henness was denied his constitutional right to a fair trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments because of destruction, by the state, of important evidence that had been collected at the crime scene.

Eighth Ground for Relief

Warren K. Henness' Fifth, Sixth and Fourteenth Amendment rights were violated when the trial court made several incorrect rulings on evidence and other issues that arose during the trial phase of the case.

Ninth Ground for Relief

Warren K. Henness' Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated when the trial court refused to permit the defense attorneys to withdraw from further representation prior to the start of the mitigation hearing.

Tenth Ground for Relief

Warren K. Henness' Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated when the trial court refused to grant him a reasonable continuance to prepare his unsworn statement to the jury in the mitigation phase.

Eleventh Ground for Relief

Warren K. Henness' rights under the Sixth, Eighth and Fourteenth Amendments were violated by the actions of the trial court during the mitigation hearing in that the Petitioner, because of a total breakdown in communications between he [sic] and his attorneys, conducted the mitigation hearing himself in that he decided who[m] he wanted to call as . . . witness[es].

Twelfth Ground for Relief

Warren K. Henness' Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated and he was denied a fair and impartial trial during the mitigation phase because the trial court permitted the prosecutor to introduce irrelevant and highly prejudicial evidence from the trial phase of the capital proceeding.

Thirteenth Ground for Relief

Warren K. Henness was denied his constitutional rights under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments during the mitigation phase because the trial court permitted the prosecutor to introduce inadmissible rebuttal evidence which was unfairly prejudicial to the Petitioner's right to a fair trial and an impartial jury.

Fourteenth Ground for Relief

Warren K. Henness' Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury with respect to the lesser included offense in such a way to create a mandatory presumption in favor of the death penalty.

Fifteenth Ground for Relief

Warren K. Henness' Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge refused to instruct the jury at the end of the mitigation phase that it could consider residual doubt as a mitigating factor in its determination of whether it should recommend that Warren K. Henness be sentenced to death.

Sixteenth Ground for Relief

Warren K. Henness' Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that it could consider all of the evidence admitted during the trial phase of the proceedings in respect to its deliberations following the mitigation phase of the trial.

Seventeenth Ground for Relief

Warren K. Henness' Eighth and Fourteenth Amendments [sic] were violated when the judge erroneously instructed the jury at the mitigation phase regarding the choice between the death penalty and life in prison.

Eighteenth Ground for Relief

Warren K. Henness' rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated by the manner in which the trial court exercised its review of the jury verdict of death prior to the time the court actually imposed that death penalty upon the Petitioner.

Nineteenth Ground for Relief

Warren K. Henness' rights as guaranteed by the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments were violated when the trial court committed multiple errors during the pretrial, trial and mitigation phases of his capital case.

Twentieth Ground for Relief

Warren K. Henness was denied his right to the effective assistance of counsel on his direct appeal and in his further appeals in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Twenty-first Ground for Relief

Warren K. Henness claims that he is actually innocent of premeditated aggravated murder and thus, is actually innocent of the death penalty.

Twenty-second Ground for Relief

The proportionality review that the [state] appellate courts must conduct . . . is fatally flawed . . . [and violates] the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

Twenty-third Ground for Relief

Warren K. Henness' death sentence is constitutionally infirm because Ohio's capital punishment system operates in an arbitrary, capricious and discriminatory manner in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.

Twenty-fourth Ground for Relief

The manner in which executions are carried out by the State of Ohio will subject Petitioner to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

(Petition, Doc. No. 86.)

FACTS

A brief recitation of the facts of Henness' case as found by the Ohio Supreme Court will facilitate an understanding of his grounds for relief. Additional facts will be discussed as needed in the relevant grounds for relief.

Warren Keith Henness . . . was convicted of aggravated murder with specifications and sentenced to death for the killing of Richard Myers, a fifty-one-year-old lab technician from Circleville, Ohio.

Myers was last seen alive on March 20, 1992. That morning, Myers told his wife he had something to do before he reported to work at midnight. Although Myers did not elaborate, his wife knew that he was an Alcoholics Anonymous volunteer and frequently traveled to Columbus to counsel others about drug and alcohol addictions. Myers was not home that afternoon when his wife returned from her job, and he failed to report to work that night.

That same morning, [Henness'] wife, Tabatha, answered a telephone call at the residence where she and [Henness] were staying. The caller identified himself as "Dick" and asked for [Henness]. After the phone conversation ended, [Henness] told Tabatha he was going out. A car arrived for [Henness]. Tabatha recognized the driver as "Dick," a man who had picked up [Henness] several times before in the same car. [At trial,] Tabatha identified . . . a photograph of the car she saw. The car belonged to Richard Myers.

A few hours later, [Henness] returned to the house to pick up Tabatha. He was alone and driving Myers's car. They drove to a car wash on Mound Street in downtown Columbus and smoked crack.

In his possession, [Henness] had checks and credit cards belonging to Richard Myers. Tabatha suggested that they involve Roland Fair, a drug dealer acquaintance, to pose as Myers to "po[p] the checks" and "play on the credit cards." The next day, [Henness] and Tabatha drove to Fair's apartment. [Henness] told Fair that the owner of the checks, credit cards, and car was in a motel room with two prostitutes who were keeping him drunk.

While at Fair's apartment, Tabatha saw [Henness] washing a butterfly knife in the bathroom sink. Later, Fair noticed the knife soaking in the sink. The knife had a dark stain on it. [Henness] told Fair that it was his knife.

[Henness], Tabatha, and Fair traveled to several banks and check-cashing outlets that day and the next, uttering forged checks and getting cash advances with the credit cards. With the money, they bought drugs. They also used the credit cards to buy merchandise, which they then sold for more drugs.

At some point Tabatha suggested that [Henness] tell Fair the truth about Myers. According to Tabatha, [Henness] told Fair that the owner of the car, checks, and credit cards had pulled a gun on him, [Henness] shot him, "and the guy died." According to Fair, Henness never specifically said what he did to Myers, but he did say, "I did not want to do it. He made me do it."

Later, [Henness] told Fair that the body was in the Nelson Road area in Columbus. The three discussed possible ways to dispose of it. According to Fair, Fair suggested a quarry. According to Tabatha, [Henness] was the one who suggested a quarry and stated that the body would never be found there.

Two or three days after March 20, Tabatha saw [Henness] with a gold wedding ring that was too big for him. [Henness] told her that it was Myers's. According to Fair, [Henness] offered the ring to him, but Fair did not want it.

On March 23, [Henness] sold Myers's car to a sixteen-year-old drug dealer for $250. [Henness] wrote out a fake bill of sale and signed it "Richard Myers." The next day, the police recovered the car and impounded it because its owner was reported missing. The police questioned the sixteen[-]year[-]old and his companion, who led them to [Henness].

On March 25, the police received an anonymous telephone call alerting them to the body of a dead man in an abandoned water purification plant on Nelson Road. Upon investigation, police discovered the body of Richard Myers. His shoe laces were tied together, his mouth was gagged, and his hands were bound together behind his back with a coat hanger. Police found four .25 caliber shell casings and one live .25 caliber round near his body. The four casings were all ejected from the same weapon.

An autopsy revealed that Myers had been shot five times in the head with .25 caliber bullets. One bullet had penetrated his brain, killing him. Myers had a large cut on his neck, which could have been inflicted with a butterfly knife. . . . Abrasions on his knees showed that his knees had struck a hard surface, and were consistent with being forced to kneel on a concrete floor. Myers's left ring finger had been severed six to eight hours after death.

Columbus police arrested [Henness] on an unrelated charge on April 8, 1992. At the police station, it was apparently disovered that he was wanted on forgery charges. He was also a suspect in Myers's murder and homicide detectives questioned him. During the interrogation, [Henness] claimed Fair approached him with the checks and credit cards. [Henness] suggested that Fair may have committed the murder. [Henness] also told detectives he had not owned a gun since December 1990. However, Tabatha and Robert Curtis, at whose residence Tabatha and [Henness] were living, testified that [Henness] had a semiautomatic handgun, either a .22 or .25 caliber, in March or April [of] 1992. [Henness] sold the gun to a drug dealer about two weeks after the murder.

On April 14, [Henness] was interrogated for a second time. He admitted he was with Myers on March 20 because Myers was helping him seek drug counseling and treatment for Tabatha. He also admitted that Fair was not involved in the murder. Instead, [Henness] blamed the murder on some Cubans who were trying to settle a score with him. He stated Myers happened to be at the wrong place at the wrong time.

State v. Henness, 70 Ohio St. 3d 53, 54-56, 679 N.E.2d 686 (1997).

PROCEDURAL HISTORY

Henness was subsequently indicted on three counts of aggravated murder, each carrying two capital specifications, those being that the murder was committed in the course of a kidnapping and an aggravated robbery, and one firearm specification. (Appendix, Vol. 1 at 18-21.) He was also charged with aggravated robbery with a firearm specification, kidnapping with a firearm specification, four counts of forgery, and having a weapon while under disability. (Appendix, Vol. 1 at 21-27.) Henness pled guilty to the four forgery counts (Appendix, Vol. 2 at 106), and the possession of a weapon while under disability count was tried to the court (Appendix, Vol. 2 at 306). A jury found Henness guilty on all remaining counts and specifications (Appendix, Vol. 2 at 101-20) and recommended he be sentenced to death at the conclusion of the mitigation phase of his trial (Appendix, Vol. 2 at 185-87). In January of 1994, the trial court adopted the jury's recommendation and sentenced Henness to death. (Appendix, Vol. 2 at 197-209.)

Henness pursued an appeal to the Ohio First District Court of Appeals, raising twenty-five assignments of error through counsel and two additional assignments of error pro se. (Appendix, Vol. 3; Vol. 4 at 184-93.) The court of appeals denied all of Henness' assignments of error, performed its statutorily required proportionality review and independent weighing of the aggravating circumstances and mitigating factors in Henness' case, see Ohio Rev. Code § 2929.05, and affirmed the death sentence imposed by the trial court. State v. Henness, No. 94APA02-240, 1996 WL 52890 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported).

Henness proceeded to the Ohio Supreme Court, where he raised twenty-five propositions of law. (Appendix, Vol. 5 at 16.) On June 18, 1997, that court affirmed the court of appeals' decision. State v. Henness, 79 Ohio St. 3d 53, 679 N.E.2d 686 (1997). A subsequent petition for a writ of certiorari to the United States Supreme Court was denied. (Appendix, Vol. 5 at 320.)

Meanwhile, Henness also pursued post-conviction relief in the state courts. On September 19, 1996, he filed a post-conviction petition alleging twenty-four claims for relief. (Appendix, Vol. 6 at 2-58.) The following March, the trial court denied Henness' request in a generically worded, blanket finding that all twenty-four claims for relief could or should have been raised on direct appeal, and that because they were not, the doctrine of res judicata barred Henness from raising them in a post-conviction proceeding. (Appendix, Vol. 6 at 93-96.²) Henness appealed that decision to the court of appeals, raising four assignments of error (Appendix, Vol. 6 at 132-54) that were ultimately overruled, State v. Henness, No. 97APA04-465, 1999 WL 739588 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). The Ohio Supreme Court declined jurisdiction, State v. Henness, 87 Ohio St. 3d 1491, 722 N.E.2d 525 (2000), and the United States Supreme Court denied Henness' petition for a writ of certiorari, Henness v. Ohio, 530 U.S. 1234 (2000).

2 The Court notes the extreme frugality of words with which the trial court dispensed of Henness' twenty-four claims; the entire opinion, which includes the procedural history of the case, comprises a mere four pages.

On December 24, 2001, Henness, through counsel, filed an application to reopen his direct appeal, alleging his appellate counsel were ineffective in failing to raise as error on direct appeal eight assignments of error. (Doc. No. 70, Vol. 3 at 123-131; Doc. 136-2.) Henness also filed a pro se application to reopen his direct appeal, setting forth a purportedly non-exhaustive list of thirty-five assignments of error he alleged his appellate counsel should have raised on direct appeal. (Doc. Nos. 136-3, 136-4, 136-5, 136-6, 136-7, 136-8, and 136-9.) On April 11, 2002, and again on May 21, 2002, in a nunc pro tunc memorandum decision,³ the court of appeals denied Henness' requests to reopen his direct appeal because they were grossly out of time, and because Henness had acknowledged his awareness of his appellate attorneys' ineffectiveness even when his direct appeal was in process. (Doc. No. 70, Vol. 3 at 207-16.) Henness appealed that decision to the Ohio Supreme Court on July 8, 2002 (Doc. No. 136-3 at 1), but there is no indication in the record as to its disposition, nor does the Court find any in its research.

3 The purpose of the May 21, 2002, nunc pro tunc decision is unknown, as it is substantively identical to the decision rendered on April 11, 2002.

As noted above, Henness filed a petition for habeas corpus relief in federal court on January 16, 2001, and an amended petition on July 13, 2004. (Doc. Nos. 8, 86.)

ANALYSIS

Since Henness filed his petition for a writ of habeas corpus well after the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (hereinafter "AEDPA"), the amendments to 28 U.S.C. § 2254 embodied in that Act are applicable to his petition. ( See Petition, Doc. No. 15.) The standard of review under 28 U.S.C. § 2254 as amended by the AEDPA is as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A factual finding by a state court is presumed to be correct, and a petitioner must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e).

A state court's decision is contrary to the Supreme Court's clearly established precedent if (1) the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's decision involves an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal rule [from Supreme Court cases] but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than incorrect or erroneous; it must have been "objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 511 (2003), quoting Williams, 529 U.S. at 409.

In Jamison v. Collins, 100 F.Supp.2d 647 (2000), this Court noted that:

Principles of comity necessary to a federal system narrow a federal court's review of a petition for a writ of habeas corpus brought by a state prisoner. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court explains that "[u]nder our federal system, the federal and the state `courts [are] equally bound to guard and protect rights secured by the [C]onstitution.'" Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886)); see Coleman, 501 U.S. at 731, 111 S.Ct. 2546 (quoting same). Thus, to ensure the states an opportunity to protect these rights, the doctrine of procedural default requires that the state courts retain "the first opportunity to address and correct alleged violations of state prisoner's [sic] rights." Coleman, 501 U.S. at 731, 111 S.Ct. 2546. The doctrine of procedural default provides that, if a state court previously dismisses a state prisoner's federal claim on the ground that the prisoner failed to comply with a state procedural rule, then a federal court ordinarily cannot consider the merits of that federal claim. Id. at 729-730, 111 S.Ct. 2546.

This procedural default doctrine bars federal habeas review of a state court ruling only if the following requirements have been satisfied:

(1) the petitioner actually violated an applicable state procedural rule;

(2) the procedural violation provides an "adequate and independent state ground" for denying the petitioner's federal constitutional claim; and

(3) the state court actually enforced the procedural violation; that is, the highest state court to rule on the claim clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim.

See generally Coleman, 501 U.S. at 750, 111 S.Ct. 2546. However, the petitioner can excuse the procedural default by demonstrating either:

(a) that there was "cause" for the procedural default and actual prejudice by the alleged constitutional error; or

(b) that the case falls within the category of cases considered [a] "fundamental miscarriage of justice."

See id. . . .; Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986); Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

For the cause and prejudice standard, the petitioner must provide a "substantial" reason that is "external" to the petitioner as the cause for the procedural default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Rust v. Zent, 17 F.3d 155, 161 (6^th Cir. 1994). In addition, the petitioner must show that the alleged trial errors "not merely . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed. 2d 816 (1982).

To demonstrate a "fundamental miscarriage of justice," a petitioner must show that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent. Murray, 477 U.S. at 496, 106 S.Ct. 2639. This exception applies only in "extraordinary cases." Id. The standard requires a petitioner to show that he is "actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To establish a probability of innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id.

Jamison, 100 F.Supp.2d at 669-70. These principles govern the Court's discussion of Henness' pled grounds for relief.

First Ground for Relief

In his first ground for relief, Henness claims his trial counsel were ineffective for several reasons. (Petition, Doc. No. 86 at 20-30.) Before considering the substance of Henness' sub-claims, a review of the standard governing ineffective assistance of counsel claims is in order.

The governing standard for effective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984), which states as follows:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687.

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is 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 overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainright, 477 U.S. 168, 184 (1986); Wong v. Money, 142 F.3d 313, 319 (6^th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177, 1180-81 (6^th Cir. 1987). The merits of Henness' sub-claims will be considered with these principles in mind.

Henness contends his trial counsel were ineffective during the pretrial and guilt phases of his trial for the following reasons:

1. Counsel failed to obtain an investigator;

2. Counsel failed to call Henness as a witness at a suppression hearing;

3. Counsel failed to object to inadmissible evidence of Henness' bad character;

4. Counsel failed to file a motion to suppress based upon the illegality of Henness' stop and arrest;

5. Counsel failed to investigate Tabatha Henness' mental state;

6. Counsel failed to investigate bloodstain evidence from the crime scene.

(Petition, Doc. No. 86 at 20-30.) The Court will address each sub-claim, grouping them together where logically feasible.

In his first and fifth sub-claims above, Henness contends his trial counsel's failure to investigate or obtain an investigator to assist in the preparation of his case constitutes ineffective assistance. (Petition, Doc. No. 86 at 20, 29-30.) Specifically, Henness alleges that had his counsel or a defense investigator performed an adequate investigation, it would have been discovered that (1) the state's star witness, Tabatha Henness, was not testifying against her husband voluntarily, that she had been treated for mental health problems, that she had attempted suicide since Henness' arrest, and that she was not taking her prescribed medication when she testified at his trial; (2) the fifth shell casing that was never found by police at the scene⁴ may have been located; and (3) the tools Henness claimed to have left at the scene may have been found and the presence of motors in the building may have been verified, corroborating Henness' claim that he went to the building to steal motors, not to kill Myers. (Petition, Doc. No. 86 at 20-22, 29-30.)

4 Recall that Myers suffered five gunshot wounds to his head, but only four shell casings were found at the scene.

Respondent argues that Henness' sub-claims pertaining to the evidence above have been procedurally defaulted, either by Henness' failure to raise the issues in the state courts at all, or by the state court's findings that the claims were barred by the doctrine of res judicata. (Return of Writ, Doc. No. 98 at 15-16.) Henness does not contest the default, and instead argues it should be excused due to the ineffectiveness of his appellate counsel in their failure to raise as error on direct appeal trial counsel's ineffectiveness. (Traverse, Doc. No. 102 at 1-5.) In order to provide cause for a default, however, Henness' ineffective assistance of appellate counsel claim itself must have been preserved for habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In Henness' twentieth ground for relief, infra, where he asserts an ineffective assistance of appellate counsel claim, the Court concludes that claim was preserved for habeas corpus review, so appellate counsel's ineffectiveness could establish cause for Henness' default of the sub-claims at issue here. Because the Court ultimately concludes that Henness' appellate counsel were not ineffective, the alleged ineffectiveness cannot constitute cause for Henness' default of his sub-claims.

It follows, then, that to preserve his first and fifth ineffective assistance of trial counsel sub-claims in the state courts, Henness would have had to bring the claim in his post-conviction proceedings. Although Henness did raise an ineffective assistance of trial counsel claim in those proceedings, he did not advance the sub-claims argued here. (Appendix, Vol. 6 at 54-56.) Thus, Henness has procedurally defaulted his first and fifth ineffective assistance of counsel sub-claims, and has demonstrated neither cause nor prejudice to excuse the default. Accordingly, those two sub-claims are denied.

In his second sub-claim, Henness argues that his trial counsel were ineffective in not calling him as a witness at his suppression hearing. (Petition, Doc. No. 86 at 22-24.) Respondent contends the issue has been procedurally defaulted, noting that the last state court to address the issue rejected it on state procedural grounds. (Return of Writ, Doc. No. 98 at 21.) Specifically, Respondent states that Henness raised the issue as his twenty-third claim for relief in his petition for post-conviction relief in the state court, and that that court found the claim barred by the doctrine of res judicata because Henness had failed to support the claim with evidence from outside the trial record. (Return of Writ, Doc. No. 98 at 21; Appendix, Vol. 6 at 54-56, 95-96.) The state court of appeals affirmed the post-conviction trial court. State v. Henness, No. 97APA04-465, 1999 WL 739588 at *7 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported).

As is commonly the case in habeas corpus litigation, the procedural history of the asserted claim is complex and convoluted. The parties address it superficially in their pleadings, also, unfortunately, a common occurrence in habeas litigation. This is what happened: As noted in the discussion of the facts, supra, Henness was interviewed by law enforcement officers on April 8 and again on April 14. Prior to his trial, Henness filed a motion to suppress his statements, particularly those made during the interview on April 14. (Appendix, Vol. 2 at 75-82.) After a hearing (Trial Tr., Vol. 3 at 241-331), the trial court overruled Henness' motion because Detective Sorrell's testimony that he had re-Mirandized Henness prior to the April 14 interview was unchallenged; Henness had presented no evidence to rebut Sorrell's testimony (Trial Tr., Vol. 4 at 282-84). On direct appeal, Henness' appellate counsel raised the underlying claim of trial court error with respect to the court's denial of Henness' motion to suppress, but did not raise a claim of trial counsel ineffectiveness due to their failure to call Henness as a witness. ( See Appendix, Vol. 3 at 118-24.) Appellate counsel's decision there was a good one, because in order to succeed on the ineffectiveness claim, they would have had to present evidence of prejudice from trial counsel's failure, evidence which would necessarily have been outside the trial record. Such is not permitted on direct appeal in Ohio. Ohio R. App. Proc. 9(A), 16(A)(7).

Next, Henness presented the ineffectiveness of his trial counsel as a claim in his petition for post-conviction relief. (Return of Writ, Doc. No. 98 at 21; Appendix, Vol. 6 at 54.) The only mention there of trial counsel's alleged ineffectiveness concerning the motion to suppress, however, is contained within one sentence that is part of his twenty-third claim for relief. It reads: "Defense counsel failed to [move to] suppress the evidence introduced at trial subsequent to Mr. Henness invoking his right to counsel." (Appendix, Vol. 6 at 54.) This statement fails to convey the point that Henness should have been called as a witness at the suppression hearing to testify that he had not been properly Mirandized prior to the April 14 interview. As such, a legitimate argument could be made that Henness had not "fairly presented" the claim he now advances in habeas corpus when he had the chance to do so in the state courts. Since Respondent eschews that argument, however, this Court has no call to answer that question, and will imbue Henness' post-conviction "argument" with the same expansiveness that Respondent has.

As Respondent notes, and Henness implicitly acknowledges, the state post-conviction court rejected Henness' claim on the ground that he had not supported it with evidence from outside the record. (Return of Writ, Doc. No. 98 at 21; Traverse, Doc. No. 102 at 5); State v. Henness, No. 97APA04-465, 1999 WL 739588 at *7 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). Henness asserts his appellate counsel's ineffectiveness excuses his default, but he misses the mark with that argument. Appellate counsel could not present the claim on direct appeal because it necessarily relies upon evidence outside the record, to wit, the evidence Henness would have offered through his testimony had he been called as a witness at the suppression hearing. Furthermore, Henness was not constitutionally entitled to effective representation in his post-conviction proceeding, see Coleman v. Thompson, 501 U.S. 722, 752-53 (1991); Murray v. Giarratano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), which is the appropriate proceeding in which to raise issues dependent upon evidence outside the trial record, so any claim that post-conviction counsel were ineffective would be summarily rejected in these proceedings.

To distill the procedural history of Henness' contention down to its essence, then, he procedurally defaulted his claim by failing to support it with cogent evidence from outside the record when he presented the claim (if, indeed, it can be said that he presented it at all) to the state post-conviction court. A petitioner in a post-conviction proceeding must present sufficient documentary evidence outside the record to show entitlement to the relief requested, or to an evidentiary hearing at which such evidence may be developed. State v. Jackson, 64 Ohio St. 2d 107, 111-12, 413 N.E.2d 819 (1980). The rule in Jackson is an adequate and independent state ground for procedural default purposes. Sowell v. Bradshaw, 372 F.3d 821, 830 (6^th Cir. 2004), citing Lorraine v. Coyle, 291 F.3d 416, 426 (6^th Cir. 2002). Thus, Henness' second ineffective assistance of counsel sub-claim is procedurally defaulted.

Henness' argument that his appellate counsel's ineffectiveness excuses his default is a non sequitur since appellate counsel's performance cannot excuse errors committed in post-conviction proceedings, and in any case appellate counsel were not ineffective with respect to the instant claim, nor was Henness entitled to effective counsel in his post-conviction proceedings. For these reasons, Henness' second sub-claim of his first ground for relief is denied.

In his third sub-claim, Henness contends his trial counsel provided ineffective assistance when they failed to object to the admission of evidence of his bad character at trial. (Petition, Doc. No. 86 at 24-27.) He specifically argues that Tabatha Henness' testimony that he taught her how to inject heroin, Roland Fair's testimony that Henness spent the money he obtained by using Myers' checks and credit cards on drugs, evidence of his forgeries related to the checks and credit cards, and the testimony of Officer James Gravett suggesting Henness had threatened a stranger just prior to his arrest, should have been excluded as inadmissible character evidence, and that defense counsel's failure to object to that evidence constituted ineffective assistance. (Petition, Doc. No. 86 at 24-25.) Respondent argues that although the instant sub-claim is not procedurally defaulted, it is meritless. (Return of Writ, Doc. No. 98 at 24-25.) Henness does not argue the sub-claim in his Traverse.

As Respondent concedes, Henness raised as error the ineffectiveness of his trial counsel in his direct appeal to the Ohio Supreme Court. (Appendix, Vol. 5 at 134-37.) While that court did reject another of Henness' propositions of law in which he claimed admission of the other acts evidence was erroneous, finding the testimonies relevant for non-character purposes, State v. Henness, 79 Ohio St. 3d 53, 61, 679 N.E.2d 686 (1997), it did not address Henness' related ineffective assistance of trial counsel claim based on his counsel's failure to object to the alleged other acts testimony. The same claim was raised in the court of appeals, however, and that court concluded that since Tabatha Henness', Roland Fair's, and James Gravett's testimonies were admissible, Henness' trial counsel were not ineffective when they failed to object to the evidence when it was presented. (Appendix, Vol. 3 at 209-11); State v. Henness, No. 94APA02-240, 1996 WL 52890 at *12 (Ohio App. 10^th Dist. Feb. 6, 1996). In these habeas corpus proceedings, Henness does not challenge the correctness of the state courts' findings that the testimonies of those three witnesses relating to "other acts" was properly admitted, so this Court has no cause to question those findings. Therefore, accepting the state courts' conclusions as to the admissibility of the witnesses' testimonies, there can have been no error on Henness' trial counsel's part in failing to object to the admission of the same.

Although Henness' third sub-claim purports to challenge his counsel's performance based on their failure to object to unfavorable character evidence, he also contends that his counsel should have objected to evidence admitted in violation of the spousal privilege, without specifying what that evidence was. (Petition, Doc. No. 86 at 26-27.) The only clue Henness gives as to what testimony from Tabatha allegedly violated the marital privilege is his statement that it was "previously mentioned in the statement of facts." (Petition, Doc. No. 86 at 27.) Reviews of Henness' briefs before the state court of appeals and the Ohio Supreme Court reveal that the effectiveness of his trial counsel was not challenged on the ground that counsel failed to object to testimony from Tabatha that violated the marital privilege.⁵ (Appendix, Vol. 3 at 209-11; Vol. 5 at 134-37.) A reasonable argument could be made, then, for procedural default of that part of Henness' third sub-claim in his first ground for relief. Respondent has not asserted the defense, which in fact waives it, so this Court will address the issue de novo. "If deference to the state court is inapplicable . . ., we `exercise our independent judgment' and review the claim de novo." McKenzie v. Smith, 326 F.3d 721, 727 (6^th Cir. 2003), quoting Hain v. Gibson, 287 F.3d 1224, 1229 (10^th Cir. 2002).

5 Henness did raise the admission of Tabatha's testimony he alleges violated the marital privilege as a freestanding assignment of error and proposition of law in the state court of appeals and Ohio Supreme Court, respectively, but he did not include it as an underlying basis for his ineffective assistance of trial counsel assignment of error or proposition of law in those courts. (Appendix, Vol. 3 at 100-02, 209-11; Vol. 5 at 72-76.)

As noted above, Henness refers the Court to the statement of facts contained in his amended petition respecting the testimony Tabatha gave that he claims was erroneously admitted in violation of Ohio Rev. Code § 2945.42, and to which his counsel failed to object. (Petition, Doc. No. 86 at 26-27.) Elsewhere in his petition, Henness claims trial court error occurred when Tabatha's testimony was admitted in spite of her incompetence to testify under Ohio R. Evid. 601(B), an issue discussed infra. (Petition, Doc. No. 86 at 53-55.) The Ohio Supreme Court has expounded upon the differences and overlap between the statute and the evidentiary rule as follows:

Evid.R. 601(B) governs the competency of spouses to testify against each other regarding criminal activity. The rule provides:

"Every person is competent to be a witness except:

* * *

(B) A spouse testifying against the other spouse charged with a crime except when either of the following applies:

(1) A crime against the testifying spouse or a child of either spouse is charged;

(2) The testifying spouse elects to testify."

The focus of Evid.R. 601(B) is the competency of the testifying spouse; in contrast, R.C. 2945.42 focuses on the privileged nature of the spousal communications:

"Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness * * *."

Thus, R.C. 2945.42 "confers a substantive right upon the accused to exclude privileged spousal testimony concerning a confidential communication * * *." State v. Rahman (1986), 23 Ohio St.3d 146, syllabus. However, if the accused commits acts in the known presence of a third person, the accused may not assert the spousal privilege. Id. That is the case even if that third person is unable to testify. See State v. Mowery (1982), 1 Ohio St.3d 192.

Spousal privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses. Under R.C. 2945.42, an accused may prevent a spouse from testifying about private acts or communications. However, even when the privilege does not apply because another person witnessed the acts or communications, a spouse still is not competent to testify about those acts or communications unless she specifically elects to testify.

. . .

While Evid.R. 601 was amended in 1991 to allow the spouse the decision as to whether to testify against the accused spouse (the decision formerly lay with the accused), the rule still contains important protections for the accused, since it deals with the competency of persons testifying against him.

The rule requires that the testifying spouse elect to testify against her spouse. An election is "[t]he choice of an alternative[;] [t]he internal, free, and spontaneous separation of one thing from another, without compulsion, consisting in intention and will." Black's Law Dictionary (5 Ed. 1990) 517. Thus, under Evid.R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse.

State v. Adamson, 72 Ohio St. 3d 431, 433-34, 650 N.E.2d 875 (1995). For purposes of Henness' ineffective assistance of trial counsel claim, then, the only question relevant to whether counsel should have objected to Tabatha's testimony on the basis of Ohio Rev. Code § 2945.42 is whether there was a third person present when Tabatha heard Henness make the statements or saw him do the acts to which she testified.

In his statement of the facts, Henness notes that Tabatha testified that Henness bought some heroin and that the two of them injected it after Henness showed her how to do so. (Petition, Doc. No. 86 at 8; Trial Tr., Vol. 5 at 187.) Defense counsel objected (Trial Tr., Vol. 5 at 189), so those statements are obviously not the ones with which Henness is concerned with regard to the quality of his counsel's representation.

Henness also claims Tabatha testified contrary to Ohio Rev. Code § 2945.42 when she described a conversation in which she urged Henness to tell Roland Fair about the murder.⁶ (Petition, Doc. No. 86 at 10; Trial Tr., Vol. 5 at 243-44.) Here is the relevant passage from Tabatha's direct testimony:

6 Rather than cite to the pages in the transcript where the referenced testimony could be easily found by this Court, Henness' attorneys have cited a 50-page section of Tabatha's direct testimony, forcing the Court to either search for the quoted passage or reject Henness' claim out of hand. Unfortunately, such haphazard citation occurs with disappointing regularity in this Court's capital habeas corpus cases, and results in unnecessary risk to petitioners and a tremendous waste of judicial resources. The pervasiveness of the problem is demonstrated by the Court's General Order of October 28, 2005, requiring all record references in capital habeas corpus cases be specific as to page or pages in the record where the cited material may be found. ( See Doc. No. 21.)

Q. Okay. Some point when you and Roland and Keith [Henness] were together, was Roland ever told a different story about where Mr. Myers was?

A. Yes.

Q. Tell us how that came about.

A. I can't say what he said to Keith, right?

Q. Well, was Mr. Fair present when you said it?

A. Yes, but he couldn't hear me.

Q. Well —

A. But he was present.

Q. Where were you?

A. We were in the car driving.

Q. Okay. And where were you seated?

A. I was in the front seat at this time.

Q. Okay. Passenger or driver?

A. Passenger.

Q. And who was driving?

A. Keith.

Q. Okay. Where was Mr. Fair?

A. In the back seat.

Q. Okay. What was it that you said to Keith?

A. I told Keith he ought to tell him what happened.

Q. Okay. And what did Keith do or say?

A. First he said he doesn't think he should do that.

Q. Keith said that he, meaning Keith, didn't think he should do that?

A. Keith said he doesn't think he should tell Roland.

Q. Did he eventually tell Roland?

A. Yes.

Q. What did he say to him?

A. As far as I can remember, it is not the exact words, but it was that he had shot somebody. He shot somebody because somebody had pulled a gun out on him, and the guy died and that is whose car he had.

(Trial Tr., Vol. 5 at 243-44.) Obviously, the testimony to which Henness claims his counsel should have objected was uttered by Henness to Roland Fair, not Tabatha. Henness' assertion that his counsel were ineffective for failing to object to admission of the testimony on the basis that it violated the marital privilege is therefore not only meritless, but bordering on frivolous.

Next, Henness states that Tabatha testified that during the time she, Henness, and Fair had Myers' car, she saw Henness with a butterfly knife. (Petition, Doc. No. 86 at 10; Trial Tr., Vol. 5 at 247-48, 250.) At the time Tabatha gave that testimony, she was never asked whether anyone else was present when she saw Henness with the knife, so there is nothing in the record to indicate that her observation was inadmissible on marital privilege grounds.

Henness also claims Tabatha's testimony that in the days after the murder she had seen Henness with a gold wedding ring he said he took from Myers' finger should have been objected to by his counsel as violating the marital privilege. (Petition, Doc. No. 86 at 10.) The relevant part of Tabatha's direct testimony follows:

Q. Did Keith ever tell you, when Roland Fair was present, anything about where that ring came from?

A. Yes.

Q. What did he say?

A. It came from Richard Myers.

Q. Did he ever say anything when Roland Fair was present about how he had gotten it or when he had gotten it?

A. Yeah.

Q. What did he say?

A. He got it from Richard Myers' finger.

(Trial Tr., Vol. 5 at 252.) Fair's presence when Henness made the statements destroys the marital privilege, so Henness' defense counsel demonstrated appropriate professional judgment in deciding not to object to the testimony on that basis.

Finally, Tabatha testified that when Myers' body was found, and Henness saw it reported on the news, Henness "kind of panicked" and changed his appearance by shaving his moustache and beard. (Trial Tr., Vol. 5 at 261-62.) Henness' counsel did not object to that testimony, and reasonably so, because there was no testimony suggesting that Henness and Tabatha were alone at the time.

Henness' claim that his trial counsel should have objected to portions of Tabatha's testimony on marital privilege grounds, and that their failure to do so constitutes ineffective assistance, is meritless. Accordingly, and because the rest of his third sub-claim in his first ground for relief is similarly without merit as discussed above, this sub-claim is denied.

In his fourth sub-claim, Henness contends his counsel were ineffective for failing to file a motion to suppress his post-arrest statements based upon the illegality of the initial stop and subsequent arrest. (Petition, Doc. No. 86 at 27-29.) Respondent argues that Henness failed to raise that issue in the Ohio courts, and that it is consequently procedurally defaulted. (Return of Writ, Doc. No. 98 at 27.) Henness claims the ineffectiveness of his appellate counsel acts as cause for the procedural default of his ineffective assistance of trial counsel claim. (Traverse, Doc. No. 102 at 88-92.) Because this Court finds, infra, that Henness' appellate counsel provided effective representation, appellate counsel's alleged ineffectiveness cannot establish cause for Henness' default of his ineffective assistance of trial counsel claim. Consequently, Henness' default of the instant sub-claim is not excused and the sub-claim is denied.

In his sixth and final sub-claim of his first ground for relief, Henness claims his trial counsel were ineffective in failing to investigate or inquire into blood evidence recovered from the crime scene. (Petition, Doc. No. 86 at 29-30.) Respondent contends Henness procedurally defaulted his sub-claim as he never presented it in any state court. (Return of Writ, Doc. No. 98 at 33.) Henness argues neither the merits nor the procedural status of his sub-claim in his traverse.

Because Henness' claim depends upon evidence outside the trial record for its success, it necessarily is a claim of the sort properly raised in state post-conviction proceedings. As indicated by Respondent, however, Henness did not raise the instant ineffective assistance of trial counsel sub-claim in his petition for post-conviction relief in the state court. (Appendix, Vol. 6 at 54-56.) Henness, having offered no explanation as to why the claim was not raised in the state court when it could and should have been, has procedurally defaulted the sub-claim and it is not amenable to habeas corpus review. Accordingly, Henness' sixth sub-claim of his first ground for relief is denied.

Having found each of Henness' sub-claims either procedurally defaulted or meritless, his first ground for relief is denied.

Second Ground for Relief

In his second ground for relief, Henness contends he was denied the effective representation of his trial counsel in the mitigation phase of his trial because the trial court refused to permit counsel to withdraw due to Henness' deteriorated relationship with his attorneys, because counsel failed to investigate and present relevant mitigation evidence, and because counsel deferred to Henness' wish that mitigation evidence be limited to whatever was relevant to any residual doubt jurors may have harbored as to Henness' guilt. (Petition, Doc. No. 86 at 31-36.) Respondent acknowledges that Henness has preserved the claim for habeas corpus review, but argues that it is nonetheless without merit. (Return of Writ, Doc. No. 98 at 38-48.)

At the outset of the mitigation phase, a hearing was held on Henness' trial counsel's motion to withdraw from representing him. (Trial Tr., Vol. 9 at 4.) The motion pertained to both counsel, David Bodiker and Joseph Edwards. Id. In arguing the motion, Bodiker stated that their representation had become difficult since the conclusion of the guilt phase of Henness' trial. Id. at 5. The reasons given for counsel's request to withdraw are: (1) Henness no longer trusted his counsel; (2) Henness' rejection of counsel's mitigation plan made it impossible for counsel to effectively represent him; (3) counsel believed they were unable to provide effective representation for Henness; (4) because of the conflict between counsel and Henness, mitigation evidence obtained would not be presented properly, thereby depriving Henness of his Sixth and Eighth Amendment rights; and (5) counsel's continued representation would result in a violation of the disciplinary rules requiring counsel to zealously represent their client and preserve the client's confidences. (Trial Tr., Vol. 9 at 5-7.) Bodiker noted that counsel's desire to withdraw from Henness' case was one shared by Henness as well. Id. at 11. Henness' counsel did not dispute the court's observation that the difficulties they had with Henness were a result of voluntary decisions made by Henness. Id. at 12. Henness' problem with his counsel was not that he wanted to prevent them from presenting any mitigation evidence at all, but rather that he did not approve of his counsel's approach to mitigation in his case, and that he wanted to be in control of the mitigation evidence presented. Id. at 14. Counsel had proceeded with preparations for the mitigation phase of Henness' trial, including investigation, interviewing witnesses, and consultation with professional experts. Id. at 15-16. Bodiker argued that counsel were not privy to Henness' plans respecting mitigation, and consequently had not been able to advise him on the efficacy of those plans, whatever they were. Id. at 22. Attorney Edwards joined the motion, and expressed a concern that client confidences may have been disclosed in the course of his representation of Henness. Id. at 24.

Henness also argued his side of the issue, stating that he did not trust his attorneys in the guilt phase of the trial, and that it was unreasonable to think that he would trust them when his "life is on the line" in the mitigation phase. (Trial Tr., Vol. 9 at 16.) Funds for an investigator were approved by the court, Henness stated, but Bodiker failed to investigate the physical evidence at the scene of the murder. Id. In addition, Henness was critical of Bodiker because Bodiker had sought continuances in his case against Henness' wishes. Id. He accused Bodiker of betraying his confidences to the prosecutor, saying that was the biggest factor in his desire to have new counsel appointed. Id. Henness also criticized Bodiker for not objecting to certain evidence, testimony, and judicial rulings made in the guilt phase of the trial. Id. at 16-17. He was unhappy with Bodiker's examination of guilt-phase witnesses, his failure to introduce evidence Henness believed to be valuable, and his alleged lying to Henness. (Trial Tr., Vol. 9 at 17.) Finally, Henness expressed disbelief that the court would expect him to "continue with these clowns" as counsel. Id. at 18. He stated, however, that he did not hold Edwards as responsible as Bodiker for the current state of the attorney-client relationship because Bodiker wanted to "run the whole show and tell everybody how to do everything," including co-counsel Edwards Id. at 25. Henness expressed a willingness to allow Edwards to continue to represent him on the condition that Bodiker be replaced. Id. at 26. He denied any intention of seeking new counsel for the purpose of delay, suggesting the mitigation hearing would be delayed by only two days so that any witnesses Bodiker and Edwards had not planned to call but whom Henness desired to call could be subpoenaed. Id. at 28.

The trial judge acknowledged that he had sensed some conflict between counsel and Henness. (Trial Tr., Vol. 9 at 30.) He stated, however, that "it would be very difficult, if next to impossible, for a new set of counsel to become as totally familiar with this case, and therefore, as well prepared" as Bodiker and Edwards. Id. at 31. The court found Henness to be acting within his rights to choose not to waive the attorney-client privilege respecting certain evidence counsel may want to introduce in the mitigation phase, and also within his right to make an unsworn statement that had not been previewed by his counsel. Id. at 32. The court then stated as follows:

I perceive, from the arguments I have heard and reading the memorandum, that the Defendant has chosen voluntarily to make his counsel ineffective for whatever motive he may have. I believe this counsel presently are as prepared as any counsel could be. You have admitted that you prepared an appropriate mitigation case, that your client refuses to permit you to put that on. That is up to his choice. He has a right to do that. He may not believe that some of the things you have done during the course of this trial and this mitigation phase is to his liking, but the Defendant is not entitled to errorless free counsel. He is only entitled to reasonable, competent counsel, both of which I believe you are.

I see nothing in the totality of these circumstances that would cause this court at this date in this trial to further delay this proceeding at a great expense to the state, and great expense to the jurors, and great expense to the court, and at great expense to this Defendant in delaying the further conclusion of this matter.

So with that in mind, I'm going to overrule the motion to prevent [sic] counsel to withdraw from further representation of this case. My choice in this regard is on the understanding . . . at least a suggestion that Mr. Edwards, who hasn't been attacked . . . as aggressively as Mr. Bodiker, would be the lead counsel going into this mitigation phase. And Mr. Bodiker would be playing a more passive role because Mr. Bodiker was the aggressor in the original trial.

(Trial Tr., Vol. 9 at 33-34.)

As noted above, Henness bases his claim of ineffective assistance of trial counsel in the mitigation phase of his trial on the deteriorated relationship with his attorneys, which he contends led to his attorneys' failure to investigate and present relevant mitigation evidence, and their deferral to Henness' wish that mitigation evidence be limited to that relevant to residual doubt. (Petition, Doc. No. 86 at 31-36.) Henness presented his claim to the state court of appeals on direct appeal (Appendix, Vol. 3 at 128-32, Vol. 6 at 10-11), which rejected it finding that "[t]he record strongly suggests that the dearth of mitigation evidence was a result of the demands of the accused rather than counsel's ineffectiveness," State v. Henness, No. 94APA02-240, 1996 WL 52890 at *17-18 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). When Henness pursued his direct appeal to the Ohio Supreme Court, the court reasoned as follows:

[Henness] argues that "personal differences" between him and one of his attorneys prevented his attorneys from adequately preparing for the penalty phase and presenting mitigating evidence. At trial, [Henness] claimed counsel had pursued strategies against his wishes, lied to him, given bad advice, and violated the attorney-client privilege. [Henness] called his lawyers "these clowns" and said he did not trust them. Attorney Bodiker agreed that "hostility and tension" existed between counsel and client.

[Henness] claims that it was because of these differences that his counsel presented so little mitigation. However, counsel investigated and prepared for the penalty phase. Bodiker stated, "we did investigate and * * * do the things that we feel would be appropriate, and we did interview witnesses and we did talk to professional experts." However, [Henness] rejected those efforts. . . .

[Henness'] counsel had filed a list of many witnesses, which included several members of [Henness'] family that they intended to call at the mitigation hearing. The court asked [Henness] if he wanted to call these witnesses. [Henness] stated he did not wish to do so. Hence, we dismiss, as unfounded, [Henness'] assertion that he did not know he could call these witnesses.

This case is unlike State v. Johnson (1986), 24 Ohio St.3d 87 , . . . where this court found that the failure to investigate resulted in the dearth of mitigation evidence. Here, defense counsel presented less evidence than they had discovered by investigation because [Henness] limited the evidence he would allow them to present.

In sum, it is clear that hostility existed between [Henness] and attorney Bodiker even before the mitigation trial. However, at no time did this personality conflict erode Bodiker's representation of [Henness] to the point of rendering it ineffective.

State v. Henness, 79 Ohio St. 3d 53, 65-66, 679 N.E.2d 686 (1997). Henness also presented the same claim in his post-conviction proceedings (Appendix, Vol. 6 at 10-11), but the trial court found it barred by the doctrine of res judicata (Appendix, Vol. 6 at 93-97), and the state court of appeals affirmed, finding that "[n]othing in the affidavits submitted in support of the petition for postconviction relief supply [sic] any new information which, if proved, would entitle [Henness] to postconviction relief," State v. Henness, No. 97APA04-465, 1999 WL 739588 at *5 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). The court of appeals concluded that the "affidavits failed to raise any issues that were not or could not have been raised on direct appeal." Id. Although res judicata is an independent and adequate state procedural rule, which, if relied upon by a state court can preclude habeas corpus review by a federal court,⁷ Henness has adequately preserved his claim for such review by raising it on direct appeal in the state courts, and by those courts' resolution of the claim on its merits. His subsequent submission of the claim to the post-conviction court was undoubtedly his way of covering all the bases respecting preservation of his claim, and does not operate to his detriment even though the claim was rejected there on state procedural grounds.

7 Ohio's doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967) (paragraph seven of the syllabus), is an independent and adequate state procedural ground. Mason v. Mitchell, 320 F.3d 604 (6^th Cir. 2003), citing Coleman v. Mitchell, 268 F.3d 417, 427 (6^th Cir. 2001), Rust v. Zent, 17 F.3d 155, 160-61 (6^th Cir. 1994), and Riggins v. McMackin, 935 F. 2d 790 (6^th Cir. 1991). Also, the Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio St. 3d 112, 114, 443 N.E.2d 169 (1982); State v. Ishmail, 67 Ohio St. 2d 16, 18, 423 N.E.2d 1068 (1981).

Henness' claim fails, however. He first places responsibility for the alleged ineffectiveness of his trial counsel on the trial court, which denied counsel's request to withdraw from representing Henness. (Petition, Doc. No. 86 at 31.) Then he states that counsel should have withdrawn regardless of the trial court's denial of their motion. Id. What Henness suggests is that his prior counsel should have violated Ohio Rule of Prof'l Responsibility DR 2-110(A)(1)⁸, which requires that "[i]f permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission." The Rules also require a lawyer to withdraw if his continued representation would result in the violation of a disciplinary rule, DR 2-110(B)(2), but that argument was made to the trial court (Trial Tr., Vol. 9 at 7), and rejected (Trial Tr., Vol. 9 at 33). Complying with the disciplinary rules of a state by continuing representation after a motion to withdraw has been overruled by the trial court cannot itself constitute ineffective assistance.

8 Replaced February 1, 2007, by Ohio's adoption of the Model Rules of Professional Conduct, but governing at the relevant time.

In addition, the United States Supreme Court has very recently considered the likelihood of success on an ineffective assistance of trial counsel claim where a capital defendant instructed his attorneys not to present any mitigation evidence. In Schriro v. Landrigan, 550 U.S. ___, 127 S.Ct. 1933 (2007), the defendant prevented his counsel from presenting any mitigation evidence, and vocally interfered with counsel's proffer of mitigation evidence counsel was prepared to present. Schriro, 127 S.Ct. at 1937-38. The Court distinguished Schriro from Wiggins v. Smith, 539 U.S. 510 (2003) and Strickland v. Washington, 466 U.S. 668 (1984), noting that in those cases, the focus was on "`whether the investigation supporting counsel's decision not to introduce mitigating evidence'" was reasonable. Schriro, 127 S.Ct. at 1942, quoting Wiggins, 539 U.S. at 523. In fact, the Schriro Court stated that it had never addressed a situation in which a client interfered with counsel's efforts to present mitigation evidence to a sentencing court. Schriro, 127 S.Ct. at 1942. It further distinguished Rompilla v. Beard, 545 U.S. 374, 381 (2005), observing that in Rompilla, "the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented." Schriro, 127 S.Ct. at 1942.

Here, the state supreme court found that Henness, rather than his attorneys, had determined the scope of the mitigation evidence presented and which witnesses were called to testify. State v. Henness, 79 Ohio St. 3d 53, 65-66, 679 N.E.2d 686 (1997). That finding is supported by the record. (Trial Tr., Vol. 9 at 33; Vol. 10 at 45, 53, 116.) The state court also concluded that Henness limited the evidence presented in mitigation. State v. Henness, 79 Ohio St. 3d 53, 65-66, 679 N.E.2d 686 (1997). That finding, too, has support in the record where trial counsel indicated they had proceeded with the mitigation investigation and were ready to present evidence, but that they ultimately had to defer to their client's wishes to present less mitigation evidence than was available. (Trial Tr., Vol. 9 at 15.)

Given Schriro's acknowledgment that the United States Supreme Court had never addressed a situation in which the client interfered with counsel's efforts to present mitigation evidence, the Ohio Supreme Court's decision rejecting Henness' ineffective assistance of trial counsel claim could not have been contrary to or an unreasonable application of federal law as determined by the United States Supreme Court at the time it was rendered. Consequently, Henness is not entitled to habeas corpus relief, and his second ground for relief is denied.

Third Ground for Relief

In his third ground for relief, Henness contends that statements he made to police officers on April 14, 1992, should have been suppressed, as they were made without his having been advised of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966), and after he had requested counsel. (Petition, Doc. No. 86 at 36-41.) Respondent argues the claim is partially procedurally defaulted, and that it is otherwise meritless. (Return of Writ, Doc. No. 98 at 49-54.) Henness does not address Respondent's partial procedural default argument, and instead claims he requested counsel and that his request was ignored. (Traverse, Doc. No. 102 at 24-30.)

The factual basis for Henness' third ground for relief was summarized by the Ohio Supreme Court as follows:

[Henness] was interviewed by Columbus police detectives on April 8, 1992. This interrogation was recorded on videotape. Prior to questioning, [Henness'] rights were explained to him and he waived his right to counsel by executing a standard waiver form. [Henness] was then questioned about the forgeries. Over the course of approximately three hours, [Henness] freely answered questions. Sometime during the interrogation, the detectives began questioning [Henness] about the murder. At this point, [Henness] stated, "I think I need a lawyer because if I tell everything I know, how do I know I'm not going to wind up with a complicity charge?" When the videotape was played to the jury, the tape was turned off just before this statement was made. At this interview, [Henness] insinuated that [Roland] Fair may have been responsible for the murder.

The second statement, recorded on audiotape, was made on April 14, 1992, after [Henness] had telephoned his friend, Teresa Thomas, from jail telling her that if the police came back he would talk to them. Prior to recording this statement, the police read [Henness] his constitutional rights. During this interrogation, [Henness] stated that a gang of Cubans, not Fair, was responsible for the homicide.

State v. Henness, 79 Ohio St. 3d 53, 62-63, 679 N.E.2d 686 (1997).

Respondent addresses her procedural default argument to that portion of Henness' claim in which he contends he was entitled to counsel under the Sixth Amendment to the federal constitution because by the time of his April 14 interrogation, he had been accused of forgery. (Petition, Doc. No. 86 at 40-41.) Henness' presentation of that argument in his petition is lukewarm at best, comprising all of two sentences, and he does not take it up at all in his subsequent filings. In the state supreme court, he presented his Fifth Amendment claim, but only briefly mentioned the Sixth Amendment issue, discounting its significance as follows:

In the discussions that were held with respect to this particular motion, the prosecutor stressed the fact [that] the right to counsel did not officially attach until June 2 [sic], 1992, which is the date of the indictment. The assistant prosecutor was saying the right to counsel, with respect to the Sixth Amendment, does not commence until formal adversarial proceedings are commenced.

Regardless of whether this is the proper rule of law, the issue in this case was not only the Sixth Amendment, but it substantially involved the Fifth Amendment rights that Mr. Henness held directly dealing with his right to counsel.

(Appendix, Vol. 5 at 101.) The foregoing constitutes neither argument nor presentation of the Sixth Amendment claim. A petitioner fairly presents a federal habeas claim to the state courts only if he "`asserted both the factual and legal basis for his claim.'" Hicks v. Straub, 377 F.3d 538, 552 (6^th Cir. 2004), quoting McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276-78 (1971). Thus, Respondent is correct in stating that Henness never presented that portion of his third ground for relief respecting the Sixth Amendment issue to the state courts, and it is to that extent procedurally defaulted.

Henness did present his Fifth Amendment claim to the state courts, however, and the Ohio Supreme Court rejected the claim, determining that Henness' alleged invocation of his right to counsel was ambiguous, and that his written waiver of April 8 was still in effect when officers resumed their interrogation on April 14. State v. Henness, 79 Ohio St. 3d 53, 62-64, 679 N.E.2d 686 (1997).

The Sixth Circuit Court of Appeals has very recently summarized the law with respect to Henness' Fifth Amendment claim.

As guaranteed by the Fifth Amendment to the federal Constitution, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. Amend. V. Of course, . . . [a] criminal suspect is free to offer a confession to authorities, subject to special procedural protections.

"[T]he Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment" require "that a confession be voluntary to be admitted into evidence." Dickerson v. United States, 530 U.S. 428, 433 (2000) (citations omitted). "[T]he advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion." Id. at 434-35 (citation omitted). To address this concern, the Supreme Court "laid down concrete constitutional guidelines for law enforcement agencies and courts to follow," id. at 435 (internal quotation marks omitted), including the procedures announced in Miranda [ v. Arizona, 384 U.S. 436 (1966),] and extended in Edwards [ v. Arizona, 451 U.S. 477 (1981)].

The rule of Edwards — a suspect who is in custody and has asked for a lawyer must not be subject to further interrogation until a lawyer has been provided or unless the suspect initiates a discussion — is "a corollary to Miranda's admonition that if the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Arizona v. Roberson, 486 U.S. 675[, 680] (1988) (internal quotation marks and brackets omitted). It "is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Davis [ v. United States], 512 U.S. [452,] 458 [(1994)] (internal quotation marks omitted). "In the absence of such a bright-line prohibition, the authorities through `badgering' or `overreaching' — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself." Smith v. Illinois, 469 U.S. 91, 98 (1984) (internal quotation marks and brackets omitted); see also North Carolina v. Butler, 441 U.S. 369, 374 (1979) ("Without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."). Moreover, the rule provides "clear and unequivocal guidelines to the law enforcement profession," Roberson, 486 U.S. at 682, and "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness," Minnick v. Mississippi, 498 U.S. 146, 151 (1990).

The rule of Edwards embodies two independent inquiries:

First, courts must determine whether the accused actually invoked his right to counsel. . . . Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.

Van Hook v. Anderson, 488 F.3d 411, 415-16 (6^th Cir. 2007) ( en banc) (parallel citations omitted). Thus, the first question for this Court to consider would normally be whether the state's determination that Henness' unsuccessful attempt to invoke his Fifth Amendment right to counsel was contrary to or an unreasonable application of federal law, 28 U.S.C. § 2254(d)(1), and Henness argues strenuously that it was (Petition, Doc. No. 86 at 36-40). Even assuming, without holding, that Henness is correct, however, his claim fails.

First, even if Henness effectively invoked his right to counsel on April 8, the second interrogation was initiated by him, albeit through a third party. At the suppression hearing, Detective Clarence Sorrell testified that he was on vacation when Henness was arrested. (Trial Tr., Vol. 3 at 277.) Upon his return to work sometime after April 9, he became aware that Henness' phone calls from the jail to Teresa Thomas were being recorded. Id. When he listened to tapes of the recorded phone calls, he heard Henness tell Thomas that "if the detectives would just come and see him he would tell them all about it." Id. at 278. After listening to the tape recordings, Detectives Sorrell and Steve Judy visited Henness and conducted the April 14 interrogation. Id. at 278-79. Sorrell testified that he administered the Miranda warnings to Henness on that date, and that after he had done so, Henness indicated a willingness to talk. (Trial Tr. at 280, 282.) Whether Henness' communication to a third party constitutes initiation of discussions with police was answered by the en banc Sixth Circuit in Van Hook, supra:

While Edwards set out the general rule [respecting a suspect's initiation of discussions with law enforcement following invocation of his right to counsel during a prior interrogation], the [United States Supreme] Court has, when faced with circumstances not addressed in that original decision, both extended the rule, see, e.g., Roberson, 486 U.S. at 687-88 (concluding that Edwards applies when a police-initiated interrogation following a suspect's request for counsel occurs in the context of a separate investigation), and restricted it, see, e.g., Davis, 512 U.S. at 459-60 (concluding that Edwards does not apply when a suspect fails to unambiguously ask for a lawyer). As the Court explained in Dickerson, such refinement in the face of new circumstances is entirely appropriate: "No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by [cases extending and restricting Miranda] are as much a normal part of constitutional law as the original decision." 530 U.S. at 441.

In determining how the general rule of Edwards applies to third-party communications, we begin with our standard for determining when a suspect initiates a discussion. In [ United States v.] Whaley, [ 13 F.3d 963 (1994)] this court held, "[A]n Edwards initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case." 13 F.3d at 967 (reconciling the plurality and dissenting opinions in Oregon v. Bradshaw, 462 U.S. 1039 (1983)). There is nothing inherent in "show[ing] a willingness and a desire" that restricts it to direct communication only. To show something means to manifest, demonstrate, or communicate something. One way to show or demonstrate something is by person-to-person communication. Another way is by person-to-person-to-person communication. While the latter indirect communication may give rise to a question about the accuracy of the received message, any such question is alleviated when the ultimate recipient can ask the original declarant whether the received message is accurate. Thus, a suspect could, consistent with Whaley, communicate a willingness and a desire to talk with police through a third person. Whether the communication is direct or indirect is immaterial — what is important is the impetus for discussion comes from the suspect himself.

Van Hook, 488 F.3d at 417-18 (parallel citations omitted). Consequently, Henness' communication to Thomas that he was willing to talk with police constitutes initiation of discussions. In addition, as the Van Hook court observed, "The propriety of communication through a third party was not before the Court in Edwards, nor has the Court taken up the issue since that decision," 488 F.3d at 417, so this construction of Henness' conversation with Thomas is neither contrary to nor an unreasonable application of federal law as decided by the Supreme Court.

Henness does not claim his waiver of his right to counsel was involuntary, unknowing, or unintelligent at the time, even if, in retrospect, he believes that to be true. Although Henness contends he was not given the Miranda warnings at the outset of the April 14 interrogation, the evidence he offers to overcome the presumption of correctness this Court is mandated to give the state courts' conclusion that he was Mirandized, specifically his own testimony at the evidentiary hearing in these proceedings (Evid. Hrg. Tr. at 9-11), falls far short of the clear and convincing standard imposed by the AEDPA, see 28 U.S.C. § 2254(e)(1).

Thus, if Henness were able to meet his burden under the AEDPA with respect to the state court's finding that his request for counsel was ambiguous, his claim fails regardless. Accordingly, his third ground for relief is denied.

Fourth Ground for Relief

In his fourth ground for relief, Henness contends the prosecutor engaged in misconduct on several occasions in the course of his trial. (Petition, Doc. No. 86 at 55-68.) Specifically, he claims the prosecutor (1) improperly impugned defense counsel, (2) misstated the law respecting marital privilege, (3) referred to an uncharged offense for which Henness was "fortuitously arrested" days after Myers' murder, (4) improperly commented on Henness' exercise of his right to remain silent, and (5) referenced DNA results not in evidence during closing argument which Henness contends shifted the burden of proof to the defense. Id. Respondent argues the third and fifth of Henness' sub-claims have been procedurally defaulted, and that although the rest were properly preserved for habeas corpus review, they are without merit. (Return of Writ, Doc. No. 98 at 55-68.) Henness never acknowledges Respondent's defense of procedural default on the third and fifth sub-claims.

Upon review of the relevant briefs filed by Henness in the state court of appeals and supreme court, the Court agrees with Respondent that Henness never raised his third and fifth sub-claims in those courts on direct appeal. ( See Appendix, Vols. 3 and 5.) That being the case, Henness has procedurally defaulted those sub-claims, and they are accordingly denied.

The remaining comments Henness claims constitute prosecutorial misconduct are, in context, the following:

Impugning Defense Counsel:

When I was in college, . . . a monk by the name of Father Burns . . . said a number of amazing things that as a kid of twenety-one [sic] or twenty-two years old I didn't understand. I used to listen to him lecture and I would scratch my head and say what does he mean by that? One of the things that he would say is when you walk out into the jungle and you see elephant footprints on the trail, I'm assuming in the jungle that an elephant walked by here, he says. But I'm continually amazed as I go about my business in the jungle that other people that I meet point at those footprints and say it is not an elephant. It is a duckbill[ed] platypus wearing elephant shoes that made those prints.

I used to sit back and say to myself what is this crazy old monk talking about. [sic] Why is he standing up there lecturing and saying these things that I don't understand. [sic] Well, little did I know this so many years later Mr. Bodiker would finally explain this to me. There are elephant footprints all over the scene of this crime. There are elephant footprints all over this courtroom. They are as plain as the nose on my face and your face. But yet Mr. Bodiker will stand up here with a straight face and tell you it wasn't an elephant. I can look at those footprints and just tell you right now it is just as logical that a duckbill[ed] platypus with elephant shoes made those footprints. Father Burns, he was right.

(Trial Tr., Vol. 8 at 196-97.)

Misstating the Law Respecting Marital Privilege:

Tabatha Henness. At this point Tabatha Henness is the Defendant's wife. . . . Now, as a wife, you probably are all aware of this, at least in some sense, there is a marital privilege. If the Defendant invokes, that will prevent her from testifying about —

(Trial Tr., Vol. 5 at 22-23.) The prosecutor's argument was interrupted by a defense objection which, after six transcript pages of discussion out of the jury's hearing, was overruled by the trial court, and a warning was given to the prosecutor to "stay away from that statement." (Trial Tr., Vol. 5 at 23-28.)

Improperly Commenting on Henness' Silence

You know, is this a what happened or is this a whodunit it [sic]? Mr. Bodiker stood up here and basically says look, there is no evidence that my client did any of this. But then over here he is saying that gee, you know, whoever did this must have been very emotionally upset and very frightened and they were running away from the man that [sic] was tripping over the locker and the shots are going off. My client didn't do it. Not my client. No evidence to show that my client did this.

Well, maybe Mr. Bodiker's personal crystal ball is working better than mine, okay. Maybe it is. Maybe he's able to divine these things from somewhere that somebody was afraid, somebody was attacking somebody and all of this other stuff is going on. Okay. But all I can do, all I can do is go on the evidence that has been presented here in the courtroom. That's all I can do. I don't have a crystal ball. I can't go back and tell you I know exactly what happened. I think there are things here that tell you what happened.

(Trial Tr., Vol. 8 at 198-99.)⁹

9 It is noted that Henness quotes portions of this excerpt in his petition, without the requisite indicators to reflect his editing of the prosecutor's comments, and with an incorrect citation to Volume 3, page 225 of the trial transcript. ( See Petition, Doc. No. 86 at 44; Traverse, Doc. No. 102 at 33.)

Henness argues those comments by the prosecutor impugned defense counsel, misstated the law respecting marital privilege, and infringed upon his right to remain silent. (Petition, Doc. No. 86 at 43-44.) On direct appeal to the Ohio Supreme Court, Henness made the same claim in his fifth proposition of law. (Appendix, Vol. 5 at 83-87.) The court determined that the issues were "not preserved, involve settled issues, or our independent review cures the error." State v. Henness, 79 Ohio St. 3d 53, 56, 679 N.E.2d 686 (1997). The court of appeals, however, had addressed the same issue on the merits when Henness presented the claim there in his fifth and sixteenth assignments of error. (Appendix, Vol. 3 at 108-11, 206-9.) The appellate court determined as follows:

While we agree that the prosecutor's reference to [Henness]'s possible assertion of his marital privilege was improper, we do not believe that this single improper reference could have affected the outcome of the trial. We note that any discussions concerning the existence and extent of the marital privilege were held outside of the presence of the jury. Moreover, Tabatha Henness did testify extensively in this matter.

Consequently, the record does not indicate that the jury knew [Henness] had invoked the marital privilege or considered [Henness]'s assertion of the privilege in assessing guilt or innocence.

. . .

[Henness] contends that the prosecutor's argument impugned the sincerity of defense counsel, in violation of the rule set forth in State v. Keenan (1993), 66 Ohio St.3d 402. In Keenan, a conviction was overturned by the Supreme Court of Ohio where the prosecutor suggested that defense counsel believed defendant was guilty. In this case, the prosecutor simply suggested that defense counsel's view of the evidence was erroneous. Thus, the facts of this case are distinguishable from those in Keenan.

Similarly, we find no support in the record for [Henness]'s claim that the prosecutor's argument contained an improper reference to the exercise of his Fifth Amendment privilege against self-incrimination. The prosecutor in this case simply argued that [Henness'] self-defense claim was not supported by any evidence. A prosecutor is permitted to comment on the defendant's failure to offer evidence in support of his case. See State v. Watson (1991), 61 Ohio St.3d 1, 9; and State v. Lytle (1976), 48 Ohio St.2d 391, 404.

State v.Henness, No. 94APA02-240, 1996 WL 52890 at *11-12, 15-16 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported).

The Sixth Circuit has articulated the relevant standard for habeas claims of prosecutorial misconduct as follows:

On habeas review, claims of prosecutorial misconduct are reviewed deferentially. Darden v. Wainwright, 477 U.S. 168, 181 (1986). To be cognizable, the misconduct must have "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (citation omitted). Even if the prosecutor's conduct was improper or even "universally condemned," id., we can provide relief only if the statements were so flagrant as to render the entire trial fundamentally unfair. Once we find that a statement is improper, four factors are considered in determining whether the impropriety if flagrant: (1) the likelihood that the remarks would mislead the jury or prejudice the accused, (2) whether the remarks were isolated or extensive, (3) whether the remarks were deliberately or accidentally presented to the jury, and (4) whether other evidence against the defendant was substantial. See Boyle v. Million, 201 F.3d 711, 717 (6^th Cir. 2000). Under [the] AEDPA, this bar is heightened by the deference we give to the . . . [Ohio] Supreme Court's determination of . . . [Petitioner's] prosecutorial-misconduct claims. See Macias v. Makowski, 291 F.3d 447, 453-54 (6^th Cir. 2002) ("If this court were hearing the case on direct appeal, we might have concluded that the prosecutor's comments violated Macias's due process rights. But this case is before us on a petition for a writ of habeas corpus. So the relevant question is not whether the state court's decision was wrong, but whether it was an unreasonable application of clearly established federal law.").

Bowling v. Parker, 344 F.3d 487, 512-13 (6^th Cir. 2003). In addition, an examination of alleged prosecutorial misconduct is performed in the context of the trial as a whole. United States v. Beverly, 369 F.3d 516, 543 (6^th Cir. 2004), citing United States v. Young, 470 U.S. 1, 12 (1985) and United States v. Francis, 170 F.3d 546, 552 (6^th Cir. 1999).

Here, the state court of appeals determined Henness was unlikely to have been prejudiced by the prosecutor's comments. Henness, 1996 WL 52890 at *11-12, 15-16. While Henness disputes the court's conclusion, he does not demonstrate how it is contrary to or an unreasonable application of federal law, as is required under the AEDPA. 28 U.S.C. § 2254(d)(1). Since, as the state court observed, Tabatha Henness did testify at Henness' trial, and that she in fact gave some quite damaging testimony, it is exceedingly unlikely that the jury knew whether Henness had invoked the marital privilege. Without such knowledge, it is difficult to imagine how the jury could have been prejudiced against Henness as a result of the prosecutor's remark. Moreover, Henness contends the prosecutor's comment about who holds the marital privilege was a "blatant misstatement of the law" is unfounded, as noted in this Court's discussion of Henness' first ground for relief, supra. Thus, although Tabatha Henness could elect to testify under Ohio R. Evid. 601(B), Henness holds the privilege under Ohio Rev. Code § 2945.42. Consequently, the prosecutor's comment was not a misstatement of the law, though it was lacking specificity, and improper as found by the state appellate court.

What can the Court say about the prosecutor's talk of "crazy old monks" and duckbilled platypuses and elephant footprints "all over" the courtroom? (Trial Tr., Vol. 8 at 196-97.) The state court of appeals interpreted the rather cumbersome analogy as one attempting to suggest that the defense's view of the evidence was fanciful. See State v. Henness, No. 94APA02-240, 1996 WL 52890 at *15-16 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Henness' contention that the prosecutor actually referred to defense counsel Bodiker as a duckbilled platypus is not borne out by the transcript. Rather, the prosecutor insinuated that the defense case was a mishmash, which is acceptable argument. Cf. State v. David, No. 2005-L-109, 2006 WL 2042919 at *7-8 (Ohio App. 11^th Dist. July 21, 2006) (unreported) (noting the prosecutor's remark that Defendant's story did not pass "the smell test" was fair argument based on the evidence); State v. Baker, No. 13586, 1993 WL 294825 at *5 (Ohio App. 2d Dist. Aug. 6, 1993) (unreported) (concluding that the prosecutor's remark that defense counsel resorted to trickery was fair argument). The use of the analogy of the duckbilled platypus wearing elephant shoes with its fable-like sonance, while peculiar, was not prejudicial to Henness' defense. It was, as the state court found, merely the prosecutor's attempt to convince the jurors that Henness' story about what happened at the crime scene was about as credible and coherent as the story about the duckbilled platypus donning elephant shoes in which to walk around the jungle. Henness has not demonstrated how that conclusion by the state court was contrary to or an unreasonable application of clearly established federal law.

Henness' argument that the prosecutor's reference to the defense's use of a crystal ball in explaining what happened at the crime scene fares no better. In his traverse, Henness acknowledges that the prosecutor was commenting on defense counsel's closing argument in which Henness' attorney referenced Henness' fear at the crime scene. (Doc. No. 102 at 33.) Henness contends that because the prosecutor was in effect telling the jurors he could not imagine Henness' feelings at the scene, he was indirectly commenting on Henness' failure to testify. (Traverse, Doc. No. 102 at 33.)

As noted above, the state court of appeals determined that the point of the prosecutor's "crystal ball" comment was to suggest to the jury that Henness' claim of self-defense was not supported by any evidence. State v. Henness, No. 94APA02-240, 1996 WL 52890 at *16 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Since, as Henness acknowledges, defense counsel first asked the jury to imagine his fear at the scene, the prosecutor's comments merely directed the jury's attention to the fact that defense counsel's argument was lacking evidentiary support, and it was fair rebuttal. Though Griffin v. California, 380 U.S. 609 (1965), prohibits comments encouraging jurors to consider a defendant's silence as evidence of guilt, that does not equate to a prohibition against a prosecutor's fair observation that a defendant has presented a defense short on supporting evidence. The state court's resolution of that part of Henness' claim of prosecutorial misconduct, therefore, was neither contrary to nor an unreasonable application of federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). Consequently, Henness is not entitled to a writ of habeas corpus on that sub-claim.

The Court has reviewed Henness' prosecutorial misconduct sub-claims individually and cumulatively, and found no error in the state court's resolution of the claims warranting habeas corpus relief. Accordingly, Henness' fourth ground for relief is denied.

Fifth Ground for Relief

In his fifth ground for relief, Henness contends the prosecutor engaged in misconduct in the questioning of two witnesses. (Petition, Doc. No. 86 at 48-49.) Henness does not cite to the record, does not cite any federal law, other than rote recitation of various constitutional amendments in the caption of his claim, nor does he explain how the state court's determination on the merits was contrary to or an unreasonable application of federal law. Id. He does not argue the issue in his traverse. In his post-evidentiary hearing brief, he adds nothing to his claim, and instead only cuts and pastes the entire ground for relief from his petition into his brief. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 60-61.) Consequently, Henness has not stated a claim cognizable in habeas corpus; his fifth ground for relief is denied.

Sixth Ground for Relief

In his sixth ground for relief, Henness advances a Brady v. Maryland, 373 U.S. 83 (1963), claim, referencing five "informational summaries," allegedly exculpatory in nature and withheld from the defense by the prosecution, with little or no indication of where they might be located in the record before this Court.¹⁰ (Petition, Doc. No. 86 at 50-51; Traverse, Doc. No. 102 at 38-44; Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 61-63.) Respondent contends the claim has been procedurally defaulted by the state court's rejection of the claim on res judicata grounds. (Return of Writ, Doc. No. 98 at 71.) Henness replies that he has demonstrated cause and prejudice to excuse the default. (Traverse, Doc. No. 102 at 37.)

10 Some items Henness claims are Brady material are identified as exhibits to a deposition, without a record reference to either the exhibit or the deposition as they appear in this record. The Court directs counsel's attention to the General Order Regarding Record References, filed in all capital habeas corpus cases pending in this Court on October 28, 2005.

Henness purported to raise his Brady claim as his seventh claim for relief in his state post-conviction petition. (Appendix, Vol. 4 at 20-21.) There he did not mention any "informational summaries" or other specific material allegedly withheld by the prosecutors at his trial, id., nor did he submit any evidence supporting his claim to the state court. The post-conviction trial court, therefore, concluded that the claim could have been brought on direct appeal, (Appendix, Vol. 4 at 95-96), in spite of the fact that Brady claims are, by their very nature, claims that can only be raised in post-conviction proceedings. Nevertheless, by failing to identify the alleged Brady material, and by presenting his claim without evidence to support it, Henness fell short of actually raising a cognizable Brady claim in his post-conviction proceedings.

A petitioner fairly presents a federal habeas claim to the state courts only if he "asserted both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538, 552 (6^th Cir. 2004), quoting McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971).

In determining whether a petitioner "fairly presented" a federal constitutional claim to the state courts, we consider whether: 1) the petitioner phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; 2) the petitioner relied upon federal cases employing the constitutional analysis in question; 3) the petitioner relied upon state cases employing the federal constitutional analysis in question; or 4) the petitioner alleged "facts well within the mainstream of [the pertinent] constitutional law."

Hicks at 553, citing McMeans, 228 F.3d at 681. As such, Henness' habeas claim is procedurally defaulted as having never been presented to the state courts.

In an attempt to demonstrate cause for his default, Henness states that "[w]ithholding of evidence generally satisfies the `cause' requirement" of Murray v. Carrier, 477 U.S. 478, 488 (1986). (Traverse, Doc. No. 102 at 37.) Henness does not explain how or when the informational summaries were discovered by his defense counsel, however, so this Court is unable to determine whether said summaries were discovered or discoverable at a time when they could have been presented to the state courts. In other words, Henness has failed to demonstrate cause for the procedural default of his claim.

Moreover, Henness' claim would fail regardless. He contends exculpatory or impeachment evidence was contained in the five "informational summaries." (Petition, Doc. No. 86 at 50.) As to the first of the summaries, identified as Informational Summary 31 and attached to the deposition of David Bodiker (see Doc. No. 64), Henness contends he could have impeached the testimony of Tabatha Henness had he known that Tabatha had been involved in a murder in some capacity in the past. (Traverse, Doc. No. 102 at 39.) But Henness did know of the prior murder as is evident from the same informational summary. Henness' mother, who was a source for some of the information in the summary, said she was sure Henness had told her he had knowledge that the prior murder had occurred, and that he even indicated to his mother that he may have been present, although not a participant, at the murder. (Bodiker Deposition, Doc. No. 64, Exhibit 2 at 2.) The Sixth Circuit has said that "[n]o Brady violation exists where a defendant `knew or should have known the essential facts permitting him to take advantage of any exculpatory information.'" United States v. Clark, 928 F.2d 733, 738 (6^th Cir. 1991), quoting United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988). See also, United States v. Mullins, 22 F.3d 1365, 1371 (6^th Cir. 1994) (observing that " Brady is concerned only with cases in which the government possesses information which the defendant does not, and the government's failure to disclose the information deprives the defendant of a fair trial"); United States v. Todd, 920 F.2d 399, 405 (6^th Cir. 1990). Furthermore, Henness' trial counsel stated in his deposition that at the time of trial," [t]here had been some suggestion that Tabatha had done [a murder]. There is also some suggestion that she had . . . been involved in other homicides." (Bodiker Deposition, Doc. No. 64 at 54-56.) Thus, because both Henness and his trial counsel had knowledge of the prior murder, the defense was well armed with the information Henness now claims would have been useful impeaching evidence, and could have availed himself of it at trial had he chosen to do so.

Respondent contends that Informational Summary 31 is made up of hearsay, and therefore would have been of no use to Henness at trial. (Return of Writ, Doc. No. 98 at 72.) Henness professes to be unaware of any rule that Brady material must be admissible, especially when the Brady material is useful for its impeachment value rather than its exculpatory value. (Traverse, Doc. No. 102 at 39.) What he does not acknowledge is that the Sixth Circuit has indicated that there is no violation of Brady, unless the undisclosed materials would have led directly to the discovery of admissible evidence. United States v. Phillip, 948 F.2d 241, 249-50 (6^th Cir. 1991). Henness does not suggest that is the case with respect to the hearsay in the informational summaries. Consequently, even if Henness had preserved his Brady claim for habeas review, it would fail on the merits.

The same can be said of Informational Summary 21, as Henness acknowledges. (Traverse, Doc. No. 102 at 42.) The summary retains value, Henness argues, because it constitutes corroboration of his story that he was upset because Tabatha was running drugs for someone, and that the corroborative evidence came from no less than the police department itself. Id. That the information was contained in an informational summary, however, suggests only that the individual interviewed provided that story to the police; it does not come with the police department's imprimatur of validity or verity. Consequently, Informational Summary 21 contained no Brady material, as anything Henness claims could have been exculpatory or useful for impeachment was information within Henness' knowledge at the time of trial without the prosecutor's disclosure of the summary.

Informational Summaries 36 and 37 (Bodiker Deposition, Doc. No. 64, Exhibits 3 and 4), acknowledge receipt of an anonymous letter to Henness' mother which stated only that she should "[t]ell your son we are serious." Fingerprint and handwriting experts examined the letter and its envelope and found no evidence that the letter was either written or sent to Henness' mother by Henness. Its value in the Brady context, however, is questionable. In his deposition, Henness' defense counsel attempted to explain how the letter, etc., would have been beneficial to the defense case as follows:

Well, obviously, it indicated that — or at least given the timing sequence of when it was sent, it suggests that there were threats against him that were made to his mother, and that someone was threatening him in some manner. I don't know. I mean, I would assume that it had to do with the case in question, but it doesn't say that. And it doesn't say what they were threatening him about. . . . [I]t certainly would be relevant to the fact that there were other people interested in the information about the case, and they were indicating to him that they were serious. I assume — at least I deduce from that — that they were telling him not to implicate them.

(Bodiker Deposition, Doc. No. 64 at 58.) Mr. Bodiker imbues the letter with significantly more meaning than can this Court. There is no foundation for Bodiker's assumption that the letter was related to the murder of Richard Myers in any way, or that other people were interested in information about Henness' case. On the other hand, there are any number of explanations that could be supposed, intuited, or deduced from the letter, but this Court does not and may not rely on such creations to grant habeas corpus relief. See 28 U.S.C. § 2254.

Finally, Informational Summary 39 details the substance of a phone call Henness made in which he asked narcotics officer Christopher Cain to incarcerate an individual, Ivan Cabera, who was already in custody. (Bodiker Deposition, Doc. No. 64, Exhibit 6.) Henness believed Tabatha was engaged in drug trafficking with Cabera. Id. The summary concludes that since Cabera had been incarcerated since two months prior to the Myers murder, he was unlikely to have been involved in the murder. Id.

Henness argues the information in the summary was favorable because it would corroborate some of the information the defense had that Myers was murdered in a drug deal gone awry. (Traverse, Doc. No. 102 at 42.) Again, Henness was certainly possessed of the knowledge that he had made the phone call and the substance of his conversation with Officer Cain. Nothing prevented him from presenting Officer Cain's recollection of the phone call at trial, or in his post-conviction proceedings. Therefore, Informational Summary 39 contains no Brady material.

Henness procedurally defaulted his Brady claim by never presenting it to the state courts, and he has not demonstrated cause for his procedural default. Accordingly, his sixth ground for relief is denied on that ground. Even if the claim were preserved, however, it would fail, each sub-claim individually and cumulatively, for the reasons stated.

Seventh Ground for Relief

In his seventh ground for relief, Henness advances a spoilation of evidence claim. (Petition, Doc. No. 86 at 52.) Specifically, he claims blood evidence collected at the crime scene was destroyed after his trial even though his direct appeal and post-conviction proceedings were still pending. Id. Respondent contends the claim is procedurally defaulted because Henness never raised it in any state court. (Return of Writ, Doc. No. 98 at 75.) Henness rather surprisingly argues that because the claim relies on evidence from outside the trial record, it could not be presented on direct appeal, and that it is consequently unclear whether the claim is subject to procedural default analysis. (Traverse, Doc. No. 102 at 45-46.) Well, yes it is clear. The claim should have and could have been raised in Henness' request for state post-conviction relief, where claims that rely on evidence from outside the trial record may be raised. Ohio Rev. Code § 2953.21. It was not. Therefore, absent a showing of cause for the default and prejudice therefrom, Henness' claim is not amenable to habeas corpus review.

Henness does not attempt to demonstrate cause for his default or prejudice therefrom, however, and relies instead on the suggestion that there may have been other people involved in Myers' murder, that he himself was injured in the incident, and that he "may very well be ultimately innocent of the aggravating circumstances making him eligible for the death penalty in this case." (Traverse, Doc. No. 102 at 46.) Even if others were involved, however, and even if Henness were injured during the murder, neither fact would have been useful in any meaningful way with regard to Henness' guilt or his eligibility for a death sentence. Those facts, if they can be called that, are not inconsistent with Henness' convictions or his death sentence. Thus, Henness' weak attempt to avoid the procedural default of his seventh ground for relief fails.

In addition to being procedurally defaulted, Henness' claim is lacking merit. In Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the United States Supreme Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Henness' encouragement for this Court to infer bad faith on the part of the state in destroying the evidence (Traverse, Doc. No. 102 at 48, 49) is consequently fatal to his claim. Id. Detective Clarence Sorrell stated in his deposition that the suspected blood sample Henness claims was improperly destroyed was disposed of because the property room had no space to store evidence from completed trials, even when the evidence took up very little space, and even where appeals and post-conviction proceedings might still be pending. (Sorrell Deposition, Doc. No. 90 at 40, 43, 54.) The Supreme Court has rejected the notion that a pending discovery request eliminates the necessity of showing bad faith on the part of police when evidence is destroyed, Illinois v. Fisher, 540 U.S. 544, 548 (2004), so it is difficult to fathom why a showing of bad faith might be eliminated because of pending appeals. After all, destroying the evidence in both cases surely deprives the defendant of the use of the evidence in his appeals and post-conviction proceedings just as effectively. Henness has failed to demonstrate that the evidence was destroyed by the state in bad faith. Without such a showing, Henness' claim would fail under the AEDPA even if it were preserved.

Henness' seventh ground for relief is procedurally defaulted, and he has not demonstrated cause and prejudice to excuse the default. The claim is accordingly denied on that basis. In addition, Henness has not made out a credible claim of actual innocence sufficient to overcome the default, and the claim would be meritless even if the default were excused.

Eighth Ground for Relief

In his eighth ground for relief, Henness advances eight sub-claims contending the trial court made erroneous evidentiary rulings. (Petition, Doc. No. 86 at 53-64.) Respondent alleges half of Henness' sub-claims are procedurally defaulted, and that all are meritless. (Return of Writ, Doc. No. 98 at 79-96.) The particulars of each sub-claim, as well as its procedural posture, will be considered in order.

Henness first claims the trial court erred in determining that Tabatha Henness was a competent witness under Ohio Evid. R. 601. (Petition, Doc. No. 86 at 53.) Respondent concedes the claim is preserved for habeas corpus review, but argues it is a matter of state law and is otherwise without merit. (Return of Writ, Doc. No. 98 at 79-84.) Henness contends the trial court's erroneous evidentiary ruling resulted in such prejudice to him that it amounted to a denial of fundamental fairness, and is thus cognizable in habeas corpus. (Traverse, Doc. No. 102 at 51-53.)

Henness raised the claim as his first proposition of law on direct appeal to the Ohio Supreme Court. (Appendix, Vol. 5 at 68-72.) The state court found that Tabatha had effectively elected to testify against Henness and that once chosen, her election could not be revoked. State v. Henness, 79 Ohio St. 3d 53, 57-58, 679 N.E.2d 686 (1997). Henness presented the claim again as his third claim in his petition for post-conviction relief (Appendix, Vol. 6 at 12-13), but the trial court rejected the claim on res judicata grounds (Appendix, Vol. 6 at 93-97). On appeal, the court of appeals concluded as follows:

Based on our review of the record, we conclude that the issue of whether Tabatha Henness was coerced into testifying against her husband was thoroughly explored at trial, and [Henness]'s trial counsel was [sic] given every opportunity to and did ask the witness about possible coercion from the prosecution and the telephone conversations referenced above. We find nothing of substance in the trial counsel's affidavit that goes beyond issues that were thoroughly considered at both the trial and appellate level. Our review of the record, including the evidentiary materials supplied by [Henness] and the transcript of the trial, causes us to conclude that [Henness] has not demonstrated the existence of substantive grounds for relief.

State v. Henness, No. 97APA04-465, 1999 WL 739588 at *4 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). The Ohio Supreme Court subsequently declined jurisdiction. State v. Henness, 87 Ohio St. 3d 1491, 722 N.E.2d 525 (2000).

In these habeas proceedings, Henness has submitted the deposition of Tabatha Henness¹¹ to support his claim that she was an unwilling witness against him at his trial. (Tabatha Henness Deposition, Doc. No. 63.) Tabatha acknowledged exchanging letters with Henness when both were incarcerated between the time of Myers' murder and Henness' trial. Id. at 21-22. In her letters, she informed Henness that she was not going to testify against him at trial. Id. at 22. In a pre-deposition telephone conversation with private investigator Greg Hensley, Tabatha "probably did say" that she felt "kind of pressured to testify" at Henness' trial, id. at 23, but she also stated in her deposition that she testified against Henness because "he done a bad thing, an awful thing," id. at 58. Henness also claims Tabatha's disappearance between her direct and cross-examinations, and her belief that she would have been arrested had she not returned for her cross-examination are evidence that she was not voluntarily choosing to testify against her husband. (Petition, Doc. No. 86 at 54-55.)

11 Tabatha Henness was, at the time of the deposition, known as Tabatha Boyd, but to avoid confusion, she will be referred to as "Tabatha Henness" throughout this decision.

Tabatha's pretrial statements denying an intent to testify against Henness have no effect on her later election to testify. The Ohio Supreme Court found that at the time of her testimony, Tabatha repeatedly acknowledged an understanding of her right to refuse to testify against her husband, and that she was choosing to do so anyway. State v. Henness, 79 Ohio St. 3d 53, 57, 679 N.E.2d 686 (1997). In reviewing the trial court's rejection of Henness' petition for post-conviction relief, the court of appeals also determined that Tabatha's competency to testify was "thoroughly explored at trial," and that Henness' counsel were given "every opportunity to and did ask the witness about possible coercion from the prosecution." State v. Henness, No. 97APA04-465, 1999 WL 739588 at *4 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported).

It is worth noting that at trial, Tabatha testified that her roommate "counselor" had told her she could be fined or jailed if she did not return to the jurisdiction (Trial Tr., Vol. 6 at 56), and that the closest she came to saying she had been threatened by the State was to say that she thought the prosecutor told her she could be arrested, too, id. at 57. Thus, the source of the alleged threat of arrest is questionable.

Furthermore, Henness has produced scant evidence of Tabatha's alleged reluctance to testify at trial in these proceedings. Tabatha's acquiescence in her deposition that she "probably" made a hearsay statement to a private investigator saying she felt "kind of pressured" to testify, is unworthy of any significant weight. Finally, Tabatha's disappearance between her direct and cross-examinations, and her eventual return to court, even if under threat of arrest, does not reflect on her reluctance or willingness to testify against Henness. By Henness' own account, Tabatha was threatened with arrest if she refused to return, not if she refused to testify. (Petition, Doc. No. 86 at 54.) Indeed, at the time, Tabatha believed she could be arrested if she did not return to the jurisdiction, but she explicitly denied that anyone had threatened her about her testimony. (Trial Tr., Vol. 6 at 57.)

For all of those reasons, Henness has failed to demonstrate that the state courts' rejection of his claim was contrary to or an unreasonable application of federal law. Accordingly, his first sub-claim of his eighth ground for relief is denied.

In his second sub-claim, Henness contends the trial court erroneously overruled defense objections to certain portions of Roland Fair's testimony and the prosecutor's improper questions in the course of that testimony. (Petition, Doc. No. 86 at 56.) Respondent advances a procedural default defense, arguing the claim was never presented to the state courts, and that the claim is meritless in any case. (Return of Writ, Doc. No. 98 at 85.) Henness does not contest the default, but claims the ineffectiveness of his appellate counsel provides cause for the default and that the prosecutor's comments were so prejudicial that they were outcome determinative in his case. (Traverse, Doc. No. 102 at 53-54.)

Attorney error amounting to ineffective assistance of counsel does constitute cause. Murray v. Carrier, 477 U.S. 478, 488 (1985). However, the exhaustion doctrine "generally requires that a claim of ineffective assistance of counsel be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default in federal habeas proceedings." Id. at 489. The Supreme Court has held that an ineffective assistance of appellate counsel claim asserted as cause for procedural default of another claim can itself be procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Henness' applications to reopen his direct appeal, which is the only process available in Ohio through which ineffective assistance of appellate counsel claims may be raised, do not include a claim that appellate counsel should have raised the instant issue as error on direct appeal. (Doc. No. 70, Vol. 3 at 88-117, 123-31; Doc. No. 136-5.) Nor is the testimony of Roland Fair and the prosecutor's questioning of him mentioned in Henness' ineffective assistance of appellate counsel claim advanced in these proceedings as his twentieth ground for relief. (Petition, Doc. No. 86 at 82-83.) Since Henness procedurally defaulted his ineffective assistance of appellate counsel claim as it pertains to the questioning of Roland Fair and his testimony, appellate counsel's performance cannot constitute cause for the default of the sub-claim he now advances here.¹² Henness' second sub-claim of his eighth ground for relief is consequently procedurally defaulted and is accordingly denied.

12 Respondent's procedural default argument centers on Henness' failure to file a timely application to reopen his direct appeal in the state court, the state court's reliance on an allegedly independent and adequate state procedural rule in rejecting Henness' application, and the alleged procedural default of the ineffective assistance of appellate counsel claim. (Return of Writ, Doc. No. 98 at 129-30.) In response, Henness argues that the default is excused because at the time of his filing of his application, that procedure was considered part of the direct appeal process, entitling applicants to effective representation. (Traverse, Doc. No. 102 at 90-91.) Concisely, his argument is that the ineffective assistance of his appellate counsel in failing to file a timely application to reopen his direct appeal excuses the procedural default of his ineffective assistance of appellate counsel claim, which in turn excuses the procedural default of his claim respecting the prosecutor's questioning of and the testimony of Roland Fair. None of that matters, however, because Henness has never before claimed that his appellate counsel should have raised the questioning and testimony of Roland Fair as error on direct appeal. So even if Henness' argument were persuasive, it would not reinvigorate the claim he asserts in his second sub-claim of his eight ground for relief here.

In his third sub-claim, Henness contends the trial court erred in denying his request for a transcript of Roland Fair's testimony before the grand jury. (Petition, Doc. No. 56-58.) Respondent concedes the claim is preserved for habeas corpus review, but argues it is without merit. (Return of Writ, Doc. No. 98 at 86.) Henness does not argue the matter in his traverse.

Henness first raised the claim on direct appeal as his seventh assignment of error. (Appendix, Vol. 3 at 115-117.) The court of appeals overruled Henness' claim of error explaining that access to grand jury testimony of a prosecution witness may be denied where the defense asserts only that it needs the testimony to search for inconsistencies that can be used for impeachment. State v.Henness, No. 94APA02-240, 1996 WL 52890 at *11 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Henness reiterated the claim in his subsequent appeal to the Ohio Supreme Court, where it appears as his seventh proposition of law. (Appendix, Vol. 5 at 93-96.) The supreme court characterized Henness' stated need for Fair's grand jury testimony as "mere speculation," and overruled the proposition of law. State v. Henness, 79 Ohio St. 3d 53, 61-62, 679 N.E.2d 686 (1997). The issue was next raised in the state court as Henness' fourteenth claim for relief in his post-conviction petition. (Appendix, Vol. 6 at 34-35.) The post-conviction trial court summarily rejected the claim on res judicata grounds. Id. at 93-97.¹³

13 It occurs to this Court that a claim that one should have received a transcript of a witness' grand jury testimony would be the type of claim that would necessarily rely upon evidence outside the trial record, and that it consequently would be one unsuited for consideration by an Ohio court on direct appeal, and would more properly be considered in post-conviction proceedings, where the introduction of new evidence is permitted. Here, Henness' claim is in the peculiar procedural posture of having been considered on direct appeal on its merits when it probably should not have been, and dismissed on one procedural ground in post-conviction ( res judicata), when it should have been dismissed on another (failure to support the claim with evidence from outside the trial record). Since Respondent remarks not on these circumstances, however, the Court's wonderment is purely academic. Respondent accepts the state courts' decisions on direct appeal as decisions on the merits of the claim, and so this Court will as well.

Henness fails to demonstrate how the state courts' resolution of his claim was contrary to or an unreasonable application of federal law. Instead, he strenuously argues that there were unspecified inconsistencies between Fair's statements to police, grand jury testimony, and trial testimony. (Petition, Doc. No. 86 at 56-58.) With no indication of what those alleged inconsistencies were, this Court cannot arrive at the conclusion Henness urges upon it. Argument, no matter how emphatic, is not enough to call the state courts' determination into question without supporting evidence. Therefore, Henness' third sub-claim of his eighth ground for relief is denied.

In his fourth sub-claim, Henness contends the trial court erred in overruling a defense objection to Robert Curtis' testimony at trial that during a recent phone conversation, Henness had asked him to tell Tabatha that Henness still loved her and did not hold her testimony against her. (Petition, Doc. No. 86 at 58-59.) Respondent argues the claim is both procedurally defaulted and meritless. (Return of Writ, Doc. No. 98 at 88-89.) Henness responds that the default is excused by his appellate counsel's ineffectiveness, and that the error was so prejudicial that it compromised the fairness of his trial. (Traverse, Doc. No. 102 at 57-59.) In the Court's discussion of Henness' twentieth ground for relief, infra, it finds his ineffective assistance of appellate counsel claim is amenable to habeas corpus review. The present claim fails, however, since the Court ultimately finds Henness' ineffective assistance of appellate counsel claim meritless. Since an unsuccessful ineffective assistance of trial counsel claim cannot provide cause for the procedural default of an underlying claim, the instant sub-claim is denied as procedurally defaulted.

In his fifth sub-claim, Henness contends the trial court erroneously overruled a defense objection to Curtis' speculation about the caliber of the weapon he had seen Henness with in the past. (Petition, Doc. No. 86 at 59-61.) Respondent advances a procedural default defense, and also denies the evidence rendered Henness' trial fundamentally unfair because the jury remained free to assess the significance and weight of Curtis' testimony. (Return of Writ, Doc. No. 98 at 90.) Henness claims the ineffectiveness of his appellate counsel excuses his default, and repeats his argument that the erroneous admission of Curtis' testimony deprived him of a fair trial. (Traverse, Doc. No. 102 at 59-61; Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 82-85.)

Since the complained-of error is one that would be apparent from the trial record, Henness should have presented it to the state courts in his direct appeal, something he concedes he did not do. Instead, he identified the issue as one underlying his ineffective assistance of appellate counsel claim in his application to reopen his direct appeal. (Doc. No. 136, Part 5 at 5-6.) As noted above, Henness' ineffective assistance of appellate counsel claim is amenable to habeas corpus review, but meritless. ( See Twentieth Ground for Relief, infra.) Consequently, the performance of Henness' appellate counsel cannot constitute cause to excuse the default of the underlying claims. Accordingly, Henness' fifth sub-claim of his eighth ground for relief is denied as procedurally defaulted.

In his sixth sub-claim, Henness contends that evidence of his use of Myers' credit cards was improperly admitted to show he was of bad character. (Petition, Doc. No. 86 at 61-62.) Respondent argues the claim is both procedurally defaulted and meritless. (Return of Writ, Doc. No. 98 at 91.) Henness responds that the claim was indeed submitted to the state courts and that the state court addressed the merits of the claim, thereby preserving it for habeas corpus review. (Traverse, Doc. No. 102 at 61-62.)

Henness did raise the claim as part of his sixth proposition of law in his direct appeal to the Ohio Supreme Court. (Appendix, Vol. 5 at 87-93.) The state court concluded the evidence of Henness' use of Myers' credit cards after the murder was admissible for non-character purposes, and that it showed Henness' possession of Myers' property soon after Myers disappeared, proving robbery and linking Henness to the murder. State v. Henness, 79 Ohio St. 3d 53, 61, 679 N.E.2d 686 (1997). Henness attacks the state court's reasoning by arguing that "[t]he fact that Petitioner possessed the credit cards does not prove one way or the other that Petitioner was responsible for the aggravated murder of Myers. The use of the credit cards . . . certainly does not show that Petitioner participated in an aggravated murder of Richard Myers." (Traverse, Doc. No. 102 at 62.) What Henness seems to miss is that he was charged with aggravated murder with the specification that the murder was committed while he was committing or attempting to commit an aggravated robbery. (Indictment, Appendix, Vol. 1 at 18-20.) Therefore, even if the evidence of his possession and use of Myers' credit cards were irrelevant to the actual murder, it was relevant to the specifications attending the charges of aggravated murder. Henness has not demonstrated how the conclusion of the state court to that effect was contrary to or an unreasonable application of federal law. Consequently, his sixth sub-claim of his eighth ground for relief is denied.

In his seventh sub-claim, Henness contends the admission of a three-hour videotaped portion of his interrogation on April 8, 1992, deprived him of his right to a fair trial by permitting hearsay statements intended to show his bad character and by denying him the right to confront his accusers. (Petition, Doc. No, 86 at 62-63; Traverse, Doc. No. 102 at 62-64.) Respondent concedes the claim has been preserved, but argues it is first a matter of state law, and second meritless. (Return of Writ, Doc. No. 98 at 92-94.)

Henness presented his sub-claim in two parts to the state court of appeals on direct appeal. Through counsel, Henness claimed the admission of the entire videotape was erroneous because it consisted of irrelevant hearsay. (Appendix, Vol. 3 at 11-12.) In a pro se claim, Henness argued that admission of the videotape violated his right to confront the witnesses against him. (Appendix, Vol. 4 at 191-92.) The court of appeals acknowledged both parts of the claim, but its opinion discusses only the hearsay argument. State v. Henness, No. 94APA02-240, 1996 WL 52890 at *8 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Henness continued his direct appeal in the Ohio Supreme Court, raising the hearsay claim again (Appendix, Vol. 5 at 130-31), but the supreme court summarily dismissed the claim without discussion, State v. Henness, 79 Ohio St. 3d 53, 56, 679 N.E.2d 686 (1997). Thus, the court of appeals' decision is the one to which this Court must apply the AEDPA, and it reads as follows:

Our review of the videotape indicates that many of Detective Judy's alleged hearsay statements were made in the form of hypothetical questions concerning the killer's motive for the crime. In State v. Carter (1995), 72 Ohio St.3d 545, the court held that "true inquiries" by police officers during investigatory interviews are not hearsay statements since they are not offered to prove the truth of the facts assumed by the inquiries. Id. at the second paragraph of the syllabus.

Consequently, many of the detective[']s statements were not hearsay under Carter. However, in some instances, Detective Judy's statements were phrased in terms of his personal belief that Richard Myers' killer committed the murder to fend off Myers' unwanted sexual advances. As such, the statements were inadmissible hearsay. Carter, supra. Nonetheless, we find that the admission of these hearsay statements was harmless beyond a reasonable doubt since the prosecution in this case did not advance any theory that the murder was sexually motivated. The only theory advanced by the state was that defendant robbed and murdered Richard Myers to satisfy his overpowering need for drugs. Accordingly, defendant's . . . [claim is overruled] to the extent that it alleges error regarding the admission of the tape.

State v. Henness, No. 94APA02-240, 1996 WL 52890 at *8 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported).

Evidentiary questions generally do not rise to the constitutional level unless the error was so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6^th Cir. 1988). Henness contends admission of the interrogator's questions and expressions of belief about how or why the murder occurred was an error of just such a magnitude, without explaining how the state court's decision was contrary to or an unreasonable application of any particular provision of federal law as determined by the United States Supreme Court. (Traverse, Doc. No. 102 at 62.) In fact, he never cites federal law in his argument.

This Court agrees with the state court's finding that the interrogating officer's questions are not hearsay evidence, as Henness contends. State v. Henness, No. 94APA02-240, 1996 WL 52890 at *8 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Hearsay is defined in Ohio as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ohio R. Evid. 801(C). As explained by the Ohio Supreme Court in another case, "because a true question or inquiry is by its nature incapable of being proved either true or false and cannot be offered `to prove the truth of the matter asserted,' it does not constitute hearsay as defined by Evid.R. 801." State v. Carter, 72 Ohio St. 3d 545, 549-50, 651 N.E.2d 965, 971 (1995), citing United States v. Vest, 842 F.2d 1319 (1^st Cir. 1988); United States v. Lewis, 902 F.2d 1176 (5^th Cir. 1990). The Sixth Circuit Court of Appeals has also observed that questions do not themselves assert the truth or falsity of a fact, and therefore fall outside the definition of hearsay evidence. United States v. Wright, 343 F.3d 849, 865-66 (6^th Cir. 2003). Henness points to no contrary law from the United States Supreme Court. Consequently, Henness' sub-claim, to the extent it contends admission of the videotaped questions by the police interrogator deprived Henness of his federal constitutional right to a fair trial, is denied.

As for the interrogating officer's expressions of opinion as to how and why the murder took place, Henness' argument again fails. While he makes it clear he disagrees with the state court of appeals' rejection of his claim as harmless error, he neglects to demonstrate any "substantial and injurious effect" from the error. Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). See also Fry v. Pliler, ___ U.S. ___, ___, 127 S.Ct. 2321, 2328 (2007) (holding that "in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht"). Moreover, this Court perceives no "substantial and injurious effect" from the admission of the officer's speculations, given the other evidence against Henness produced at trial. Consequently, Henness' request for habeas corpus relief based on the admission of the officer's comments is unavailing.

Henness also argues that the interrogating officer repeated statements other people had made about Henness' criminal conduct or bad acts, and that those statements were hearsay improperly admitted at his trial via the videotape.¹⁴ (Traverse, Doc. No. 102 at 64.) The unknown individuals' statements and the police officer's repetition of them must each meet the requirements of admissibility under the evidentiary rules in Ohio to have been properly admitted. Ohio Evid. R. 805. That the officer told Henness other people had said negative things about him does not necessarily lead to the conclusion that the things the individuals had said about Henness, and that were admitted into evidence via the videotape, were true. Henness does not even contend the statements of the other individuals were offered at trial for the truth of the matter asserted. He only claims they were "not flattering and they concerned other criminal conduct or bad acts" by him. (Traverse, Doc. No. 102 at 64.) Even if they had been admitted for the truth of the matter asserted, however, most if not all of the negative statements repeated by the officer in his interview of Henness were testified to at trial, so any error in admitting the interview tape would have been harmless to that extent. For instance, one of the first things the officer told Henness during the interview was that people were saying Henness was involved with illegally cashing checks and using credit cards. (Appendix, Videotape of Henness Interview on April 8, 1992, at 11:35pm.) Both Tabatha Henness and Roland Fair testified to that fact at trial, however. (Trial Tr. Vol. 5 at 231; Vol. 6 at 129-30.) Henness' interrogator also told him that after the murder, one gun was traded for crack cocaine. (Appendix, Videotape of Henness Interview on April 9, 1992, at 12:58am.) Tabatha testified to that fact at trial. (Trial Tr., Vol. 5 at 256.) Tabatha and Robert Curtis both testified that Henness had been carrying a small-caliber gun around the time of the murder, as well. (Trial Tr., Vol. 5 at 254; Vol. 6 at 290.) Without an exhaustive cataloging of each and every comment in the videotape that could conceivably be construed as unflattering to Henness, it can be said that the vast majority of all the negative statements were also presented to the jury via live testimony of sworn witnesses at trial. Consequently, even if the police officer's repetition of what others had said about Henness should have been excluded as inadmissible hearsay evidence, the error would be harmless as the evidence was properly put before the jury through sworn testimony subject to cross-examination.

14 The Court's task in evaluating Henness' claim is made infinitely more difficult by Henness' failure to identify the statements, the substance of the statements, or where the statements appear on the three-hour long videotape.

For the same reason, Henness' Confrontation Clause argument fails. When presented to the Ohio Court of Appeals, the court did not address the claim (Appendix, Vol. 4 at 191-92), State v. Henness, No. 94APA02-240, 1996 WL 528900 at *8 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Although it was never submitted to the Ohio Supreme Court, and so it could be argued that it has been procedurally defaulted, Respondent does not advance that defense. Since the state court of appeals had an opportunity to address the claim and chose not to, then, this Court is permitted to address the confrontation clause claim de novo. Vasquez v. Jones, 496 F.3d 564, 569 (6^th Cir. 2007).

"The Sixth Amendment's Confrontation Clause, made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-5 (1965); Davis v. Alaska, 415 U.S. 308, 315 (1974), provides, `in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Ohio v. Roberts, 448 U.S. 56, 62-63 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004); but see Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 1181-82 (2007) (finding that Crawford did announce a "new rule" of procedure, but that it did not amount to a "watershed rule . . . implicating the fundamental fairness and accuracy of the criminal proceeding," and could not be applied retroactively). Without doubt, the clause was intended to eliminate some hearsay evidence from trials, and reflects a clear preference for face-to-face confrontation, including cross-examination, at trial. See California v. Green, 399 U.S. 149, 156-57 and nn. 9 and 10 (1970).

For all this Court knows, however, Henness had the "face-to-face confrontation" at trial that the Constitution guarantees him. Nothing before this Court provides any basis upon which it may be concluded that the amorphous "others" to whom the interrogating officer referred on the videotape were any individuals other than the witnesses presented at trial. It is true that nothing demonstrates they were the same individuals, either, but in habeas corpus the burden of proof is on the petitioner, Garlotte v. Fordice, 515 U.S. 39, 46 (1995), and there is no call to place it elsewhere when the habeas court addresses a claim de novo. In the complete absence of proof that the "others" either were or were not the same individuals who testified at Henness' trial, this Court cannot grant the relief requested.

For the foregoing reasons, Henness' seventh sub-claim of his eighth ground for relief is denied.

In his eighth and final sub-claim, Henness contends the court erred by permitting the coroner to testify on a matter outside his field of expertise. (Petition, Doc. No. 86 at 63-64.) Respondent does not advance a procedural default defense, and instead argues that the state court's decision on the merits of the claim was neither an unreasonable application of nor contrary to federal law. (Return of Writ, Doc. No. 98 at 95-96.)

Henness raised his claim as the first issue in his pro se appellate brief to the court of appeals on direct appeal. (Appendix, Vol. 4 at 188-90.) The court of appeals rejected Henness' claim, reasoning as follows:

In [D]efendant's first "Pro Se Issue," [D]efendant contends that the trial court erred when it permitted the county coroner to offer opinion testimony about matters which were beyond the scope of his expertise. On direct examination, Dr. Patrick Fardal was asked by the prosecutor whether the use of a pillow over the barrel of a gun would decrease the noise made by the firing of the weapon. Over [D]efendant's objections, Dr. Fardal stated that it was possible that a pillow or a silencer could muffle the sound made by the firing of a weapon. While such opinion testimony was arguably beyond the scope of the coroner's expertise we do not agree that the testimony had the effect of portraying [D]efendant as a contract killer, as [D]efendant now contends, since the prosecution did not advance any theory of guilt based on a murder-for-hire scheme. Similarly, we do not believe that there was any danger that the jury would give great weight to this opinion testimony since Dr. Fardal qualified his opinions by using such introductory phrases as[,] "I don't know if I can answer that per se," and "theoretically." (Tr. VII, p. 157-158.) In short, we find the admission of Dr. Fardal's opinion testimony to be harmless beyond a reasonable doubt. Accordingly, [D]efendant's first "Pro Se Issue" is overruled.

State v. Henness, No. 94APA02-240, 1996 WL 52890 at *6 (Ohio Ct.App. 10^th Dist. Feb. 6, 1996) (unreported). Henness did not challenge that part of the court of appeals' decision when he continued his direct appeal process in the Ohio Supreme Court, and a valid argument could be made that the claim was thereby procedurally defaulted. Respondent, however, does not make the argument, which provides this Court with an opportunity to address the merits of the claim.

To put Dr. Fardal's testimony in context, it is helpful to recite from the transcript. The relevant portions of Dr. Fardal's direct examination are as follows:

Prosecutor: The only bullet that actually penetrated the brain was the one to the forehead, is that correct? Dr. Fardal: That is correct. Prosecutor: Was there anything about the wound to the fact that allowed you to make any determination of muzzle-to- target distance? Dr. Fardal: Again there was no soot or stippling around any of those defects either. I would say, without knowing anything else about the situation, just from looking at the naked body, I would say that the gun had to be fired at a greater than two or three feet distance, muzzle-to-target distance. The end of the gun was more than two or three feet away from this individual's face when it was fired. Prosecutor: Now, we have five shots and only one penetrates the brain. Dr. Fardal: That is correct. Prosecutor: The other four are found relatively close to the surface? Dr. Fardal: Yes. Prosecutor: Is that unusual? Dr. Fardal: Yes, it is unusual. I mean, as far as the bullets stopping at his skull and the roof of his orbit, that is a thin bone there. It indicates that something was wrong there, why this ammunition didn't go penetrate his skull. So, for some reason, whatever the circumstances were about those other projectiles, they didn't have enough energy to perforate his skull and cause additional damage. If those ones in the back would have went in [sic], they obviously would have caused damage to the brain, or the one through the eye would have perforated. It was on its way to perforating his brain, but didn't quite make it. For some reason they just stopped there. There was something abnormal. Prosecutor: You indicated that bad ammunition could cause that? Dr. Fardal: Yes. It didn't have enough energy after it got discharged to penetrate bone. Prosecutor: Would something intervening between the muzzle of the gun and the target in effect, slow down the projectile? Dr. Fardal: It can, depending on what it is, sure. Prosecutor: Would something wrapped around the gun decrease the noise that the gun would make when it was fired? . . . Dr. Fardal: Theoretically, it could filter out the soot and powder as it came out, depending on the situation. If you could test fire the gun and the material that it was made out of, it would decrease the amount that was pushed out into the atmosphere. Obviously, if you fired five bullets through the same hole, theoretically some of the powder should filter out. It depends if the fabric was moved, et cetera. Prosecutor: This same sort of filtering, if done with some sort of cloth material, would it affect the sound that the gun would make, how loud the recoil would be? Dr. Fardal: I don't know if I can answer that per se. Silencers on the end of a gun diminishes the sound. Their object is to decrease the sound, being at the end of the muzzle. When things are fired through a pillow, the sound is muffled. It depends on what the fabric is. If you fired it through a pillowcase, I would say the sound would be a lot less impaired than if you fired it through the actual pillow. It is a circumstance of what was used and its effective sound-deadening characteristics. (Trial Tr., Vol. 8 at 155-58.)

The state court of appeals agreed with Henness that Dr. Fardal's testimony respecting silencers and pillows and their impact on the level of noise a gunshot might make was beyond the scope of the doctor's expertise. See State v. Henness, No. 94APA02-240, 1996 WL 52890 at *6 (Ohio Ct.App. 10^th Dist. Feb. 6, 1996) (unreported). Henness takes issue, however, with the court of appeals' determination that since the prosecution never advanced a murder-for-hire theory at trial, the error of admitting Dr. Fardal's testimony about muffling the sound of a gunshot was harmless beyond a reasonable doubt. (Traverse, Doc. No. 102 at 65-66.) Instead, Henness contends, the absence of a murder-for-hire theory amplifies the irrelevance of Dr. Fardal's testimony. Id.

The testimony at issue never even suggests that Myers' was killed as part of a murder-for-hire scheme. It is possible that one or more jurors may have concluded from Dr. Fardal's testimony that some measure to muffle the sound of the gunshots might have been taken by Myer's killer, but to infer that the murder was a contract killing, in the absence of any other evidence or argument to that effect, is a leap this Court is not inclined to attribute to any juror. Surely contract killers are not the only ones who seek to reduce the noise produced by a gunshot during a murder. That a killer took measures to muffle the sound of gunshots, even if irrelevant in Henness' case, does not amount to evidence that compromised the fairness of his trial. Henness argues the testimony was "extremely prejudicial because of the speculation that it would trigger on the part of the jurors" (Traverse, Doc. No. 102 at 65), but saying so does not make it so. In light of the fact that Dr. Fardal acknowledged the limits of his expertise on the subject, and that at least part of the challenged testimony was theoretical, as was noted by the state court of appeals, any prejudice resulting from his testimony about silencers or other methods of muffling the sound of a gunshot was reduced to insignificance. As noted above, evidentiary questions generally do not rise to the constitutional level unless the error was so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6^th Cir. 1988). Henness has not demonstrated that Dr. Fardal's equivocal and irrelevant testimony was so prejudicial that it deprived him of a fair trial. Henness' eighth sub-claim of his eighth ground for relief is denied.

Each of Henness' eight sub-claims have been considered individually and denied. Having found no prejudicial error among them, there is none to cumulate to warrant habeas corpus relief. Henness' eighth ground for relief is denied.

Ninth Ground for Relief

In his ninth ground for relief, Henness contends the trial court rendered the mitigation phase of his trial fundamentally unfair when it refused to permit Henness' counsel to withdraw after the guilt phase was completed. (Petition, Doc. No. 86 at 65-67.) Respondent concedes the claim is preserved for habeas corpus review, but argues it is nevertheless without merit. (Return of Writ, Doc. No. 98 at 97-108.) Henness counters that the trial court's decision was based upon the court's desire to avoid the time and expense of appointing new attorneys to represent him, and that neither provides a valid reason for denying his counsel's request to withdraw. (Traverse, Doc. No. 102 at 67-83, 73, 75.)

Respondent erroneously contends Henness raised the instant claim as his tenth assignment of error on direct appeal to the state court of appeals. (Return of Writ, Doc. No. 98 at 97-98.) That state court claim, however, raised the same issue Henness brings in his second ground for relief in these habeas corpus proceedings, namely that he was deprived of the effective assistance of counsel due to the trial court's denial of his request for new counsel between the guilt and penalty phases of his trial. (Appendix, Vol. 3 at 128-32.) Here, he advances the independent claim of trial court error, which he brought to the state courts as his fifth claim for relief in his request for post-conviction relief.¹⁵ (Appendix, Vol. 6 at 16-17.) That claim was rejected by the trial court on res judicata grounds, id. at 93-97, and affirmed by the court of appeals on the same grounds, State v. Henness, No. 97APA04-465, 1999 WL 739588 at *5 (Ohio Ct.App. 10^th Dist. Sept. 23, 1999) (unreported). Thus, Respondent could have convincingly argued that the claim was procedurally defaulted. Since Respondent has not done so, however, this Court will address the merits of Henness' claim.

15 Henness' second and ninth grounds for relief are so closely related that the prejudice he is required to demonstrate in each would be the same. Consequently, the failure to demonstrate prejudice in one claim would preclude the demonstration of prejudice in the other.

The facts underlying Henness' claim have been recounted in the Court's discussion of his second ground for relief, supra, and need not be repeated here. Henness argues that prejudice from the trial court's arbitrary and capricious refusal to appoint new counsel is apparent from the paucity of mitigation evidence presented. (Traverse, Doc. No. 102 at 68.) But in Henness' second ground for relief, this Court found the state court's conclusion that Henness was the person responsible for defining the scope of the mitigation evidence in his trial was supported by the record. His trial counsel expressed a willingness to proceed with the mitigation phase, but stated Henness himself prohibited them from presenting some of the mitigation evidence they had obtained. (Trial Tr., Vol. 9 at 15.) Thus, the decision about what evidence would be presented in the mitigation phase was made by Henness, not his trial counsel. Henness does not claim that he would have permitted new attorneys, had they been appointed, to present the evidence he prohibited his trial counsel from bringing out in the mitigation phase. In addition, while it is true that the trial court considered the time and expense of substituting counsel, its ultimate decision not to do so rested upon more than just those factors. The court noted that Henness voluntarily chose not to cooperate with his counsel in preparing for the mitigation phase. (Trial Tr., Vol. 9 at 12, 33.)

In Morris v. Slappy, 461 U.S. 1, 14 (1983), the United States Supreme Court "reject[ed] the claim that the Sixth Amendment guarantees a `meaningful relationship' between an accused and his counsel." In Morris, the defendant's initial attorney was hospitalized shortly before trial, and a colleague was substituted. Id. at 5. At the opening of the trial, the defendant, Slappy, told the trial court that although he was satisfied with his new attorney, he did not believe his new counsel had had sufficient time with which to become familiar with his case or to conduct his own investigation. Id. at 6. The new counsel stated he felt he was prepared to go forward with the trial. Id. The trial judge construed Slappy's comments as a motion for a continuance, and denied the motion. Id. On the second day of trial, the same territory was covered again. Id. at 7-8. On the third day of the trial, Slappy expressed dissatisfaction with his new attorney's representation, complaining that the attorney " told me I didn't have no defense to my charges." Id. at 8. When his request that the case be continued until his original attorney was available to represent him was denied, Slappy announced that he would not cooperate with his present counsel. Id. Against counsel's advice, Slappy later refused to take the stand in his own defense, and was ultimately convicted on some, but not all, of the charges against him. Id. at 8-9. A week later, he was tried on the charges left unresolved from the first trial, again refused to cooperate with his attorney, and was convicted. Id. at 9.

In his habeas corpus proceedings, the district court rejected Slappy's claim that the trial court had abused its discretion in denying his request for a continuance. 461 U.S. at 10. The Ninth Circuit Court of Appeals reversed the district court, concluding that the Sixth Amendment right to counsel would "be without substance if it did not include the right to a meaningful attorney-client relationship." Id. at 10, citing Slappy v. Morris, 649 F.2d 718, 720 (9^th Cir. 1981). The United States Supreme Court reversed, stating that the court of appeals' conclusion was "without basis in the law." Morris, 461 U.S. at 13. The Court observed that "[n]o court could possibly guarantee that a defendant will develop the kind of rapport with his attorney — privately retained or provided by the public — that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel." Id. at 13-14.

Morris, of course, was decided in the context of a defendant's request for a continuance to permit his original counsel time to recuperate and represent him at trial, or for his new counsel to become more familiar with the client's case. Many of the considerations pertinent to a continuance under the circumstances of Morris are, however, also relevant when a client seeks to substitute new counsel for old. The timing of the request, any delay in the proceedings, and the inconvenience to the trial participants are all factors for a trial court to consider when deciding either a motion for a continuance or a request for new counsel. Not to be ignored, however, is the reason for the request, as Morris demonstrates. If the attorney-client relationship is such that the attorney is able to provide competent representation, then the client's dislike of or disagreement with his attorney generally cannot provide a basis for a continuance or appointment of new counsel. Otherwise, a defendant could prolong his trial indefinitely, repeatedly claiming not to trust or be able to work with his attorney, regardless of the attorney's preparedness or willingness and ability to provide competent representation to the client, and obtaining an endless parade of new counsel after new counsel.

In Henness' trial, the court went to great lengths to allow Henness to present the witnesses he desired in the mitigation phase of the trial. After nine witnesses had been presented, the court conducted a sidebar conference with Henness and his counsel present to determine if there were any additional witnesses Henness wished to call. (Trial Tr., Vol. 10 at 42.) Henness expressed a disinclination to call Dr. Jeffrey Smalldon, a psychological expert, to the stand, and stated he wanted to call only three more witnesses: David Morris, a Columbus police investigator; Ronald Huston, a fingerprint examiner for the Columbus police; and Dr. Patrick Fardal, the forensic pathologist from the Franklin County Coroner's office who testified in the guilt phase of the trial as well. (Trial Tr., Vol. 10 at 53.) Henness was permitted to call each of those witnesses. Id. at 58-87. As the state court found, Henness himself curtailed the amount of mitigation evidence presented by his trial counsel, and that can hardly form the basis for a finding of trial court error. Consequently, Henness' ninth ground for relief is denied.

Tenth Ground for Relief

In his tenth ground for relief, Henness contends the trial court erred in refusing his request for "a few minutes break" after presentation of the mitigation witnesses to afford him time to prepare his unsworn statement. (Petition, Doc. No. 86 at 68-69.) Respondent argues that the claim is both procedurally defaulted and meritless. (Return of Writ, Doc. No. 98 at 109-10.) Henness does not discuss the claim in his traverse.

Respondent's contention that Henness never presented the claim to the state courts is correct: it was brought neither on direct appeal, nor in Henness' petition for post-conviction relief. Henness makes no attempt to demonstrate cause and prejudice for the default, nor does he argue it should be excused because to do otherwise would result in a miscarriage of justice. Accordingly, Henness' tenth ground for relief is procedurally defaulted and denied on that basis.

Even if that were not the case, however, Henness would have a daunting task demonstrating error or prejudice from the trial court's refusal to grant a continuance a few minutes in duration. Henness' trial commenced on November 5, 1993, and the guilt phase was concluded on December 7, 1993. (Trial Tr. Vol. 1 at 3; Vol. 8 at 286-309.) Henness gave his unsworn statement on the second day of his mitigation hearing, January 11, 1994. (Trial Tr., Vol. 10 at 93-101.) At the very least, then, Henness had from December 7, 1993 to January 11, 1994, in which to prepare his unsworn statement. The denial of a few more minutes in which to prepare, especially given Henness' reluctance to work cooperatively with his counsel ( see Ninth Ground for Relief, supra), does not amount to a an error of constitutional dimension, if error at all.

Henness argues that the trial court's refusal to grant the continuance demonstrated that the court believed Henness to be guilty of the crimes "from the very beginning." (Petition, Doc. No. 86 at 68.) That simply makes no sense. By the time Henness requested the continuance, he had been found guilty by the jury. (Trial Tr., Vol. 8 at 286-309.) The trial court had no vote in that determination, and Henness does not claim that the trial court was biased in its handling of the guilt phase of the trial. The court's stated reason for denying the continuance was because Henness had already had ample time to prepare his unsworn statement. (Trial Tr., Vol. 10 at 89.) Henness has presented no evidence suggesting that explanation was anything other than legitimate, or that the trial court's refusal was in any way arbitrary or unreasonable. Of course, the trial court could have granted the continuance without significant disruption or inconvenience to the court or trial participants, but that is not the test here. Instead, Henness would have had to show that the court's denial of the continuance was contrary to or an unreasonable application of federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). This he has not done. Therefore, his claim would have failed even if he had preserved it for habeas corpus review.

Because Henness never raised his claim in the state courts, has not demonstrated cause and prejudice for the default, and has no non-futile state-court remedy remaining for the claimed error, his tenth ground for relief is procedurally defaulted and is denied for that reason.

Eleventh Ground for Relief

In his eleventh ground for relief, Henness contends that the "total breakdown in communications between he [sic] and his attorneys" caused him to have to decide which witnesses to call in the mitigation phase of the trial, and that the trial court exacerbated the error by denying Henness' request to reopen the mitigation hearing after the jury had retired to deliberate the appropriate sentence. (Petition, Doc. No. 86 at 70-72.) Respondent advances a procedural default defense, and argues in the alternative that the claim is without merit. (Return of Writ, Doc. No. 98 at 111.) Henness does not contest that the claim is procedurally defaulted; indeed, he does not respond to the Warden's arguments at all in his traverse.

Contrary to Respondent's contention that Henness never raised the issue in the state courts, this Court finds he raised the claim as part of his second claim for relief in his petition for post-conviction relief. (Appendix, Vol. 6 at 10-11.) The state trial court rejected the claim on res judicata grounds, id. at 93-97, and that decision was affirmed by the court of appeals, State v. Henness, No. 97APA04-465, 1999 WL 739588 at *7 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). The Ohio Supreme Court declined jurisdiction. State v. Henness, 87 Ohio St. 3d 1491, 722 N.E.2d 525 (2000). In his silence, Henness points to no evidence outside the trial record upon which he relied in his post-conviction proceedings respecting the instant claim. The state court could reasonably have concluded from the absence of evidence outside the record that Henness could have raised his claim on direct appeal. As res judicata is an independent and adequate state procedural rule, Mason v. Mitchell, 320 F.3d 604, 628 (6^th Cir. 2003), that was actually applied in Henness' case, and since Henness does not attempt to demonstrate cause and prejudice for the default, his claim is procedurally defaulted. Thus, although the Court takes a different path than does Respondent, both arrive at the same conclusion. Henness' eleventh ground for relief is denied.

Henness' claim would fail in any case, however. He identifies, and the Court finds, no United States Supreme Court case holding that the refusal of a trial court to reopen the mitigation phase of a capital trial after the jury has begun deliberations implicates a federal constitutional right. Henness' argument at the time for wanting to reopen his hearing was that his mitigation case suffered because he did not trust his attorneys enough to cooperate with them, and that if he had known what the prosecutor was going to argue in closing arguments, he would have put on more or different witnesses. (Petition, Doc. No. 86 at 70-71.) As has been discussed above, Henness' decision not to cooperate with his defense attorneys was his own. As for his desire to present more mitigation evidence in response to the prosecutor's closing argument, that simply is not the usual sequence of events in criminal trials in Ohio. See Ohio Rev. Code § 2945.10. As the law recognizes, the trial court may, in the exercise of its discretion, deviate from the statutory order of proceedings, but absent an abuse of that discretion, the trial court's decision will not be disturbed. Ohio Rev. Code § 2945.10; City of Columbus v. Grant, 1 Ohio App. 3d 96, 439 N.E.2d 907 (Ohio App. 10^th Dist. 1981) (syllabus). Whether a state trial court abused its discretion in refusing to deviate from the normal order of proceedings to accommodate Henness' distrust of his attorneys, and his second guessing of his own decisions respecting which witnesses would testify in mitigation are questions of state criminal procedure law, and do not implicate the federal constitution. Therefore, even if Henness had preserved his claim, it would not be amenable to habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating it is not the province of a federal habeas corpus court to correct errors of state law).

Because Henness procedurally defaulted his claim of error in the trial court's refusal to reopen the mitigation case after the jury began deliberations, his eleventh ground for relief is denied.

Twelfth Ground for Relief

In his twelfth ground for relief, Henness contends the fairness of his trial was undermined by the introduction of gruesome photographs in the mitigation phase of his trial. (Petition, Doc. No. 86 at 73.) Respondent states the claim has been preserved for habeas corpus review, but that the state court's decision on the issue was neither contrary to nor an unreasonable application of federal law. (Return of Writ, Doc. No. 98 at 112-13.) Henness responds that the state court misunderstood his claim as one contending admission of the gruesome photographs in the guilt phase was erroneous, rather than the claim he actually raised challenging admission of the photographs in the mitigation phase. (Traverse, Doc. No. 102 at 83-85; Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 107.)

Henness incorrectly characterizes the claim as it was raised in the state courts. Since improper admission of any evidence is an error that is apparent on the record, Henness would have had to raise his gruesome photographs claim on direct appeal. The only claim relating to gruesome photographs in Henness' appellate brief to the court of appeals, however, never mentions mitigation, and is argued with respect to the guilt phase of Henness' trial. (Appendix, Vol. 3 at 163-64.) Furthermore, the record references included in Henness' claim in the state court are to transcript pages from the guilt phase, not the mitigation phase of his trial. Id. Thus, in spite of Henness' strenuous arguments to the contrary, and Respondent's concession that the claim is not procedurally defaulted, it appears that Henness never raised the issue in the state court. But Respondent has not advanced a procedural default defense, so this Court may address the claim de novo. McKenzie v. Smith, 326 F.3d 721, 727 (6^th Cir. 2003), quoting Hain v. Gibson, 287 F.3d 1224, 1229 (10^th Cir. 2002).

When responding to Henness' claim that the photographs should not have been admitted in the guilt phase of his trial, the state court of appeals agreed that some of the photographs were gruesome, but ultimately determined that their probative value "outweigh[ed] the danger of unfair prejudice" to Henness. State v. Henness, No. 94APA02-240, 1996 WL 52890 at *8 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported). Even accepting the state court's characterization of the photographs as gruesome, however, Henness has not demonstrated error sufficient to warrant habeas corpus relief.

Henness argues that admission of the gruesome photographs in the mitigation phase was a violation of Ohio law, as well as a deprivation of his Fourteenth Amendment right to due process. (Traverse, Doc. No. 102 at 83-85.) Whether state law was violated is irrelevant to a habeas court, however, as Henness acknowledges. Id. at 84, citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A habeas court need only concern itself with whether evidence was introduced in the mitigation phase that was so unduly prejudicial that it rendered the trial fundamentally unfair, contrary to the Fourteenth Amendment's due process clause. Payne v. Tennessee, 501 U.S. 808, 825 (1991).

Henness was charged with, among other things, aggravated murder in the course of a kidnapping (Appendix, Vol. 1 at 18-19). While the gruesome photographs do depict what was left of Myers' finger after it was severed (Doc. No. 39, Photographs marked at trial as State's Exhibit MP4, MP5, MP6), they also show that Myers' hands were bound with wire, which was relevant to the aggravating circumstance with which Henness was charged. Consequently, the photographs, although gruesome, were relevant to the nature and circumstances of the aggravating circumstance¹⁶ with which Henness was charged, and which was appropriately considered by the jury in their sentencing determination. State v. Mundt, 115 Ohio St. 3d 22, 873 N.E.2d 828, 853-54 (2007); State v. Newton, 108 Ohio St. 3d 13, 22, 840 N.E.2d 593 (2006); State v. Jackson, 107 Ohio St. 3d 53, 71, 836 N.E.2d 1173 (2005); State v. Smith, 80 Ohio St. 3d 89, 109, 684 N.E.2d 668 (1997); State v. Wogenstahl, 75 Ohio St. 3d 344, 352-56, 662 N.E.2d 311 (1996); Ohio Rev. Code § 2929.03(D)(1) Furthermore, the United States Supreme Court has rejected the notion that the circumstances of the crime should be excluded from the sentencer's consideration when determining whether to impose a death sentence. Tuilaepa v. California, 512 U.S. 967, 976 (1994). Thus, Henness suffered no deprivation of his federal constitutional right to due process by the admission of the gruesome, but relevant, photographs of Myers' hands and severed finger in the mitigation phase of his trial. His twelfth ground for relief is accordingly denied.

16 An unfortunate choice of words, to be sure, as the Ohio Supreme Court recognized in State v. Wogenstahl, 75 Ohio St. 3d 344, 352-56, 662 N.E.2d 311 (1996).

Thirteenth Ground for Relief

In his thirteenth ground for relief, Henness contends he was denied a fair trial due to the trial court's erroneous decision to allow the prosecutor to introduce evidence of Henness' past criminal convictions for burglary, theft, passing bad checks, receiving stolen property, and escape in the mitigation phase of the trial. (Petitioner, Doc. No. 86 at 74.) Henness characterizes the admission of the evidence as an attempt by the prosecutor to introduce evidence of a non-statutory aggravating circumstance, specifically future dangerousness. Id. Respondent argues the claim is procedurally defaulted because it was raised solely as a matter of state law in the state courts. (Return of Writ, Doc. No. 98 at 115.) Henness does not argue the matter in his traverse, and his argument in his post-evidentiary hearing brief is merely a word-for-word duplication of his claim as set forth in his petition. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 109-10.)

The United States Supreme Court has held that "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 366 (1995). Respecting Respondent's claim of procedural default, the Sixth Circuit has articulated four factors to consider in assessing whether a petitioner has "fairly presented" a federal claim to the state courts as follows::

The federal courts do not have jurisdiction to consider a claim in a habeas petition that was not "fairly presented" to the state courts. Franklin v. Rose, 811 F.2d 322, 324-25 (6^th Cir. 1987). A claim may only be considered "fairly presented" if the petitioner asserted both the factual and legal basis for his claim to the state courts. Id. at 325. This court has noted four actions a defendant can take which are significant to the determination whether a claim has been "fairly presented": (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of [federal] constitutional law or in terms sufficiently particular to allege a denial of a specific [federal] constitutional right; or (4) alleging facts well within the mainstream of [federal] constitutional law. See id. at 326. General allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific [federal] constitutional rights were violated. Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).

McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000). See also Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7^th Cir. 2001) (setting forth four similar factors to consider in determining whether a federal claim was "fairly presented" to the state courts).

In raising his claim in the state courts, Henness referred generally to the federal constitution in the caption of his proposition of law, but referred to no specific right or federal constitutional amendment that had been violated, and cited no federal law in his two-plus pages of argument. (Appendix, Vol. 5 at 116-18.) Instead, he relied on two Ohio Supreme Court cases, both of which relied primarily on Ohio statutory law in their relevant parts, and neither of which cited any federal constitutional law in deciding the appellants' relevant claims. See State v. Jackson, 57 Ohio St. 3d 29 (1991); State v. DePew, 38 Ohio St. 3d 275 (1988). Moreover, Henness argued his claim in the Ohio Supreme Court as one implicating state evidentiary rules rather than the federal constitution, and did not allege facts that were well within the mainstream of federal constitutional law. (Appendix, Vol. 5 at 116-18.) Henness' rote inclusion of a single reference to the federal constitution in the caption of his proposition of law, without mention of any particular clause or amendment or argument relevant to any specific constitutional provision, does not operate to inform the state court that he intended to raise the federal constitutional claim he now wishes to bring to the federal court in habeas corpus. It is worth repeating that Henness passed up the opportunity to persuade this Court otherwise by failing to argue his claim in his traverse, and by merely cutting and pasting his claim from his petition to his post-evidentiary hearing brief. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 109-10.) Thus, after reviewing the record, the Court agrees with Respondent that Henness failed to "fairly present" his federal claim to the state courts, and it is consequently procedurally defaulted. Henness advances no argument that there was cause for his default and prejudice therefrom. His thirteenth ground for relief is accordingly denied.

Even if the claim had been presented to the state court, however, it would fail. Here, Henness cites for support Espinosa v. Florida, 505 U.S. 1079, 1081 (1972), which states that "where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment." Although unstated by either party, it is also true that once an invalid aggravating circumstance is detected by a state appellate court, that court's independent weighing of the remaining valid aggravating circumstances and mitigating factors will cure the sentencing error. Clemons v. Mississippi, 494 U.S. 738, 745 (1990). The Ohio Supreme Court performed its statutory duty to independently weigh the aggravating circumstances and mitigating factors in Henness' case. State v. Henness, 79 Ohio St. 3d 53, 68-69, 679 N.E.2d 686 (1997). In doing so, the court mentioned Henness criminal history only to note that it did not qualify as a mitigating factor, and it was not weighed on the aggravating circumstances side of the sentencing scales. Id. Even so, the court found that the aggravating circumstances in Henness' case outweighed the migitating factors beyond a reasonable doubt, and it affirmed his death sentence. Id. at 69. Therefore, even if Henness had preserved his federal claim for habeas corpus review, and assuming Henness' criminal history constituted a non-statutory aggravating circumstance, the state court's independent weighing cured any error, and the claim would be meritless.

Because Henness procedurally defaulted his thirteenth ground for relief by failing to "fairly present" it to the state courts, it is denied.

Fourteenth Ground for Relief

In his fourteenth ground for relief, Henness contends he was denied a fair trial and due process of law by a guilt-phase jury instruction he alleges required the jurors to consider the lesser-included offense of murder only if they found the state had failed to prove the aggravated murder element of prior calculation and design beyond a reasonable doubt. (Petition, Doc. No. 86 at 75-76.) Respondent inexplicably argues the validity of a unanimity instruction in the mitigation phase, stating that issue is both procedurally defaulted and meritless. (Return of Writ, Doc. No. 98 at 117-19.) As in the prior ground for relief, Henness foregoes the opportunity to argue the procedural status or substance of his claim in his traverse, and simply cuts and pastes the text of the claim into his "argument" in his post-evidentiary hearing brief. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 110-11.)

The parties are arguing apples and oranges. First, Henness argues about an instruction given in the guilt phase of his trial, and attempts to support it with a state supreme court case dealing with a mitigation phase instruction. (Petition, Doc. No. 86 at 75-76.) Then Respondent argues that the mitigation phase instruction claim (the one Henness has not raised in this ground for relief) is procedurally defaulted, and in the alternative that it does not violate the federal constitution. (Return of Writ, Doc. No. 98 at 117-19.) The Court will attempt to separate one fruit from the other.

First, the Court observes that a claim alleging a given jury instruction erroneously stated the law is one that should be raised on direct appeal, as any error would be apparent in the trial record. Henness raised no such claim in his direct appeal, however. Instead, Henness claimed error from the trial court's guilt-phase instruction on lesser-included offenses as his sixth claim for relief in his petition for post-conviction relief. (Appendix, Vol. 6 at 18-19.) Henness made no claim that jurors were erroneously instructed that they must first unanimously reject the death sentence before considering one of the life sentence options in either his direct appeal or his petition for post-conviction relief. The confusion of the two issues appears to have begun in the post-conviction proceedings, however.

As noted, the claim Henness presented to the state courts was that his jury was provided with an erroneous instruction respecting the lesser-included offense of murder, which he raised in his post-conviction petition. (Petition, Doc. No. 86 at 75-76; Appendix, Vol. 6 at 18-19.) The post-conviction trial court rejected the claim as barred by the doctrine of res judicata. (Appendix, Vol. 6 at 93-97.) Henness appealed to the state court of appeals, where he attempted to raise in a reply brief a claim based on the alleged unanimity instruction given in the mitigation phase of his trial. (Appendix, Vol. 6 at 268-72.) The court of appeals noticed the peculiarity of Henness' technique in bringing the mitigation-phase instruction to the court's attention via his reply brief, and addressed the matter "assuming that [A]ppellant actually raised this issue in his motion for post-conviction relief," ultimately rejecting the claim on res judicata grounds. State v. Henness, 97 APA04-465, 1999 WL 739588 at *6-7 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported). The Ohio Supreme Court declined jurisdiction without comment. State v. Henness, 87 Ohio St. 3d 1491, 722 N.E.2d 525 (2000).

Thus, it appears that the two issues, the lesser-included offense claim and the unanimity instruction claim, have been conflated since the state court of appeals' considered Henness' appeal from the denial of his post-conviction petition. Since Henness' seventeenth ground for relief alleges the mitigation-phase jury instruction error, it will be addressed when the Court considers that claim. As for the lesser-included offense instruction claim, the court of appeals acknowledged its having been raised in the post-conviction appeal, but the court did not address the claim. Where there has been one reasoned state court judgment rejecting a federal claim, there is a rebuttable presumption that later unexplained orders upholding the judgment or rejecting the same claim rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Thus, this Court "looks through" the court of appeals' silence to the trial court's reasoning in its resolution of the claim of error. Id. The trial court rejected the claim on res judicata grounds. Ohio's doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967) (paragraph seven of the syllabus), is an independent and adequate state procedural ground. Mason v. Mitchell, 320 F.3d 604 (6^th Cir. 2003), citing Coleman v. Mitchell, 268 F.3d 417, 427 (6^th Cir. 2001), Rust v. Zent, 17 F.3d 155, 160-61 (6^th Cir. 1994), and Riggins v. McMackin, 935 F. 2d 790 (6^th Cir. 1991). Also, the Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio St. 3d 112, 114, 443 N.E.2d 169 (1982); State v. Ishmail, 67 Ohio St. 2d 16, 18, 423 N.E.2d 1068 (1981). Consequently, federal habeas corpus review is precluded unless Henness has demonstrated cause for the default and prejudice therefrom, something he has made no attempt to do. Because the claim is procedurally defaulted, therefore, it is denied.

Henness' claim would fail regardless. The trial court instructed the jury that "if you find that the state failed to prove prior calculation and design beyond a reasonable doubt, you must find the defendant not guilty of aggravated murder and consider the lesser offense of murder." (Trial Tr. Vol. 8 at 249.) The Sixth Circuit has commented as follows:

In a federal habeas action, errors in jury instructions are generally not cognizable unless they deprive [a] petitioner of a fundamentally fair trial. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6^th Cir. 1986). To warrant federal habeas corpus relief based on instructions that were allegedly erroneous under state law, [a] petitioner must demonstrate that the error violated a federal constitutional right. See Cupp v. Naughten, 414 U.S. [141], 146 [(1973)]. The issue . . . is thus not whether the . . . instruction was undesirable or erroneous under Ohio law, but rather whether the instruction, by itself, so infected the entire trial that the resulting conviction violated due process.

Weese v. Turner, 187 F.3d 639, 1999 WL 427151 at *3 (6^th Cir. 1999) (table).

In Weese, the jurors were correctly instructed by the trial court, and what was at issue in the federal case was the verdict form for the lesser-included offense, which read, "[W]e the jury, being duly impaneled and sworn, find the defendant Paul F. Weese, Jr., not guilty of aggravated burglary but guilty of the lesser included offense of burglary." Id. The defendant argued that statement constituted an "acquittal first" instruction, which is prohibited under Ohio law. Id. The Sixth Circuit upheld the district court's rejection of Weese's claim, because (1) the jury was correctly instructed orally on how to proceed respecting the lesser-included offense; (2) there was no reason to believe the jury had even referred to the jury form at issue; and (3) there were no words in the challenged jury form indicating that the decision about the greater offense had to be unanimous. Id. at *4.

Similarly, in Bonnell v. Mitchel, 301 F.Supp.2d 698, 738 (N.D.Ohio 2004), the jury was instructed that "if you find that the State failed to prove prior calculation and design, you must find the Defendant non [sic] guilty of aggravated murder. . . . [Y]ou will proceed with your deliberations and decide whether or not the State has proved beyond a reasonable doubt the elements of the lesser offense of murder." Our sister court denied Bonnell's "acquittal first" claim citing Weese, and noting that nothing in the instructions suggested that Bonnell had to have been unanimously acquitted of aggravated murder before the jury could consider the lesser-included offense of murder. Id. at 740.

The instruction Henness challenges is indistinguishable from those in Weese and Bonnell, and so compels the same result. Thus, were the claim preserved for habeas corpus review, it would nevertheless be meritless. Henness' fourteenth ground for relief is denied because it is procedurally defaulted.

Fifteenth Ground for Relief

Henness' fifteenth ground for relief, in its entirety, is as follows:

Warren K. Henness' Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge refused to instruct the jury at the end of the mitigation phase that it could consider residual doubt as a mitigating factor in its determinaton of whether it should recommend that Warren K. Henness be sentenced to death.

The trial court refused defense counsel's request to instruct the jury regarding residual doubt in spite of the fact that this is a well[-]recognized factor in Ohio. State v. Smith, 61 Ohio St. 3d 284 (1991).¹⁷ State v. Buell, 22 Ohio St. 3d 124 (1986). In State v. Garner, 74 Ohio St. 3d 49, 56-57 (1995), the Supreme Court of Ohio stated that residual doubt was a proper subject of jury consideration during the penalty phase. Since the [s]upreme [c]ourt has now indicated that residual doubt is a proper consideration during mitigation, it was error for the court not to have instructed the jury on residual doubt.¹⁸ This was error so infectious to the entire process, that the Petitioner's constitutional rights were violated. The sentence of death should be vacated.

17 The Ohio Supreme Court actually rejected residual doubt as a mitigating factor in Smith. 61 Ohio St. 3d at 297.

18 Interestingly, Henness does not acknowledge that in the case upon which he relies, the Ohio Supreme Court held as follows:

The overwhelming weight of authority, even in jurisdictions that recognize a capital defendant's right to argue residual doubt, is that a defendant is not entitled to an instruction on residual doubt. See, e.g., Smith v. Black (C.A.5, 1990), 904 F.2d 950, 968; Franklin v. Lynaugh [(1988), 487 U.S. 164,] 173-174. Cf. Lockhart v. McCree (1986), 476 U.S. 162, 181; Carroll v. State (Ala.Crim.App. 1992), 599 So.2d 1253, 1271; People v. Johnson (1992), 842 P.2d 1, 40. We agree with this authority. Garner was not entitled to an instruction identifying residual doubt as a mitigating factor.

State v. Garner, 74 Ohio St. 3d 49, 56-57, 656 N.E.2d 623 (1995) (parallel citations omitted).

(Petition, Doc. No. 86 at 77.) Henness never mentions the claim in any of his subsequent filings. Respondent foregoes a procedural default defense based upon Henness' exclusive reliance on state law when he raised the issue in the state courts ( See Appendix, Vol. 3 at 194-97), and argues instead that the state court's decision, which is also based solely on state law, was neither contrary to nor an unreasonable application of federal law as determined by the United States Supreme Court. (Return of Writ, Doc. No. 98 at 120-21.) Regardless, Henness has not demonstrated that a state trial court's failure to give an instruction on residual doubt as a mitigating factor is in any way improper under the federal constitution.

The United States Supreme Court has stated as follows:

Our edict that, in a capital case, "`the sentencer . . . [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense,'" Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett [ v. Ohio], 438 U.S. [586,] . . . 604 [(1978)]), in no way mandates reconsideration by capital juries, in the sentencing phase, of their "residual doubts" over a defendant's guilt. Such lingering doubts are not over any aspect of petitioner's "character," "record," or a "circumstance of the offense." This Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.

Franklin v. Lynaugh, 487 U.S. 164, 174 (1988). Henness has not presented any law demonstrating that the Supreme Court has backed away from its stated position on residual doubt as a mitigating factor since Franklin, and this Court finds none in its research. Consequently, Henness' fifteenth ground for relief is denied.

Sixteenth Ground for Relief

In his sixteenth ground for relief, Henness advances a familiar capital habeas corpus claim, contending that the trial court committed constitutional error when it instructed the jury it could consider all the guilt-phase evidence in its sentencing-phase deliberations. (Petition, Doc. No. 86 at 78.) Respondent argues the claim is both procedurally defaulted and without merit. (Return of Writ, Doc. No. 98 at 122.) Henness does not mention his sixteenth ground for relief in subsequent filings, except to cut and paste the text of his claim from his petition to his post-evidentiary hearing brief. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 111-12.)

Respondent's procedural default defense is based upon Henness' never having raised the claim in the state courts. (Return of Writ, Doc. No. 98 at 122.) That is accurate, and the claim is procedurally defaulted. Henness has made no attempt to demonstrate cause and prejudice to excuse the default. Consequently, his sixteenth ground for relief is denied.

Even if Henness' claim were preserved for review, however, it would not provide a basis for habeas corpus relief. Henness's argument is that the instruction to the jury to consider all of the evidence presented in both phases of his trial was contrary to Ohio law. (Petition, Doc. No. 86 at 78.) As the United States Supreme Court has held on numerous occasions, "federal habeas corpus does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and citing Pulley v. Harris, 465 U.S. 37, 41 (1984). Henness' "argument" that the error was so significant that it implicated the federal constitution is contained in one sentence: "This instruction by itself so infected the entire trial that the resulting conviction and sentence of death violated Petitioner's constitutional rights." (Petition, Doc. No. 86 at 78.) Henness' declaration of a violation of constitutional magnitude does not constitute a demonstration of the violation. Moreover, he cites no federal law to support his proposition, and the Court finds no support for it in its own research. Consequently, even if Henness' claim were not procedurally defaulted, it would not entitle him to habeas corpus relief.

Seventeenth Ground for Relief

In his seventeenth ground for relief, Henness contends the jurors were instructed that they must first unanimously reject the death sentence before considering any of the life sentence options available. (Petition, Doc. No. 86 at 79.) Respondent argues the claim has been procedurally defaulted since it was never presented to the Ohio courts, and that in the alternative, it is without merit. (Return of Writ, Doc. No. 98 at 123-24.) Henness does not dispute the default, but contends it is excused by the ineffectiveness of his appellate counsel. (Traverse, Doc. No. 102 at 85-88.)

In his application to reopen his direct appeal in the state court, Henness argued his appellate counsel provided ineffective assistance when they failed to raise as error on direct appeal the trial court's challenged jury instruction. (Doc. No. 136-5 at 5; Doc No. 136-6 at 1.) The state court rejected Henness' application because it was grossly out of time and Henness had not made the necessary showing of good cause for the delay. (Doc. No. 70, Vol. 3 at 207-11.) In this Court's consideration of Henness' twentieth ground for relief, infra, however, his ineffective assistance of appellate counsel claim is denied as meritless, so his appellate counsel's ineffectiveness cannot constitute cause for default of the instant claim. Being procedurally defaulted, Henness' seventeenth ground for relief is denied.

Eighteenth Ground for Relief

In his eighteenth ground for relief, Henness argues the trial court improperly considered prior calculation and design as an aggravating circumstance when weighing the aggravating circumstances against the mitigating factors as part of its independent sentence review. (Petition, Doc. No. 86 at 80.) Respondent concedes the claim is not procedurally defaulted, but contends the state courts' handling of the issue was in line with rather than contrary to United States Supreme Court law. (Return of Writ, Doc. No. 98 at 125-27.) Henness does not argue the claim in his traverse or in subsequent briefs.

Henness cites no federal law in support of his proposition, other than his bare mention of the Fifth, Sixth, Eighth, and Fourteenth Amendments in the caption of his claim. (Petition, Doc. No. 86 at 80.) He contends the state court of appeals "agreed" that the trial court improperly weighed prior calculation and design, id., but what the court actually wrote was that "the trial court may have improperly considered prior calculation and design," and that any error was corrected by the appellate court's independent weighing of the aggravating circumstances and mitigating factors, State v. Henness, No. 94APA02-240, 1996 WL 52890 at *16 (Ohio App. 10^th Dist. Feb. 6, 1996) (unreported) (emphasis added). Henness gives no explanation how or why the state court's decision should be deemed contrary to or an unreasonable application of federal law as articulated by the United States Supreme Court in Clemons v. Mississippi, 494 U.S. 738, 748-49 (1990), where the Court determined that errors by the sentencing court in weighing aggravating and mitigating factors can be cured by a state appellate court's independent sentencing evaluation. Because Henness has not demonstrated that the state court of appeals' decision respecting his claim was contrary to the federal constitution, he is not entitled to habeas corpus relief, and his eighteenth ground for relief is denied.

Nineteenth Ground for Relief

In his nineteenth ground for relief, Henness advances a claim of cumulative error flowing from the alleged errors contained in his third and seventh through eighteenth grounds for relief, above. (Petition, Doc. No. 86 at 81.) Finding no prejudicial error demonstrated in those grounds for relief, there is none to cumulate. Accordingly, Henness' nineteenth ground for relief is denied.

Twentieth Ground for Relief

In his twentieth ground for relief, Henness contends his appellate counsel were ineffective because they failed to raise as error on direct appeal (1) trial counsel's failure to hire an experienced investigator to assist in the pretrial preparation, (2) trial counsel's failure to call Henness as a witness in the pretrial hearing on his motion to suppress evidence, (3) the trial court's error in admitting certain of Robert Curtis' testimony, (4) the trial court's failure to exclude Curtis' speculative testimony about the caliber of gun he had seen in Henness' possession prior to the murder, (5) the trial court's refusal to grant a continuance so Henness could prepare his unsworn statement, (6) erroneous jury instructions in the mitigation phase of the trial, and (7) trial counsel's failure to file a motion to suppress the circumstances of Henness' stop and arrest. (Petition, Doc. No. 86 at 82-83.) Respondent's argument in her return of writ appears to have overlooked Henness' application for reopening in the state courts, and argues instead that Henness' claim is procedurally defaulted since it was never exhausted in the state courts and Henness has no adequate or non-futile state remedy left to pursue. (Return of Writ, Doc. No. 98 at 129-30.) Henness counters that he did indeed file an application for reopening in the state court of appeals, citing Doc. No. 70, Vol. 3. (Traverse, Doc. No. 102 at 88-90.) He seems to acknowledge the procedural default of the claim but, in a bit of circular reasoning, contends that the ineffectiveness of his appellate counsel itself provides cause for the default of his ineffective assistance of appellate counsel claim, and that appellate counsel's failure to file the application is "definite proof" of appellate counsel's ineffectiveness. Id. at 90-91. In his traverse, Henness reminds the Court of Landrum v. Anderson, 185 F.Supp.2d 868 (S.D. Ohio 2002), in which the Court held Ohio's rule respecting the timeliness of Ohio R. App. Proc. 26(B) applications was not at that time an independent and adequate state rule for habeas corpus procedural default analysis purposes.

In her post-evidentiary brief, Respondent implicitly acknowledges that Henness had filed his application to reopen his direct appeal in the state court of appeals, but contends Henness' claim is still procedurally defaulted because the application was untimely and because Henness did not appeal the court of appeals' denial of the application to the Ohio Supreme Court (Respondent's Post-Evidentiary Hearing Brief, Doc. No. 107 at 37.) Henness ignores Respondent's new procedural default argument in spite of Respondent's misstatement that he had failed to pursue an appeal in the Ohio Supreme Court¹⁹ (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 114-16), and instead emphasizes that the Ohio Supreme Court's enforcement of the timeliness requirement for applications to reopen a direct appeal has been erratic, eliminating the rule as an independent and adequate state procedural rule upon which to base a procedural default in a federal habeas corpus case. Id. at 116.

19 Although Respondent corrects her initial oversight of Henness filing his 26(B) application to reopen, she mistakenly states he did not pursue an appeal in the Ohio Supreme Court from the court of appeals' denial of that application. Henness' appeal to the Ohio Supreme Court was filed on July 8, 2002 (Doc. No. 136-3 at 1), but as noted elsewhere, there is nothing in the record, or in the Court's own research, that indicates what happened to Henness' appeal in that court.

The ineffectiveness of his appellate counsel cannot constitute cause for his procedural default of his application to reopen his direct appeal, as Henness contends, because he was not entitled to counsel in pursuing his application for reopening. Lopez v. Wilson, 426 F.3d 339, 352 (6^th Cir. 2005) ( en banc). Henness' claim is not procedurally defaulted, however.

The Sixth Circuit Court of Appeals recently performed a searching review of the Ohio Supreme Court's enforcement of the timeliness requirement of Ohio R. App. Proc. 26(B). The court noted that "[f]or several years following the enactment of . . . Rule 26(B), the Ohio Supreme Court regularly enforced the rule's timeliness requirements," citing nine cases spanning the years between 1995 and 2000. Franklin v. Anderson, 434 F.3d 412, 420 (6^th Cir. 2006). The court went on to observe, however, that in 2000 the state court began addressing applications to reopen on their merits in spite of their untimeliness, even when a state appellate court had already denied the application on timeliness grounds. Franklin, 434 F.3d at 420-21 (citing nineteen Ohio Supreme Court decisions from 2000 to 2004 in support.) The Ohio Supreme Court reversed course again and began to affirm dismissals of applications to reopen in capital cases on timeliness grounds in more recent years. Id. at 421 (citing three 2004 supreme court cases in support). Henness' application to reopen his direct appeal falls squarely within the period during which the timeliness rule was not being enforced by the Ohio Supreme Court in capital cases, so the rule was not one that was regularly followed when Henness filed his 26(B) application.

Recall that Maupin, supra, identified a four-part test with which to determine whether a claim presented to the state courts has been procedurally defaulted for habeas corpus purposes. First, there must be a state procedural rule applicable to the petitioner's claim with which the petitioner failed to comply; second, the habeas court must decide whether the state courts actually enforced the state procedural rule; third, the habeas court must decide whether the state procedural rule relied upon is an independent and adequate state ground; and fourth, if the federal court determines that prongs one through three have been met, it must decide whether the petitioner has shown cause for the default and prejudice therefrom. Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986). In order to constitute an independent and adequate state ground sufficient to preclude federal review of a claim, the rule must have been "firmly established and regularly followed" at the time it was applied. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Because the Ohio Supreme Court was not enforcing the timeliness requirement of Ohio R. App. Proc. 26(B) at the time Henness filed his applications to reopen his direct appeal, and was in fact ignoring the lower state courts' enforcement of the rule, it cannot constitute an independent and adequate state ground upon which to preclude federal habeas corpus review. Franklin, 434 F.3d at 418. Thus, Henness' ineffective assistance of appellate counsel claim has not been procedurally defaulted.

Nevertheless, each sub-claim fails on its merits. Henness' first sub-claim, that his appellate counsel were ineffective for failing to raise as error on appeal trial counsel's failure to hire an experienced investigator to assist in pretrial preparation, would have required appellate counsel to submit to the court of appeals the evidence that would have been presented had an adequate investigation been conducted, as noted in the Court's discussion of Henness' first ground for relief. As such, a claim of trial counsel's ineffectiveness on that issue would not have been one that could have been raised on direct appeal since claims raised on direct appeal in Ohio must be apparent on the trial record. Ohio R. App. Proc. 9(A), 16(A)(7). Henness' second and fifth sub-claims, that his appellate counsel were ineffective for failing to raise as error on direct appeal his trial counsel's failure to call Henness as a witness at the pretrial suppression hearing, and that the trial court erred in denying Henness' request for a continuance to prepare his unsworn statement, fail for the same reason. Both sub-claims would necessarily require consideration of evidence from outside the record for their success, and so were not claims properly presented to the court of appeals on direct appeal. Appellate counsel cannot be faulted for failing to bring claims that would have had no possibility of success on direct appeal. Thus, Henness' first, second, and fifth sub-claims are meritless, and are denied.

In his third and fourth sub-claims, Henness contends his appellate counsel were ineffective for failing to raise as error on direct appeal the trial court's erroneous admission of Robert Curtis' testimony regarding the telephone conversation Curtis had with Henness in which Henness professed his love for Tabatha and stated he would not hold her testimony against her, and Curtis' speculative testimony about the caliber of gun he had seen Henness with in the days preceding the murder. (Petition, Doc. No. 86 at 82-83.)

In order to succeed on his ineffective assistance of appellate counsel claim, however, Henness must demonstrate prejudice from trial counsel's failure to object to Curtis' testimony. Strickland v. Washington, 466 U.S. 668, 694 (1984). Exactly how the objected-to testimony could have prejudiced Henness is a mystery to the Court, despite Henness' contention that it bolstered Tabatha's testimony. That Henness said he still loved his wife after her testimony and was not going to hold it against her that she had testified for the prosecution suggests neither that Tabatha had testified truthfully nor that she had perjured herself. Nor does it shed any light on whether Henness was guilty or not guilty of the offenses charged. In short, it is as Respondent contends: "so benign that it is simply impossible for it to [have] violate[d] Henness' right to a fundamentally fair trial." (Return of Writ, Doc. No. 98 at 89.)

In the same vein, Curtis was not the only person to testify about the caliber of weapon Henness possessed prior to the murder. Tabatha Henness also testified that the weapon Henness had around the time of the murder was a .22 or .25 caliber handgun. (Trial Tr., Vol. 5 at 256.) Thus, Henness would not be able to demonstrate prejudice sufficient to succeed on his claim from the admission of the same testimony from Robert Curtis. It is noted that Henness does not argue here that admission of Tabatha's testimony on the caliber of the gun was the result of trial court or attorney error.

Because Henness cannot demonstrate prejudice from the admission of the complained-of testimony, he is also unable to show that the claims of error were likely to be successful had his appellate counsel brought them to the attention of the state courts on direct appeal. Accordingly, Henness' third and fourth ineffective assistance of appellate counsel sub-claims are denied.

Henness' sixth sub-claim fails for the same reason. He contends the following jury instruction, given in the mitigation phase, impermissibly required the jurors to unanimously reject death as an appropriate sentence before they could consider any of the life options. (Petition, Doc. No. 86 at 79-80.)

[T]he existence of mitigating factors does not preclude or prevent the death sentence, if you find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. However, if you are not convinced by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, then you must choose one of the two live [sic] sentences.

You shall sentence the Defendant to death only if you unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.

If you do not so find, you shall unanimously sign a verdict of either life with parole eligibility after serving 20 full years of imprisonment or a sentence of life with parole eligibility after serving 30 years of imprisonment.

(Petition, Doc. No. 86 at 79, quoting Trial Tr., Vol. 10 at 22-23.) He argues that his appellate counsel were ineffective for failing to raise as error on direct appeal the impropriety of the quoted jury instructions.

The Sixth Circuit has recently distinguished an improper instruction such as, "if after considering all of the relevant evidence . . . you find that the State failed to prove . . . that the aggravating circumstances outweigh the mitigating factors, you will then proceed to determine which of [the] possible life imprisonment sentences to recommend" from a proper instruction such as, "if after considering all of the evidence . . . you cannot unanimously agree that the State . . . proved beyond a reasonable doubt that the aggravating circumstances . . . outweigh the mitigating factors, then you'll return your recommendation reflecting . . . which of the three possible life imprisonment sentences to impose." Hartman v. Bagley, 492 F.3d 347, 364 (6^th Cir. 2007). The challenged instruction in Henness' case bears greater resemblance to the second example than the first, and does not require jurors to unanimously reject death as an appropriate sentence before considering a life sentence. Moreover, Henness does not argue that the challenged instruction violated state law or that, if presented to the state courts as a state law claim, there is a reasonable probability that the outcome of his direct appeal would have been different. Strickland, 455 U.S. at 694. Henness has failed to demonstrate his appellate counsel's ineffectiveness respecting the challenged jury instruction. His sixth ineffective assistance of appellate counsel sub-claim is consequently denied.

Finally, in his seventh sub-claim, Henness contends his appellate counsel should have raised as error on appeal the ineffectiveness of his trial counsel for their failure to file a motion to suppress the circumstances of Henness stop and arrest. (Petition, Doc. No. 86 at 82-83.) Henness argues that the anonymous tip that led to his arrest was unreliable because the anonymous tipster did not predict any future behavior on Henness' part that the arresting officer could observe to be in compliance with the tipster's information. (Petition, Doc. No. 86 at 27-29.) Henness likens his case to Alabama v. White, 496 U.S. 325 (1990), in which an anonymous telephone tip provided police officers with information and a prediction of future activity by the subject of the tip that the officers observed to be accurate prior to stopping the vehicle in which the subject was traveling. Id. at 327.

The circumstances surrounding Henness' stop and arrest, however, are distinguishable from those in Alabama. First, "[a] face-to-face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip, as the officers who receive the information have an opportunity to observe the informant's demeanor and perceived credibility." United States v. Heard, 367 F.3d 1275, 1279 (11^th Cir. 2004), citing United States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000), United States v. Christmas, 222 F.3d 141, 144 (4^th Cir. 2000), and United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9^th Cir. 1978). In addition, the tipster in Henness' case alleged criminal activity that occurred in the very recent past, see e.g., Ohio Rev. Code §§ 2917.11(A)(1), 2917.31(A)(2), rather than was the case in Alabama, where the telephone tipster predicted the subject's coming and going from one place to another in a particular vehicle, and stated the subject would be carrying cocaine. 496 U.S. at 327. The Fourth Circuit Court of Appeals has recognized that "`standards of reliability should not prevent appropriate action when a victim of a crime [or witness to a crime] immediately has contacted the police.'" United States v. Valentine, 232 F.3d 350, 355 (4^th Cir. 2000), quoting United States v. Gorin, 564 F.2d 159, 161 (4^th Cir. 1977). In Henness' case, an officer testified that he was completing a report on an unrelated matter when an individual approached him and told him that a man in a green trench coat had threatened to shoot him, and gave the officer the location of the other man. (Trial Tr., Vol. 6 at 312.) The officer proceeded toward where the individual was reported to be, and saw a man attired as reported coming toward him. Id. The officer instructed Henness to stop, then conducted a pat-down search, finding a knife in Henness' right front coat pocket. Id.

Thus, the facts that increase the reliability of the informant's report include that he provided the information to the police officer in a face-to-face interaction, risking his anonymity, permitting the officer to weigh his credibility and demeanor, and exposing himself to any consequences that might flow from a false report of criminal activity to the officer, or to retaliation from Henness if the information were not true.²⁰ Heard, 367 F.3d at 1279; United States v. Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000); Valentine, 232 F.3d at 354-55. See also Florida v. J. L., 529 U.S. 266, 276 (2000) (Kennedy, J., concurring, noting that "[a]n instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring."). In addition, the report was one of recent past and perhaps even ongoing criminal activity rather than a prediction of future criminal acts. J.L., 529 U.S. at 276 (Kennedy, J., concurring); Thompson, 234 F.3d at 728-29 (observing that "a tip [must] be reliable in its assertion of illegality, not just in its tendency to identify a determinate person" and citing Adams v. Williams, 407 U.S. 143, 147 (1972) in noting that the recency and proximity of a tipster's claimed observation further suggested that it would prove accurate). Thus, Henness' trial counsel were not providing representation below the standards of the profession when they decided not to challenge the validity of the officer's stop, search, and arrest of Henness, and appellate counsel cannot be faulted for failing to raise as error a claim that is without merit. Accordingly, Henness' seventh sub-claim is denied.

20 The Court recognizes that the officer did not obtain the name or any other identifying information from the informant prior to approaching Henness, perhaps due to the exigency of the situation, (Trial Tr., Vol. 6 at 319), but it cannot be assumed that the informant would know the officer would proceed in that manner, so the risk of such consequences was, though ultimately nonexistent, real at the time of his report to the officer. "What matters for our purposes is not that the officers could guarantee that they could track down the informant again. As the Supreme Court has said in cases like [ Illinois v.] Gates, [ 462 U.S. 213 (1983),] the question is whether the tip should be deemed sufficiently trustworthy in light of the total circumstances. Valentine, 232 F.3d at 355.

In the end, Henness has failed to demonstrate that his appellate counsel's representation was below the "wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984) Accordingly, his twentieth ground for relief is denied.

Twenty-first Ground for Relief

In his twenty-first ground for relief, Henness contends he is "actually innocent of premeditated aggravated murder and thus, is actually innocent of the death penalty." (Petition Doc. No. 86 at 84.) He cites no law in the caption or text of his argument. Id. Consequently, he has not alleged a violation of his federal constitutional rights that could entitle him to habeas corpus relief. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Accordingly, Henness' claim is denied.

Even if Henness had attempted to make out a federal constitutional violation, however, he would not have succeeded. A claim of actual innocence absent an independent constitutional violation in the trial proceedings is insufficient to warrant habeas relief. Herrera v. Collins, 506 U.S. 390, 400 (1993). Henness' claims that Tabatha Henness' testimony should not have been admitted and that his statements to police should have been suppressed have been found meritless, and so do not amount to the constitutional violation that might unite with his "actual innocence" claim to warrant habeas corpus relief. Moreover, Henness has presented no new reliable evidence that would have an impact on reasonable jurors. See House v. Bell, ___ U.S. ___, ___, 126 S.Ct. 2064, 2077 (2006) (observing that "`[t]o be credible' a gateway claim requires `new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial,'" citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). Finally, the Supreme Court has recognized that the freestanding miscarriage of justice exception has been eliminated by the AEDPA. Williams v. Taylor, 529 U.S. 420, 433 (2000). For all of these reasons, Henness' twenty-first ground for relief is denied.

Twenty-second Ground for Relief

In his twenty-second ground for relief, Henness contends the proportionality review by the Ohio appellate courts mandated by statute is unconstitutional. (Petition, Doc. No. 86 at 85-88.) His claim is indistinguishable from the proportionality claims by other petitioners which have been denied.

There is no federal constitutional requirement for proportionality review in capital cases. Pulley v. Harris, 465 U.S. 37, 44-45 (1984). Ohio's proportionality review system complies with the dictates of the Due Process Clause. Williams v. Bagley, 380 F.3d 932, 962 (6^th Cir. 2004), citing Smith v. Mitchell, 348 F.3d 177, 214 (6^th Cir. 2003); Wickline v. Mitchell, 319 F.3d 813, 824 (6^th Cir. 2003); Cooey v. Coyle, 289 F.3d 882, 928 (6^th Cir. 2002); Buell v. Mitchell, 274 F.3d 337, 368-69 (6^th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417, 453 (6^th Cir. 2001); Greer v. Mitchell, 264 F.3d 663, 691 (6^th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 539 (6^th Cir. 2000). "Since proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison." Buell, 274 F.3d at 369. And this Court has consistently held that in "limiting proportionality review to other cases already decided by the reviewing court in which the death penalty has been imposed, Ohio has properly acted within the wide latitude it is allowed." Id.; see also Wickline, 319 F.3d at 824-25; Coleman, 268 F.3d at 453.

Henness' twenty-second ground for relief is denied.

Twenty-third Ground for Relief

In his twenty-third ground for relief, Henness contends the Ohio death penalty scheme is unconstitutional because it (1) is without specific standards, (2) requires proof of aggravating circumstances in the guilt phase of the trial, (3) encourages guilty pleas, (4) requires that any pre-sentence report or psychological evaluation requested by a defendant be provided to the finder of fact, and (5) permits proportionality review to include only other cases in which the death penalty was imposed. (Petition, Doc. No. 86 at 89-92.) In addition, he claims the state appellate and supreme courts do not fulfill their statutory obligations to independently weigh the aggravating circumstances and mitigating factors in each capital case, and instead does so only cursorily. Id. at 92-93. Respondent argues the claim is procedurally defaulted because when it was raised in the state courts, it was denied on res judicata grounds. (Return of Writ, Doc. No. 98 at 141-43.) Henness' traverse and subsequent filings are silent on the issue.

The Court finds Respondent's procedural default argument is partially correct, although in the end, each of Henness' sub-claims are defaulted. Henness never raised the second or fourth sub-claims enumerated above in the state courts, nor did he present to the state courts his sub-claim that the state appellate and supreme courts do not fulfill their statutory obligations to independently weigh the aggravating circumstances and mitigating factors. Having never been raised in the state courts, those sub-claims are not preserved for habeas corpus review and are instead procedurally defaulted.

Furthermore, each of those sub-claims would be denied even if it were preserved. Henness' second sub-claim would be rejected on the authority of Lowenfield v. Phelps, 484 U.S. 231, 244-46 (1988), see also Coleman v. Mitchell, 268 F.3d 417, 443 (6^th Cir. 2001), and the fourth would suffer a similar fate, see Williams v. Bagley, 380 F.3d 932, 963-64 (6^th Cir. 2004) (rejecting identical claim).

Henness' first and third sub-claims were raised in his post-conviction proceedings as his nineteenth and first claims, respectively (Appendix, Vol. 6 at 45, 8-9), and denied on res judicata grounds, id. at 93-97. The trial court's decision was affirmed by the Ohio Court of Appeals, State v. Henness, 97APA04-465, 1999 WL 739588 (Ohio App. 10^th Dist. Sept. 23, 1999) (unreported), and the state supreme court declined jurisdiction, State v. Henness, 87 Ohio St. 3d 1491, 722 N.E.2d 525 (2000). Henness makes no attempt to demonstrate cause for or prejudice from his default. Both sub-claims are consequently procedurally defaulted and denied on that ground.

It bears noting, however, that both propositions have been rejected by the United States Supreme Court. See Tuilaepa v. California, 512 U.S. 967, 978-80 (1994) (finding that "[a] capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision"); Corbitt v. New Jersey, 439 U.S. 212, 224 (1978) (recognizing that "the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based"). Thus, even if they had been preserved for habeas corpus review, Henness' first and third sub-claims would fail.

The fifth sub-claim, contending that Ohio's statutory requirement that state courts perform a proportionality review in capital cases is unconstitutional, was raised by Henness in his twenty-second ground for relief, above, and denied. There is no reason to revisit the matter here.

Each of Henness' sub-claims are procedurally defaulted and are denied for that reason. Even if they had been preserved, however, none would warrant habeas corpus relief.

Twenty-fourth Ground for Relief

In his twenty-fourth ground for relief, Henness challenges the lethal injection procedure used in Ohio, contending the method constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. (Petition, Doc. No. 86 at 94.) Respondent argues that the United States Supreme Court has not held that lethal injection is cruel or unusual, and that Henness is consequently not entitled to habeas corpus relief on that basis. (Return of Writ, Doc. No. 98 at 144-45.) Henness does not argue the issue in his traverse, and in his post-evidentiary hearing brief, he does not contest Respondent's argument, but merely copies his claim instead. (Petitioner's Post-Evidentiary Hearing Brief, Doc. No. 130 at 118.)

Henness' claim is that the particular chemicals Ohio uses in administering lethal doses to death-sentenced inmates causes, or at least has the potential to cause, excruciating pain to the inmate. (Petition, Doc. No. 86 at 94.) He does not contend that lethal injection in any form is unconstitutional, only that the method currently used in Ohio is unconstitutional. Id. In Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 2101-2 (2006), the United States Supreme Court concluded that the plaintiff's challenge to Florida's lethal injection procedure was properly brought under 42 U.S.C. § 1983 rather than 28 U.S.C. § 2254 because the execution procedure challenged was not required by law. Like the statute in Florida, Ohio's statute setting forth the method of execution does not establish which drugs or even how many drugs must be used in carrying out the execution by lethal injection. Ohio Rev. Code § 2949.22. Henness' challenge to the specific drug protocol use in Ohio, then, does not present a general challenge to execution by lethal injection. Consequently, granting the relief Henness seeks "would not necessarily foreclose the State from implementing the lethal injection sentence under present law, and thus it could not be said that the suit seeks to establish `unlawfulness [that] would render a conviction or sentence invalid.'" Hill, 126 S.Ct. at 2103-4, quoting Heck v. Humphrey, 512 U.S. 477, 486 (1994). As such, Henness' claim is not one that is cognizable in habeas corpus, and it is denied for that reason.

CONCLUSION

The Court has considered each of Henness' twenty-four ground for relief and the sub-claims therein where applicable. Having found no single error or combination of errors warranting habeas corpus relief, Henness' petition for a writ of habeas corpus is DENIED. The Clerk will enter judgment dismissing the Amended Petition with prejudice.