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Goff v. Bagley

December 1, 2006

JAMES R. GOFF, PETITIONER,
v.
MARGARET BAGLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: James L. Graham United States District Judge

OPINION AND ORDER

This is an action for habeas corpus relief filed pursuant to 28 U.S.C. §2254 by petitioner, James R. Goff. The petition in this case was filed on May 1, 2002. In an order filed on August 19, 2003, this court determined that six of petitioner's twenty-five claims were procedurally defaulted, those being grounds for relief numbers 3, 16, 17 (except sub-parts A, B, C, and I), 20, 21 (as to allegations that prosecutors enjoy unfettered discretion and that prosecutors are not required to prove absence of mitigating factors) and 24. On September 9, 2004, this court issued a supplemental order determining that additional claims were procedurally defaulted, those being grounds for relief numbers 13 (sub-parts G, H, I, and L), 9, 10-12, 19, 20, 23, and 25 (except sub-part D). Some additional discovery was conducted by the parties, including the completion of the depositions of petitioner's trial attorneys. The deposition transcripts were filed with the court as docket numbers 34 and 35. The record before the court is hereby expanded to include those depositions. Additional transcript pages (filed as Doc. No. 30) were included in the record pursuant to an order issued on January 10, 2003.

This case is now before the court for a decision on the merits of petitioner's remaining claims, those being grounds for relief numbers 1, 2, 4 through 8, 13 (sub-parts A-F, J and K), 14, 15, 17 (subparts A, B, C, and I), 18, 21 (excluding the allegations of unfettered prosecutorial discretion and failure to require prosecutors to prove the absence of mitigating factors), 22 and 25 (sub-part D).

I. Factual and Procedural History

On January 24, 1995, a grand jury empaneled in Clinton County, Ohio, returned an indictment charging petitioner with two counts of aggravated murder in violation of Ohio Rev. Code §2903.01(B), three counts of aggravated burglary in violation of Ohio Rev. Code §2911.11(A)(1)-(3), two counts of aggravated robbery in violation of Ohio Rev. Code §2911.01(A)(1) and (2), and two counts of grand theft with specifications in violation of Ohio Rev. Code §2913.02(A)(1) and (4). Both counts of aggravated murder included a death penalty specification under Ohio Rev. Code §2929.04(A)(7), that is, that petitioner was the principal offender in an aggravated murder which occurred while petitioner was committing, attempting to commit, or fleeing immediately after committing aggravated burglary (Count 1) and aggravated robbery (Count 2).

The facts involved in these offenses are set forth in State v. Goff, 82 Ohio St.3d 123, 124-127, 694 N.E.2d 916 (1998):

[Myrtle] Rutledge, an eighty-eight-year-old woman, was in the process of moving out of her old farmhouse and into a new doublewide trailer home that was built directly behind the farmhouse. Her daughter, Esther Crownover, had been helping her sort out items from the old house, in which she had lived for forty-seven years.

Rutledge decided to purchase some new furniture for her new house, and on September 14, 1994, she and Crownover went to Butler Home Furnishings in Wilmington, Ohio.

After purchasing a new mattress, box springs, chair, ottoman, and sofa, Rutledge made arrangements for the furniture to be delivered the next day.

Butler Home Furnishings had employed appellant for furniture deliveries for about a year. Harold E. Butler, Jr., the son of the owner, would contact appellant when he had a delivery and then, depending on the item, would get another person to assist appellant with the delivery. Butler Furnishings had also used Manuel Jackson as a delivery person for the seven months prior to September 1994.

Appellant and Jackson were contacted to make the delivery to Rutledge on September 14, 1994. When appellant and Jackson arrived with the furniture, Rutledge directed them to put the new furniture in the new house. Since there was no bed frame in the new house, appellant asked whether Rutledge wanted them to obtain the frame from the old house and assemble the bed in the new house. After they indicated that they would not charge Rutledge any additional money for this service, Rutledge took them into the old house, up to the second floor, and pointed out the bed frame that was to be used with the new bedding. The old house was in a state of disarray from the ongoing moving process. Jackson thought he saw appellant "snooping" through Rutledge's belongings.

Appellant and Jackson disassembled the old bed, took the frame to the new house, and set up the new bed. While Jackson finished the assembly, appellant obtained Rutledge's signature on the delivery form.

Later that afternoon, Rodney Rutledge, the victim's son, arrived at his mother's house around 4:00 p.m. to mow the lawn. She showed him her new furnishings that had been delivered that day. When he left (around 5:30 p.m.), his mother's car was parked in the driveway next to the house.

On the night of September 15, Myrtle Rutledge spoke on the telephone to her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00 p.m.) concerning the upcoming family reunion on Saturday, September 17. On Friday, September 16, 1994, Rutledge's son drove past his mother's house six different times during the course of his employment. Each time his mother's car was not parked in the driveway next to the house. Rutledge's sister also drove past the house and noticed the car was not there.

On Saturday morning, Crownover went to Rutledge's home to pick her up for the reunion. The car was not there, and when her mother did not answer the door, Crownover assumed that she had already left for the reunion. When she arrived at the reunion her mother was not there. She went back to her mother's house, entered, and went upstairs to her mother's bedroom. There she found her mother's battered and naked body lying on the floor of the bedroom. A pool of blood was on the bed, as well as the floor area. After ascertaining that there was no pulse, she tried using the phone to call the police, but there was no dial tone. She covered her mother with a blanket and drove to the police station.

The police and an ambulance were dispatched. Once it was determined that Rutledge was dead, the police secured the scene and began a criminal investigation. Deputy Sheriff Fred W. Moeller, the crime scene investigator, determined that the door to the victim's house had been forced open. Someone had apparently tried to enter the home through a window, because the window screen was lying on the ground outside the house, but entry was not made through the window. The phone wires on the outside of the house were cut.

No fingerprints were found in the bedroom. In Moeller's opinion, the room had been cleaned. Other fingerprint smudges were found in the house, but never matched. There was no evidence of blood anywhere else in the house except the bedroom. Denise K. Rankin, a serologist, identified a pubic hair found at the scene as being consistent with a pubic hair obtained from appellant after his arrest.

After Moeller left the scene to return to the police station, he was notified that the victim's car was found on North High Street in the city of Wilmington. He went to the scene, and the keys to the car were found on the floor on the driver's side. A pink towel was on the front seat of the car, and no prints were found anywhere on the car. Moeller believed that someone had wiped down the car.

The deputy coroner testified that Rutledge died from blunt and sharp trauma to the head, neck, shoulders, and ankle. Her death also resulted from blood loss due to multiple stab wounds, one of which severed the carotid artery. The coroner was unable to determine the time of death.

When appellant and Jackson left Rutledge's house after delivering the furniture on September 15, they purchased some crack cocaine and went to appellant's house to smoke it. Appellant later returned the truck to the furniture store.

Jackson did not see appellant again until 1:00-1:30 a.m. the following morning when he saw him running through an alley. Jackson later saw him on Grant Street. Appellant had changed his clothes from earlier in the day when they had delivered the furniture.

Appellant asked Jackson whether he wanted to smoke some crack, showing him what Jackson thought was about $80 worth of crack. Jackson was with Tim Bart, and all three proceeded to appellant's house. After they smoked the crack, which took a couple of hours, Bart suggested stealing some meat to trade for more crack. They were going to walk to the store, when appellant indicated he knew where there was a car they could use, but it was stolen. Appellant said the car was on North High Street. Bart and Jackson opted not to use the stolen car, and they walked to Bob and Carl's Meat Store. Bart stole the meat, and he and appellant "took off."

Jackson saw appellant around noon the next day, and appellant asked him to tell anyone who asked, that he (appellant) had been with Jackson from 9:00 p.m. on September 15 until 3:00 a.m. on September 16.

Later, on September 17, Timothy Shaffer found appellant playing pool at a game room in Wilmington. Appellant, Shaffer, and David Walls ended up at Shaffer's trailer, where they smoked three to four "joints." All three left the trailer and went to buy some crack. After the purchase, Shaffer and appellant went to appellant's house to smoke the crack. Appellant wanted Shaffer to sign a note saying that he (Shaffer) helped in a crime committed on September 15, but Shaffer refused to sign. Appellant went and stayed at Shaffer's trailer until September 21.

While staying with Shaffer, appellant talked with him about Rutledge's death. Appellant asked Shaffer what he would do if he killed someone. Appellant then told him he stabbed a lady and bent the blade of the knife. He also choked her. Appellant then told Shaffer he took her car and left it in front of the Mulberry Hill Apartments. After wiping the steering wheel, he drove the car to North High Street, where he left it, and then bought about $90 worth of crack and smoked it. Appellant admitted that he went to Rutledge's house to rob her.

On September 21, Shaffer saw a newspaper article about the Rutledge murder and asked appellant to leave his trailer. About two weeks later, Shaffer received a letter from appellant telling him that his (appellant's) life was in Shaffer's hands and to not tell anyone. Shaffer eventually called Colonel Tim Smith at the sheriff's department, and turned over a pair of tennis shoes and a laundry basket belonging to appellant. Shaffer ultimately told Smith all of what appellant had said about the murder.

Appellant was arrested on September 21, 1994 on a drug charge. During interrogation, appellant admitted that he had a crack habit, that he bought crack whenever he could, and that he would steal and trade items to buy crack. He indicated that he delivered furniture to the Rutledge residence, but when questioned about the murder, appellant asked for an attorney and questioning ceased.

The state also presented three inmates, Jerry Lee Price, Danny Smith, and Keith Jones, to testify to various statements appellant had made to them regarding the Rutledge crime while incarcerated on the drug charge. Smith's testimony was excluded, since he failed to identify appellant in court; however, both Price and Jones testified regarding the murder.

Jones's testimony was by far the most damaging. Appellant told Jones that he had delivered furniture to an old lady in her late 80's. She had given appellant some money when he put the new bed together and later that night he went back to get the rest of the money he saw she had. Appellant entered through the kitchen and found Rutledge in the bedroom. Appellant told him that Rutledge called him "Jimmy," so he "had to get rid of the bitch." Jones asked him questions concerning the crime because Jones could not believe appellant could do such a thing to an old woman. Appellant asserted that she had lived her life, and since she could send him to prison, he had to kill her. After he took the money and the car, he went and bought crack. Appellant ran into a friend and they went and smoked it. Appellant said he killed her by himself, using a fishing tackle knife from his house. He told Jones they would never find the knife because he got rid of it. Jones wrote a letter to the prosecutor's office, although he was not sure he believed appellant, but that he (Jones) had an elderly mother and could not think of something like that happening to her.

Following a jury trial in the Court of Common Pleas of Clinton County, Ohio, on July 27, 1995, petitioner was found guilty as charged on the charges of aggravated murder with specification, the charges of aggravated burglary and aggravated robbery, and one of the grand theft charges. He was found not guilty of the second theft charge and not guilty of the specifications in the two grand theft charges. A penalty phase hearing was held on August 10-11, 1995. The jury recommended that petitioner be sentenced to death on the two counts of aggravated murder. The trial court conducted its own independent weighing of the aggravating and mitigating circumstances, found that the aggravating circumstances outweighed the mitigating circumstances, and imposed the death penalty.

Petitioner pursued a direct appeal from his conviction and sentence to the Twelfth District Court of Appeals for Clinton County, Ohio. See State v. Goff, No. CA95-09-026, 1997 WL 194898 (Ohio App. April 21, 1997). That court affirmed the convictions and sentences. Petitioner then pursued an appeal to the Ohio Supreme Court, and that court also affirmed the judgment of the trial court. See State v. Goff, 82 Ohio St.3d at 144. A petition for certiorari was denied by the United States Supreme Court. See Goff v. Ohio, 527 U.S. 1039 (1999).

On September 20, 1996, petitioner filed a petition for post-conviction relief in the Clinton County Common Pleas Court. The petition was dismissed on April 26, 2000, without an evidentiary hearing. On May 10, 2000, petitioner filed a motion for relief from judgment pursuant to Ohio Civ. R. 60(B)(5), alleging that he did not have an opportunity to address the state's motion to dismiss his post-conviction petition, and that he was denied the opportunity to take depositions. On September 13, 2000, the trial court denied petitioner's motion for relief from judgment.

Petitioner filed appeals from these orders to the Twelfth District Court of Appeals for Clinton County, Ohio. In a decision rendered on March 5, 2001, the court of appeals affirmed the denial of the post-conviction petition. See State v. Goff, No. CA2000-05-014, 2001 WL 208845 (Ohio App. March 5, 2001). Petitioner appealed that decision to the Ohio Supreme Court, which dismissed the appeal. See State v. Goff, 92 Ohio St.3d 1430, 749 N.E.2d 756 (2001). The court of appeals also affirmed the denial of the Rule 60(B) motion. See State v. Goff, No. CA2000-10-026, 2001 WL 649820 (Ohio App. June 11, 2001). The Ohio Supreme Court declined to accept jurisdiction on that appeal. See State v. Goff, 93 Ohio St.3d 1414, 754 N.E.2d 261 (2001).

On June 28, 2002, petitioner filed an application in the Twelfth District Court of Appeals for Clinton County, alleging ineffective assistance of appellate counsel before that court. On August 14, 2002, the court of appeals found that petitioner failed to establish good cause for filing his application more than ninety days after that court's judgment was journalized, as required by Ohio App.R. 26(B)(2)(b), and also denied the application on the merits of petitioner's ineffective assistance claim. Petitioner filed an appeal from this decision to the Ohio Supreme Court. That court held that petitioner had failed to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal before the court of appeals, as required by Ohio App.R. 26(B)(5), and affirmed the judgment of the court of appeals. See State v. Goff, 98 Ohio St.3d 327, 784 N.E.2d 700 (2003).

II. Standards for Habeas Review

The provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective prior to the filing of the instant petition, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under the AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication "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," 28 U.S.C. §2254(d)(1), or was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. §2254(d)(2). The provisions of §2254(d)(1) govern the review of legal error, whereas claims of factual error are subjected to the standard enunciated in §2254(d)(2). Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir. 2001).

Under §2254(d)(1), a state court decision is "contrary to" Supreme Court precedent if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct legal principle from the decisions of the Supreme Court but unreasonably applies that principle to the facts of the petitioner's case. Id. A federal habeas court may not find a state adjudication to be "unreasonable" simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Id. at 411. Rather, a state court's application of federal law is unreasonable "only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes." Barker v. Yukins, 199 F.3d 867, 872 (6th Cir. 1999).

Claims of error in making factual determinations are addressed under §2254(d)(2). Under that section, an application for habeas relief may not be granted unless the state court adjudication of the claim "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." §2254(d)(2). In addition, 28 U.S.C. §2254(e)(1) provides that the findings of fact of a state court are presumed to be correct, and that the petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.

III. Petitioner's Claims

A. First Ground for Relief

Petitioner's first ground for relief is as follows:

Petitioner Goff was denied the right to a fair trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the trial judge refused to give a critical instruction that jurors consider a life sentence even if all twelve do not initially reject a recommendation of death.

Petitioner relies on State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996). In that case, which was decided after petitioner's trial, the Ohio Supreme Court held that a jury need not rule out the death penalty before considering a life sentence, and that the jury should be instructed that a single juror could prevent the imposition of the death penalty. Brooks, 75 Ohio St.3d at 160-61. Petitioner argues that the trial court should have given the following jury instruction which was requested by defense counsel at the mitigation phase of the trial:

If you are unable to agree unanimously that a death sentence is appropriate under this standard of proof, you are to proceed to consider which of the life sentence verdicts (recommendations) to return. You are not required to determine unanimously that the death sentence is inappropriate before you consider the life sentences.

See JA Vol. XV, p. 2450. The trial court declined to give the requested instruction, and instructed the jury as follows:

[I]f you are not convinced by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, then you must choose one of the two life sentences.

You shall recommend death only if you unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If you do not so find, you shall unanimously sign a verdict for either a sentence of life with parole eligibility after serving 20 full years of imprisonment or a sentence of life with parole eligibility after serving 30 full years of imprisonment. Verdict forms with these three options will be furnished to you.

JA Vol. XVI, p. 2716. Petitioner also argues that the trial court erred in refusing to give his requested instruction that it need not unanimously agree on the existence of a mitigating factor before weighing that factor. See JA Vol. XV, p. 2442.

On direct appeal, petitioner raised as error the failure of the court to give his requested instruction. He noted the fact that during deliberations, the jury asked the question, "Since we are deciding the verdict of two separate offenses will the sentences be served consecutively or concurrently?" JA Vol. XVI, p. 2725. Petitioner argued that this question indicated that the jurors may have recommended a life sentence if they had been told that they did not have to unanimously reject a death verdict before considering the life sentences.

The court of appeals stated that the jury's possible motives for asking the question were purely speculative. Goff, 1997 WL 194898 *5. The court noted that the instruction given by the court closely adhered to the language of Ohio Rev. Code §2929.03(D)(2)*fn1 .

Id. The court found that the instruction was not invalid under Brooks.

On further appeal, the Ohio Supreme Court held that the jury in this case was not given the erroneous instruction that served as the basis for reversal in Brooks. Goff, 82 Ohio St.3d at 129. The court noted that the jury was informed that the finding that the aggravating circumstances outweighed the mitigating factors must be unanimous, and that if it did not make the unanimous finding, one of the life verdicts must be returned. Id. The court stated that although it would have been preferable to give the instruction requested by petitioner, the substance of what the jury must determine under Ohio law was included in the charge given, and held that petitioner was not prejudiced by the failure to give the requested instruction. Id.

Petitioner also argued on direct appeal that the trial court erred in refusing to instruct the jury that it need not unanimously agree on the existence of a mitigating factor before weighing that factor. The court of appeals held that the instructions given by the trial court tracked the language of Ohio Rev. Code §2929.03(D)(1), which does not require unanimity regarding mitigating factors, and that the trial court properly declined to give the requested instruction. Goff, 1997 WL 194898 at *6. The Ohio Supreme Court noted that the jurors were never told that they had to make a unanimous finding on the individual factors before weighing them, and held that the trial court did not err in overruling petitioner's requested instruction. Goff, 82 Ohio St.3d at 129.

Under Caldwell v. Mississippi, 472 U.S. 320 (1985), a judge may not make misleading statements of law to the jury. In deciding whether an allegedly erroneous jury instruction deprived a defendant of his constitutional rights, the standard is whether the instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72-73 (1991). In reviewing an ambiguous instruction, courts inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 71-72. The mere fact that an instruction was allegedly incorrect under state law is not a basis for habeas relief. Id.

Under Mills v. Maryland, 486 U.S. 367, 376 (1988) and McKoy v. North Carolina, 494 U.S. 433, 444 (1990), it is impermissible to instruct the jurors in a capital case that they must unanimously agree on the presence of any mitigating factor before that factor may be considered. Under Mills, jury instructions that create "a substantial probability that reasonable jurors ... well may [think] they [are] precluded from considering any mitigating evidence unless all 12 jurors agree[] on the existence of a particular such circumstance" violate the principle that a sentencer may not be precluded from giving effect to all mitigating evidence. Mills, 486 U.S. at 375. However, an instruction which does not require unanimity as to a specific mitigating factor, but rather requires unanimity only as to the results of the overall weighing of mitigating and aggravating factors is permissible. Roe v. Baker, 316 F.3d 557, 564 (6th Cir. 2002); Williams v. Coyle, 260 F.3d 684, 702 (6th Cir. 2001)(jury instruction which did not require unanimity as to the existence of a mitigating circumstance, but only as to the question of whether the aggravating circumstances as a whole outweighed the mitigating circumstances as a whole, did not violate Mills); Scott v. Mitchell, 209 F.3d 854, 875-76 (6th Cir. 2000).

In petitioner's case, the state courts held on direct appeal that the instruction given by the trial court did not violate Ohio law under Brooks. Since the jury instruction given in this case was not an erroneous statement of Ohio law, the state court decisions are not contrary to or an unreasonable application of Caldwell. See Williams, 260 F.3d at 702. The Constitution does not require an express "hold out" juror instruction that informs a jury of the consequences of its inability to reach a unanimous verdict on the death penalty. See Coe v. Bell, 161 F.3d 320, 339-40 (6th Cir. 1998).

The instructions given by the court contained no language which would suggest to the jurors that they had to unanimously reject the death penalty before considering the life sentence options. The instructions given in this case closely mirror the Ohio pattern jury instructions discussed by the Sixth Circuit in Henderson v. Collins, 262 F.3d 615(6th Cir. 2001), where the court stated:

[T]he pattern instructions reflect the statutory assumption that a jury will first consider whether the death penalty represents an appropriate punishment before considering either of the two life sentences. Consistent with Brooks, supra, however, neither instruction explicitly requires the jury to rule out death before considering a life sentence.

Id. at 621-22. The Sixth Circuit held that these pattern instructions, which suggest that the jurors can consider first whether the death penalty was appropriate, but do not require them to unanimously find that the aggravating factors outweighed the mitigating circumstances prior to considering a life sentence, comport with constitutional requirements. Id. at 622. See also Roe, 316 F.3d at 563-64.

The state courts also correctly held that the instructions given by the trial court in this case did not require the jurors to unanimously agree on the existence of a mitigating circumstance before they could consider that mitigating circumstance. The trial court's instruction required unanimity on the ultimate issue of whether the aggravating circumstances outweighed the mitigating factors. However, no language in the instructions given by the trial court created a substantial probability that the jurors could have believed that they were precluded from considering any mitigating evidence absent the agreement of all jurors. See Coe, 161 F.3d at 338 (distinguishing language requiring unanimity as to the results of the weighing process from instruction requiring unanimity as to the presence of a mitigating factor). The language requiring unanimity in this case is found in the paragraph discussing the weighing process. JA Vol. XVI, p. 2716. No mention of unanimity is found in the instructions on considering mitigating factors. JA Vol. XVI, p. 2714. See Coe, 161 F.3d at 338.

Petitioner relies on Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003), in which the Sixth Circuit held that the instructions given in that case were unconstitutional. However, Davis is not controlling here. In order to prevail in this habeas action, petitioner must show that the decisions of the state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. §2254(d)(1). Davis is not a Supreme Court case, and it was decided after the direct appeals in petitioner's case were concluded. In addition, the validity of Davis as precedent has been questioned to the extent that it is in conflict with the earlier Sixth Circuit decisions in Coe, Roe, and Scott, in which habeas relief was denied in cases involving similar jury instructions. See Henderson v. Collins, 184 Fed.Appx. 518, 2006 WL 1675074 at *5 fn. 9 (6th Cir. 2006)(noting that one panel of the Sixth Circuit cannot overrule the decision of another panel); Madrigal v. Bagley, 276 F.Supp.2d 744, 785 (N.D.Ohio 2003).

Finally, the instructions in the instant case are readily distinguishable from those given in Davis. In Davis, the court charged to the jurors that if they found that the state failed to prove that the aggravating circumstances outweighed the mitigating factors, "then you will return your verdict reflecting your decision[.]... In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court." Davis, 318 F.3d at 685 (emphasis supplied). The court in Davis found that this language amounted to an impermissible "acquittal first" instruction. Id. at 6689-90. No such language is found in the instructions given in this case. Instead, the jury was told: "If you do not so find [that the aggravating circumstances outweigh the mitigating factors], you shall unanimously sign a verdict for" one of the life sentence options. (Emphasis supplied.). Under this language, the failure to find that the aggravating circumstances outweigh the mitigating factors could result not only from a unanimous decision, but also from the failure of the jurors to agree. There is no language in the instructions from which the jurors could reasonably conclude that they would not be free to consider the life options absent a unanimous rejection of the death penalty.

The court in Davis also noted the language of the verdict forms in that case. The form for acquittal of the death penalty reads: "We, the Jury in this case ... do find that the" aggravating circumstances are not sufficient to outweigh the mitigating factors. Id. at 690 (emphasis supplied). After reading this form, the trial court in Davis again reminded the jury that "in order for you to reach a decision all twelve of you must be in agreement." Id. at 690-91. The court in Davis cited this language as support for its finding that the jury would have concluded that a unanimous rejection of the death penalty was required. In contrast, the life verdicts in the instant case read: "We the Jury being duly impaneled do not find beyond a reasonable doubt that the aggravating circumstance outweighs the mitigating factors" and recommend life imprisonment. JA Vol. XVI, p. 2722. (Emphasis supplied.). Based on these instructions, the jurors could fail to find that the aggravating circumstance outweighed the mitigating factors either through a unanimous decision or simply due to the failure to unanimously agree that the aggravating circumstance outweighed the mitigating factors. These verdict forms do not require the jury to unanimously reject the death penalty before considering the life sentences. Further, unlike the verdict forms in Mills, the verdict forms in this case do not require the jury to make a unanimous finding on any of the mitigating factors.

The jury instructions given by the court did not result in a constitutional violation in this case, and petitioner's first ground for relief is denied.

B. Second Ground for Relief

Petitioner's second ground for relief is as follows:

Petitioner Goff's death sentence is constitutionally unreliable because the trial court refused to give an instruction on the meaning of mitigating factors, thus leaving the jurors with no standard to determine the weighing process necessary in making its recommendation, resulting in a violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

Petitioner argues that he was denied a fair trial due to the trial court's refusal to give his requested instruction on mitigating circumstances. Petitioner requested the following instruction: "Mitigating factors are factors that, while they do not justify or excuse the crime, nevertheless in fairness, sympathy and mercy, may be considered by you, as a call for a penalty less than death, or lessen the appropriateness of a sentence of death." JA Vol. XV, p. 2446. The trial court instructed the jury:

In making your decision you will consider all the evidence, the arguments of counsel, and all other information and all other reports which are relevant to the nature and circumstances of the aggravating circumstances or to any mitigating factors including, but not limited to, the nature and circumstances of the offense, and 1) the history and character and background of the Defendant, 2) the youth of the Defendant, and 3) any other factors that are relevant to the issue of whether the Defendant should be sentenced to death.

Petitioner raised the failure to give his requested instruction on direct appeal, arguing that the instruction given by the court left the jury without any guidance, or vested the jury with almost total discretion. The court of appeals disagreed and held that the instructions given by the trial court complied with Ohio law. Goff, 1997 WL 194898 at *8. The court noted that "while the trial court is required to give a full and correct statement of the law, '[a]ny attempt to define or explain [a factor might be] viewed as an attempt to restrict that factor, and would [be] improper.'" Id. (quoting State v. Rogers, 17 Ohio St.3d 174, 182, 478 N.E.2d 984 (1985)).

The Ohio Supreme Court rejected petitioner's argument that the instructions failed to channel the jury's discretion, noting that the instructions "were not incorrect, nor did they fail to guide the jury in its decision-making process." Goff, 82 Ohio St.3d at 128. The court also rejected petitioner's argument that the instructions failed to adequately define "mitigating evidence" as set forth in State v. Holloway, 38 Ohio St.3d 239, 242, 527 N.E.2d 831 (1988). Id. at 130. The court held that the trial court's failure to define "mitigation" did not constitute prejudicial error, noting that the "trial court defined what factors the jury was to consider, and implicit in the trial court's instruction was that the factors set forth by the defense were factors relevant to whether appellant should be sentenced to death." Id. The court cited Buchanan v. Angelone, 522 U.S. 269 (1998) for the proposition that the absence of instructions on the concept of mitigation does not violate the Eighth and Fourteenth Amendments. Id.

The state courts did not misapply the law of the United States Supreme Court in rejecting petitioner's argument. During the mitigation phase of a capital case, the jury may not be precluded from considering any constitutionally relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 317-18 (1989); Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982). "However, the state may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence." Buchanan, 522 U.S. at 276. In regard to the mitigation phase, the Supreme Court has "emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination." Id. The standard for determining whether the court's instructions satisfy these principles is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 367-68 (1990). However, the state is not required to affirmatively structure the manner in which juries consider mitigating evidence, and complete jury discretion is constitutionally permissible. Buchanan, 522 U.S. at 276.

In Buchanan, the petitioner argued that the jury instructions in his case failed to provide the jury with express guidance on the concept of mitigation. The Supreme Court rejected petitioner's argument that he was denied a fair trial due to the trial court's failure to provide the jury with express guidance on the concept of mitigation. Buchanan, 522 U.S. at 275. The Court further held that the instruction given, which told the jury to base its decision on "all the evidence," afforded the jury an opportunity to consider mitigating evidence. Id. at 277.

The instructions given in the instant case, which also told the jury to consider "all the evidence," were consistent with Ohio law, and allowed the jury to consider the mitigating evidence presented in this case. In Buell v. Mitchell, 274 F.3d 337, 353 (6th Cir. 2001), the Sixth Circuit held that instructions very similar to those given in the instant case were consistent with the Supreme Court's ruling in Penry, 492 U.S. at 328, that the jury "must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime." See also Mason v. Mitchell, 320 F.3d 604, 639 (6th Cir. 2003)(instructions adequately guided the jury and did not restrict consideration of mitigating evidence). The requested definition of "mitigation" was not constitutionally required under Buchanan. The state courts did not misapply Supreme Court law in overruling petitioner's arguments in that regard, and petitioner's second ground for relief is not well taken.

C. Fourth Ground for Relief

Petitioner's fourth ground for relief is as follows: Petitioner Goff's right to a fair trial was violated when the prosecutor failed to disclose a plea agreement and favorable treatment given to a key prosecution witness, such misconduct by the prosecutor thereby tainting the trial proceedings contra the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Petitioner contends that he was denied a fair trial by reason of the prosecution's failure to properly disclose consideration given to a prosecution witness, Keith Lamar Jones, for his testimony at petitioner's trial. Petitioner contends that this failure violated his constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963).

Petitioner first asserted this argument in his state court post-conviction petition. In a decision filed on April 26, 2000, the trial court denied this claim. JA Vol. V, p. 326. The trial court noted the trial transcript, which revealed that Jones was called to testify on July 26, 1995. Id., p. 328. The trial court also reviewed the affidavits of William E. Peelle, Clinton County Prosecutor, and Jonathan Woodman, the attorney for Jones. JA Vol. V, pp. 184-186.

Peelle stated in his affidavit that neither Jones nor anyone on his behalf requested any consideration for Jones's testimony prior to his giving testimony at petitioner's trial. Id., p. 184, ¶ 4. Peelle further stated that he was unaware that charges were pending against Jones in federal court until he sought Jones's presence for trial, and that he had no discussions with the United States Attorney's Office concerning Jones's testimony in petitioner's trial. Id., pp. 184, 186, ¶¶ 5-6. Peelle further stated that on September 15, 1995, subsequent to Jones's testimony, he received a letter from Woodman requesting that he send a letter to federal court, and that this September 15th letter was the first and only request for any consideration for Jones. Id., p. 186, ¶ 7. On September 20, 1995, Peelle sent a letter to the federal court on his behalf. Id., ¶ 8.

Woodman stated in his affidavit that prior to Jones's testimony in petitioner's trial, he had no knowledge that Jones had information relevant to petitioner's case or that Jones was scheduled to testify, nor did he speak with anyone in the United States Attorney's Office or the Clinton County Prosecutor's Office regarding Jones's testimony. JA Vol. V, p. 185, ¶¶ 2-3. Woodman stated that he first learned that Jones was scheduled to testify when the Clinton County sheriff's deputies arrived at the Franklin County Jail to take Jones to Clinton County. Id., p. 185, ¶ 4. Woodman further stated that no agreements, discussions or negotiations for leniency occurred prior to Jones's testimony. Id., ¶ 5. Subsequent to petitioner's trial, Woodman contacted the Clinton County Prosecutor requesting a letter on behalf of Jones to be presented in federal court, and that letter was received and forwarded to the federal court. Id., ¶¶ 7-8.

The trial court also reviewed documents submitted by petitioner which described Jones's cooperation with the federal authorities. The trial court noted that these documents revealed that Jones cooperated with federal officials from the date of his arrest by "providing information to [the] I.R.S., agents of Health and Human Services, and other government agencies, all matters unrelated to this case." JA Vol. V, p. 328. The trial court concluded,

Based upon a review of the record, the transcripts, and the exhibits the court finds that there is no evidence of any consideration given to Mr. Jones in exchange for his testimony. The affidavits and exhibits reflect that the state did not receive any requests until some 51 days after Jones testified. There is no evidence of any prior promises or agreements. Mere speculation and unsubstantiated allegations do not entitle Petitioner to relief.

JA Vol. V, pp. 328-29.

Petitioner filed an appeal from the denial of post-conviction relief. The Twelfth District Court of Appeals for Clinton County, Ohio, referred to the standards set forth by the United States Supreme Court for evaluating the effect of an alleged nondisclosure of evidence. State v. Goff, No. CA2000-05-014, 2001 WL 208845 at *3-4 (Ohio App. March 5, 2001). The court noted that unbeknownst to either the state or petitioner, Jones signed a written plea agreement in his federal case on June 15, 1995. This plea agreement included a paragraph in which the United States agreed to make known to the court any substantial assistance rendered by Jones in the investigation or prosecution of others who had committed criminal offenses. The agreement also stated that the government, at its discretion, "may move the Court ... for an appropriate departure from the otherwise applicable guideline range" and "will in connection therewith make known to the Court the nature and extent of [Jones's] assistance." See id. at *5. Jones entered a guilty plea to the federal charge on July 10, 1995. He testified in petitioner's case on July 26, 1995. Id. The court of appeals further noted that Jones was asked on cross-examination during petitioner's trial whether he was under indictment or investigation in federal court, and he stated that he was and that he had pleaded guilty to the federal charge. Id.

The court of appeals held that the trial court properly dismissed this claim, and that the record supported the trial court's conclusion that there was no evidence of any consideration to be given Jones in exchange for his testimony. Id. The court noted that although the record indicated that the state became aware of Jones's pending federal charge, there was no evidence as to when, if ever, the state learned about Jones's plea agreement. Id.

The court of appeals further held that even assuming that the state knew about the plea agreement before Jones's testimony and failed to disclose it to the defense, there was no "'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at *6 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The court of appeals noted that Jones's testimony was substantially confirmed by the testimony of Timothy Schaffer, petitioner's friend, and that other parts of Jones's testimony were also confirmed by another witness. Id. The court of appeals also commented that Jones's credibility was already seriously challenged on cross-examination when he admitted to having a number of convictions, including insurance fraud, theft by deception, and receiving stolen property, and further admitted to having "a long history of dishonest behavior," including lying under oath on two separate occasions, writing bogus contracts for a cellular phone company, and "face-to-face lying to people[.]" Id. The court of appeals held that since the alleged undisclosed evidence merely furnished an additional basis on which to challenge Jones, whose credibility had already been shown to be questionable or subject to attack by reason of other evidence, the undisclosed evidence was cumulative, and not material. Id.

Petitioner appealed the decision of the court of appeals to the Ohio Supreme Court, which summarily dismissed the appeal. See State v. Goff, 92 Ohio St.3d 1430, 749 N.E.2d 756 (2001).

Under Brady v. Maryland, an accused is denied due process where the state fails to disclose evidence upon the request of the accused which is material to guilt or punishment. Brady, 373 U.S. at 87. The Brady doctrine includes impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 433 (1995). To qualify as "material evidence," there must be "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. A Brady violation is established "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435. The mere possibility that an item of undisclosed evidence might have helped the defense, or might had affected the outcome of the trial, does not establish "materiality;" rather, the failure to disclose evidence must be of sufficient significance to result in the denial of the defendant's right to a fair trial. United States v. Agurs, 427 U.S. 97, 108-110 (1976). See also Giglio v. United States, 405 U.S. 150, 154 (1972)(reversal not required where undisclosed evidence was possibly useful to the defense but not likely to have changed the verdict).

The state trial court found that there was "no evidence of any consideration given to Mr. Jones in exchange for his testimony" and that "the state did not receive any requests until some 51 days after Jones testified." JA Vol. V, pp. 328-29. The trial court further found, "There is no evidence of any prior promises or agreements." Id. at 329. The state court of appeals affirmed these factual findings on appeal, and further noted that "it is not clear when, if ever before Jones' testimony, the state learned about Jones' plea agreement and/or guilty plea." Goff, 2001 WL 208845 at *5.

This court must defer to these factual findings by the state court. Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000); 28 U.S.C. §2254(e)(1)(findings of fact of a state court are presumed to be correct). This court finds that the state court decisions on this point were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, §2254(d)(2), and that petitioner has not rebutted the presumption of correctness by clear and convincing evidence.

There is no evidence that the state prosecutors ever promised Jones any consideration in exchange for his testimony. There is no evidence that they were aware that he had entered into a plea agreement in the federal prosecution which included the possibility of some consideration at sentencing, at the discretion of the government and the sentencing judge, if he provided substantial assistance.

Petitioner argues that the knowledge of the federal prosecutors should be imputed to the Clinton County prosecutors. However, there is no basis for doing so in this case. The prosecution has a duty to learn of any favorable evidence "known to others acting on the government's behalf in the case[.]" Kyles, 514 U.S. at 436. However, a prosecutor has no obligation under Brady to learn of information possessed by other government agencies having no involvement in the investigation or prosecution at issue. United States v. Morris, 80 F.3d 1151, 1169-70 (7th Cir. 1996). Brady does not apply to information that is not wholly within the control of the prosecution. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). See Kasi v. Angelone, 300 F.3d 487, 506 (4th Cir. 2002)(rejecting claim that state prosecutors had duty to review federal agency files over which they had no control); Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002)(prosecution has no duty to undertake a fishing expedition in other jurisdictions in an effort to find potentially impeaching evidence).

In Moon, the court declined to impute the knowledge of a Tennessee law enforcement officer to the Georgia prosecutor where there was no evidence that the Georgia and Tennessee officials were engaged in a joint investigation, or that anyone in Tennessee was acting as an agent of the Georgia prosecutor, or that the Tennessee officer was under the direction or supervision of the Georgia prosecutor. Moon, 285 F.3d at 1310.

There is no evidence in this case that the Clinton County prosecution team was aware of Jones's plea agreement in the federal case prior to his testimony. There is also no evidence that the federal prosecution of Jones for misuse of a social security number was in any way related to petitioner's case, or that the United States Attorney's Office was working with the Clinton County Prosecutor's Office in any way on petitioner's case. In fact, the evidence is uncontroverted that Peelle, the prosecutor in petitioner's case, was unaware of the federal charges pending against Jones until the Clinton County sheriff's deputies attempted to obtain custody of him at the Franklin County Jail and learned that they were unable to secure his release without a federal court order. JA Vol. V, p. 184, Peelle Aff., ¶ 5; p. 185, Woodman Aff., ¶ 4. The evidence further indicates that prior to that time, Jones's attorney was unaware that Jones was scheduled to be a witness in petitioner's trial. Woodman Aff., ¶ 2. To secure Jones's release to the Clinton County deputies, it was necessary for Woodman and the assistant United States attorney to submit an emergency agreed motion to the federal court. Id., Woodman Aff., ¶ 4. The fact that an emergency motion was required indicates that the matter of Jones's testimony was also a surprise to the assistant United States attorney in Jones's federal case, and significantly undercuts petitioner's speculations that the United States Attorney's Office was acting in concert with the Clinton County authorities. The record supports the finding of the state courts that no Brady violation occurred in this case.

Even assuming that the prosecutors in petitioner's case were aware of Jones's plea agreement in the federal case prior to his testimony, no Brady violation occurs where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source. Byrd, 209 F.3d at 486; Workman v. Bell, 178 F.3d 759, 767 (6th Cir. 1998). During the cross-examination of Jones at trial, defense counsel elicited the information that Jones was under indictment in federal court, that he had pleaded guilty to the charge of misuse of a social security number, and that he was looking at more time due to this conviction. JA Vol. XII, pp. 2075, 2077. This line of questioning indicates that defense counsel was aware of Jones's federal charges at that time. Defense counsel could have asked Jones during cross-examination about whether he had pleaded guilty pursuant to a plea agreement and could have inquired about the terms of that agreement.

In addition, "'where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.'" Byrd, 209 F.3d at 518 (quoting United States v. Avellino, 136 F.3d 249, 257 (2nd Cir. 1998)). Jones testified that he had spent ten of his twenty adult years in jail. JA Vol. XII, p. 2075. He admitted that he was under indictment in federal court for misuse of a social security number, an offense which involved making a fraudulent application for a credit card, and that he had pleaded guilty to that offense. Id., pp. 2075, 2077. He admitted to two separate instances of insurance fraud which involved lying under oath. Id., p. 2076. He admitted to a conviction involving writing false cellular phone contracts. Id., pp. 2078-79. He admitted three other convictions for theft by deception. Id., pp. 2081-83. He also acknowledged convictions for receiving stolen property and breaking and entering, and burglary. Id., pp. 2083-84. He also acknowledged that he was charged with theft while in the penal institution. Id., p. 2085. He further admitted to misdemeanor convictions for resisting arrest and theft, and that he had a long history of dishonest behavior. Id., p. 2086. In light of this extensive impeachment, it cannot be said that Jones's plea agreement in the federal case "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435.

Petitioner was not denied a fair trial by reason of the failure of the state prosecutors to discover and disclose Jones's plea agreement prior to his testimony at petitioner's trial. The Ohio courts correctly applied federal law in addressing this claim, and their decisions were not contrary to, nor did they involve, an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. The state court decisions were also based on a reasonable determination of the facts in light of the evidence presented in the state court proceeding. Petitioner's fourth ground for relief is denied.

D. Fifth Ground for Relief

Petitioner's fifth ground for relief is as follows: When Petitioner Goff requests that the trial court instruct the jury they are to consider specific mitigating factors introduced at the mitigation hearing, the failure of the court to do so results in an unreliable death sentence contra the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

Prior to the mitigation hearing, counsel for petitioner requested that the court instruct on specific mitigating factors raised by the defense. JA Vol. XV, p. 2436. Petitioner requested that the jury be instructed on: (1) petitioner's personality disorder; (2) any residual doubt about petitioner's guilt of the offense charged or an aggravating circumstance; (3) petitioner's potential for rehabilitation; (4) petitioner's ability to make a well-behaved and peaceful adjustment to life in prison; (5) petitioner's ability to lead a useful life behind bars if sentenced to life imprisonment; (6) petitioner's devotion to and care of his family members; (7) petitioner's deprivation of parental nurturing and the fact that his conduct disorder was caused by family environment; and (8) petitioner's youth.

As previously noted, the trial court instructed the jury: In making your decision you will consider all the evidence, the arguments of counsel, and all other information and all other reports which are relevant to the nature and circumstances of the aggravating circumstances or to any mitigating factors including, but not limited to, the nature and circumstances of the offense, and 1) the history and character and background of the Defendant, 2) the youth of the Defendant, and 3) any other factors that are relevant to the issue of whether the Defendant should be sentenced to death.

JA Vol. XVI, p. 2714. These instructions did refer specifically to request number (8), the petitioner's youth.

Petitioner raised the failure to instruct the jury on the above mitigating factors on direct appeal. The court of appeals held that the trial court was not required to tailor the instructions to the evidence presented, and that the instructions given were a correct statement of law which did not exclude consideration of possible mitigating factors. Goff, 1997 WL 194898 at *12. The court concluded that petitioner was not entitled to an instruction on (2) residual doubt, citing State v. Garner, 74 Ohio St.3d 49, 56-57, 656 N.E.2d 623 (1995), and held that the trial court did not err in failing to instruct the jury on residual doubt. Id. The court noted that under Garner and State v. Grant, 67 Ohio St.3d 465, 620 N.E.2d 50 (1993), a capital defendant may argue but is not entitled to a separate instruction concerning a mitigating factor. Id. at *9. The court also held that the trial court did not err in refusing to instruct the jury on (4) petitioner's ability to adjust to life in prison. Id. at *11. The court distinguished Skipper v. South Carolina, 476 U.S. 1 (1986), noting that in this case, petitioner was permitted to present mitigation evidence on the subject of his positive adjustment to incarceration. Id.

In addressing this claim of error, the Ohio Supreme Court held that a "trial court need not specifically instruct that particular evidence is mitigating, nor are comments by the court on evidence generally appropriate." Goff, 82 Ohio St.3d at 130 (citing State v. Landrum, 53 Ohio St.3d 107, 122, 559 N.E.2d 710 (1990)(trial court did not err by following statutory language and declining to instruct that particular evidence was a specific mitigating factor)). The court noted that the jury in petitioner's case was permitted to consider all the mitigation evidence and was not precluded from considering any evidence as mitigating. Id. The court then cited Buchanan for the proposition that the absence of instructions on the concept of mitigation and on particular statutorily defined mitigating factors does not violate the Eighth and Fourteenth Amendments. Id. The Ohio Supreme Court, id. at 131, also noted the holding in Buchanan that states are not required to affirmatively structure in a particular way the manner in which juries consider mitigating evidence. The court referred to the standard in Boyde, 494 U.S. at 386 ("[T]here is not a reasonable likelihood that the jurors in petitioner's case understood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner.").

The Ohio Supreme Court also held that the trial court was not required to instruct on residual doubt (citing Garner, 74 Ohio St.3d at 56-57), and noted that residual doubt is not an acceptable mitigating factor since it is irrelevant to the issue of whether the defendant should be sentenced to death (citing State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997)). Id.

The state courts held that the instructions given by the trial court in the instant case comported with Ohio law, and petitioner was not denied due process by reason of these instructions. The state courts also properly applied federal law as announced in Buchanan and Boyde. The court's instructions permitted the jury to consider all the evidence presented by petitioner in mitigation. See Buell, 274 F.3d at 353 (upholding instructions very similar to those given in the instant case as being consistent with the Supreme Court's ruling in Penry, 492 U.S. at 328, that the jury "must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.") Petitioner's fifth ground for relief is denied.

E. Sixth Ground for Relief

Petitioner's sixth ground for relief is as follows:

When Petitioner Goff specifically requests that the trial court instruct the jury not to consider "the nature and circumstances of the offense" in their weighing process, and in its listing of the mitigating factors, the failure of the court to so instruct left the jury with open discretion to consider this non-statutory aggravating factor contra the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

Petitioner contends that he was denied a fair trial when the trial court instructed the jury over his objection that it could consider the nature and circumstances of the offense as a mitigating circumstance.

On direct appeal, the court of appeals rejected this argument, noting that Ohio Rev. Code §2929.04(B) requires the jury to "consider and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and" the listed statutory factors. Goff, 1997 WL 194898 at *8. The court noted that under §2929.04(B), the nature and circumstances of the offense must be included as a mitigating factor to be weighed against the aggravating circumstances when deciding whether to impose a death sentence, citing State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994); State v. Grant, 67 Ohio St.3d 465, 620 N.E.2d 50 (1993), and State v. Stumpf, 32 Ohio St.3d 95, 99, 512 N.E.2d 598 (1987). Id. The court of appeals acknowledged that under State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988) and State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030 (1989), it is error for the trial court to instruct a jury to consider mitigating factors not raised by the defendant. Id. at *9. However, the court concluded that DePew and Hicks were not inconsistent with Stumpf in light of the clear language of §2929.04(B), and noted that while the trial judge listed the nature and circumstances of the offense as a mitigating factor, he made no further comment regarding this factor. Id. The court held that the instruction did not constitute reversible error. Id.

The Ohio Supreme Court held that the trial court correctly described the process of weighing the aggravating circumstances against the mitigating factors. Goff, 82 Ohio St.3d at 129.

The Ohio Supreme Court has held that under §2929.04(B), it is proper, and indeed required, that the court instruct the jury to consider the nature and circumstances of the offense as a mitigating factor. See State v. Dixon, 101 Ohio St.3d 328, 341, 805 N.E.2d 1042 (2004)(instruction regarding nature and circumstances of offense not erroneous and required under §2929.04(B) even where defendant objected to the instruction and never argued that the nature and circumstances of the offense constituted a mitigating factor in the case). A state statute which requires the jury to consider the circumstances of the crime for which the defendant was convicted is not unconstitutional. Tuilaepa v. California, 512 U.S. 967, 975-76 (1994). In Tuilaepa, the Supreme Court stated:

[O]ur capital jurisprudence has established that the sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty.... We would be hard pressed to invalidate a jury instruction that implements what we have said the law requires.... The circumstances of the crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence.

Id. at 976.

In this case, the state courts held that the instructions given by the trial court were correct under state law. Thus, petitioner was not denied due process. However, even if the instruction had been incorrect under Ohio law, petitioner would not be entitled to habeas relief. The Sixth Circuit considered a similar argument concerning an alleged violation of DePew in Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005). The court noted that the right to have certain statutory mitigating factors considered is a creature of state statute, not the federal Constitution. Id. at 333. The court further noted that under Estelle, 502 U.S. at 71-72, the fact that an instruction is allegedly incorrect under state law is not a basis for habeas relief by itself. Id. The Sixth Circuit concluded that even assuming that the instructions in that case violated DePew, that error did not provide a ...


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