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James Frazier v. David Bobby

October 24, 2011

JAMES FRAZIER,
PETITIONER,
v.
DAVID BOBBY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Judge Patricia A. Gaughan

MEMORANDUM OF OPINION AND ORDER

This matter is before the Court upon Petitioner James Frazier's ("Frazier" or "Petitioner") Petition for Writ of Habeas Corpus and Request for Oral Argument.

Petitioner, acting pursuant to 28 U.S.C. § 2254, filed a Petition for Writ of Habeas Corpus, challenging his conviction and sentence of death rendered by an Ohio court. (ECF No. 13-1.) The Respondent, David Bobby, Warden ("Respondent"), filed a timely Return of Writ, and Frazier filed a Traverse. (ECF Nos. 19 and 24, respectively.) Respondent then filed a Sur-Reply to Traverse and Opposition to Evidentiary Hearing. (ECF No. 25.) Petitioner later filed a Request for Oral Argument and Motion to Supplement Authority for First and Second Claims for Relief. (ECF Nos. 28 and 29, respectively.) Respondent opposed both these motions. (ECF No. 30.)

For the following reasons, the Petition for Writ of Habeas Corpus and Request for Oral Argument are denied.

I. Factual History

On March 9, 2004, a Lucas County Grand Jury issued a three-count indictment against Frazier. The indictment charged Frazier with the aggravated murder of Mary Stevenson in violation of Ohio Revised Code § 2903.01, aggravated robbery in violation of Ohio Revised Code § 2911.01, and aggravated burglary in violation of Ohio Revised Code § 2911.11. The aggravated murder charge carried two death penalty specifications for murder while committing, attempting to commit, or fleeing after committing aggravated robbery and aggravated burglary in violation of Ohio Revised Code § 2929.04(A)(7). Frazier entered a plea of not guilty to all charges.

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

The evidence at trial established that, on the morning of March 2, 2004, James Frazier entered 49-year-old Mary Stevenson's apartment and murdered her by strangling her and slitting her throat. Frazier stole two of her purses and fled the scene. Subsequently, Frazier was convicted of the aggravated murder of Stevenson and was sentenced to death.

The evidence at trial established the following facts. Frazier and Stevenson were both residents of the Northgate Apartments in Toledo. Northgate is a federally subsidized apartment complex, and the residents are low income and either elderly or disabled. Frazier was supported by Social Security disability income, and Stevenson suffered from cerebral palsy.

During the late summer or early fall of 2003, Frazier baked a cake for Stevenson. Later, Stevenson took the cake pan to Cindy Myers, a social worker at Northgate Apartments, and asked Myers to return the pan to Frazier. Stevenson asked Myers to "tell him thanks for baking the cake but she could do that herself, and * * * she also had a boyfriend." Myers returned the cake pan to Frazier and told him, "Mary said thank you for baking the cake but she can bake herself * * * and not to do it anymore." Frazier responded, "[O]kay."

On the evening of March 1 and in the early morning of March 2, 2004, Frazier and a group of individuals smoked crack cocaine and drank alcohol inside Frazier's third-floor apartment.

During the drug party, Frazier provided Chastity McMillen with $200 to $300 worth of crack cocaine without charge. At some point, Frazier's guests ran out of crack. Frazier called someone to deliver more crack, and he also called someone for money to buy it. More crack was brought to Frazier's apartment later that night.

Frazier was wearing jeans and a white T-shirt during the party. At some point during the evening, Frazier left the party. When he returned, Frazier was not wearing a shirt.

At 7:17 a.m. on March 2, Frazier made a 911 call to report a woman at the complex lying on the laundry-room floor, having seizures. Paramedics met Frazier at the apartment, but no one needing medical attention was found in the laundry room.

Stevenson lived alone in a first-floor apartment at Northgate. She supported herself on Social Security benefits. Because of her condition, Stevenson had limited mobility and difficulty speaking. Her apartment was located about 20 to 30 feet from the laundry room and 15 feet from the elevators close to one of the stairways.

On March 1, Bill Gangway, Stevenson's boyfriend, and Stevenson talked on the telephone, and they agreed to meet at her apartment the next day. Around 9:00 a.m. on March 2, Gangway knocked on Stevenson's apartment door, but she did not answer. Gangway remained at Northgate for the rest of the day and unsuccessfully tried to contact Stevenson three or four times. At 4:15 p.m., Susan Adams, Northgate's assistant manager, checked on Stevenson. After receiving no answer to her knocking, Adams entered Stevenson's apartment and found her lying on the bedroom floor, dead. Adams then called 911.

Around 5:00 p.m. on March 2, police arrived at Stevenson's apartment. Stevenson's body was near the foot of her bed. Stevenson's throat had been slashed, and blood had pooled underneath her head and shoulders. She was wearing a nightgown that was tucked into the front of her underpants.

Police examining Stevenson's apartment found no signs of a struggle, forcible entry, or indication that her apartment had been ransacked. Stevenson's purse and identification cards were missing, and police found no cash in her apartment. Stevenson's apartment key was discovered on her wheelchair in the living room. No knife or other possible murder weapon was found in Stevenson's apartment.

However, a knife was missing from the knife holder on the kitchen counter. Police used an alternate light source to look for semen or other bodily fluids in Stevenson's bedroom, but police found no evidence of semen on Stevenson's bed, bed sheets, robe, or anything else in the bedroom. Police also searched the area around the apartment building and the dumpster that was used by first-floor residents, but no evidence was found.

On March 3, 2004, police investigators examined the sealed trash compactor-dumpster that was used by Northgate residents living on the second through the tenth floors. During the search, investigators found Stevenson's clutch purse, which contained her birth certificate, bank card, and library card. Two bills addressed to Frazier were located near the clutch purse. Investigators also found Stevenson's Social Security and Medicaid cards, her large black purse, and a Fruit of the Loom T-shirt, size double X, 50 to 52, that had been turned inside out. Frazier is six feet one inch tall and weighs 250 pounds. A knife that matched the set of knives in Stevenson' kitchen was also found and appeared to have blood on it. No money was found in Stevenson's two purses.

Investigators returned to the police station with the evidence collected from the trash. Bloodstains were detected on the front of the white T-shirt and tested positive for the presence of human blood. The T-shirt and the knife were sent to the lab for DNA testing.

On March 4, 2004, investigators executed a search warrant of Frazier's apartment. There, police seized two T-shirts that were the same size and had the same manufacturing tags as the T-shirt found in the trash compactor.

At approximately 2:30 p.m. on March 4, Toledo detectives William Seymour and Denise Knight conducted a videotaped interview of Frazier. After being advised of his Miranda rights and waiving them, Frazier stated that sometime after 6:00 a.m. on March 2, he went to the laundry room with a basket of bedding and found a woman lying on the laundry-room floor. According to Frazier, he knocked on Stevenson's door and said he needed to call 911. Stevenson let Frazier into her apartment. Frazier then called 911 and told the operator that there was a lady lying on the laundry-room floor at Northgate Apartments. Frazier left Stevenson's apartment and waited for the paramedics.

Frazier said Stevenson was fine when he left her apartment. Stevenson locked the door when he left. Frazier said he did not return to Stevenson's apartment after making the 911 call.

Frazier said the lady was gone when he returned to the laundry room. He told the arriving paramedics that he did not know what happened to the lady. Frazier says he asked Francis Clinton, a fifth-floor resident who was in the laundry-room area, about the lady, and she said, "I didn't see nobody."

At approximately 9:45 p.m. on March 4, 2004, Detectives Seymour and Knight conducted a second videotaped interview of Frazier. According to Frazier, he watched TV at a friend's apartment until midnight or 1:00 a.m. on March 2. Frazier then returned to his apartment. Sometime after 6:00 a.m., he took a light load of bedding to the laundry room. He repeated that he found an unidentified lady lying on the laundry-room floor, went to Stevenson's apartment, and called 911.

Frazier said, "Nothing happened out of the ordinary" when he was in Stevenson's apartment. Frazier said that Stevenson had a beautiful personality but claimed, "I never looked at her in a sexual way." He claimed that he was impotent, so he had no interest in sex. Frazier denied throwing away anything that belonged to the victim. However, he admitted, "I threw that T-shirt away." Frazier said, "I did not do this."

Surveillance cameras at Northgate Apartments provided coverage of the elevators, the main entrances, and the parking lots. However, there were no cameras in the main stairwell next to the laundry room. Police reviewed the surveillance tapes and tracked the movements of Frazier and other residents on the evening of March 1 and the morning of March 2.

Cameras show Francis Clinton entering the laundry room with a load of clothes at 6:30 a.m. on March 2 and then departing. At 7:16 a.m., Frazier entered the laundry room with a small bundle of clothes under his arm and then left and walked towards Stevenson's apartment.

At 7:19 a.m., Clinton returned to the laundry room. At 7:24:11 a.m., Frazier came back to the laundry room with the bundle of clothes under his arms, took a quick look inside, and walked away. At 7:25:02 a.m., Frazier took the elevator to the third floor with the bundle still under his arms. At 7:25:25 a.m., Frazier got out on the third floor. He returned to the elevator at 7:25:50 a.m. without the bundle.

At 7:25:58 a.m., Clinton left the laundry room and returned to the fifth floor. At 7:26:12 a.m., Frazier returned to the laundry room, took another quick peek inside, and left. At 7:26:44 a.m., Frazier and the paramedics entered the laundry room. At 7:27:14 a.m., they departed. Frazier wore a white T-shirt during this entire sequence of events.

At trial, Detective Seymour testified that the third-floor garbage chute is close to the elevator. He said it takes approximately 20 seconds to walk at a normal pace to the garbage chute and return to the elevator. Frazier's third-floor apartment is further down the hall. Seymour said that walking at a regular pace to Frazier's apartment and returning to the elevator takes 40 to 45 seconds.

Dr. Cynthia Beisser, the deputy coroner for Lucas County, conducted the autopsy on Stevenson. The victim suffered a "large sharp-force injury across the neck" that cut "both the carotid arteries and the jugular veins and went through the trachea * * * down to the spine." Stevenson's thyroid cartilage was fractured, and "there was bruising on the undersurface of the chin and on the upper portion of the chest, and * * * blood in the tongue," which showed that she had also been strangled. Dr. Beisser also found vaginal abrasions and lacerations consistent with vaginal intercourse that had occurred while the victim was alive. Dr. Beisser concluded that Stevenson "died of a combination of * * * strangulation and the sharp-force injury to the neck."

Detective Terry Cousino collected physical evidence during the autopsy, including a hair found on Stevenson's right tricep. The hair was sent to the lab for further testing.

Staci Violi, a serology expert at the Ohio Bureau of Criminal Identification and Investigation ("BCI"), conducted tests and verified the presence of human blood on the knife blade and on some areas of the T-shirt that had been found in the trash compactor. Test results were also positive for the presence of amylase, a component of saliva, on the neck area of the T-shirt. However, vaginal and rectal swabs obtained during the autopsy tested negative for the presence of semen. Brian Bowen, a DNA analyst at BCI, conducted DNA tests on bloodstains found on the knife blade. These tests revealed a partial DNA profile consistent with Stevenson's DNA. Bowen testified that the expected frequency of occurrence of the partial DNA profile found on the knife blade is one in 58,070,000 individuals. DNA testing of the knife handle revealed a "mixture," with the "major DNA type * * * consistent with Mary Stevenson." Bowen also conducted DNA testing of a bloodstain from the T-shirt. These tests provided a full DNA profile consistent with Stevenson's DNA. The expected frequency of occurrence from the DNA on this bloodstain is one in 285,500,000,000,000 individuals.

Bowen also conducted DNA testing on the amylase stain on the T-shirt. DNA testing resulted in a "partial profile [that] was a mixture, and the major DNA type is consistent with James Frazier." The frequency of occurrence of the DNA from this stain is one in 493 individuals. DNA testing of the neck band of the T-shirt resulted in a mixture, and Frazier's DNA is consistent with the DNA of a contributor to the mixture. Bowen testified that the frequency of occurrence of the DNA from the neck band of the T-shirt is one in 15,500 individuals. However, Bowen's written report states that the expected frequency of occurrence is one in 115,500 individuals. Finally, DNA testing of swabs from the armpit of the T-shirt resulted in a "mixture," and Frazier's DNA is consistent with the DNA of a contributor to that mixture.

Ted Manasian, an expert in trace evidence at BCI, examined the hair found on Stevenson's right tricep. Manasian testified, "It was found also to be similar * * * to gross physical characteristics to the pubic hairs of James Frazier." Subsequently, the hair was sent to the ReliaGene Corporation for further testing. Amrita Lal-Paterson, formerly a senior DNA analyst at ReliaGene Technologies, conducted mitochondrial DNA testing of the hair from Stevenson's arm. Lal-Paterson found that the hair sample is "consistent with the * * * mitochondrial genetic profile of Mr. Frazier, and * * * therefore Mr. Frazier or a maternal relative of his could not be excluded from that particular sample." According to Lal-Paterson, the percentage of people that could be excluded as a potential donor is 99.6 percent of the African-American population, 99.8 percent of the Caucasian population, and 99.6 percent of the Hispanic population.

Lal-Paterson also conducted Y-chromosome testing of swabs from the T-shirt's armpit. The result of this testing was a "mixture," and the "major contributor was consistent with Mr. Frazier or a paternal relative of his." Lal-Paterson testified that the percentage of the population that could be excluded as a potential donor is

99.8 percent of the African-American population, 99.7 percent of the Caucasian population, and 99.3 percent of the Hispanic population.

The defense presented no evidence during the trial phase.

State v. Frazier, 115 Ohio St. 3d 139, 140-45, 873 N.E.2d 1263, 1273-77 (Ohio 2007).

II. Procedural History

Frazier's trial commenced on May 10, 2005. A jury returned a verdict of guilty as to all counts and the capital specifications eight days later. The penalty phase of the trial commenced on May 20, 2005. That same day, the jury recommended that Frazier be sentenced to death. The trial court accepted the jury's recommendation and sentenced Frazier to death on June 15, 2005.

Frazier filed a timely direct appeal of the trial court's decision to the Supreme Court of Ohio, represented by Attorneys Spiros Cocoves and Ann Baronas, setting forth twenty-four propositions of law as follows:

1. Errors in the mitigation phase jury instruction of a capital trial violate a defendant's constitutional rights and require resentencing.

2. A criminal defendant is denied due process and equal protection of the law when the State exercises its peremptory challenges to exclude minority jurors in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and the Ohio Constitution.

3. It is error for a trial judge to indicate to prospective capital jurors, during the death qualification process, that if the law requires a death sentence they must vote to impose death as a sentence but if the law requires a life sentence they must consider voting for life as a sentence.

4. Execution of a mentally retarded criminal defendant is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and the applicable portions of the Ohio Constitution.

5. A criminal defendant's trial counsel are ineffective when they fail to file motions to suppress statements made by the defendant and fail to seek suppression of search warrants in violation of his right to counsel and right to due process of law under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Ohio Constitution.

6. A criminal defendant's right to due process is violated and a trial court errs when it fails to dismiss a juror who has been contacted and tampered with during the course of trial.

7. A trial court errs when it permits the admission of and argument of inadmissible evidence that is prejudicial to the defendant.

8. The trial court's sentence as to counts two and three must be remanded to the trial court for resentencing in light of State v. Foster.

9. The accused's right to due process under the Fourteenth Amendment to the United States Constitution is violated when the State is permitted to convict upon a standard of proof below proof beyond a reasonable doubt.

10. A prosecutor commits prejudicial error when he concedes that a criminal defendant's mental state is insufficient to enter a guilty plea but argues to a jury during the penalty phase that there are no mental health issues present.

11. A trial court errs in a death penalty case when it denies a defense motion to have a complete copy of the prosecutor's file turned over to the court and sealed for appellate review.

12. A criminal defendant is denied due process and the right to effective assistance of counsel where the actions of his trial counsel fall below any accepted standard of competence in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and the Ohio Constitution.

13. Prosecutorial misconduct during closing argument at the mitigation phase deprives a criminal defendant of a fair sentencing determination.

14. The trial judge in a capital case may not hold an off-the-record ex parte discussion with the jury after they return their sentencing verdict but before the judge imposes sentence.

15. Ohio's death penalty is unconstitutional both in the abstract and as applied.

16. A trial court commits error to the prejudice of a criminal defendant where it permits a witness to render an expert opinion when that witness has not been qualified as an expert as required by Evid. R. 702.

17. A criminal defendant is denied his right to effective assistance of counsel when trial counsel fails to object to the testimony of a witness who renders an expert opinion without being qualified as required by Evid. R. 702.

18. The failure of the trial court to secure the presence of the accused or to obtain a waiver of such right, violates the accused's right under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

19. Lethal injection as administered in Ohio constitutes cruel and unusual punishment and violates Mr. Frazier's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article One, Sections Nine, Ten and Sixteen of the Ohio Constitution.

20. Cumulative errors may deprive a criminal defendant and criminal appellant of a fair trial in violation of his rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Ohio Constitution.

21. When a criminal defendant's trial counsel is deemed to have waived or failed to preserve issues, he was denied his right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section Ten, Article One of the Ohio Constitution.

22. When counsel in a capital case do not adequately preserve the record for appellate purposes, they provide constitutionally ineffective assistance of counsel.

23. A trial court errs where it concludes that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt.

24. A death sentence under the facts of this case is neither appropriate nor in proportion to the death sentences in other cases.

(ECF No. 13-1, Apx. B.) The Ohio Supreme Court affirmed the trial court's opinion on October 10, 2007. State v. Frazier, 115 Ohio St. 3d 139, 873 N.E.2d 1263 (Ohio 2007). Concluding his direct appeals, Frazier filed a Petition for Writ of Certiorari to the United States Supreme Court, employing the same attorneys. The Court denied the Petition on April 21, 2008. Frazier v. Ohio, 553 U.S. 1015 (2008).

While his direct appeals were pending, Frazier filed a Petition for Post-Conviction Relief on May 15, 2006, represented by Attorney Kathryn Sandford. He raised the following nine grounds for relief:

1. Petitioner's convictions and sentence are void or voidable because he is mentally retarded and not subject to being executed.

2. Petitioner Frazier's convictions and sentences are void and/or voidable because he was denied effective assistance of counsel during his capital trial for failing to obtain an expert in the field of mental retardation.

3. Petitioner's death sentence is void or voidable because he received ineffective assistance of counsel during the mitigation phase of his capital trial. Defense counsel were ineffective for failing to conduct an adequate and reasonable investigation of Petitioner's background, and as a result, crucial mitigating evidence was not presented to the jury.

4. Petitioner's convictions and sentence are void or voidable because his trial counsel failed to reasonably investigate, prepare, and present mitigating evidence regarding Frazier's character, history, and background, namely his extensive history of substance abuse.

5. Petitioner's conviction and sentence are void or voidable because the death penalty as administered by lethal injection in the State of Ohio violates his constitutional rights to protection from cruel and unusual punishment and to due process of law.

6. Petitioner's judgment and sentence are void or voidable because his trial attorneys failed to present evidence to support their argument that the death penalty is applied in an arbitrary manner.

7. Petitioner's convictions and sentence are void or voidable because the death penalty law permits the imposition of capital punishment in an arbitrary, capricious, and discriminatory manner due to the uncontrolled discretion afforded elected Lucas County prosecutors in determining when to seek the death penalty.

8. Petitioner's convictions and sentences are void or voidable because Ohio's post-conviction procedures do not provide an adequate corrective process, in violation of the Constitution.

9. Petitioner's judgment and sentence are void or voidable because, assuming arguendo that none of the grounds for relief in his post-conviction petition individually warrant the relief sought from this court, the cumulative effects of the errors and omissions presented in the petition's foregoing paragraphs have been prejudicial and have denied Petitioner his rights.

(ECF No. 13-1, Apx. C.) The Lucas County Court of Common Pleas denied the Petition on October 24, 2007. (ECF No. 17; App. to Return of Writ vol. 6, 56-69.) The Court of Appeals for the Sixth District affirmed the trial court's decision. State v. Frazier, No. L-07-1388, 2008 WL 4408645 (Ohio Ct. App. Sept. 30, 2008). Thereafter, the Ohio Supreme Court declined to exercise jurisdiction over the case. State v. Frazier, 121 Ohio St. 3d 1425, 903 N.E.2d 325 (Ohio 2009).

Frazier filed an Application to Reopen Direct Appeal pursuant to Supreme Court Practice Rule 11.6 on April 14, 2010, represented by Attorney David Doughten. The Application raised three propositions of law, asserting that direct appellate counsel failed to raise the following issues:

1. A capital defendant's right to testify and/or provide an unsworn statement is absolute. He may not be deprived of these rights without an in-court hearing ensuring that the defendant is waiving the rights in a knowing, intelligent and voluntary manner.

2. A trial court may not deprive a capital defendant of his right to allocution pursuant to Ohio Rule of Criminal Procedure 32(A)(1) without obtaining a knowing, intelligent and voluntary waiver.

3. A capital defendant is denied his right to effective assistance of counsel when the actions of counsel or the failure of counsel to act deprive the defendant of his right to a full and fair penalty phase hearing.

The Ohio Supreme Court denied the Application on August 25, 2010, on the ground that Frazier failed to comply with the 90-day filing deadline. State v. Frazier, 126 Ohio St. 3d 1541, 932 N.E.2d 336 (Ohio 2010).

III. Habeas Proceeding

Frazier filed a Notice of Intention to file a Habeas Corpus Petition on May 27, 2009. (ECF No. 1). Concurrently, he filed a Motion for the Appointment of Counsel and a Motion to Proceed In Forma Pauperis. The Court granted both motions and appointed David Doughten and John Gibbons to represent Frazier. (ECF No. 7.) On September 11, 2009, Frazier filed the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 13.)

After requesting and receiving two extensions of time, the Respondent filed a Return of Writ on January 8, 2010. (ECF No. 19.) After requesting and receiving three extensions of time, Frazier filed a Traverse on April 26, 2010. (ECF No. 24.) Respondent thereafter filed a Sur-Reply, rendering the matter ripe for disposition. (ECF No. 25.)

IV. Petitioner's Grounds for Relief

Frazier asserts fifteen (15) grounds for relief. These grounds are as follows:

1. Petitioner's convictions and sentence are void or voidable because he is mentally retarded and not subject to being executed.

2. Petitioner's convictions and sentences are void and/or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

3. The prosecution failed to provide a valid, race-neutral reason as required by Batson v. Kentucky, 476 U.S. 79 (1986), for excluding potential minority jurors.

4. The state trial court failed to hold a hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954). The failure to hold such a hearing denied Petitioner the ability to prove the actual bias in his case.

5. Petitioner was denied the effective assistance of counsel during the culpability phase of the trial.

6. Petitioner's death sentence is void or voidable because he received ineffective assistance of counsel during the mitigation phase of his capital trial. Defense counsel were ineffective for failing to conduct an adequate and reasonable investigation of Petitioner's background, and as a result, crucial mitigating evidence was not presented to the jury.

7. The prosecutor's improper comments during the penalty phase closing argument were designed to mislead the jury about what could be considered an aggravating factor. The comments deprived Frazier of a fair penalty hearing.

8. The trial court failed to hold a hearing, require a written waiver, or engage in any colloquy with Frazier to ensure that he understood that he had the right to provide the jury with an unsworn statement [during the penalty phase] and that he knowingly, intelligently and voluntarily waived that right.

9. The trial court failed to hold a hearing, require a written waiver, or engage in any colloquy with Frazier to ensure that he understood that he had the right to allocution under Ohio law and that he knowingly, intelligently and voluntarily waived that right.

10. The trial court failed to hold a hearing, require a written waiver, or engage in any colloquy with Frazier to ensure that he understood that he had the right to be present at all critical stages of trial to ensure that he knowingly, intelligently and voluntarily waived that right.

11. Frazier was denied his right to effective assistance of counsel in his direct appeal to the Ohio Supreme Court, in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

12. Petitioner's conviction and sentence are void or voidable because the death penalty as administered by lethal injection in the State of Ohio violates his constitutional rights to protection from cruel and usual punishment and to due process of law.

13. The Ohio Supreme Court's arbitrary refusal to review life sentences imposed in similar cases as part of the statutorily mandated proportionality review denied Frazier due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

14. The effect of cumulative error during the trial deprived Frazier of a fair trial.

15. The Ohio death penalty scheme is unconstitutional. (ECF No. 13, passim.)

V. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the provisions of the AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999) ("It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date."). Because Frazier's petition was filed on September 11, 2009, the AEDPA governs this Court's consideration of his petition.

The AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and 'to further the principles of comity, finality, and federalism.'" Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). The requirements of the AEDPA "create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S.1, 127 S. Ct. 2218, 2224 (2007) (citations omitted). Section 2254(d) provides:

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.

28 U.S.C. § 2254(d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court's statement and/or application of federal law and its finding of facts.

With respect to Section 2254(d)(1), "clearly established federal law" refers to the holdings, as opposed to dicta, of the United States Supreme Court's decisions as of the time of the relevant state court decision. Williams, 529 U.S. at 412; Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir. 2000). The "contrary to" and "unreasonable application" clauses of Section 2254(d)(1) are independent tests and must be analyzed separately. Williams, 529 U.S. at 412-13; Hill v. Hofbauer, 337 F.3d 706, 711 (6th Cir. 2003). A state court decision is "contrary to" federal law only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13.

Even if the state court identifies the "correct governing legal principle," a federal habeas court may still grant the petition if the state court makes an "unreasonable application" of "that principle to the facts of the particular state prisoner's case." Williams, 529 U.S. at 413. A state court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407; Hill, 337 F.3d at 711. As the Supreme Court has advised, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably applying more general rules in the context of a particular case. Id.

The Supreme Court recently emphasized the limited nature of review under Section 2254(d)(1) in Harrington v. Richter, -- U.S. --, 131 S. Ct. 770 (2011). It cautioned that the AEDPA requires federal habeas courts to review state court decisions with "deference and latitude," and that "[a] state court's determination that a claim lacks merit precludes habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (quoting Yarborough, 541 U.S. at 664).

The Supreme Court interpreted the "unreasonable determination of the facts" clause in Section 2254(d)(2) in Wiggins v. Smith, 539 U.S. 510 (2003). In that case, the Court noted that a "clear factual error," such as making factual findings regarding the contents of social service records contrary to "clear and convincing evidence" presented by the defendant, constitutes an "unreasonable determination of the facts in light of the evidence presented." Id. at 528-29. In other words, a state court's determination of facts is unreasonable if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the "presumption of correctness" afforded factual determinations made by a state court, which can only be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003); Clark v. O'Dea, 257 F.3d 498, 506 (6th Cir. 2001) ("regardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary"). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact. See Mason, 325 F.3d at 737-38 (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of Section 2254(d)(1) applies).

By its express terms, however, Section 2254(d)'s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004). When a state court does not assess the merits of a petitioner's habeas claim, the deference due under the AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether that court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, but rather conducts a de novo review of the claim. Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007) (citations omitted); Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine "whether the state court result is contrary to or unreasonably applies clearly established federal law." Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005) (citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000)).

VI. Exhaustion and Procedural Default

A. Exhaustion

A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509 (1982). Exhaustion is fulfilled once a state supreme court provides a convicted defendant an opportunity to review his or her claims on the merits. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). If under state law there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust, 17 F.3d at 160.*fn1

A petitioner "cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state's highest court." Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001)) (internal quotation marks omitted). Rather than dismiss certain claims the Court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).

B. Procedural Default

1. General Law

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

In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit outlined the now

familiar test to be followed when the state argues that a habeas claim is defaulted because of a prisoner's failure to observe a state procedural rule. It is:

First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction -- that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must decide whether the state procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice.

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

In determining whether the Maupin factors are met, the federal court looks to the last explained state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). "'[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir. 2007) (quoting Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir. 2003)). Conversely, if the last state court to be presented with a particular federal claim reaches the merits, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review. Ylst, 501 U.S. at 801.

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

A petitioner can establish cause in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); Mohn v. Bock, 208 F. Supp. 2d 796, 801 (E.D. Mich. 2002). Objective impediments include an unavailable claim, or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488; Mohn, 208 F. Supp. 2d at 801. Second, constitutionally ineffective assistance of counsel constitutes cause. Murray, 477 U.S. at 488-89; Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994); Mohn, 208 F. Supp. 2d at 804.

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

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

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

2. Frazier's Procedural Default Arguments

a. not consistently applied

During post-conviction proceedings, Ohio courts can hold that a claim is barred by res judicata based on the holding in State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (Ohio 1967). In that case, the Ohio Supreme Court held that a final judgment of conviction bars a convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial on the merits, or on appeal from that underlying judgment. Id. at 180, 226 N.E.2d at 108; see also State v. Roberts, 1 Ohio St. 3d 36, 39, 437 N.E.2d 598, 601 (Ohio 1982) (holding policy behind Perry bars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, rather than constitutional, issues). Thus, unless a claim is based on evidence dehors (outside of) the record, it must be raised during direct appeal, or be deemed waived.

Frazier argues in the Traverse that the Perry doctrine is not an "adequate" rule under Maupin. (ECF No. 24, 6-11.) A procedural rule is not "adequate" unless, among other things, it is regularly and consistently applied. See Warner v. United States, 975 F.2d 1207, 1213 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993) (stating that the rule only applies to "firmly established and regularly followed state practices") (citing Ford v. Georgia, 498 U.S. 411, 422 (1991)). Thus, Frazier concludes, because of the Ohio courts' inconsistent application of Perry, this Court need not defer to an Ohio court's finding of a Perry violation.

To support his argument, Frazier cites to several capital cases in which the Ohio Supreme Court, on direct appeal, sua sponte addressed the merits of claims the court of appeals had concluded were barred by res judicata, or considered claims that had not even been raised in the court of appeals and, thus, should have been barred by res judicata.

Some of the cases relied upon by Frazier clearly do not support his argument and are, in fact, inapposite. For instance, in each of the following three cases, a well-established exception to the res judicata doctrine applied, or the court did not actually engage in a merits review. For example, Frazier relies on State v. Buell, 22 Ohio St. 3d 124, 142, 489 N.E.2d 795, 811 (Ohio 1986). In Buell, the court analyzed the constitutionality of the imposition of the death penalty in light of the recently decided United States Supreme Court decision in Caldwell v. Mississippi, 472 U.S. 320 (1987), even though the appellant did not raise the issue at trial, or in his appeal to the Ohio Supreme Court. The reason the Ohio Supreme Court considered the claim sua sponte was that it could not have been raised before. Caldwell was decided in 1985, after Buell's appeal had been filed and resolved by the Ohio court of appeals.

Similarly, in State v. Huertas, 51 Ohio St. 3d 22, 553 N.E.2d 1058 (Ohio 1990), the Ohio Supreme Court resolved an issue and ultimately granted relief on the basis of a Supreme Court opinion, Booth v. Maryland, 482 U.S. 496 (1987), overruled by Payne v. Tennessee, 501 U.S. 808 (1991), which was issued after the appellant's trial and after the appeal had been filed, but before the appellate court issued its decision. Id. Booth held that the use of victim impact evidence during the penalty phase of a capital trial is unconstitutional. There is no indication in the opinion itself that the petitioner had failed to raise a claim based on the use of victim impact statements. Thus, it is possible the claim had been raised below, even if the appellant could not have relief based on Booth. Thus, Huertas is unhelpful to Frazier.

Frazier's reliance on State v. Rogers, 32 Ohio St. 3d 70, 512 N.E.2d 581 (Ohio 1987), suffers from the same defect. The court considered a claim based on the prosecutor's evidentiary use of the petitioner's post-Miranda exercise of his right to silence, in violation of the recently decided Wainwright v. Greenfield, 474 U.S. 284 (1986). As in Huertas and Buell, the United States Supreme Court decision was issued after the appellant's direct appeal to the court of appeals, and, thus, the appeal to the Ohio Supreme Court presented the earliest opportunity for raising the claim.

In other cases, however, the Ohio Supreme Court did appear to ignore the res judicata bar and address the appellant's claims on the merits without explaining why it was doing so. See State v. Williams, 38 Ohio St. 3d 346, 528 N.E.2d 910 (Ohio 1988) ("Because of the gravity of the sentence that has been imposed on appellant, we have reviewed the record with care for any errors that may not have been brought to our attention. In addition, we have considered any pertinent legal arguments which were not briefed or argued by the parties."); State v. Hamblin,

37 Ohio St. 3d 153, 524 N.E.2d 476 (Ohio 1988) ("Because this is a capital case, we will review all five arguments [even those not raised below] relating to the claim of ineffective assistance of counsel."); State v. Esparza, 39 Ohio St. 3d 8, 529 N.E.2d 192 (Ohio 1988) (considering issue of jury venire, even though it was "challenge[d] for the first time on appeal"); State v. Barnes, 25 Ohio St. 3d 203, 495 N.E.2d 922 (Ohio 1986) (stating, "since the instant argument was neither raised before, nor ruled on by, the court of appeals, this court is not required to address it on the merits," but addressing the claim anyway).*fn2

That the Ohio Supreme Court occasionally chooses to address the merits of the claims that are otherwise barred from review on the basis of res judicata does not mean that Ohio's law of res judicata is so inconsistent as to be inadequate, however. Rather, these are the exceptions that prove the rule. There has been no showing that because of the above-mentioned exceptions, Frazier or other capital habeas petitioners reasonably came to believe the Perry rule had been abandoned in capital cases. Thus, there was no basis to conclude the exception had become the rule, or that it would have been reasonable for a petitioner to assume it had.*fn3

Ultimately, Frazier's argument is unpersuasive. The Sixth Circuit specifically has held that Ohio's application of the res judicata doctrine under Perry is an adequate and independent state ground. Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) ("This court has held that [the Perry rule] is regularly and consistently applied by Ohio courts as required by the four-part Maupin test.") (citing Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000)). See also Mapes v. Coyle, 171 F.3d 408, 420 (6th Cir. 1999), cert. denied, 528 U.S. 946 (1999) (noting that the Perry rule has been consistently applied). Consequently, any claim that the Ohio courts assert is barred by the Perry rule is procedurally defaulted.

b. post-conviction system violates due process

Frazier also asserts a broad challenge to the constitutionality of Ohio's post-conviction system, contending that Ohio's post-conviction bar of res judicata does not satisfy due process requirements. According to Frazier, Ohio's post-conviction system is designed to create procedural defaults for the sake of judicial convenience, and provides no meaningful opportunity for petitioners to identify, investigate, or prove constitutional violations. The thrust of his argument seems to be that Ohio's post-conviction practice makes compliance with its procedural requirements so difficult that petitioners are set up for failure. (ECF No. 24, 12-13.) This argument is unpersuasive.

In support of his argument, Frazier relies on Easter v. Endell, 37 F.3d 1343, 1345 (8th Cir.1994); Harmon v. Ryan, 959 F.2d 1457, 1462 (9th Cir. 1992); and Kim v. Villalobos, 799 F.2d 1317, 1321 (9th Cir. 1986). None of these cases supports Frazier's argument that Ohio's application of res judicata in post-conviction proceedings violates due process.

In Easter, the petitioner pleaded guilty to various crimes in an Arkansas state court in December 1989. At the time, Arkansas did not allow those who pleaded guilty to appeal; in addition, Arkansas had no real post-conviction system in place. A year after Easter's guilty plea and conviction, Arkansas erected a post-conviction procedure (Rule 37) that allowed for the review of guilty pleas. However, petitions containing such challenges were required to be filed within ninety days of judgment. The Arkansas Supreme Court subsequently held that individuals who had pleaded guilty during the period in which Rule 37 was not in effect had a right to challenge their guilty pleas under the rule. State v. Fox, 832 S.W.2d 244 (Ark. 1992). The Arkansas Supreme Court also said, however, that such challenges still had to be made within the ninety day period. Easter filed a Rule 37 petition, and it was denied as untimely. Easter raised a challenge to his guilty plea on federal habeas review, and the district court held that the claim was procedurally defaulted.

The Eighth Circuit Court of Appeals reversed. The court held that the Fox procedural bar was not adequate as to Easter,*fn4 because it was not a firmly established rule when applied to him.*fn5 Easter, 37 F.3d at 1345. In this case, Frazier has not shown that any of his procedural defaults were due to a procedural rule that was not firmly established at the time it was applied to him.*fn6

Harmon also offers no support for Frazier's claim. In Harmon, the district court dismissed the petitioner's habeas corpus petition because he had failed to pursue a direct appeal in the Arizona Supreme Court first. The Ninth Circuit reversed, holding, basically, that the Arizona Supreme Court had misled the petitioner about what he needed to do to exhaust his state remedies. The Ninth Circuit held that the petitioner's default was due to the fact that, prior to its occurrence, the Arizona Supreme Court expressly held that "'[o]nce the defendant has been given the appeal to which he has a right [i.e., in the state intermediate appellate court], state remedies have been exhausted.'" Harmon, 959 F.2d at 1463 (quoting State v. Shattuck, 684 P.2d 154, 157 (Ariz. 1984)). Thus, the Ninth Circuit concluded, in light of Shattuck, it was reasonable for an Arizona defendant to believe that an appeal to the Arizona appeals court was all that was needed to exhaust his state remedies before pursuing a federal habeas action, and the failure to appeal to the Arizona Supreme Court was excused. Here, Frazier has not pointed to a single decision that misled him about his obligations.

Likewise, Kim does not assist in Frazier's argument. In Kim v. Villalobos, 799 F.2d at 1321, the Ninth Circuit held that where a pro se prisoner's failure to plead his claims with particularity resulted in his being unable to pursue post-conviction relief, the procedural default would be excused. Here, there is no such obstacle to Frazier, who was represented by counsel throughout his appeal and post-conviction proceedings. Accordingly, this argument fails.

Finally, Frazier asserts that this Court should excuse any procedural default for claims barred by the Perry doctrine if they are based on evidence dehors the record. The Court declines to express a general conclusion regarding this issue and will address this argument as it is raised in regard to Frazier's individual grounds for relief.

VII. Analysis of Petitioner's Grounds for Relief

A. First and Second Claims for Relief: Mental Retardation and Related Ineffective Assistance of Counsel

Frazier's first claim for relief is that he is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), and State v. Lott, 97 Ohio St. 3d 303, 305, 779 N.E.2d 1011, 1014 (Ohio 2002), and therefore ineligible for execution. His second, related claim for relief is that his trial counsel provided ineffective assistance of counsel when they failed to mount an Atkins defense. Frazier acknowledges that these claims lie at the heart of his habeas action. He requests oral argument and an evidentiary hearing on both claims. (ECF No. 24, 3; ECF No. 28.) Oral argument and an evidentiary hearing are not required.

1. Mental Retardation

In Atkins v. Virginia, the United States Supreme Court held that executing a mentally retarded offender violates the Eighth Amendment's ban on cruel and unusual punishment. Atkins, 536 U.S. at 321. The Court recognized a national consensus that mentally retarded persons are less culpable and more prone to wrongful execution. Id. at 318-21. The Atkins Court did not provide a definition for "mental retardation," rather, as the Supreme Court did in the context of mental competency, it entrusted the states with the "task of developing appropriate ways to ...


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