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White v. Warden, Ross Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

January 9, 2018

VINCENT D. WHITE, JR., Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          JAMES L. GRAHAM, JUDGE.

          ORDER AND REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition and amendment to the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Petitioner's motion to file a Reply to the Return of Writ (see ECF No. 12) is GRANTED, and Petitioner's request for a stay of proceedings (ECF No. 12) is DENIED.

         I. Facts and Procedural History

         Petitioner challenges his convictions after a trial in the Franklin County Court of Common Pleas on one count of aggravated burglary, three counts of aggravated robbery, four counts of aggravated murder, two counts of attempted murder, two counts of felonious assault, and one count of having weapons while under disability. On January 21, 2014, the trial court imposed a term of life imprisonment without the possibility of parole. The state appellate court summarized the facts as follows:

On August 30, 2012, a Grand Jury indicted White and an alleged coconspirator. The Grand Jury charged White with one count of aggravated burglary, three counts of aggravated robbery, four counts of aggravated murder, two counts of attempted murder, two counts of felonious assault, and one count of possessing a firearm while under disability. All counts (except the weapon under disability count) contained specifications for the use of a firearm.
The counts in the indictment arose from a single incident. On July 29, 2012, four men were shot in a house located at 1022 East 17th Avenue in Columbus, Ohio. Keith Paxton (aka “Gutter”) and Albert Thompson (aka “T”) were killed in the attack. Juanricus Kibby and Miquel Williams suffered bullet wounds but recovered.
The case went to trial on October 28, 2013. At the trial, both surviving victims identified White as one of the two shooters. In addition, another witness, Jeffrey Harris, testified that White had told him beforehand about White's plan to rob the house and then afterwards offered Harris a share of the money. Kibby and Williams both had known White for a long time; yet, neither identified him the first time they spoke with police following the shooting. Harris, who was initially suspected of having some involvement in the crime, went to the police to clear his name, but he did not tell the police the story he told at trial about White telling him of his plan to rob the house.
White's co-defendant presented an alibi witness, who claimed that the codefendant was not present during the shooting. White admitted that he was at the house and shot some of the people there. However, he claimed that he shot in self-defense because, when he arrived to buy drugs, the four individuals who were subsequently deemed to be the victims, made him get on his knees at gunpoint and were robbing him. Forensic evidence regarding the direction and angles from which some of the victims were shot tended to contradict White's version of the events, as did the fact that White and the other shooter each fired at least six times and the four victims did not return fire. Thompson was shot as if he were getting up from a seated position, and Paxton was shot in the back shoulder. Only two guns were used in the shooting and neither were any of the guns in the possession of the house occupants.
On November 5, 2013, the trial concluded, and the jury began its deliberations. Two days later, the jury announced its verdict. The jury found White guilty on all counts. The trial court also found White guilty of having a weapon while under disability. The trial court held a sentencing hearing on January 22, 2014 and sentenced White to life in prison without parole.

State v. White, No. 14AP-160, 2015 WL 9393518, at *1-2 (Ohio App. 10th Dist. Dec. 22, 2015). Represented by new counsel, Petitioner filed a timely appeal. He raised the following assignments of error:

[I.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION BASED UPON THE ACTUAL AND POTENTIAL CONFLICTS OF INTERESTS THE DEFENDANT'S TRIAL COUNSEL HAD IN THIS CASE.
[II.] THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURORS THAT IT HAD TO FIND THE DEFENDANT NOT GUILTY OF AGGRAVATED MURDER BEFORE IT COULD CONSIDER THE DEFENDANT'S GUILT OF THE LESSER-INCLUDED OFFENSE OF MURDER, THE SO- CALLED “ACQUITTAL FIRST” INSTRUCTION THAT WAS HELD TO BE IMPROPER IN STATE V. THOMAS, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), AND FURTHER ERRED WHEN IT INSTRUCTED ON THE AGGRAVATED MURDER CHARGES IN COUNTS SEVEN AND EIGHT WITHOUT ALSO INSTRUCTING ON THE LESSER OFFENSE OF MURDER AND DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO THESE INSTRUCTIONS.
[III.] WHEN THE STATE CLAIMED THAT THE DEFENDANT FLED THE SCENE DUE TO A CONSCIOUSNESS OF GUILT, WHILE THE DEFENDANT MAINTAINED THAT HE FLED THE SCENE OF THE SHOOTING OUT OF FEAR FOR HIS SAFETY, IT WAS PREJUDICIAL CONDUCT FOR THE JUDGE, OVER OBJECTION, TO PICK A SIDE AND INSTRUCT THE JURY ONLY WITH RESPECT TO THE STATE'S THEORY OF GUILT AND TO INSTRUCT ONLY ON THE INFERENCES REQUESTED BY THE STATE AND TO EMPHASIS [sic] AND GIVE UNDUE PROMINENCE ONLY TO THE FACTS THAT SUPPORTED THE STATE'S THEORY.
[IV.] THE TRIAL COURT ERRED WHEN IT VIOLATED THE RULES AGAINST HAVING EX PARTE COMMUNICATIONS WITH THE STATE WHERE THE COURT WAS TOLD EXTREMELY PREJUDICIAL ALLEGATIONS CONCERNING THE DEFENDANTS WHICH SO FRIGHTENED THE COURT THAT IT ORDERED, WITHOUT A PROPER HEARING, EXTRAORDINARY SECURITY MEASURES FOR THE COURTROOM AND THE TRIAL, AND THE ALLEGATIONS WERE SO PREJUDICIAL THAT THEY AFFICETED [sic] THE RIGHTS OF THE DEFENDANT TO A FAIR TRIAL FROM AN IMPARTIAL JUDGE.

Id. On December 22, 2015, the appellate court affirmed the judgment of the trial court. Id. On May 4, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. White, 145 Ohio St.3d 1460 (Ohio 2015).

         On April 17, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of counsel (claim one); that he was denied a fair trial when the judge issued an improper jury instruction and denied the effective assistance of counsel based on his attorney's failure to object (claim two); that the trial court improperly instructed the jury on the State's theory of guilt and gave undue prominence to facts supporting the government's theory of guilt (claim three); and that the trial court improperly issued extraordinary security measures, violating Petitioner's right to a fair trial by an impartial trial judge (claim four). Petition (ECF No. 3.) Petitioner also asserts that he was denied the effective assistance of counsel based on his attorney's conflict of interest. Petitioner's Amendment to Petition for Writ of Habeas Corpus (ECF No. 7.) It is the position of the Respondent that Petitioner's claims are procedurally defaulted or otherwise fail to present a basis for relief.

         II. Motion for Stay

         In claim five, Petitioner asserts that he was denied the effective assistance of trial counsel, because his attorney, Javier Armengau, faced pending felony charges during the time of his representation of the Petitioner in this case.[1] Although Respondent argues otherwise, see Return of Writ (ECF No. 11, PAGEID #67), Petitioner plainly raised this same issue in the Ohio Court of Appeals.

         Petitioner argued that he was denied his right to the effective assistance of counsel based on the actual and potential conflicts of interests of his attorney, because his attorney had been indicted on charges of rape, kidnapping, sexual battery, gross sexual imposition, and public indecency, and faced prosecution from the same entity. Brief of Defendant-Appellant (ECF No. 11-1, PAGEID ##143, 160.) Petitioner argued that the pending criminal charges created a potential conflict of interest, and that his attorney, the trial court, and the government had a duty to advise the Petitioner so that he could choose to proceed with different counsel or waive the potential conflict, unless an actual conflict existed. (PAGEID ##162-63.) Petitioner supported his claim by reference to State v. Gillard, 64 Ohio St.3d 304 (Ohio 1992), which in turn relies on federal law regarding the denial of the effective assistance of counsel based upon an alleged conflict of interest. See Wood v. Georgia, 450 U.S. 261 (1981); Cuyler v. Sullivan, 446 U.S. 335 (1980): Holloway v. Arkansas, 435 U.S. 475 (1978). Petitioner also referred to other federal cases in support of his claim. (PAGEID ##164-171; 179-180.)[2]

         The state appellate court rejected the claim as follows:

White asserts that, at the time of the trial, his trial attorney, Javier Armengau, was under indictment in Franklin County and facing very grave challenges to his own freedom, finances, and license to practice law. White argues that this situation created a conflict of interest.
That is, White suggests that Armengau would have been conflicted over whether to devote time to preparing his own defense or that of his client; Armengau might have chosen to take a greater percentage of White's financial resources in fees to help finance his own defense rather than hire an investigator in White's case; and Armengau would have been reluctant to vigorously represent White for fear of angering the same prosecutor's office that was prosecuting him, or even, conversely, might have failed to engage in any plea-bargaining efforts in White's case out of an indignant or vengeful desire to gain a victory over the prosecutor's office.
White argues that there is nothing in the record to show that he was properly advised of the potential conflict of interest or that he waived this potential for conflict on the record or in writing. Plaintiff-appellee, State of Ohio, argues that there is no information in the record of this case regarding Armengau's indictment, conviction, or disciplinary proceedings.
“‘A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.'” Morgan v. Eads, 104 Ohio St.3d 142, 818 N.E.2d 1157, 2004-Ohio-6110, ¶ 13, quoting State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Though White's brief asserts facts about Armengau's difficulties, the record in this direct appeal contains no evidence or information whatsoever about Armengau's particular situation. Although White refers to the caption of Armengau's criminal case and the caption of his disciplinary case before the Supreme Court of Ohio, he does not expressly request that we take judicial notice of the same. Nevertheless, even if we were to take judicial notice of the fact that Armengau was indicted for a number of serious criminal offenses before White's trial and was convicted and imprisoned for them after White's trial, the record would still be devoid of any factual details regarding Armengau's licensure issues. Furthermore, there is nothing in the record of this direct appeal indicating White was unaware of Armengau's situation. In short, while we understand White's argument, that his counsel may have been distracted and conflicted by the fact that he was suffering severe legal and personal difficulties at the same time that he was engaged in litigating White's murder trial, we lack the necessary facts to fully consider such a matter in a direct appeal. A direct appeal, where the record is limited and where the record contains no mention of any of the relevant facts at issue, is not the vehicle to make such an argument.
White's first assignment of error is overruled.

White, 2015 WL 9393518, at *2-3.

         Petitioner requests a stay of proceedings in order to exhaust his claim regarding his attorney's alleged conflict of interest by filing a state post-conviction petition pursuant to O.R.C. § 2953.21. Respondent has not filed a response to Petitioner's request. Petitioner does not indicate the date of the filing of the post-conviction petition, nor has he provided a copy of this document; however, the docket of the Franklin County Clerk of Courts indicates that, on October 11, 2017, Petitioner filed a petition to vacate or set aside judgment of conviction or sentence in the state trial court. On November 30, 2017, the trial court denied the motion as untimely, because Petitioner filed the post-conviction petition approximately two years late. The Court is unable to determine whether Petitioner has filed an appeal from that decision.

         Before a federal habeas court may grant relief, a state prisoner must exhaust his available remedies in the state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under state law to raise a claim by any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be presented to the state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).

         Additionally, federal courts may not entertain “mixed petitions, ” i.e., petitions that present both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). Federal courts have the discretion to stay a mixed petition in order to permit a petitioner to present his unexhausted claim to the state courts, and then to return to federal court for review of all, now exhausted, claims. Rhines v. Weber, 544 U.S. 269 (2005). However, stays under these circumstances should be only sparingly used; stays are not appropriate, for example, when the unexhausted grounds are plainly meritless. Id. at 278. A petitioner seeking a stay to permit exhaustion of an unexhausted claim must demonstrate both good cause for having failed to exhaust his state court remedies and a potentially meritorious claim. Id. at 277-78.

         Respondent does not argue that Petitioner's claim is unexhausted or procedurally defaulted based on his failure to pursue state post-conviction relief. Further, the time period for filing a post-conviction petition has now long since expired, and the record does not reflect that Petitioner will be able to meet the stringent requirements for consideration of his claim in an untimely post-conviction petition. To the contrary, the trial court dismissed Petitioner's post-conviction petition as untimely. Assuming that Petitioner has filed a timely appeal, it appears from the record that the state appellate court will affirm that decision under the provision of O.R.C. § 2953.23.[3] Under these circumstances, a stay of proceedings is not warranted. Further, Petitioner's claim is not potentially meritorious, as that term is defined under Rhines so as to justify a stay. See Cauthon v. Warden, Marion Correctional Institution, No. 2:17-cv-272, 2017 WL 3912724, at *8 (S.D. Ohio Sept. 7, 2017) (citing Childers v. Warden, Chillicothe Correctional Institution, No. 2:13-cv-991, 2014 WL 3828429, at *4 (S.D. Ohio Aug. 4, 2014) (citing Toledo v. Banks, No. 09-cv-614, 2010 WL 2620593, at *5 (S.D. Ohio June 25, 2010) (citing Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010))); Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005); Carter v. Friel, 415 F.Supp.2d 1314, 1321-22 (D. Utah 2006); Scott v. Sheldon, No. 3:08 CV 1837, 2009 WL 2982866 (N.D. Ohio September 11, 2009); Sieng v. Wolfe, No. 2:08-cv-0044, at *7, 2009 WL 1607769 (S.D. Ohio June 9, 2009); Bailey v. Eberlin, No. 2:08-cv-839, 2009 WL 1585006, at *7 (S.D. Ohio June 4, 2009)). In short, a stay of proceedings would not be warranted for Petitioner to pursue a motion that has little likelihood of success. See id.; Battiste v. Miller, No. 1:17-cv-128, 2017 WL 1907262, at *5 (N.D. Ohio April 18, 2017) (citation omitted) (where an unexhausted claim is likely procedurally defaulted, a stay and abeyance would be fruitless).

         Therefore, Petitioner's request for a stay is DENIED.

         III. Procedural Default

         Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, “there is a procedural default for purposes of federal habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

         The term “procedural default” has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This requires the petitioner to present “the same claim under the same theory” to the state courts before raising it on federal habeas review. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case-that is, they are “procedurally defaulted.” In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.” Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, the Court must determine whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that the petitioner did not comply with a state procedural rule and that the rule was an adequate and independent state ground, then the petitioner must demonstrate cause for his failure to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.), cert. denied sub nom. Leroy v. Morris, 474 U.S. 831 (1985).

         In light of the fourth part of the Maupin analysis, in order to establish cause, petitioner must 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). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must “‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'” Id. at 452 (quoting Murray, 477 U.S. at 479. That is because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir.), cert. denied, 546 U.S. 1017 (2005). Or, if the claim is procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice' standard with respect to the ineffective-assistance claim itself.” Edwards, 529 U.S. at 450-51. The Supreme Court explained the importance of this requirement:

We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: “In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.” 501 U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to “‘protect the integrity' of the federal exhaustion rule.” Id. at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by “‘letting the time run'” so that state remedies were no longer available. Id. at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have “concededly exhausted his state remedies, ” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon [his claims].' ” Id. at 854, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).

Id. at 452-53.

         If, after considering all four factors of the Maupin test, the Court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless “review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray, 477 U.S. at 495-96)), cert. denied, 135 S.Ct. 1545 (2015).

         In claim one, Petitioner asserts that he was denied the effective assistance of counsel because his attorney did not listen to tape recordings of police witness interviews for cross-examination of prosecution witnesses with prior inconsistent statements; failed to request a mistrial or request an inquiry regarding a juror's disclosure during trial that she was related to the victim's family; failed to conduct adequate impeachment of prosecution witnesses; lacked knowledge regarding cross-examination; failed to object to instances of prosecutorial misconduct; and failed to object to issuance of an “acquittal first” jury instruction. Petition (ECF No. 3, PAGEID #24.) With the exception of the last of these claims, Petitioner did not raise the foregoing issues on direct appeal, where he was represented by new counsel. Further, although Petitioner did assert on direct appeal that he was denied the effective assistance of counsel based on his attorney's failure to object to an “acquittal first” jury instruction, he thereafter failed to raise this same claim on appeal to the Ohio Supreme Court. He has thereby waived this claim for review in these proceedings. Likewise, in claim four, Petitioner asserts that the trial court violated rules against ex parte communications and improperly imposed extraordinary security measures during trial, thereby depriving Petitioner of his right to an impartial judge. Petition (ECF No. 3, PAGEID #30.) However, Petitioner did not raise this same claim in his appeal to the Ohio Supreme Court.

         Petitioner maintains that he presented all of his claims regarding the denial of the effective assistance of trial counsel on direct appeal, by including them as instances establishing that he had established prejudice from counsel's alleged conflict of interest. This Court is not persuaded that Petitioner has thereby preserved these issues as independent claims for relief in these proceedings.[4] Moreover, Petitioner did not raise these same issues on appeal to the Ohio Supreme Court. (ECF No. 11-1, PAGEID #311-16.)

         Petitioner may now no longer present any of the foregoing claims to the state courts because of Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112, 115 (1982); State v. Perry, 10 Ohio St. 2d 175, 180 (1967) (claims must be raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.). The state courts were never given an opportunity to enforce this procedural rule due to the nature of Petitioner's procedural default.

         Ohio's doctrine of res judicata is adequate and independent under the third part of the Maupin test. To be “independent, ” the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman, 501 U.S. at 732-33. To be “adequate, ” the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411, 423 (1991). “[O]nly a ‘firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim.” Id. (quoting James v. Kentucky, 466 U.S. 341, 348- 351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964). The United States Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001), cert. denied sub nom. Coleman v. Bagley, 535 U.S. 1031 (2002); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000) cert. denied, 531 U.S. 1082 (2001); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.), cert. denied, 525 U.S. 935 (1998). Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d 16, 18 (1981). Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.

         In claim two, Petitioner asserts that the trial court improperly issued an “acquittal first” jury instruction, advising the jury that it had to find Petitioner not guilty of aggravated murder before it could return a guilty verdict on the lesser-included offense of murder. Petition (PAGEID #26.) Petitioner raised this same claim on direct appeal; however, the appellate court reviewed the claim for plain error only, due to Petitioner's failure to object:

B. Second Assignment of Error-Whether the Trial Court Gave an Impermissible Acquit First Instruction The Supreme Court of Ohio has held:
If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of ...

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