Frazier v. Huffman

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 8, 2003
• Docket: 01-3122
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Frazier v. Huffman No. 01-3122 ELECTRONIC CITATION: 2003 FED App. 0320P (6th Cir.) File Name: 03a0320p.06 Nalbandian, Daniel F. Oberklein, James V. Schuster, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David Paul Bradley, GALLAGHER, SHARP, FULTON & UNITED STATES COURT OF APPEALS NORMAN, Cleveland, Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF FOR THE SIXTH CIRCUIT OHIO, Cleveland, Ohio, Henry G. Appel, OFFICE OF THE _________________ ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. RICHARD M. FRAZIER, X Petitioner-Appellant, - GILMAN, J., delivered the opinion of the court, in which - CLAY, J., joined. BATCHELDER, J. (pp. 34-42), delivered - No. 01-3122 a separate opinion concurring in part and dissenting in part. v. - > _________________ , STEPHEN J. HUFFMAN, - Warden, OPINION - _________________ Respondent-Appellee. - - RONALD LEE GILMAN, Circuit Judge. Tiffany Skiba N was stabbed to death on November 8, 1990. The grand jury Appeal from the United States District Court in Cuyahoga County, Ohio indicted Richard M. Frazier on for the Northern District of Ohio at Toledo. two counts of aggravated murder for the death of Skiba, each No. 98-02098—James G. Carr, District Judge. with three death-penalty specifications, and on one count of aggravated burglary. Frazier proceeded to trial in state court Argued: October 15, 2002 on August 5, 1991. The jury convicted him on all counts and subsequently recommended that he be sentenced to death. Decided and Filed: September 8, 2003 That recommendation was adopted by the trial judge.

Before: BATCHELDER, CLAY, and GILMAN, Circuit After exhausting his direct appeals and state postconviction Judges. remedies, Frazier sought a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. He raised multiple _________________ grounds for relief, but primarily focused on claims of evidentiary error, prosecutorial misconduct, and ineffective COUNSEL assistance of counsel. The district court denied Frazier’s petition, but granted him a certificate of appealability on all ARGUED: John B. Nalbandian, TAFT, STETTINIUS & issues. For the reasons set forth below, we REVERSE in HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Michael part the judgment of the district court, GRANT Frazier a L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF conditional writ of habeas corpus that will result in the OHIO, Cleveland, Ohio, for Appellee. ON BRIEF: John B. vacation of his death sentence unless the state of Ohio

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commences a new penalty-phase trial against him within 180 Skiba’s grandfather, Robert Skiba, followed his usual days from the date that the judgment in this matter becomes practice on November 8, 1990 when, at 5:00 a.m., he drove final, and REMAND the case for further proceedings his wife to work at a nearby hospital and returned home consistent herewith. fifteen minutes later. Upon his arrival home, his dog was barking and looking excitedly at the back door. Robert Skiba I. BACKGROUND apparently thought little of this unusual behavior at the time. After calling upstairs for his granddaughter at 10:00 a.m. and A. Factual background receiving no response, however, he went upstairs to check on her. Upon entering Tiffany Skiba’s bedroom to rouse her, Frazier married Susan Bednarski in 1980, thereby Robert Skiba was met with the ghastly sight of his becoming the stepfather of Bednarski’s eight-year-old granddaughter’s corpse lying in bed, covered in blood and full daughter from a previous relationship, Tiffany Skiba. In of puncture wounds. February of 1988, Bednarski discovered that Skiba was pregnant. Both women believed that Skiba’s pregnancy was Police officers who arrived at the scene discovered a broken the result of sexual abuse by Frazier. Bednarski sought a steak knife next to Skiba’s body. The knife was part of a set divorce. Skiba spoke to the local authorities in Medina belonging to her grandparents. There was blood on the knife, County, Ohio. In October of 1988, Frazier was indicted in in the surrounding area, on the stairway heading down from state court on two counts of rape and two counts involving the second-floor bedroom, and on the first-floor living room’s other sex crimes. One month earlier Skiba had given birth to door frame. The police discovered that the screen on a a son. basement window had been removed and that one of the panes of glass had been shattered. Although it was normally The state criminal court ordered Frazier to submit to a kept closed, the door leading from the basement into the rest blood test to determine the paternity of Skiba’s child. He of the house was open. One of Skiba’s uncles had once appealed that order to the intermediate state appellate court shown Frazier how to gain access to the house through the and to the Ohio Supreme Court. After the Ohio Supreme basement window when they had been accidentally locked Court denied Frazier relief, he petitioned the United States out. The neighboring yard contained footprints that pointed Supreme Court for a writ of certiorari. Frazier remained free away from the Skiba residence. A study of the footprints on bond during the pendency of these proceedings. The revealed that they were made by someone wearing size nine United States Supreme Court declined to hear Frazier’s case or ten boots in a style sold exclusively by K-Mart. on October 1, 1990. Dates for the blood test and the trial were then set by the state criminal court. Also on the morning of November 8, 1990, Frazier visited a medical clinic to get treatment for a one-inch cut on his Throughout 1989 and 1990, Skiba was terrified of Frazier. wrist. The cut was consistent with a stab wound. That night, She was visibly disturbed any time that she was in his Frazier drove to the home of his friends, the Shamons, in a car presence. Skiba confided in one friend her fear that Frazier that he had rented at the airport two days earlier. The police was going to kill her. She moved into her grandparents’ arrested him at the Shamons’ home on November 12, 1990. home and started sleeping with a knife under her pillow. At the time of his arrest, Frazier had with him a letter from the United States Supreme Court informing him that his petition for certiorari had been denied. In Frazier’s apartment No. 01-3122 Frazier v. Huffman 5 6 Frazier v. Huffman No. 01-3122

the police discovered a receipt from K-Mart for a size-nine what his intent was that morning.” Svekric related the boot of the same style found imprinted in the neighboring remainder of the interview as follows: yard near the Skiba residence. And I asked him a question, “Do you want to tell us Frazier was taken to the Medina County jail. He was exactly what happened on November 8th with Tiffany transported the next day from the jail to a clinic, where the Skiba, yes or no,” and his answer was, “Yes, I will tell long-ordered paternity test was administered. The test you everything you want to know.” But at that time he confirmed that Frazier had fathered Skiba’s son. also stated that he thinks his attorney should be present .... On November 14, 1990, Frazier telephoned Officer James Svekric from the jail. Frazier had known Svekric for many Frazier’s jailhouse interview was then terminated. years, and Svekric was one of the police detectives who had transported Frazier the previous day. Frazier asked Svekric B. Procedural background to bring him Frazier’s telephone book and prescription medication. Svekric, accompanied by another police officer, The Cuyahoga County grand jury returned a three-count visited Frazier that day. According to Svekric, Frazier waived indictment against Frazier. Count One charged him with the his right not to incriminate himself and asked the officers murder of Skiba. The first count contained three death- “what [they] could do for him, if [they] could get him a penalty specifications—for felony murder, the murder of a definite sentence in Cleveland as to a flat time, how much witness, and murder to escape accounting for another crime. time he was going to do if he was to plead guilty.” The police Count Two charged Frazier with the murder of Skiba during officers told Frazier that although they could tell the the commission of a burglary. It also contained the three prosecutor and the judge that Frazier had cooperated, they had identical death-penalty specifications enumerated in Count no authority to negotiate a plea agreement. Frazier then One. The third count charged Frazier with burglary. returned to his cell. On August 21, 1991, the jury convicted Frazier on all A short time later, however, the police officers conducted counts. The next phase of the trial concerned the appropriate a second interview with Frazier, this time in the presence of penalty, at the conclusion of which the jury recommended the local prosecutor, Tim McGinty, who had been waiting in that Frazier be sentenced to death. On August 29, 1991, the an adjacent building. McGinty informed Frazier that he was trial court adopted that recommendation. about to bring the matter of Skiba’s death before a grand jury and that he intended to have Frazier indicted for murder. Frazier appealed his conviction and sentence without Frazier offered to provide information about other crimes in success through the Ohio state courts, both on direct appeal exchange for an agreement to allow him to plead guilty. and through a petition for postconviction relief. He then McGinty replied, however, that in order to establish his initiated federal proceedings for a writ of habeas corpus credibility, Frazier would need to provide the details of pursuant to 28 U.S.C. § 2254 in September of 1998. The Skiba’s murder. Frazier was then asked whether he intended district court denied his petition, but granted him a certificate to kill Skiba when he went to her grandparents’ home on of appealability on all issues. This timely appeal followed. November 8, 1990. In Svekric’s recounting, “he shook his head no, but he did not give us a verbal answer or explain No. 01-3122 Frazier v. Huffman 7 8 Frazier v. Huffman No. 01-3122

II. ANALYSIS extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context.” Campbell, A. Standard of review 260 F.3d at 539. The Antiterrorism and Effective Death Penalty Act of 1996 The Supreme Court has declared that “a federal habeas (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, court making the ‘unreasonable application’ inquiry should 1996), applies to Frazier’s case because he filed his habeas ask whether the state court’s application of clearly established corpus petition after the Act’s effective date. Lindh v. federal law was objectively unreasonable.” Williams, 529 Murphy, 521 U.S. 320, 336 (1997). A federal court is U.S. at 409. In its elaboration on the meaning of the term authorized to grant a writ of habeas corpus to a person in “objectively unreasonable,” the Court stated that “a federal custody pursuant to a state-court judgment, but only if the habeas court may not issue the writ simply because that court adjudication of the claim concludes in its independent judgment that the relevant state- court decision applied clearly established federal law (1) resulted in a decision that was contrary to, or erroneously or incorrectly. Rather, that application must also involved an unreasonable application of, clearly be unreasonable.” Id. at 411. established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision In the present case, the district court applied the standards that was based on an unreasonable determination of the set forth under AEDPA and determined that Frazier was not facts in light of the evidence presented in the State court entitled to habeas relief. We review de novo the district proceeding. court’s denial of Frazier’s petition. Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002). 28 U.S.C. § 2254(d). All of Frazier’s claims are governed by § 2254(d)(1). B. Certificate of appealability A federal court may grant a writ of habeas corpus under Before reaching the merits of Frazier’s claims, we address § 2254(d)(1)’s “contrary to” clause “if the state court arrives a procedural problem that has hindered our consideration of at a conclusion opposite to that reached by [the Supreme] this appeal. The district court in this case granted a certificate Court on a question of law or if the state court decides a case of appealability on all issues, with the following explanation: differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, Until such time as such precedent is submitted to me, 412-13 (2000). Section 2254(d)(1)’s “unreasonable and, is shown to be applicable to a case at hand, I expect application” clause provides two additional bases for habeas that I shall, as I did in this case, grant certificates of relief. Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir. 2001), appealability in capital habeas cases as a matter of cert. denied, 535 U.S. 975 (2002). The first avenue of relief routine. occurs if “the state court identifies the correct governing legal Others may view this as an abdication of principle from [the Supreme] Court’s decisions but responsibility; it is, rather, a manifestation of the unreasonably applies that principle to the facts . . . .” possibility of my own fallibility, and concern that I may Williams, 529 U.S. at 413. Second, relief is available under have erred. I do not believe that I have erred—but doubt this provision if the state-court decision “either unreasonably No. 01-3122 Frazier v. Huffman 9 10 Frazier v. Huffman No. 01-3122

that I have, no matter how strongly felt, is not certainty of appealability may issue “only if the applicant has made a that I have not. substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2) (emphasis added), and that any such This rationale is contrary to our decision in Porterfield v. certificate “shall indicate which specific issue or issues satisfy Bell, 258 F.3d 484 (6th Cir. 2001), which was also a capital- the showing required,” id. § 2253(c)(3) (emphasis added). murder case. Like here, Porterfield had been granted a certificate of appealability on all issues. We noted in To focus our consideration of the issues in the face of this Porterfield that such a blanket grant conformed to neither the blanket certificate of appealability, we asked counsel for commands of 28 U.S.C. § 2253(c) (providing in part that a Frazier at oral argument which claims he perceived to be his “certificate of appealability may issue . . . only if the applicant strongest. He replied that his primary claims for habeas relief has made a substantial showing of the denial of a were those premised upon the due process right to a constitutional right . . . [and] shall indicate which specific fundamentally fair trial and those based upon the ineffective issue or issues satisfy the showing required”), nor the assistance of counsel. We agree, particularly in light of the Supreme Court’s construction of the statute in Slack v. fact that the district court singled out “the remarkable and McDaniel, 529 U.S. 473 (2000) (holding that the unnecessary misconduct of the prosecutor” as a concern requirements of § 2253(c) applied regardless of whether the regarding the petitioner’s right to a fair trial. Accordingly, we district court rejected a constitutional claim on the merits or devote our attention to these two issues first. on procedural grounds). Because a blanket grant “undermine[s] the gate keeping function of certificates of C. The right to a fundamentally fair trial appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court Frazier alleges that he was denied his due process right to from those claims that have little or no viability,” and a fair trial, both because certain evidence was improperly “because the district court [was] already deeply familiar with admitted and because of prosecutorial misconduct. “Cases in the claims raised by petitioner,” we vacated the certificate of [the Supreme] Court have long proceeded on the premise that appealability in Porterfield and remanded the matter “in order the Due Process Clause guarantees the fundamental elements to permit the court to engage in the reasoned assessment of of fairness in a criminal trial.” Spencer v. Texas, 385 U.S. each . . . claim as required by Slack.” 258 F.3d at 487. 554, 563-64 (1967).

The language of § 2253(c) is mandatory. It was therefore 1. Due process and evidentiary matters error for the district court to issue a blanket certificate of appealability without any analysis. We recognize, however, Frazier’s first contention is that the trial court improperly that the district court rendered its decision before our opinion admitted (1) cumulative, gruesome photograhs of Skiba’s in Porterfield. In contrast to Porterfield, moreover, both corpse, (2) evidence that Skiba was terrified of Frazier, and parties in the present case have already briefed the merits of (3) evidence that Frazier raped Skiba. To the extent that this Frazier’s claims, so that vacating the certificate of is a challenge to the technical correctness of these evidentiary appealability would “further delay an already lengthy rulings, we lack authority to consider the challenge. Coleman process.” 285 F.3d at 485. For these reasons, we will excuse v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001) (“A state court the procedural error of the district court. This is an evidentiary ruling will be reviewed by a federal habeas court appropriate time, however, to reiterate both that a certificate only if it were so fundamentally unfair as to violate the No. 01-3122 Frazier v. Huffman 11 12 Frazier v. Huffman No. 01-3122

petitioner’s due process rights.”). Rather, Frazier must admissible as a present-state-of-mind exception to the hearsay demonstrate that the state court’s conclusion — that the rule. Frazier, 652 N.E.2d at 1013. The district court admission of the challenged evidence did not violate his due concluded that evidence of Skiba’s fear “supported the process rights — was unreasonable, as those rights have been substantial evidence of [Frazier’s] likely motive.” Although articulated by the Supreme Court. we find that the relationship between Skiba’s fear and Frazier’s motive is tangential at best, we recognize the Frazier argues that the admission into evidence of multiple existence of a logical argument that the relevance of such photographs of Skiba’s corpse was excessive. He notes that evidence outweighed its potential prejudice. We are unaware, the Supreme Court has stated: “In the event that evidence is moreover, of any Supreme Court precedent that establishes introduced that is so unduly prejudicial that it renders the trial that the admission of evidence that a murder victim feared the fundamentally unfair, the Due Process Clause of the defendant violates the defendant’s due process rights. Fourteenth Amendment provides a mechanism for relief.” Frazier’s assertion that “[s]everal states have held Payne v. Tennessee, 501 U.S. 808, 825 (1991). unambiguously that the state of mind of a murder victim is irrelevant to the issue of the identity of the perpetrator” has no The Ohio Supreme Court directly addressed this bearing on our task under AEDPA. We therefore conclude evidentiary issue, concluding that the multiple photographs that the state courts’ resolution of this matter was not an “were introduced during the coroner’s testimony to illustrate unreasonable application of federal law. the testimony,” that “[e]ach photograph presents a different perspective of the victim,” and that the photographs “were The third category of evidence challenged by Frazier used to illustrate” the nature of the encounter that concerns his alleged rape of Skiba and paternity of her child. immediately preceded Skiba’s death. State v. Frazier, 652 He claims that the admission of the evidence without a N.E.2d 1000, 1010 (Ohio 1995). It ultimately determined that limiting instruction rendered his trial fundamentally unfair. the photographs’ “probative value substantially outweigh[ed] Before reaching the merits of this claim, we must first the danger of unfair prejudice” to Frazier. Id. We conclude consider the state’s argument that this challenge was rejected that the Ohio Supreme Court’s resolution of Frazier’s federal by the state courts on the basis of state procedural rules. constitutional claim concerning the admission of multiple photographs of Skiba’s corpse was not an unreasonable A federal court is generally barred from considering an application of federal law as articulated by the Supreme issue of federal law arising from the judgment of a state court Court. See Willingham v. Mullin, 296 F.3d 917, 928-29 (10th if the state judgment “rests on a state-law ground that is both Cir. 2002) (refusing to grant relief on a habeas petitioner’s ‘independent’ of the merits of the federal claim and an claim that the admission of 22 photos of the victim’s body ‘adequate’ basis for the [state] court’s decision.” Harris v. was so unduly prejudicial as to render his trial fundamentally Reed, 489 U.S. 255, 260 (1989). The adequate-and- unfair, where the state court provided a reasonable basis for independent-state-ground doctrine has been applied in concluding that the photographs’ relevance outweighed the refusing to address the merits of a federal claim because of danger of unfair prejudice). violations of state procedural rules, such as the failure to make a timely objection at trial. Id. at 261. An adequate and Frazier next contends that the admission of evidence that independent finding of procedural default will preclude Skiba feared him rendered his trial fundamentally unfair. In habeas corpus relief “unless the prisoner can demonstrate the opinion of the Ohio Supreme Court, such evidence was cause for the default and actual prejudice as a result of the No. 01-3122 Frazier v. Huffman 13 14 Frazier v. Huffman No. 01-3122

alleged violation of federal law, or demonstrate that failure to Turning to the merits of the claim, we agree with the Ohio consider the claims will result in a fundamental miscarriage Supreme Court that the evidence was directly relevant to of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Frazier’s motive and to the death-penalty specifications. The United States Supreme Court decision upon which Frazier In determining whether a procedural default has occurred relies in pressing this claim held that the introduction of and, if so, what effect the default will have on federal review evidence of prior crimes, where relevant to prove death- of a state conviction, the district court must consider whether penalty specifications, is not unconstitutional. Spencer v. (1) a state procedural rule exists that applies to the petitioner’s Texas, 385 U.S. 554, 568-69 (1967). We therefore conclude claim, (2) the petitioner failed to comply with the rule, (3) the that the admission of evidence that Frazier raped Skiba and state court actually applied the state rule in rejecting the fathered her child, even without a limiting instruction, was petitioner’s claim, and (4) the state procedural rule is an not an unreasonable application of Supreme Court precedent adequate and independent ground upon which the state can and did not deprive Frazier of his due process rights. rely to deny relief. Reynolds v. Berry, 146 F.3d 345, 347 (6th Cir. 1998). The rule precluding federal habeas corpus review 2. Due process and prosecutorial misconduct of claims rejected by the state courts on state procedural grounds applies only in cases where the rule relied upon by Frazier’s next contention is that prosecutorial misconduct the state courts involves a “firmly established and regularly deprived him of his right to a fair trial. Frazier identifies followed state practice.” Ford v. Georgia, 498 U.S. 411, 423- eight examples of what he characterizes as prosecutorial 24 (1991). Furthermore, a procedural default does not bar misconduct. Some of the conduct that he challenges took consideration of a federal claim on habeas corpus review place during the guilt phase of his trial, while other instances unless the last state court rendering a reasoned opinion in the occurred during the penalty phase. Our conclusion in Part case “clearly and expressly states that its judgment rests on a II.D. below that Frazier must be given a new sentencing state procedural bar.” Harris, 489 U.S. at 263 (internal hearing makes it unnecessary for us to consider the alleged quotation marks omitted). prosecutorial misconduct that occurred during the penalty phase. In this case, the Ohio Supreme Court noted that Frazier failed to object at trial to the omission of a limiting None of the alleged prosecutorial misconduct in the guilt instruction. It therefore analyzed his entitlement to the phase of the trial impinged upon a particular provision in the inclusion of such a jury instruction using the “plain-error” Bill of Rights. The relevant question, therefore, is whether standard. But the larger issue was whether “the trial court the prosecutorial conduct “so infected the trial with unfairness erred by admitting evidence of other crimes committed by as to make the resulting conviction a denial of due process.” [Frazier].” Frazier, 652 N.E.2d at 1013. The Ohio Supreme Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To Court analyzed the claim on its merits, ultimately finding decide this question, we first determine whether the conduct Frazier’s argument to be “without merit.” Id. at 1013, 1014. about which Frazier complains was indeed improper. United We therefore conclude that Frazier is not procedurally barred States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A four- from presenting the claim that the admission of evidence factor test is then applicable to any conduct that we find about his rape of Skiba and the paternity of her child rendered inappropriate: “(1) whether the conduct and remarks of the his trial fundamentally unfair. prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated No. 01-3122 Frazier v. Huffman 15 16 Frazier v. Huffman No. 01-3122

or extensive; (3) whether the remarks were deliberately or is nothing improper about a prosecutor’s reliance on a state accidentally made; and (4) whether the evidence against the court’s evidentiary ruling, whether or not the ruling itself was defendant was strong.” Id. correct. Frazier takes issue with the following instances of the The third instance concerns the prosecutor’s references to prosecutor’s conduct during the guilt phase of the trial: Skiba’s character during his closing and rebuttal argument in (1) using a photograph of Skiba taken before her murder in the guilt phase of the trial. These references had no relevance his closing argument, (2) relying on Skiba’s fear of Frazier as to any matter in issue and were therefore improper. The Ohio part of the state’s case-in-chief, (3) referring to Skiba’s Supreme Court reached the same conclusion. Frazier, 652 character during his closing and rebuttal argument, and N.E.2d at 1015 (commenting that “the prosecutor’s remarks (4) placing an empty chair before the jury during his closing were intemperate”). This leads us to the application of the argument to “represent” Skiba. The first instance, the use of Carter factors. In this instance, the prosecutor’s remarks a photograph of Skiba during closing argument, has been were not limited to an isolated instance. On the other hand, found by some courts to be within the bounds of acceptable they did not form the centerpiece of the prosecutor’s conduct. Nefstad v. Baldwin, No. 94-35714, 1995 WL argument. But the prosecutor’s remarks were plainly 520050, at *2-*3 (9th Cir. Sept. 1, 1995) (finding no error by deliberate. Furthermore, the state’s case was not unusually the trial court in permitting a “closing argument [wherein] the strong. The evidence was sufficient to prove the defendant prosecutor asked the jury to compare a photograph of the guilty beyond a reasonable doubt, but it was not victim before the murder with an autopsy photograph of the overwhelming. There were no witnesses and no confession victim”); Lowe v. Abrahamson, No. 92-2020, 1995 WL (only an ambiguous offer to plead guilty), and the state 150585, at *1-*2 (7th Cir. Apr. 6, 1995) (order) (finding produced no blood-type or DNA evidence. “nothing improper” about “the presentation at trial of a photograph of the murdered victim wearing a hat from his Whether the references to Skiba’s character tended to son’s Little League baseball team”). Other courts have found mislead the jury or prejudice the defendant is more difficult such photographs of the victim improper. Cargle v. Mullin, to determine. Although the prosecutor’s remarks did not 317 F.3d 1196, 1223-24 (10th Cir. 2003) (agreeing with the misstate the evidence, they were in a sense misleading state court’s determination that the trial court erred in concerning the law. The prosecutor’s explicit juxtaposition admitting “a number of photographs of the victims while they of the defendant’s constitutional rights (like the presumption were alive” because the photographs were “irrelevant and of innocence) with the “rights” of the decedent (like “the right prejudicial”). The state courts in this case determined that the to go on to college” or “the right to walk down the aisle”) prosecutor’s use of Skiba’s photograph during closing suggested to the jury that certain nonexistent rights of the argument was not improper. In light of the split of authority decedent somehow balanced or nullified the constitutional about the propriety of such conduct, we cannot say that the rights of the defendant. On the other hand, although a defense state courts’ determination was unreasonable. objection to the prosecutor’s remarks was overruled, the trial court correctly instructed the jury on the law, specifically The second instance of alleged prosecutorial misconduct stating: “You must not permit sympathy or bias, prejudice or concerns the state’s reliance on Skiba’s fear of Frazier as part favoritism for either side to affect your judgments.” of its proof. As noted above in Part II.C.1., the state courts ruled that such evidence was relevant and admissible. There No. 01-3122 Frazier v. Huffman 17 18 Frazier v. Huffman No. 01-3122

A similar analysis applies to the fourth and final alleged a reasonable doubt, the nature and circumstances of the incident of prosecutorial misconduct during the guilt phase, offense, the history, character, and background of the the placing of an empty chair before the jury during the offender” and seven other factors, including “[w]hether, at the prosecutor’s closing argument to “represent” Skiba. We time of committing the offense, the offender, because of a again agree with the Ohio Supreme Court’s conclusion that mental disease or defect, lacked substantial capacity to this conduct was improper. Frazier, 652 N.E.2d at 1015 appreciate the criminality of the offender’s conduct or to (“We agree with appellant that the use of the empty chair was conform the offender’s conduct to the requirements of the excessive.”) It was also deliberate. The empty chair, law.” Ohio Rev. Code § 2929.04(B). A sentence of death is however, was not the focus of the prosecutor’s argument, and appropriate only if the jury is unanimously convinced beyond the state trial court properly instructed the jury not to be a reasonable doubt that the aggravating factors outweigh the influenced by sympathy, bias, or prejudice. mitigating factors. Id. § 2929.03(D)(2). Were we to consider Frazier’s claim of prosecutorial The jury had already found Frazier guilty beyond a misconduct in the first instance, after weighing all of the reasonable doubt of the death-penalty-specification charges. pertinent factors, the possibility exists that we might be Because no mitigation proof was introduced by Frazier at the persuaded that he was denied a fundamentally fair trial. But guilt phase of the trial, he was therefore virtually guaranteed that is not our task. Rather, our inquiry is limited to deciding a sentence of death unless he could produce sufficient whether the Ohio Supreme Court’s contrary determination mitigation evidence at the penalty phase to generate was an unreasonable application of clearly established federal reasonable doubt in the mind of at least one juror about law. Because the direction in which the Carter factors point whether the aggravating factors outweighed the mitigating is neither obvious nor unambiguous, we conclude that the factors. But the sum total of the evidence presented on Ohio Supreme Court’s resolution of Frazier’s prosecutorial- Frazier’s behalf during the penalty phase of the trial was the misconduct claim was not unreasonable. See Macias v. following unsworn statement: “Ladies and gentlemen, I know Makowski, 291 F.3d 447, 454 (6th Cir. 2002) (holding that, you found me guilty, and in the past I have done things that although the court “might have concluded that the were wrong, but I am not guilty of this crime and I am asking prosecutor’s comments violated [the petitioner’s] due process you to spare my life.” rights,” the state court of appeals’s contrary conclusion was not unreasonable, where two factors weighed in favor of the The test for establishing constitutionally ineffective petitioner’s claim and two weighed against it). assistance of counsel is two-fold. A defendant must first show that the performance of his or her counsel was “below D. The right to the effective assistance of counsel an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In order to avoid second-guessing trial counsel’s Frazier’s other major claim is that he was denied his right strategic decisions, “a court must indulge a strong to the effective assistance of counsel during the penalty phase presumption that counsel’s conduct falls within the wide of the trial, a right guaranteed by the Sixth Amendment to the range of reasonable professional assistance; that is, the United States Constitution. Strickland v. Washington, 466 defendant must overcome the presumption that, under the U.S. 668, 684 (1984). Once a defendant has been convicted circumstances, the challenged action might be considered of a capital offense in Ohio, the jury “shall consider, and sound trial strategy.” Id. at 689 (internal quotation marks weigh against the aggravating circumstances proved beyond omitted). The second requirement of an ineffective assistance No. 01-3122 Frazier v. Huffman 19 20 Frazier v. Huffman No. 01-3122

claim is that “[t]he defendant must show that there is a because they saw his medical records, yet counsel failed to reasonable probability that, but for counsel’s unprofessional investigate the matter or present any evidence regarding the errors, the result of the proceeding would have been different. same. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Under Strickland, “strategic choices made after less than complete investigation are reasonable precisely to the extent Frazier’s ineffective-assistance claim was rejected by the that reasonable professional judgments support the limitations Ohio Court of Appeals on the basis of the first prong of on investigation.” 466 U.S. at 690-91. This court has Strickland. The court explained: “From the record, it can commented when evaluating facts similar to those here that reasonably be concluded trial counsel were appraised of the “the inadequacy of the attorney’s investigation . . . was purported brain injury from their review of medical records; manifest.” Campbell v. Coyle, 260 F.3d 531, 553 (6th Cir. however, as a matter of trial strategy counsel deemed this 2001) (distinguishing the facts of Campbell, where trial avenue of defense unworthy of further pursuit.” State v. counsel had the defendant evaluated by a mental health Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App. professional who did not find any mental illness, from those Dec. 11, 1997). of Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), where trial counsel had actual notice of the defendant’s mental health The “purported brain injury” referred to above is the problems but failed to investigate them). We do not believe damage to Frazier’s brain that occurred as the result of a 1987 that any reasonable attorney who saw the medical records fall from a ladder. Affidavits from postconviction experts on indicating Frazier’s brain injury would have declined to this matter indicate that Frazier suffers from a functional brain investigate the matter. At a bare minimum, a reasonable impairment. According to one, Frazier has a “significant attorney would have compared the records with the medical history for head trauma” to the “frontal lobe” of his brain, literature on brain damage, elicited information from Frazier which is “the site of impulse control, social judgment and himself about the injury and its effects on him, or presented reasoning.” Frazier himself has described “a change in the records on Frazier to someone who could competently decision-making abilities after his head trauma.” These evaluate them. To do none of these things after seeing reports also suggest that a correlation could exist between this Frazier’s medical records was unreasonable. injury and Frazier’s criminal conduct. The state has not challenged the contention that Frazier’s trial counsel could Our conclusion is bolstered by the Supreme Court’s recent have developed this same information had they conducted a decision in the capital case of Wiggins v. Smith, 123 S. Ct. reasonable investigation. 2527 (2003). Trial counsel in Wiggins knew from their client’s presentence report that he had lived in “misery as a We can conceive of no rational trial strategy that would youth,” but they did not investigate his life history any justify the failure of Frazier’s counsel to investigate and further. Id. at 2536. The Maryland Court of Appeals was of present evidence of his brain impairment, and to instead rely the opinion that this performance comported with Strickland, exclusively on the hope that the jury would spare his life due but the United States Supreme Court disagreed and held that to any “residual doubt” about his guilt. This failure was not the state court’s contrary conclusion was unreasonable. Id. at due to counsel’s ignorance of Frazier’s brain injury. To the 2538. In Wiggins, as in the present case, “any reasonably contrary, the Ohio Court of Appeals acknowledged that trial competent attorney would have realized that pursuing these counsel were actually aware of Frazier’s brain impairment leads”—in Wiggins’s case, allusions to his horrible No. 01-3122 Frazier v. Huffman 21 22 Frazier v. Huffman No. 01-3122

childhood; in Frazier’s, medical records of his brain above factors, we conclude that Frazier’s trial counsel injury—“was necessary to making an informed choice among performed below an objective standard of reasonableness. possible defenses . . . . Indeed, counsel uncovered no evidence in their investigation to suggest that a mitigation The Ohio Court of Appeals, on the other hand, implicitly case, in its own right, would have been counterproductive, or held that Frazier’s trial counsel performed at or above an that further investigation would have been fruitless.” Id. at objective standard of reasonableness when it opined that “as 2537. a matter of trial strategy counsel deemed this avenue of defense unworthy of further pursuit.” We have concluded the Furthermore, as both this court and the Ohio Supreme opposite. The question under AEDPA, then, is whether the Court have noted, residual doubt is not a mitigating factor state court applied the first prong of Strickland unreasonably, under Ohio law. Coleman v. Mitchell, 268 F.3d 417, 447 (6th or only erroneously. See Bell v. Cone, 122 S. Ct. 1843, 1852 Cir. 2001); State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio (2002) (clarifying that the question of whether a state court’s 1997). This court nevertheless concluded in Scott v. Mitchell, application of Strickland is unreasonable is conceptually 209 F.3d 854, 881 (6th Cir. 2000), albeit in dicta, that the distinct from the underlying question of whether counsel’s pursuit of a residual-doubt strategy in that case was performance fell short of an objective standard of reasonable because the defendant’s extensive criminal history reasonableness). would have come to light if the jury had heard about his background. Cf. Abdur’Rahman v. Bell, 226 F.3d 696, 707- Three factors were cited by the Ohio Court of Appeals in 08 (6th Cir. 2000) (concluding that “trial counsel were support of its conclusion: ineffective in failing to further investigate the background of the accused,” but finding no prejudice where “it probably 1) counsel’s argument to the trial court that a would not have been the most prudent trial strategy to use psychologist would be used merely to interpret the proof of appellant’s history of violent behavior and anti-social mitigation expert’s findings; 2) counsel’s filing of the personality disorders at either the guilt or innocence phase or motion requesting a limitation on references to at the sentencing phase of the trial”). No such concerns could mitigation factors to only those upon which appellant have justified the approach in the present case, however, ultimately relied; and 3) the thorough and professional where the jury had already heard considerable evidence about manner in which counsel conducted appellant’s defense Frazier’s rape of Skiba. during both the guilt and the penalty phase of appellant’s trial. The prosecutor himself aptly summarized the strategy of Frazier’s trial counsel during the penalty phase. After quoting Frazier, 1997 WL 764810, at *6. The first two factors, Frazier’s unsworn denial of guilt, the prosecutor stated: however, have no relevance in explaining how the strategy “That’s it. Fifteen seconds of mitigation. Now, we heard a ultimately pursued by Frazier’s counsel was reasonable. moment ago about factors of mitigation that you find. Although the third factor is relevant in determining whether Apparently they don’t know.” This summary strikes us as the trial strategy was reasonable, it is largely conclusory and accurate to the extent that it reflects the fact that Frazier’s again provides no theory upon which trial counsel’s counsel failed to offer any evidence during the penalty phase “strategy” could have been based. We do not believe that it that is recognized under Ohio law as mitigation. Based on the is reasonable to infer that a trial strategy, which is on its face irrational and for which no justification has ever been No. 01-3122 Frazier v. Huffman 23 24 Frazier v. Huffman No. 01-3122

produced, becomes reasonable simply because of “the underwent after serving in Vietnam; his drug thorough and professional manner” in which trial counsel dependency, which apparently drove him to commit the otherwise performed. robbery in the first place; and its effects. . . . Defense counsel advised the jury that the testimony of the experts We note, moreover, that the theory of Frazier’s defense established the existence of mitigating circumstances, during the guilt phase of his trial was that Frazier did not and the trial court specifically instructed the jury that commit the murder. He presented no insanity or diminished evidence of a mental disease or defect insufficient to capacity defense. The jury therefore did not hear any establish a criminal defense could be considered in evidence about Frazier’s brain injury during the guilt phase of mitigation. the trial. Indeed, it heard no evidence whatsoever during the guilt phase of the trial that could bear on the issue of Id. Frazier’s counsel, in contrast, introduced absolutely no mitigation. As the prosecutor accurately commented at the mitigating evidence during the guilt phase of the trial. opening of the penalty phase: “The State’s job is over. The proof of the aggravating circumstances here is monumental, In sum, no reason at all has been adduced to justify the unrebutted, and it is no mere allegation any longer. It is fact, failure of Frazier’s trial counsel to investigate and present since the conclusion of this case. There has been absolutely evidence of his brain impairment, and to instead rely zero, zilch, nil evidence of mitigation.” This being the exclusively on an argument of residual doubt. The state court situation, it appears to us that competent trial counsel for did not articulate one. Nor can we fathom one. Absent any Frazier would have realized that their client had everything to reason to explain or justify such a trial strategy, we conclude gain and nothing to lose by introducing evidence of his brain that the state court’s determination that Frazier’s trial counsel injury at the penalty phase of the case. Yet they sat on their had performed in a competent manner during the penalty hands. phase was not simply erroneous, but unreasonable. See Wiggins, 123 S. Ct. at 2538 (rejecting as unreasonable a state The instant case, therefore, is easily distinguishable from court’s determination that trial counsel performed adequately the ruling in Bell, where the defendant’s trial counsel also where, although no trial strategy could be articulated to justify introduced no evidence during the penalty phase of the trial. counsel’s unreasonable failure to investigate and present 122 S. Ct. at 1848. The state court concluded that this trial evidence of their client’s terrible childhood, the state court strategy passed muster under Strickland, and the Supreme “merely assumed that the investigation was adequate”). Court held that the state court’s conclusion was not unreasonable. Id. at 1853-54. Crucial to this determination, Habeas relief is thus warranted if Frazier can show that however, was the fact that the defendant had already there is a reasonable probability that, but for his counsel’s introduced his best mitigation evidence during the guilt phase deficient performance, the result of the penalty phase would of the trial: have been different. See id. at *16 (“In order for counsel’s performance to constitute a Sixth Amendment violation, Because the defense’s theory at the guilt phase was not petitioner must show that counsel’s failures prejudiced his guilty by reason of insanity, counsel was able to put defense. . . . [O]ur review is not circumscribed by a state before the jury extensive testimony about what he court conclusion with respect to prejudice, as neither of the believed to be the most compelling mitigating evidence state courts below reached this prong of the Strickland in the case—evidence regarding the change his client analysis.”). To make this showing, Frazier must direct us to No. 01-3122 Frazier v. Huffman 25 26 Frazier v. Huffman No. 01-3122

mitigating evidence that could have been presented and that In concluding that Frazier had not shown prejudice, the is sufficient to undermine our confidence in the outcome of district court observed in a footnote “that the evidence of the penalty phase. Strickland v. Washington, 466 U.S. 668, record, in addition to enabling the jury to find the petitioner 694 (1984). Furthermore, AEDPA requires Frazier to have guilty beyond a reasonable doubt, shows that he acted with developed the factual bases for his claims during deliberation and forethought . . . . These acts do not manifest postconviction proceedings in state court. Alley v. Bell, 307 impulsive or uncontrolled behavior.” This analysis, however, F.3d 380, 386 (6th Cir. 2002) (“These rules apply both to does not account for the probability that the jury would find entirely new legal claims and new factual bases for relief; for that a murderer who suffers from a functional brain a claim to be considered exhausted, the habeas petitioner must impairment is less morally culpable than one who does not, have fairly presented to the state courts the substance of his even if the brain impairment did not “cause” Frazier to federal habeas claim.”) (internal quotation marks omitted). murder Skiba. We agree with the state that Frazier failed to develop any Indeed, we think that the circumstances of the crime were facts concerning his general history, character, and amenable to such mitigating evidence. Competent trial background in the state postconviction proceedings. counsel could have pointed out, for example, that the blood- Accordingly, we cannot consider the facts that Frazier was stained, broken knife found beside Skiba’s corpse came from abandoned as a child or that he has an abnormal response to her grandparents’ silverware, and that Skiba had been stress. The state concedes, however, that Frazier presented sleeping with a knife under her pillow. Furthermore, during evidence concerning his brain injury to the state courts during the jailhouse questioning of Frazier on November 14, 1990, the postconviction proceedings. Although information about the police officers and prosecutor did not ask Frazier whether the nature and severity of the injury was less thoroughly he murdered Skiba. They asked, instead, whether he intended developed in those proceedings than it is now, sufficient facts to kill her when he went to her grandparents’ home on the were presented to indicate the existence of evidence morning of the murder. Frazier shook his head no in response concerning Frazier’s brain injury that could have been to that question. Trial counsel could thus have depicted a developed and presented to the jury during the penalty phase. scenario in which Frazier went unarmed to Skiba’s grandparents’ home to confront or threaten her, not to kill. We must therefore examine whether the existence of this But when he encountered the knife-wielding Skiba, Frazier evidence is sufficient to undermine our confidence in the succumbed to the stress of the moment, grabbed the knife result of the penalty-phase proceeding. Frazier’s trial counsel from her hands, and wildly stabbed Skiba far more times than presented only his unsworn denial of guilt, which does not would have been necessary to kill her. amount to mitigating circumstances under Ohio law. This virtually assured him a sentence of death. Had trial counsel’s Such a scenario fits the facts of the crime and is made performance not been deficient, the jury could have heard plausible by the existence of a functional brain impairment, evidence of Frazier’s fall from a ladder and associated brain which, although it might not have turned Frazier into a cold injury, which could have correlated with his criminal conduct. and calculating murderer, could have impaired his ability to Such evidence would have constituted mitigating deal with stressful or emotional situations, even ones of his circumstances under Ohio law. Ohio Rev. Code own making. This is but one example of how competent trial § 2929.04(B). counsel might have utilized the evidence of Frazier’s functional brain impairment to generate reasonable doubt that No. 01-3122 Frazier v. Huffman 27 28 Frazier v. Huffman No. 01-3122

the aggravating circumstances outweighed the mitigating dissent, the Ohio Court of Appeals never reached the merits circumstances in the present case. We are by no means because it held that the claim was barred by the state-law suggesting that the presentation of such evidence and doctrine of res judicata. (Id.) argument would have assured Frazier the avoidance of the death penalty, but we are saying that this outcome is within This will surely come as a surprise to the state, which the realm of reasonable probability as defined in Strickland. (1) conceded in its brief that “Frazier did present his ‘brain 466 U.S. at 694. damage’ claim to the state courts,” and (2) then proceeded to argue that “the Ohio court’s finding that trial counsel acted As the Supreme Court observed in Williams v. Taylor, 529 competently in this regard is not an unreasonable application U.S. 362, 398 (2000): “Mitigating evidence unrelated to of Strickland.” We therefore believe that the dissent dangerousness may alter the jury’s selection of penalty, even mischaracterizes the state’s argument by asserting that the if it does not undermine . . . the prosecution’s death-eligibility state raised a procedural-default defense to every instance of case.” In Williams, the Court recognized that “the reality that ineffective assistance alleged by Frazier. Instead, the state [the defendant] was ‘borderline mentally retarded[]’ might made clear its position that Frazier had forfeited any well have influenced the jury’s appraisal of his moral ineffective-assistance claim premised upon his abandonment culpability.” Id. We conclude that the same is true here. Had as a child or his abnormal response to stress, and that his the jurors been confronted with the mitigating evidence of preservation of the claim based upon his brain damage did not Frazier’s brain injury, the probability that at least one juror permit him to revive his other instances of ineffective would not have decided that the aggravating circumstances of assistance. the case outweighed the mitigating circumstances beyond a reasonable doubt “is a probability sufficient to undermine As the above-quoted language demonstrates, however, the confidence in the outcome.” Strickland, 466 U.S. at 694; see state did not contend that Frazier procedurally defaulted his also Wiggins v. Smith, 123 S. Ct. 2527, 2543 (2003) (“Had ineffective-assistance claim based upon his counsel’s failure the jury been able to place petitioner’s excruciating life to investigate and present evidence of his brain damage. The history on the mitigating side of the scale, there is a state’s failure to raise the issue of procedural default with reasonable probability that at least one juror would have respect to this instance of ineffective assistance is itself struck a different balance.”); Ohio Rev. Code § 2929.03(D)(2) sufficient to dispense with our consideration of the question. (requiring jury unanimity for the imposition of a death “A court of appeals is not ‘required’ to raise the issue of sentence). We therefore hold that Frazier has established that procedural default sua sponte.” Trest v. Cain, 522 U.S. 87, his right to the effective assistance of counsel was violated at 89 (1997). the penalty phase of his trial, and that the state court’s conclusion to the contrary is an unreasonable application of Even if the state had not waived its procedural-default clearly established Supreme Court precedent. defense, moreover, we do not believe that the defense would be applicable in this case. “[A] procedural default does not The dissent does not quibble with the foregoing analysis on bar consideration of a federal claim on either direct or habeas the merits. It contends instead that “Frazier’s claim of review unless the last state court rendering a judgment in the ineffective assistance of counsel is procedurally defaulted and case clearly and expressly states that its judgment rests on a this court consequently has no business considering the merits state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 of that claim.” (Dissenting Op. at 34) According to the (1989) (internal quotation marks omitted). Contrary to the No. 01-3122 Frazier v. Huffman 29 30 Frazier v. Huffman No. 01-3122

dissent’s interpretation of the discussion by the Ohio Court of injury” does not in and of itself establish ineffective Appeals, we find no clear and express statement in the assistance of counsel. We thus conclude that the dissent’s opinion that the state procedural doctrine of res judicata was reading of the decision by the Ohio Court of Appeals is the basis for the decision. plausible, but that it is neither the only nor the best interpretation. The Ohio Court of Appeals concluded its analysis of Frazier’s ineffective-assistance claim as follows: The Ohio Court of Appeals’s decision also contains no express statement that its conclusion on the merits of In view of the fact that appellant had the assistance of at Frazier’s ineffective-assistance claim is an alternative least three experienced attorneys during all phases of the holding. This contrasts with that court’s disposition of trial proceedings, and mindful that a reviewing court will another argument raised by Frazier concerning “the trial not second-guess what are essentially matters of trial court’s failure to grant appellant’s motion for a psychological strategy, neither the record nor appellant’s evidence expert in mitigation,” as to which the appellate court provided dehors the record supported his claim. specifically stated that “the trial court properly applied the doctrine of res judicata.” Frazier, 1997 WL 764810, at *6. Frazier, 1997 WL 764810, at *6. We do not believe that the above statement can be fairly characterized as a determination In sum, the state did not raise the issue of procedural that Frazier had attempted to present evidence that should default with respect to the “brain damage” claim by Frazier have been presented on direct appeal. Rather, the Ohio upon which we grant relief. Alternatively, we do not believe court’s conclusion goes to the merits of Frazier’s claim. that the Ohio Court of Appeals clearly and expressly rested its decision regarding this claim on an independent state Disposing of Frazier’s ineffective-assistance claim on the procedural ground. We are therefore unpersuaded by the merits was also sensible as a matter of state law. The Ohio thoughtful argument of the dissent. Supreme Court has held that “[w]here defendant, represented by new counsel upon direct appeal, fails to raise therein the E. Remaining claims issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the Frazier advances sixteen other claims on appeal that merit record, res judicata is a proper basis for dismissing substantially less discussion. Having concluded that the defendant’s petition for postconviction relief.” State v. Cole, penalty phase of Frazier’s trial was constitutionally defective, 443 N.E.2d 169, 170 (Ohio 1982) (syllabus). According to we have no need to consider any other arguments concerning the dissent, the Ohio Court of Appeals decided that Frazier’s that portion of the trial. We therefore will not address claim was barred by res judicata after concluding that the Frazier’s claim that he was entitled to the appointment of an evidence provided by his postconviction experts was not new independent psychological expert for the penalty phase, or his because trial counsel had been “appraised of the purported claim that the trial court’s instruction to the jury at the penalty brain injury.” (Dissenting Op. at 36 (quoting Frazier, 1997 phase was unconstitutional. WL 764810, at *6)) Such a decision, however, would have been a mistaken application of Cole, because, as our own Of the remaining fourteen claims, the only one that analysis of Frazier’s claim demonstrates, the simple fact that deserves further discussion by this court is Frazier’s argument trial counsel “had been appraised of the purported brain that his rights under the Ex Post Facto Clause, U.S. Const. No. 01-3122 Frazier v. Huffman 31 32 Frazier v. Huffman No. 01-3122

art. I, § 9, cl. 3, were violated. As detailed in Part I.A. above, counts in construing the Ohio Rules of Evidence. See Frazier, while in jail and without a lawyer, requested and Frazier, 652 N.E.2d at 1012 (“[W]e concur with the lower received a meeting with two police officers and Prosecutor courts in their determination that the interview that occurred McGinty on November 14, 1990. Frazier essentially offered on November 14, 1990 was simply not a plea discussion. We to plead guilty to the rape and murder of Skiba in exchange would reach the same result regardless of which version of for a definite prison term. That offer played prominently in Evid. R. 410 we applied.”) (emphasis omitted). the state’s presentation of its case. Frazier argues that the admission of evidence concerning his offer was made We add, moreover, that the Ex Post Facto Clause is not possible only by a change in the Ohio rules of evidence that implicated by the change to Rule 410. Frazier argues that the occurred after the offense but prior to trial, resulting in a Clause is violated by “[e]very law that alters the legal rules of violation of the Ex Post Facto Clause. evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in In November of 1990, when Skiba was murdered, Rule 410 order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) of the Ohio Rules of Evidence provided that evidence of “an 386, 390 (1798) (opinion of Chase, J.). But the change to offer to plead guilty or no contest to the crime charged or to Rule 410 did not alter the quantum of evidence necessary to any other crime, or statements made in connection with, and convict Frazier. Rather, it expanded the range of admissible relevant to, any of the foregoing . . . offers, is not admissible testimony. The Supreme Court explained the difference over in any . . . criminal proceeding against the person who made a century ago: the offer.” Rule 410 was revised in July of 1991. The revised version, in effect during Frazier’s trial, prohibited the Statutes which simply enlarge the class of persons who introduction of evidence concerning “[a]ny statement made in may be competent to testify in criminal cases are not ex the course of plea discussions in which counsel for the post facto in their application to prosecutions for crimes prosecuting authority or for the defendant was a participant committed prior to their passage; for they do not . . . alter and that do not result in a plea of guilty or that result in a plea the degree, or lessen the amount or measure, of the proof of guilty later withdrawn.” Ohio R. Evid. 410(5). which was made necessary to conviction when the crime was committed. Every court to have considered Frazier’s ex post facto claim has resolved it by concluding that, because the police officers Hopt v. Utah, 110 U.S. 574, 589 (1884); see also Carmell v. and the prosecutor told Frazier that they could not negotiate Texas, 529 U.S. 513, 542-47 (2000) (explaining the a plea bargain at that time, no plea discussions took place on distinction). In addition to falling short under AEDPA, November 14, 1990. We find this analysis problematic. therefore, Frazier’s ex post facto claim fails on the merits. Although current Rule 410 requires the occurrence of plea discussions in order to activate the prohibition, former Rule The district court disposed of Frazier’s thirteen remaining 410 does not. The former rule instead references only “an claims in a careful and detailed manner. These claims range offer to plead guilty.” Thus, were we in a position to decide from the contention that Ohio’s statutory scheme of capital this question of state law in the first instance, it would seem punishment is unconstitutional to the argument that the to us that Frazier’s offer to plead guilty was admissible under instruction on reasonable doubt given by the trial court was current Rule 410, but not under former Rule 410. Of course, constitutionally deficient. Our discussion of these other it is the contrary judgment of the Ohio Supreme Court that claims would be duplicative and serve no useful purpose. We No. 01-3122 Frazier v. Huffman 33 34 Frazier v. Huffman No. 01-3122

therefore adopt the reasoning of the district court as to all of _____________________________________________ these remaining claims and find them without merit. CONCURRING IN PART, DISSENTING IN PART III. CONCLUSION _____________________________________________ For all of the reasons set forth above, we REVERSE in ALICE M. BATCHELDER, Circuit Judge, concurring in part the judgment of the district court, GRANT Frazier a part and dissenting in part. The majority entertains the conditional writ of habeas corpus that will result in the question of whether Frazier received the effective assistance vacation of his death sentence unless the state of Ohio of counsel at the mitigation stage of his trial, despite the fact commences a new penalty-phase trial against him within 180 that the Ohio courts never reached that question because, they days from the date that the judgment in this matter becomes held, Frazier’s claim was barred by the state law doctrine of final, and REMAND the case for further proceedings res judicata. Because Frazier’s claim of ineffective assistance consistent herewith. of counsel is procedurally defaulted and this court consequently has no business considering the merits of that claim, I respectfully dissent from the majority’s holding in Part II.D of its opinion. To the extent that the claims addressed in Parts II.C and II.E are not waived or procedurally defaulted, I concur in the majority’s treatment of those claims, see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”), as I do in the remainder of its opinion. I Before addressing the legal arguments the majority makes in Part II.D, it is important to understand the treatment of Frazier’s ineffective assistance of counsel claim by the Ohio courts. After his conviction and sentencing in state trial court, Frazier appealed to the Ohio Court of Appeals, where he raised fourteen assignments of error. In none of those assignments did Frazier mention the issue of the effectiveness of his trial counsel, despite the fact that Frazier’s attorneys on appeal were not the same lawyers that represented him at No. 01-3122 Frazier v. Huffman 35 36 Frazier v. Huffman No. 01-3122

trial.1 On appeal by right to the Ohio Supreme Court, Frazier been determined without evidence [beyond] the record, once again failed to raise his claim of ineffective assistance of res judicata is a proper basis for dismissing the counsel. defendant’s Petition for Post-Conviction Relief. State v. Cole (1982), 2 Ohio St. 3d 112. After the United States Supreme Court denied Frazier’s petition for a writ of certiorari, he brought a petition under J.A. at 312 (Court of Common Pleas opinion). Because, the Ohio Rev. Code § 2953.21 (1997),2 to vacate or set aside his court held, Frazier’s trial counsel were different from his sentence in the Cuyahoga County, Ohio, Court of Common counsel on direct appeal, “[a]ny [in]effective assistance of Pleas, and asserted for the first time that his trial counsel were counsel [claim] concerning trial counsel’s performance ineffective because they failed to investigate and present should have been raised on direct appeal in accordance with mitigating evidence at the sentencing phase of his trial. The Cole.” Id. The court therefore granted the State’s motion to Court of Common Pleas, without addressing the merits of this dismiss, and denied Frazier’s request for an evidentiary claim, stated as follows: hearing. Consistent with the principles of res judicata, matters The Ohio Court of Appeals affirmed. After examining the which have been or should have been raised on direct “new evidence” of his “organic brain impairment” that Frazier appeal may not be considered in post-conviction claimed was unavailable at trial,3 the court held that the proceedings. State v. Ishmail (1981), 67 Ohio St. 2d 16. evidence was not new, and hence did not permit Frazier to In addition, where a defendant, represented by new overcome the bar of res judicata. The court noted that “it can counsel on direct appeal, fails to raise the issue of reasonably be concluded trial counsel were appraised of the competent trial counsel and said issue could fairly have purported brain injury from their review of the medical records; however, as a matter of trial strategy counsel deemed this avenue of defense unworthy of further pursuit.”4 State v. 1 Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App. Frazier did challenge the constitutionality of several Ohio statutes Dec. 11, 1997). This conclusion, the court said, was on the basis that those statutes worked to deprive him of the effective assistance of counsel. However, he did not argue on direct appeal that his counsel were ineffective. 3 Ohio law provides that the p rocedural bar of res jud icata does not 2 app ly in this context if the petitioner sets forth, in support of his newly Ohio Rev. Cod e § 2953 .21 p rovid es, when a prisoner has filed for post-conviction relief, that “[u]nless the petition and the files and records raised claim, evidence that was not availab le at trial or o n direc t appeal, of the case show the petitioner is not entitled to relief, the court shall and without which the defense could not have been expected to raise the proceed to a prompt hearing on the issues . . . .” § 2953.21(E) (1997). new claim. See State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982 ). However, 4 [b]efore granting a hearing on a petition filed under division (A) The majority agrees with the Ohio courts’ factual finding that of this section, the court shall determine whether there are Frazier’s trial attorneys knew enough about his head injury to present that substantive grounds for relief. In making such a determination, evidence for mitigation purposes: “Although information about the nature the court shall consider, in addition to the petition, the and severity of the injury was less thoroughly develope d in those [state supporting affidavits, and the documentary evidenc e, [and ] all postconviction] proceed ings than it is now, sufficient facts were presented the files and records pertaining to the proceedings against the to indicate the existence o f evidence concerning Frazier’s brain injury that petitioner . . . . could have bee n developed an d presented to the jury d uring the pena lty § 2953 .21(C). phase.” Supra, at 25. No. 01-3122 Frazier v. Huffman 37 38 Frazier v. Huffman No. 01-3122

“reinforced” by three factors, namely, (1) counsel’s argument decision resting on an adequate foundation of state that a psychologist would merely interpret the findings of the substantive law is immune from review in the federal mitigation expert; (2) counsel’s filing of a motion to limit courts”). Instead, this court must first consider whether reference to mitigating factors; and (3) “the thorough and Frazier’s ineffective assistance of counsel claim is properly professional manner in which counsel conducted appellant’s before it prior to discussing the merits of that claim. defense . . . .”5 Id. These statements by the Ohio Court of Appeals were not made in the context of discussing the merits This issue “concerns the respect that federal courts owe the of Frazier’s claim of ineffective assistance of trial counsel, States and the States’ procedural rules when reviewing the but in the context of determining whether that ineffective claims of state prisoners in federal habeas corpus.” Coleman assistance claim was barred by the state law doctrine of res v. Thompson, 501 U.S. 722, 726 (1991). The Supreme Court judicata. The Common Pleas Court, without reaching the has held that “[w]here the petitioner . . . failed properly to merits of that claim, had granted the state’s motion to dismiss raise his claim on direct review, the writ [of habeas corpus] is Frazier’s post-conviction petition, holding that the claim was available only if the petitioner establishes ‘cause’ for the barred by res judicata. The Court of Appeals affirmed that waiver and shows ‘actual prejudice resulting from the alleged judgment, mentioning the merits only to the extent of . . . violation.’” Reed v. Farley, 512 U.S. 339, 354 (1994) explaining their conclusion that the “new”evidence of head (quoting Wainwright v. Sykes, 433 U.S. at 84). This rule injury Frazier urged the court to rely on in order to get around applies when a state court, relying upon a state rule of law, the res judicata bar was not new at all. refused on collateral appeal to consider a claim that the petitioner could have raised on direct review, and the II petitioner now raises the same claim on habeas appeal. Teague v. Lane, 489 U.S. 288, 297-98 (1989) (holding that Respondent Huffman raises Frazier’s “failure to present the petitioner’s claim, which he failed to raise on direct review in [ineffective assistance of counsel] claim and the facts in state court, was procedurally defaulted because the Illinois support of it to the state courts.” Huffman Br. at 49-50. appeals court refused, on the basis of a state law doctrine of Notwithstanding the Supremacy Clause of the Constitution, res judicata, to consider the claim in a state collateral see Cooper v. Aaron, 358 U.S. 1, 18-19 (1958), federal proceeding); Coleman v. Mitchell, 268 F.3d 417, 428-29 (6th habeas courts are not free to undertake a plenary review of all Cir. 2001) (Clay, J.) (holding that Ohio’s doctrine of “res claims brought pursuant to 28 U.S.C. § 2254. See, e.g., judicata under § 2953.21 [is] an adequate and independent Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“a state state ground justifying foreclosure of constitutional claims” in habeas proceedings); see generally Coleman v. Thompson, 501 U.S. at 729-30 (“The [independent and adequate state 5 ground] doctrine applies to bar federal habeas when a state The majo rity corre ctly notes that “[t]he first two facto rs . . . have no court declined to address a prisoner’s federal claims because relevance in explaining ho w the strategy ultimately pursued by Frazier’s counsel was reasonable.” Supra, at 22. But this statement indicates that the prisoner had failed to meet a state procedural requirement. the majo rity misund erstand s the legal ana lysis that the Ohio Court of In these cases, the state judgment rests on independent and Appeals unde rtook. T he O hio Court of App eals was not see king to adequate state procedural grounds.”). support the “reasonab leness” of the trial counsel’s investigatory tactics (or lack thereof); rather, the court was explaining the basis for its conclusion This court’s initial obligation with regard to Frazier’s that trial counsel was aware of evidence Frazier claimed was not available at trial, a ma tter to which the first two factors are obviously relevant. ineffective assistance of counsel claim, which the Ohio courts No. 01-3122 Frazier v. Huffman 39 40 Frazier v. Huffman No. 01-3122

held was barred by res judicata, is to determine whether the 35. “[A] procedural default does not bar consideration of a claim is in fact procedurally defaulted. First, we must federal claim on either direct or habeas review unless the last consider whether Ohio’s procedural bar to Frazier’s raising state court rendering a judgment in the case clearly and his constitutional claim was “firmly established and regularly expressly states that its judgment rests on a state procedural followed” at the time the Ohio Court of Appeals ruled. Ford bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (internal v. Georgia, 498 U.S. 411, 424 (1991). It clearly was. State quotations omitted). So long as the state court does so, its v. Cole, 443 N.E.2d 169 (Ohio 1982), the case on which the finding of procedural default precludes consideration by a Court of Common Pleas relied, and which was subsequently federal court even when the state court also analyzed the cited by the Ohio Court of Appeals as support for its holding defaulted claim under federal law. Id. at 264 n.10. In this on res judicata, is not only itself established, but relies case, the majority uses as its tenuous springboard to launch directly upon the 1967 case of State v. Perry, 226 N.E.2d 104 into the merits of Frazier’s ineffective assistance (Ohio 1967). State v. Perry was cited by this court when we claim—without ever addressing whether the claim was held that “application of res judicata . . . is an adequate and procedurally defaulted—a patently incorrect characterization independent state ground for barring habeas review of of the Ohio Court of Appeals’ ruling: “Frazier’s ineffective- constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429. assistance claim was rejected by the Ohio Court of Appeals on the basis of the first prong of Strickland.” Supra, at 19. In Second, we must determine whether the state’s procedural fact, as I discussed above, the Ohio Court of Appeals held that rule barring review is an adequate and independent state “the trial court properly applied the doctrine of res judicata.” ground sufficient to foreclose review of constitutional claims. Frazier, 1997 WL 764810, at *6. That court never mentioned I have already cited authority establishing that Ohio’s Strickland or any other federal court precedents pertaining to doctrine of res judicata meets this requirement. See id.; see ineffective assistance of counsel (with the exception of also Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003) one—Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995)—upon (reaffirming Coleman v. Mitchell’s holding that Ohio’s which Frazier relied but that contained facts “inapposite” to doctrine of res judicata is an adequate and independent state those of the present case). Even if the Ohio Court of Appeals ground). had analyzed the merits of Frazier’s ineffective assistance claim, its distinct holding based upon the state law doctrine of Third, we must be sure that the last state court to rule on res judicata is sufficient to bar our consideration of that claim Frazier’s claim actually disposed of that claim on a state law unless Frazier can show cause and prejudice. procedural ground.6 Thompson, 501 U.S. at 734- Finally, we must examine whether the Ohio Court of Appeals, which applied the doctrine of res judicata and 6 rejected Frazier’s contention that his claim was based upon W hile the Ohio Supreme Court was actually the last state court to evidence outside the record, actually “discuss[ed] any of that rule on Frazier’s collateral appeal, the Court summarily “decline[d] jurisdiction to hear the case and dismisse[d] the appeal as not involving evidence, ma[d]e specific factual findings on the matter, or any substantial constitutional question.” J.A. at 345 (Ohio Supreme C ourt provide[d] any reasoned analysis” to uphold its decision. order). This court therefore loo ks to the Ohio Court of Appeals decision Williams v. Coyle, 260 F.3d 684, 696 (6th Cir. 2001). as the final reasoned state court decision for purposes of considering procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (holding that a federal court looks through an unexplained order “to the last reasoned decisio n,” and does not assume that the unexplained order lifts the prior holding that the claim at issue was procedurally barred). No. 01-3122 Frazier v. Huffman 41 42 Frazier v. Huffman No. 01-3122

“Without such analysis, we are unwilling to rule that the conviction of one who is actually innocent, a federal habeas claim is procedurally barred.” Id. In this case, the Ohio court may grant the writ even in the absence of a showing of Court of Appeals discussed the “new” evidence put forth by cause for the procedural default.” Murray v. Carrier, 477 Frazier, including the affidavit of psychologist Sharon L. U.S. 478, 496 (1986). The present issue concerns whether Pearson, who opined that Frazier should have been examined Frazier was sentenced fairly, and so “the ‘actual innocence’ by a licensed psychologist as part of his mitigation defense. requirement must focus on those elements that render a Frazier, 1997 WL 764810, at *6. Moreover, the court defendant eligible for the death penalty, and not on additional explained—in the portion of its opinion that the majority mitigating evidence that was prevented from being introduced confuses for a Strickland analysis—the basis for its as a result of a claimed constitutional error.” Sawyer v. conclusion that Frazier’s trial counsel were aware of Frazier’s Whitley, 505 U.S. 333, 347 (1992). Since Frazier only claims head injury and therefore why the evidence dehors the record that the alleged ineffective assistance of his counsel resulted was not sufficient to overcome the procedural bar of res in a failure to present available mitigating evidence at the judicata. Id. The Ohio Court of Appeals’ analysis was more sentencing phase, and since the evidence of his brain than sufficient to comply with the requirements of Williams impairment does not call into question the jury’s finding of v. Coyle. aggravating factors, Frazier cannot use the doctrine of “actual innocence of the death penalty” to excuse his procedural Therefore, this court is required to determine whether default. Id. Moreover, since Frazier does not set forth any Frazier can show both cause and prejudice for his failure to evidence which, if believed, might lead a trier of fact to find comply with Ohio’s procedural rule. Clearly, he cannot. him innocent of the murder of Tiffany Skiba, he cannot meet Frazier has not shown any cause for his failure to raise on Carrier’s actual innocence standard, namely, that the alleged direct appeal his claim of ineffective assistance of counsel. In constitutional error probably resulted in the conviction of a his brief before this court, he fails to address the issue of defendant who was actually innocent. Schlup v. Delo, 513 procedural default at all, and instead launches directly into a U.S. 298, 322-27 (1995). discussion of the merits of his claim. “We . . . require a prisoner to demonstrate cause for his state-court default of III any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim.” Edwards All means of circumventing the Ohio courts’ holding that v. Carpenter, 529 U.S. 446, 451 (2000). Frazier has not even Frazier’s ineffective assistance claim was barred by res attempted to make such a demonstration, and any excuse judicata have been foreclosed; this court therefore has no Frazier might now present for his failure to raise his legal authority to consider the merits of that claim. In so ineffective assistance claim properly on direct appeal is doing, the majority contravenes clearly established precedent waived. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 of the United States Supreme Court and this Circuit, and (6th Cir. 1996) (citing Fed. R. App. P. 28 and noting that the “undermine[s] the State’s interest in enforcing its laws.” court “normally decline[s] to consider issues not raised in the Coleman v. Thompson, 501 U.S. at 731. I therefore dissent. appellant’s opening briefs”). The one means by which Frazier could bypass the requirement that he show cause is extraordinary: “where a constitutional violation has probably resulted in the