RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0204p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

KENNETH W. SMITH,

 Petitioner-Appellant,

v.

BETTY MITCHELL, Warden,

 Respondent-Appellee.

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No. 05-4211

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 99-00832—Walter H. Rice, District Judge.

Argued: March 10, 2009

Decided and Filed: June 5, 2009 

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Kyle E. Timken, LAW OFFICE, Columbus, Ohio, for Appellant. Charles L.

Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: Kyle E. Timken, LAW OFFICE, Columbus, Ohio, S. Scott Haynes,

HALLOWES, ALLEN & HAYNES, Reynoldsburg, Ohio, for Appellant. Charles L. Wille,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Ohio death-row inmate Kenneth Smith

(“Smith”) appeals the district court’s denial of his petition for habeas corpus relief from his

state-court convictions and sentence. In 1996, Smith was convicted on two counts of

aggravated felony murder and was sentenced to death for each aggravated-murder count.

After Smith exhausted his remedies in the Ohio state courts, he filed this petition for habeas

corpus pursuant to 28 U.S.C. § 2254. After the district court denied his petition, a certificate

1
No. 05-4211 Smith v. Mitchell Page 2

of appealability (“COA”) was granted on five issues: (1) whether the prosecutor committed

misconduct at trial by arguing that Smith lacked remorse and by improperly questioning

Smith on cross-examination; (2) whether trial counsel provided ineffective assistance of

counsel in challenging Smith’s confession to police; (3) whether Smith was sentenced to

death for a murder he did not commit; (4) whether the Ohio death penalty is unconstitutional

as applied to Smith; and (5) whether Ohio’s adoption of a one-tier system of appellate review

for capital cases denied Smith due process under the United States Constitution. For the

reasons discussed below, we AFFIRM the district court’s denial of Smith’s petition for

habeas relief under 28 U.S.C. § 2254.

I. BACKGROUND

A. Factual Background

The underlying facts were set forth by the Ohio Supreme Court on Smith’s direct

appeal:

On May 12, 1995, sometime around 11:00 p.m., defendant-appellant,

Kenneth W. Smith (“defendant”), and his brother, Randy Smith (“Randy”),

brutally murdered Lewis Ray and Ruth Ray in their Hamilton, Ohio home.

Lewis was severely beaten, his skull was fractured, and his throat was slit,

severing his windpipe and carotid arteries. Ruth died from manual

strangulation. Their home was ransacked, and money and jewelry were

taken. The following morning, David L. Lester, Ruth’s son, discovered the

bodies of his mother and stepfather and called the police.

In the Rays’ home, police observed signs of a struggle, blood on the

kitchen floor, and bloody footprints throughout the house. Police found a

damaged white ceramic coffee pot covered with blood stains in the trash can

and a green army camouflage hat on the floor. A knife had recently been

removed from a butcher block set. Police found Lewis lying on the kitchen

floor and Ruth lying in the doorway between the hall and bedroom. The

Rays’ bedroom had been ransacked, and the contents of dressers were

strewn about the floor.

Earlier in the evening of May 12, 1995, defendant and Randy had

gone to the Crystal Lounge, a.k.a. Crystal Bar, with a friend, Russell C.

Baker. At approximately 10:20 p.m., defendant borrowed Baker’s car

allegedly to pick up his wife, Brenda Smith, and some friends. By midnight,

defendant had not returned Russell’s car. At about that time, Brenda and

Lillian Canafax, Randy’s live-in girlfriend, arrived at the Crystal Lounge

also looking for the Smith brothers. About forty-five minutes later, Russell

and the two women decided to go to Chasteens Bar. Defendant eventually
No. 05-4211 Smith v. Mitchell Page 3

showed up at Chasteens Bar at approximately 1:30 a.m. When Russell

questioned defendant about the car, defendant claimed that he was late

because he had been in a fight at a gas station. Defendant showed Russell

a bump on his head. At the time, Russell also noticed that defendant had

changed his clothes.

At approximately 2:00 a.m., defendant left Chasteens Bar in his

Monte Carlo automobile with Brenda, Randy, Lillian, and Russell.

Defendant drove to his house, handed his car keys to Randy, and instructed

Randy to take a stuffed pillowcase from a nearby blue automobile and put

it into the trunk of the Monte Carlo. Russell accused the Smith brothers of

being “out thieving with my car.” Defendant replied, “Russell, I wouldn’t

do that.” The group then drove to Buckeye Street, where Russell’s brother,

James, was staying. Russell soon went home and to bed.

In the early hours of May 13, 1995, defendant admitted to his friend,

James Baker, that he had killed Lewis Ray and that his brother, Randy, had

strangled Ruth Ray. James testified that on May 12, 1995, he was staying

at his mother’s apartment, when defendant and Randy arrived at

approximately 1:30 a.m. in Russell’s automobile. The Smiths had been to

the apartment earlier in the evening before going to the Crystal Lounge.

Defendant told James that he had been in a fight, and James noticed that

defendant had cleaned up and changed clothes. Defendant was wearing a

sweater and boots instead of tennis shoes. He was not wearing a hat. James

further testified that defendant left the apartment again at 1:35 a.m. to go to

Chasteens Bar.

When defendant returned to James’s mother’s apartment at

approximately 2:45 a.m., he began to tell James about the murders. James

testified that defendant told him that he had taken a hammer and “struck

Louie Ray between his eye[s],” and that during this time, defendant had

winked at his brother, Randy, who followed Ruth into a bedroom and

strangled her. Defendant also told James that they took gold and jewelry in

a pillowcase from the Rays’ home.

James testified that when he asked defendant why he killed the Rays,

defendant replied that they had killed them to prevent the Rays from

identifying them. James testified that defendant “was talking how he sliced

Lewis Ray’s throat from ear to ear and just laughing about it.” Defendant

also told James that after he killed Lewis, he “kicked Ruth’s brain in” to

make sure she was dead. James testified that defendant brought a pillowcase

stuffed with jewelry inside the apartment, but James asked him to take it

back to the car.

Later that morning, James was driving around with defendant and

Brenda. They stopped to buy cigarettes and marijuana. Defendant

mentioned to James that he was concerned because he lost his green army

camouflage hat in the struggle with Lewis. Eventually they drove to

Russell’s home. There, out of defendant’s presence, James told Russell what
No. 05-4211 Smith v. Mitchell Page 4

defendant had admitted. Defendant then suggested to James that he hide the

remaining jewelry. This prompted Russell to contact the police. Police later

recovered the jewelry in the attic of a garage.

In addition to the testimony of James Baker, Lillian Canafax testified

that she was outside Chasteens Bar arguing with Randy when he showed her

a gun. She testified that she saw the same gun in her bedroom the following

morning. Several days later, after she found the gun and money under the

bed, she authorized police to search the apartment. Lillian also turned over

to police three money orders she had purchased for Randy the day after these

crimes occurred.

Another witness testified that around 11:15 or 11:30 p.m., he saw

Randy standing outside a pizza parlor about a block from the Rays’

residence. The witness testified that Randy had a hammer in his hand as he

ducked behind the building. Russell testified that a hammer was missing

from his car after he had loaned his car to defendant.

That afternoon, the police detained defendant for questioning. At the

time, police observed cuts and scratches on defendant’s face, and a long cut

and bruises near his right collarbone. Police also searched Brenda’s purse

and discovered a cellophane bag containing rings, two $100 bills, and a

quantity of nonsequentially numbered food stamps. Police knew that Lewis

sold similar jewelry and suspected that he may have dealt in food stamps as

currency.

At the police station, defendant waived his Miranda rights and

admitted that he and Randy had killed Lewis and Ruth. Defendant said that

while at the Crystal Bar, he and Randy had talked about going to rob the

Rays, and decided that they would have to kill the Rays because they did not

want the Rays to be able to identify them. Defendant told police that after

arriving at the Rays’ house, he and Lewis began to argue about money that

defendant supposedly owed Lewis. Defendant further admitted that he

picked up an object from the kitchen counter and struck Lewis, eventually

overpowering him. Defendant claimed that Lewis said, “I’m going to kill

you, Kenny,” so defendant grabbed a knife and cut Lewis’s throat. He then

rolled Lewis on his side and took his wallet. Defendant said he walked to

the bedroom and saw Ruth’s body on the floor. Randy had choked her to

death. The two men ransacked the bedroom and left in Russell’s

automobile.

Police apprehended Randy Smith. They found $344 in bloodstained

currency on him. Randy initially denied any knowledge of the murders.

Police allowed Randy to speak with his brother, who said, “They got us

brother, everybody is telling on us, tell the truth, that’s what I did.” Randy

then explained to the police his involvement in the crimes.

Later, after again being advised of his Miranda rights, defendant

gave the police a written confession. In his statement, defendant said that
No. 05-4211 Smith v. Mitchell Page 5

while playing pool at the Crystal Lounge, he talked with Randy about

robbing Lewis. He borrowed Russell’s car and drove to a pool hall about

half a block from the Ray home. Defendant stated that he and his brother

walked to the Rays’ house. Lewis invited the Smiths into his home.

Defendant and Lewis began to argue about $2,500 that defendant owed

Lewis. The men began to fight in the kitchen and defendant grabbed

something from the counter and struck Lewis’s head. They continued to

wrestle on the floor. Defendant knew he was going to have to kill Lewis to

keep him from telling anyone what happened. Defendant then grabbed a

knife and “sliced Louie across the throat.”

In his written confession, defendant further admitted that he took

Lewis’s wallet, then walked into the bedroom. Ruth was lying on the floor

in the doorway, and defendant had to step over her body. Defendant said he

asked Randy what had happened, and Randy said he had choked Ruth.

Defendant further admitted that he then ransacked the bedroom, taking rings,

watches, and necklaces, and placed the items in a plastic bag and left.

According to his signed confession, defendant went home after the

murders to shower and change clothes. He and Randy divided the money

found in Lewis’s wallet. Defendant’s share was around $625. Defendant

then put his bloody clothes, the knife, and Lewis’s wallet into a green trash

bag that Randy later threw into the river. The two men then drove to

Chasteens Bar.

In his confession, defendant explained that after leaving Chasteens

Bar, he drove to the apartment where James Baker was staying and began to

go through the jewelry that the defendant and Randy had taken from the

Rays’ house. Defendant picked out some items he wanted to keep. The

following morning he placed some rings into a plastic bag and gave them to

Brenda, who put them into her purse. Defendant put the remainder of the

jewelry into the trunk of his Monte Carlo. He and James then put the

jewelry into the attic of James’s grandmother’s garage. During police

questioning, defendant also admitted that the wristwatch he was wearing had

belonged to Lewis.

At trial, defendant testified that he and Randy went to the Rays,

intending only to steal saws and drills from the yard. They parked the car

away from the house, but as they walked into the yard, Lewis opened the

gate and saw them. Lewis invited them into the house, and the men began

to argue about money that defendant allegedly owed Lewis. Defendant

testified that within ten minutes, “everything got real violent.” Lewis

“jumped up,” told defendant he “was going to shoot” him, and hit defendant

“upside the head with something.” Defendant testified that he grabbed

something from near the stove and struck Lewis. Defendant testified that

Lewis tried to push him down the basement steps. Defendant then grabbed

a knife and cut Lewis as he approached. Defendant bent down, turned Lewis

on his side, and grabbed his wallet. Defendant further testified that Randy
No. 05-4211 Smith v. Mitchell Page 6

1

Smith initially sought to appeal his convictions and sentence to the Ohio Court of Appeals, but

review was denied due to then-recent changes in Ohio law limiting capital defendants to a single tier of

appellate review in the Ohio Supreme Court. See Ohio Const. art. IV, §§ 2(B)(2)(c) and 3(B)(2).

told him that he had choked Ruth. The brothers then ransacked the

bedroom, taking jewelry.

Defendant denied that he intended to kill the Rays. Defendant

claimed that Lewis was his best friend, and he “wouldn’t cold blooded kill

him for nothing.” Defendant testified that he was very upset about the Rays

because they were “like family” to him. He admitted that he told James

about killing Lewis, but testified that he wasn’t laughing or joking, but

instead, he was “in tears.”

Kenneth Smith was charged in two counts with the aggravated

felony-murder of Lewis Ray and Ruth Ray in violation of R.C. 2903.01(B).

Each murder charge contained three death specifications: the offense was

committed to escape detection, apprehension, trial, or punishment for other

offenses, R.C. 2929.04(A)(3); the offense was part of a course of conduct

involving the purposeful killing of two or more persons, R.C.

2929.04(A)(5); and the offense was committed during the course of an

aggravated robbery, R.C. 2929.04(A)(7). He was also charged with two

counts of aggravated robbery that included the allegation of a prior felony

conviction for attempted burglary. The jury convicted defendant as charged

and recommended the death penalty on the aggravated murder counts. The

trial court sentenced defendant to death.

Smith v. State, 684 N.E.2d 668, 675-78 (Ohio 1997).

B. State Proceedings

Prior to trial, Smith’s counsel filed a motion to suppress Smith’s confession to the

police. The motion challenged both the arrest itself and the subsequent interrogation and

was described by the trial court at the hearing as a “shotgun motion.” Suppression Hr’g Tr.

at 69. At the hearing, the government called three detectives who participated in Smith’s

arrest and interrogation, and Smith’s counsel did not call any witnesses. Smith’s counsel did

not question any of the witnesses about Smith’s mental state at the time of the interrogation.

A supplemental brief filed by Smith’s counsel focused not on the interrogation but on the

supposed lack of probable cause for the arrest. The trial court subsequently denied the

motion.

Smith appealed his convictions and sentence to the Ohio Supreme Court,1

 raising

several assignments of error. Among other things, Smith argued that (1) recent
No. 05-4211 Smith v. Mitchell Page 7

amendments to the Ohio constitution providing for one-tier appellate review in capital

cases violate the Fourteenth and Eighth Amendments; (2) the capital specifications on

his conviction for the murder of Ruth Ray required the jury inappropriately to examine

the actions of the principal offender, his brother Randy, rather than Smith’s actions;

(3) the death penalty was applied inappropriately, excessively, and disproportionately

because Smith’s brother Randy received only a life sentence; (4) prosecutorial

misconduct at Smith’s trial denied his right to due process; (5) Smith did not receive

effective assistance of counsel at all stages of the proceedings; (6) Smith’s statement to

police was obtained involuntarily and unknowingly; and (7) Ohio’s statutory provisions

governing the imposition of the death penalty are unconstitutional on their face and as

applied. The Ohio Supreme Court denied Smith’s appeal on all grounds and affirmed

his convictions and sentence.

Smith then sought postconviction relief in the Ohio state courts pursuant to Ohio

Revised Code § 2953.21, raising eleven claims for relief and requesting an evidentiary

hearing and the opportunity to conduct discovery. Among his grounds for relief, Smith

claimed that he was denied effective assistance of counsel and that his statements to the

police should have been suppressed because he was intoxicated at the time of the

interrogation. The trial court denied Smith relief, and the Ohio Court of Appeals

affirmed. The Ohio Court of Appeals concluded that many of Smith’s claims were

barred by res judicata and that Smith had not met his burden to show that an evidentiary

hearing was warranted. State v. Smith, No. CA97-12-223, 1998 WL 549964 (Ohio Ct.

App. Aug. 31, 1998).

C. Federal Proceedings

On October 4, 1999, Smith filed a petition for a writ of habeas corpus in the

United States District Court for the Southern District of Ohio pursuant to 28 U.S.C.

§ 2254, asserting nineteen grounds for relief. Among these claims, Smith asserted that

(1) his constitutional rights were violated by the prosecutor’s misconduct on crossexamination of Smith and during closing arguments, (2) Smith’s counsel was ineffective

in challenging his confession, (3) Smith’s constitutional rights were violated when he
No. 05-4211 Smith v. Mitchell Page 8

was sentenced to death for a murder he did not commit, (4) Smith’s rights to equal

protection and due process were violated by Ohio’s elimination of the intermediate level

of appellate review for capital defendants, and (5) Ohio’s death-penalty statute is

unconstitutional on its face and as applied to Smith. Smith initially sought discovery and

an evidentiary hearing, but both motions were denied without prejudice. Although

Smith filed a renewed motion for leave to conduct discovery, which was then denied, he

never filed a renewed motion for an evidentiary hearing.

The case was referred to a magistrate judge, who recommended that the petition

be denied on all grounds. Smith filed objections to the magistrate judge’s report and

recommendation, but the district court ultimately adopted the report and

recommendation and denied relief. Smith v. Mitchell, No. C-1-99-832, 2005 WL

1969309 (S.D. Ohio Aug. 15, 2005); Smith v. Mitchell, No. C-1-99-832, 2003 WL

24136073 (S.D. Ohio Sept. 20, 2003). The district court did, however, grant a COA on

one claim: whether Ohio’s one-tier system of appellate review for capital cases violates

the Due Process Clause of the Fourteenth Amendment. Smith, 2003 WL 24136073, at

*26-28. We subsequently expanded the COA to include four additional claims:

“(1) whether the prosecutor committed misconduct at trial by arguing that Smith lacked

remorse and by improperly questioning Smith on cross-examination; (2) whether trial

counsel ineffectively challenged Smith’s confession; (3) whether Smith was sentenced

to death for a murder he did not commit; (4) whether the Ohio death penalty statute is

unconstitutional as applied to Smith.” Joint Appendix (“J.A.”) at 612 (Order).

II. ANALYSIS

A. Standard of Review

“‘In a habeas corpus proceeding, this Court reviews a district court’s legal

conclusions de novo and its factual findings for clear error.’” Smith v. Berghuis, 543

F.3d 326, 334 (6th Cir. 2008) (quoting Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir.

2005)). Because Smith filed his habeas petition after April 24, 1996, we review all

claims that were adjudicated on the merits by the Ohio state courts under the standards
No. 05-4211 Smith v. Mitchell Page 9

set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Under AEDPA,

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has explained that subsection 2254(d)(1)

contains two prongs, the “contrary to” and the “unreasonable application of” clauses,

each with an independent meaning. Terry Williams v. Taylor, 529 U.S. 362, 404 (2000).

A decision is contrary to clearly established federal law if either “the state court applies

a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” id.

at 405, or “the state court confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless arrives at a result different from

[Supreme Court] precedent,” id. at 406. A decision is an unreasonable application of

clearly established federal law, on the other hand, if “the state court identifies the correct

governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the

facts of the particular state prisoner’s case.” Id. at 407.

B. Prosecutorial Misconduct

Smith argues that the prosecutor committed misconduct during the guilt phase

of the trial. Specifically, Smith claims that the prosecutor argued during his closing

statement that Smith lacked remorse and that the prosecutor badgered Smith and made

inflammatory comments about the victim on cross-examination. In the evaluation of a

claim for prosecutorial misconduct, it is not enough that the prosecutor’s comments were

improper, but “[t]he relevant question is whether the prosecutors’ comments ‘so infected
No. 05-4211 Smith v. Mitchell Page 10

the trial with unfairness as to make the resulting conviction a denial of due process.’”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974)); accord Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006),

cert. denied, 549 U.S. 1255 (2007). “In order to satisfy the standard for prosecutorial

misconduct, the conduct must be both improper and flagrant.” Broom, 441 F.3d at 412;

accord Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). We consider four factors in

determining whether a prosecutor’s improper conduct is flagrant:

(1) the likelihood that the remarks of the prosecutor tended to mislead the

jury or prejudice the defendant; (2) whether the remarks were isolated or

extensive; (3) whether the remarks were deliberately or accidentally

made; and (4) the total strength of the evidence against the defendant.

Broom, 441 F.3d at 412 (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied,

546 U.S. 865 (2005)); accord Boyle, 201 F.3d at 717.

The Ohio Supreme Court rejected Smith’s prosecutorial-misconduct arguments,

finding that neither instance of alleged misconduct was improper. As to the prosecutor’s

remarks during closing arguments, the court found that “[t]he prosecutor’s reference to

defendant’s lack of remorse may have been intended to question his credibility.” Smith,

684 N.E.2d at 689. We agree that this statement was not improper in the context of this

case. On direct examination, Smith testified that he cried when he told his friend James

Baker about the murders; this contradicted Baker’s testimony that Smith was laughing

when he told Baker about slitting Lewis Ray’s throat. The prosecutor’s reference to

Baker’s testimony that Smith lacked remorse was proper to discredit Smith’s

contradictory testimony.

Regarding Smith’s cross-examination, the state court concluded that “[b]ecause

defendant claimed that parts of his written confession to police were untrue, it was not

improper for the prosecutor to ask defendant to identify those parts of his confession”

and that because “[d]efendant’s testimony also conflicted with the crime-scene

photographs . . . it was not improper for the prosecutor to question defendant about the

photographs in evidence.” Id. at 689. Although we believe that some of the prosecutor’s

conduct on cross-examination may have been improper, particularly his questioning of
No. 05-4211 Smith v. Mitchell Page 11

Smith about the “kind of sounds [Ray Lewis] made when you ripped his throat from ear

to ear,” Trial Tr. at 889, we cannot conclude that this conduct was flagrant such that it

“so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Darden, 477 U.S. at 181. The comments were isolated, do not seem to have

been purposeful, and any prejudice was slight, as the jury already had graphic

photographs of the crime scene. Further, the evidence against Smith, particularly the

crime-scene photographs, the physical evidence, Baker’s testimony, and the statement

Smith gave to police after he was arrested, was very strong. Overall, we do not find

unreasonable the conclusion of the Ohio Supreme Court that “no misconduct occurred

that would have affected the fairness of the trial.” Smith, 684 N.E.2d at 689-90.

C. Ineffective Assistance of Counsel

Smith argues that his trial counsel performed ineffectively by failing to develop

and introduce at the suppression hearing evidence of Smith’s intoxication at the time of

his arrest and interrogation and of his low mental capacity. The standard for claims of

ineffective assistance of counsel was set out by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). “Claims of ineffective assistance of counsel have

‘two components: A petitioner must show that counsel’s performance was deficient, and

that the deficiency prejudiced the defense.’” Mason v. Mitchell, 543 F.3d 766, 772 (6th

Cir. 2008) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). To establish that

counsel was deficient, “the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Strickland, 466 U.S. at 688. To establish

prejudice, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. After setting forth the Strickland standard, the Ohio Supreme

Court denied Smith’s claim because “[i]ntoxication affecting one’s state of mind, absent

coercive police activity, would be an insufficient reason to exclude his voluntary

confession.” Smith, 684 N.E.2d at 690 (citing Colorado v. Connelly, 479 U.S. 157

(1986)).
No. 05-4211 Smith v. Mitchell Page 12

Although we believe that Smith has likely established the first Strickland prong,

that his counsel’s performance was deficient, we conclude that Smith has not shown that

this deficiency prejudiced the outcome of the suppression hearing. We first note,

however, that the Ohio Supreme Court’s reliance solely on Colorado v. Connelly was

misplaced, because Smith did not argue only that evidence of intoxication would have

shown that his confession was involuntary, but also Smith contended that this evidence

would have shown that he did not knowingly and intelligently waive his Miranda rights.

A suspect in custody may waive his Miranda rights “provided the waiver is made

voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444

(1966). The Supreme Court has stated that this inquiry involves “two distinct

dimensions”:

First the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness both of the nature of the right being

abandoned and the consequences of the decision to abandon it. Only if

the totality of the circumstances surrounding the interrogation reveal both

an uncoerced choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have been waived.

Colorado v. Spring, 479 U.S. 564, 573 (1987) (quoting Moran v. Burbine, 475 U.S. 412,

421 (1986)). As this court has explained, while Connelly establishes the standard for

showing that a confession was involuntary, the question of whether a Miranda waiver

was knowing and intelligent is a separate question. Clark v. Mitchell, 425 F.3d 270, 283

(6th Cir. 2005). In considering the merits of Smith’s underlying Miranda claim, the

Ohio Supreme Court improperly looked only at whether Smith would have been able to

satisfy the first element of the inquiry, voluntariness.

The Ohio Supreme Court’s application of Strickland, however, was not

unreasonable. In evaluating whether a Miranda waiver was knowing and intelligent, a

court will “apply a totality of the circumstances test to ascertain whether [the defendant]

understood his right to remain silent and to await counsel.” Clark, 425 F.3d at 283.

Applying this standard, we conclude that Smith has not shown that he was prejudiced

by his counsel’s performance. In support of his claim, Smith presents his trial testimony,
No. 05-4211 Smith v. Mitchell Page 13

2

We note that our analysis of Smith’s ineffective-assistance-of-counsel claim would have been

enhanced had an evidentiary hearing been conducted in the district court. We do not know, for example,

what indication the police officers may have had that Smith was intoxicated during his interrogation. It

as well as that of James Baker, who was with Smith the day of the arrest, that Smith had

ingested various prescription medications, smoked marijuana, and consumed a large

amount of alcohol during the hours leading up to his arrest. Smith also presents the

affidavits of three experts detailing Smith’s limited mental capability and long history

of polysubstance abuse. Dr. Charles T. Kandiko, Ph.D., who conducted a

neuropharmacological evaluation of Smith, concluded that “Mr. Smith was intoxicated

at the time of his arrest and interrogation by police” and therefore “was not in a mental

state to competently decide whether he wanted to talk to the police or not.” J.A. at 765

(Kandiko Evaluation at 6). Even in light of this evidence however, Smith would not

have been able to show that his waiver was not knowing and intelligent under the totality

of the circumstances. The testimony of the officers at the suppression hearing showed

that Smith was given his Miranda warnings at least three times and that he affirmatively

stated that he did not need a lawyer and that he would talk about the killings. After

completing a typed statement, the detective had Smith read the statement back to him to

show that Smith could read, and Smith then signed the statement and initialed various

edits. It is highly unlikely that this testimony would have been controverted by Smith

had he testified at the suppression hearing. During his trial testimony, Smith stated that

he recalled being advised of his rights and agreed that he was “willing to talk to [the

detective],” “willing and ready to confess at that time to actually killing Lewis,” and

“had no intention of denying at all.” Trial Tr. at 840-41. Smith’s age and previous

experience with the criminal justice system would have weighed further toward finding

the waiver knowing and intelligent. See Murphy v. Ohio, 551 F.3d 485, 514 (6th Cir.

2009). Moreover, Smith has submitted no evidence that his conduct during the

interrogation gave the police any indication of his alleged intoxication or failure to

understand his repeated waivers. See Garner v. Mitchell, 557 F.3d 257, 261-63 (6th Cir.

2009) (en banc). Overall, we conclude that Smith has not shown a likelihood that the

presentation of this evidence at the suppression hearing would have changed the

outcome of the proceeding.2
No. 05-4211 Smith v. Mitchell Page 14

appears from the record, however, that, after Smith’s first motion for an evidentiary hearing was denied

without prejudice to renew upon consideration of the Supreme Court’s decision in Michael Williams v.

Taylor, 529 U.S. 420 (2000), his habeas counsel never filed a renewed motion. Under these circumstances,

we do not find it proper to remand to the district court for an evidentiary hearing.

D. Smith’s Death Sentence for the Murder of Ruth Ray

Smith argues that his constitutional rights were violated when he was sentenced

to death for the murder of Ruth Ray, who was killed by Smith’s brother Randy, because

the capital specifications did not require that Smith had the specific intent to murder

Ruth Ray and did not genuinely narrow the class of persons eligible for the death

penalty. The Ohio Supreme Court rejected these claims on direct appeal, concluding that

“[t]he Eighth Amendment does not prohibit the death penalty for an accomplice whose

participation in the felony murder was significant, and whose mental state is one of

reckless indifference,” Smith, 684 N.E.2d at 693 (citing Tison v. Arizona, 481 U.S. 137

(1987)), and finding that “the jury specifically found that [Smith] purposely intended to

kill Ruth Ray, and that he did so with ‘prior calculation and design’ as an aider and

abettor in her aggravated murder,” id.

Smith was found guilty for the murder of Ruth Ray under Ohio Revised Code

§ 2903.01(B) (1995), the felony-murder provision of the aggravated-murder statute in

effect at the time the offenses were committed. He also was found guilty on three capital

specifications, making him eligible for the death penalty: (1) “[t]he offense was

committed for the purpose of escaping detection, apprehension, trial, or punishment for

another offense committed by the offender,” Ohio Rev. Code § 2929.04(A)(3) (1995);

(2) “the offense at bar was part of a course of conduct involving the purposeful killing

of or attempt to kill two or more persons by the offender,” § 2929.04(A)(5); and

(3) “[t]he offense was committed while the offender was committing, attempting to

commit, or fleeing immediately after committing or attempting to commit . . . aggravated

robbery . . . , and either the offender was the principal offender in the commission of the

aggravated murder or, if not the principal offender, committed the aggravated murder

with prior calculation and design,” § 2929.04(A)(7).
No. 05-4211 Smith v. Mitchell Page 15

In arguing that these capital specifications were deficient, Smith primarily relies

on the Supreme Court’s decisions in Tison v. Arizona, 481 U.S. 137 (1987), and Enmund

v. Florida, 458 U.S. 782 (1982). In Tison, the Court stated, “Enmund held that when

‘intent to kill’ results in its logical though not inevitable consequence—the taking of

human life—the Eighth Amendment permits the State to exact the death penalty after a

careful weighing of the aggravating and mitigating circumstances.” Tison, 481 U.S. at

157. The Court therefore held “that the reckless disregard for human life implicit in

knowingly engaging in criminal activities known to carry a grave risk of death represents

a highly culpable mental state, a mental state that may be taken into account in making

a capital sentencing judgment when that conduct causes its natural, though also not

inevitable, lethal result.” Id. at 157-58. The Supreme Court recently noted with

approval that the Ohio “aggravated murder charge’s intent element [does] not require

any showing that [the defendant] had himself shot [the victim]. Rather, Ohio law

considers aiders and abettors equally in violation of the aggravated murder statute, so

long as the aiding and abetting is done with the specific intent to cause death.”

Bradshaw v. Stumpf, 545 U.S. 175, 184 (2005).

Smith essentially argues that the state did not prove that he had the specific intent

required to sentence him to death for the murder of Ruth Ray, because the capital

specifications used do not require a showing of “prior calculation and design.” This

argument fails, however, because, the Ohio Supreme Court reasonably concluded that

the jury found that Smith and his brother had planned to kill both Lewis and Ruth Ray

to avoid leaving any witness, providing the requisite intent. Smith, 684 N.E.2d at 693.

Smith’s focus on the wording of the capital specifications ignores the fact that the

specific intent to cause death is an element of the aggravated-felony-murder statute

itself, which requires that “[n]o person shall purposely cause the death of another while”

committing or fleeing an enumerated felony. Ohio Rev. Code § 2903.01(B) (1995)

(emphasis added). The aggravated-murder statute also states that “[n]o person shall be

convicted of aggravated murder unless he is specifically found to have intended to cause

the death of another” and instructs that the jury may not conclusively infer such intent

from the fact that the person “engaged in a common design with others to commit the
No. 05-4211 Smith v. Mitchell Page 16

3

Section § 2929.04(A)(7) allows for imposition of the death penalty if

[t]he offense was committed while the offender was committing, attempting to commit,

or fleeing immediately after committing or attempting to commit . . . aggravated robbery

. . . , and either the offender was the principal offender in the commission of the

aggravated murder or, if not the principal offender, committed the aggravated murder

with prior calculation and design.

§ 2929.04(A)(7). Smith’s jury instruction added the phrase “as an aider and abettor,” requiring that the

jury find that

[t]he aggravated murder of Ruth Ray was committed while the defendant, Kenneth

Wayne Smith, acting with prior calculation and design as an aider and abettor in the

commission of the aggravated murder of Ruth Ray, was committing or attempting to

commit the offense of aggravated robbery.

Jury Instructions at 18; Trial Tr. at 978.

offense by force and violence or because the offense and the manner of its commission

would be likely to produce death.” Ohio Rev. Code § 2903.01(D) (1995). Therefore,

regardless of the capital specifications, the jury made a finding of specific intent and

purpose to cause the death of Ruth Ray when it found Smith guilty of her aggravated

murder under § 2903.01. No more was required under Enmund and Tison.

Smith also argues that the jury instructions improperly added the phrase “as an

aider and abettor” to the language of the third capital specification, § 2929.04(A)(7),3

resulting in failure “genuinely [to] narrow the class of persons eligible for the death

penalty or reasonably [to] justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder” as required by Zant v. Stephens,

462 U.S. 862, 877 (1983). Smith Br. at 35. Smith argues that this addition removed the

requirement that Smith acted with prior calculation and design in the murder of Ruth

Ray, which is a requirement of the capital specification for defendants, such as Smith,

who were not the principal offender. This argument fails. Any confusion caused by this

phrase was cleared up by the next paragraph of the jury instructions, which explained

that “[p]rior calculation and design means that the purpose to cause the death was

reached by a definite process of reasoning in advance of the homicide, which process of

reasoning must have included a mental plan involving studied consideration of the

method and the means or instrument with which to cause the death of another.” Jury

Instructions at 19; Trial Tr. at 978. Therefore, adding the phrase “as an aider and

abettor” does not remove the requirement that Smith had “prior calculation and design”

with regard to the murder of Ruth Ray. The specification required that the jury find that
No. 05-4211 Smith v. Mitchell Page 17

4

Smith also argues that § 2929.04(A)(3) violates double jeopardy because he was punished twice

for the murder of Lewis Ray. This claim is not within the scope of the COA, which was concerned with

whether Smith was unconstitutionally sentenced to death for the murder of Ruth Ray.

Smith had prior calculation and design to murder Ruth Ray, and the Ohio Supreme Court

found that the jury did so find. Smith, 684 N.E.2d at 693. Neither the felony-murder

provision of Ohio’s aggravated-murder statute nor the capital specifications found in

Smith’s case violated the Supreme Court’s holdings in Tison, Enmund, or Zant.

4

E. Constitutionality of Ohio’s Death-Penalty Scheme

Smith argues that Ohio’s death-penalty statute is unconstitutional on its face and

as applied to Smith because it imposes arbitrary and unequal punishment and because

it employs an inadequate system of proportionality review. The Ohio Supreme Court

did not address these claims directly when raised by Smith on direct appeal, but did

evaluate the appropriateness and proportionality of Smith’s sentence, declining to

compare it to his brother Randy’s sentence. Smith, 684 F.3d at 694-98. To the extent

that the Ohio Supreme Court did not address Smith’s claims on direct appeal, we review

these arguments de novo. See Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005),

cert. denied, 546 U.S. 1100 (2006).

Smith makes two arguments to support his facial challenge to Ohio’s deathpenalty scheme, both of which are foreclosed by prior Sixth Circuit precedent. First,

Smith argues that “[p]rosecutors’ virtually uncontrolled indictment discretion allows

arbitrary and discriminatory imposition of the death penalty.” Smith Br. at 41. We have

previously rejected the same argument regarding the death-penalty system in Ohio. See

Williams v. Bagley, 380 F.3d 932, 963 (6th Cir. 2004), cert. denied, 544 U.S. 1003

(2005). Second, Smith argues that Ohio’s system of proportionality and appropriateness

review, as required by sections 2929.021 and 2929.03 of the Ohio Revised Code, is

inadequate. Specifically, Smith argues that the “statutes[’] failure to require the jury or

three-judge panel recommending life imprisonment to identify the mitigating factors

undercuts adequate appellate review,” Smith Br. at 43, that “[l]imiting review to only

cases where the death penalty was imposed . . . prevents a fair proportionality review,”
No. 05-4211 Smith v. Mitchell Page 18

id., and that the Ohio Supreme Court’s cursory appropriateness review violates due

process. Again, we previously rejected these same challenges to Ohio’s death penaltyscheme. See Buell v. Mitchell, 274 F.3d 337, 367-69 (6th Cir. 2001). For these reasons,

Smith’s facial challenge to the Ohio death-penalty system must fail.

Smith also argues that Ohio’s death-penalty scheme resulted in arbitrary and

unequal punishment as applied to Smith because he was sentenced to death while his

accomplice, his brother Randy, was sentenced to life in prison. This court recently

rejected a similar argument in Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) (en banc),

cert. denied, --- U.S. ---, 128 S. Ct. 1475 (2008), which concluded that the Ohio Supreme

Court’s decision upholding the defendant’s death sentence in the face of a codefendant’s

life sentence was neither contrary to nor an unreasonable application of clearly

established federal law. 495 F.3d at 305 (“[A] defendant could not ‘prove a

constitutional violation by demonstrating that other defendants who may be similarly

situated did not receive the death penalty.’” (quoting McCleskey v. Kemp, 481 U.S. 279,

306-07 (1987))). Because we are bound by the precedent established in Getsy, we must

conclude that the Ohio Supreme Court’s refusal to consider Randy Smith’s life sentence

in upholding Kenneth Smith’s death sentence was neither contrary to nor an

unreasonable application of clearly established federal law.

F. Constitutionality of Ohio’s One-Tier System of Appellate Review of Capital

Cases

Smith was the first capital inmate in Ohio subject to the amendments to the Ohio

constitution that eliminated the intermediate level of appellate review for capital

defendants. See Ohio Const. art. IV, § 3(B)(2). Under these amendments, which apply

to all cases in which the crime was committed on or after January 1, 1995, defendants

sentenced to the death penalty may appeal directly to the Ohio Supreme Court as a

matter of right. Ohio Const. art. IV, § 2(B)(2)(c). Smith argues that this one-tier system

of appellate review for capital cases violates his equal protection and due process rights

and constitutes cruel and unusual punishment under the Eighth Amendment. Because

Smith was the first capital defendant in Ohio to be subject to the new system, his claims
No. 05-4211 Smith v. Mitchell Page 19

were considered in depth by the Ohio Supreme Court on direct review, which found that

Ohio’s system did not violate the Constitution. Smith, 684 N.E.2d at 678-85.

Regarding the equal-protection claim, Smith argues that the one-tier system

unconstitutionally treats noncapital defendants more favorably than capital defendants

with no rational basis for the disparate treatment. The Ohio Supreme Court correctly

applied rational-basis review to Smith’s claim, following the standard in Estelle v.

Dorrough, 420 U.S. 534, 539 (1975). As the Ohio Supreme Court explained, in certain

ways capital defendants have more appeal rights than noncapital defendants under

Ohio’s appellate-review system, because capital defendants may appeal all issues,

including noncapital convictions, to the Supreme Court as a matter of right, whereas

“[o]nly two to three percent of all noncapital defendants who seek review by this court

even have their cases heard.” Smith, 684 N.E.2d at 682. More important, the Ohio

Supreme Court articulated a rationale for treating capital defendants differently than

noncapital defendants:

In addition, defendants sentenced to imprisonment are usually

already serving their terms and have a great interest in expediting their

appeals. Capital defendants, on the other hand, while seeking to overturn

their convictions, also seek to prolong the appeal process as long as

possible, using every conceivable avenue of attack, and the statistics

show they have been extremely successful in Ohio.

Id. at 682. The Ohio Supreme Court’s conclusion that Ohio’s capital appellate system

passes rational basis review is not contrary to or an unreasonable application of clearly

established federal law.

Smith’s due-process argument is essentially the same as his equal-protection

argument: because “[d]eath is different,” capital defendants should be provided more

process than noncapital defendants. Smith Br. at 55. Responding to Smith’s dueprocess argument, the Ohio Supreme Court again explained that review of right directly

to the state supreme court has advantages over review of right only to the intermediate

state appellate court:
No. 05-4211 Smith v. Mitchell Page 20

Additionally, a single-tier system does not violate the capital

defendant’s right to due process. A direct appeal to this court affords a

capital defendant significant advantages in comparison with other

criminal defendants. As stated, all of a defendant’s issues, both

noncapital and capital, constitutional or statutory, are reviewed by the

Supreme Court. A court of appeals must apply this court’s existing

precedents, but this court can directly reverse its own precedents. A

defendant can still directly challenge existing precedent and seek change.

Indeed, his or her opportunities are better, as a lower court could not

reexamine precedent from the Supreme Court.

Further, this court can more readily judge both the

appropriateness and proportionality of death sentences on a statewide

basis, instead of the geographical limits of an appellate district. An

appellate court does not have the breadth and scope of experience that

this court has to review the death sentences of all eighty-eight counties

and to measure the appropriateness and proportionality of all cases in the

state.

Smith, 684 N.E.2d at 683 (citations omitted). Further, contrary to Smith’s argument, the

fact that capital defendants were afforded greater rights before the amendment does not

mean that the lesser rights they now have are less than the Due Process Clause requires.

Smith also argues that Ohio’s one-tier system of appellate review violates the

Eighth Amendment’s guarantee against cruel and unusual punishment because this

system does not provide for “meaningful appellate review,” leading to the imposition of

the death penalty in an arbitrary and capricious manner. Smith Br. at 56-57. The

Supreme Court has not directly addressed the issue of whether a one-tier system of

appellate review violates the Eighth Amendment, but the Court has “held that [the death

penalty] could not be imposed under sentencing procedures that created a substantial risk

that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428

U.S. 153, 188 (1976) (citing Furman v. Georgia, 408 U.S. 238 (1972)). The Supreme

Court has allowed states substantial leeway in implementing procedures to assure that

the death penalty is not imposed arbitrarily or capriciously, refusing “to say that there

is any one right way for a State to set up its capital sentencing scheme.” Spaziano v.
No. 05-4211 Smith v. Mitchell Page 21

5

The Ohio Supreme Court noted that, at the time of Smith’s direct appeal, at least thirty-three

other states provided only one level of appellate review to capital defendants. Smith, 684 N.E.2d at 680-

81.

Florida, 468 U.S. 447, 464 (1984); accord Gregg, 428 U.S. at 195.5 One tool that states

may use is an appropriateness and proportionality review by the state supreme court.

See Gregg, 428 U.S. at 204-06 (noting that the Georgia Supreme Court’s proportionality

review “serves as a check against the random or arbitrary imposition of the death

penalty”). As discussed above, the Ohio Supreme Court reasonably rejected Smith’s

arguments that Ohio’s scheme does not provide for meaningful adequate review for

appropriateness and proportionality, noting that the Ohio Supreme Court “can more

readily judge both the appropriateness and proportionality of death sentences on a

statewide basis, instead of the geographical limits of an appellate district.” Smith, 684

N.E.2d at 683. We therefore conclude that the Ohio Supreme Court’s decision

upholding Ohio’s one-tier system of appellate review was neither contrary to nor an

unreasonable application of clearly established federal law.

III. CONCLUSION

For these reasons, we AFFIRM the district court’s denial of Smith’s petition for

habeas relief under 28 U.S.C. § 2254.