1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0320P (6th C ir.) File Name: 03a03 20p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R ICHA RD M. F RAZIE R , Petitione r-Appell ant,

v.

S TEPHEN J. H UFFMAN , Warden, Respondent-Appellee. X - - - -
> , - - - - N No. 01-3122

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 98-02098—James G. Carr, District Judge. Argued: October 15, 2002 Decided and Filed: September 8, 2003

Befor e: BATCHELDER, CLA Y, and GI LMAN , Circuit Judges.

_________________ COUNSEL

ARG UED: John B. Nalbandian, TAFT, STETTINI US & HOLLISTER

LL P, Cincinnati, Ohio, for

Appellant. Michael L. Collyer, OFF ICE OF THE ATTORNEY G ENERAL OF OHIO, Cleveland, Ohio, for Appellee. ON BRI EF: John B. 2 Frazier v. Huffman No. 01-3122

Nalbandian, Daniel F. Oberklein, James V. Schuster, TAFT, STETTINI

US & HOL

LI STER LL

P, Cincinna

ti, Ohio, David Pa ul Bradley , GALL

AGHER, SHARP, FULTON & NORMAN, Cleveland, Ohio, f o r Ap pel lan t. Mi cha el L. Collyer
, OFF ICE OF THE ATTORNEY G ENERAL OF OHI O, Clevel and, Ohio , Henry G. Appel, OFFI CE OF THE ATTORNEY GENERAL OF OHI O, Columbus, Oh io, f

or Appellee.

GIL MAN, J., deliver

ed the opi nion of th e court, in which CLAY, J., joined. B ATCHEL DER, J. (pp. 34-42), delivered a separ ate opini on concu

rring i n part an d dissentin

g in par t.

_________________ OPINION

_________________ RONAL D LE E GIL

MAN, Circuit Judge. Tiffany Skiba
was stabbed to death on November 8, 1990. The gra nd jury inCu yahoga County, Ohio indicted Richard M. Fra zier on two counts of aggravated mur der for the death of Skiba, each with three death-penalty

specifications, and on one count of aggravated

burglary . Frazier

proceeded to trial in state court
onAugust

5, 1991. The jury

convicte d him on all c ounts and subseque ntly recommended that he be sentenced to dea th. That recommendation was adopted by the trial judge.

After exhausting his direct

appeals and state postconviction remedie s, Frazier sought a writ of habeas c orpus in federal court pursuant to 28 U.S.C. § 2254. He raised mu

ltiple grounds for relief, but primarily fo cused on claims of evidentiary

error , pr osecutorial misconduct, and ineffective assistance o f counsel. The district court denied Frazier’s petition, but granted hi m a ce rtifica te of app ealabili

ty on all issues. For the r

easons set fo rth below, we REVERSE in part the judgment of the district cou rt, G RANT Frazier a conditional writ of habeas corpus that will result in the vacat ion of his death sentence unless the state of Oh i oNo. 01-3122 Frazier v. Huffman 3

commences a

new pena lty- phase tr ial aga inst him within 180 da ys from the date t

ha t the judgment in this matter becomes final, and REMAND t he c ase for furth er proc eedin gs consiste nt herew ith

. I. BACKGROUND

A. Factua

l background
Frazier married Susan Be dnarsk

i in 1980, thereby becomingthe stepfathe r of Bednarski’s e ight-y ear-ol d daughter from a previou s re lat io nsh ip , Ti ffa ny Sk ib a. In February of 198 8, Bednarski discovered that Skiba was pregnant. Both

women believed that Skiba’s pregnancy was the result of sexual abuse by Frazier. Bednars ki sought a divorce. Sk ib a spoke to the local authorities in Medina Co un ty, Ohi o. In October of 1988, Frazier w as indicte d in st ate courton two counts of rape and two counts involving other sex crimes. One month earlier Skiba had given b irth to
a son.
The state cr

iminal cou

rt order ed Fra zier to subm

it to a blood test to determine the patern ity of S kiba’s child. He appealed that order t o the i ntermediate state appellate court and to the Ohio Supreme Court. Aft e r the Ohio Supreme Courtdenied Frazier relief, he petition ed the United States Supreme Courtfor a writ of

certiorari. Frazier remained fr ee onbond during th e pendency of these proceedings. The United States Supreme Court

decline d to hear

Frazier ’s case
onOctober 1, 1990. Dates for the blood test and the trial were the n set by the state criminal court. Throughout

1989 and 1990, Skiba was terrified of Frazier. She was visibl

y disturbe d any

time that she was in

his presence. Skiba con fid ed in o ne friend her fear that Fr azier
was going to kill her. She moved into her grandpa r ent s’ home and started sleeping with a knife under he r pillow. 4 Frazier v. Huffman No. 01-3122

Skiba’s gran d father, Robert Skiba, followed his usual practice on November 8, 1990 when, at 5:00 a.m., he drove his wife to work at a nearby hospital and re turn ed home fiftee n mi nutes later. Upon his arrival home, his dog was barkingand

looking excitedly at the bac k door. Robert Skiba appare ntly thought little of this unusual behavior at the time. After calling upstairs for his granddaughter a t10:00 a.m. and receiving no response, however, hewent upstairs to check on her. Upon entering Tiff

any Sk iba’s bedroom to rouse her, Robert Skiba was met with the ghastly sight of

his granddaughter’s

corpse lying in bed, covere d in blood a nd full of punctu re wound s.
Police officers who arrived at the scene discovered a broke n steak kn if e n ex t t o S ki ba ’s bo dy. The knife was part of a set belonging to her grandparents. There was blood on the knife, inthe surrounding area, on the stairw ay hea ding down from the second-floor bedroom, and on the first-floor livingroom’s doorfra me. The police discovered that the screen on a basement window ha

d been re mo ved and that one of the panes of glass had been shattered. Althoug h it was norma

lly kept closed, the door leading from the basement into the re st of the house was open. One of S k iba’s uncles had once shownFrazier how to gain access to the house throu gh the basement window wh e n they had bee n accidentally

locked out. The n ei ghboring y

ard contained footprints that pointed away fr om the S kiba res idence. A study of the fo otprints revealed that they were ma de by someone wearing

siz e nine or ten boo ts in a sty

le sold exc lusively

by K -Mart.

Also onthe morning of November 8, 1990, Frazier visited
a medical c linic to get t

reatmen t for a one-inch c

ut on his wrist. The cut was c onsistent w ith a stab wound. Tha

t night, Frazier drove to the home of

his friends, the Shamons, in a car that he had rented

at the airport two day s earlier. The police
arrested him at the Shamons’ home on November 12, 1990. At the time of

his arr est, Frazier had with him a letter from the United Sta

tes Supre me C ourt informing hi

m that his petition for certiorari had been denied. In Frazier’s apa rtmentNo. 01-3122 Frazier v. Huffman 5

the police di scovere d a rece ipt from K-M art for a size-nine bootof the sam e style found imprinted in the neig hboring yard nea r the Skiba residence.

Fra zi er was taken to the Medina County ja il. He w a s transporte d

the next day from the jail to a clinic, whe re the long -ordered

paternity test was a

dministered. The t es t confirmed that Frazier had fathere d Skiba’s son.

OnNovember

14, 1990, Frazier telephoned Officer James Sv ekric fr om the jail. Frazier had known Svekric for many ye ars, and Svekric was one of the police detectives who had transpor ted Fra zier the pr

evious da y. Frazier a sked Svek

ric to bring hi

m Frazie r’s te l ephone book and prescription medication. Svekric, accompanied by another police officer, visitedFrazier that

day. Acc ording to Svekric, Frazier waived his right not to incriminate himself an d as ked the officers

“ wha t[they

] could do f

or him, if [they] could ge t him a def inite sentenc e in Cleve land as to a flat time , how mu c h time he was g oing to do

if he was to plead guilty .” The police officers told Frazier that altho ugh they

could tell the prosecutor

and the judge that Frazier

had cooperated, they

had
no authority to neg otiate a plea agreement. Frazier then returne d to his ce ll.

A short time later, however, the police officers c onduct e d
a second intervi ew wi

th Fr azi er, this time in the presence of the local pr

osecutor , Tim McGin

ty, who had be en waitin

g in
anadjace nt building . McGinty

informed Frazier that he was about to bring the matter of Skiba’s death before a grand jury and that he intended to have Frazier indicted for murder

. Frazier offered to provide information

about othe

r crimes in exch ange for an a greement to al lo w h im to pl ea d g ui lt y. McGinty replied, however, that in orde r to establish his
cr edibil it y, Frazier would need to provide the details of Skiba’s murder. Frazier was then asked whether he intended to kill Skib a when h e went to her gr an dparents’ home on November

8, 1990. I n Svek ric’s re counting , “he sho ok his head no, but he

did not gi

ve us a ve

rbal answer or explain 6 Frazier v. Huffman No. 01-3122

what hi s intent was that morning.” Svekric related the remaind er of the intervie w as follows:
And I ask ed him a que stion, “Do you want to tell us
exac tly what happened on November 8th with Tiffany Skiba
, ye s or no,” a

nd his answer was, “Yes, I will tell you everything

you want to know.” But at that time he al so s tated that he thinks his attorney should be pre sent

. . . . Frazier’s jailhouse interview was then terminated.

B. Proce dural backgr ound

The Cu yah oga County g rand jury re

turned a three-count indictmentagains tFrazier. Count One charged him with the murder of Skiba. The first count contained three deathpenalty specific ations—f

or felon y mu rder , the murder of a witness, and

murder to escape accounting for another crime. CountTwo charged Frazier with the murder of Skiba during the comm ission of a burglary . It also contained the thre e identical death-penalty

specifications enu

mera ted in Count On e. Th e t hi rd co un t c ha rg ed Fr az ie r w it h b ur gl ar y.
On August 21, 1991, the jury convicted Frazier on a l l counts. The next phase of the trial concerned the appropr iate pe na lt y, at the conclusion o f whic h the jury rec ommended that Frazier be sentenc ed to dea th. On Aug

ust 29, 1991, the trial court adopted that recommendation.

Frazier appealed his conviction and sentence without
success through the Ohio state courts, both on direct appeal and through a petition for pos tconvict ion relief. He then initiated federal proceedings for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in September of 1998. The districtcourt denied his petition, but granted him a certif icate of appealability on a

ll issues. This timely appeal followed.No. 01-3122 Frazier v. Huffman 7

II. ANALY SIS

A. Standard of review

The Antiterr

orism and Effect ive Dea th Penalty Act of 1996 (AEDPA), Pub. L. No. 104-13 2, 1 10 Stat. 1214 (Apr. 24, 19 96), a pplies to Frazier’s case because he f iled his habeas corpus petition after the Act ’s effective date. Lindh v. Murphy
, 521 U.S. 320, 336 (1997). A federa l cou rt is authorized

to gra nt a writ of habea s corpus t

o a person in custody pursuant to a s ta te-court judgment, but only if the adjudica tion of the

claim (1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Courtof the Un

ited State s; or (2) r

esult ed in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court procee ding.

28 U.S.C. § 2254(d). All of Frazier’s claims are governed by § 2254(d)(1).

A federal cou

rt may g rant a writ of habeas corpus under § 2254(d)(1)’s “contrary

to” clause “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Courton a question of

law or if the state court de cides a c ase differe ntly than [the Supreme] Court has on a set of mater ially indisting uish ab le facts.” Williams v. Taylor , 529 U.S. 362, 412-13 (2000). Section 2254(d)(1)’s “unreas on able application” clause provides two additional bases for habeas relief. Campbell v

. Coyle , 260 F.3d 531, 539 (6th Cir. 2001), cert. denied , 535 U.S. 975 (2002). The first avenueof relief
occurs if “the state court identifies the correct gove rning legal p rinciple from [the Supreme] Court’s decisions bu t
unreasonably applies that principle to the facts . . . .” Williams
, 529 U.S. at

41 3. Second, relief is available under this provision

if the sta te-cour t decision “either unreasonably 8 Frazier v. Huffman No. 01-3122

extends or unrea sonably

refuse s t o exten d a lega l principl e fromSupreme

Courtprecedent to a new context.” Campbell
, 260 F.3d at 539.

The Supreme Court has declared tha t “a federal habeas court making the ‘unrea sonab le applic ation’ inq uiry should ask whether the state court’s application of clearly established federal law was objectivel y unreasonable.” Williams , 529 U.S. at 409. In its elaboration on the meaning of the term “object ively un reason able,” the Court stated that “a federal habeas court may

not issue the writ

simply because that c ourt concludes inits independent judgment that the relevantstatecourt decision applied clearly established feder al l aw errone ously

or incor rectly . Rather, that appl ication mu st also be unreasonable.” Id . at 411. In the present case , the district court applied the standards set forth under AE

DPAand determined

that Frazier was not entitled to habeas relief. We review de novo the di strict court’s denial of Frazier’s petition. Macias v. Makowski , 291 F.3d 447, 451 (6th Cir. 2002).

B. Certificate of appealability

Before reachi

ng the me rits of Frazier’s claims, weaddress
a procedural problem that has hindered ou r consideration of this appeal. The distr

ict cour t in this ca se gra

nted a ce rtifica te of appealability on

all issues , with

the following explanation:

Until such time as suchpreced ent is submitted to me, and, is shown to be applicable to a case at hand, I expect that I shall, as I

did in this case, grant certificates of appeala bility in capita

l habeas cases a s a matter of routine. Others may

view th i s as an abdication of
re sp on si bi li ty; it is, rather, a mani festation of the possibility

of my o wn fa ll ib il it y, and concern that I may have erred. I do not believ e that I have erred—but doubtNo. 01-3122 Frazier v. Huffman 9

that I have, no matter how strong ly f elt, is not c ertainty that I have not.

This rationale is co ntrary to our decision in Porterfield v. Bell
, 258 F.3d 4 84 (6th

Cir. 2001) , which wa s also a capitalmurder case. L

ik e here , Porterfield had been granted a certifi cateof appealability on all iss ues. We not

ed in Porterfie ld

that such a bla

nket gr ant conf ormed toneither the commands of 28 U.S.C. § 2253(c ) (pro viding in part tha t a “certif icateof appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional righ

t . . . [a nd] s hall i ndicate

which spe cific issue or issues satisfy the showing required”), nor the Suprem e Court’s construction of the statute in Slack v. McDan iel
, 529 U.S. 47 3 (2000) ( holding t

hat th e require ments of § 2253( c) applied regardless of whe ther the d istrictcourt re

jected a constituti onal cla

im on the me

rits o r onprocedural ground s). Bec ause a bl anket grant “underm ine[s] the g ate keeping function of certificates of ap pe al ab il it y, which ideally should separ ate the c onstitutional claims that merit the close attention of counsel and this court fromthose cla

ims that ha

ve little or no v iability,” and “becau se the district court [was] already dee ply familiar

with the claims raised by pe

titioner,” we vacated the certificate of appeala bility in Porterfie ld

and remanded the matter “in order to permit the court to en gage in the reasoned assessment of
ea ch

. . . c la im as re qu ir ed by Slack .” 258 F.3d at 487.

The langua

ge of § 2253(c)is mandatory . It was t herefore
error for the d

istrict c ourt to issu

e a bla nket cert ificate of appealability without

any analy sis. We recognize, however, that the district court

rendered its decision before our opinion in Porterfield . In contrast to Porterfie ld , moreove r, both parties in the present case have already briefed the merits of Frazier’s claims, so that vacating the certificate of appeala bility would “fur

the r delay a

n already

lengthy process.” 285 F.3d at 485. For thes e reasons, we wil l excuse t he procedural error of the district court. Thi s is an appropr iate time , howeve

r, to reit erate both that a ce rtifica te 10 Frazier v. Huffman No. 01-3122

of ap pe al ab il it y ma y i ssue “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c )(2) (e

mphasis a

dded), a nd th at an y such
ce rtifica te “ shall indicate which specific issue or issues satisfy the showing required,” id. § 2253(c)(3) (emphasis added).

To focus our consi deration of the is sues in the face of this blanket certificate of appealability, we asked coun s el for Frazier at oral a rgumen t which cl aims he pe

rceive d to be his stronge st. He repli ed that hi s primary cla ims for habeas relief
were tho se pre mised upon the due process right to a fundame ntally fair trial and those based upon the ineffective assistance of counsel . We agree, particularly in light of the factt hat the district court singled out “the remarkable a n d unnecessary

misconduct of the prosecutor” as a concer n regarding the petitioner’s right to a fair trial. Accordingly , we devote ou r attenti on to these

two issues

first.

C. The right to a fundamentally fair trial

Frazier alleges that he wa s denied h is due pro cess rig

ht to
a fair trial, both because certain evidenc e was impr operl y admitted and because of

prosecu torial misc onduct. “ Cases in [the Supreme] Court have longproceeded on the premise that the Due Process Clause guarantees the f undamental elements
o f fairness in a criminal trial.” Spencer v. Texas , 385 U.S

. 554, 563-64 (1967).

1. Due proce

ss and evid

entiary matte

rs
Frazier’s first con

tention is t

hat the tr ial cour t i mpr operly admitted (1) cumulative, gruesome photogra hs of Skiba’s corpse, (2 ) evi dence that Skiba was terrified of Fra zier, and (3) evidence that Frazier raped Skiba. To the e xtent that this is a challenge to the technical correctness of these evidentiary rulings
, we lack authority

to consider the challenge. Coleman

v. Mitchell

, 244 F.3d 533, 542 (6th Cir. 2001) (“A state court evidentiary

ruling w ill be reviewed

by a federa l habeas court only if it were so fundamentally unfa ir as to violate theNo. 01-3122 Frazier v. Huffman 11

petitioner’s due pro ce ss right s.”). Ra ther, Fr azier must demonstr ate that the state cou

rt’s co nclusion — that the admission of the challenged evidence did not violate his due process rights — was unreasonable, as those rig hts have been articula ted by the Supre

me Court.

Frazier argues that the admission into evide

nce of mu ltiple photographs of Skiba’s corpse was excessive. He notes that the Supreme Court has stated: “In the eve nt that evidence i s introduced

that is so unduly prejudicial that it renders the trial fundame ntally unfair, t

he Due Process Clause of the Fourtee nth Amendment provides a mechanism for rel ie f.” Payne v. Tennessee , 501 U.S. 808, 825 (1991).

The Ohio Supreme Court directly a d dres sed this evidentiary

issue, concluding that the multiple photogra p hs “were introduced

during the coroner’s testimony to illustra

te the testimony,” that “[e]ach photog raph presents a different persp ective of the victim,” and that the photographs “we r e used to illustrate” the nature of the encounter t hat immediate ly

preceded Skiba ’s death. State v. Frazier , 652 N.E.2d 1000, 1010 (Ohio 1995). It ultimately determined that the photographs’ “probative value substantia

lly outweigh[ed] the danger of unfair prejudice ” to Frazier. Id. We conclude that the Ohio Supreme Court’s resolution of Frazier’s federa l constitutional claim con

cerning the admiss ion of multi

ple photog raph s of Skiba’ s corpse was not a

n unreas onable app licatio nof fede

ral law a s articul ated by the Supre

me Court. See Willingham v. Mullin , 296 F.3d 917, 928- 29 (10th Cir. 2002) (refusing to grant re lief o n a h abeas petitioner’s claim that the admission of 22 photos of the victim’s body
was so unduly

prejudic ial as to r

ender hi s trial fun

damenta lly unfair, where the state court provided a rea sonable basis for concludingthat the photog raphs ’ relevance outweighed the danger of unfair prejudice ).

Frazier next contends that the admis sion of evidence that Skiba feared him rendered his trial fundamentally unfair. In the opinion of the Ohio Supreme Court, such e vidence was 12 Frazier v. Huffman No. 01-3122

ad missible as a pre sent-sta

te-of-m ind except

ion to th e hearsa

y rule. Frazier , 652 N.E.2d at 1013. The district cou r t concluded

that eviden ce o f Skiba’s fear “supported the substantial evidence of [Frazie r’s] likely moti ve.” Al thou gh
we find that the relationship between Skiba’s fear and Frazier’s motive is ta

ngentia l at best
, we recognize the existence of a lo gi ca l argument that the relevance of suc h evidence outweig

hed its pot

ential pr eju di ce. We are unaware, moreover, of any

Supreme Court precedent that establishes that the admiss ion of evi dence that a murder victim feared

the defendant violates t

he defe ndant’s d

ue proce ss right s. Frazier’s as s ertion tha t “[s]ever

al states have he ld unambig uously that the state of mind of a mur der v ictim is irrelevant to the issue of the identity of the perpetrator” has no bearing on our task under AEDPA. We therefore con clude that the state courts’ resolution of this matter was not an unreasonable application of federal law

. The third category

of evidence c ha llenged by Frazier
concerns his alleged rape of Skiba and paternity of he

r child. He claims that the admission of the evidence w itho ut a limiting instruction rendered his trial fundamentally unfair. Before reachi

ng th e merits of

this claim , we must f

irst consider the state’s argume

nt that this

challenge was rejecte d by t he state courts on the basis of state p rocedur al rules.

A federa l court is general l y ba

rred from considering an issue of federal law arising from the judg ment of a state court if the state judgment “rests on a state-law gr ound that is both ‘indepe ndent’ of the merits of the federal claim and an ‘adequate’ basis for the [stat e] court’s decision.” Harris v. Reed
, 489 U.S. 255, 260 (19 8 9). The adequate-andindependent-state-ground doctrine has been a pplied in refusingto addre ss the mer it s of a federal claim because of violations of stat e proce dural ru les, such as the fa

ilure to make a timely objection at trial. Id . at 261. An adequate and independent

finding of proce dural de fault will pre clude habeas corpus relief “unl ess the prisoner can demonstr

ate
cause for the d efault a nd actua l preju dice as a result of theNo. 01-3122 Frazier v. Huffman 13

alleged violation of

federal law, or d

emonstra te that fa ilure to consider the cl aims w ill r esult in a fu ndame ntal m iscar riage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991).

Indetermining whether a procedur al defaul t has occurred and, if so, what eff

ect the d efault will have on federal review of a state conviction, the district court must consider whether (1) a state procedural

rule exists that applies to the petitioner’s claim, (2) the petitioner failed to comply w ith the rule, (3) the state court act

u ally applied the state r ule in rejecting the petitioner’s claim, and (4) the s tate procedural rule is an adequa te and independ ent g round upon which the state can rely to deny relief

. Reynolds v. Berry , 146 F.3d 345, 347 ( 6th Cir. 1998). The rule precluding federa l habeas corpus review of claims rejected

by the state cour

ts on state procedural grounds applies only in cases whe re the rule relied upon by the state co

urts involves a

“firmly established and re gularl

y followed state practice.” Ford v. Ge orgia , 498 U.S. 411, 423- 24 (1991 ). Furthermore, a procedural de fault does not bar consideration

of a federal claim on habeas cor pus review unless the la st st ate cou rt ren derin g a reasoned opinion in the
case“clearly

and expressly states that its judgment rests on a state pr o cedural bar.” Harris , 489 U.S. at 263 (internal quotation marks omitted).

Inthis case, the Ohio Supreme Court note d that Frazier failed to object

at trial t

o the omission of a limiting instruction. It therefore a nalyzed h is entitlement to the incl usion of such a jury instruction using the “plain-error” standard. But the larger issue was whethe r “ th e trial court erred by admitting evidenc e o f other crimes committed by [Frazier].” Frazier , 652 N.E.2d at 1013. The Ohio Su preme Courtanalyzed the c lai m on its merits, ultimately finding Frazier’s argument

to be “without merit.” Id. at 1013, 1014. We therefore conclude that Fra zier is not procedurally ba rred frompresent

ing the c laim t

hat the admission of evidence about his rape of

Skiba and the paternity of her child rendered his trial fundamentally unfa ir. 14 Frazier v. Huffman No. 01-3122

Turning to the mer

its of the claim, we agree

with the O hio Supreme Court that the evi dence w as directly r elevant to Frazier’s motive and to the death-penalty specifications. The United States Supr

eme Court

decisio n upon which Frazier relies in pressin

g this clai m held that the introduction of evidence of prior crimes, where relevant to provedeathpenalty specific ations, is not unconstitutional. Spencer v. Texas , 385 U.S. 554, 568-69 (1967). We therefore conclude that the admiss ion of e vidence that Frazier raped Skiba and fathered her child, even w ith out a limiting instruction, was notan unreasonable application of Supreme Court precedent and did no t deprive

Frazier of his due

process rights.

2. Due process and prosecutorial misconduct

Frazier’s next contention is that prosecutorial misconduct deprived him of his right to a fair trial. Frazier identifies eigh texamples of what he characterizes as prosecutor ia l misconduc

t. Some of the conduct that he c halle nge s took place during the guilt phase of his trial, while other instances occurred during the pen alty phase. Our conclusion in Part II .D. below tha

t Frazier must be given a new sentencing hearing makes it unnecessary

for us to consider the allege d prosecutorial misconduct that occurr e d during the pena lty phase.

None of the alleged prosecutorial misconduc t in the guil t phaseof the trial impinged upon a particular provision in the Bi ll of Rights . The re levant qu estion, th erefor

e, is whethe r the prosecutorial conduct “so infected the trial with unfa irness as to make the resulting conviction a denial of

due process.” Donn elly v. DeChri

stoforo , 416 U.S. 637, 643 (1974). To decide this question, we first determine whether the conduct about which Frazier

complains was indeed

improper. United States v. Carter , 236 F.3d 777, 783 (6th Cir. 2001). Afourfactor test is t hen appl icable to any c onduct that we find i nap propriate: “(1) whether the conduct and rema rks of the prosecutor

ten ded to mislead the jury or pre judice the defendant; (2) whether the conduct or remarks were isolatedNo. 01-3122 Frazier v. Huffman 15

orext en si ve ; ( 3) wh et he r t he re ma rk s w er e d el ib er at el y o r accide ntally made; and (4) whether the evidence a gainst the defendant was strong.” Id.

Frazier takes i ssue with the following instances of the p rosec utor’s conduct d

uring the guilt phase of t he trial: (1) using a ph otogra

ph of Skiba

taken be fore he

r murder in his closing argument, (2) relying on Skiba’s fear of Frazier as part of the s tate’s case-in-chief, (3) re ferring to Skiba’s character during his clos ing an d rebuttal argument, and (4) placing an empty

chair before thejury during his closing argument to “represent” Skiba. The firs tinstance, the use of
a photograph of Skiba during closing ar gument, has be e n found by some courts to b e w ithin the bo unds of ac ceptabl e conduct. Nefstad v. Baldwin , No. 94-3 5714, 1995 W L 520050, at

*2-*3 (9th Cir. Sept. 1, 1995) (finding no error by the trial cou

rt in permi ttin g a

“closing argument [wherein] the prosecutor asked the jury to compare a photograph of the victim b efore the murder with an autopsy photograph of the victim”); Lowe v. Abraham s on , No. 92-2 020, 1 995 WL 150585, at *1-*2 (7th Cir. Apr. 6, 1 995) (order) (finding “nothing improper” abou t “th e presentation at trial of a photograph

of the mur

dered vi ctim wea

ring a hat from hi s son’s Little

Lea gue ba seball

team”). Other courts have found suchphotographs of

the victim improper. Cargle v. Mullin
, 317 F.3d 1196, 1223 -24 (10 th Cir. 2003) (agreeing with the state court’s determination tha t the tria

l court e rred in admitting “a number of photographs of the victims while they
we re alive” because the photographs we re “irrelevant and prejudicial”). The state

courts in this case determined that the pr osecutor’s use of Skib a’s photo graph during c lo sin g argument was not improper. In lig ht of the s plit of aut hority about the pro pr iety of such conduc t, we cannot say

that the state courts’ determination was unreasonable.

T he secondinstance of alleged prosecutorial misconduct
concerns the state’s reliance on Skiba’s fear of Frazier as part of its proof. As n oted ab ove in Par t II .C.1., the

state co urts ruled that such evidence was relevant and admissible. There 16 Frazier v. Huffman No. 01-3122

is nothing i

mproper about a pr

osecutor ’s relia

nce on a state court’s evidentiary

ruling, whether or not

the ruling itself was
correct.
The third instance concerns the prosecut or’s re ferenc es to Skiba’s charac

ter durin g his clo sing and

rebutta l argument in the guilt phase of the trial. These refer ences had no relevance to any matter

in issue and were therefore improper. The Ohio Supreme Court reached the same conclusion. Frazier , 652 N .E.2d at 1015 (commenting that “the prosecutor’s rema rks
were intemperate”). This leads us to the application of th e Carter facto rs. In this instance, the prosecutor’s r emarks
were not limited to an isolated instance. Onthe o ther hand, they did not form the centerpiece of the p rose cutor’s argume nt. But the prosecutor’s remarks were pl ainly deliberate. Furtherm or e, the sta te’s ca se was not unusuall y stron g. The evidence was sufficient to prove the defendant guilty beyond a re asonable doub t , but it was not
o verwhe lmin g. There were no witnesses and no confe s sio n (only an am bi gu ou s o ff

er to pl ea d g ui lt y) , an d the state produced no blood-type

or DNA evidence.

Whether the ref erence s to Skiba’ s chara cter ten ded to mislead the jury or preju dice the defenda nt is m ore difficul

t to determine. Although the pros e cutor’s remarks did not

m i sstatethe evidence, they were in a sense misleading concerning

the law. The prosecutor’s expl icit juxtaposition of the defendant’s constitutional rights (like thepresumption of innocenc e) with th e “rig

hts” of the decedent (like “the right to go on to c ollege ” or “the right to walk down

th e ais le”) suggested to the jury that

c ertain nonexistent rights of the decedent somehow balanced or nullified the con stitutional rightsof the defendant. On the other hand, althoug h a defe nse objectionto the prosecutor’s remarks was overruled, the trial court corr ec tly i

nstructe d the jury

on the law , specif

ically stati ng: “You

must not permit sympathy or bias, prejudice or favoritism for either side to affect y our judgments.”No. 01-3122 Frazier v. Huffman 17

A simi lar ana lysis ap plies to th e fourt h and f inal a llege d incident of prosecutorial misconduct during the guilt phase, the placing of an e mp ty c hair before the jury during the prosecutor’s closing argument to “r epres ent” Skiba . We again agree with the O hio Supreme Court’s conclusion that this conduct was imp roper. Frazier , 652 N.E.2d at 1015 (“We agree with appellant that the use of the empty chair wa s excessive.”) It wa s also del iberate . The emp ty c hair
, however, was not the focus of the prosecutor’s argume nt, and the state trial court properly instructed the jury not to be influenced by sy

mpathy, bias, or prejudice

. Were we to con sider Fr azie r’s claim of prosecutorial misconduct

in the first instance, after weighing all of the pertinent factor s, the possibility exists that we might be persuaded that

he was de

nied a fu ndamenta lly fair trial. But that is notour task. Rather, our inquiry is limited to deciding whether th e Ohio Supreme Court’s contrary determination
was an unrea sonable

application of clearly

established federal law. Becau se the dir

ection in which the Carter

factors point is neither obvious nor unambiguous , we co nclude that the Ohio Supreme

Court’s resolutionof Frazi er’s pr osecutorialmisconduct

claim was not unreasonabl e. Se e Macias v. Makowski
, 291 F.3d 4 47, 454 (6 th Cir. 2002 ) (hold ing that, alth oug h the court “might have concluded that the prosecutor ’s co mments viol ated [the p etitioner ’s] due pr ocess rights,” the state court of appeals’s contrary con clusion was notunreasonable, where

two factors weighed in favor of the petitioner’s claim and two weighed ag ainst it).

D. The right to the effective assistance of counsel

Frazier’s other major claim is that he was denied his right to the effective assistance of counsel during the pena lty p hase of the trial, a right

guara nteed by the Sixth Ame

ndment tothe United States Cons titution. Strickland v. Washington , 466 U.S. 668, 684 (1984). Once a defendant has bee n convicted of a capital offense in O h io, the jury “shall consider , and weigh a gainst the aggravating

circumstances proved bey ond 18 Frazier v. Huffman No. 01-3122

a reasonable doubt, the nature and circumstance s of the offense, the history, chara c ter, and background of the offender” and seven other factors, including “[w]hether, at the time o f comm itting the offense, the offender, bec ause of a mental disease or defect, lacked substantial capa ci ty to apprec iate the criminality of the offend er’s conduct or t o conform the offe nder’s c onduct to t

he requi rements of the law.” Ohio Rev. Code

§ 2929.04(

B). A se ntence o f death

is appropr iate only if the jur y is unanimously convinced bey ond a reasonable doubt

that the aggravating f

actors outweigh the mitigating factors. Id. § 2929.03(D)(2).

The jury had alre a dy found Frazier guilty beyond a
reasona ble doubt of the death-

penalty -specif ication c harge s. Becau se no mitigation proof was introduced by Frazier at the guilt phase of the trial, he was therefore virtually guaranteed
a sentence of death un less he could produce sufficient mitigationev id en ce at th e p en al ty phase to gene rate
reasona ble doubt in the mind of at least one juror a bo ut whether the aggravating

factors outweighe d the mitigating factor s. But the sum total of t he evidence presented on Frazier’s behalf

during the penalty

phase of the trial was the following unsworn statement: “Ladies and g entlemen, I know you found me guilty, a

nd in the past I have done things that
were wrong, but I am not guilty of this crime and

I am asking you to spare my

life.”

The test for e stablishin g consti tutionall y ineffective assistance of co unsel is two-fo ld. A def endant mu st first show that the perf ormance of his or her counsel was “below
anobjective standard of reasonableness.” S trickland , 466 U.S. at 688. I n order t o avoid se cond-g uessing trial counsel’s strategic decisions, “a cou rt mu st indulge a strong presumptionthat coun sel’s conduct fa lls with in th e wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance s, the challenged action might be consider ed sound trial s trate gy.” Id. at 689 (internal quotation marks omitted). The second requirement of an ineffe ctive assistanceNo. 01-3122 Frazier v. Huffman 19

claim is that “[t]he defendant must show that the re is a
reasona ble probabil ity t

hat, but for

counsel’s unprofessional
errors , the result of

the proc eeding

would have be en diffe

rent. A reasonable probability is a proba

bi lity sufficie nt to undermine confidence in the outcome.” Id. at 694.

Frazier’s inef

f ective-assistance claim was rejecte d by the Ohio Court of App eals on the basis of the first prong of Strickland

. The cour

t explained : “From t

h e record , it can
reasona bly be conc luded tria

l counsel were a pprais ed of

the purported brain injury from

their re view of me dical re cords; however, as a matter of trial strategy counsel deemed t

h is
avenue of defense unwort hy of further pursuit.” State v. Frazier , No. 71746, 199 7 WL 764 810, at *6(Ohio Ct. App. Dec. 11, 1997).

The “p urported brain injury ” referred to above is the damage to Frazier’s brain that occurred as the result of

a 1987 fallfroma ladder . Affida vits from p ostconviction exper ts on this matter in

dicate that Frazi er suff

ers fro m a funct

ional br ain impairme nt. Accord ing t o o ne, Frazier has a “significant history for head trau ma” to the “frontal lobe” of his brain, whic h is “the site of impulse control, social judgment an d reasoning.” Frazier

himself ha s descri

bed “a c hange in decision-makingabilities after h is head trauma. ” These reports also sug gest tha

t a correlation could exist between this inj ury an d Frazier’s criminal conduct. The state has not challenged

the conte

nti on that Fra

zier’s tr ial couns el could have develope d this same informat i on ha d they conducte d a reasonable investigation.

We c an conceiv e of no ra tional tri al strate gy

that would justify the failu re of Fr azier’s c ounsel to i

nvesti g ate and present evidence of his brain impairment, and to instead

rely exclusive ly

on the hope that the jury would spare his life due to any “residual doubt” about his guilt. This failure was not du e t o counsel’s ignorance of Fr azier’s brain injury. To the contrary , the Ohio Court of Appeals acknowledged that trial counsel wer e actually a

ware of Frazier’s brain impairment 20 Frazier v. Huffman No. 01-3122

because they saw his medica

l reco rd s, y

et counse l failed t

o invest igate

the ma tter o r prese nt any evi dence r egardin g t h e same.
Under Str ickland , “strategic choices made af ter less than complete investig ation ar

e reasonable pr

ecisely to the extent that reasona ble prof essional judgmen

ts support the li mitations
oninvestigation.” 466 U.S. at 690-91. Th i s court has commented

when eva

luating facts sim i lar to those here that “the inadequacy

of the attorney ’s investigation . . . was manife st .” Campbell v

. Coyle , 260 F.3d 531, 553 (6th Cir. 2001) (distinguishing the facts of Campbell, where trial counsel had the de fendant evaluat ed by a mental healt

h professional who did not find any mental illness, f

rom those of Seidel v. Merkle
, 146 F.3d 750 (9th Cir. 1998), where trial counsel had actu

al notice of the de fendant ’s me nta l health problems but failed to investigate them). We do not believe that an y rea sonable attorney who saw the medical records indicating Frazier’s brain injury would have decline d to investig ate the matte

r. At a ba

re minimu

m, a r easonab le attorney would have compared

the r ecords with the medical literature on brain damage, elicited information from Frazier himself about the injury and its eff ects on him, or presented the recor ds on Frazier

to someone

who could

compete ntly evaluat e them. To do none of these things after seeing Frazier’s medical records was unre asonable.

Our conclusion is bolstered

by the Supreme Court’s

recent deci sion in the capital case of Wiggi ns v. Smith , 123 S. Ct. 2527 (2003). Trial counsel in Wigg ins knew fr om their client’s presentence re

po rt that he

had lived

in “miser

y a s a youth,” but they did not investigate his life histo ry any further. Id. at 2536. The Maryla nd Court of Appeals was of the opinion that this performance comported with Strickland
, butthe United Sta

tes Supre me Court di sagre ed and he ld that the state court’s contrary

conclusionwas unreasonable. Id. at 2538. In Wi

gg ins , as in the

present case, “ any

reasona bly comp etent

attorne y w ould have

realized that purs uing th es e leads”— inWiggins ’s c as e, allusions to his hor ribleNo. 01-3122 Frazier v. Huffman 21

chi ldhood; in Frazier’s, medical records of his bra i n injury—“was

necessary to making an informed choice among possible defense s . . . . I

ndeed, c ounsel u

ncove red no evidence in their investigation to suggest that a mitigation case, inits own rig

ht, would have been counterproductive, or that further investig ation wou

ld have be en fruit

less. ” Id. at 2537. Furthermore, as both thi s court a nd th e O hio Supreme Courthave note d, residu al doubt is

not a mitig ati ng fac tor under Ohio law. Coleman v. Mitchell , 268 F.3d 417, 447 ( 6th Cir. 2001); State v. M

cGuire , 686 N.E .2d 111 2, 1123 (Ohio 1997). This cour

t nevert heless c oncluded

in Scott v. Mitchell

, 209 F.3 d 854, 881 ( 6th Cir. 200 0), albe it in dicta , that th e pursuit of a residual-doubt strategy in that case was
reasona ble because the defendant’s ex tens ive criminal history would have co me to ligh

t if the jur

y ha d heard a bout his background. C

f. Abdur’R ahman v. B ell , 226 F.3d 696, 707- 08 (6th Cir. 2000) (concluding that “trial counsel were ineffective infailing

to furthe r investigate the background of the accuse d,” but fi

nding no prejudic e where

“it proba

bly would not have b een the most prude nt trial str

ategy to use proof of appellant’s history of

viol ent behavior and anti-social persona lity disorders at either the guilt or innocence phase or at the sentencing phase of the trial”) . No such c oncerns could have justified the approac h in the present case, however, where the jury

had already

heard considerable evidence a bout Frazier’s rape of Skiba.

The prosecutor himself aptly summar ized the strategy

of Frazier’s trial cou

nsel duri ng the p enalty

phase. After quoting Fr azier’s unsworn d

enial of guilt, th e prosec

utor st ated : “That’s it. Fifteen seconds of mitigation. Now , we h eard a momentago about factors of mitigation that you find. Appare ntly they don’t know.” This sum ma ry s trikes us as
accura te to the extent that it reflects the fact that Frazier’s counsel failed to offer any evidenc e during

the pena lty phase that is recognized under Ohio law as mitigation. Based on the 22 Frazier v. Huffman No. 01-3122

above factors, we conclude that Frazier’ s trial counsel perfor med below

an objective stand

ard of r easonab leness.

T he Ohio Court

of Appea

ls, on the o ther han

d, imp licitl y held that Frazier’s trial counsel perf ormedat or above an objective standard

of reas onablene ss when it opined that “as
a matter of

tria l stra tegy

counsel deemed this avenue of defense unworthy of

further pursuit.” We have concluded the opposite. Th e quest ion under AEDPA, then, is whether the state court ap

plied the first prong of Strickland

un re as on ab ly,
or only errone ously. See Bell v. Cone , 122 S. Ct. 1843, 1852 (2002) (clarify

ing that the question of whether a state court’s applicationof Str i ckland is unrea sonable i s conceptually distinctfrom the und erlying question of whether counsel’s performance fell sho rt of an objective standard of reasonableness).

Thr ee factor s were c ited by the Ohio Co

urt of App eals i n support of its conclusion: 1) counsel’ s argument to the trial cou

rt that a psycholog ist

would be used merely to interpret the mitigationexpert’s f

inding s; 2) counsel’s filing of the motion requesting a limitation on re fer ences to mit igati onfactors to only those upon whic h appellant ultim atel y

relied; and 3) the thorough and professional
manner inwhich counsel conducte d appella nt’s def ense during both the guilt

and the penalty pha se of appellant’s trial.

Frazier , 1997 WL 764810, at *6. The firs t two factors, however, have no relevanc e in ex plain ing ho w the s trate gy ultimat e ly

pursued by F razier’s counsel was reasonable. Alth ough th e third factor is relevant in determining whethe r the trial strateg y w as reas onable, i

t is larg ely

conclusory

and aga in provides no theory upon whic h trial counsel’s “s tr at eg y” cou ld have be en based . We do not be lieve tha t it is reasona ble to infer that

a trial strategy , which is on its face irration al a nd for which no justification has ever beenNo. 01-3122 Frazier v. Huffman 23

produced, becomes reasonable simply because of “t he thoro ugh and professional mann er” in which trial counsel otherwise performed.

We note, moreov er, th at the the ory of Frazi er’s de fense during the guil

t phase of

his t rial was that Frazier did not commit the murder. He presented no insanity or diminished capaci ty defense. The jury

th erefore did not hear any evidence about Frazier’s brain injury during the guilt

phase of the trial. I

ndeed, it heard no evidence whatsoever during the guilt phase of the trial that co uld bear on the issue of mi tigation. As the pro secutor accura tely commente d at th e opening of the pen alty pha se: “The State’s job is over. The proof of the aggravat ing c ircumsta nces her e is monume

ntal, unrebutted, and it is no mere all egation any longer . It is

fact, since the conclusion of this case. There h as been a bsolutely zero, zilch, nil evidence of mitigat ion.” This being the situation, it appea

rs to us tha

t compete

nt tria l counsel for Frazier would have realized that their client had every thing to gain and nothing to lose by

introduc ing evid

ence of his brain injury at the penal ty phase of t

he case . Yet they

sat on the ir hands.

The instant case, ther

efore, is easily

d istinguishable from the ruling in Bell
, wher e the def endant’ s trial co

unsel als o introduced no evidence during the penalty phase of

the trial

. 122 S. Ct. at 1848. The state court con cluded that this trial strat egy passed muster under Strickland , and the S upreme Courtheld that the state court’s conclusion was not unreasonable. Id. at

1853-54. Crucial to this determination, however, was t

he fact that the defendant had already introduced

his best mitigation evidence during the guil tphase of the tri al:

Becau se the defense’s theory at the guilt phase was not guilty by reason of

insanity, counsel wa s able to put before the jury extensive testimony about what he believed to be the most compelling mitigating evidence inthe case—evidence reg arding the change his client 24 Frazier v. Huffman No. 01-3122

underwent

after serving in Viet nam; his drug de pe nd en cy, whichappare ntly drove him

to commit the robbery in the first place; and its effects. . . . De fens e counsel advised the jury that the testimony

of the expe

rts established

the existen

ce of miti gating

cir cums tances, and the trial court specifically instru cte d the jury that evidence of a ment

al disea se or def

ect insuf ficient t o establish a crim inal def ense cou ld be cons idered i

n mitigation.

Id. Frazier ’s counse l, in

contr ast, introduced absolutely no mitigati ng evid ence du ring the guilt pha se of the

trial.

Insum, no reason at all has been adduced to justify the f ailure of Frazier’s trial counsel to investigate and presen t evidence of his brain im pairmen t, and to in stead re ly exclusive ly

on anargument of residual doubt. The state court did not artic ulateone. Nor can we fathom one. Absent any
reason to explain or justify such a trial strateg y, we conc lude that the state court’s determination that Frazier’s trial counsel had performed in a competent manner dur ing the p enalty phasewas not simply erroneou s , but unreasonable. See Wiggins , 123 S. Ct. at

2538 (re jecting as unrea sonable

a state court’s determination tha

t trial co unsel per formed a dequate ly where, altho ugh no trial st rateg y c ould be ar

ticulate d to justify counsel’s u nreasonable failure to investigate and pr esent evidence of their c lient’s te rrible c hildhood, t

he sta te cour t “merely a ssumed that the investigation was adequate”).

Habeas relief is thus warranted if Frazier ca n show that there is a reasonable probability that, but for his counsel’s deficient perfor mance, t he resul t of the pe

nalty phase wo uld have been different. See id. a t *16 (“In order f or counsel’s performance to constitute a Sixth Amendmen t vi olation, petitioner mu st show that c ounsel’s failure s prejudi ced his defense. . . . [O]ur review is not circ umscribed by a state court co nc lusion with respect to prejudice, as neither of the state courts below reached thi s prong of the Strickland analysis.”). To ma

ke this showi ng, Frazier

must direc

t us toNo. 01-3122 Frazier v. Huffman 25

mitigating evidence that could have b een presented and that is sufficient to und er mine our confidence in the outcome of the penalty

phase. Strickland v. Washington , 466 U.S. 668, 694 (198 4) . Furthermore, AEDPA requires Fr azier to have deve lope d

the factual bases for his claims during postconvi ction pro ceeding s in state court. Alley v. Bell , 307 F.3 d 380, 386 (6th Cir. 2002) (“These rules apply both t o entirely new leg al claims

and new factual bases for relief; for
a claim to be considered exhausted, the h a beas pet itioner mu st have fairly

present ed to the s tate cou

rts the sub stance o f his federal habeas claim.”) (inter nal quotation marks omitted).

We agree with the state that Frazier f ailed to develop any facts concerning his genera l history, charac

ter, and background

in the s ta te postconviction proceed ings. Acc or di ng ly, we cann

ot conside

r the fa cts that F razie r wa s abandoned

as a chil d

or that he has an abnormal re sponse to stress. The state

conced es, howe ver, tha t Fra zier presented evidence concer

ning his brain

injury to the state courts during the postconviction proceedings. Although information about the nature and severity

of the inj ur y was less t horoug hly developed

in those pr

oceedin gs than i tis now, suff

icient fa cts
were present

ed to indic ate the e

xistence o f evid enc e concerning

Frazier’ s brain injury that could have been developed

and presented

to the jury during

the penalty phase

. We must therefore examine whet her the e xistence o f this evidence is sufficient to undermine our confide nce in the result of the penalty-pha se proceeding. Frazier’s tria l counsel present edo nly his unsworn denial of g uilt, which does not amount to mitigating circu

m stances under Oh

io law. Th

is virtually assured him a sentence of death. Had trial counsel’s performance not been deficient, the jury could have heard evidence of Frazier’sfall from a ladder and associa ted brai n in ju ry, which could have correlated with h is criminal conduct. Such evidenc e would ha ve consti tuted mitigat in g circumstances und er Oh io law. Ohio Rev. Code § 2929.04(B). 26 Frazier v. Huffman No. 01-3122

Inconc ludi ng that Frazier had not shown prejudice, the districtcourt observed

in a footnote “that the evidence of record, in addition to enabling the jury to f ind the petitioner guilty bey ond a rea sonable d

oubt, show s that he a

cted with deliberation

and forethought . . . . These

acts do not manifes t impulsive or uncontrolled behavior.” This anal ysi s, however, doe s not acco

unt for th e probab ility

that the ju

ry would find that a murder

er who suffers from a fu nctional brain impairment

is less mor

ally culpable than one w

ho does no t,
even if the brain impairment did not “caus e” Fra

zier to murder Skiba. Indeed, we think thatthe circumstances of the crime were amenabl e to such miti gating evidenc e. Co mpet ent trial counsel could hav e pointed out, for example, that

the bloodstained, broken knife found beside Skiba’s corpse c ame from her grandparents’ silverwar e, an d that Skiba had been sleeping with a knife under her pillow. Furthermore, during th e jailh ouse questioning of Frazier on November 14, 1990, the police officers and prosecutor did not ask Frazier

whether he murdered

Skiba. They

asked, instead, whether he intended to kill her whe n he wentto her grandparents’ home on the morning of the murder. Frazier shook hishead no in

response to that question. Trial counsel could thus have depicted a
scenar io in which Fra zier went unarmed to Skiba’s grandparent s’ hom e to conf ront or th reaten her, not t

o kill. But whe n he encountered the knife-wielding Skiba, Fr azier succumbed

to the stress of the moment, grabbed the knife fromher hand s, and wild

ly stabbed Skiba far

more times than would have been necessary to kill her.

Such a scenario fits the facts of the crime a nd is made plausible by t he existence of a f

unctiona l brain impairme

nt, which, althoug

h it might n

ot have turned Fra

zier into a cold and calcula ting mur derer, could hav e impaire d his abilit y to deal with stre ssful or e

motional si

tuati ons, eve n ones of h

is
ownmaking. This is but one e xample of how competent trial counsel might have util ized the evidence of Frazier’s functional brain impa

irment to g enerat

e reasona ble doubt thatNo. 01-3122 Frazier v. Huffman 27

the agg rav ating circumstances outweighed the mitigating circumstances in the p resent ca se. We are by no means suggesting

that the presentation of such evi dence and argument w ould have assured Frazier the avoidance of the d eath penalty , but we a re say ing that this outco me is within the realm of r ea sonable probability as def ined in Strickland

. 466 U.S. at 694.

As the Supre

me Court ob served i

n Williams v. Taylor , 529 U.S. 362, 398 ( 2000): “M i tigati ng evid ence un related to dange rousness may alter the jur

y’s selection

of penalty, eve

n if it does not undermine . . . the prose cution’s death-e ligibility case.” In Williams
, the Court recognized that “the reality that [the defendant] was ‘bord er line mentally retar ded[]’ might wellhave influenced the jur y’ s appraisal of his moral culpability.” Id. We conclude that the same is true here. Had the jurors be en confr

onted with

the mi tigati ng evidence of Frazier’s brain injury, the proba bility that at least one juror would not have decided that the agg ravating circumstances of the case outweighed the mitigating c ircumstances bey ond a
reasona ble doubt “is a probability sufficient to under mine confidence in the outcome.” Strickland , 466 U.S. a t 694; see also Wiggi

ns v. Smith , 123 S. Ct. 2527, 2543 (2003) (“Had the jury been ab le to plac e petitioner’s excrucia ting life his tory on the mitig ating si de of the scale, t here is a
reasona ble probability tha

t at least one juror would have
s truck a different balance.”); Ohio Rev. Code § 29 29.03(D)(2 ) (requiring jury unanimity

fo r the i mposition of

a death sentence). We therefore hold that Frazier has established that his right to the effectiveassistance of counsel was violated at th e penalt

y phase of his trial, a

nd that the state court’s conclusionto the contrary is an unreasonable application of clearly established Supre

me Court pr

eceden t.
The dissent do es not quib

ble with the foregoing analy

sis on the merits. It contends instead th at “Frazier’s claim of ineffective assistance of counsel is procedu r ally defaulted a

nd this court consequen

tly has no busi

nes s conside

ring the merits of that claim.” ( Diss enting Op. at 34) According to the 28 Frazier v. Huffman No. 01-3122

dissent, the Ohio Court of Appeal s never r eached the merit s because it held tha

t the clai m was b arred

by the state-law doctrine of res judicata. ( Id. )

This will surel y co me as a surprise to the state, which (1) conced

ed in its br

ief that “Frazier

did prese nt his ‘bra

in damage’ claim

to the state

courts,” and (2) t hen proc eeded to argue that “the Ohio court’s fi nding that trial counsel acted compete ntly in this regar

d is not an unreasonable application of Strickland .” We therefore believe that the dissent mischaracterizes the state’s argument by asserting that the state raised

a proce dural-d

efault d efense to every instanc e of ineffective as sist ance al leged by F razier. I nstead, t he state made clear its position that Frazier had f orfeited any ineffective-assistanceclaim premised upon his abandonment
as a ch ild or his a

bnormal r

esponse t o stress, and that h

is preservation

of the claim bas ed upon hi s brain damage did not permit h im to revive his other instances of ineffective assistance.

As the above -quoted l angua ge demonstrates , however, the state did not con

tend that Frazier procedu rally default ed his ineffective-assistanceclaim based upon his counsel’s failure to investigate and present evidence of his brain damage. The state’s failure

to raise t

he issue o f proce dural de fault with

r e spect to this insta

nce of ineffec tive assis tance is itself sufficient to dispens e with

our consideration of the question. “A court of appeals is no t ‘r equired’ to raise the issue of procedural default sua sponte .” Trest v. Ca in , 522 U.S. 87, 89 (1997).

Even if the sta

te had not waiv ed its pro cedura l-defa ult defense, moreover, we do not believe that the d

efense would be applica

ble in th is case. “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgme nt in the
caseclearly a

nd expressly states that its judgment rests on a state procedur al bar.” Harris v. Reed, 489 U.S. 255, 263 (198 9) (internal quotation marks omitted). Contrary to theNo. 01-3122 Frazier v. Huffman 29

dissent’s interpretation of the discussion by the Ohio Court of Appeals
, we find no cl e ar and express statement in the opinion that the state procedural doctrine of res judicata was the basis for the decision.

The Ohio Court of Appeals co nc luded its analysis of Frazier ’s ineff

ective- assistanc e claim a s follows:

Inview of

the fact that appellant had the assistance of at least three ex pe ri en ce d a tt or ne ys during all phases of the trial procee dings, a

nd mindful

that a reviewi ng cour t will notsecond-guess what

a re essentially matter

s of trial strateg y, ne ither the record nor appellant’s evidence provided dehors

the rec ord supported his c laim.

Frazier , 1997 WL 764810, at *6. We do not believe that the above statement

can be fairly

characterized as a determination th at Fr azier ha

d attempte d to prese

nt eviden ce that should have been presented on direct app eal . Rather, the Ohio court’s conclusi on goes

to the mer

its of Fr azier’s c laim. Disposing of Frazier’s ineffective-assistance cl aim on the merits was also sensible as a matter of s tate law . The Ohio Supreme Courthas held that “[w]here defendant, represented by new counsel upon direct appeal, fails to raise there in the issue of competent trial counsel and sai d issue could fa irly have been determined without resort to evidence dehors the record, res judicata is a proper basi s for dismissing defendant’s petition for postconviction relief.” State v. Co le
, 4 43 N.E.2d 16 9, 170 (Oh io 1982) ( syl labus). Accordin g to the dissent, the Ohio Court of Appeals decided that Frazier’s claim was barr e d by res judicata after concluding that the evidence provided

by his postconviction experts was not new because trial counsel had been “appraised of t he purported brain inju ry.” (Diss entin g Op. at 36 (qu otin g Fr azier , 1997 WL 764 810, at *6)) Such a decision, however, would have b een a mistaken application of Cole , because, as ou r ow n analy sis of Frazier’s claim demonstrates, the simple fact that trial counsel “had been appra is ed of the

purporte d brain 30 Frazier v. Huffman No. 01-3122

in ju ry” does not in and of itself establish ineffective assistance of co uns el. We thus conclude that the dissent’s reading of the de cision by

the Ohio Co

urt of App eals is plausible, but that it is neither t he only nor the be st interpretation.

The Ohio Court of Appeal s’s de cision also contains no express statement that its co nclu sion on the merits of Frazier’s ineffective-assistance claim is an alter nati ve h oldi ng. This contrasts with that court’s disposition of another ar gu me nt ra is ed by F raz ier concerning “the trial court’s failure to grant appellant’s motion for a psyc hological expertin mitiga

tion,” as to which the appell ate cou rt specific ally

stated that “the trial court properly ap plied the doctrine of res judic ata .” Frazier , 1997 WL 764810, at *6.

Insum, the st ate did not raise the issue of procedural default with respe ct to th e “brain damage” cla im by Frazier uponwhich we grant relief. Alterna tively, we do not believe that the Ohio Co

urt of App eals cle arly

and expre ssly

rested it s decisionregar

ding this claim on a

n indepen

dent state procedural ground . We are therefore unpersuade d by the thoughtf ul argu ment of the

dissent.

E. Remain ing c laims

Frazier advanc es sixteen other cla ims on appe al that me

rit substantia lly less d i scussion. Having concluded that the penalty phase of Frazier’s trial was constitutionally defective,
we have no need to consider any other arguments concerning that portion of the trial. We therefo re will n ot addre ss Frazier ’s claim t

hat he wa s entitled

to the appointment

of an independent

psychologic al expert for

the pena lty p hase, or his claim that the trial court’s instruction to the jury a tthe penalty phase wa s unconsti

tutional.

Of the rema

ining fo urteen c laims, the

only one t hat deserves further

discussion by

this court is Frazier’s argument that his rights under the Ex Post Facto Cl ause, U .S. Const.No. 01-3122 Frazier v. Huffman 31

art. I, § 9, cl. 3, were violated. A s detailed in Part I.A. above, Frazier, wh il e i n j ai l a nd wi th ou t a la wye r , requested and received a meeting with two po lice officers and Prosecutor McGinty onNovember 14, 1990. Frazier essentially offered to plead guilt y to the ra pe and murde r of Sk iba in exch ange for a defini te pri son term. That off

er play ed prominently

in the state’s presentation of its c ase. Frazier argues that the admission of evidence concerning his off er was made possible only by a chang e in the Oh

io rules o f eviden ce that occurred after the offense but prior to trial, resul ting in a violation of the Ex Post Fa cto Clause.

InNovember of 1990, when Skiba was murdered, Rule 410 of the Ohio Rules of Evidence provided that evidence of

“an offer to plead g uil ty or no conte st to the cr ime char ged or to any other crime, or statements made in connection with, and relevant to, any of the foregoin

g . . . of fers, is n ot admissib le in any . . . criminal proc eeding against the person who made the offer.” Rule 410 wa s revise d in July of 1991. The revised version, in effect during Frazier’s tria l, proh ibi ted the introduction of evide

nce concerning

“[a]ny statem ent made

in the course o f plea di scussi ons in which counsel for the prosecut ing a uthority or for the de fendant was a participant and that do not

result in a plea of guilty or tha

t result in a plea of guilty later

withdrawn.” Ohio R. Evid. 410(5). Every court to have con sidered

Frazier ’s ex

post factoclaim has resolve d it by

concludi ng that, because

the police officers andth e prosec

utor told Frazier that they could not negotia

t e a plea bargain at that time, no plea discussions took place on November

14, 1990. We find this analysis proble matic. Alth ough current Rule 410 requires the occurre nce of p lea discussions in order

to activa te the pr ohibition, former R

ule 410 d oes not. The former rule instead refere nces only “a

n offer to plead guilty.”

Thus, were we in a position to decide this question of state law in the first instance, it would seem to us thatFrazier’s offer to plead guilty was admissible under current Rule 410, but not under

former Rule 410. Of course, it is the contrary judg

ment of the Ohio Suprem e Court that 32 Frazier v. Huffman No. 01-3122

counts in co nstru ing the Ohio Rules of Evidence. See Frazier , 652 N.E.2d at 1012 (“[W]e concur with the lower courts in their determination that the interview that occurred
onNovember

14, 1990 was sim

ply not a plea discu ssion . We would reach the same result rega rdless of which version of Evid. R. 410 we applied.”) (emphasis omitted).

We add, moreover, that the Ex Post Fa cto Clause is not implicated

by the change to Rule 410. Frazier arg ues that the Clauseis violated

by “[e]very law that alters the legal rules of evidence, and receives les s, or d ifferent testimony, than the law required at the time of the commission of the of fence, in order to convict the offender.” Calder v. Bull , 3 U.S. (3 Dall.) 386, 390 (1798) (op inion o f Chase, J.). But the chang e to Rule 410 did not alter the quantum of evidenc e neces sary

to convict Frazier . Rather, it expande d the ran ge of a dmissible te st im on y. The Supreme Court explained the difference over a century ago:
Statutes which simply enlarg e the class of perso ns who may be competent to testify

in criminal cases a

re not ex post facto in their

applicationto prosecutions for crimes committed

prior to their passage; for they do not . . . alter the degree, or lessen the amount or mea sure, of the proof whichwas made necessary to conviction when

the crime was committed. Hopt v. Utah , 110 U.S. 574, 589 (1884); see also Carmell v. Texas , 529 U. S. 513, 542-47 (2000) (explaining the distinction). In addi tio n to falling short under AEDPA, theref ore, Fr azier’s ex post fa cto claim fa ils on the me

rits.

The districtcourt disposed of Frazier’s thirteen remaining claims in a car

eful and detailed manner. Theseclaim s range fro m the contention that Ohio’s statutory scheme of capital punishmentis unconstitutional to t he argument that the instruction on r easonable doubt given by the trial court was constituti onally

deficient. Our d iscus sion of these other claims would be duplicative and s erve no use ful pu

rpos e. WeNo. 01-3122 Frazier v. Huffman 33

therefore adopt the reasoning of the district court

as to all of these remaining claims and find them without merit.

III. CONCL USION

For a ll of the reasons set forth above, we REVERSE in part the j udgme nt of the district court, GRANT Frazier a conditional writ of habeas corpus that will result in the vacation of his dea

th se ntence unless the

state of Ohio
commences a

new pena lty- phase tr ial aga inst him within 180 da ys from the date that

t he judgment in this matter becomes final, and REMAND the cas e for fu rther procee dings consistent herewith. 34 Frazier v. Huffman No. 01-3122

_____________________________________________ CONCURRING IN PART, DISSENTING IN P ART

_____________________________________________ ALICE M. BATCHELDE R, Cir cuit

Judge, c oncurri

ng in part and disse

nting in p art. The

majority enterta ins t he question of

whether Frazier received the effe ctive assistance of counsel at

the mitigation stage of his trial, despite the fact that the Ohio courts never reached that question because, they held, Fr az ie r’ s c la im wa s b ar re d b y t he state law doctrine of

res judi cata . Beca

use Fra zier’s cl aim of ine ffectiv e assistanc e of counsel is pro cedur ally defaulted a nd this court consequently

has no business considering the mer it s of that claim, I re spectfu

lly d issent fr om the majority ’s h oldin g in Part II .D of its opinion. To the extent that the claims addressed in Parts II .C and II .E are no t waived or procedu rally 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 meri ts, notwithstanding the failu re of the applica nt to exhaust the remedies available in t

he courts of the State”), as I do in the remainder of its opinion.

I Before addressing the le gal arguments the majority makes inPart I I.D, it is imp ortant to understand the treatment of Frazier’s ineffe ctive as sistance of counse l claim by

the Ohio courts. After hi s convict

ion and se ntencing in state tr ial cour t, Frazier appeale d to the Oh

io Court of

Appeals
, whe re he raised fourteen assignments of error. In none of those assignments did

Frazier mention the

issue of the effe ctivene ss of his tr ia l c ou ns el , d es pi te th e f ac t t ha t F ra zi er ’s at to rn eys on appeal were no t the same lawy ers t hat re presented him atNo. 01-3122 Frazier v. Huffman 35

1 Frazier did chal lenge t

he consti tut ionali ty of

several Ohio stat

utes

on th e basi s that t

hose statut es worked to deprive him of the eff ective assi stance of counsel. However, he did not argue on di rect appealthat his counsel were in eff

ecti ve.

2 Oh io Rev . Cod e § 2 953 .21 p rovid es, when a pri soner has f il ed for post- convi cti on reli ef, that “[u]n less the pet iti on and the f iles and re cords of the cas e show the p etitioner is not entitled to relief, the cour t shall proceed to a pr ompt he ari ng on t he i ssu es .

. . .” § 2953. 21(E) (1997)

. However, [b]efore gran ti ng a h eari ng on a peti tion f iled under div is ion (A) of thi s sect ion, t

he court shall determi ne whet her there are subs tantive groun ds for reli ef. In making such a determination, the court shall cons ider , in additi on to the petiti on, the supporting affid avi ts, and the doc ume ntary ev idenc e, [and ] all the fil es and records pertaining to t he proceedings against the petition er . . . . § 2953 .21(C). trial. 1 On appeal by

right to the Ohio Supre

me Court, Frazier
once again f

ailed to r aise his claim of ineffective assistance of counsel.

After the United States Supreme Court denied Fraz ier’s petition for a writ of certiorari, he brough t a petition under Ohio Rev. Code § 2953.21 (1997), 2 to vacate or set aside his sentence in the Cuyahog a Coun ty, Ohio, Court of Common Pleas, and asserted for

the first time that his trial counsel were ineffective because they

fa iled t o investigate and present mitigating evidence at the sentencing phase of his trial. The Courtof Common Pleas, without address ing the merits of t his claim, sta ted as fo llows:

Consistent with the princ iples of res judicata , matters whichhave been or should have been raised on di rect appeal may not be consider ed in pos t-con viction procee dings. State v. I

shmail (1981), 67 Ohio St. 2d 16. Ina dd ition, where a defendant, represente d by new counsel on direc

t appeal
, fails to raise the issue of
co mp etent

trial counsel and said issue could fairly have 36 Frazier v. Huffman No. 01-3122

3 Oh io law prov ides t hat the p roce dura l bar o f res jud icata does not app ly in t

his cont ext if

the peti ti oner s ets for th, in s uppo rt of his newly rais ed claim, e viden ce that w as no t availab le at trial or o n direc t a ppeal
, and without which t

he defense could not have been expected to raise the

new c laim. See State v. Co le , 443 N.E.2d 169, 171 (Ohio 1982 ).

4 The majorit

y agrees with

the Ohio cour

ts’ fact ual f indin g that Fraz ier’s trial attorneys knew enough about his head injury to presen t th at evidence for

mitigat ion purposes: “Although inf ormation about the nature and severi ty of

the i njurywas le ss t

horoughly

dev el ope d in tho se [state postconviction] pro ceed ings than it is now, suffi cient fact s were present ed to indica te the existe nce o f evide nce c onc erning Fraz ier’s brain i njurythat

cou ld have bee n develo ped an d prese nted to the jury d uring the pena lty phase .” Su

pra, at 25. been determined without evidence [bey ond] the rec o rd,

res judic ata is a proper basis for dismissing the defendant’s Petition for

Post-Conviction Relief. State v. Cole(1982), 2 Ohio St. 3d 112.

J.A. at 312 (Court of Common Pleas opinion). Because, the court held, Frazier’s trial counsel we re differe nt from his counsel on direct appeal , “[a]ny [in]effective assis t an ce of counsel [claim] concer

ni ng trial counsel’s performance should have been raised on direct appeal in accor dance w ith Cole .” Id. The court

therefore granted the

State’s mo tion to dismiss, and deni edFrazier’s request for an evidentiary hearin g.
The Ohio Court of Appeals affirmed. After examining the “new evidence” of his “organic br ain impairment” that Frazier claimed was unavailabl e at trial, 3 the court held that the evidence was not ne

w, and he nce did not permit F razier to
overcome the bar

of res judic ata . The court noted that “it can
reasona bly be concluded trial counsel were appra ised of the purported brain injury from their review of the medical record s; however, as a matter of trial strategy counsel deemed this avenue of defense unworthy of further pursuit.” 4 State v. Frazier , No. 71746, 199 7 WL 764 810, at *6(Ohio Ct. App. Dec. 11, 1997) . This conclusi on, th e court said, wasNo. 01-3122 Frazier v. Huffman 37

5 The majo rity corre ctly notes that “[t]he first tw o facto rs . . . have no releva nce in expla ining ho w the stra tegy ultima tely pursu ed b y Fraz ier’s counsel was reas onable.” Supra, at 22. But th is s tate ment in dicates that the majo rity misund erstand s the le gal ana ly sis tha t t he Ohio Courtof Appeal s unde rto ok. T he O hio C ourt o f App eals wa s not see king to support the “reasonab leness” of the tr ial counsel’ s investi gatory tac ti cs ( or lack thereof); rather, the cour t was expl aining the bas is for it s conc lus ion that tri al counsel was aware of evi dence Frazi er claime d wa s not av ailable at trial, a ma tter to wh ich the first two factors are o bvio usly relev ant. “reinforced”by three f

actors, namely , (1) counsel’s argument that a psy cholog ist would me

rely interpret the findings of the mitigationexpert; (2) counsel’s filingof a mo tion to limit reference to m itigating factors; and (3) “the thoroug h and professional manner in which counsel conducted appellant’s defense

. . . .” 5 Id. These statements by the Ohio Court of Appeals were no t made in the context o f discuss ing the merits of Fr azier’s c laim of ine ffectiv e assista nce of tr ial couns el, butin the context of determining whether that ineffe cti ve assistance claim was barre d by the state law doctrine of res judicata

. The Common Pleas Cour t, without reaching the merits of that claim, had granted the state’s motion to dismiss Frazier’s post-convictionpetition, holding that the claim was ba rred by res judic ata . The Court of Appeals affirm ed tha t judgmen t, mentioning the merits on ly t o the extent of explai n ing their conclusion that the “new”evidence of he ad injury Frazier urged the cour t to rely on in order to get around the res judic ata bar was

not new a

t all.

II Respondent

Huffman raises Frazier’s “fa ilure to present the [i neffective assistance of counsel] claim and the fact s i n support of it to the state courts.” Huffman Br. at 49-50. Notwithstanding the Supremacy Clause of the Constitution,

see Cooper v. Aaron , 358 U.S. 1, 18-19 (1958), fe der al habeas courts a

re not fr ee to undertake a plenary

review o f all claims brought pursuant to 28 U.S.C. § 2254. See , e.g. , Wa inwright

v. Sykes , 433 U.S. 72, 81 (1977) (“a s tat e 38 Frazier v. Huffman No. 01-3122

decisionresting on an adequa te foundati on of stat

e substantive law is immune from review in t he fed eral courts”). Instead, t

hi s court must first consider whether F razier ’s ineffe ctive as sistance of counse l claim is properly before it prior to

discussin g the me rits of tha t claim.

This issue “concerns the respect that fede ral courts owe the States and the States’ procedural rules when revie w ing the claims of state p

risoner s in

federal habeas corpus.” Coleman

v. Thompson , 501 U.S. 722, 726 (1991). The Supreme Court has he ld th at “[ w] he re th e p et it io ne r .

. . fa il ed pr op er ly t o raisehis claim on direct

review, the writ

[of habea s corpus] is availab le only if the p etitioner establishes ‘cause’ for the waiver and shows ‘actual prejudice resulting from the alleged

. . . violation.’” Reed v. Farley , 512 U.S. 339, 354 (1994) (quoting Wainwright v. Sykes , 433 U. S. at 84). This r ule applies when a state c o urt, relying upon a state rule of law, refused oncollate ral appeal to consider a claim that the petitioner could have raised on direct review, and the peti tioner now raises the same claim on habeas appeal

. Teague v. Lane , 489 U.S. 288 , 297-98 (1989) (holding that petitioner’s claim, wh

ich he fa iled to ra ise ondirect r

eview in state co urt , was pro cedura lly d efaulte d becau se the Illinois appeals c ourt r efused, on the basis of a state law doctrine of

res judicata , to consid

er the c la im in a state collateral proceeding); Coleman v

. Mitche ll , 268 F.3d

417, 428- 29 (6th Cir. 2001) (Clay, J.) (holding that Ohio’s doctrine of “ res ju dicata under § 2953.21 [is] an adequate and indep enden t state ground

justify ing for eclosur e of constitutional

claims” inhabeas p

roceed ings); see generally Coleman v. Thompson
, 501 U.S. at 729-30 (“The [indepe nd ent and a dequate state ground] doctrine

applies to

bar fed eral ha beas whe n a state court declined to address

a prisone r’s fed eral cla ims beca use the prisoner had failed to meet a state procedur

al requi rement. Inthese cases, the state judgment re sts on independent and adequate state procedural g rounds.”).

T his court’s initial obligation with regard to Frazier’ s ineffective assistanc e of coun sel claim
, which the Ohio cour tsNo. 01-3122 Frazier v. Huffman 39

6 W hile the Ohio Supre me Court was a ctual ly t he l as t state co urt to
ru le on Fraz ier ’s coll ater al appeal, the Court summar il y “de cli ne[d] juri sdic ti on to hear the case and dismiss e[d] t he a ppeal as not involving any subst anti al const itu tional questi on.” J. A. at 345 (Ohio Supreme C ourt order). Th is cour t therefo re loo ks to the Ohio Court of Appeals deci sion

a s the fi nal reas oned st ate court deci sion

for purpos es of

consi de rin g procedural defau lt. See Ylst v. Nunnemaker , 501 U.S. 797, 803- 04 (1991) (holding tha t a f

ederal cou rt l ooks through an unexplained order “to the last reaso ned decisio n,” and doe s not a ssume that the une xplain ed order held wa s b ar re d b y res judic ata , is to determine whether the claim is in fact

procedu rally default ed. Firs t, we must
con sid er whether Ohio’s procedural bar to Fr azier’s raising his constituti onal cla

im was “f irmly established and re gularl

y followed” at the time the Ohio Court of Appeals ruled. Ford

v. Georgia , 49 8 U.S. 411 , 424 (1991). It clearly was. State

v. Cole , 443 N.E.2d 169 (Ohio 1982), the case on which the Courtof Common Pleas relied, and which wa s subseque

ntly cited by the Ohio Court

of Appeals as support for its holding
on res judic ata , is not only itself established, but relies directly upon the 1967 case of State v. Perry , 226 N.E.2d 104 (Ohio 1967). State

v. Perry was cited by this court whe n we held that “application of res judic ata . . . i s an adequate and independent

state ground for barring ha beas r eview of constitutional claims.” Coleman v. Mitch ell
, 268 F.3d at 429. Second, we must determine whether the state’s procedural rule barring rev iew is an a dequate and indep endent st

ate ground sufficient to foreclose review of constitutional claims. Ihave al ready cite d auth ority est ablis hing t hat Oh io’s doctrine of res judic ata meets this require ment. See id. ; see also Mason v. Mitchel l
, 320 F.3d 604, 628 (6th Cir. 2003) (reaffirming Coleman v. Mi tche ll ’s holding that Ohio’s doctrine of res judic ata is an adequate and independ ent state ground). Third, we must be sure that the last state court to rule on Frazier’s claim actually disposed of that claim on a

state law procedural ground. 6 Thompson
, 501 U.S. at 734- 40 Frazier v. Huffman No. 01-3122

lif ts the pri or holding that t he claim at i ssue was procedurally barred). 35. “[A] procedural d efault does not bar consideration of a federal claim on either direct or habeas review u nless the last state court ren deri ng a judgment in the case clea rly and expressly states that its judgment rests on a st ate procedural bar.” Harris v. Re ed , 489 U.S. 255, 263 (1989) (internal quotations omitted). So lo ng as the sta te court does so, it s finding of procedur al def au lt pr ec lu de s c on si de ra ti on by a federal court even when the state cou r t also analyzed the defaulted claim un der fed eral law. Id. at 264 n.1 0. In this case, the majority uses as its tenuous springboard to launch into the merits of Frazier ’s ineffective assistance claim—withoutever addressing whether the claim was procedu rally defaulted—a

patently incorre ct

characterization of the Ohio C ourt o f Appea ls’ ru ling: “Frazier’s ineffectiveassistance claim wa s rejec ted by the Ohio Co

urt of App eals
onthe basis of the first prong of Strickland .” Supra, at 19. In fact, as I d iscussed above, the Ohio Court of A ppeals held that “the trial court properly

applied the doctrine of res judic ata .” Frazier , 1997 WL 764810, at *6. That court never mentioned Strickland

or any other f

ederal court pr

eceden ts pertai ning to ineffective assistance of counsel (with t he e xception of
one— Glenn v. Tate , 71 F.3d 1204 (6 t h Cir. 1995)—upon whichFrazier

relied b ut that contained f

acts “inapposite ” to those of the present case). Even if the Ohio Court of Appeals had analy zed the me

rits of F razier’ s i neff

ective assistance claim, its distinct holding based upon the state law doctrine of

res judicata

is sufficient

to bar our consideration of that clai m unless Frazier can show cause and pre judice.

Fi na ll y, we must exa

mine whet

her th e Ohio Court of Appeals
, which applied the doctrine of res judicata and rejected Frazier’s content ion th at his claim was based upon evidence outside the record , actual ly “discuss[ed] any of that evidence, ma[d]e specific factual findi ngs on the matter, or provide[d] any re as oned analysis” to uphold its decision. Williams v. Coyle , 260 F.3d 684, 696 ( 6th Ci r. 2001).No. 01-3122 Frazier v. Huffman 41

“Without su ch an al ys is, we are unwilling to rule that the claim is proce durall

y barred.” Id. In thi s case, t he Ohio Courtof Appea

ls discussed the “new” evidence put forth by Frazier, inc lud in g th e af fid avi t o f ps ycho lo gis t S har on L. Pearson, who opine d that Fr azier sho uld have been examined by a licensed psyc

hologist as part of his mitigation defense. Fra zier , 1997 WL 764810, at *6. Moreover, the court explained —in the portion of its opinion tha t the major ity
c onfuses for a Strickland analysis—the basis for it s conclusionthat Frazier’s trial counselwere aware of Frazier’s head injury and there fore why

the evidence dehors the record
was not sufficient to overcome t he procedural bar of res judicata

. Id. The Ohio Court of Appea ls’ analy sis was more thansufficient to comply with the re quirements of W il liams v. Coyle

. Therefore, thi s c ourt is required to determine whether Frazier can show both cause and prejudice f or h is failur

e to
co mply with Ohio’ s proced

ural rule . Clearly

, he can not. Frazier has not shown any ca

use for his failure to raise o n direct appeal his claim of

ineffective assistanceof c oun sel . In his brief before this court, he fails to address the issue of procedural default at

all, and i nstead la unches d irectly into a discussion of the merits of his claim. “We . . . r equire a prisoner to demonstrate cause for his state-court defa ult of anyfederal claim, and

prejudice therefrom, before the federal habeas court wil l consider the merits of that claim.” Edwards

v. Carpenter , 529 U.S. 446, 451 (2000). Frazier has not even attempted to make such a demonstration , a nd any excuse Frazier might now

present for his fa

ilure to r

aise his ineffective assistanc e claim pr operly on direct appeal

is waived. See Bickel v. Korean Air Lines Co. , 96 F.3d 151, 153 (6th Cir. 1996) (citing Fed. R. App. P. 28 and noting that the court “normal ly d

ecline[s] to

consider issues not

raised in the appellant’s opening briefs”).

The one means by whic h Frazier could by

pass the req ui rement that he show cause is extraordinary : “where a constitutional violation has probably resulted in the 42 Frazier v. Huffman No. 01-3122

convictionof one who is actually innocent, a f ederal habeas court may g rant the writ even in the absence of a showing of
cause for the procedu

ral defa ult.” Murray v. Carrier , 477 U.S. 478, 496 (1986). The present issue concerns whether F r azier was sentenced fairly , and so “the ‘actual innocence’

r equirement

must focus on those elements that render a defendant eligible for

the death penalty , and not on additional miti gating evi dence that was prevented from being introduced
as a result of a claimed constitutional error.” Sawyer v. Whitley
, 505 U.S. 333, 347 (1992). Since Frazier only claims that the alleged ineffective assistance of his counsel resulted ina failure to present available mitigating evi d ence at the sente ncin g phase, a

nd since t

he evide nce of hi s brain impairment

does not call into question the jury’s finding of aggravating

factors, Frazier cannot

use the doctrine of “actual innocence of the death penalty ” to excus e h is procedural default

. Id. Moreover, si nce Fr azier doe s not set forth any evidence which, if believed, might lead a tr ier of fact tofind him innocent of the murder

of Tiffany Skiba, he c annot meet Carrier ’s actual innocence standard, namely, that the alleg ed constituti onal error probably resulted in the conviction of a defendant who was actually

innocent. Schlup v. Delo , 513 U.S. 298, 322-27 (1995).

III

All means of cir cumventing the Ohio courts’ holding that Frazier’s in ef

fe ct iv e a ss is ta nc e c la im wa s b ar re d b y res judicata have be en fore closed; this court therefore has no legal authority to consider the mer its of tha t cl aim. I

n so doin g, the majority

contravenes clearly

established precedent of the Unit ed St ates Supreme Court and this Circuit, and “underm ine[s] the St ate’s interest in enforcing its laws.” Coleman v. Thompson , 501 U.S. a t 731. I theref ore disse nt.