1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0320P (6th Cir.)

File Name: 03a0320p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RICHARD M. FRAZIER,

Petitioner-Appellant,

v.

STEPHEN J. HUFFMAN,

Warden,

Respondent-Appellee.

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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 

Before: BATCHELDER, CLAY, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: John B. Nalbandian, TAFT, STETTINIUS &

HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Michael

L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Cleveland, Ohio, for Appellee. ON BRIEF: John B.

2 Frazier v. Huffman No. 01-3122

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

STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David

Paul Bradley, GALLAGHER, SHARP, FULTON &

NORMAN, Cleveland, Ohio, for Appellant. Michael L.

Collyer, OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Cleveland, Ohio, Henry G. Appel, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for

Appellee.

GILMAN, J., delivered the opinion of the court, in which

CLAY, J., joined. BATCHELDER, J. (pp. 34-42), delivered

a separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Tiffany Skiba

was stabbed to death on November 8, 1990. The grand jury

in Cuyahoga County, Ohio indicted Richard M. Frazier on

two counts of aggravated murder 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

on August 5, 1991. The jury convicted him on all counts and

subsequently recommended that he be sentenced to death.

That recommendation was adopted by the trial judge.

After exhausting his direct appeals and state postconviction

remedies, Frazier sought a writ of habeas corpus in federal

court pursuant to 28 U.S.C. § 2254. He raised multiple

grounds for relief, but primarily focused on claims of

evidentiary error, prosecutorial misconduct, and ineffective

assistance of counsel. The district court denied Frazier’s

petition, but granted him a certificate of appealability on all

issues. For the reasons set forth below, we REVERSE in

part the judgment of the district court, GRANT Frazier a

conditional writ of habeas corpus that will result in the

vacation of his death sentence unless the state of Ohio
No. 01-3122 Frazier v. Huffman 3

commences a new penalty-phase trial against him within 180

days from the date that the judgment in this matter becomes

final, and REMAND the case for further proceedings

consistent herewith.

I. BACKGROUND

A. Factual background

Frazier married Susan Bednarski in 1980, thereby

becoming the stepfather of Bednarski’s eight-year-old

daughter from a previous relationship, Tiffany Skiba. In

February of 1988, Bednarski discovered that Skiba was

pregnant. Both women believed that Skiba’s pregnancy was

the result of sexual abuse by Frazier. Bednarski sought a

divorce. Skiba spoke to the local authorities in Medina

County, Ohio. In October of 1988, Frazier was indicted in

state court on two counts of rape and two counts involving

other sex crimes. One month earlier Skiba had given birth to

a son.

The state criminal court ordered Frazier to submit to a

blood test to determine the paternity of Skiba’s child. He

appealed that order to the intermediate state appellate court

and to the Ohio Supreme Court. After the Ohio Supreme

Court denied Frazier relief, he petitioned the United States

Supreme Court for a writ of certiorari. Frazier remained free

on bond during the pendency of these proceedings. The

United States Supreme Court declined to hear Frazier’s case

on October 1, 1990. Dates for the blood test and the trial

were then set by the state criminal court.

Throughout 1989 and 1990, Skiba was terrified of Frazier.

She was visibly disturbed any time that she was in his

presence. Skiba confided in one friend her fear that Frazier

was going to kill her. She moved into her grandparents’

home and started sleeping with a knife under her pillow.

4 Frazier v. Huffman No. 01-3122

Skiba’s grandfather, 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 returned home

fifteen minutes later. Upon his arrival home, his dog was

barking and looking excitedly at the back door. Robert Skiba

apparently thought little of this unusual behavior at the time.

After calling upstairs for his granddaughter at 10:00 a.m. and

receiving no response, however, he went upstairs to check on

her. Upon entering Tiffany Skiba’s bedroom to rouse her,

Robert Skiba was met with the ghastly sight of his

granddaughter’s corpse lying in bed, covered in blood and full

of puncture wounds.

Police officers who arrived at the scene discovered a broken

steak knife next to Skiba’s body. The knife was part of a set

belonging to her grandparents. There was blood on the knife,

in the surrounding area, on the stairway heading down from

the second-floor bedroom, and on the first-floor living room’s

door frame. The police discovered that the screen on a

basement window had been removed and that one of the

panes of glass had been shattered. Although it was normally

kept closed, the door leading from the basement into the rest

of the house was open. One of Skiba’s uncles had once

shown Frazier how to gain access to the house through the

basement window when they had been accidentally locked

out. The neighboring yard contained footprints that pointed

away from the Skiba residence. A study of the footprints

revealed that they were made by someone wearing size nine

or ten boots in a style sold exclusively by K-Mart.

Also on the morning of November 8, 1990, Frazier visited

a medical clinic to get treatment for a one-inch cut on his

wrist. The cut was consistent with a stab wound. That night,

Frazier drove to the home of his friends, the Shamons, in a car

that he had rented at the airport two days earlier. The police

arrested him at the Shamons’ home on November 12, 1990.

At the time of his arrest, Frazier had with him a letter from

the United States Supreme Court informing him that his

petition for certiorari had been denied. In Frazier’s apartment
No. 01-3122 Frazier v. Huffman 5

the police discovered a receipt from K-Mart for a size-nine

boot of the same style found imprinted in the neighboring

yard near the Skiba residence.

Frazier was taken to the Medina County jail. He was

transported the next day from the jail to a clinic, where the

long-ordered paternity test was administered. The test

confirmed that Frazier had fathered Skiba’s son.

On November 14, 1990, Frazier telephoned Officer James

Svekric from the jail. Frazier had known Svekric for many

years, and Svekric was one of the police detectives who had

transported Frazier the previous day. Frazier asked Svekric

to bring him Frazier’s telephone book and prescription

medication. Svekric, accompanied by another police officer,

visited Frazier that day. According to Svekric, Frazier waived

his right not to incriminate himself and asked the officers

“what [they] could do for him, if [they] could get him a

definite sentence in Cleveland as to a flat time, how much

time he was going to do if he was to plead guilty.” The police

officers told Frazier that although they could tell the

prosecutor and the judge that Frazier had cooperated, they had

no authority to negotiate a plea agreement. Frazier then

returned to his cell.

A short time later, however, the police officers conducted

a second interview with Frazier, this time in the presence of

the local prosecutor, Tim McGinty, who had been waiting in

an adjacent 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 other crimes in

exchange for an agreement to allow him to plead guilty.

McGinty replied, however, that in order to establish his

credibility, Frazier would need to provide the details of

Skiba’s murder. Frazier was then asked whether he intended

to kill Skiba when he went to her grandparents’ home on

November 8, 1990. In Svekric’s recounting, “he shook his

head no, but he did not give us a verbal answer or explain

6 Frazier v. Huffman No. 01-3122

what his intent was that morning.” Svekric related the

remainder of the interview as follows:

And I asked him a question, “Do you want to tell us

exactly what happened on November 8th with Tiffany

Skiba, yes or no,” and his answer was, “Yes, I will tell

you everything you want to know.” But at that time he

also stated that he thinks his attorney should be present

. . . .

Frazier’s jailhouse interview was then terminated.

B. Procedural background

The Cuyahoga County grand jury returned a three-count

indictment against Frazier. Count One charged him with the

murder of Skiba. The first count contained three deathpenalty specifications—for felony murder, the murder of a

witness, and murder to escape accounting for another crime.

Count Two charged Frazier with the murder of Skiba during

the commission of a burglary. It also contained the three

identical death-penalty specifications enumerated in Count

One. The third count charged Frazier with burglary.

On August 21, 1991, the jury convicted Frazier on all

counts. The next phase of the trial concerned the appropriate

penalty, at the conclusion of which the jury recommended

that Frazier be sentenced to death. On August 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 postconviction relief. He then

initiated federal proceedings for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in September of 1998. The

district court denied his petition, but granted him a certificate

of appealability on all issues. This timely appeal followed.
No. 01-3122 Frazier v. Huffman 7

II. ANALYSIS

A. Standard of review

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,

1996), applies to Frazier’s case because he filed his habeas

corpus petition after the Act’s effective date. Lindh v.

Murphy, 521 U.S. 320, 336 (1997). A federal court is

authorized to grant a writ of habeas corpus to a person in

custody pursuant to a state-court judgment, but only if 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). All of Frazier’s claims are governed by

§ 2254(d)(1).

A federal court may grant 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]

Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

412-13 (2000). Section 2254(d)(1)’s “unreasonable

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 avenue of relief

occurs if “the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts . . . .”

Williams, 529 U.S. at 413. Second, relief is available under

this provision if the state-court decision “either unreasonably

8 Frazier v. Huffman No. 01-3122

extends or unreasonably refuses to extend a legal principle

from Supreme Court precedent to a new context.” Campbell,

260 F.3d at 539.

The Supreme Court has declared that “a federal habeas

court making the ‘unreasonable application’ inquiry should

ask whether the state court’s application of clearly established

federal law was objectively unreasonable.” Williams, 529

U.S. at 409. In its elaboration on the meaning of the term

“objectively unreasonable,” the Court stated that “a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also

be unreasonable.” Id. at 411.

In the present case, the district court applied the standards

set forth under AEDPA and determined that Frazier was not

entitled to habeas relief. We review de novo the district

court’s denial of Frazier’s petition. Macias v. Makowski, 291

F.3d 447, 451 (6th Cir. 2002).

B. Certificate of appealability

Before reaching the merits of Frazier’s claims, we address

a procedural problem that has hindered our consideration of

this appeal. The district court in this case granted a certificate

of appealability on all issues, with the following explanation:

Until such time as such precedent 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

appealability in capital habeas cases as a matter of

routine.

Others may view this as an abdication of

responsibility; it is, rather, a manifestation of the

possibility of my own fallibility, and concern that I may

have erred. I do not believe that I have erred—but doubt
No. 01-3122 Frazier v. Huffman 9

that I have, no matter how strongly felt, is not certainty

that I have not.

This rationale is contrary to our decision in Porterfield v.

Bell, 258 F.3d 484 (6th Cir. 2001), which was also a capitalmurder case. Like here, Porterfield had been granted a

certificate of appealability on all issues. We noted in

Porterfield that such a blanket grant conformed to neither the

commands of 28 U.S.C. § 2253(c) (providing in part that a

“certificate of appealability may issue . . . only if the applicant

has made a substantial showing of the denial of a

constitutional right . . . [and] shall indicate which specific

issue or issues satisfy the showing required”), nor the

Supreme Court’s construction of the statute in Slack v.

McDaniel, 529 U.S. 473 (2000) (holding that the

requirements of § 2253(c) applied regardless of whether the

district court rejected a constitutional claim on the merits or

on procedural grounds). Because a blanket grant

“undermine[s] the gate keeping function of certificates of

appealability, which ideally should separate the constitutional

claims that merit the close attention of counsel and this court

from those claims that have little or no viability,” and

“because the district court [was] already deeply familiar with

the claims raised by petitioner,” we vacated the certificate of

appealability inPorterfield and remanded the matter “in order

to permit the court to engage in the reasoned assessment of

each . . . claim as required by Slack.” 258 F.3d at 487.

The language of § 2253(c) is mandatory. It was therefore

error for the district court to issue a blanket certificate of

appealability without any analysis. We recognize, however,

that the district court rendered its decision before our opinion

in Porterfield. In contrast to Porterfield, moreover, both

parties in the present case have already briefed the merits of

Frazier’s claims, so that vacating the certificate of

appealability would “further delay an already lengthy

process.” 285 F.3d at 485. For these reasons, we will excuse

the procedural error of the district court. This is an

appropriate time, however, to reiterate both that a certificate

10 Frazier v. Huffman No. 01-3122

of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2) (emphasis added), and that any such

certificate “shall indicate which specific issue or issues satisfy

the showing required,” id. § 2253(c)(3) (emphasis added).

To focus our consideration of the issues in the face of this

blanket certificate of appealability, we asked counsel for

Frazier at oral argument which claims he perceived to be his

strongest. He replied that his primary claims for habeas relief

were those premised upon the due process right to a

fundamentally fair trial and those based upon the ineffective

assistance of counsel. We agree, particularly in light of the

fact that the district court singled out “the remarkable and

unnecessary misconduct of the prosecutor” as a concern

regarding the petitioner’s right to a fair trial. Accordingly, we

devote our attention to these two issues first.

C. The right to a fundamentally fair trial

Frazier alleges that he was denied his due process right to

a fair trial, both because certain evidence was improperly

admitted and because of prosecutorial misconduct. “Cases in

[the Supreme] Court have long proceeded on the premise that

the Due Process Clause guarantees the fundamental elements

of fairness in a criminal trial.” Spencer v. Texas, 385 U.S.

554, 563-64 (1967).

1. Due process and evidentiary matters

Frazier’s first contention is that the trial court improperly

admitted (1) cumulative, gruesome photograhs of Skiba’s

corpse, (2) evidence that Skiba was terrified of Frazier, and

(3) evidence that Frazier raped Skiba. To the extent 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 will be reviewed by a federal habeas court

only if it were so fundamentally unfair as to violate the
No. 01-3122 Frazier v. Huffman 11

petitioner’s due process rights.”). Rather, Frazier must

demonstrate that the state court’s conclusion — that the

admission of the challenged evidence did not violate his due

process rights — was unreasonable, as those rights have been

articulated by the Supreme Court.

Frazier argues that the admission into evidence of multiple

photographs of Skiba’s corpse was excessive. He notes that

the Supreme Court has stated: “In the event that evidence is

introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the

Fourteenth Amendment provides a mechanism for relief.”

Payne v. Tennessee, 501 U.S. 808, 825 (1991).

The Ohio Supreme Court directly addressed this

evidentiary issue, concluding that the multiple photographs

“were introduced during the coroner’s testimony to illustrate

the testimony,” that “[e]ach photograph presents a different

perspective of the victim,” and that the photographs “were

used to illustrate” the nature of the encounter that

immediately preceded Skiba’s death. State v. Frazier, 652

N.E.2d 1000, 1010 (Ohio 1995). It ultimately determined that

the photographs’ “probative value substantially outweigh[ed]

the danger of unfair prejudice” to Frazier. Id. We conclude

that the Ohio Supreme Court’s resolution of Frazier’s federal

constitutional claim concerning the admission of multiple

photographs of Skiba’s corpse was not an unreasonable

application of federal law as articulated by the Supreme

Court. See Willingham v. Mullin, 296 F.3d 917, 928-29 (10th

Cir. 2002) (refusing to grant relief on a habeas petitioner’s

claim that the admission of 22 photos of the victim’s body

was so unduly prejudicial as to render his trial fundamentally

unfair, where the state court provided a reasonable basis for

concluding that the photographs’ relevance outweighed the

danger of unfair prejudice).

Frazier next contends that the admission of evidence that

Skiba feared him rendered his trial fundamentally unfair. In

the opinion of the Ohio Supreme Court, such evidence was

12 Frazier v. Huffman No. 01-3122

admissible as a present-state-of-mind exception to the hearsay

rule. Frazier, 652 N.E.2d at 1013. The district court

concluded that evidence of Skiba’s fear “supported the

substantial evidence of [Frazier’s] likely motive.” Although

we find that the relationship between Skiba’s fear and

Frazier’s motive is tangential at best, we recognize the

existence of a logical argument that the relevance of such

evidence outweighed its potential prejudice. We are unaware,

moreover, of any Supreme Court precedent that establishes

that the admission of evidence that a murder victim feared the

defendant violates the defendant’s due process rights.

Frazier’s assertion that “[s]everal states have held

unambiguously that the state of mind of a murder victim is

irrelevant to the issue of the identity of the perpetrator” has no

bearing on our task under AEDPA. We therefore conclude

that the state courts’ resolution of this matter was not an

unreasonable application of federal law.

The third category of evidence challenged by Frazier

concerns his alleged rape of Skiba and paternity of her child.

He claims that the admission of the evidence without a

limiting instruction rendered his trial fundamentally unfair.

Before reaching the merits of this claim, we must first

consider the state’s argument that this challenge was rejected

by the state courts on the basis of state procedural rules.

A federal court is generally barred from considering an

issue of federal law arising from the judgment of a state court

if the state judgment “rests on a state-law ground that is both

‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the [state] court’s decision.” Harris v.

Reed, 489 U.S. 255, 260 (1989). The adequate-andindependent-state-ground doctrine has been applied in

refusing to address the merits of a federal claim because of

violations of state procedural rules, such as the failure to

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

independent finding of procedural default will preclude

habeas corpus relief “unless the prisoner can demonstrate

cause for the default and actual prejudice as a result of the
No. 01-3122 Frazier v. Huffman 13

alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

In determining whether a procedural default has occurred

and, if so, what effect the default 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 with the rule, (3) the

state court actually applied the state rule in rejecting the

petitioner’s claim, and (4) the state procedural rule is an

adequate and independent ground upon which the state can

rely to deny relief. Reynolds v. Berry, 146 F.3d 345, 347 (6th

Cir. 1998). The rule precluding federal habeas corpus review

of claims rejected by the state courts on state procedural

grounds applies only in cases where the rule relied upon by

the state courts involves a “firmly established and regularly

followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-

24 (1991). Furthermore, a procedural default does not bar

consideration of a federal claim on habeas corpus review

unless the last state court rendering a reasoned opinion in the

case “clearly and expressly states that its judgment rests on a

state procedural bar.” Harris, 489 U.S. at 263 (internal

quotation marks omitted).

In this case, the Ohio Supreme Court noted that Frazier

failed to object at trial to the omission of a limiting

instruction. It therefore analyzed his entitlement to the

inclusion of such a jury instruction using the “plain-error”

standard. But the larger issue was whether “the trial court

erred by admitting evidence of other crimes committed by

[Frazier].” Frazier, 652 N.E.2d at 1013. The Ohio Supreme

Court analyzed the claim on its merits, ultimately finding

Frazier’s argument to be “without merit.” Id. at 1013, 1014.

We therefore conclude that Frazier is not procedurally barred

from presenting the claim that the admission of evidence

about his rape of Skiba and the paternity of her child rendered

his trial fundamentally unfair.

14 Frazier v. Huffman No. 01-3122

Turning to the merits of the claim, we agree with the Ohio

Supreme Court that the evidence was directly relevant to

Frazier’s motive and to the death-penalty specifications. The

United States Supreme Court decision upon which Frazier

relies in pressing this claim held that the introduction of

evidence of prior crimes, where relevant to prove deathpenalty specifications, is not unconstitutional. Spencer v.

Texas, 385 U.S. 554, 568-69 (1967). We therefore conclude

that the admission of evidence that Frazier raped Skiba and

fathered her child, even without a limiting instruction, was

not an unreasonable application of Supreme Court precedent

and did not 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

eight examples of what he characterizes as prosecutorial

misconduct. Some of the conduct that he challenges took

place during the guilt phase of his trial, while other instances

occurred during the penalty phase. Our conclusion in Part

II.D. below that Frazier must be given a new sentencing

hearing makes it unnecessary for us to consider the alleged

prosecutorial misconduct that occurred during the penalty

phase.

None of the alleged prosecutorial misconduct in the guilt

phase of the trial impinged upon a particular provision in the

Bill of Rights. The relevant question, therefore, is whether

the prosecutorial conduct “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 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). A fourfactor test is then applicable to any conduct that we find

inappropriate: “(1) whether the conduct and remarks of the

prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the conduct or remarks were isolated
No. 01-3122 Frazier v. Huffman 15

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

accidentally made; and (4) whether the evidence against the

defendant was strong.” Id.

Frazier takes issue with the following instances of the

prosecutor’s conduct during the guilt phase of the trial:

(1) using a photograph of Skiba taken before her murder in

his closing argument, (2) relying on Skiba’s fear of Frazier as

part of the state’s case-in-chief, (3) referring to Skiba’s

character during his closing and rebuttal argument, and

(4) placing an empty chair before the jury during his closing

argument to “represent” Skiba. The first instance, the use of

a photograph of Skiba during closing argument, has been

found by some courts to be within the bounds of acceptable

conduct. Nefstad v. Baldwin, No. 94-35714, 1995 WL

520050, at *2-*3 (9th Cir. Sept. 1, 1995) (finding no error by

the trial court in permitting a “closing argument [wherein] the

prosecutor asked the jury to compare a photograph of the

victim before the murder with an autopsy photograph of the

victim”); Lowe v. Abrahamson, No. 92-2020, 1995 WL

150585, at *1-*2 (7th Cir. Apr. 6, 1995) (order) (finding

“nothing improper” about “the presentation at trial of a

photograph of the murdered victim wearing a hat from his

son’s Little League baseball team”). Other courts have found

such photographs of the victim improper. Cargle v. Mullin,

317 F.3d 1196, 1223-24 (10th Cir. 2003) (agreeing with the

state court’s determination that the trial court erred in

admitting “a number of photographs of the victims while they

were alive” because the photographs were “irrelevant and

prejudicial”). The state courts in this case determined that the

prosecutor’s use of Skiba’s photograph during closing

argument was not improper. In light of the split of authority

about the propriety of such conduct, we cannot say that the

state courts’ determination was unreasonable.

The second instance of alleged prosecutorial misconduct

concerns the state’s reliance on Skiba’s fear of Frazier as part

of its proof. As noted above in Part II.C.1., the state courts

ruled that such evidence was relevant and admissible. There

16 Frazier v. Huffman No. 01-3122

is nothing improper about a prosecutor’s reliance on a state

court’s evidentiary ruling, whether or not the ruling itself was

correct.

The third instance concerns the prosecutor’s references to

Skiba’s character during his closing and rebuttal argument in

the guilt phase of the trial. These references 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 remarks

were intemperate”). This leads us to the application of the

Carter factors. In this instance, the prosecutor’s remarks

were not limited to an isolated instance. On the other hand,

they did not form the centerpiece of the prosecutor’s

argument. But the prosecutor’s remarks were plainly

deliberate. Furthermore, the state’s case was not unusually

strong. The evidence was sufficient to prove the defendant

guilty beyond a reasonable doubt, but it was not

overwhelming. There were no witnesses and no confession

(only an ambiguous offer to plead guilty), and the state

produced no blood-type or DNA evidence.

Whether the references to Skiba’s character tended to

mislead the jury or prejudice the defendant is more difficult

to determine. Although the prosecutor’s remarks did not

misstate the evidence, they were in a sense misleading

concerning the law. The prosecutor’s explicit juxtaposition

of the defendant’s constitutional rights (like the presumption

of innocence) with the “rights” of the decedent (like “the right

to go on to college” or “the right to walk down the aisle”)

suggested to the jury that certain nonexistent rights of the

decedent somehow balanced or nullified the constitutional

rights of the defendant. On the other hand, although a defense

objection to the prosecutor’s remarks was overruled, the trial

court correctly instructed the jury on the law, specifically

stating: “You must not permit sympathy or bias, prejudice or

favoritism for either side to affect your judgments.”
No. 01-3122 Frazier v. Huffman 17

A similar analysis applies to the fourth and final alleged

incident of prosecutorial misconduct during the guilt phase,

the placing of an empty chair before the jury during the

prosecutor’s closing argument to “represent” Skiba. We

again agree with the Ohio Supreme Court’s conclusion that

this conduct was improper. Frazier, 652 N.E.2d at 1015

(“We agree with appellant that the use of the empty chair was

excessive.”) It was also deliberate. The empty chair,

however, was not the focus of the prosecutor’s argument, and

the state trial court properly instructed the jury not to be

influenced by sympathy, bias, or prejudice.

Were we to consider Frazier’s claim of prosecutorial

misconduct in the first instance, after weighing all of the

pertinent factors, the possibility exists that we might be

persuaded that he was denied a fundamentally fair trial. But

that is not our task. Rather, our inquiry is limited to deciding

whether the Ohio Supreme Court’s contrary determination

was an unreasonable application of clearly established federal

law. Because the direction in which the Carter factors point

is neither obvious nor unambiguous, we conclude that the

Ohio Supreme Court’s resolution of Frazier’s prosecutorialmisconduct claim was not unreasonable. See Macias v.

Makowski, 291 F.3d 447, 454 (6th Cir. 2002) (holding that,

although the court “might have concluded that the

prosecutor’s comments violated [the petitioner’s] due process

rights,” the state court of appeals’s contrary conclusion was

not unreasonable, where two factors weighed in favor of the

petitioner’s claim and two weighed against 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 penalty phase

of the trial, a right guaranteed by the Sixth Amendment to the

United States Constitution. Strickland v. Washington, 466

U.S. 668, 684 (1984). Once a defendant has been convicted

of a capital offense in Ohio, the jury “shall consider, and

weigh against the aggravating circumstances proved beyond

18 Frazier v. Huffman No. 01-3122

a reasonable doubt, the nature and circumstances of the

offense, the history, character, and background of the

offender” and seven other factors, including “[w]hether, at the

time of committing the offense, the offender, because of a

mental disease or defect, lacked substantial capacity to

appreciate the criminality of the offender’s conduct or to

conform the offender’s conduct to the requirements of the

law.” Ohio Rev. Code § 2929.04(B). A sentence of death is

appropriate only if the jury is unanimously convinced beyond

a reasonable doubt that the aggravating factors outweigh the

mitigating factors. Id. § 2929.03(D)(2).

The jury had already found Frazier guilty beyond a

reasonable doubt of the death-penalty-specification charges.

Because no mitigation proof was introduced by Frazier at the

guilt phase of the trial, he was therefore virtually guaranteed

a sentence of death unless he could produce sufficient

mitigation evidence at the penalty phase to generate

reasonable doubt in the mind of at least one juror about

whether the aggravating factors outweighed the mitigating

factors. But the sum total of the evidence presented on

Frazier’s behalf during the penalty phase of the trial was the

following unsworn statement: “Ladies and gentlemen, I know

you found me guilty, and 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 establishing constitutionally ineffective

assistance of counsel is two-fold. A defendant must first

show that the performance of his or her counsel was “below

an objective standard of reasonableness.”Strickland, 466 U.S.

at 688. In order to avoid second-guessing trial counsel’s

strategic decisions, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689 (internal quotation marks

omitted). The second requirement of an ineffective assistance
No. 01-3122 Frazier v. Huffman 19

claim is that “[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.

Frazier’s ineffective-assistance claim was rejected by the

Ohio Court of Appeals on the basis of the first prong of

Strickland. The court explained: “From the record, it can

reasonably be concluded trial counsel were appraised of the

purported brain injury from their review of medical records;

however, as a matter of trial strategy counsel deemed this

avenue of defense unworthy of further pursuit.” State v.

Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.

Dec. 11, 1997).

The “purported brain injury” referred to above is the

damage to Frazier’s brain that occurred as the result of a 1987

fall from a ladder. Affidavits from postconviction experts on

this matter indicate that Frazier suffers from a functional brain

impairment. According to one, Frazier has a “significant

history for head trauma” to the “frontal lobe” of his brain,

which is “the site of impulse control, social judgment and

reasoning.” Frazier himself has described “a change in

decision-making abilities after his head trauma.” These

reports also suggest that a correlation could exist between this

injury and Frazier’s criminal conduct. The state has not

challenged the contention that Frazier’s trial counsel could

have developed this same information had they conducted a

reasonable investigation.

We can conceive of no rational trial strategy that would

justify the failure of Frazier’s counsel to investigate and

present evidence of his brain impairment, and to instead rely

exclusively on the hope that the jury would spare his life due

to any “residual doubt” about his guilt. This failure was not

due to counsel’s ignorance of Frazier’s brain injury. To the

contrary, the Ohio Court of Appeals acknowledged that trial

counsel were actually aware of Frazier’s brain impairment

20 Frazier v. Huffman No. 01-3122

because they saw his medical records, yet counsel failed to

investigate the matter or present any evidence regarding the

same.

Under Strickland, “strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professionaljudgmentssupport the limitations

on investigation.” 466 U.S. at 690-91. This court has

commented when evaluating facts similar to those here that

“the inadequacy of the attorney’s investigation . . . was

manifest.” Campbell v. Coyle, 260 F.3d 531, 553 (6th Cir.

2001) (distinguishing the facts of Campbell, where trial

counsel had the defendant evaluated by a mental health

professional who did not find any mental illness, from those

of Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), where trial

counsel had actual notice of the defendant’s mental health

problems but failed to investigate them). We do not believe

that any reasonable attorney who saw the medical records

indicating Frazier’s brain injury would have declined to

investigate the matter. At a bare minimum, a reasonable

attorney would have compared the records with the medical

literature on brain damage, elicited information from Frazier

himself about the injury and its effects on him, or presented

the records on Frazier to someone who could competently

evaluate them. To do none of these things after seeing

Frazier’s medical records was unreasonable.

Our conclusion is bolstered by the Supreme Court’s recent

decision in the capital case of Wiggins v. Smith, 123 S. Ct.

2527 (2003). Trial counsel in Wiggins knew from their

client’s presentence report that he had lived in “misery as a

youth,” but they did not investigate his life history any

further. Id. at 2536. The Maryland Court of Appeals was of

the opinion that this performance comported with Strickland,

but the United States Supreme Court disagreed and held that

the state court’s contrary conclusion was unreasonable. Id. at

2538. In Wiggins, as in the present case, “any reasonably

competent attorney would have realized that pursuing these

leads”—in Wiggins’s case, allusions to his horrible
No. 01-3122 Frazier v. Huffman 21

childhood; in Frazier’s, medical records of his brain

injury—“was necessary to making an informed choice among

possible defenses . . . . Indeed, counsel uncovered no

evidence in their investigation to suggest that a mitigation

case, in its own right, would have been counterproductive, or

that further investigation would have been fruitless.” Id. at

2537.

Furthermore, as both this court and the Ohio Supreme

Court have noted, residual doubt is not a mitigating factor

under Ohio law. Coleman v. Mitchell, 268 F.3d 417, 447 (6th

Cir. 2001); State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio

1997). This court nevertheless concluded in Scott v. Mitchell,

209 F.3d 854, 881 (6th Cir. 2000), albeit in dicta, that the

pursuit of a residual-doubt strategy in that case was

reasonable because the defendant’s extensive criminal history

would have come to light if the jury had heard about his

background. Cf. Abdur’Rahman v. Bell, 226 F.3d 696, 707-

08 (6th Cir. 2000) (concluding that “trial counsel were

ineffective in failing to further investigate the background of

the accused,” but finding no prejudice where “it probably

would not have been the most prudent trial strategy to use

proof of appellant’s history of violent behavior and anti-social

personality disorders at either the guilt or innocence phase or

at the sentencing phase of the trial”). No such concerns could

have justified the approach in the present case, however,

where the jury had already heard considerable evidence about

Frazier’s rape of Skiba.

The prosecutor himself aptly summarized the strategy of

Frazier’s trial counsel during the penalty phase. After quoting

Frazier’s unsworn denial of guilt, the prosecutor stated:

“That’s it. Fifteen seconds of mitigation. Now, we heard a

moment ago about factors of mitigation that you find.

Apparently they don’t know.” This summary strikes us as

accurate to the extent that it reflects the fact that Frazier’s

counsel failed to offer any evidence during the penalty 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

performed below an objective standard of reasonableness.

The Ohio Court of Appeals, on the other hand, implicitly

held that Frazier’s trial counsel performed at or above an

objective standard of reasonableness when it opined that “as

a matter of trial strategy counsel deemed this avenue of

defense unworthy of further pursuit.” We have concluded the

opposite. The question under AEDPA, then, is whether the

state court applied the first prong of Strickland unreasonably,

or only erroneously. See Bell v. Cone, 122 S. Ct. 1843, 1852

(2002) (clarifying that the question of whether a state court’s

application of Strickland is unreasonable is conceptually

distinct from the underlying question of whether counsel’s

performance fell short of an objective standard of

reasonableness).

Three factors were cited by the Ohio Court of Appeals in

support of its conclusion:

1) counsel’s argument to the trial court that a

psychologist would be used merely to interpret the

mitigation expert’s findings; 2) counsel’s filing of the

motion requesting a limitation on references to

mitigation factors to only those upon which appellant

ultimately relied; and 3) the thorough and professional

manner in which counsel conducted appellant’s defense

during both the guilt and the penalty phase of appellant’s

trial.

Frazier, 1997 WL 764810, at *6. The first two factors,

however, have no relevance in explaining how the strategy

ultimately pursued by Frazier’s counsel was reasonable.

Although the third factor is relevant in determining whether

the trial strategy was reasonable, it is largely conclusory and

again provides no theory upon which trial counsel’s

“strategy” could have been based. We do not believe that it

is reasonable to infer that a trial strategy, which is on its face

irrational and for which no justification has ever been
No. 01-3122 Frazier v. Huffman 23

produced, becomes reasonable simply because of “the

thorough and professional manner” in which trial counsel

otherwise performed.

We note, moreover, that the theory of Frazier’s defense

during the guilt phase of his trial was that Frazier did not

commit the murder. He presented no insanity or diminished

capacity defense. The jury therefore did not hear any

evidence about Frazier’s brain injury during the guilt phase of

the trial. Indeed, it heard no evidence whatsoever during the

guilt phase of the trial that could bear on the issue of

mitigation. As the prosecutor accurately commented at the

opening of the penalty phase: “The State’s job is over. The

proof of the aggravating circumstances here is monumental,

unrebutted, and it is no mere allegation any longer. It is fact,

since the conclusion of this case. There has been absolutely

zero, zilch, nil evidence of mitigation.” This being the

situation, it appears to us that competent trial counsel for

Frazier would have realized that their client had everything to

gain and nothing to lose by introducing evidence of his brain

injury at the penalty phase of the case. Yet they sat on their

hands.

The instant case, therefore, is easily distinguishable from

the ruling in Bell, where the defendant’s trial counsel also

introduced no evidence during the penalty phase of the trial.

122 S. Ct. at 1848. The state court concluded that this trial

strategy passed muster under Strickland, and the Supreme

Court held that the state court’s conclusion was not

unreasonable. Id. at 1853-54. Crucial to this determination,

however, was the fact that the defendant had already

introduced his best mitigation evidence during the guilt phase

of the trial:

Because the defense’s theory at the guilt phase was not

guilty by reason of insanity, counsel was able to put

before the jury extensive testimony about what he

believed to be the most compelling mitigating evidence

in the case—evidence regarding the change his client

24 Frazier v. Huffman No. 01-3122

underwent after serving in Vietnam; his drug

dependency, which apparently drove him to commit the

robbery in the first place; and its effects. . . . Defense

counsel advised the jury that the testimony of the experts

established the existence of mitigating circumstances,

and the trial court specifically instructed the jury that

evidence of a mental disease or defect insufficient to

establish a criminal defense could be considered in

mitigation.

Id. Frazier’s counsel, in contrast, introduced absolutely no

mitigating evidence during the guilt phase of the trial.

In sum, no reason at all has been adduced to justify the

failure of Frazier’s trial counsel to investigate and present

evidence of his brain impairment, and to instead rely

exclusively on an argument of residual doubt. The state court

did not articulate one. Nor can we fathom one. Absent any

reason to explain or justify such a trial strategy, we conclude

that the state court’s determination that Frazier’s trial counsel

had performed in a competent manner during the penalty

phase was not simply erroneous, but unreasonable. See

Wiggins, 123 S. Ct. at 2538 (rejecting as unreasonable a state

court’s determination that trial counsel performed adequately

where, although no trial strategy could be articulated to justify

counsel’s unreasonable failure to investigate and present

evidence of their client’s terrible childhood, the state court

“merely assumed that the investigation was adequate”).

Habeas relief is thus warranted if Frazier can show that

there is a reasonable probability that, but for his counsel’s

deficient performance, the result of the penalty phase would

have been different. See id. at *16 (“In order for counsel’s

performance to constitute a Sixth Amendment violation,

petitioner must show that counsel’s failures prejudiced his

defense. . . . [O]ur review is not circumscribed by a state

court conclusion with respect to prejudice, as neither of the

state courts below reached this prong of the Strickland

analysis.”). To make this showing, Frazier must direct us to
No. 01-3122 Frazier v. Huffman 25

mitigating evidence that could have been presented and that

is sufficient to undermine our confidence in the outcome of

the penalty phase. Strickland v. Washington, 466 U.S. 668,

694 (1984). Furthermore, AEDPA requires Frazier to have

developed the factual bases for his claims during

postconviction proceedings in state court. Alley v. Bell, 307

F.3d 380, 386 (6th Cir. 2002) (“These rules apply both to

entirely new legal claims and new factual bases for relief; for

a claim to be considered exhausted, the habeas petitioner must

have fairly presented to the state courts the substance of his

federal habeas claim.”) (internal quotation marks omitted).

We agree with the state that Frazier failed to develop any

facts concerning his general history, character, and

background in the state postconviction proceedings.

Accordingly, we cannot consider the facts that Frazier was

abandoned as a child or that he has an abnormal response to

stress. The state concedes, however, that Frazier presented

evidence concerning his brain injury to the state courts during

the postconviction proceedings. Although information about

the nature and severity of the injury was less thoroughly

developed in those proceedings than it is now, sufficient facts

were presented to indicate the existence of evidence

concerning Frazier’s brain injury that could have been

developed and presented to the jury during the penalty phase.

We must therefore examine whether the existence of this

evidence is sufficient to undermine our confidence in the

result of the penalty-phase proceeding. Frazier’s trial counsel

presented only his unsworn denial of guilt, which does not

amount to mitigating circumstances under Ohio law. This

virtually assured him a sentence of death. Had trial counsel’s

performance not been deficient, the jury could have heard

evidence of Frazier’s fall from a ladder and associated brain

injury, which could have correlated with his criminal conduct.

Such evidence would have constituted mitigating

circumstances under Ohio law. Ohio Rev. Code

§ 2929.04(B).

26 Frazier v. Huffman No. 01-3122

In concluding that Frazier had not shown prejudice, the

district court observed in a footnote “that the evidence of

record, in addition to enabling the jury to find the petitioner

guilty beyond a reasonable doubt, shows that he acted with

deliberation and forethought . . . . These acts do not manifest

impulsive or uncontrolled behavior.” This analysis, however,

does not account for the probability that the jury would find

that a murderer who suffers from a functional brain

impairment is less morally culpable than one who does not,

even if the brain impairment did not “cause” Frazier to

murder Skiba. 

Indeed, we think that the circumstances of the crime were

amenable to such mitigating evidence. Competent trial

counsel could have pointed out, for example, that the bloodstained, broken knife found beside Skiba’s corpse came from

her grandparents’ silverware, and that Skiba had been

sleeping with a knife under her pillow. Furthermore, during

the jailhouse 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 when he went to her grandparents’ home on the

morning of the murder. Frazier shook his head no in response

to that question. Trial counsel could thus have depicted a

scenario in which Frazier went unarmed to Skiba’s

grandparents’ home to confront or threaten her, not to kill.

But when he encountered the knife-wielding Skiba, Frazier

succumbed to the stress of the moment, grabbed the knife

from her hands, and wildly stabbed Skiba far more times than

would have been necessary to kill her.

Such a scenario fits the facts of the crime and is made

plausible by the existence of a functional brain impairment,

which, although it might not have turned Frazier into a cold

and calculating murderer, could have impaired his ability to

deal with stressful or emotional situations, even ones of his

own making. This is but one example of how competent trial

counsel might have utilized the evidence of Frazier’s

functional brain impairment to generate reasonable doubt that
No. 01-3122 Frazier v. Huffman 27

the aggravating circumstances outweighed the mitigating

circumstances in the present case. We are by no means

suggesting that the presentation of such evidence and

argument would have assured Frazier the avoidance of the

death penalty, but we are saying that this outcome is within

the realm of reasonable probability as defined in Strickland.

466 U.S. at 694.

As the Supreme Court observed in Williams v. Taylor, 529

U.S. 362, 398 (2000): “Mitigating evidence unrelated to

dangerousness may alter the jury’s selection of penalty, even

if it does not undermine . . . the prosecution’s death-eligibility

case.” In Williams, the Court recognized that “the reality that

[the defendant] was ‘borderline mentally retarded[]’ might

well have influenced the jury’s appraisal of his moral

culpability.” Id. We conclude that the same is true here. Had

the jurors been confronted with the mitigating evidence of

Frazier’s brain injury, the probability that at least one juror

would not have decided that the aggravating circumstances of

the case outweighed the mitigating circumstances beyond a

reasonable doubt “is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; see

also Wiggins v. Smith, 123 S. Ct. 2527, 2543 (2003) (“Had

the jury been able to place petitioner’s excruciating life

history on the mitigating side of the scale, there is a

reasonable probability that at least one juror would have

struck a different balance.”); Ohio Rev. Code § 2929.03(D)(2)

(requiring jury unanimity for the imposition of a death

sentence). We therefore hold that Frazier has established that

his right to the effective assistance of counsel was violated at

the penalty phase of his trial, and that the state court’s

conclusion to the contrary is an unreasonable application of

clearly established Supreme Court precedent.

The dissent does not quibble with the foregoing analysis on

the merits. It contends instead that “Frazier’s claim of

ineffective assistance of counsel is procedurally defaulted and

this court consequently has no business considering the merits

of that claim.” (Dissenting Op. at 34) According to the

28 Frazier v. Huffman No. 01-3122

dissent, the Ohio Court of Appeals never reached the merits

because it held that the claim was barred by the state-law

doctrine of res judicata. (Id.)

This will surely come as a surprise to the state, which

(1) conceded in its brief that “Frazier did present his ‘brain

damage’ claim to the state courts,” and (2) then proceeded to

argue that “the Ohio court’s finding that trial counsel acted

competently in this regard 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 procedural-default defense to every instance of

ineffective assistance alleged by Frazier. Instead, the state

made clear its position that Frazier had forfeited any

ineffective-assistance claim premised upon his abandonment

as a child or his abnormal response to stress, and that his

preservation of the claim based upon his brain damage did not

permit him to revive his other instances of ineffective

assistance.

As the above-quoted language demonstrates, however, the

state did not contend that Frazier procedurally defaulted his

ineffective-assistance claim based upon his counsel’s failure

to investigate and present evidence of his brain damage. The

state’s failure to raise the issue of procedural default with

respect to this instance of ineffective assistance is itself

sufficient to dispense with our consideration of the question.

“A court of appeals is not ‘required’ to raise the issue of

procedural default sua sponte.” Trest v. Cain, 522 U.S. 87,

89 (1997).

Even if the state had not waived its procedural-default

defense, moreover, we do not believe that the defense would

be applicable in this 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 judgment in the

case clearly and expressly states that its judgment rests on a

state procedural bar.” Harris v. Reed, 489 U.S. 255, 263

(1989) (internal quotation marks omitted). Contrary to the
No. 01-3122 Frazier v. Huffman 29

dissent’s interpretation of the discussion by the Ohio Court of

Appeals, we find no clear 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 concluded its analysis of

Frazier’s ineffective-assistance claim as follows:

In view of the fact that appellant had the assistance of at

least three experienced attorneys during all phases of the

trial proceedings, and mindful that a reviewing court will

not second-guess what are essentially matters of trial

strategy, neither the record nor appellant’s evidence

provided dehors the record supported his claim.

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

above statement can be fairly characterized as a determination

that Frazier had attempted to present evidence that should

have been presented on direct appeal. Rather, the Ohio

court’s conclusion goes to the merits of Frazier’s claim.

Disposing of Frazier’s ineffective-assistance claim on the

merits was also sensible as a matter of state law. The Ohio

Supreme Court has held that “[w]here defendant, represented

by new counsel upon direct appeal, fails to raise therein the

issue of competent trial counsel and said issue could fairly

have been determined without resort to evidence dehors the

record, res judicata is a proper basis for dismissing

defendant’s petition for postconviction relief.” State v. Cole,

443 N.E.2d 169, 170 (Ohio 1982) (syllabus). According to

the dissent, the Ohio Court of Appeals decided that Frazier’s

claim was barred by res judicata after concluding that the

evidence provided by his postconviction experts was not new

because trial counsel had been “appraised of the purported

brain injury.” (Dissenting Op. at 36 (quoting Frazier, 1997

WL 764810, at *6)) Such a decision, however, would have

been a mistaken application of Cole, because, as our own

analysis of Frazier’s claim demonstrates, the simple fact that

trial counsel “had been appraised of the purported brain

30 Frazier v. Huffman No. 01-3122

injury” does not in and of itself establish ineffective

assistance of counsel. We thus conclude that the dissent’s

reading of the decision by the Ohio Court of Appeals is

plausible, but that it is neither the only nor the best

interpretation.

The Ohio Court of Appeals’s decision also contains no

express statement that its conclusion on the merits of

Frazier’s ineffective-assistance claim is an alternative

holding. This contrasts with that court’s disposition of

another argument raised by Frazier concerning “the trial

court’s failure to grant appellant’s motion for a psychological

expert in mitigation,” as to which the appellate court

specifically stated that “the trial court properly applied the

doctrine of res judicata.” Frazier, 1997 WL 764810, at *6.

In sum, the state did not raise the issue of procedural

default with respect to the “brain damage” claim by Frazier

upon which we grant relief. Alternatively, we do not believe

that the Ohio Court of Appeals clearly and expressly rested its

decision regarding this claim on an independent state

procedural ground. We are therefore unpersuaded by the

thoughtful argument of the dissent.

E. Remaining claims

Frazier advances sixteen other claims on appeal that merit

substantially less discussion. 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 therefore will not address

Frazier’s claim that he was entitled to the appointment of an

independent psychological expert for the penalty phase, or his

claim that the trial court’s instruction to the jury at the penalty

phase was unconstitutional.

Of the remaining fourteen claims, the only one that

deserves further discussion by this court is Frazier’s argument

that his rights under the Ex Post Facto Clause, U.S. Const.
No. 01-3122 Frazier v. Huffman 31

art. I, § 9, cl. 3, were violated. As detailed in Part I.A. above,

Frazier, while in jail and without a lawyer, requested and

received a meeting with two police officers and Prosecutor

McGinty on November 14, 1990. Frazier essentially offered

to plead guilty to the rape and murder of Skiba in exchange

for a definite prison term. That offer played prominently in

the state’s presentation of its case. Frazier argues that the

admission of evidence concerning his offer was made

possible only by a change in the Ohio rules of evidence that

occurred after the offense but prior to trial, resulting in a

violation of the Ex Post Facto Clause.

In November of 1990, when Skiba was murdered, Rule 410

of the Ohio Rules of Evidence provided that evidence of “an

offer to plead guilty or no contest to the crime charged or to

any other crime, or statements made in connection with, and

relevant to, any of the foregoing . . . offers, is not admissible

in any . . . criminal proceeding against the person who made

the offer.” Rule 410 was revised in July of 1991. The revised

version, in effect during Frazier’s trial, prohibited the

introduction of evidence concerning “[a]ny statement made in

the course of plea discussions in which counsel for the

prosecuting authority or for the defendant was a participant

and that do not result in a plea of guilty or that result in a plea

of guilty later withdrawn.” Ohio R. Evid. 410(5).

Every court to have considered Frazier’s ex post facto claim

has resolved it by concluding that, because the police officers

and the prosecutor told Frazier that they could not negotiate

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

November 14, 1990. We find this analysis problematic.

Although current Rule 410 requires the occurrence of plea

discussions in order to activate the prohibition, former Rule

410 does not. The former rule instead references only “an

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 that Frazier’s offer to plead guilty was admissible under

current Rule 410, but not under former Rule 410. Of course,

it is the contrary judgment of the Ohio Supreme Court that

32 Frazier v. Huffman No. 01-3122

counts in construing 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

on November 14, 1990 was simply not a plea discussion. We

would reach the same result regardless of which version of

Evid. R. 410 we applied.”) (emphasis omitted).

We add, moreover, that the Ex Post Facto Clause is not

implicated by the change to Rule 410. Frazier argues that the

Clause is violated by “[e]very law that alters the legal rules of

evidence, and receives less, or different testimony, than the

law required at the time of the commission of the offence, in

order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.)

386, 390 (1798) (opinion of Chase, J.). But the change to

Rule 410 did not alter the quantum of evidence necessary to

convict Frazier. Rather, it expanded the range of admissible

testimony. The Supreme Court explained the difference over

a century ago:

Statutes which simply enlarge the class of persons who

may be competent to testify in criminal cases are not ex

post facto in their application to prosecutions for crimes

committed prior to their passage; for they do not . . . alter

the degree, or lessen the amount or measure, of the proof

which was 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 addition to falling short under AEDPA,

therefore, Frazier’s ex post facto claim fails on the merits.

The district court disposed of Frazier’s thirteen remaining

claims in a careful and detailed manner. These claims range

from the contention that Ohio’s statutory scheme of capital

punishment is unconstitutional to the argument that the

instruction on reasonable doubt given by the trial court was

constitutionally deficient. Our discussion of these other

claims would be duplicative and serve no useful purpose. We
No. 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. CONCLUSION

For all of the reasons set forth above, we REVERSE in

part the judgment of the district court, GRANT Frazier a

conditional writ of habeas corpus that will result in the

vacation of his death sentence unless the state of Ohio

commences a new penalty-phase trial against him within 180

days from the date that the judgment in this matter becomes

final, and REMAND the case for further proceedings

consistent herewith.

34 Frazier v. Huffman No. 01-3122

_____________________________________________

CONCURRING IN PART, DISSENTING IN PART

_____________________________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in

part and dissenting in part. The majority entertains the

question of whether Frazier received the effective assistance

of counsel at the mitigation stage of his trial, despite the fact

that the Ohio courts never reached that question because, they

held, Frazier’s claim was barred by the state law doctrine of

resjudicata. Because Frazier’s claim of ineffective assistance

of counsel is procedurally defaulted and this court

consequently has no business considering the merits of that

claim, I respectfully dissent from the majority’s holding in

Part II.D of its opinion. To the extent that the claims

addressed in Parts II.C and II.E are not waived or

procedurally defaulted, I concur in the majority’s treatment of

those claims, see 28 U.S.C. § 2254(b)(2) (“An application for

a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State”), as I do in the

remainder of its opinion.

I

Before addressing the legal arguments the majority makes

in Part II.D, it is important to understand the treatment of

Frazier’s ineffective assistance of counsel claim by the Ohio

courts. After his conviction and sentencing in state trial court,

Frazier appealed to the Ohio Court of Appeals, where he

raised fourteen assignments of error. In none of those

assignments did Frazier mention the issue of the effectiveness

of his trial counsel, despite the fact that Frazier’s attorneys on

appeal were not the same lawyers that represented him at
No. 01-3122 Frazier v. Huffman 35

1

Frazier did challenge the constitutionality of several Ohio statutes

on the basis that those statutes worked to deprive him of the effective

assistance of counsel. However, he did not argue on direct appeal that his

counsel were ineffective.

2

Ohio Rev. Code § 2953.21 provides, when a prisoner has filed for

post-conviction relief, that “[u]nless the petition and the files and records

of the case show the petitioner is not entitled to relief, the court shall

proceed to a prompt hearing on the issues . . . .” § 2953.21(E) (1997).

However,

[b]efore granting a hearing on a petition filed under division (A)

of this section, the court shall determine whether there are

substantive grounds for relief. In making such a determination,

the court shall consider, in addition to the petition, the

supporting affidavits, and the documentary evidence, [and] all

the files and records pertaining to the proceedings against the

petitioner . . . .

§ 2953.21(C).

trial.1 On appeal by right to the Ohio Supreme Court, Frazier

once again failed to raise his claim of ineffective assistance of

counsel.

After the United States Supreme Court denied Frazier’s

petition for a writ of certiorari, he brought a petition under

Ohio Rev. Code § 2953.21 (1997),2 to vacate or set aside his

sentence in the Cuyahoga County, Ohio, Court of Common

Pleas, and asserted for the first time that his trial counsel were

ineffective because they failed to investigate and present

mitigating evidence at the sentencing phase of his trial. The

Court of Common Pleas, without addressing the merits of this

claim, stated as follows:

Consistent with the principles of res judicata, matters

which have been or should have been raised on direct

appeal may not be considered in post-conviction

proceedings. State v. Ishmail (1981), 67 Ohio St. 2d 16.

In addition, where a defendant, represented by new

counsel on direct appeal, fails to raise the issue of

competent trial counsel and said issue could fairly have

36 Frazier v. Huffman No. 01-3122

3

Ohio law provides that the procedural bar of res judicata does not

apply in this context if the petitioner sets forth, in support of his newly

raised claim, evidence that was not available at trial or on direct appeal,

and without which the defense could not have been expected to raise the

new claim. See State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982).

4

The majority agrees with the Ohio courts’ factual finding that

Frazier’s trial attorneys knew enough about his head injury to present that

evidence for mitigation purposes: “Although information about the nature

and severity of the injury was less thoroughly developed in those [state

postconviction] proceedings than it is now, sufficient facts were presented

to indicate the existence of evidence concerning Frazier’s brain injury that

could have been developed and presented to the jury during the penalty

phase.” Supra, at 25.

been determined without evidence [beyond] the record,

res judicata 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 were different from his

counsel on direct appeal, “[a]ny [in]effective assistance of

counsel [claim] concerning trial counsel’s performance

should have been raised on direct appeal in accordance with

Cole.” Id. The court therefore granted the State’s motion to

dismiss, and denied Frazier’s request for an evidentiary

hearing.

The Ohio Court of Appeals affirmed. After examining the

“new evidence” of his “organic brain impairment” that Frazier

claimed was unavailable at trial,3 the court held that the

evidence was not new, and hence did not permit Frazier to

overcome the bar of res judicata. The court noted that “it can

reasonably be concluded trial counsel were appraised of the

purported brain injury from their review of the medical

records; however, as a matter of trial strategy counsel deemed

this avenue of defense unworthy of further pursuit.”4State v.

Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.

Dec. 11, 1997). This conclusion, the court said, was
No. 01-3122 Frazier v. Huffman 37

5

The majority correctly notes that “[t]he first two factors . . . have no

relevance in explaining how the strategy ultimately pursued by Frazier’s

counsel was reasonable.” Supra, at 22. But this statement indicates that

the majority misunderstands the legal ana lysis that the Ohio Court of

Appeals unde rtook. The Ohio Court of Appeals was not seeking to

support the “reasonableness” of the trial counsel’s investigatory tactics (or

lack thereof); rather, the court was explaining the basis for its conclusion

that trial counsel was aware of evidence Frazier claimed was not available

at trial, a matter to which the first two factors are obviously relevant.

“reinforced” by three factors, namely, (1) counsel’s argument

that a psychologist would merely interpret the findings of the

mitigation expert; (2) counsel’s filing of a motion to limit

reference to mitigating factors; and (3) “the thorough and

professional manner in which counsel conducted appellant’s

defense . . . .”5 Id. These statements by the Ohio Court of

Appeals were not made in the context of discussing the merits

of Frazier’s claim of ineffective assistance of trial counsel,

but in the context of determining whether that ineffective

assistance claim was barred by the state law doctrine of res

judicata. The Common Pleas Court, without reaching the

merits of that claim, had granted the state’s motion to dismiss

Frazier’s post-conviction petition, holding that the claim was

barred by res judicata. The Court of Appeals affirmed that

judgment, mentioning the merits only to the extent of

explaining their conclusion that the “new”evidence of head

injury Frazier urged the court to rely on in order to get around

the res judicata bar was not new at all.

II

Respondent Huffman raises Frazier’s “failure to present the

[ineffective assistance of counsel] claim and the facts in

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), federal

habeas courts are not free to undertake a plenary review of all

claims brought pursuant to 28 U.S.C. § 2254. See, e.g.,

Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“a state

38 Frazier v. Huffman No. 01-3122

decision resting on an adequate foundation of state

substantive law is immune from review in the federal

courts”). Instead, this court must first consider whether

Frazier’s ineffective assistance of counsel claim is properly

before it prior to discussing the merits of that claim.

This issue “concerns the respect that federal courts owe the

States and the States’ procedural rules when reviewing the

claims of state prisoners in federal habeas corpus.” Coleman

v. Thompson, 501 U.S. 722, 726 (1991). The Supreme Court

has held that “[w]here the petitioner . . . failed properly to

raise his claim on direct review, the writ [of habeas corpus] is

available only if the petitioner 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 rule

applies when a state court, relying upon a state rule of law,

refused on collateral appeal to consider a claim that the

petitioner could have raised on direct review, and the

petitioner now raises the same claim on habeas appeal.

Teague v. Lane, 489 U.S. 288, 297-98 (1989) (holding that

petitioner’s claim, which he failed to raise on direct review in

state court, was procedurally defaulted because the Illinois

appeals court refused, on the basis of a state law doctrine of

res judicata, to consider the claim in a state collateral

proceeding); Coleman v. Mitchell, 268 F.3d 417, 428-29 (6th

Cir. 2001) (Clay, J.) (holding that Ohio’s doctrine of “res

judicata under § 2953.21 [is] an adequate and independent

state ground justifying foreclosure of constitutional claims”

in habeas proceedings); see generally Coleman v. Thompson,

501 U.S. at 729-30 (“The [independent and adequate state

ground] doctrine applies to bar federal habeas when a state

court declined to address a prisoner’s federal claims because

the prisoner had failed to meet a state procedural requirement.

In these cases, the state judgment rests on independent and

adequate state procedural grounds.”).

This court’s initial obligation with regard to Frazier’s

ineffective assistance of counsel claim, which the Ohio courts
No. 01-3122 Frazier v. Huffman 39

6While the Ohio Supreme Court was actually the last state court to

rule on Frazier’s collateral appeal, the Court summarily “decline[d]

jurisdiction to hear the case and dismisse[d] the appeal as not involving

any substantial constitutional question.” J.A. at 345 (Ohio Supreme Court

order). This court therefore looks to the Ohio Court of Appeals decision

as the final reasoned state court decision for purposes of considering

procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)

(holding that a federal court looks through an unexplained order “to the

last reasoned decision,” and does not assume that the unexplained order

held was barred by res judicata, is to determine whether the

claim is in fact procedurally defaulted. First, we must

consider whether Ohio’s procedural bar to Frazier’s raising

his constitutional claim was “firmly established and regularly

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

v. Georgia, 498 U.S. 411, 424 (1991). It clearly was. State

v. Cole, 443 N.E.2d 169 (Ohio 1982), the case on which the

Court of Common Pleas relied, and which was subsequently

cited by the Ohio Court of Appeals as support for its holding

on res judicata, 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 when we

held that “application of res judicata . . . is an adequate and

independent state ground for barring habeas review of

constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429.

Second, we must determine whether the state’s procedural

rule barring review is an adequate and independent state

ground sufficient to foreclose review of constitutional claims.

I have already cited authority establishing that Ohio’s

doctrine of res judicata meets this requirement. See id.; see

also Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003)

(reaffirming Coleman v. Mitchell’s holding that Ohio’s

doctrine of res judicata is an adequate and independent 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

lifts the prior holding that the claim at issue was procedurally barred).

35. “[A] procedural default does not bar consideration of a

federal claim on either direct or habeas review unless the last

state court rendering a judgment in the case clearly and

expressly states that its judgment rests on a state procedural

bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (internal

quotations omitted). So long as the state court does so, its

finding of procedural default precludes consideration by a

federal court even when the state court also analyzed the

defaulted claim under federal law. Id. at 264 n.10. In this

case, the majority uses as its tenuous springboard to launch

into the merits of Frazier’s ineffective assistance

claim—without ever addressing whether the claim was

procedurally defaulted—a patently incorrect characterization

of the Ohio Court of Appeals’ ruling: “Frazier’s ineffectiveassistance claim was rejected by the Ohio Court of Appeals

on the basis of the first prong of Strickland.” Supra, at 19. In

fact, as I discussed above, the Ohio Court of Appeals held that

“the trial court properly applied the doctrine of res judicata.”

Frazier, 1997 WL 764810, at *6. That court never mentioned

Strickland or any other federal court precedents pertaining to

ineffective assistance of counsel (with the exception of

one—Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995)—upon

which Frazier relied but that contained facts “inapposite” to

those of the present case). Even if the Ohio Court of Appeals

had analyzed the merits of Frazier’s ineffective assistance

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

res judicata is sufficient to bar our consideration of that claim

unless Frazier can show cause and prejudice.

Finally, we must examine whether the Ohio Court of

Appeals, which applied the doctrine of res judicata and

rejected Frazier’s contention that his claim was based upon

evidence outside the record, actually “discuss[ed] any of that

evidence, ma[d]e specific factual findings on the matter, or

provide[d] any reasoned analysis” to uphold its decision.

Williams v. Coyle, 260 F.3d 684, 696 (6th Cir. 2001).
No. 01-3122 Frazier v. Huffman 41

“Without such analysis, we are unwilling to rule that the

claim is procedurally barred.” Id. In this case, the Ohio

Court of Appeals discussed the “new” evidence put forth by

Frazier, including the affidavit of psychologist Sharon L.

Pearson, who opined that Frazier should have been examined

by a licensed psychologist as part of his mitigation defense.

Frazier, 1997 WL 764810, at *6. Moreover, the court

explained—in the portion of its opinion that the majority

confuses for a Strickland analysis—the basis for its

conclusion that Frazier’s trial counsel were aware of Frazier’s

head injury and therefore why the evidence dehors the record

was not sufficient to overcome the procedural bar of res

judicata. Id. The Ohio Court of Appeals’ analysis was more

than sufficient to comply with the requirements of Williams

v. Coyle.

Therefore, this court is required to determine whether

Frazier can show both cause and prejudice for his failure to

comply with Ohio’s procedural rule. Clearly, he cannot.

Frazier has not shown any cause for his failure to raise on

direct appeal his claim of ineffective assistance of counsel. In

his brief before this court, he fails to address the issue of

procedural default at all, and instead launches directly into a

discussion of the merits of his claim. “We . . . require a

prisoner to demonstrate cause for his state-court default of

any federal claim, and prejudice therefrom, before the federal

habeas court will 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, and any excuse

Frazier might now present for his failure to raise his

ineffective assistance claim properly 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 “normally decline[s] to consider issues not raised in the

appellant’s opening briefs”).

The one means by which Frazier could bypass the

requirement that he show cause is extraordinary: “where a

constitutional violation has probably resulted in the

42 Frazier v. Huffman No. 01-3122

conviction of one who is actually innocent, a federal habeas

court may grant the writ even in the absence of a showing of

cause for the procedural default.” Murray v. Carrier, 477

U.S. 478, 496 (1986). The present issue concerns whether

Frazier was sentenced fairly, and so “the ‘actual innocence’

requirement must focus on those elements that render a

defendant eligible for the death penalty, and not on additional

mitigatingevidence 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

in a failure to present available mitigating evidence at the

sentencing phase, and since the evidence of his 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 excuse his procedural

default. Id. Moreover, since Frazier does not set forth any

evidence which, if believed, might lead a trier of fact to find

him innocent of the murder of Tiffany Skiba, he cannot meet

Carrier’s actual innocence standard, namely, that the alleged

constitutional 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 circumventing the Ohio courts’ holding that

Frazier’s ineffective assistance claim was barred by res

judicata have been foreclosed; this court therefore has no

legal authority to consider the merits of that claim. In so

doing, the majority contravenes clearly established precedent

of the United States Supreme Court and this Circuit, and

“undermine[s] the State’s interest in enforcing its laws.”

Coleman v. Thompson, 501 U.S. at 731. I therefore dissent.