                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 12a0384p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                              X
                                               -
 SAMUEL MORELAND,
                                               -
                          Petitioner-Appellant,
                                               -
                                               -
                                                  No. 09-3528
         v.
                                               ,
                                                >
                                               -
                     Respondent-Appellee. -
 MARGARET BRADSHAW, Warden,
                                              N
               Appeal from the United States District Court
                for the Southern District of Ohio at Dayton.
                              No. 3:05-cv-334.
     Thomas M. Rose, District Judge; Michael R. Merz, Magistrate Judge.
                               Argued: April 18, 2012
                      Decided and Filed: November 15, 2012
             Before: BOGGS, ROGERS, and GRIFFIN, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Justin C. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Justin C.
Thompson, Melissa J. Jackson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                _________________

                                     OPINION
                                _________________

       ROGERS, Circuit Judge. Samuel Moreland, an Ohio death-row prisoner, appeals
a district court judgment denying his petition for a writ of habeas corpus. In 1986, a
three-judge panel convicted Moreland of killing his girlfriend Glenna Green, her adult
daughter, and three of her grandchildren. Moreland contends that his conviction is not


                                          1
No. 09-3528        Moreland v. Bradshaw                                         Page 2


supported by sufficient evidence, that the trial court did not conduct an adequate
evidentiary hearing on a child eyewitness’s competence to testify, that the trial court
wrongly excluded expert testimony concerning the child eyewitness, and that he was
denied effective assistance of counsel. For the following reasons, the district court
properly rejected Moreland’s claims and denied habeas relief.

                                          I.

       The facts of this case are taken largely from the opinion of the Supreme Court
of Ohio, Ohio v. Moreland, 552 N.E.2d 894 (Ohio 1990). At the time of the murders in
November 1985, Samuel Moreland lived with his girlfriend Glenna Green in a home
rented by Glenna’s daughter, Tia Talbott. Tia’s boyfriend Thurston Jones and Tia’s five
children also lived at the residence. On the night in question, Tia’s sister Lana Green
and Lana’s three children were spending the night at the residence.

       At approximately 10:30 p.m. on November 1, 1985, Tia, her boyfriend Thurston,
and Lana’s son Gregory left the residence to go to the grocery store. Around the time
of their departure, Moreland and his girlfriend Glenna began arguing over Glenna’s
refusal to give him money for alcohol. Moreland left Glenna’s bedroom, went to his
own room, then returned and resumed the argument. Glenna continued to refuse
Moreland’s request. Moreland eventually left the house for about one-half hour,
returned, argued with Glenna a third time, and left again for about ten minutes.
Moreland returned to the home with a rifle and proceeded to shoot Glenna twice in the
head. He then shot Tia’s eleven-year-old son Dayron Talbott in the hand and face and
hit Dayron with the end of the rifle. When Tia, Thurston, and Gregory returned home
near midnight, they discovered the bodies of Lana Green, Violana Green, Glenna Green,
No. 09-3528           Moreland v. Bradshaw                                                    Page 3


Datwan Talbott, and Daytrin Talbott.1 Dayron, Tia Green, and Glenna Talbott were
injured but survived.2 Moreland had left the home by this time.

        Later that night, Moreland met with Samuel Thomas. Together, the two
purchased alcohol and returned to Thomas’s home. While there, a car passed by the
home and Moreland commented, “I bet it was a cruiser pass.” Thomas looked out of the
window and saw a police cruiser passing by the residence. Moreland also commented
that he had shot a gun and the bullet hole “went in small and came out big.” Thomas
testified that he did not understand what Moreland meant by this comment. Thomas later
drove Moreland home, where police arrested Moreland.

        While police read Moreland his Miranda rights, he told the arresting officer that
the officer was “too late.” Moreland later proved uncooperative when the police
attempted to swab his hands to perform an atomic absorption test to detect the presence
or absence of gunshot residue. During the test, Moreland commented that “[t]his isn’t
going to do any good anyway. I’ve been firing three to four hundred rounds at a range
in Vandalia.” When asked if he signed in and out at the range, Moreland changed his
story and stated that he had been firing the shots along a river bank. Moreland also made
a number of statements that were eventually used against him at trial, including, “I have
Fifth Amendment rights,” “In fact, the Constitution is written for guys like me,” and
“You don’t have any evidence against me, and I’ll be damned if I’ll help you.”

        At trial, Moreland presented testimony from an expert who estimated that
Moreland would have had a blood alcohol level of between .30 and .36 around the time
the murders were committed, suggesting that he would have been too intoxicated to
carry out the acts as described. However, in addition to Samuel Thomas, other witnesses
reported seeing Moreland that night and called into question his intoxication defense.


        1
         Glenna Green was Moreland’s girlfriend; Lana Green was her adult daughter; Violana Green
was Lana’s daughter and Glenna’s granddaughter; Datwan Talbott and Daytrin Talbott were Tia Talbott’s
sons and Glenna Green’s grandsons.
        2
          Dayron Talbott is Tia Talbott’s son and Glenna Green’s grandson; Tia Green is Lana Green’s
daughter and Glenna Green’s granddaughter; Glenna Talbott is Tia Talbott’s daughter and Glenna Green’s
granddaughter.
No. 09-3528        Moreland v. Bradshaw                                             Page 4


Bruce Shackleford saw Moreland at approximately 11:00 p.m. and testified that
Moreland did not appear to be drunk nor did he have difficulty walking or talking.
Richard Cunningham also saw Moreland and observed that Moreland did not seem to
have difficulty walking.

       Police subsequently recovered what they believed to be the murder weapon—a
.22-caliber rifle. Because the rifle had been in an alley for weeks after the crime, it was
discolored, rusty, and broken. Police linked the rifle to the crime after determining that
bullets found in some of the victims’ bodies matched that of a .22-caliber rifle. When
police test-fired the rifle and compared the test bullets with the bullets found in the
victims’ bodies, they found that the two bullet types shared the same characteristics.

       In April 1986, after Moreland waived trial by jury, a three-judge panel found
Moreland guilty of the aggravated murders of Glenna, Lana, and Violana Green, and
Daytrin and Datwan Talbott. Each of the five aggravated murders carried death penalty
specifications, and the panel ultimately sentenced Moreland to death. Further, the panel
found Moreland guilty of the attempted aggravated murders of Tia Green, Glenna
Talbott, and Dayron Talbott, and sentenced Moreland accordingly. The panel acquitted
Moreland of five counts of aggravated felony murder, three counts of attempted
aggravated felony murder, one count of aggravated robbery, and the death specifications
that the murders were committed to escape detection or apprehension and that they were
committed in conjunction with aggravated robbery.

       Moreland appealed his conviction and sentence to the Ohio Court of Appeals,
which affirmed the decision of the trial court. See Ohio v. Moreland, No. 9907, 1988
WL 95894 (Ohio Ct. App. Sept. 16, 1988). The Ohio Supreme Court subsequently
affirmed that decision, and the United States Supreme Court denied certiorari. See
Moreland, 552 N.E.2d 894, cert. denied, 498 U.S. 882 (1990). Moreland next sought
relief in state post-conviction proceedings. The trial court granted the State’s motion for
summary judgment. Moreland appealed and the Ohio Court of Appeals affirmed in part,
but remanded the action for an evidentiary hearing to determine if Moreland had
knowingly, voluntarily, and intelligently waived his right to trial by jury. After remand,
No. 09-3528            Moreland v. Bradshaw                                                        Page 5


the trial court and the state court of appeals held that Moreland failed to prove that his
jury trial waiver was invalid. The Ohio Supreme Court declined to accept Moreland’s
appeal for review.

         Moreland filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, raising nine claims. The magistrate judge recommended that Moreland’s habeas
petition be denied on all grounds, but recommended certifying for appeal Moreland’s
claims (1) that his conviction for aggravated murder with prior calculation and design
was not supported by sufficient evidence, (2) that the trial court failed to conduct an
adequate evidentiary hearing into the competence of Dayron and the admissibility of his
testimony, (3) that the trial court wrongly excluded expert testimony about Dayron’s
susceptibility to suggestion, (4) that counsel were ineffective in failing to object to
gruesome photographs and in failing to object to Moreland’s statements concerning his
post-arrest assertion of Miranda rights, and (5) that counsel were ineffective at the
penalty phase of his trial.             The district court adopted the magistrate judge’s
recommendations in full. Moreland v. Bradshaw, 635 F. Supp. 2d 680 (S.D. Ohio
2009); Moreland v. Bradshaw, No. 3:05-cv-334, 2010 WL 99263 (S.D. Ohio Jan. 6,
2010). Moreland timely appealed.

                                                    II.

A. Sufficiency of the Evidence3

         The Supreme Court of Ohio reasonably applied clearly established federal law
in deciding that sufficient evidence supported Moreland’s convictions for committing
aggravated murder with prior calculation and design. Moreland filed his federal habeas
petition after the effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). The provisions of that act therefore apply in this case. Lindh v.
Murphy, 521 U.S. 320, 336–37 (1997). Under AEDPA’s deferential standard, a writ



         3
          Moreland did not argue before the district court that the State produced insufficient evidence of
attempted aggravated murder; nor did the district court certify this claim for appeal. We will therefore not
consider that claim. See Post v. Bradshaw, 621 F.3d 406, 415 (6th Cir. 2010) (citing Brown v. Marshall,
704 F.2d 333, 334 (6th Cir. 1983)).
No. 09-3528        Moreland v. Bradshaw                                             Page 6


may be granted only if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 404-05 (2000). We apply two layers of deference in
reviewing habeas claims challenging evidentiary sufficiency. McGuire v. Ohio, 619
F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir.
2009)). “First . . . we must determine whether, viewing the trial testimony and exhibits
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Brown, 567 F.3d at 205
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Second, even were we to
conclude that a rational trier of fact could not have found a petitioner guilty beyond a
reasonable doubt, on habeas review, we must still defer to the state appellate court’s
sufficiency determination as long as it is not unreasonable.” Id. (citing 28 U.S.C.
§ 2254(d)(2)). The Ohio Supreme Court did not unreasonably determine the facts when
it held that sufficient time and opportunity existed for Moreland to plan and commit the
acts and that the circumstances of the crime showed a scheme to implement the
calculated decision to kill. See Moreland, 552 N.E.2d at 903. Thus, the district court
properly held that the Ohio Supreme Court’s rejection of this claim was neither contrary
to, nor an unreasonable application of, clearly established Supreme Court precedent.

        The Ohio Supreme Court reasonably determined that, taking the evidence in the
light most favorable to the State, a rational trier of fact could have found that Moreland
killed the victims with prior calculation and design. Under Ohio law, “No person shall
purposely, and with prior calculation and design, cause the death of another.” Ohio Rev.
Code Ann. § 2903.01(A) (West 1996) (amended 1996). “Instantaneous deliberation is
not sufficient to constitute ‘prior calculation and design.’” Ohio v. Cotton, 381 N.E.2d
190, 192 (Ohio 1978). However, “[w]here evidence adduced at trial reveals the presence
of sufficient time and opportunity for the planning of an act of homicide to constitute
prior calculation, and the circumstances surrounding the homicide show a scheme
designed to implement the calculated decision to kill,” such a finding is justified. Id.
The Ohio Supreme Court reasoned that Moreland’s shooting of Glenna did not occur as
a result of an instantaneous deliberation but rather after Moreland had sufficient time and
No. 09-3528        Moreland v. Bradshaw                                            Page 7


opportunity to plan the act. The argument began when Glenna refused to give Moreland
money for alcohol.      After arguing with Glenna, Moreland left the house for
approximately one-half hour, returned, resumed the argument, then left the house again.
Thus, Moreland removed himself from not only the person with whom he was angry, but
the place where the argument occurred. About ten minutes after leaving, Moreland
returned with a rifle and killed Glenna before turning the rifle on Dayron. He then killed
or attempted to kill all the people in the household. According to the Ohio Supreme
Court, Moreland had sufficient time and opportunity to plan the acts. Moreland,
552 N.E.2d at 903. Additionally, the court determined that the circumstances of
Moreland’s killing or attempting to kill all the witnesses in the household showed a
scheme to implement the calculated decision to kill, which justified the finding of prior
calculation and design. Id.

       The supreme court also held that the evidence was sufficient to show that
Moreland was not so intoxicated as to render him incapable of prior calculation and
design. Moreland claimed that he was incapable of formulating a scheme to kill in his
intoxicated state. Moreland’s expert presented evidence of Moreland’s estimated level
of intoxication at the time of the crimes, placing his blood-alcohol level between .30 and
.36. The expert testified that he would have been in a stuporous stage and on the verge
of a coma with a blood-alcohol level in that range. Yet as the Ohio Supreme Court
noted, the State presented contrary evidence on this point. Id. Bruce Shackleford, who
observed Moreland around the time of the murders, testified that Moreland did not
appear to be drunk or have difficulty walking or talking. Samuel Thomas testified that
he and Moreland drank alcohol after the murders. Finally, Dayron testified that
Moreland, at the time of the crimes, reloaded the rifle, suggesting he remained capable
of performing this act. Id.

       The supreme court ultimately viewed the question of whether Moreland acted
with prior calculation and design as an issue of fact. Id. The supreme court found the
evidence sufficient to warrant the conclusions reached by the three-judge panel in the
panel’s weighing of the evidence and determinations of witness credibility. Id. at 903-
No. 09-3528        Moreland v. Bradshaw                                            Page 8


04. The supreme court concluded by stating that the panel must have determined that
Moreland’s intoxication (if he was intoxicated at all) did not negate the finding of prior
calculation and design.

       Moreland first attacks the supreme court’s determination on the ground that
Dayron’s testimony at trial was inconsistent, inaccurate, and unreliable when compared
with the story he told his father after the shooting happened. However, this argument
essentially concerns a credibility determination reserved for the trier of fact. Dayron
initially told his father that he fell asleep, he awoke to an argument between Moreland
and his grandmother, and the shooting happened immediately thereafter. At trial,
however, Dayron testified that he saw Moreland leave two or three times and return the
last time with a gun, providing the state with evidence of prior calculation and design.
Thus, the three-judge panel was left to make a credibility determination. “[U]nder
Jackson [v.Virginia], the assessment of the credibility of witnesses is generally beyond
the scope of [habeas] review.” Brooks v. Tennessee, 626 F.3d 878, 899 (6th Cir. 2010)
(Daughtrey, J., concurring) (quoting Schlup v. Delo, 513 U.S. 298, 330 (1995)).

       Moreland also contends that the Ohio Supreme Court’s reasons for finding
sufficient evidence of the scheme to implement the calculated decision to kill were
objectively unreasonable. In Moreland’s view, the supreme court erred by basing its
analysis on “the circumstances of appellant’s killing or attempting to kill all the
witnesses in the household [which] showed a scheme to implement the calculated
decision to kill.” Moreland, 552 N.E.2d at 903 (emphasis added). Moreland argues that
this finding is inconsistent with the three-judge panel’s finding of not guilty on the
specifications alleging that Moreland killed the victims to escape detection. Moreland’s
reading confuses the issue. The three-judge panel could reasonably have found that, in
killing or attempting to kill everyone in the house, Moreland evidenced “a scheme to
implement the calculated decision to kill” without also finding that Moreland had the
specific purpose to prevent the victims from identifying him as the murderer. In any
event, the Ohio Supreme Court’s use of the word “witnesses” in its decision was not
objectively unreasonable.
No. 09-3528         Moreland v. Bradshaw                                             Page 9


        Finally, Moreland challenges his identification as the killer, albeit within the
context of his prior calculation and design argument. He claims that there is reasonable
doubt as to whether he was even the perpetrator, let alone that he acted with prior
calculation and design. In his brief to the Ohio Supreme Court on direct appeal,
Moreland divided this argument into two separate propositions of law. He argued in his
eighth proposition of law that there was insufficient evidence of prior calculation and
design, and he argued in his ninth proposition of law that the weight of the evidence did
not support his identification as the killer. After rejecting his prior calculation and
design argument, the supreme court rejected his argument that his conviction went
against the manifest weight of the evidence. The supreme court held that the evidence
established his guilt beyond a reasonable doubt. See id. at 904. In Moreland’s federal
habeas petition, he presented the claims as one issue involving prior calculation and
design. Moreland’s fifth ground for relief stated:

        Samuel Moreland was found guilty of Aggravated Murder (counts) based
        upon insufficient evidence. The only eyewitness to the killings was an
        eleven year old boy who identified someone other than Mr. Moreland as
        the perpetrator of these deaths. The identification of Mr. Hagans as the
        perpetrator was made to the first person who encountered the child
        witness at the scene. The child subsequently changed his statement and
        implicated Mr. Moreland.

Petition, R. 14, Page I.D. 77. Although the district court considered testimony tying
Moreland to the crimes and testimony establishing that he acted with prior calculation
and design, the district court did not specifically address Moreland’s argument that
someone else committed the crimes.

        Whether a defendant acted with prior calculation and design and whether a
defendant in fact committed the crime at issue are two distinct arguments. This
challenge is arguably not within the scope of the certificate of appealability and therefore
not properly before this court. See Hill v. Mitchell, 400 F.3d 308, 329, 335 (6th Cir.
2005). However, granting Moreland the benefit of the doubt that he properly presented
the issue and that the issue fell within the scope of the certificate of appealability, his
claim still lacks merit. Multiple pieces of evidence, including eyewitness testimony,
No. 09-3528         Moreland v. Bradshaw                                         Page 10


Moreland’s admission that he shot a gun near the time of the murders, the drops of blood
found on Moreland’s clothes that matched the blood types of two of the victims, and
evidence showing that Moreland argued with Glenna immediately before the murders,
support his identity as the killer.

        First, the eyewitness, Dayron Talbott, identified Moreland as the shooter of
Dayron and his grandmother Glenna Green. Moreland, 552 N.E.2d at 901. An atomic-
absorption test performed on Moreland after his arrest indicated that he probably had
discharged a firearm. Id. at 899-901. In any event, Moreland admitted firing a gun. He
claimed that he had been firing three to four hundred rounds at a gun range. When an
officer asked if he signed in and out at the range, Moreland changed his story and said
that he had been firing the shots along a riverbank. Id. at 897, 901-02. Also, the
bloodstains on Moreland’s pants matched the blood types of two of the victims. Id. at
901.

        The timing element also supports a finding that Moreland was the killer. When
Tia, Thurston, and Gregory left the home to go shopping, ten people remained in the
house. When the shoppers returned approximately ninety minutes later, only two of
the ten were still living and unwounded: four-year-old Daniel and Moreland, who had
left the residence.    Viewing all the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found beyond a reasonable doubt that the
unwounded, missing adult who had previously been in the house perpetrated the crimes.

        Moreland challenges on several bases the conclusion that he committed the
crimes. Each argument ultimately fails. First, Moreland’s argument involving the lack
of blood found on him upon arrest—only a few drops were found on his pants and on the
right side of his shirt, but none on his hands, body, jacket, shoes, or socks—comes down
to a credibility determination. On one hand, Dayron identified Moreland, someone he
knew well, as the killer. On the other hand, Moreland points out, a great deal of blood
surrounded each victim and first-responders referred to the crime scene as a
“slaughterhouse.” The coroner testified that there would have been heavy bleeding and
blood spattering as the injuries were inflicted. Moreland argues that it is unlikely that
No. 09-3528        Moreland v. Bradshaw                                           Page 11


(indeed, unfathomable how) he committed these crimes while getting so little blood on
himself. He likewise points to evidence that, at the time of the crimes, he was already
so intoxicated that he was in a stuporous stage, verging on a coma. In such a condition,
he argues, it is “incredibly unlikely” that he would have avoided being covered with
blood spatter or cleaned himself off so well afterward. He also points to evidence that
he put on mismatched socks, one green, one white, earlier that evening before the
crimes, yet he had those same socks on when arrested without blood on them.
Responding to an argument that the prosecutor made at trial—that Moreland might have
changed his clothes after the crimes—he contends that this is speculation not supported
by evidence. Instead, Moreland offers another explanation for the few drops on his
clothes: that night, while out with a companion, Moreland took a bloody $20 bill out
of the pocket of a man who had collapsed in the street. Finally, Moreland notes that no
forensic evidence or testimony connected him to the rifle police found in an alley weeks
after the crime that they believed to be the murder weapon.

       The blood argument equates to an attack on the eyewitness’s credibility—a
determination that is exclusively the province of the trier of fact. United States v. Bond,
22 F.3d 662, 667 (6th Cir. 1994). In general, attacks on witness credibility are “simply
challenges to the quality of the government’s evidence and not to the sufficiency of the
evidence.” Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States
v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984)). The three-judge panel heard testimony
about the scarcity of blood on Moreland’s clothes, see Moreland, 552 N.E.2d at 902, but
chose to believe Dayron when he identified the man he saw attack him and kill his
grandmother. Likewise, the three-judge panel heard testimony regarding the lack of
physical evidence connecting Moreland to the murder weapon. The panel presumably
placed less emphasis on this evidence. These determinations appropriately rested with
the panel.

       Further, the mismatched socks are irrelevant since, by Moreland’s own
admission, evidence that he put on the socks before the crimes were committed was not
presented until the penalty phase. This issue therefore does not factor into the analysis
No. 09-3528        Moreland v. Bradshaw                                           Page 12


of whether sufficient evidence was presented at the guilt phase to justify conviction. Cf.
Herrera v. Collins, 506 U.S. 390, 402 (1993); Matthews v. Abramajtys, 319 F.3d 780,
788 (6th Cir. 2003).

       Also, Moreland’s alternative explanation for the blood only means that the triers
of fact had before them conflicting inferences about the source of the blood. “[A] federal
habeas corpus court faced with a record of historical facts that supports conflicting
inferences must presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the prosecution, and must defer
to that resolution.” Jackson, 443 U.S. at 326; see Wright v. West, 505 U.S. 277, 296–97
(1992) (plurality opinion). Further, the prosecution is not under an affirmative duty to
rule out every hypothesis except that of guilt beyond a reasonable doubt. Jackson, 443
U.S. at 326.

       Moreland’s primary argument in disputing his identity as the killer is that Eugene
Hagans, Tia’s ex-boyfriend, committed the murders. At the scene of the crime, a
firefighter asked Dayron (who had been shot and beaten) who did this to him. The
firefighter thought Dayron said “Higgins” or “Hagans.” In the ambulance, a paramedic
asked Dayron the same question and his answer sounded like “Liggins, Hagans,
Higgins.” In the emergency room, Dayron told the doctor he did not know who was
responsible. Dayron’s father and his great-grandmother also questioned Dayron in the
hospital before he saw police. Dayron identified the perpetrator as his “mother’s
boyfriend.”    When asked if he meant his grandmother’s boyfriend—meaning
Moreland—Dayron responded yes. Further, Dayron’s mother Tia explained to police
that Hagans had called and threatened her and her family. The timing of these threats,
however, was not entirely clear. Tia had previously filed at least 14 criminal complaints
against Hagans, and on one occasion she shot Hagans in the chest after he refused to
leave her home. When police went to Hagans’ residence on the night of the murders,
they found him in his basement wearing only underwear and speaking with his brother.
Police recovered Hagans’ jacket, which had at least three human-blood stains on it, one
matching Hagans’ blood type and two others matching two of the victims’ blood types.
No. 09-3528            Moreland v. Bradshaw                                                     Page 13


The panel was entitled to hear testimony suggesting that someone other than Moreland
may have been responsible for the crimes but nevertheless conclude that the State
presented a more compelling case.

         Finally, Moreland’s attempt to equate the facts of his case with those found in
McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003), misses the mark. The eyewitness in
McKenzie was three years old at the time of the incident and was deemed incompetent
to testify. Id. at 727–28. Aside from a statement the child made to her grandmother the
day after the assault, no other physical evidence or eyewitness testimony linked the
petitioner to the crime. Thus, the prosecution’s reliance on the statement of the child in
convicting the petitioner was deemed unwarranted. In Moreland’s case, the child
eyewitness was deemed competent to testify and other evidence connected Moreland to
the crime.

         In the end, a rational trier of fact could have found beyond a reasonable doubt
that Moreland committed the murders with prior calculation and design. “[E]ven were
we to conclude that a rational trier of fact could not have found [the defendant] guilty
beyond a reasonable doubt, on habeas review, we must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Brown, 567 F.3d
at 205 (emphasis omitted). Because the Supreme Court of Ohio did not unreasonably
apply, or rule contrary to, Supreme Court law, the district court properly denied habeas
relief on this claim.

B. Trial Court Error: Competency Hearing and Expert Testimony4

         Moreland’s due process rights were not violated by the trial court’s failure to
conduct a competency hearing on Dayron Talbott or by the trial court’s exclusion of


         4
           Moreland did not procedurally default his claim that the trial court conducted an inadequate
evidentiary hearing on the competency and admissibility of eleven-year-old Dayron Talbott’s testimony;
nor did Moreland default his claim that the trial court erred in excluding expert-opinion testimony on
Dayron’s susceptibility to suggestion and the influence of others. The district court held that Moreland
procedurally defaulted these claims because he did not present the claims to the state courts as federal
claims. However, for both claims, Moreland argued in his brief to the Ohio Supreme Court that the alleged
errors violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. That statement sufficiently preserved his argument to avoid default. See Sheppard v. Bagley,
657 F.3d 338, 347 (6th Cir. 2011).
No. 09-3528        Moreland v. Bradshaw                                          Page 14


expert testimony by Dr. Michael Williams concerning Dayron’s susceptibility to
suggestion and influence. The Ohio Supreme Court rejected both claims on state-law
grounds. See Moreland, 552 N.E.2d at 898-99. The supreme court held that the trial
court’s decision to conduct an interview with Dayron without holding a full evidentiary
hearing did not amount to an abuse of discretion because under Ohio law eleven-year-old
Dayron was presumed competent to testify. See Ohio R. Evid. 601 (stating that every
person is competent to be a witness except: “(A) Those of unsound mind, and children
under ten (10) years of age, who appear incapable of receiving just impressions of the
facts and transactions respecting which they are examined, or of relating them truly.”).
The supreme court also concluded that the trial court’s exclusion of Dr. Williams’s
testimony was not in error because, under Ohio law, an expert may not testify as to the
expert’s opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of
a child declarant. The supreme court, however, did not address Moreland’s argument
that the trial court decisions violated his due process rights. Because the Ohio Supreme
Court only considered the merits of these claims on state law grounds, AEDPA
deference arguably does not apply under this court’s holdings prior to Harrington v.
Richter, 131 S. Ct. 770 (2011), and Early v. Packer, 537 U.S. 3 (2002) (per curiam).
See Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006) (citing Maples v. Stegall, 340
F.3d 433, 436 (6th Cir. 2003)). Richter and Packer appear to require AEDPA deference
where a federal issue has been raised but the state court has denied the claim with a
discussion solely of state law. See Childers v. Floyd, 642 F.3d 953, 968–69 (11th Cir.
2011). The Supreme Court has recently granted certiorari in a case that may definitively
resolve this issue. See Cavazos v. Williams, 132 S. Ct. 1088 (2012). We need not
anticipate the Supreme Court’s ultimate ruling on the issue, however, because even free
of AEDPA deference, Moreland has not established due process violations. His claims
are essentially state-law issues, which are not cognizable in federal habeas review.

       First, the trial court’s failure to conduct a competency hearing for Dayron did not
deprive Moreland of his due process rights because the procedures followed by the trial
court were fundamentally fair. Although the Confrontation Clause guarantees a
defendant the right to be confronted with the witnesses against him, U.S. Const.
No. 09-3528         Moreland v. Bradshaw                                             Page 15


amend. VI, and this right includes as one of its elements that those witnesses be
competent to testify, Maryland v. Craig, 497 U.S. 836, 851 (1990), the right does not
necessarily guarantee a defendant a hearing on a witness’s competence to testify. While
not required to do so under Ohio law, the trial court interviewed Dayron in chambers to
determine whether he could distinguish between truth and falsity. Moreland and all
counsel were present for the interview. The panel posed a series of questions to Dayron,
including, “Do you know what it means to take an oath to tell the truth?” and “Do you
know what the difference is between the truth and telling a lie?” Judge Porter also asked
Dayron his name, age, school, the meaning of a lie, and what happens when one tells a
lie. Judge Kessler then commented that Dayron “appeared to be alert, bright, [and]
intelligent.”

        Moreland has not shown that this procedure was fundamentally unfair. In
general, alleged errors in evidentiary rulings by state courts are not cognizable in federal
habeas review. Collier v. Lafler, 419 F. App’x 555, 558 (6th Cir. 2011) (citing Coleman
v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001)). A federal court may nevertheless grant
relief in cases where “the state’s evidentiary ruling is so fundamentally unfair that it rises
to the level of a due-process violation.” Id. To show a due process violation under
AEDPA rooted in an evidentiary ruling, this court has typically required a Supreme
Court case establishing a due process right with regard to that specific kind of evidence.
Id. (citing Maldonado v. Wilson, 416 F.3d 470, 477 (6th Cir. 2005)). Moreland points
to no clearly established Supreme Court precedent governing how a state competency
hearing is to be conducted. Indeed, the Supreme Court has not set forth a definition of
witness competence required by the Due Process Clause, nor has the Court established
a precise age below which a competency hearing would be required. See Kentucky v.
Stincer, 482 U.S. 730, 741 n.11 (1987) (citing Wheeler v. United States, 159 U.S. 523,
524 (1895)). The Supreme Court has recognized that requirements for competency
determinations vary by state, with some states explicitly allowing children to testify
without requiring a prior competency qualification and others deeming all persons,
including children, competent unless otherwise limited by statute. Id. at 742 n.12. When
competency hearings with children are conducted, the questions generally focus on
No. 09-3528           Moreland v. Bradshaw                                                     Page 16


matters unrelated to the basic issues of the trial and instead include questions such as
“their names, where they go to school, how old they are, whether they know who the
judge is, whether they know what a lie is, and whether they know what happens when
one tells a lie,” id. at 741—the same questions posed to Dayron by the panel in
chambers.

         Further, even though the three-judge panel did not permit Moreland’s attorney
to question Dayron during the interview, Moreland does not dispute that his attorney had
wide latitude in cross-examining Dayron at trial. In general, the right to confront
adverse witnesses is satisfied “if defense counsel receives wide latitude at trial to
question witnesses.” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (citing Delaware
v. Fensterer, 474 U.S. 15, 20 (1985)).

         In sum, Moreland has not shown that the failure to conduct a competency hearing
violated his due process rights. To the extent Moreland argues the trial court’s decision
violated state law, that claim is not cognizable on federal habeas review. Collier,
419 F. App’x at 558.

         Next, Moreland’s due process rights were not violated by the trial court’s
exclusion of Dr. Williams’s expert opinion. Moreland sought to introduce the expert
opinion of Dr. Williams, a child psychologist, who would have testified that Dayron, a
“parentified” child, would more likely relate events in a way consistent with the
perspective of his mother Tia. This exclusion, claims Moreland, denied him the right
to present a defense, violated his right to due process, and violated his right to a fair and
reliable trial. However, “a habeas petitioner does not have a constitutional right to the
presentation of expert testimony on the reliability of eyewitness identification.” Buell
v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001); see Moore v. Tate, 882 F.2d 1107, 1110-
11 (6th Cir. 1989). Also, as the Ohio Supreme Court held on direct appeal, Moreland’s
challenge regarding expert testimony is essentially a state-law issue.5 Moreland,


         5
           Moreland re-raised the claim in post-conviction proceedings, where the state court of appeals
held it barred by res judicata. Moreland, 2000 WL 5933, at *5. The district court held the claim not only
procedurally defaulted, but meritless because it presented only an issue of state law.
No. 09-3528          Moreland v. Bradshaw                                          Page 17


552 N.E.2d at 899. His claim is therefore not appropriate for federal habeas corpus
review.

          Moreland argues that in the aftermath of the murders, Dayron’s family, police,
and prosecutors pressured Dayron to identify Moreland as the killer. For this reason,
Moreland claims an expert opinion was needed to explain that Dayron’s version of
events did not result from his own independent recollection. Moreland contends that
Dayron’s identification of Moreland contradicts Dayron’s preliminary identification of
his mother’s ex-boyfriend, Eugene Hagans, as the killer. In the five months leading to
trial, Moreland claims that Dayron’s family members repeatedly reinforced the idea that
Moreland was the killer. A social service worker, Carolyn Lander, testified that she
visited Dayron between twenty and twenty-five times during this period. She explained
that friends, relatives, and other people talked frequently about the crime in Dayron’s
presence. Lander also stated that these people told Dayron that he knew who had done
this to him and he would be able to say so when asked. Some individuals specifically
identified Moreland as the perpetrator of the crimes. In addition, Tia told Dayron that
the case rested on him.       Moreland argues that these statements, combined with
questioning by police and prosecutors, reinforced the idea that he was guilty.

          The three-judge panel allowed Dr. Williams to testify about “parentification” and
precluded him only from offering his expert opinion on the accuracy of Dayron’s
testimony because, under Ohio law, “[a]n expert may not testify as to the expert’s
opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of a child
declarant.” Moreland, 552 N.E.2d at 896 (citing Ohio v. Boston, 545 N.E.2d 1220
(Ohio 1989)). The panel heard testimony from Dr. Williams that a parentified child
views the parent more as an equal than as an authority figure, and seeks to please the
parent. The child tries to meet the parent’s needs more so than the parent meets the
child’s needs. Also, the parentified child is more inclined to do what he or she can to
reduce the pressures, stresses, and needs of the parent. Dr. Williams testified that Tia
told Dayron in his presence that “she’d be glad when the trial had come and gone and
Sam Moreland got what was coming to him.” The panel only excluded Dr. Williams’s
No. 09-3528         Moreland v. Bradshaw                                         Page 18


opinion that Dayron’s version of events was more likely the product of influence from
his mother, detectives, prosecutors, and social workers. Dr. Williams proffered his
conclusion for the record, though the judges excused themselves from the courtroom
when he gave his remarks.

         Moreland argues that the state-court determination to exclude this category of
testimony was so fundamentally unfair as to deny him due process. Moreland essentially
argues that the Constitution ought to require the admission of such evidence. However,
the Supreme Court has made clear that “state-court evidentiary rulings cannot rise to the
level of due process violations unless they ‘offend[] some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as fundamental.’” Seymour
v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37,
43 (1996)). The Supreme Court has also explained that an “accused does not have an
unfettered right to offer [evidence] that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Egelhoff, 518 U.S. at 42 (quoting Taylor
v. Illinois, 484 U.S. 400, 410 (1988)). Considering the wide latitude afforded to states
regarding evidentiary matters under the Due Process Clause, and Moreland’s failure to
show that the trial court’s ruling violated a fundamental principle of justice, we cannot
say that Moreland’s due process rights were violated by the exclusion of this testimony.

         Moreland argues that Buell v. Mitchell, 274 F.3d at 359, upon which we rely
above, did not categorically hold that no constitutional right exists allowing for the
presentation of expert testimony on the reliability of eyewitness testimony. He contends
that the reason we found no constitutional error in Buell in excluding the expert
testimony was that the evidence of Buell’s guilt was based primarily on physical
evidence, rather than identification testimony. Also, Buell never argued that the expert
testimony in question fell under an exception to the Ohio rule forbidding such evidence.
Moreland claims that, unlike in Buell, very little physical evidence connected him to the
crime.    Moreland also argues that Dayron suffered from mental and physical
impairments affecting his ability to observe and recall events, and Ohio law permits
expert testimony about the credibility of an identification if the eyewitness suffers from
No. 09-3528         Moreland v. Bradshaw                                           Page 19


a mental impairment that affected his or her ability to recall events. See Ohio v. Buell,
489 N.E.2d 795, 804 (Ohio 1986).

        That identification testimony assumed a greater role in Moreland’s conviction
than in Buell’s does not mean that Moreland’s constitutional rights were violated. While
not extensive, physical evidence did connect Moreland to the murders. As for Dayron’s
physical and mental status, the three-judge panel conducted an interview with Dayron
in chambers to consider his competence (even though he was presumed competent under
Ohio law).     Our recognition in Buell that a habeas petitioner does not have a
constitutional right to the presentation of expert testimony on the reliability of
eyewitness identification did not depend on the distinctions pointed out by Moreland.
Buell, 274 F.3d at 359 (citing Moore v. Tate, 882 F.2d 1107, 1110-11 (6th Cir. 1989)).

        Moreland’s reliance on Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), and
United States v. Smithers, 212 F.3d 306 (6th Cir. 2000), to demonstrate that the
exclusion of eyewitness-identification expert testimony can violate a defendant’s right
to present a defense is also misplaced. Ferensic was concerned with a Michigan trial
court’s exclusion of otherwise admissible testimony as punishment for the defense’s
violation of a discovery order. 501 F.3d at 476, 478. The identity of the perpetrators
was the central issue in Ferensic, and Ferensic repeatedly told jurors that he would
present expert testimony on the inherent unreliability of eyewitness testimony. The trial
court nevertheless excluded the testimony because Ferensic failed to provide the
prosecution with a copy of the expert’s report in the time frame set by the court. The
expert, had he been permitted to testify, “would have informed the jury of why the
eyewitnesses’ identifications were inherently unreliable. This would have been a
scientific, professional perspective that no one else had offered to the jury.” Id. at 477.
We concluded that, by excluding the testimony, the trial court showed disregard for the
substantial rights of one party, Ferensic, in the absence of any prejudice to the other, the
prosecution. Id. at 478. In Moreland’s case, however, the panel permitted Dr. Williams
to testify about why Dayron’s version of events suffered from potential problems—Dr.
Williams diagnosed Dayron as a parentified child. The panel only precluded Dr.
No. 09-3528          Moreland v. Bradshaw                                         Page 20


Williams from offering his opinion that Dayron would relate events in a manner more
consistent with that of his mother. This exclusion did not prevent Moreland from
presenting a defense or prejudice him as was the case in Ferensic. Further, while
eyewitness testimony was certainly an important factor in Moreland’s case as in
Ferensic, other evidence connected Moreland to the crime, and that was not the case in
Ferensic.

       Smithers turned on whether the federal district court should have excluded the
evidence without first holding a hearing to determine, under the appropriate standard,
if the evidence met the requirements for admission. 212 F.3d at 314. Here, Moreland
does not argue that the three-judge panel applied the wrong standard in excluding Dr.
Williams’s opinion. Also, unlike in Moreland’s case, the district court in Smithers
excluded the expert testimony in its entirety. Finally, in neither Smithers nor Ferensic
did state law, or federal law in Smithers, forbid admission of the testimony. In
Moreland’s case, Ohio law does forbid such testimony. Moreland has thus not
sufficiently shown that the exclusion of Dr. Williams’s testimony impeded his right to
present a defense.

       To the extent Moreland argues that the exclusion of Dr. Williams’s testimony
violated state law, Moreland’s claim is not appropriate for habeas review. We may not
issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v.
Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988).

C. Ineffective Assistance of Counsel

1. Guilt Phase Ineffectiveness

       Moreland raises three separate ineffective-assistance-of-counsel claims based on
counsel’s performance at the guilt phase of his trial. He argues: 1) counsel should have
objected to the introduction of gruesome photographs, 2) counsel should have objected
to the prosecution’s use of Moreland’s post-arrest, post-Miranda silence as evidence of
his guilt, and 3) counsel should have objected to the use of Moreland’s post-arrest, post-
No. 09-3528         Moreland v. Bradshaw                                          Page 21


Miranda statements as evidence negating his intoxication defense. Moreland has not
established that he is entitled to habeas relief on any of these grounds.

       First, because the Ohio Supreme Court’s application of Strickland v. Washington,
466 U.S. 668, 687 (1984), was neither contrary to federal law nor an unreasonable
application thereof, Moreland cannot prevail on his claim of ineffective assistance of
counsel based on his counsel’s failure to object to gruesome photographs offered at his
trial. In general, § 2254(d) sets forth a “high threshold” that requires a federal court to
“ask whether it is possible [for] fairminded jurists [to] disagree that those [state court
opinions] are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1402, 1403 (2011) (citing Harrington v. Richter,
131 S. Ct. 770, 786 (2011)). The standard is “doubly deferential” when AEDPA is
applied with Strickland. Pinholster, 131 S. Ct. at 1410. The question under § 2254(d)
is not whether counsel’s actions were reasonable, but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.
Ct. at 788. In this case, the Ohio Supreme Court reasonably concluded that Moreland
had not established prejudicial error satisfying the standard to succeed on his claim
under Strickland.

       Moreland identifies multiple photographs of the victims and autopsies to which
he claims his counsel should have objected. On direct appeal, Moreland argued that the
admission of the photographs constituted a trial court error; he also argued that his
counsel’s failure to object to the photographs constituted ineffective assistance of
counsel. The Ohio Supreme Court held that, even assuming deficient performance,
Moreland had not established prejudice. Moreland, 552 N.E.2d at 905. In analyzing
Moreland’s argument that the panel erred by admitting the photographs, the Ohio
Supreme Court noted that “a few slides and photographs could have been excluded as
cumulative or repetitive,” but the court did not “find any indication that the panel was
inflamed by the presentation of these photographs and slides.” Id. at 901. The supreme
court reasoned that the coroner’s slides were illustrative of the coroner’s testimony and
related to the issues of prior calculation and design, as well as the nature and
No. 09-3528            Moreland v. Bradshaw                                                     Page 22


circumstance of the murders. The court concluded that the probative value of the
evidentiary materials outweighed any possible prejudice.6

          As the Ohio Supreme Court reasonably determined, even assuming counsel
performed deficiently, Moreland has not established that he was prejudiced. Nothing
indicated that the three-judge panel was inflamed by the presentation of the photographs.
The judges on the panel that heard Moreland’s case are presumed to know the law and
to apply it in making their decisions. See Lambrix v. Singletary, 520 U.S. 518, 532 n.4
(1997).       Furthermore, judges are “presumed to base their judgment on relevant
evidence.” Smith v. Mitchell, 348 F.3d 177, 213 (6th Cir. 2003). These presumptions
may be overcome only upon an affirmative showing of prejudice. Id. at 206 (citing
United States v. Joseph, 781 F.2d 549, 552 (6th Cir. 1986)). Moreland has not made that
showing.

          Moreland primarily relies on the three-judge panel’s sentencing opinion in
attempting to refute this conclusion. There, the panel stated:

          The wounds and blunt force trauma sustained by all of the victims were
          shocking. The Defendant not only shot several of the victims, he brutally
          and intentionally followed a course of conduct whereby he actually
          crushed the skulls of several of his victims, some of whom were children
          under seven years of age.

Shocking and brutal though the violence revealed by the photographs may have been,
these comments are not evidence that the judges were inflamed into ignoring or
overstepping the law. These statements occurred in the context of the panel’s explaining
why aggravation outweighed mitigation. Moreland, 552 N.E.2d at 904-05. Although
under Ohio law the nature and circumstances of the offense do not qualify as aggravating
factors themselves, Fox v. Coyle, 271 F.3d 658, 669 (6th Cir. 2001), courts may consider
the nature and circumstances of an offense in determining whether the aggravating



          6
           The Ohio Supreme Court addressed the merits of Moreland’s argument about the photographs
in the context of a state-law evidentiary objection. Moreland, 552 N.E.2d at 900-01. In a separate section
of the opinion, the court held that, even assuming deficient performance, Moreland was not prejudiced.
Id at 905. Moreland agrees that the supreme court adjudicated this claim.
No. 09-3528        Moreland v. Bradshaw                                           Page 23


factors outweigh the mitigating circumstances. Id.; see also Ohio v. Stumpf, 512 N.E.2d
598, 600 (Ohio 1987). That is what occurred in this case.

       Our decision is in line with our previous decision in Smith v. Mitchell, 348 F.3d
at 206, in which we considered the effect of improper testimony by a prosecution witness
concerning the defendant’s lack of remorse and trial counsel’s failure to rebut the
testimony before a three-judge panel. We concluded that “any inflammatory effect [on
the judges] was de minimis.” Id. Moreland claims that, due to their graphic nature, the
photographs in his case must have had more than a de minimis effect. The panel’s
decision to acquit Moreland of multiple counts, however, demonstrates its ability to draw
distinctions and view the evidence in the appropriate light. The panel found Moreland
not guilty of five counts of aggravated felony murder, three counts of attempted
aggravated felony murder, and one count of aggravated robbery. The panel also
acquitted Moreland of the escaping-detection and felony-murder aggravators.

       Moreland also argues that, because the supreme court assumed without
explaining that his counsel performed deficiently, we must review the performance
prong of his Strickland claim de novo. He concedes that the supreme court addressed
the prejudice prong of his Strickland claim. Even if we were to review counsel’s
performance under a de novo standard, we nevertheless defer to the supreme court’s
resolution of the prejudice prong and uphold its conclusion that Moreland cannot
establish prejudice for purposes of Strickland.

       Thus, the Ohio Supreme Court’s rejection of this claim was neither contrary to,
nor an unreasonable application of, clearly established Supreme Court precedent.

       Next, the Ohio Supreme Court’s rejection of Moreland’s ineffective-assistance-
of-counsel claim regarding the use of his post-arrest, post-Miranda silence as evidence
of his guilt was neither contrary to federal law nor an unreasonable application thereof.
According to Doyle v. Ohio, 426 U.S. 610, 611, 618-19 (1976), the prosecution may not
use the silence of a defendant to impeach him if that silence occurred after his arrest and
receipt of Miranda warnings. The supreme court assumed that Moreland proved
deficiency in his counsel’s performance but concluded that he failed to establish that he
No. 09-3528            Moreland v. Bradshaw                                                       Page 24


was prejudiced by that deficiency. Moreland, 552 N.E.2d at 905. We defer to that
conclusion.

         At trial, the prosecution elicited testimony from a police officer that, after
Moreland had been arrested and given Miranda warnings, he did not ask what had
happened at the scene of the crimes, nor did he inquire about the well-being of anyone
in the house. The prosecution also questioned another police officer who testified that
Moreland did not ask questions about anyone in the house after he had been taken to the
police station. Moreland contends that the prosecution used this testimony to suggest
that his lack of curiosity stemmed from guilty knowledge: he did not need to ask,
because he already knew, and he already knew because he was the one who had done the
shootings.

         On direct appeal to the Ohio Supreme Court, Moreland raised this argument as
a prosecutorial-misconduct claim and as an ineffective-assistance-of-counsel claim.
During oral argument before the supreme court, the State acknowledged that the
prosecutorial acts constituted Doyle violations. Because of this concession, the supreme
court reached the merits of what would otherwise have been a forfeited
claim—Moreland failed to object to one of the Doyle violations at trial and did not
object on constitutional grounds to the other violation. Nor did he present the issues to
the court of appeals. The supreme court nevertheless found that any Doyle violation was
harmless beyond a reasonable doubt.7 According to the supreme court, the evidence
presented, absent the claimed Doyle violations, constituted overwhelming proof of
Moreland’s guilt. Moreland, 552 N.E.2d at 901. The court considered Dayron’s
testimony that he saw Moreland shoot Glenna before being attacked himself. The



         7
           Moreland argues that, when a state court deems a constitutional error to be harmless, determining
whether an error is harmless on habeas review requires this court to ask whether the error “had [a]
substantial and injurious effect or influence in determining the jury’s verdict.” Ruelas v. Wolfenbarger,
580 F.3d 403, 411 (6th Cir. 2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). In
Moreland’s view, the Doyle violation was substantial and injurious, and as a result the Ohio Supreme
Court’s finding of harmlessness was objectively unreasonable. Therefore, Moreland argues, the supreme
court’s conclusion is not entitled to deference. The Ohio Supreme Court’s reasoning that the any Doyle
violation was harmless beyond a reasonable doubt occurred in the court’s analysis of Moreland’s
prosecutorial-misconduct claim—not in the court’s consideration of his ineffective-assistance claim. In
any event, we would reach the same conclusion on Moreland’s claim even reviewing his claim de novo.
No. 09-3528         Moreland v. Bradshaw                                           Page 25


evidence also showed that the rifle recovered by the police was the rifle used in the
murders, and the butt-end of the rifle matched the imprint on Datwan Talbott’s forehead.
Further, the atomic absorption test performed on Moreland showed that he probably shot
a gun, and the bloodstains on his pants matched the blood types of two of the victims.
The court also considered Moreland’s changing stories about shooting a rifle at a range
and his odd statements to Samuel Thomas as further proof of guilt. Id. at 901–02. The
court next noted that, on the night of the murders, a witness saw and heard a man who
stated that he had killed his family, and evidence led to the conclusion that Moreland
made the statement.      Finally, the court reasoned that the three-judge panel was
“presumed to have considered only relevant, material and competent evidence in arriving
at its judgment,” and the court could “find no evidence that the panel considered
[Moreland’s] post-Miranda silence in arriving at its verdicts.” Id. at 902.

        That presumption disposes of this claim. Judges are presumed to know the law
and apply it in making their decisions, and to base their judgment on relevant evidence.
Lambrix, 520 U.S. at 532 n.4. Hence, judges are likewise presumed to recognize
constitutional violations and disregard any evidence that was unconstitutionally
obtained. In the words of the Ohio Supreme Court, there is “no evidence that the panel
considered appellant’s post-Miranda silence in arriving at its verdicts.” Moreland, 552
N.E.2d at 902 (emphasis added). Moreland points to no evidence to the contrary.

        Moreland argues that the judges would have excluded the evidence sua sponte
if they realized that it derived from a constitutional violation, but he misconstrues the
law. The judges were not under an obligation to make Moreland’s objections on his
behalf. The failure to act (for example, to instruct the jury on a certain point of law) is
not evidence of ignorance of the law. Even in a situation where a trial judge gave jurors
an incorrect instruction on aggravating factors and then later imposed a death sentence
after weighing the aggravating factors and mitigating circumstances, the Supreme Court
presumed that the judge knew the law. In Lambrix v. Singletary, 520 U.S. 518 (1997),
the state supreme court had already given a facially vague aggravator a limiting
construction that rendered it constitutional. Despite this, the trial judge did not instruct
No. 09-3528        Moreland v. Bradshaw                                          Page 26


Lambrix’s jury on that narrowed definition. The Supreme Court was thus confronted
with the argument: because the trial judge had not given the jurors the narrowed
construction, there was no reason to believe he had applied it himself when
independently weighing aggravation against mitigation. The Supreme Court, however,
refused to accept the contention that failure to instruct on a law displayed ignorance of
it. Instead, the Supreme Court applied the presumption that trial judges are presumed
to know the law and to apply it in making their decisions. Id. at 532 n.4. The
presumption that the judges knew the law applies in this case.

       The Ohio Supreme Court’s conclusion that Moreland failed to establish that he
was prejudiced by his counsel’s performance is neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent. Accordingly, Moreland is
not entitled to habeas relief on this ground.

       Finally, Moreland challenges the Ohio Supreme Court’s rejection of his claim
that his counsel were ineffective in failing to object on the basis of Wainwright v.
Greenfield, 474 U.S. 284, 292, 295 (1986), to the prosecution’s use of Moreland’s
invocation of his right to silence as evidence that he was not intoxicated. According to
Greenfield, “silence” means not only muteness, but also “the statement of a desire to
remain silent, as well as of a desire to remain silent until an attorney has been
consulted.” Id. at 295 n.13. Moreland claims that his statements regarding his right to
remain silent were used against him and that counsel should have objected. The supreme
court held that, even assuming deficient performance, Moreland had not established
prejudicial error that in any way undermined the integrity of his convictions and
sentence. Moreland, 552 N.E.2d at 905. We defer to the Ohio Supreme Court’s
determination, as it did not contravene or unreasonably apply Supreme Court precedent.

       After Moreland was arrested and given his Miranda warnings, the police tried
to swab his hands so that they could perform an atomic-absorption test for gunshot
residue. According to the Ohio Supreme Court, Moreland acted in an “uncooperative”
manner. Moreland, 552 N.E.2d at 897. Moreland made the following statements during
this time: “I have Fifth Amendment rights,” and “In fact, the Constitution is written for
No. 09-3528         Moreland v. Bradshaw                                           Page 27


guys like me.” He also stated, “You don’t have any evidence against me, and I’ll be
damned if I’ll help you.” Id. In closing arguments, the prosecutor relayed these
statements when arguing that Moreland had not been so intoxicated as to be incapable
of acting with prior calculation and design, contrary to his defense. Moreland argues
that the prosecutor’s use of his statements violated Greenfield and that his counsel
should have objected.

        The Ohio Supreme Court addressed Moreland’s Greenfield argument in the
context of his prosecutorial-misconduct claim. The court reasoned that Moreland’s
post-Miranda statements, not his silence, were used against him by the prosecution in
negating his intoxication defense and that he had not established prosecutorial
misconduct. Id. at 902. However, in the court’s discussion of Moreland’s ineffective-
assistance claim, the supreme court stated: “Assuming arguendo that [Moreland] has
proved a deficiency in counsel’s performance, [Moreland] has failed to establish that he
was prejudiced by the deficiency.” Id. at 905.

        We need not address whether Moreland’s counsel were ineffective in not
objecting to the alleged Greenfield violation, because the Ohio Supreme Court’s
determination on the prejudice issue, which was sufficient to reject the claim, was not
an unreasonable application of Supreme Court precedent.

        In Strickland, the Supreme Court explained that, to establish prejudice, a
“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.” 466 U.S. at 694. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, counsel’s
errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. Moreland has not made that demonstration in this case.

        Moreland was tried by a panel of three judges who are presumed to know the law
and apply it in their decisionmaking. Lambrix, 520 U.S. at 532 n.4. He has not
affirmatively shown that this presumption should not apply here. Nothing indicates that
No. 09-3528        Moreland v. Bradshaw                                           Page 28


the three-judge panel relied on Moreland’s statements when they evaluated his
voluntary-intoxication defense. Indeed, the panel heard other evidence undermining
Moreland’s defense. Although Moreland’s expert testified that his blood-alcohol level
would have been between .30 and .36 at the time of the murders and that he would have
been in a stuporous stage and on the verge of a coma, the State presented contrary
evidence on this point. Id. Bruce Shackleford, who observed Moreland around the time
of the murders, testified that Moreland did not appear to be drunk or have difficulty
walking or talking. Samuel Thomas testified that he and Moreland drank alcohol after
the murders. Finally, Dayron testified that Moreland, at the time of the crimes, reloaded
the rifle, suggesting that he remained capable of performing this act. Thus, the State had
already called into doubt Moreland’s intoxication defense before relaying Moreland’s
statements to the three-judge panel. Again, nothing suggests that the panel considered
those statements in their decisionmaking. Hence, Moreland has not shown that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.

       As a fallback argument, Moreland argues that the cumulative effect of counsel’s
errors should be considered in determining whether he has demonstrated a reasonable
probability of a more favorable outcome.          However, “post-AEDPA, not even
constitutional errors that would not individually support habeas relief can be cumulated
to support habeas relief.” Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010)
(quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). This argument therefore
lacks merit.

2. Sentencing Phase Ineffectiveness

       Finally, Moreland has not established that he is entitled to habeas relief based on
the Ohio Court of Appeals’ rejection of his ineffective-assistance-of-counsel claim at the
sentencing phase of his trial. Under 28 U.S.C. § 2254(d), “we review the last state-court
decision to reach the merits of the particular claims being considered.” Davis v. Lafler,
658 F.3d 525, 531 (6th Cir. 2011) (en banc). “Claims of ineffective assistance of
counsel as to the penalty phase of a capital proceeding are analyzed under the same
No. 09-3528         Moreland v. Bradshaw                                           Page 29


two-part Strickland standard described above, and in the context of capital sentencing,
the Supreme Court has made clear that counsel’s Sixth Amendment responsibilities
include a duty to engage in a reasonable investigation concerning aspects of the
defendant’s background that would support a mitigation case.” Jackson v. Houk, 687
F.3d 723, 743 (6th Cir. 2012) (citing Wiggins v. Smith, 539 U.S. 510, 522–23 (2003)).
Moreland argues that his counsel (1) did not engage in a reasonable investigation and
failed to obtain the services of a social worker in preparing for mitigation, (2) failed to
interview and prepare his family members to testify, (3) failed to research Moreland’s
background and the effects of inner-city culture on his upbringing, and (4) failed to
obtain his medical and school records. In rejecting Moreland’s first three arguments in
his petition for post-conviction relief, the Ohio Court of Appeals did not contravene or
unreasonably apply Supreme Court precedent. The court of appeals did not address
Moreland’s claim that his counsel were ineffective in failing to obtain his school and
medical records even though Moreland presented this claim. Regardless of whether we
review that claim de novo or accord it AEDPA deference, Moreland has not established
prejudice.

        First, in rejecting Moreland’s argument that a social worker was needed to assist
trial counsel as a “mitigation specialist,” the Ohio Court of Appeals did not contravene
or unreasonably apply federal law. Ohio v. Moreland, No. 17557, 2000 WL 5933, at
*10-11 (Ohio Ct. App. Jan. 7, 2000). Moreland claims that a social worker would have
assisted in Moreland’s penalty phase defense by: identifying, interviewing, and
preparing witnesses; collecting all pertinent records; researching specific cultural factors
that influenced Moreland’s personality development; identifying and locating expert
witnesses; and assisting in the penalty phase strategy. According to the court of appeals,
an affidavit submitted by the social worker did not identify any discovery or evidentiary
issue that the social worker would be more capable of researching than would a certified
death penalty attorney. Id. at *11. Further, the court reasoned that counsel are presumed
to be capable of preparing for trial on their own. Id. As a result, the court of appeals
rejected this claim.
No. 09-3528         Moreland v. Bradshaw                                           Page 30


        Moreland is correct that under Wiggins v. Smith, 539 U.S. at 524, counsel should
make efforts to discover all reasonably available mitigating evidence. He nevertheless
has not shown what evidentiary issue a social worker would have been better able to
address than his own attorneys. As the court of appeals reasonably concluded, each of
the tasks identified by the social worker in her affidavit were tasks capable of being
performed by Moreland’s own attorneys. Applying the doubly deferential standard of
AEDPA and Strickland to the Ohio Court of Appeals’ resolution of this claim, we agree
that Moreland is not entitled to relief.

        Second, the Ohio Court of Appeals did not contravene or unreasonably apply
federal law when it rejected Moreland’s claim that counsel were ineffective in failing to
interview several family members who could have provided relevant testimony
regarding the intergenerational history of alcohol abuse and violence in Moreland’s
family. In resolving this claim, the Ohio Court of Appeals noted that the only two
people who presented affidavits in which they claimed they were not interviewed were
Moreland’s father and his maternal aunt. Moreland, 2000 WL 5933, at *13. Moreland’s
father’s affidavit essentially recited facts regarding Moreland’s history that indicated his
mother was a violent alcoholic. Id. Moreland’s aunt’s affidavit covered this same topic.
Also, the court noted that Moreland’s counsel’s affidavit specifically stated that
Moreland’s father was interviewed. Id. at *13 n.3. Further, the court of appeals
explained that Moreland’s father testified about Moreland’s mother’s history of
alcoholism and violence during the mitigation phase of trial—the very topics addressed
in his affidavit. Finally, even though Moreland’s aunt did not testify, the court of
appeals concluded that the averments contained in her affidavit were covered by the
father’s testimony. As a result, the court concluded that the failure to interview
Moreland’s aunt did not prejudice Moreland and his claim was properly denied.

        In objecting to the court of appeals’ analysis, Moreland argues that counsel failed
to prepare his father to testify, but Moreland’s father’s assertions to that effect were
contradicted by Moreland’s counsel’s affidavit. Moreland’s father averred that he had
no prior contact with Moreland’s trial attorneys before testifying and that he did not
No. 09-3528         Moreland v. Bradshaw                                            Page 31


know what was expected of him. Yet Moreland’s counsel claim that they interviewed
his father. Further, even if Moreland’s counsel did not adequately prepare Moreland’s
father for testifying, as his father claimed in his affidavit, the court of appeals concluded
that Moreland’s father’s testimony at trial established the salient facts contained in his
affidavit. Id.

        Also, while Moreland is correct that contacting, in his words, “a handful of
family members before trial” does not automatically render counsel’s investigation
constitutionally adequate, see Johnson v. Bagley, 544 F.3d 592, 602-03 (6th Cir. 2008),
the additional testimony of the identified family members would have been cumulative
and added little or no extra mitigating value, as was the case in Sutton v. Bell, 645 F.3d
752, 760 (6th Cir. 2011). Moreland’s trial counsel confirmed that, in addition to his
father, the only other family members they spoke with were Moreland’s two brothers.
But, as the court of appeals noted, the affidavit of Moreland’s aunt essentially discussed
the alcohol abuse and violence in Moreland’s family—topics addressed by Moreland’s
father in his testimony. The affidavits submitted by Moreland’s other relatives,
including those of Kenny Obie, Mattie L. Willams, and Otis Ayers, add nothing new to
this picture.

        Moreland reads the court of appeals’ analysis as addressing only whether there
was prejudice under Strickland, and not as addressing whether counsel’s performance
was deficient. Even so read, the prejudice analysis was sufficient to support the court’s
rejection of the claim, and was not an unreasonable application of federal law under
AEDPA.

        Third, the Ohio Court of Appeals also did not contravene or unreasonably apply
federal law in rejecting Moreland’s argument that counsel were ineffective by failing to
obtain a cultural expert to explain Moreland’s background and the effects of inner-city
culture on his development. Moreland claims that the three-judge panel never heard
about “the psychological and psychosocial limitations with which he entered adulthood
and which had their clear beginnings in a chaotic childhood, his alcohol dependence and
drug usage and the severity of those conditions, and his dysfunctional and avoidant
No. 09-3528         Moreland v. Bradshaw                                            Page 32


pattern of coping with interpersonal conflict.” Moreland submitted an affidavit of a
social worker who would have testified that Moreland’s upbringing in an inner-city
environment helped to shape his development and that Moreland was, as the court of
appeals noted in reviewing the affidavit, “locked into the culture totally.” Moreland,
2000 WL 5933, at *10. According to the social worker, Moreland’s background made
him into a “maximum underachiever” who maintained his own level of integrity and
ethics. Id. This information, he contends, would have assisted him in establishing the
complexity of his relationships with the victims. Moreland also contends the evidence
would have provided him with evidence of “strong provocation” for mitigation purposes.

        The court of appeals held that it could not “conclude from this affidavit that the
failure to procure such testimony at the guilt/innocence phase of trial fell below a
reasonable standard or that it would have changed the outcome of the trial.” Id. The
court also saw this issue as one of strategy. The record indicated that trial counsel
employed a strategy during the penalty phase emphasizing that Moreland’s chronic
alcoholism caused him to lack the substantial capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the law. Moreland’s
counsel contended that they emphasized this factor because they believed it to be
Moreland’s strongest argument. Counsel nevertheless stated that they also raised other
mitigating factors, including provocation, but chose not to emphasize those factors as
they were weaker arguments. The court of appeals held that the emphasis of one trial
strategy over another did not rise to the level of ineffective assistance of counsel. Id.

        The court of appeals’ reasonably concluded that the failure to introduce this
evidence did not fall below a reasonable standard and would not have changed the
outcome of the trial. Moreland argues that the ABA standards in effect at the time of his
trial required counsel to “explore all avenues leading to facts relevant to the merits of the
case and the penalty in the event of conviction.” Bobby v. Van Hook, 130 S. Ct. 13, 17
(quoting 1 A.B.A. Standards for Criminal Justice 4-4.1, p.4-53 (2d ed. 1980)); see also
Wiggins, 539 U.S. at 524. But “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to
No. 09-3528         Moreland v. Bradshaw                                            Page 33


assist the defendant at sentencing.” Wiggins, 539 U.S. at 533. Moreland’s counsel
believed that emphasizing the effect of Moreland’s chronic alcoholism on his capacity
to appreciate the criminality of his conduct constituted Moreland’s strongest argument.
Counsel nonetheless presented additional mitigating evidence, including evidence that
addressed the statutory mitigating factor of its being “unlikely that the offense would
have been committed, but for the fact that the offender was under duress, coercion, or
strong provocation.” Ohio Rev. Code Ann. § 2929.04(B)(2).

        The court of appeals alternatively concluded that the failure to introduce this
evidence was not prejudicial. This separate conclusion, while not supported by
articulated reasons, appears reasonable. We need not discuss it further, however,
because the state court’s adequate performance analysis is both reasonable and sufficient
to uphold its decision.

        Finally, Moreland has not shown that he is entitled to habeas relief on the ground
that counsel failed to obtain his medical and educational records. Although Moreland
presented this issue in his petition for post-conviction relief, the court of appeals did not
address it. We need not determine whether AEDPA deference applies because the
contention fails even on de novo review. Moreland has not established prejudice with
respect to this claim. Although in Poindexter v. Mitchell, 454 F.3d 564, 578–79 (6th Cir.
2006), the failure to request medical, educational, and governmental records supported
our conclusion that counsel failed to conduct a constitutionally adequate investigation,
it is unclear how Moreland’s counsel’s failure to uncover these records would have
presented any significant factors in assessing Moreland’s background. The three-judge
panel heard testimony from Dr. Arthur Schramm about Moreland’s history of alcohol
abuse. Moreland identifies no other relevant medical conditions about which the panel
should have been informed. He also does not explain how his school records would
have assisted the panel in understanding his background. Aside from claiming deficient
performance on the part of counsel, Moreland leaves the court to speculate about what
might be included in his records and how those records would have had any bearing on
the outcome at sentencing. Strickland prejudice has not been shown.
No. 09-3528      Moreland v. Bradshaw                   Page 34


                                        III.

      The judgment of the district court is affirmed.
