           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Gulertekin v. Tinnelman-Cooper             No. 01-3920
        ELECTRONIC CITATION: 2003 FED App. 0287P (6th Cir.)
                    File Name: 03a0287p.06                                                    _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: John P. Feldmeier, SIRKIN, PINALES,
                  FOR THE SIXTH CIRCUIT                                   MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant.
                    _________________                                     Diane Mallory, OFFICE OF THE ATTORNEY GENERAL,
                                                                          CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
 FUGEN GULERTEKIN ,               X                                       for Appellee. ON BRIEF: John P. Feldmeier, Marc D.
          Petitioner-Appellant, -                                         Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ,
                                   -                                      Cincinnati, Ohio, for Appellant. Diane Mallory, OFFICE OF
                                   -  No. 01-3920                         THE ATTORNEY GENERAL, CORRECTIONS
           v.                      -                                      LITIGATION SECTION, Columbus, Ohio, for Appellee.
                                    >
                                   ,                                                          _________________
 DEBORAH TINNELMAN -               -
 COOPER , Warden,                  -                                                              OPINION
         Respondent-Appellee. -                                                               _________________
                                   -
                                  N                                         SILER, Circuit Judge.          Petitioner-appellant Fugen
      Appeal from the United States District Court                        Gulertekin appeals the district court’s denial of her petition
     for the Southern District of Ohio at Columbus.                       for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For
    No. 00-00808—James L. Graham, District Judge.                         the following reasons, we affirm the decision of the district
                                                                          court.
                   Argued: February 7, 2003
                                                                                               BACKGROUND
             Decided and Filed: August 14, 2003                             Gulertekin’s conviction arises from events which occurred
                                                                          on June 12, 1997. Gulertekin, a citizen of Turkey who holds
   Before: SILER and ROGERS, Circuit Judges; GWIN,                        a Master’s Degree from Ohio State University in special
                    District Judge.*                                      education and early childhood education, was caring for
                                                                          Patrick Lape, a five-month-old infant, in her home.
                                                                          According to Gulertekin’s testimony, in the early afternoon
                                                                          on that date, Gulertekin was changing Patrick’s diaper before
                                                                          his nap when he began to choke and vomit. Patrick stopped
                                                                          breathing and Gulertekin administered first the Heimlich
                                                                          maneuver and then CPR. At some point she called for her
                                                                          thirteen-year-old daughter, who was also in the house, to call
    *
     The Ho norable James S. Gwin, United States District Judge for the   911. The baby, however, started breathing again, so the call
Northern District of Ohio, sitting by designation.

                                  1
No. 01-3920               Gulertekin v. Tinnelman-Cooper              3    4        Gulertekin v. Tinnelman-Cooper                      No. 01-3920

was discontinued. A few minutes later, when Patrick again                  after his injury. She testified that Patrick’s injuries were
stopped breathing, Gulertekin called her daughter to renew                 probably sustained within one hour before the paramedics
the call to 911, and resumed her attempts at resuscitation.1               were called, and that they could not have happened by
Emergency personnel arrived and Patrick was taken to                       accident.
Children’s Hospital in Columbus, Ohio. Upon his arrival, Dr.
Carla Hauersperger (a pediatrician who examined and treated                  The jury found Gulertekin guilty of both offenses charged
Patrick) diagnosed him with “a closed head injury, seizure,                in the indictment. The court sentenced her to eight years
possible aspiration pneumonia, bilateral retinal hemorrhage                imprisonment. She appealed her convictions to the Ohio
and occipital skull fracture.”                                             Tenth District Court of Appeals, which affirmed on
                                                                           December 3, 1998. She then sought to appeal to the Supreme
  Gulertekin was indicted on one count of felonious assault                Court of Ohio, but it declined to accept jurisdiction over the
and one count of child endangering. At trial, three physicians             direct appeal. She filed a petition for post-conviction relief
testified for the state. Dr. Hauersperger stated that she had              with the trial court on September17, 1998, one day after the
suspected child abuse, based on Patrick’s injuries, so she                 180-day deadline. The court dismissed the petition for lack
ordered the medical photographer for the hospital to come to               of jurisdiction, due to the late filing. She appealed this
the Emergency Department and take photographs of Patrick.                  dismissal to the Ohio Tenth District Court of Appeals, which
Dr. Hauersperger also ordered several consultations of other               affirmed. Gulertekin then filed a petition with the Ohio
physicians, including Dr. Charles Johnson, the director of the             Supreme Court, requesting it to accept jurisdiction over her
Child Abuse Division of the hospital. Dr. Johnson, who is                  post-conviction appeal, but it was denied. She filed the
also a professor of pediatrics at the Ohio State University                current habeas petition with the federal district court on July
College of Medicine and has published articles on shaken                   20, 2000, asserting six grounds for relief.2 The district court
baby syndrome, testified as well. Dr. Johnson stated his                   dismissed the petition, finding that her claims were
opinion that the injuries to Patrick’s brain occurred within               procedurally defaulted and that her claim of actual innocence
minutes of the manifestation of his symptoms, that these                   was insufficient to excuse such default.
injuries were caused by his being severely shaken, and that
there was nothing in the history he had been given to indicate
an accident. Dr. Elizabeth Gilles, a child neurologist at the
hospital and an assistant professor of neurology and pediatrics
at Ohio State University, also testified. Dr. Gilles has
                                                                               2
previously testified as an expert in pediatric child abuse and                     These ground s were as follows:
neglect, has written articles on shaken baby syndrome, and
was called in as a consultant to examine Patrick several weeks                 (1) ineffective assistance of counsel; (2) denial of due p rocess,
                                                                               a fair trial, and an impartial jury based o n trial court’s
                                                                               manipulative and coercive tactics toward a deadlocke d jury;
    1
                                                                               (3) denial of due process, a fair trial, and effective representation
      The government asserts in its brief that “[a]t approximately 1:00        of counsel due to government’s violation of the Vienna
p.m., two 911 calls were placed from Gulertekin’s home, both resulting         Convention on Consular Relations; (4 ) prosecuto rial misco nduc t,
in hang-up s. W hen the police dispatcher called back , Gulertekin’s 13-       concealment of exculpatory and mitigating evidence, and
year-old daughter answered the telephone and stated that a baby was            coerced incriminating statements; (5) denial of a fair trial and
choking.” This account comports with the facts re counted b y the Ohio         due process of law due to severe and prejudicial evidentiary
Court of Appeals, in its opinion rendered on December 3, 1998.                 errors by the trial court; and (6) actual innocence.
No. 01-3920             Gulertekin v. Tinnelman-Cooper           5    6      Gulertekin v. Tinnelman-Cooper              No. 01-3920

                 STANDARD OF REVIEW                                   November 26, 1997, the jurors submitted a note to the trial
                                                                      judge, asking, “What do you suggest when some jurors feel
  In a habeas proceeding, this court reviews a district court’s       strongly one way, and one or two jurors feel strongly the
legal conclusions de novo and its factual findings for clear          other way?”
error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
Further:                                                                The judge noted that the same question had been posed by
                                                                      the jurors the day before, after they had been deliberating for
  In all cases in which a state prisoner has defaulted his            less than two hours. The judge then gave the standard
  federal claims in state court pursuant to an independent            “Howard charge,” and the jury returned to the jury room at
  and adequate state procedural rule, federal habeas review           10:45 a.m. Shortly after 11:00 a.m., another note was sent to
  of the claims is barred unless the prisoner can                     the trial judge asking whether one of the jurors could be
  demonstrate cause for the default and actual prejudice as           replaced by an alternate juror. The note stated in part that
  a result of the alleged violation of federal law, or                Juror No. 3 “would like to be replaced because I am not able
  demonstrate that failure to consider the claims will result         to reach the decision of everyone else.”
  in a fundamental miscarriage of justice.
                                                                         At 11:20 a.m., the trial judge held a discussion with the
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “Whether               attorneys for both sides, out of the presence of the jury. The
a state court rested its holding on procedural default so as to       judge expressed concern that Juror No. 3 was not deliberating,
bar federal habeas review is a question of law” reviewed de           and further related that “[i]t’s also come to my understanding
novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).              from the bailiff that – I have seen her do this – that whenever
This court looks to the last explained state-court judgment           they are on break she’s on a cell phone. It is my
when answering that question. Id.                                     understanding from the bailiff that she’s called her boyfriend
                                                                      to come pick her up. She’s not been excused from this jury.”
                        DISCUSSION                                    The judge then asked counsel what they wanted to do, and
                                                                      whether they wanted to excuse the juror, noting that
A. Procedural Default                                                 “yesterday the comment was that she doesn’t want to be the
                                                                      one responsible for making the decision in this case.” In the
  1.   Juror Coercion                                                 discussion which ensued, the judge further expressed her
   In her second claim on habeas, Gulertekin asserts that “her        intention to have the bailiff remove the juror’s cell phone,
rights to due process, a fair trial, and an impartial jury. . .were   because:
violated when the trial judge effectively directed the jury to            For her to call her boyfriend to come pick her up to me
return a guilty verdict.” This claim stems from a series of               is communicating about the case. That’s a violation of
events which occurred during the jury’s deliberations. The                the oath. . . . It’s now been brought to my attention that
jury initially began deliberating at 1:00 p.m. on November 25,            she’s also called her mother yesterday, now she’s calling
1997. At 2:42 p.m. the jury was admonished and given a                    her boyfriend to come pick her up. Maybe she’s not
fifteen minute recess. The jury continued deliberating until              talking about the substance of the case, but I don’t think
7:25 p.m., at which time they were admonished and recessed                it’s appropriate to have that cell phone back there so I’m
until the next morning. At approximately 9:45 a.m. on                     going to ask the bailiff to take the cell phone.
No. 01-3920           Gulertekin v. Tinnelman-Cooper          7   8      Gulertekin v. Tinnelman-Cooper              No. 01-3920

  The trial judge asked the attorneys whether they wanted to          [DEFENSE COUNSEL]: Well, I think you need to
voir dire the juror, in chambers, in order to determine whether                          make it not just to her, but to
she was refusing to deliberate. Defense counsel stated his                               all of the jurors.
opinion that “it is inappropriate for us to intrude into the
deliberating process” and that the court should not “creat[e]         THE COURT:                  Bring them out here. We’ll
an intrusive atmosphere with regard to that juror.” He                                            do that.
suggested that the next step would be to ask the jury
foreperson whether further deliberations would be productive      Upon the jury’s entry into the courtroom, the judge read the
and, if he answered in the negative, to declare a mistrial (to    note aloud, noted that it posed the same question as was
which the court stated that an insufficient period of time had    submitted by the jury the day before, and stated:
elapsed since the giving of the Howard charge to declare a
mistrial). Defense counsel then reiterated his objection to           Our response is still the same, you are all members of
“pull[ing] one juror out of deliberations and interrogat[ing]         this jury. You have not been excused from this jury. I
them in the middle of deliberations.” A further exchange              have given you the instructions. I have just given you
occurred regarding the judge’s concern that Juror No. 3 was           additional instructions on how you are to conduct
not deliberating and her use of the cell phone, to which              yourselves in the deliberation room. I’m telling you to
defense counsel responded, “Your Honor, the question and              go back there and deliberate on this case.
the answer, seem to me, do not infer juror misconduct. . . .             I would like anybody who has got a cell phone to turn
My suggestion is, frankly, the answer to the question is no,          it in to the bailiff. You are not allowed to have any
she can’t be removed.” The remaining dialogue was as                  communications concerning this case either in the
follows:                                                              deliberation room or outside of the deliberation room.
                                                                      The admonition that I have given you applies throughout
  THE COURT:                  Okay. Then what I’ll tell her           the entire trial. The only time you are allowed to discuss
                              she can’t be removed, hand              this case is among yourselves while you are deliberating
                              over the cell phone. She’s              in the deliberation room. This also applies to calling
                              not allowed to have any                 anyone on the outside, such as a mother or boyfriend to
                              contact with anyone out of              come pick them up because that’s not going to happen.
                              the jury deliberation room                 Now, I’m going to ask you to turn over the cell phones
                              regarding this case.                    to the bailiff, go back into the deliberation room and
                                                                      continue your deliberations.
  [DEFENSE COUNSEL]: During the deliberations, or I
                     don’t know, you can get –                    The jury was given the admonition and recessed during the
                                                                  noon hour; they resumed deliberations after lunch, and
  THE COURT:                  Outside the process here. I         returned a verdict of guilty on both counts at 1:50 p.m. The
                              don’t want her on the breaks        jurors were polled, and each, including Juror No. 3, indicated
                              calling anybody saying come         that this was his or her verdict.
                              pick me up, I can’t do this
                              any more.                              Gulertekin contends that the trial court’s tactics amounted
                                                                  to juror coercion, and has presented an affidavit by Juror No.
No. 01-3920                Gulertekin v. Tinnelman-Cooper                   9   10   Gulertekin v. Tinnelman-Cooper               No. 01-3920

3, Julie Weston Ring, which recounts her feelings that the                      contemporaneous objections to jury instructions) does not
judge’s statements regarding the use of cell phones                             apply to jury instructions given after the jury begins its
                                                                                deliberations; (2) defense counsel did object to the trial
  were directed solely at me, as I had previously used my                       court’s resolution of the situation; (3) the court of appeals
  cell phone to call my boyfriend during a break. In front                      failed to provide a “clear and express” statement that it was
  of the entire courtroom, which was filled with spectators,                    enforcing the state procedural sanction at issue; and (4) this
  news reporters and television cameras, I was then forced                      procedural bar does not constitute an independent and
  to turn over my cell phone to a man I believed to be the                      adequate state ground, separate from federal law. The district
  court’s bailiff. I felt humiliated and degraded by the                        court rejected these arguments upon examination of the
  judge.                                                                        opinion of the Ohio Court of Appeals, dated December 3,
                                                                                1998, the last state court to review the claim.
Ring further avers that the judge’s “statements made me feel
as though she was forcing me to change my position and                             In reviewing this claim on direct appeal, the Ohio Court of
compelling me to vote to convict Mrs. Gulertekin. The                           Appeals first observed that defense counsel did not object to
manner in which Judge O’Neill instructed us made me feel as                     the Howard charge the court had initially given to the jury,
though she was not going to let anyone leave until we had a                     and “further note[d] that no objection was raised to the court’s
conviction.”                                                                    final supplemental instructions which included the court’s
                                                                                admonition to the jurors to ‘go back there and deliberate on
  The district court found this habeas claim to be                              this case.’” The court then reviewed state law, holding that
procedurally defaulted, due to the failure of Gulertekin’s trial                “in the absence of plain error, ‘the failure to object to
counsel to object to the judge’s supplemental instructions, and                 improprieties in jury instructions, as required by Crim. R. 30,
thus declined to address the merits.3 Gulertekin asserts,                       is a waiver of the issue on appeal.’” Gulertekin’s first
however, that the finding of a procedural bar is erroneous,                     argument, that Rule 30 is inapplicable to jury instructions
because (1) Ohio Criminal Rule 30 (requiring                                    given after the jury has begun to deliberate, relies on a single
                                                                                antiquated case, Burnett v. State, 19 Ohio Law Abs. 100
    3                                                                           (1935), which held that a court’s admonition to the jury to
        We have previously held:                                                “try and reach a verdict” after deliberations had started was
    W hen a state argues that a habeas claim is precluded by the
                                                                                not an “additional charge . . . in violation of § 13442-9 GC.”
    pe titioner's failure to observe a state procedural rule, the federal       Neither Gulertekin nor Burnett explains the substance of
    court must go through a complicated analysis. First, the court              § 13442-9 GC, so the import of this holding, thus removed
    must determine that there is a state procedural rule that is                from its context, is dubious. Moreover, while Gulertekin
    applicable to the petitioner's claim and that the petitioner failed         asserts that the state court never used the term
    to com ply with the rule. . . . Second, the court must dec ide              “contemporaneous objection” in reference to the jury coercion
    whether the state courts actually enforced the state procedural
    sanction. . . .Third, the cou rt must decide whethe r the state             claim, the court did state that “counsel failed to object to the
    procedural forfeiture is an "adeq uate an d independent" state
    ground on which the state can rely to foreclose review of a
    federal constitutional claim.

Ma upin v. Sm ith, 785 F.2d 135, 138 (6 th Cir. 1986) (internal citations
omitted).
No. 01-3920                Gulertekin v. Tinnelman-Cooper                11     12   Gulertekin v. Tinnelman-Cooper               No. 01-3920

[supplemental] instruction given at the time.” Therefore, this                  reread the instructions on aggravating circumstances, without
argument is without merit.4                                                     any contemporaneous objection from defense counsel. The
                                                                                jury was sent back to continue its deliberations, and after it
   Gulertekin further maintains that defense counsel’s                          left the courtroom, the defense objected that the judge had
discussion with the trial judge, prior to the giving of the                     indicated that aggravated murder was itself an aggravating
supplemental instruction, in which he voiced disagreement                       circumstance for the purpose of determining penalty. In
with the suggestion of singling out Juror No. 3, did constitute                 reviewing this case, the Supreme Court of Ohio stated:
a contemporaneous objection to the judge’s instruction –
particularly to the court’s admonition against jurors “calling                    We note that the jury question itself was compound in
anyone on the outside, such as a mother or boyfriend to come                      nature and therefore contained a potential for ambiguity.
pick them up.” Gulertekin seeks to distinguish the present                        As a result, the trial court's response ("the answer to that
situation due to the fact that defense counsel had no                             is yes") contained an element of uncertainty as to
opportunity, before the jury was called in, to review the exact                   whether that answer meant, "yes, the aggravating
language the court intended to use in addressing them and                         circumstances are just the kidnapping and rape" or "yes,
lodge any objections. Although this factual scenario is                           the aggravating circumstances include the murder itself."
somewhat unique, it is by no means unprecedented. In State                        We note that defense counsel's objection to the court's
v. Gumm, 653 N.E.2d 253, 264 (Ohio 1995), during                                  response was not made at a point in time at which the
deliberations, the jury sent a two-part question to the trial                     trial court could easily have corrected the ambiguity
judge, asking “Are the aggravating circumstances to Count I                       inherent in its response, and error, if any, might properly
just the kidnapping and attempted rape, or do they also                           be deemed to have been waived.
include the murder itself?” The jury was called into the
courtroom, the court read its question aloud, and the judge                     Id. (emphasis added). This case indicates that the rationale
responded as follows: “The answer to that is 'Yes.' Let me                      behind the contemporaneous objection rule – the timely
read you the instructions on that point.” Id. The judge then                    correction of errors – should be taken into account in
                                                                                determining the import of a failure to object. If defense
                                                                                counsel felt that the judge’s remarks improperly coerced Juror
    4                                                                           No. 3, counsel should have so indicated before the jury
      Mo reover, in State v. Baker, No. CA 86-06-041, 1987 WL 9749              returned its verdict. His reliance on his previous discourse
(Ohio App . Apr. 13, 1987), an Ohio ap pellate court confronted the
question of whether contemporaneous objection was required with regard
                                                                                with the judge regarding the proper course of action, which
to the trial court’s rerea ding of an instruction in response to a jury         resulted in (ostensibly) an agreement, is insufficient to
question. The court discussed Rule 30, acknowledging that “[t]he case at        preserve any objection to the supplemental instructions on
bar is somewhat incongruous to the situation contemplated in the rule in        appeal. What is clear from the record is that counsel objected
that this involves a case where the jury has already retired for                to “pull[ing] one juror out of deliberations and interrogat[ing]
deliberations and has requested a rereading of an instruction.” Id. at *2.
After reviewing the rationale behind the rule (to “enab le[] the court to
                                                                                them.” The trial judge accommodated this objection, and
correct an erro neous instruction or add that which w as imp roperly            instead addressed the entire jury. While the particular
omitted”), the court held that “the requirements of contemporaneous and         reference to calling “a mother or a boyfriend” may have hit
specific objections, necessary before a jury retires to consider its verdict,   home with Juror No. 3, there was nothing explicit in the
are equa lly applicable to a rereading of an instruction or instructions        judge’s admonition regarding cell phones which mentioned
requested by the jury after it has commenced it[s] deliberations.” Id. at
*3.
No. 01-3920           Gulertekin v. Tinnelman-Cooper        13    14   Gulertekin v. Tinnelman-Cooper               No. 01-3920

her by name or juror number, and defense counsel did not            of justice.” State v. Long (1978), 53 Ohio St.2d 91,
object to this admonition.                                          paragraph three of the syllabus.
   Gulertekin also contends that the court of appeals failed to   The court then embarked on a discussion of whether each
provide a “clear and express” statement that its ruling           facet of the trial court’s supplemental instructions constituted
regarding her juror coercion claim was based on the state         plain error. Although the court of appeals mentioned
procedural bar, conducted a “full-blown constitutional review,    “reversible error,” and cited occasionally to federal law, the
not plain error review,” and spoke in terms of “reversible        fact that it found the procedural problem (defense counsel’s
error.” The requirement that a state court invoking a state       failure to object) paramount, and examined only whether this
procedural bar must provide a “clear and express” statement       holding would constitute plain error (or manifest injustice), is
to that effect (the “plain statement” rule) originated in         sufficient to foreclose federal court review on habeas. The
Michigan v. Long, 463 U.S. 1032 (1983), and was applied to        court began discussion of the issue by citing the
the federal habeas context by Harris v. Reed, 489 U.S. 255        contemporaneous objection rule, and returned to counsel’s
(1989). Coleman, 501 U.S. at 732-34. In Coleman v.                failure in this regard several times throughout the analysis.
Thompson, however, the Supreme Court made clear that “[a]         The mentions of “reversible error” can fairly be read to
predicate to the application of the Harris presumption [that      broach the question of whether there was, indeed, any error,
state court opinions lacking such a “clear and express”           let alone one which would constitute manifest injustice if
statement of reliance on a state procedural bar do not preclude   uncorrected. This case properly falls under the rubric of
federal habeas review of the claim at issue] is that the          Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989),
decision of the last state court to which the petitioner          wherein we observed:
presented his federal claims must fairly appear to rest
primarily on federal law or to be interwoven with federal           The [state court of appeals] did not conduct the sort of
law.” Id. at 735.                                                   review of the jury instructions that presumably would
                                                                    have been undertaken had there been a timely objection
  The court of appeals took up the issue of the trial court’s       to them; instead, the court inquired only whether
jury instructions by first recounting the state-law precepts        affirmance of the conviction would “result in manifest
that:                                                               injustice” because of the alleged instructional error. . . .
                                                                    We would be loath to adopt an exception to the “cause
  To preserve on appeal the issue of error in the                   and prejudice” rule that would discourage state appellate
  instructions to a jury, “an appellant must cite an                courts from undertaking the sort of inquiry conducted by
  objection to the instruction on the trial record.” State v.       the [state] court, and we do not believe that the state
  Powers (1995), 106 Ohio App.3d 696, 699. See also                 court’s explanation of why the jury instructions resulted
  State v. Underwood (1983), 3 Ohio St.3d 12, 13 (in the            in no manifest injustice can fairly be said to have
  absence of plain error, “the failure to object to                 constituted a waiver of the procedural default.
  improprieties in jury instructions, as required by Crim. R.
  30, is a waiver of the issue on appeal”). Further,              See also Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)
  “[n]otice of plain error under Crim.R. 52(B) is to be           (“[W]e view a state appellate court’s review for plain error as
  taken with the utmost caution, under exceptional                the enforcement of a procedural default”).
  circumstances and only to prevent a manifest miscarriage
No. 01-3920            Gulertekin v. Tinnelman-Cooper        15    16     Gulertekin v. Tinnelman-Cooper              No. 01-3920

   Gulertekin’s related assertion that the procedural bar at         because the State had made application of the procedural
issue was not an “adequate and independent” ground, separate         bar depend on an antecedent ruling on federal law.”
from federal law, relies on an unpublished Sixth Circuit             Coleman, 501 U.S. at 741. . . .The Coleman Court then
opinion, Knuckles v. Rogers, No. 92-3208, 1993 WL 11874              distinguished that holding by observing simply that “Ake
(6th Cir. Jan. 21, 1993).           In Knuckles, this court          was a direct review case. We have never applied its rule
acknowledged Ohio’s contemporaneous objection rule and               regarding independent state grounds in federal habeas.
the procedural default which resulted from a failure to object,      But even if Ake applies here, it does Coleman no good
but found that since the Ohio appellate court which reviewed         because the Virginia Supreme Court relied on an
the case conducted a plain error analysis, which gauges              independent state procedural rule.” Id. The Supreme
whether a person has been denied a “fair trial” (which, in turn,     Court, then, does not find the mere reservation of
requires the application of federal constitutional law), the         discretion to review for plain error in exceptional
decision was “not independent of federal law.” Id. at *3. We         circumstances sufficient to constitute an application of
have previously held Ohio’s contemporaneous objection rule           federal law.
to constitute an adequate and independent state ground. See          ....
Hinkle, 271 F.3d at 244 (“Ohio’s contemporaneous objection              All in all, we think it is clear that Knuckles, an
rule constitutes an adequate and independent state ground that       unpublished decision of this court, cannot provide
bars federal habeas review absent a showing of cause and             persuasive authority to support a finding that the Ohio
prejudice”); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.          Supreme Court did not rely on an independent state
2000) (objections to trial court’s jury instructions are             procedural ground in disposing of Scott’s challenge to
defaulted because “the court of appeals reviewed them only           the trial court’s penalty-phase instruction on jury
for plain error due to Seymour’s failure to comply with              unanimity.
Ohio’s contemporaneous objection rule. . . .Controlling
precedent in our circuit indicates that plain error review does    Id. at 867-68. Scott also noted that “Harris [v. Reed, 489
not constitute a waiver of state procedural default rules.”);      U.S. 255 (1989)] specifically instructed state courts that. . . .
and Scott v. Mitchell, 209 F.3d 854, 867 (6th Cir. 2000)           ‘By its very definition, the adequate and independent state
(“[T]he Supreme Court [has] specifically found that default        ground doctrine requires the federal court to honor a state
imposed for failure to object contemporaneously as required        holding that is a sufficient basis for the state court’s
by Ohio’s Rule 30 is an adequate and independent state             judgment, even when the state court also relies on federal
ground”).                                                          law.’” Scott, 209 F.3d at 866-67 (quoting Harris, 489 U.S. at
                                                                   264 n.10 (citations omitted)). The Ohio appellate court in this
  In Scott, we criticized Knuckles, observing that:                case invoked the procedural bar imposed by defense
                                                                   counsel’s failure to lodge a contemporaneous objection
  In Coleman, the Court . . . very strongly implied its            sufficiently to preclude federal court review of this claim on
  continued disapproval of the rule . . . ascribe[d] to            habeas.
  Knuckles. As a preamble to its discussion of independent
  state grounds, the Court acknowledged that it had                  2.    Remaining Claims
  previously held Oklahoma’s review for “fundamental
  trial error” before applying state procedural defaults “was        Gulertekin’s remaining claims on habeas are also
  not independent of federal law so as to bar direct review        procedurally defaulted, in that she failed to raise them before
No. 01-3920                 Gulertekin v. Tinnelman-Cooper                17     18     Gulertekin v. Tinnelman-Cooper                    No. 01-3920

the state courts. Her first claim alleges ineffective assistance                 conviction proceedings “rushed through” her petition
of counsel, for defense counsel’s alleged failure to retain or                   (spending 5.25 hours on it) and filed it one day late. As to the
consult with medical experts. While Gulertekin’s petition for                    prejudice element, Gulertekin presents the affidavit of Dr. Jan
post-conviction relief made a general claim of ineffective                       Leestma, a physician who provides consultation in forensic
assistance of counsel, it did not include facts or argument                      aspects of neuropathology, and whose opinions contradict that
concerning this theory. At any rate, the state courts denied                     of the physicians called by the state. Dr. Leestma’s ultimate
this petition, which did specifically allege her third and fourth                opinion is that “the conclusions of these witnesses (that the
claims on habeas (the government’s alleged violation of the                      injuries sustained by the infant could not have been caused
Vienna Convention on Consular Relations and prosecutorial                        unintentionally and could have occurred only within a
misconduct), without reaching the merits, because it was filed                   temporal window of a few hours) cannot be established to a
late. In her briefs to this court, Gulertekin does not revisit the               reasonable degree of medical certainty.” Gulertekin also
imposition of this procedural bar, but proceeds to argue that                    presents two recent articles calling into question whether only
she can show cause and prejudice therefor.                                       extreme violence results in shaken baby syndrome.
B. Cause and Prejudice                                                              Gulertekin cannot use her post-conviction attorney’s
                                                                                 alleged ineffectiveness to establish cause for the procedural
  Gulertekin contends that she can show cause and prejudice                      default, however, because
because any procedural default associated with her habeas
claims is the result of ineffective assistance of counsel.                         [t]here is no constitutional right to an attorney in state
                                                                                   post-conviction proceedings. Consequently, a petitioner
  1.    Ineffective Assistance of Counsel – Failure to                             cannot claim constitutionally ineffective assistance of
        Consult Medical Experts                                                    counsel in such proceedings. . . .[The] attorney’s error
                                                                                   that led to the late filing of [the] state habeas appeal . . . .
  In this claim on habeas, Gulertekin asserts that her trial                       cannot be constitutionally ineffective; therefore
counsel was ineffective in that he did not employ a medical                        [Gulertekin] must bear the risk of attorney error that
expert to investigate Patrick Lape’s medical records and to                        results in a procedural default.
refute the State’s expert testimony. Because this claim was
not presented to the state courts on direct appeal or in her                     Coleman, 501 U.S. at 752-53 (internal citations and quotation
post-conviction proceedings, it is barred. Gulertekin points                     marks omitted). Accordingly, Gulertekin cannot establish
out, however, that she was represented by her trial attorney                     cause sufficient to excuse the procedural default on this claim.
during the direct appeal,5 and that her attorney for the post-
                                                                                   2.    Juror Coercion

    5                                                                              While Gulertekin presented this claim to the state courts on
      Thus, she contends, it could not have be en exp ected that he would        direct appeal, those courts found the claim procedurally
have raised the issue of his own ineffectiveness, nor was the evidence of
record ad equate on direct ap peal to dem onstrate the imp act of his failure
to retain med ical experts. Under Ohio law, when the same attorney
represents a defendant at trial and on direct appeal (as in this case), the
app ropriate forum in which to raise claims of ineffective assistance of trial   will not bar the ineffective assistance claim. State v. Co le, 443 N.E.2d
counsel is in a post-conviction action. In such a situation , res jud icata      169 , 171 n.1 (O hio 1982 ).
No. 01-3920             Gulertekin v. Tinnelman-Cooper          19    20   Gulertekin v. Tinnelman-Cooper             No. 01-3920

defaulted due to trial counsel’s failure to lodge a                   federal habeas petitioner may obtain review of defaulted
contemporaneous objection. As cause for this default,                 claims by showing the failure to conduct such review will
Gulertekin alludes only to “defense counsel’s ineffective             result in a “fundamental miscarriage of justice.” Coleman,
representation,” presumably in failing to object to the               501 U.S. at 750. See also Murray v. Carrier, 477 U.S. 478,
allegedly coercive instructions to the jury. In Edwards v.            496 (1986) (“[I]n an extraordinary case, where a
Carpenter, 529 U.S. 446, 451 (2000), however, the Supreme             constitutional violation has probably resulted in the
Court held that “ineffective assistance adequate to establish         conviction of one who is actually innocent, a federal habeas
cause for the procedural default of some other constitutional         court may grant the writ even in the absence of a showing of
claim is itself an independent constitutional claim,” which can       cause for the procedural default.”). In support, Gulertekin
be procedurally defaulted. Gulertekin has never presented             cites Ring’s affidavit, in which Ring avers that, but for her
this claim (ineffective assistance of trial counsel) to the state     coercion by the trial court, she would have voted to acquit
courts. Once again, her petition for post-conviction review           Gulertekin. Ring also asserts:
presented only a general ineffective assistance of counsel
claim, and was dismissed for having been untimely filed. To             During deliberations, the jurors did not really decide
the extent Gulertekin may assert ineffective assistance of her          whether the State proved Mrs. Gulertekin[] guilty beyond
post-conviction counsel as cause for the procedural default of          a reasonable doubt. Instead, one of the jurors posed the
her claim for ineffective assistance of trial counsel, she is           question as to whether any of us would hire Mrs.
barred by the fact that she has no constitutional right to such         Gulertekin to baby-sit our children. We went around the
counsel. Thus, she is unable to demonstrate cause for the               room and offered our “vote” based on this question. All
procedural default of this claim.                                       the jurors except me and another young juror said they
                                                                        would not hire Mrs. Gulertekin as a baby-sitter. After
  3.   Violation of the Vienna Convention on Consular                   the other juror joined the majority, many of the jurors
       Relations and Prosecutorial Misconduct                           started pressuring me into voting to convict because they
                                                                        wanted to go home for the Thanksgiving holiday.
  These habeas claims are likewise defaulted because
Gulertekin’s attorney filed her post-conviction petition one          Gulertekin also reiterates the conclusions of Dr. Leestma, as
day beyond the deadline, thus depriving the state court of            contained in his affidavit, and the additional articles on
jurisdiction. Gulertekin asserts that the cause for this default,     shaken baby syndrome.
however, is “clearly” ineffective assistance of counsel. Yet
again, as Gulertekin had no right to counsel in her post-                Under Schlup v. Delo, 513 U.S. 298, 324 (1995), a
conviction proceedings, the alleged ineffectiveness of this           petitioner claiming actual innocence must “support his
counsel cannot constitute cause.                                      allegations of constitutional error with new reliable
                                                                      evidence--whether it be exculpatory scientific evidence,
C. Actual Innocence                                                   trustworthy eyewitness accounts, or critical physical
                                                                      evidence--that was not presented at trial.” Further, “[t]o
   Finally, Gulertekin asserts that the district court erred in its   establish the requisite probability, the petitioner must show
finding that her claim of actual innocence did not excuse her         that it is more likely than not that no reasonable juror would
procedural default. In so arguing, she relies on the tenet that,      have convicted him in the light of the new evidence.” Id. at
even without a demonstration of cause and prejudice, a                327. Actual innocence, moreover, “means factual innocence,
No. 01-3920           Gulertekin v. Tinnelman-Cooper        21    22   Gulertekin v. Tinnelman-Cooper              No. 01-3920

not mere legal insufficiency.” Bousley v. United States, 523      Fed. R. Evid. 606(b), that court concluded that she had not
U.S. 614, 623-24 (1998). Thus, actual innocence “does not         met the standards required by Schlup and Murray. That
merely require a showing that a reasonable doubt exists in the    conclusion is correct.
light of the new evidence, but rather that no reasonable juror
would have found the defendant guilty.” Schlup, 513 U.S. at         To answer Gulertekin’s reassertion of Dr. Leestma’s
329.                                                              affidavit, the government recounts the testimony of the three
                                                                  physicians who testified against Gulertekin at trial. Dr.
  The government challenges the propriety of even                 Leestma’s opinions merely undermine this testimony, and do
considering Ring’s affidavit, citing Fed. R. Evid. 606(b),        not “show that it is more likely than not that no reasonable
which provides that                                               juror would have convicted [her] in the light of the new
                                                                  evidence.” Schlup, 513 at 327. Thus, this evidence fails to
  a juror may not testify as to any matter or statement           meet the exacting standards of establishing actual innocence
  occurring during the course of the jury’s deliberations or      pursuant to Schlup.
  to the effect of anything upon that or any other juror’s
  mind or emotions as influencing the juror to assent to or         Similarly unavailing is Gulertekin’s argument pertaining to
  dissent from the verdict . . . or concerning the juror’s        an affidavit by Ian Heyman, an attorney who avers that
  mental processes therewith.                                     Buechner, the lead detective in Petitioner’s case, “volunteered
                                                                  to [Heyman] that from the onset of his involvement [in the
The rule contains an exception, however, that “a juror may        case], he knew that the injuries sustained by the Lape child
testify on the question whether extraneous prejudicial            were the result of an accident.” Heyman also asserts that
information was improperly brought to the jury’s attention or     Buechner acknowledged the existence of a language barrier
whether any outside influence was improperly brought to bear      in Gulertekin’s communications. This affidavit does not
upon any juror.” Id.                                              constitute new reliable evidence, such as “exculpatory
                                                                  scientific evidence, trustworthy eyewitness accounts, or
   While Ring’s allegations regarding how the jurors began        critical physical evidence,” Schlup, 513 at 324, sufficient to
their deliberations would clearly fall into the prohibited        establish actual innocence.
category under Rule 606(b), Gulertekin maintains that the
trial judge’s alleged coercive tactics in rendering the             AFFIRMED.
supplemental instruction regarding cell phones constituted an
impermissible “outside influence” about which Ring may
aver. United States v. Tines, 70 F.3d 891, 898 (6th Cir.
1995), however, makes clear that “[a] jury's interpretation and
application of the court's instructions is a part of the
deliberative process and [is] correctly excluded under Rule
606(b).” Thus, the trial judge’s admonition to the jury
instructing them to “go back and deliberate” and prohibiting
the use of cell phones is not considered an improper outside
influence. Moreover, while Gulertekin points out that the
district court considered Ring’s affidavit without mentioning
