                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                 File Name: 12a0308p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 CEDRIC CARTER,
                                                -
                           Petitioner-Appellant,
                                                -
                                                -
                                                    No. 06-4238
          v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 BETTY MITCHELL, Warden,
                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Cincinnati.
              No. 98-00853—Thomas M. Rose, District Judge.
                              Argued: December 1, 2010
                       Decided and Filed: September 6, 2012
              Before: MARTIN, CLAY, and SUTTON, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Thomas E. Madden,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Keith A. Yeazel, Columbus, Ohio, Gregory W. Meyers, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Holly E. LeClair, Charles E.
Willie, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
       MARTIN, J., delivered the opinion of the court in which CLAY, J., joined, and
SUTTON, J., joined in part. SUTTON, J. (pp. 20–24), delivered a separate opinion
concurring in part and dissenting in part.
                                 _________________

                                      OPINION
                                 _________________

       BOYCE F. MARTIN, JR., Circuit Judge. Cedric Carter appeals the district
court’s denial of his petition for a writ of habeas corpus. An Ohio jury convicted Carter



                                           1
No. 06-4238         Carter v. Mitchell                                                Page 2


of murdering a store clerk while robbing a convenience store and recommended that the
court impose a sentence of death. Carter now asserts fifty grounds for relief in support
of his petition for a writ of habeas corpus, all of which the district court either denied on
the merits or found to be procedurally defaulted.            We granted a certificate of
appealability on two issues: (1) whether the state courts improperly used the “nature and
circumstances” of the offense as aggravating, rather than mitigating, factors; and
(2) whether the district court properly dismissed Carter’s ineffective assistance of
counsel claims because he procedurally defaulted those claims in state court. While the
district court correctly denied habeas relief on the first issue, it erred in finding Carter’s
ineffective assistance of trial counsel claims to be procedurally defaulted. Therefore, we
AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

                                              I.

         We rely on the facts as determined by the state appellate court on direct review.
See, e.g., Girts v. Yanai, 501 F.3d 743, 749 (6th Cir. 2007); see also 28 U.S.C.
§ 2254(e)(1) (providing that in a habeas proceeding “a determination of a factual issue
made by a State court shall be presumed to be correct” unless the applicant rebuts the
presumption “by clear and convincing evidence”). On direct appeal, the Ohio Supreme
Court, State v. Carter, 651 N.E.2d 965, 969–70 (Ohio 1995), set forth the following
facts:

                  In the early morning hours of April 6, 1992, Frances Messinger
         was murdered while working alone as a clerk at a United Dairy Farmers
         convenience store (“UDF”) in Cincinnati. . . . At approximately 2:15
         a.m. on April 6, 1992, Carol Blum, a waitress working directly across the
         street from the UDF, dialed 911 and reported that she had just seen two
         black males running from the UDF. At trial, Blum testified that
         immediately prior to calling 911, she saw two men inside the UDF—one
         man in front of the counter with both arms extended toward the register
         with hands together pointing to something, and the second man behind
         the counter near the register. She saw the man behind the counter bend
         down, and then observed both men run out. The waitress did not see
         Messinger standing at any time while she was observing the incident.
         When Messinger’s body was discovered shortly thereafter, an unmelted
         ice-cream cone was found on the floor of the UDF in the area in front of
         the counter near the exit doors.
No. 06-4238       Carter v. Mitchell                                                  Page 3


               On April 7 one Kenny Hill surrendered himself to authorities in
      connection with the Messinger murder. Based on information provided
      by Hill, police obtained a search warrant for an apartment at which
      Carter was temporarily residing. Carter was arrested in the early
      morning hours of April 8, 1992 during the course of the search which
      followed. During the search the police recovered the murder weapon, a
      .38 caliber Smith & Wesson five-shot revolver manufactured between
      1877 and 1891, the hammer of which must be pulled back manually prior
      to the firing of each round.
               Following his arrest, Carter was taken to police headquarters to
      be interviewed. At approximately 3:50 a.m. Carter signed a waiver of
      rights form, which recited his rights as delineated in Miranda v.
      Arizona. . . . During the tape-recorded statement which followed, Carter
      admitted being present at the UDF during the course of the robbery, but
      initially identified Hill as the shooter. The police then discontinued
      taping the interview, and told Carter his statement was inconsistent with
      statements police had obtained from other witnesses. Upon resumption
      of the taping, Carter admitted that he was the shooter at the UDF
      robbery.
              At trial the state and the defense agreed to many of the facts
      surrounding the robbery. Both parties are in accord that three men were
      involved: Carter, Hill (who also entered the UDF store), and Virgil Sims
      (who drove the car used by Carter and Hill before and after the murder).
      It is undisputed that Carter shot two times and that one bullet lodged in
      a carton of cigarettes in a cabinet behind the cash register, while the
      second struck Messinger in her forehead, killing her.
               Carter testified at the trial and admitted involvement in the crime.
      Carter testified that he entered the UDF first (without a gun) and that Hill
      followed shortly thereafter, carrying with him the .38 caliber Smith &
      Wesson revolver. Carter ordered an ice cream cone, and while
      Messinger was standing at the cash register to accept payment for the
      cone, Hill passed the gun to Carter. Carter denied, however, that he had
      intended to kill Messinger. He testified that he had been a heavy user of
      crack cocaine; that he used significant amounts of alcohol, marijuana and
      crack cocaine during the period leading up to the murder; and that Hill
      was his supplier. Although Carter admitted that he entered the store with
      the intent to rob it, he testified that he and Hill had not talked about
      robbing the store until immediately prior to the robbery. He further
      testified that he never intended to be the one to hold the gun during the
      robbery. He admitted, however, that he knew the gun had bullets, and
      that Hill had showed him earlier in the day how to shoot it. He further
      admitted that before robbing the UDF the three had participated in “a lot”
      of robberies of drug dealers that same evening, and that only Hill had
No. 06-4238         Carter v. Mitchell                                                   Page 4


        used the gun to threaten the victims in those robberies while Carter
        remained in the car. Carter testified that he first fired the gun at the floor
        to scare Messinger as she pushed the gun away and shut the register
        drawer. Carter testified he told Messinger to open the cash register, but
        she refused. He stated that Hill then suggested leaving, and that as they
        turned to leave, he fired a second shot when Messinger began fumbling
        in an apparent attempt to push an alarm button. Carter maintained
        consistently that he did not aim at Messinger, but instead aimed to fire a
        shot by her to scare her, and never intended to shoot her.
                Medical testimony established that Messinger was killed as a
        result of a bullet wound which entered her forehead slightly left of the
        midline. The bullet traveled sharply left to right, and front to rear, with
        a slight upward angle. No stippling or gunpowder burns were found on
        Messinger’s skin, indicating that the gun had been fired from a distance
        greater than one foot.

        In 1992, an Ohio jury convicted Carter of aggravated murder and aggravated
robbery. The trial court adopted the jury’s recommendation and sentenced Carter to
death. On direct appeal, the Ohio Court of Appeals affirmed Carter’s convictions and
sentence, State v. Carter, No. C-920604, 1993 WL 512859 (Ohio Ct. App. Nov. 3, 1993)
(unpublished opinion), as did the Ohio Supreme Court, Carter, 651 N.E.2d at 980. The
United States Supreme Court denied certiorari. Carter v. Ohio, 516 U.S. 1014 (1995).
Carter raised a number of issues at all levels of his direct appeal, including that his trial
counsel were constitutionally ineffective at the penalty phase by eliciting unfavorable
mitigation evidence and failing to call Carter’s mother to testify about his upbringing.
Carter also alleged that the trial court violated his rights by failing to provide the jury
with the transcript of his mitigation expert’s testimony as the jury requested.

        Carter subsequently filed a petition for post-conviction relief in state court, which
the trial court denied. The Ohio Court of Appeals affirmed the trial court’s denial of
Carter’s petition, State v. Carter, No. C-960718, 1997 WL 705487 (Ohio Ct. App. Nov.
14, 1997) (unpublished decision), and the Ohio Supreme Court denied Carter’s request
for further review, State v. Carter, 690 N.E.2d 1287 (Ohio 1998) (unpublished table
decision). The United States Supreme Court denied certiorari. Carter v. Ohio, 525 U.S.
848 (1998). In these petitions Carter again asserted numerous violations of his
No. 06-4238         Carter v. Mitchell                                                Page 5


constitutional rights including that he had been denied the effective assistance of counsel
at the penalty phase of trial.

        In 1998, Carter filed a petition in federal court, alleging fifty grounds for habeas
relief. One of these claims asserted that Carter received constitutionally ineffective
assistance of counsel during his direct appeal. Because Carter had not yet pursued this
claim in the Ohio courts, in 1999 he filed an application to reopen his direct appeal under
Ohio Rule of Appellate Procedure 26(B). This was several years after the filing deadline
and the Ohio Court of Appeals denied his application on the basis that Carter had not
demonstrated good cause for his untimely filing. State v. Carter, No. C-920604, 1999
WL 33441359 (Ohio Ct. App. Oct. 21, 1999) (unpublished opinion). Carter did not
appeal that decision to the Ohio Supreme Court.

        In 2000, Carter filed a second application to reopen his direct appeal under Rule
26(B). The Ohio Court of Appeals again denied this application, and the Ohio Supreme
Court affirmed this decision on the basis of res judicata. State v. Carter, 757 N.E.2d 362
(Ohio 2001).

        In 2003, Carter filed a second petition for post-conviction relief in the state trial
court, arguing that his mental retardation precluded his execution under Atkins v.
Virginia, 536 U.S. 304 (2002). The trial court denied this petition but the Ohio Court
of Appeals reversed and ordered the trial court to conduct an evidentiary hearing. State
v. Carter, 813 N.E.2d 78 (Ohio Ct. App. 2004). However, Carter subsequently
dismissed this petition voluntarily.

        After the collateral proceedings in state court ended, the district court addressed
Carter’s habeas petition. The court ultimately accepted the recommendation of the
magistrate judge to whom it had referred the matter and dismissed Carter’s petition as
meritless. Carter v. Mitchell, No. 1:98-CV-853, 2006 WL 2334853 (S.D. Ohio
Aug. 10, 2006). However, the district court granted Carter a certificate of appealability
on his twenty-seventh ground for relief, the issue of whether the state courts improperly
used the “nature and circumstances” of the offense as aggravating, rather than
mitigating, factors. Upon review, we granted a certificate of appealability on the issue
No. 06-4238         Carter v. Mitchell                                               Page 6


of whether the district court properly dismissed Carter’s ineffective assistance of counsel
claims because he procedurally defaulted those claims in state court.

                                            II.

        Carter argues that the Ohio sentencing court relied on the nature and
circumstances of his offense as a nonstatutory aggravating factor in violation of the
Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. While
the sentencing court impermissibly and improperly considered nonstatutory aggravating
factors, this error was cured by the Ohio Supreme Court’s independent review, which
affirmed Carter’s death sentence after considering only permissible factors.

A.      Standard and Framework for Review

        We review a district court’s habeas rulings de novo. Simpson v. Jackson,
615 F.3d 421, 428 (6th Cir. 2010). Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d), when a state court adjudicates a claim on the
merits, we can grant the writ only if the state court’s adjudication:

        (1) resulted in a decision that was contrary to, or involved an
        unreasonable application of, clearly established Federal law, as
        determined by the Supreme Court of the United States; or (2) resulted in
        a decision that was based on an unreasonable determination of the facts
        in light of the evidence presented in the State court proceeding.

A state-court decision is contrary to clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision is an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.;
see Simpson, 615 F.3d at 428.

        When the state court does not address the merits of a claim, the AEDPA
provisions do not apply and a federal court reviews the petitioner’s legal claim de novo.
No. 06-4238        Carter v. Mitchell                                              Page 7


Maples v. Stegall, 340 F.3d 433, 436–37 (6th Cir. 2003) (citing Wiggins v. Smith,
539 U.S. 510, 534 (2003)). However, the Supreme Court recently held that the
provisions of section 2254(d) do apply when the state court’s decision is unaccompanied
by any explanation. Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 784 (2011). In
that situation, a habeas petitioner may meet his or her burden by “showing there was no
reasonable basis for the state court to deny relief.” Id.

       The Ohio Supreme Court’s opinion on Carter’s direct appeal independently
reweighed the aggravating and mitigating factors, but did not provide any reasoned
analysis in denying this claim. 651 N.E.2d at 970. The Ohio Court of Appeals had
addressed this claim in somewhat greater detail, but did so solely in the context of state
law, even though Carter had raised federal constitutional considerations as part of his
claim. 1993 WL 512859, at *12–13. Despite the lack of analysis, Richter requires that
we review the decisions of the Ohio state courts to see if the result is contrary to or an
unreasonable application of federal law. See 131 S. Ct. at 784; see also Vasquez v.
Jones, 496 F.3d 564, 569 (6th Cir. 2007).

B.     Whether the Sentencing Court’s Consideration of Nonstatutory
       Aggravating Factors Violated Carter’s Constitutional Rights.

       Carter maintains that the trial court improperly utilized the nature and
circumstances of his offense as an aggravating factor to justify imposing the death
penalty in violation of the Eighth Amendment and the Due Process Clause of the
Fourteenth Amendment. Under Ohio law, the death penalty may be imposed only if one
or more statutory aggravating factors are present. Ohio Rev. Code Ann. § 2929.04
(West 2011); State v. Wogenstahl, 662 N.E.2d 311, 320–21 (Ohio 1996). Ohio law
permits the consideration of the nature and circumstances of the offense as mitigating
factors, but they are not statutory aggravating factors. Wogenstahl, 662 N.E.2d at 321
(interpreting the Ohio code and holding that “it is wholly improper for the state to argue
or suggest that the nature and circumstances of the offense are ‘aggravating
circumstances’”). While Carter’s claim stems from an alleged violation of Ohio law,
“[s]tate-law errors may warrant habeas relief if the errors ‘rise for some other reason to
No. 06-4238           Carter v. Mitchell                                            Page 8


the level of a denial of rights protected by the United States Constitution.’” Hoffner v.
Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Barclay v. Florida, 463 U.S. 939,
957–58 (1983)).

           Here, Carter’s claim implicates the Eighth Amendment because statutory
aggravating factors play the “constitutionally necessary function” of circumscribing the
class of persons eligible for the death penalty, such that the death penalty is not imposed
in an arbitrary and capricious fashion. See Zant v. Stephens, 462 U.S. 862, 878–79
(1983). In addition, this claim implicates the Due Process Clause because a “defendant
has a legitimate interest in the character of the procedure which leads to the imposition
of sentence even if he may have no right to object to a particular result of the sentencing
process.” Gardner v. Florida, 430 U.S. 349, 358 (1977); see, e.g., Hoffner, 622 F.3d at
495–96 (determining whether the state court’s consideration of the nature and
circumstances of the offense as an aggravating factor violated petitioner’s due process
rights).

           The record is replete with evidence that the trial court considered nonstatutory
aggravating factors, including the victim’s status as a wife and mother; Carter’s physical
appearance; the fact that Carter was an unemployed, “lazy” “hoodlum” who had taken
the “productive life” of the victim; and the court’s inference that “the last moments in
the life of Frances Messinger . . . must have been filled with great horror and pain.”
However, this Court has previously held that the “consideration of a non-statutory
aggravating circumstance, even if contrary to state law, does not violate the
Constitution.” Smith v. Mitchell, 348 F.3d 177, 210 (6th Cir. 2003) (citing Barclay,
463 U.S. at 939); see Hoffner, 622 F.3d at 495–96; Slagle v. Bagley, 457 F.3d 501, 521
(6th Cir. 2006).

           Additionally, any error the sentencing court may have made in this regard is no
longer relevant because of the Ohio Supreme Court’s independent review. If a
sentencing court considered impermissible factors when balancing the aggravating
factors against the mitigating factors, a state appellate court may cure that error by
independently reweighing the factors without considering those that are improper.
No. 06-4238         Carter v. Mitchell                                               Page 9


See, e.g., Slagle, 457 F.3d at 521. Here, the Ohio Supreme Court’s opinion reweighed
the aggravating and mitigating factors without considering the nature and circumstances
of the offense as an aggravating factor. Therefore, any error the sentencing court may
have made by considering these nonstatutory aggravating factors did not violate Carter’s
constitutional rights, and the district court correctly denied habeas relief on Claim 27 of
Carter’s petition for habeas relief.

                                            III.

        The district court also accepted the magistrate judge’s recommendation that
Carter procedurally defaulted his claims based on having received constitutionally
ineffective assistance of counsel. However, the record reveals that Carter properly raised
his claims based on ineffective assistance of trial counsel at the penalty phase in both his
direct appeal and state collateral proceedings, and the district court erred by concluding
otherwise. While the district court correctly determined that Carter’s fiftieth ground for
relief, based on ineffective assistance of appellate counsel, is procedurally defaulted,
Carter properly preserved the claims based on ineffective assistance of trial counsel
during the mitigation stage raised in his twenty-eighth and twenty-ninth grounds for
relief. Therefore, we remand for the district court to determine in the first instance
whether Carter is entitled to the writ based on his counsel’s performance at the
mitigation stage of the proceedings.

A.      Standard and Framework for Review

        We review de novo a district court’s determination that a claim is procedurally
defaulted. Dietz v. Money, 391 F.3d 804, 808 (6th Cir. 2004); Munson v. Kapture,
384 F.3d 310, 313 (6th Cir. 2004); see Gall v. Scroggy, 603 F.3d 346, 351 (6th Cir.
2010). “[A] petitioner may procedurally default a claim by failing to raise a claim in
state court, and pursue that claim through the state’s ordinary appellate review
procedures.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)) (internal quotation marks omitted).
To avoid procedurally defaulting a claim, the prisoner must have exhausted his or her
No. 06-4238         Carter v. Mitchell                                              Page 10


remedies in state court. O’Sullivan, 526 U.S. at 842; see also 28 U.S.C. § 2254(b)(1)(A).
Once a federal claim has been “fairly presented” at the first possible opportunity within
“one complete round of the State’s established appellate review process,” the claim has
been exhausted. Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004); Clinkscale v.
Carter, 375 F.3d 430, 437 (6th Cir. 2004). If a prisoner failed to exhaust his or her state
court remedies and state law would no longer permit the petitioner to raise the claim
when he or she files a petition for habeas relief in federal court, the claim is procedurally
defaulted. Williams, 380 F.3d at 967.

         Under Ohio law, a claim must be presented on direct appeal if all of the facts
necessary to develop the claim were available at the time. Otherwise, the claim will be
barred by res judicata. See Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); see Alley
v. Bell, 307 F.3d 380, 385 (6th Cir. 2002).

         Similarly, “[u]nder the procedural default doctrine, a federal court is generally
barred from considering an issue of federal law arising from the judgment of a state court
if the state judgment rests on a state-law ground that is both independent of the merits
of the federal claim and an adequate basis for the state court’s decision.” Munson,
384 F.3d at 313–14 (internal quotation marks and alterations omitted). “In situations in
which a petitioner has failed to fairly present federal claims to the state courts, and a
state procedural rule now prohibits the state court from considering them, the claims are
considered procedurally defaulted.” Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir.
2009).

         A petitioner may overcome a state’s procedural default defense by showing
“cause” and “prejudice” for his or her failure to comply with the state’s procedural rule.
See Ege v. Yukins, 485 F.3d 364, 378 (6th Cir. 2007).

B.       Ground for Relief 50: Ineffective Assistance of Appellate Counsel

         Carter asserts that he was denied the right to effective assistance of appellate
counsel. In Ohio, claims of ineffective assistance of appellate counsel are not cognizable
in the normal course of post-conviction proceedings, and must be raised through an
No. 06-4238         Carter v. Mitchell                                            Page 11


application to reopen the direct appeal pursuant to Ohio Rule of Appellate Procedure
26(B). State v. Murnahan, 584 N.E.2d 1204, 1208–09 (Ohio 1992); see, e.g., Hoffner,
622 F.3d at 504. Rule 26(B) provides that applications to reopen based on ineffective
assistance of appellate counsel must be filed “within ninety days from the journalization
of the appellate judgment unless the applicant shows good cause for filing at a later
time.” Ohio R. App. P. 26(B).

       Carter did not file his application to reopen with the Ohio Court of Appeals until
June 9, 1999. This was over five years after the journalization of the judgment on direct
appeal, and the court dismissed Carter’s application on the basis that it was untimely and
he had not shown good cause for the late filing. Carter did not appeal this decision to
the Ohio Supreme Court.

       Subsequently, Carter filed another application under Rule 26(B) on September
28, 2000. The Ohio Court of Appeals denied Carter’s petition on the basis that the rule
does not permit successive applications. The Ohio Supreme Court affirmed, holding that
because Carter had not appealed the initial denial, res judicata barred consideration of
this application.

       Carter notes that there is some uncertainty in our case law as to whether Ohio
regularly applied the timeliness requirement in Rule 26(B) at the time of his initial
application such that it may be an independent and adequate state procedural rule that
can trigger a procedural default. See Hoffner, 622 F.3d at 504 (collecting cases).
However, regardless of the timeliness issue, Carter’s failure to appeal the Court of
Appeals’ initial denial of his application forecloses our review. Because Carter did not
appeal the denial of his initial Rule 26(B) application, he did not give the Ohio Supreme
Court a full or fair opportunity to rule on it. Cf. O’Sullivan, 526 U.S. at 842. Therefore,
the district court correctly concluded that Carter’s fiftieth ground for relief based on
ineffective assistance of counsel is procedurally defaulted.

       Counsel’s failure to appeal this decision is not cause to excuse this procedural
default. A Rule 26(B) application is a collateral challenge to which petitioners do not
have the right to assistance of counsel. See Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir.
No. 06-4238        Carter v. Mitchell                                             Page 12


2005) (en banc). Because Carter had no right to counsel at this stage of the proceedings,
counsel’s deficient performance cannot establish cause to excuse the procedural default.
Cf. Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2006) (holding that ineffective
assistance of state post-conviction counsel was not cause to excuse a procedural default).
Therefore, because Carter procedurally defaulted this claim and has not established
cause to excuse that default, we may not address it. Additionally, as the district court
concluded, because this claim is procedurally defaulted, any ineffectiveness of appellate
counsel cannot be “cause” to excuse other grounds for relief that Carter procedurally
defaulted.

C.     Claims 28 & 29: Ineffective Assistance of Counsel at the Penalty Phase

       Among the several grounds for relief that Carter raised in his petition for a writ
of habeas corpus, ground twenty-eight is based on his having received ineffective
assistance of counsel during the mitigation phase of trial. Relatedly, ground twenty-nine
is based on counsel’s ineffectiveness resulting in the court excluding evidence from the
mitigation stage of Carter’s trial. The district court concluded that both of these grounds
were procedurally defaulted. These two grounds for relief fall within the additional
certificate of appealability we granted.

       The district court erred by finding that Carter failed to raise these issues before
the state court. In contrast to the district court’s conclusion, the record plainly reveals
that Carter pursued claims on these grounds during both his direct appeal and state-
collateral proceedings. While Carter did not raise these claims in his subsequent
application to reopen his direct appeal under Rule 26(B), there is no requirement that he
assert these claims in that proceeding. Therefore, his failure to do so does not negate his
having fully pursued these claims through one complete round of state review.

       The Warden conceded in the return of writ that Carter had presented these
claims, in part, to the state courts. This is consistent with Carter’s briefs to the Ohio
courts that addressed these issues. Similarly, the Ohio Supreme Court’s opinion on
Carter’s direct appeal addressed these issues, 651 N.E.2d at 977–78, as did the Ohio
Court of Appeals’ opinion on Carter’s collateral challenge, 1997 WL 705487, at *4, 6–7.
No. 06-4238        Carter v. Mitchell                                             Page 13


Therefore, because the record reveals that Carter properly presented these claims to the
state courts during his direct appeal and state post-conviction proceedings, Carter did not
procedurally default these claims.

       The Warden’s reliance on Davie v. Mitchell, 547 F.3d 297 (6th Cir. 2008), is
misplaced. In Davie, this Court announced the unremarkable proposition that “a Rule
26(B) application based on ineffective assistance cannot function to preserve the
underlying substantive claim.” Id. However, this case presents no such problem. Carter
failed to properly pursue his Rule 26(B) application, which is why, as explained above,
we must affirm the district court’s determination that Carter procedurally defaulted his
fiftieth ground for relief based on ineffective assistance of appellate counsel. However,
Carter did not need to, nor attempt to, preserve grounds twenty-eight or twenty-nine
through his Rule 26(B) application. These claims had already been squarely presented
to the state courts through “one complete round of the State’s established appellate
review process.” Williams, 380 F.3d at 967. Therefore, the claims had been exhausted
and were suitable for review by the federal district court when Carter filed his petition
for a writ of habeas corpus.

       In this respect, these claims are indistinguishable from Carter’s claim based on
the sentencing court having improperly considered nonstatutory aggravating factors.
That claim, along with Carter’s ineffective assistance of counsel at the mitigation stage
claims, was not raised in his Rule 26(B) application. However, regardless of any
procedural defaults caused by the improper handling of his Rule 26(B) application,
Carter properly raised these claims through Ohio’s appeals process and they are not
procedurally defaulted.

       The dissent incorrectly characterizes Petitioner’s litigation position when it
argues that Petitioner forfeited and defaulted the portions of Claims 28 and 29 relating
to Petitioner’s mitigation expert and the failure to seek his mother’s testimony. Rather
than forfeit Claims 28 and 29 by using them as support for Claim 50, Petitioner alleged
Claims 28 and 29 as independent bases of relief and for the alternative purpose of
demonstrating prejudice as a result of appellate counsel’s alleged ineffective assistance.
No. 06-4238         Carter v. Mitchell                                               Page 14


Federal Rule of Civil Procedure 8(d)(3), which governs this habeas petition, allows a
petitioner to “state as many separate claims or defenses as it has, regardless of
consistency.” Fed. R. Civ. P. 8(d)(3); see Habeas Rule 12. There is no reason why
Petitioner could not raise Claims 28 and 29 as free-standing grounds for relief and in
support of the claim that appellate counsel’s alleged deficiency prejudiced him in
pursuing Claims 28 and 29. Petitioner never expressly forfeited Claims 28 and 29 before
making this assertion and did not do so by pleading Claim 50 in the alternative.

        The dissent relies on a statement from Petitioner’s post-evidentiary hearing brief
filed before the district court, which referred to “direct appeal counsel’s [failure] to
timely present [Claims 28 and 29] to the state court of appeals.” Pet’r Post-Hr’g Br. 15,
R. 124; see Dissenting Op. ¶ 3. The district court read this brief in the same manner.
See Carter v. Mitchell, No. 1:98-CV-853, 2006 WL 2334853, at *27 (S.D. Ohio Aug.
10, 2006) (concluding that Petitioner “concede[d] that his appellate counsel failed to
present [Claims 28 and 29] on direct appeal,” relying on the same passage from
Petitioner’s brief referenced above). The dissent and district court treat Petitioner’s
statement as a concession that Claims 28 and 29 were defaulted, but that treatment is
inconsistent with other portions of the record.

        Other portions of Petitioner’s briefing in the court below support our view that
Claims 28 and 29 served this dual purpose. As we noted, his original habeas petition
clearly stated Claims 28 and 29 as grounds for relief independent of Claim 50. And
Petitioner could have hardly conceded a default of Claims 28 and 29 when, in the motion
for certificate of appealability he filed before the district court, he specifically asked for
a certificate of appealability on his preservation of Claims 28 and 29. See App. 2575.
Petitioner argued “that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling [with respect to his] Twenty-Eighth [and] Twenty-
Ninth . . . Causes of Action.” See App. 2576.

        We are not bound by the district court’s misreading of the record. Petitioner
clearly raised Claims 28 and 29 in his petition, never waived them, used them
alternatively in support of Claim 50, and challenged the district court’s conclusion when
No. 06-4238         Carter v. Mitchell                                            Page 15


he sought a certificate of appealability. The fact that Petitioner did not argue those
claims as vigorously as he argued Claim 50, or that the district court incorrectly
construed Petitioner’s arguments as a forfeiture, should not lead us to an unduly
restrictive interpretation of Petitioner’s litigation position.

        Based on this incorrect reading of the record in the court below, the dissent
argues that Petitioner’s certificate of appealability does not encompass the argument that
Claims 28 and 29 are not defaulted. Indeed, if one reads Petitioner’s litigation position
in the court below to consist of a forfeiture and waiver of Claims 28 and 29, then one
cannot but help but read Petitioner’s motion to expand his certificate of appealability,
as well as the certificate we granted, to omit Claims 28 and 29. But, just as he did in the
district court, Petitioner linked Claims 28 and 29 to Claim 50, all the while raising them
as independent claims.

        Petitioner’s motion to expand the certificate of appealability begins by recounting
the errors trial counsel made in the mitigation phase of his trial, some of which form the
basis of Claims 28 and 29. See Mot. to Expand 3–6. On the basis of these errors, the
motion argues that Petitioner “brought these facts to the attention of Ohio’s courts” but
that the state courts “applied unreasonable rules to avoid adjudicating the merits of these
claims, and those courts did so in a way that equals Carter’s exhaustion of these claims,
which makes them ripe for federal merits review and habeas relief.” Id. 6. This
argument alone serves as a contention that Claims 28 and 29 were not defaulted.
Through this point in the motion to expand the certificate of appealabilty Petitioner
makes no mention of his claim of ineffective assistance of appellate counsel (Claim 50).

        Petitioner’s motion then argues that appellate counsel was ineffective and, as a
result, that appellate counsel’s ineffectiveness was cause for Petitioner’s purported
failure to raise Claims 28 and 29 on direct appeal. But intertwined with this argument
is Petitioner’s sustained contention that Claims 28 and 29 were not defaulted. For
example, the motion stated that Petitioner:

                takes the position that the ineffective assistance of
                appellate counsel claims (Fiftieth Cause of Action) and
No. 06-4238         Carter v. Mitchell                                             Page 16


                those claims [including Claims 28 and 29] for which he
                has asserted that ineffective assistance of appellate
                counsel constitutes [] cause are exhausted and therefore
                not defaulted since they fall within the purview of the
                Ohio Supreme Court’s independent review process,
                which renders them “impliedly exhausted.”

Id. 9 (emphasis added). This passage, like others in Petitioner’s filings, challenges the
district court’s procedural default conclusion regarding both Claim 50 and the claims
underlying Claim 50, namely, Claims 28 and 29. And as a result of this argument, we
certified the question of whether the district court erred in concluding that Petitioner
defaulted his claims of ineffective assistance of counsel.

        Petitioner’s posture was the same in his briefing before this Court. The dissent
refers to a portion of Petitioner’s brief in which he argues that “ineffective assistance of
appellate [counsel] constitute[s] cause for [Petitioner’s] failure to present claims
. . . 28, 29 . . . to Ohio courts.” Pet’r Br. 51. The dissent interprets this statement as a
waiver of his argument that Claims 28 and 29 were not defaulted. But this reading
ignores two aspects of Petitioner’s brief.

        First, Petitioner made the statement cited above in response to the district court’s
“conclu[sion] that since it found that [Petitioner’s] ineffective assistance of appellate
counsel claim was procedurally defaulted, that claim could not be a basis for finding
‘cause’ for his failure to raise before Ohio courts the ineffectiveness of trial counsel.”
Id. The statement to which the dissenting opinion refers is not a concession; it is a
response to a ground of the district court’s decision on Claim 50 which does not erode
Petitioner’s position on Claims 28 and 29.

        Second, in a fashion similar to his motion to expand, Petitioner argued “that his
ineffective assistance of appellate counsel claim (Fiftieth Cause of Action) and those
claims for which he has asserted ineffective assistance of appellate counsel as cause for
any purported procedural default are eligible for merit[s] review by this Court,” which
expressly include Claims 28 and 29. Id. at 36 (emphasis added). Petitioner goes on to
No. 06-4238          Carter v. Mitchell                                          Page 17


position his merits arguments on Claims 28 and 29 within his argument that Claim 50
was not defaulted.

       Petitioner’s decision to position his argument regarding Claims 28 and 29 within
his argument regarding Claim 50 is not tantamount to a waiver of Claims 28 and 29. Far
from it. However successfully Petitioner executed a rather sophisticated method of
making this alternative argument has nothing to do with whether Petitioner made the
argument in the first place. Thus, Petitioner’s litigation position from his loss at the
court below through his argument in this Court has been that he did not default Claims
28 and 29 and, alternatively, that any default of Claim 50 prejudiced him as a result of
his inability to assert Claims 28 and 29.

       Carter also has not, in these two grounds for relief, expanded the scope of his
claims from what he presented to the state courts. “To fairly present a claim to a state
court a petitioner must assert both the legal and factual basis for his or her claim.”
Williams, 460 F.3d at 806; see Clinkscale, 375 F.3d at 437. In order to satisfy this
requirement, and avoid a procedural default, the petitioner’s federal habeas petition must
be based on the same theory presented in state court and cannot be based on a wholly
separate or distinct theory. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). For
example, in Wong, one of the grounds the petitioner asserted in support of her petition
for habeas relief was based on allegations that she had received constitutionally
ineffective assistance of counsel. Id. at 319. In the state court proceedings Wong had
alleged only that counsel’s performance was deficient for failing to pursue an insanity
defense. Id. at 319. However, in federal court, Wong additionally alleged that counsel
was constitutionally ineffective for neglecting to undertake additional investigation into
whether an alternate expert might have concluded that she was legally insane. Id. at 321.
This Court held that the portion of the claim based on not undertaking a complete
investigation was procedurally defaulted because Wong had not presented it to the state
courts. Id. at 322; accord Williams, 380 F.3d at 968 (holding that petitioner’s claims to
the state courts alleging prosecutorial misconduct in improperly vouching for the
No. 06-4238          Carter v. Mitchell                                            Page 18


credibility of a witness were insufficient to preserve claims based on other instances of
prosecutorial misconduct).

          Carter’s twenty-eighth and twenty-ninth grounds for relief were fairly presented
to the state courts and are not based on new or distinct theories insofar as they relate to
the preparation of Carter’s mitigation expert and the failure of Carter’s mother to testify
at his mitigation proceedings. On direct appeal to the Ohio Court of Appeals, Carter
asserted in Assignment of Error X that:

          THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE
          OF DEFENDANT-APPELLANT IN ENTERING A SENTENCE OF
          DEATH WHEN DEFENDANT-APPELLANT WAS DENIED HIS
          RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
          UNITED STATES CONSTITUTION, AMENDMENT VI.
          Issue 1. Has an accused been given effective assistance of counsel when
          his defense attorneys, in the penalty phase, elicit testimony from a
          mitigation expert when said testimony, taken as a whole, is very
          unfavorable to the accused?
          Issue 2. Has an accused been given effective assistance [of] counsel
          when his attorneys, lacking much in mitigatory evidence, fail to have the
          accused’s mother testify on his behalf?

          Similarly, Carter presented these issues in his direct appeal to the Ohio Supreme
Court as Propositions of Law number X and XI. And, Carter raised these issues again
in his petition for post-conviction review as his Sixth, Ninth, and Eleventh Causes of
Action.

          In his petition for habeas corpus to the federal district court, Carter’s twenty-
eighth ground for relief asserts that he was denied the effective assistance of counsel at
the mitigation phase of his trial. The claim goes into some additional detail about the
deficiencies of Dr. Chiappone’s testimony and how, in Carter’s view, it was caused by
his failure to perform a diligent inquiry into Carter’s background. Additionally, Carter
also specifically raises as part of this ground for relief counsel’s failure to have his
mother testify. Similarly, Carter’s twenty-ninth ground for relief raises the issue of
counsels’ ineffectiveness leading to the exclusion of evidence from the mitigation stage
No. 06-4238         Carter v. Mitchell                                              Page 19


and, specifically, the trial court’s refusal to provide the jury with a transcript of Dr.
Chiappone’s testimony. Therefore, because these claims were raised through a complete
round of Ohio’s appellate process, they are not procedurally defaulted. Because the
district court erred in concluding otherwise, we remand the matter to the district court
for it to consider the merits of these claims in the first instance and whether either
entitles Carter to a writ of habeas corpus.

                                              IV.

        The district court correctly found that Carter had procedurally defaulted his
fiftieth ground for relief based on ineffective assistance of appellate counsel. The district
court also properly denied Carter’s twenty-seventh ground for habeas relief, based on
the sentencing court’s improper consideration of non-statutory aggravating factors.
However, Carter did not procedurally default his twenty-eighth or twenty-ninth grounds
for relief. Therefore, we AFFIRM in part, REVERSE in part, and REMAND for the
district court to consider whether Carter is entitled to a writ of habeas corpus based on
counsel’s performance at the penalty phase of trial or the trial court’s exclusion of
evidence at the mitigation phase.
No. 06-4238         Carter v. Mitchell                                             Page 20


                ____________________________________________

                CONCURRING IN PART/DISSENTING IN PART
                ____________________________________________

        SUTTON, Circuit Judge, concurring in part and dissenting in part. There is
much to admire in the majority’s opinion—its convincing rejection of Carter’s
aggravating-factors argument and its convincing rejection of his argument that he did not
default a claim of ineffective assistance of appellate counsel. But instead of stopping
there and resolving the two claims raised by Carter on appeal, the court grants appellate
relief on a claim of its own making (and preserving): ineffective assistance at the
mitigation phase of the trial. There are several problems with this approach: the claim
exceeds the scope of the certificate of appealability; Carter did not raise the claim in the
district court; Carter did not raise the claim on appeal; and the claim is meritless. Other
than that, it ought to give a court pause to refuse to excuse a procedural default and yet
to grant relief on a related, but doubly forfeited, claim. This kind of analysis, needless
to say, has a high degree of difficulty, and I am afraid the majority cannot pull it off. I
must respectfully dissent.

        Exhibit A is the certificate of appealability, a jurisdictional prerequisite to
review, see 28 U.S.C. § 2253(c), which does not encompass this theory of relief. The
district court granted a COA on one claim: the state trial court’s alleged misuse of
aggravating factors at the mitigation stage. It did not grant a COA on today’s theory of
relief, and Carter did not seek one. At our court, Carter moved to expand the COA to
cover four reasons why we should excuse the procedural default of his ineffective-
assistance-of-mitigation-counsel claims: (1) ineffective assistance of appellate counsel
established cause and prejudice for the default; (2) Carter had a due process right to
effective appellate counsel during the Ohio-law Murnahan proceedings; (3) the Ohio
Supreme Court “impliedly” addressed the claims by rejecting the claims he did bring;
and (4) a miscarriage of justice would arise if the claims were defaulted. See Mot. to
Expand COA at 6–15. Missing from his motion, as the majority effectively concedes,
was any argument that he never defaulted the claims in the first place because he fairly
No. 06-4238          Carter v. Mitchell                                             Page 21


presented them in state court on direct appeal. Consistent with what Carter requested,
and did not request, we expanded the COA to reach “an additional issue,” noting that
“the issue raised in Carter’s present motion warrants further review[:] . . . whether the
district court properly dismissed Carter’s ineffective assistance of counsel claims
because he procedurally defaulted those claims in state court.” COA Order at 2
(emphases added). Neither the district court’s COA nor our expansion of it nor Carter’s
COA’s applications raise a claim that Carter in fact fairly presented a claim of
ineffective assistance of mitigation counsel in the state courts.

         Exhibit B is Carter’s litigation position at the district court, where he forfeited,
indeed waived, the argument that he presented this claim in the state courts. His brief
in the district court concedes the “failure of [Carter’s] direct appeal counsel to timely
present the following meritorious issues to the state court of appeals,” and listed these
claims—Claims # 28 and 29—as two of the “meritorious issues” never exhausted in the
state courts. R.124 at 15. Trying to overcome this exhaustion problem, he argued that
his “state appellate counsels’ failure to raise” his ineffective-assistance-of-trial-counsel
claim “amounted to ineffective assistance of appellate counsel.” Id. at 13. Nowhere did
he argue that in fact he presented his claims in the state appellate courts. He instead
asked the district court to excuse the default. All of this amounts to a forfeiture of the
claim and a waiver to boot. See Akins v. Easterling, 648 F.3d 380, 396–97 (6th Cir.
2011).

         Exhibit C is Carter’s litigation position in this court, where he also forfeited and
waived this argument. The forfeiture: he does not argue in his appellate briefs that the
district court should have granted the writ on the ground that he fairly presented his
ineffective-assistance-of-mitigation-counsel claim to the state courts. The waiver: he
says that “ineffective assistance of appellate [counsel] constitute[s] cause for his failure
to present claims . . . 28, 29 . . . to Ohio courts.” Carter Br. at 51 (emphasis added).
Here, too, he argues only that ineffective assistance of appellate counsel provides cause
to excuse this default. He never mentions the argument the majority now makes. At our
court, then, this argument also was forfeited and waived. See United States v. Johnson,
No. 06-4238         Carter v. Mitchell                                             Page 22


440 F.3d 832, 845–46 (6th Cir. 2006). Anyone who doubts me should read his appellate
briefs for themselves. At the relevant pages, he says not a word about this theory of
relief. See App’t Br. at 36–51; Reply Br. 8–10. Indeed, the whole point of his argument
is to contrast the “omitted strong claims” (nine of the eleven) with the two (weak) claims
that were raised on direct review. Reply Br. 8–9. Carter surely is allowed to make
alternative arguments. But to do so, he (and not the Court) must make them.

        Exhibit D is the flawed nature of this argument, which helps to explain why the
individual with the greatest incentive to raise the point—Carter—never made it himself.
In contending that Carter presented this claim—Claims # 28 and 29—to the state courts,
the majority invokes Carter’s Assignment of Error X at the state court of appeals. To
“fairly present” a claim—here Carter’s claim of ineffective assistance of counsel at the
mitigation phase—the applicant must present both the “factual and legal underpinnings
of the claim” to the state courts. Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009).
A claim for federal habeas relief thus cannot turn “upon a different allegedly ineffective
action [from] the claim presented to the state courts.” Caver v. Straub, 349 F.3d 340,
347 (6th Cir. 2003). Otherwise, state courts would not have a “fair opportunity” to
address constitutional claims, defeating the whole point of exhaustion. See O’Sullivan
v. Boerckel, 526 U.S. 838, 844–45 (1999).

        In Error X, Carter raised two arguments:            (1) trial counsel performed
ineffectively in using Dr. Chiappone as a mitigation witness; and (2) trial counsel
performed ineffectively by not calling Carter’s mother to testify. The state courts
rejected both claims on the merits.

        When the time came to file his federal habeas petition, Carter remained free to
frame his claims as he saw fit. Had he raised just these two issues as independent habeas
claims, I could agree that he preserved them. But for reasons of his own—perhaps the
prospect of withstanding AEDPA review on the two claims—he expanded his
ineffective-assistance claims (in Claims 28 and 29) to a wholesale attack on all aspects
of counsel’s mitigation strategy. Habeas Claims 28 and 29 raise eleven theories of relief:
Counsel (1) failed to obtain a “real” mitigation expert, (2) failed to obtain a neurological
No. 06-4238         Carter v. Mitchell                                                Page 23


examination, (3) failed to research school records or call an education expert, (4) failed
to call school officials, (5) failed to call a drug-addiction specialist, (6) failed to inform
the jury that Carter’s mother had applied for disability benefits on his behalf, (7) failed
to obtain psychiatric records, (8) failed to call his mother to testify, (9) failed to call his
siblings to testify, (10) should not have permitted Dr. Chiappone to testify and
(11) should not have given a disjointed closing argument. See App. at 58–63.

        Precedent does not allow a habeas applicant to raise two theories of mitigation
ineffective assistance in the state courts, then mix in nine new, unexhausted theories
when he arrives in federal court. Such “mixed petitions” are not permitted. Rose v.
Lundy, 455 U.S. 509, 510 (1982). Habeas claimants are masters of their theory of relief,
and if they present an “ineffective assistance of counsel claim based on one ground” in
state court they may not present “an ineffective assistance of counsel claim based on
another ground” in federal court. Bell v. Bell, 460 F.3d 739, 761 (6th Cir. 2006), vacated
on other grounds, 512 F.3d 223, 237 (6th Cir. 2008) (en banc). “[T]he doctrine of
exhaustion requires that a claim be presented to the state courts under the same theory
in which it is later presented in federal court,” Wong v. Money, 142 F.3d 313, 322
(6th Cir. 1998), as the majority seems to acknowledge by relying on this exact case, Maj.
Op. at 17–18.

        Here, the omnibus ineffectiveness claims in 28 and 29 that the majority gives life
rely on a far broader theory—and a far broader set of factual bases—than the claims
presented to the Ohio courts. With the exception of Allegations 8 and 10, Carter never
presented the rest of these claims—any of them—to the state courts. The majority
downplays this, describing the unexhausted claims as merely “some additional detail
about the deficiencies of Dr. Chiappone’s testimony and how, in Carter’s view, it was
caused by his failure to perform a diligent inquiry into Carter’s background.” Maj. Op.
at 19. But that is like saying chess is just checkers with a few additional details: at some
point the additions so outweigh the commonalities that you have a new game. Carter’s
“entirely new underlying” ineffective-assistance-of-counsel allegations resulted in a
“fundamental alteration to the legal claim already considered by state courts,” and thus
No. 06-4238        Carter v. Mitchell                                            Page 24


I “cannot say that the state courts had the first opportunity to review the claim.” Bell,
460 F.3d at 761. That is why Carter acknowledges his “post-trial counsel[] fail[ed] to
properly exhaust claims based on these facts,” App. at 2577–80 (listing facts mentioned
for the first time after post-conviction), and explains why he never made the argument
the majority now embraces.

       In the final analysis, the majority grants relief based on a claim that we do not
have jurisdiction to hear, that was not raised below or at the court of appeals, and that
compromises basic habeas principles of preservation and exhaustion. That is not an
everyday occurrence, and it is one from which I must respectfully dissent.
