       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0121P (6th Cir.)
                File Name: 00a0121p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
 JOHN W. BYRD, JR.,
                                   
         Petitioner-Appellant,
                                   
                                   
                                      No. 96-3209
           v.
                                   
                                    >
 TERRY L. COLLINS, Warden,         
         Respondent-Appellee. 
                                  1
      Appeal from the United States District Court
     for the Southern District of Ohio at Columbus.
    No. 94-00167—James L. Graham, District Judge.
                Argued: March 11, 1998
            Decided and Filed: April 6, 2000
Before: JONES, SUHRHEINRICH, and BATCHELDER,
                  Circuit Judges.
                  _________________
                       COUNSEL
ARGUED: Richard J. Vickers, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF
THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
for Appellee. ON BRIEF: Richard J. Vickers, PUBLIC
DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER
COMMISSION, Columbus, Ohio, Steven M. Brown,

                            1
2    Byrd v. Collins                              No. 96-3209

Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE
OF THE ATTORNEY GENERAL, CAPITAL CRIMES
SECTION, Columbus, Ohio, for Appellee.
  SUHRHEINRICH, J., delivered the opinion of the court, in
which BATCHELDER, J., joined. JONES, J. (pp. 91-109),
delivered a separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
   SUHRHEINRICH, Circuit Judge. In August 1983, the
Court of Common Pleas in Hamilton County, Ohio, sentenced
Petitioner, John W. Byrd, Jr., to death for the aggravated
murder of Monte Tewksbury. The Ohio state courts
repeatedly rejected Petitioner’s claims for relief. In March
1994, only days before his scheduled execution, Petitioner
filed his first petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The U.S. District Court for the Southern
District of Ohio denied the petition. We now AFFIRM that
denial.
                       I. Background
                           A. Facts
  On the evening of April 17, 1983, Monte B. Tewksbury
was working alone as the night clerk at the King Kwik
convenience store at 9870 Pippin Road in Hamilton County,
Ohio. Monte was married and was the father of three
children.
   At approximately 11:00 p.m., two robbers entered the store
in masks; one of them carried a bowie knife with a five-inch
blade. The robbers removed all of $133.97 from the cash
register. In addition, they took Monte’s Pulsar watch,
wedding ring, and his wallet which contained cash, credit
cards, and an automobile registration slip. Then, as Monte
stood with his hands raised and his back to the robbers,
No. 96-3209                              Byrd v. Collins     3

Petitioner plunged his bowie knife to the hilt in Monte’s side,
resulting in a puncture wound to the liver that caused massive
internal bleeding. The two robbers ripped the inside
telephone out of the wall and fled. At approximately 11:10
p.m., Robert Shephard was driving northbound on Pippin
Road. He observed two men run from the King Kwik and
enter a large red van parked at the corner of Pippin and
Berthbrook. The van then drove off.
  Although severely injured, Monte managed to exit the store
and get to the outside telephone. He called his wife, Sharon
Tewksbury, told her he had been robbed and hurt, and that she
should call the police and an ambulance. At that time, Cecil
Conley, a prospective customer, arrived at the King Kwik.
Conley found Monte standing outside the building and
leaning against the wall next to the telephone. Monte was
bleeding from his side. Conley helped Monte into the store,
went back to the telephone which was still off the hook, and
spoke briefly to Sharon. Conley also advised Sharon to call
an ambulance, and he himself called the police. Monte told
Conley “I’m going to die,” and that he had been robbed and
cut with a knife. Monte described the robbers as two white
men wearing stocking masks.
   Sharon arrived at the scene and held her dying husband in
her arms as he repeated his statements. Police and medical
help then came, and Monte was transported to a hospital.
While en route, Monte made several statements to the effect
that he did not understand why he had been stabbed, because
he had been cooperative and had given the robbers everything
they requested. Monte also made a statement to the effect of
“Thank God I didn’t see it coming,” which supports the
conclusion that his back was to his assailants when he was
stabbed. Almost immediately after he was taken to the
emergency room, Monte’s heart stopped. Despite heroic
efforts to save his life, Monte died at 1:15 a.m., April 18,
1983, from exsanguination resulting from his stab wound.
 That night, a short time after the King Kwik robbery, Jim
Henneberry, a clerk at a nearby U-Totem store, was standing
4       Byrd v. Collins                                 No. 96-3209        No. 96-3209                               Byrd v. Collins 109

at the cash register. A customer, Dennis Nitz, was playing a               adequately develop evidence which may establish that the
video game near the front door when two robbers entered the                findings were actually erroneous. Such a ruling would defeat
store wearing masks. Henneberry realized what was                          the entire purpose of the pre-AEDPA § 2254(d) – which,
occurring and fled to a room in the rear of the store. One of              again, presumes, rather than requires, the correctness of state
the robbers chased after Henneberry with a knife. The robber               findings. Yet this appears to be exactly what the district court
tried unsuccessfully to force open the door to the room.                   did in this case, seemingly determining that the state court
Meanwhile, the other robber pushed Nitz back when he                       findings were binding, rather than ascertaining whether Byrd
attempted to leave; however, Nitz was able to dodge him and                had alleged sufficient facts to overcome the presumption.
get out. The robbers were unable to open the cash register, so
they took it with them. Robin Hannon, a resident of an                       The district court abused its discretion by not allowing
apartment located near the U-Totem, was disturbed by the                   discovery and an evidentiary hearing on Byrd’s claims of false
noise from a loud muffler. Hannon looked outside and                       testimony and suppression. Since the record already supports
observed two people getting into a large red van parked in the             a number of Byrd’s claims of constitutional error, it is clear
U-Totem lot. The van had a defective tail light.1                          that he has, at least, alleged sufficient facts to require a full
                                                                           and fair evidentiary hearing on his claims. Moreover, the
  Shortly after 1:00 a.m. on April 18, 1983, two police                    district court erred by determining that the presumption of
officers from Forest Park in Hamilton County were seated in                correctness necessarily foreclosed an evidentiary hearing.
a marked police cruiser eating their lunch. The officers were              The applicability of the presumption of correctness and the
in a K-Mart parking lot, which was located in an area                      propriety of an evidentiary hearing are two interrelated, yet
containing principally commercial establishments, some of                  fundamentally distinct, issues. Byrd has yet to be afforded
which had recently been burglarized. The officers had been                 any meaningful opportunity to conduct discovery, and has
advised approximately forty-five minutes earlier by their                  consistently been denied an evidentiary hearing.
supervisor about the incident at the King Kwik. As the
officers watched, a red cargo van drove by at a slow rate of                 Accordingly, at minimum, Byrd should be granted
speed. The van pulled into the K-Mart lot, and its headlights              discovery and an evidentiary hearing limited to the specific
were turned off. A few minutes later, the van’s headlights                 evidentiary requests he made previously before the district
came back on, and the van left the lot. However, the van                   court, and to those requests pertinent to his false testimony
returned within five minutes, again at low speed, from the                 and suppression claims. Given that there already exists
direction opposite to that in which it had gone moments                    significant evidence that Byrd’s conviction was secured in
before.                                                                    violation of bedrock constitutional guarantees of due process
                                                                           and fundamental fairness, discovery is the least that is
  The police officers became suspicious, followed the van,                 required before this court pushes him further down the road
and, upon inquiry of the police dispatcher, learned the identity           toward execution.
of its owner. The van pulled into a parking lot adjacent to a
closed United Dairy Farmers store. The officers pulled
behind the van after summoning back-up assistance. One of

    1
      In the course of the subsequent police investigation, Hannon
identified the van, which had remained in police custody, as the one she
saw outside the U-Totem on the night in question.
108 Byrd v. Collins                                 No. 96-3209      No. 96-3209                                     Byrd v. Collins         5

the credibility of Ronald Armstead was subject to extensive          the passengers, later identified as John Eastle Brewer, exited
cross-examination, that there is no credible evidence that           the van and approached the police car. Brewer identified
Ronald Armstead lied in his testimony, and that Ronald               himself as “David Urey” and told the police he had no
Armstead was not given consideration by the State in return          identification. Brewer provided inconsistent stories about
for his testimony.                                                   why he was in the area. One of the officers asked Brewer to
                                                                     remain in the cruiser while he approached the van. The van’s
   The majority contends that the August 5, 1988 discovery           driver, William Danny Woodall, and Petitioner provided the
order provided Byrd with sufficient opportunity to develop his       officer with identification, which was called in to the
claims. However, a close read of the record reveals that this        dispatcher. Although there were no current warrants for
order had little effect on Byrd’s ability to obtain the              either Petitioner or Woodall, the dispatcher reported that both
information he sought. For example, Byrd asserts that he             had prior felony convictions. The officer shined a flashlight
filed a “Motion For Release of Records” in July 1988, and the        inside the van and saw coins on the floor. There were
trial court issued the August 5 order in response to that            stocking masks and a knife located in a tray on the dashboard.
motion. According to Byrd, “[defense] counsel sought all             A Shell credit card in Sharon’s name was lying on the floor
available records through use of this motion.” J.A. at 279.          under the passenger seat. There was also what appeared to be
Thus, despite the majority’s claim to the contrary, see ante at      fresh blood on the interior side of the driver’s seat. A drawer
39, Byrd did indeed attempt to utilize the August 5 order to         from a cash register was in the back of the van.
obtain information, but was thwarted in his attempts. Byrd
further asserts that he filed two additional motions, prior to                           B. Indictment and Trial
the July 1988 motion, requesting discovery from the Hamilton
County Sheriff’s Office and the Hamilton County                        On the basis of this evidence, Petitioner, Brewer, and
Prosecutor’s Office. Byrd contends that this information             Woodall were arrested. In an indictment returned on May 26,
would have detailed contacts between inmates Ronald                  1983, the three were charged with aggravated murder and
Armstead, Virgil Jordan, Marvin Randolph, Robert Jones and           three counts of aggravated robbery. Petitioner also was
the prosecutor’s or sheriff’s office. Byrd also requested            charged with two death penalty specifications; i.e., that he
discovery to determine why Armstead was chosen among four            was the “principal offender” who committed the aggravated
jailhouse informants who offered testimony against him.              murder of Monte Tewksbury while committing or attempting
Byrd asserts that the documents establish that the prosecutor’s      to commit the aggravated robbery of the King Kwik, as well2
office knew Armstead was returning to prison, and shed light         as the aggravated robbery of Monte Tewksbury himself.
on any consideration Armstead received for his testimony.            Pleas of not guilty were entered as to all charges on May 31,
Without adequate discovery in these areas, Byrd has not been         1983. Petitioner’s counsel filed a series of pre-trial motions,
afforded a full and fair opportunity to factually develop his        including one seeking the suppression of evidence taken from
claims.                                                              the van. The Hamilton County Court of Common Pleas
                                                                     denied this motion on July 26, 1983. Jury selection for
  Even if Byrd has not established a § 2254(d) exception, he         Petitioner’s trial began on August 1, 1983, and lasted five
has nevertheless overcome the presumption of correctness by          days.
averring sufficient facts, which if fully developed, would
entitle him to relief. It would be unjustifiably circular for this
Court to hold that a state court’s findings were binding,
                                                                         2
without providing the petitioner an opportunity to fully and              In Ohio, the “principal offender” means “the actual killer.” State v.
                                                                     Penix, 513 N.E.2d 744, 746 (Ohio 1987).
6        Byrd v. Collins                                       No. 96-3209         No. 96-3209                               Byrd v. Collins 107

  The main evidence introduced at trial to prove that                              conducting evidentiary hearings. The presumption of
Petitioner was the principal offender, i.e., the individual who                    correctness is just that – a rebuttable presumption, not an
actually stabbed and murdered Monte, came from Ronald                              inexorable command. See 28 U.S.C. § 2254(d) (providing
Armstead, who at the time of trial, was serving a sentence at                      that petitioner must “establish by convincing evidence that the
the Cincinnati Workhouse (Cincinnati Correctional Institute).                      factual determination by the State was erroneous” when a
Armstead testified that he recalled Petitioner’s, Brewer’s, and                    § 2254(d) exception is inapplicable); Brown v. Davis, 752
Woodall’s arrival at the Workhouse and that, practically from                      F.2d 1142, 1147 (6th Cir. 1985) (“To overcome the
the date of their arrival, they had bragged about committing                       presumption of correctness, the petitioner must establish by
the King Kwik robbery and Monte’s murder. Armstead                                 convincing evidence that the factual determination in the state
testified that, approximately three weeks after the robbery, he                    court was erroneous.”). Within the operation of “sound
was with Petitioner, Brewer, Woodall, and others when a                            discretion,” district courts maintain significant authority to
P.M. Magazine television program aired featuring footage of                        receive evidence pertaining to the legitimacy of federal
the Tewksbury family. The footage, which included singing                          claims. This discretion to order discovery or hold evidentiary
by Monte’s daughter, was taped the day before Monte was                            hearings, however, becomes an obligation when “specific
murdered. According to Armstead, Petitioner stated during                          allegations before the court show reason to believe that the
the telecast that Monte deserved to die and, either then or at                     petitioner may, if the facts are fully developed, be able to
another time, admitted to Armstead that he had killed Monte                        demonstrate that he is . . . entitled to relief.” Harris v.
because Monte had “gotten in the way.” Armstead also                               Nelson, 394 U.S. 286, 300 (1969). In these circumstances, “it
testified that Petitioner sought advice from him regarding                         is the duty of the court to provide the necessary facilities and
whether the prosecution could    detect blood stains on a knife                    procedures for an adequate inquiry.” Id. (emphasis added);
blade if it had been cleaned.3                                                     see Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (holding
                                                                                   it is an abuse of discretion to deny discovery when specific
   The State called a total of twenty-six witnesses at the guilt                   factual allegations, if fully developed, would entitle petitioner
stage. Petitioner, on the other hand, called only one witness,                     to relief); see also Lynott v. Story, 929 F.2d 228, 232 (6th Cir.
a police officer who identified some of Woodall’s clothing.                        1991); McDaniel v. United States Dist. Court for the Dist. of
Closing arguments were presented on August 12, 1983, after                         Nev., 127 F.3d 886, 888 (9th Cir. 1997)(per curiam).
ten days of trial. Late that evening, the jury asked the court to
have Armstead’s testimony read back. Over objection, the                              At least three exceptions to the § 2254(d) presumption of
court reporter read the entirety of Armstead’s testimony to the                    correctness apply in this case: (i) the fact-finding procedure
jury in open court. Shortly thereafter, the jury returned its                      employed by the state court was not adequate to afford a full
verdict finding Petitioner guilty of aggravated murder and two                     and fair hearing; (ii) the material facts were not adequately
counts of aggravated robbery.4 The jury also found Petitioner                      developed at the state court hearing; and (iii) the factual
guilty of the two death penalty specifications.                                    findings made by the state court were not supported by the
                                                                                   record. 28 U.S.C. §§ 2254(d) (2), (3) & (8). Even the district
                                                                                   court acknowledges that Byrd’s discovery requests were
                                                                                   consistently rebuffed by Ohio courts. Indeed, Byrd has never
    3
                                                                                   been afforded the opportunity to fully discover relevant
        Armstead’s testimony is set forth in greater detail in Part II-A, infra.   documents, depose witnesses, or adequately develop his
    4
                                                                                   claims. Additionally, several of the “facts” found by the state
      The trial court severed the count in the indictment charging                 court appear to be unsupported by the record – namely that
Petitioner with aggravated robbery of the U-Totem.
106 Byrd v. Collins                                       No. 96-3209        No. 96-3209                                      Byrd v. Collins         7

  The majority dismisses this request by concluding that since                  The sentencing phase of the trial began on August 16, 1983.
Byrd was unable to establish an exception to the presumption                 Petitioner called one witness, his mother, Mary Lou Ray.
of correctness afforded state court factual findings under 28                Mrs. Ray testified that she gave birth to Petitioner when she
U.S.C. § 2254(d) (West 1995), the district court properly                    was sixteen years old and her marriage to Petitioner’s father
deferred to state findings of fact and, consequently, did not                ended shortly thereafter. She testified that Petitioner’s father
abuse its discretion in denying further discovery. The                       went to jail shortly after their son was born and she had not
majority’s analysis is flawed, however, both in its discussion               seen her ex-husband in eighteen years. She also discussed her
of the inapplicability of §2254(d), and in its consolidation of              subsequent failed marriages to two men, both of whom
the discovery determination with its resolution of the                       abused Petitioner. For instance, Mrs. Ray testified that she
presumption of correctness issue.                                            married Ed Ryan, and the marriage lasted three years. She
                                                                             stated that Ryan “was mean to Johnny [Petitioner]. When
   In habeas proceedings initiated prior to the effective date               Johnny got older, he blacked his eyes. . . . [Petitioner]
of the Antiterrorism and Effective Death Penalty Act of 1996,                couldn’t do nothing right to please him.” Tr. at 1762. Mrs.
28 U.S.C. § 2254, federal courts must presume the correctness                Ray also described a learning disability from which Petitioner
of state court factual findings unless2 an exception under the               suffered throughout his schooling. According to Mrs. Ray,
former version of §2254(d) applies. See Lindh v. Murphy,                     Petitioner was extremely frustrated by the ridiculing he
521 U.S. 320, 326-327 (1997); Gilliam v. Mitchell, 179 F.3d                  received from other children. Finally, Mrs. Ray recounted
990, 991 (6th Cir. 1999). When an exception does apply, and                  how at age eleven Petitioner assisted  another young child who
the habeas petitioner’s factual allegations, if proved, would                had fallen into a frozen creek.5 On cross-examination, Mrs.
entitle him to relief, the district court is required to hold an             Ray admitted that she had filed several petitions with the
evidentiary hearing. See McMillan v. Barksdale, 823 F.2d                     juvenile court alleging her inability to maintain control of her
981, 983-84 (6th Cir. 1987); Rector v. Johnson, 120 F.3d 551,                son. She also conceded that she had never reported any abuse
562-63 (5th Cir. 1997) (“[A] federal habeas court must allow                 of Petitioner to the authorities.
discovery and an evidentiary hearing only where a factual
dispute, if resolved in the petitioner’s favor, would entitle him              As permitted under Ohio law, Petitioner then made an
to relief and the state has not afforded the petitioner a full and           unsworn statement to the jury. He expressed remorse for
fair evidentiary hearing.”) (quoting Ward v. Whitley, 21 F.3d                what happened to Monte and his family, noted that he was
1355, 1367 (5th Cir. 1994)); Jeffries v. Blodgett, 5 F.3d 1180,              only 19 years old, and made a plea for his life. The State
1187 (9th Cir. 1993) (“A federal evidentiary hearing is                      presented no witnesses at the sentencing hearing. Later the
mandatory if (1) petitioner’s allegations, if proven, would                  same day, the jury found that the aggravating circumstances
establish the right to relief, and (2) the state court trier of fact         outweighed the mitigating factors and recommended
has not, after a full and fair hearing, reliably found the                   imposition of the death penalty. On August 19, 1983, the trial
relevant facts.”).                                                           court adopted the jury’s recommendation and sentenced
                                                                             Petitioner to death as the principal offender in the felony
  Moreover, even when an exception is inapplicable, federal
courts are not thereby prevented from ordering discovery or
                                                                                 5
                                                                                  In an opinion setting forth its reasons for imposing the death
    2                                                                        penalty, the trial court concluded: “This being the only socially
      See Ante at 34, n.23 (listing statutory factors under former version   redeeming act of the defendant’s life offered or otherwise shown by the
of § 2254(d)).                                                               evidence it does not rise to the level of a mitigating factor.” JA at 1134.
8       Byrd v. Collins                                 No. 96-3209        No. 96-3209                              Byrd v. Collins 105

murder charge and to consecutive jail terms of seven to                    counsel. However, in this case – on these facts – the failure
twenty-five years on the two aggravated robbery counts.                    even to challenge such serious and damaging prosecutorial
                                                                           misconduct falls far beyond the bounds of effective
  The trial court issued a written opinion on August 30, 1983,             representation.
explaining that it had found beyond a reasonable doubt that
the aggravating circumstances outweighed the mitigating                      Likewise, Byrd’s appellate counsel must be deemed
factors in Petitioner’s case. The court noted that the jury                ineffective for not raising, on direct appeal, trial counsel’s
found two statutory aggravating circumstances; i.e., that the              failure to challenge the stated prosecutorial misconduct. See,
murder occurred in connection with two different aggravated                e.g., United States ex rel. Barnard v. Lane, 819 F.2d 798, 805
robberies. The court concluded “that defendant’s killing of                (7th Cir. 1987) (finding appellate counsel ineffective for
the victim was completely unnecessary and cold blooded                     failure to raise trial counsel’s ineffectiveness on direct
since the victim had submitted peacefully and turned over his              appeal). Certainly it is not within the bounds of objectively
personal possessions and money. This killing . . . evidenced               reasonable professional conduct, or constitutionally
the particularly malicious outlook of this defendant.” JA at               permissible appellate strategy, to fail to raise prejudicial
1130. The court further stated: “The proved facts of the                   violations of Sixth Amendment rights.
aggravating circumstances reveal a pattern of willful, cold-
blooded disregard for human life and values well beyond                       In addition, since the prejudice analysis is essentially
what this judge has seen in other cases.” JA at 1132.                      identical to the Brady materiality determination, see
                                                                           Strickland, 466 U.S. at 694; see also Tucker v. Prelesnik, 181
   The court then reviewed the mitigating factors in                       F.3d 747, 754-55 (6th Cir. 1999), for the reasons discussed
Petitioner’s case. The court specifically rejected Petitioner’s            previously, the failure of Byrd’s attorneys to challenge the
youth as a consideration, noting that Petitioner     was “the              discussed prosecutorial misconduct prejudiced Byrd’s right to
oldest 19 year old this Judge has ever seen.”6 JA at 1131.                 a fair trial.
The court also considered the nature and circumstances of the
offense, listed under Ohio law as possible mitigating factors.                                          III.
However, the court noted the unnecessary and brutal nature of
the murder and commented as to the evidence of the incident                  If the majority is unwilling to acknowledge the
at the U-Totem store as well.                                              constitutional errors that appear on the face of this record,
                                                                           Byrd should, at the very least, be granted discovery and an
  The only mitigation evidence the trial court believed worthy             evidentiary hearing to explore his claims that: 1) Armstead
of consideration was the evidence of Petitioner’s unhappy                  testified falsely concerning Byrd’s role in the murder of
childhood, lack of paternal love and affection, and some                   Monte Tewksbury; 2) the prosecution intentionally failed to
degree of abuse. The court stated that there was nothing                   correct the false testimony; and 3) the prosecution actually
introduced at trial which showed that Petitioner’s childhood               suppressed evidence relevant to Armstead’s impeachment.
experiences resulted in any emotional scarring that could                  Since Byrd has averred facts sufficient to support Brady
                                                                           violations because the prosecution should have known that
                                                                           Armstead testified falsely, he has certainly raised sufficient
    6                                                                      facts to justify an evidentiary hearing to further substantiate
      Similarly, a concurring opinion in the Ohio Supreme Court            his claims.
remarked that “the evidence in this record demonstrates that Byrd’s
chronological age of nineteen does not accurately reflect his maturity.”
State v. Byrd, 512 N.E.2d 611, 626 (Ohio 1987) (Brown, J., concurring).
104 Byrd v. Collins                                 No. 96-3209      No. 96-3209                                Byrd v. Collins      9

                               A.                                    manifest itself later in life or explain his behavior on the night
                                                                     in question. The court concluded: “To give credence to this
  We apply a two-part test to determine whether a criminal           suggested mitigation would be an affront to the sensitivities
defendant was denied effective assistance of counsel. First,         of the thousands of law-abiding, hard-working citizens of this
we ascertain whether counsel’s performance was                       state who had a similar childhood and have matured to an
professionally deficient; second, we determine whether the           adulthood of exemplary existence.” JA at 1134. The court
deficient performance prejudiced the defendant’s                     also disregarded Petitioner’s statement during the penalty
constitutional interests. See Strickland v. Washington, 466          phase concerning drinking and using drugs on the night in
U.S. 668, 687 (1984); Rickman v. Bell, 131 F.3d 1150, 1154           question as being “self-serving” and “not under oath.” With
(6th Cir. 1997); Gravley, 87 F.3d at 785. In assessing               respect to Petitioner’s alleged learning disability, the court
counsel’s performance, we inquire whether “counsel’s                 expressly held that “[i]t should be fairly obvious to even a
representation fell below an objective standard of                   person of low mentality that if you bury a bowie knife to its
reasonableness,” as measured by “prevailing professional             hilt in the chest of someone, the victim may die as a result
norms.” Rickman, 131 F.3d at 1154 (quoting Strickland, 466           thereof, and that the perpetrator will suffer the full
U.S. at 687-88). This objective reasonableness standard              punishment provided by law.” JA at 1134. Based on its
encompasses strategic litigation choices that simply fail to         determination that this mitigating evidence was insufficient to
bear fruit. See Strickland, 466 U.S. at 689.                         counteract the aggravating circumstances, the court held that
                                                                     death was the appropriate sentence in this case, and it directed
  In this case, there is no objectively reasonable professional      that Petitioner be executed on January 27, 1984.
norm of capital defense practice that suggests counsel should
remain mute while a prosecutor engages in egregious                                            C. Appeals
prosecutorial vouching and wild factual speculation. See
Gravley, 87 F.3d at 785-86 (holding that defense counsel               After his sentencing, Petitioner was appointed new counsel
provided ineffective assistance by failing to object to              to represent him on appeal. In his appellate brief, Petitioner
numerous instances of prosecutorial misconduct during trial          raised twenty separate assignments of error. On February 5,
and closing argument). In a case that turns on the testimony         1986, the Ohio Court of Appeals for the First Appellate
of a jailhouse informant, it is a gross dereliction of duty for a    District (Hamilton County) (hereinafter referred to as the
capital defense lawyer to sit silently while a prosecutor            Hamilton County Court of Appeals), affirmed both
declares that the State of Ohio “believe[s]” the testimony. It       Petitioner’s conviction and sentence. State v. Byrd, No. C-
is similarly deficient representation for capital defense            830676, 1986 WL 1512 (Ohio Ct. App. 1 Dist., Feb. 5, 1986).
counsel to fail to object to outrageous prosecutorial                On August 12, 1987, the Ohio Supreme Court rejected
speculation as to a defendant’s purported motive in allegedly        essentially the same claims. State v. Byrd, 512 N.E.2d 611
committing a murder, or the whereabouts of unrecovered key           (Ohio 1987). The state supreme court concluded that this
evidence. While the failure to object to apparent prejudicial        case “involve[s] a completely compliant victim who gave
error may often be predicated upon trial strategy, see               Byrd no reason to stab him. We find that the death penalty is
Strickland, 466 U.S. at 689, there is no acceptable tactical         not inappropriate considering the senseless nature of the
justification for silence on these issues. If this case did not so   murder and the similarity to other cases in which the death
indispensably depend on the testimony of one individual, the         penalty was upheld.” Id. at 626. The U.S. Supreme Court
substantial deference the Constitution affords criminal              denied a petition for certiorari. Byrd v. Ohio, 484 U.S. 1037
defense lawyers might encompass the inaction of Byrd’s               (1988).
10   Byrd v. Collins                             No. 96-3209      No. 96-3209                                        Byrd v. Collins 103

  While his direct appeal was still pending, Petitioner filed a   the merits of Byrd’s claims, it is apparent that the bulk of
motion for a new trial. Although it was filed on December 6,      them lack merit. However, given the failure of Byrd’s trial
1983, the motion was not ruled upon for almost six years. On      counsel to object to widespread prosecutorial misconduct, see
September 19, 1989, the trial court denied the motion. The        supra Part I, and the failure of Byrd’s appellate counsel to
Hamilton County Court of Appeals subsequently affirmed this       raise issues pertaining to prosecutorial misconduct and the
denial. State v. Byrd, No. C-890659, 1991 WL 17781 (Ohio          credibility of Armstead’s testimony, it is clear that Byrd was
Ct. App. 1 Dist., Feb. 13, 1991).                                 denied his Sixth Amendment right to effective assistance of
                                                                  counsel.
  Following Petitioner’s direct appeals, and while his motion
for a new trial was pending, Petitioner filed a post-conviction
relief petition with the Hamilton County Court of Common
Pleas. The court denied a request by Petitioner to consolidate
his post-conviction petition with his motion for a new trial          of counsel in a postconviction hearing. As long as no direct
and then denied the post-conviction petition without a hearing        appeal was taken, or the claim of incompetent counsel was not
on October 2, 1989. On February 13, 1991, the Hamilton                raised and adjudicated on a direct appeal, res judicata does not
County Court of Appeals reversed and remanded. State v.               bar the adjudication of this issue in postconviction proceedings.
Byrd, No. C-890699, 1991 WL 17783 (Ohio Ct. App. 1 Dist.,         448 N.E.2d 452, 454 (Ohio 1983) (internal quotations and citation
Feb. 13, 1991). The court of appeals stated that the common       omitted). Shortly after Cooperrider, in an opinion seemingly applying the
pleas court’s decision did not recite that it had reviewed the    Cooperrider principle, the Ohio Supreme Court addressed the merits of
totality of the record before denying the petition. Id. at *2.    an ineffective assistance of trial counsel claim, after it noted that the claim
Despite obtaining a remand from the court of appeals,             was not raised on direct appeal. See State v. Decker, 502 N.E.2d 647, 649
                                                                  & n.3 (Ohio 1986). All of the cases cited by the majority regarding the
Petitioner appealed the judgment of the appellate court to the    supposed consistency and clarity of the Cole rule are after 1990 – well
Ohio Supreme Court. On May 20, 1991, the state supreme            after Byrd had sought to vindicate his Sixth Amendment rights under state
court granted the State’s motion to dismiss the appeal,           post-conviction proceedings. See Ante at ¶ 203-204. Given these
effective as of May 15, 1991. State v. Byrd, 573 N.E.2d 665       ambiguous statements by the Ohio Supreme Court, we certainly cannot
(Ohio 1991).                                                      conclude that the Cole rule was sufficiently established and enforced to
                                                                  justify default of Byrd’s claim of ineffective assistance of trial counsel.
                                                                  In any event, to the extent his trial counsel claim was defaulted, it is clear
  On April 1, 1991, the common pleas court again denied the       that the default was “cause[d]” by the ineffectiveness of Byrd’s appellate
post-conviction relief petition without a hearing. The trial      counsel. See, e.g., Gravley, 87 F.3d at 785. Further, given that this Court
court explained: “The Court of Appeals has erroneously            has itself recognized the murkiness of Ohio’s procedural framework for
concluded that this Court did not review the entire record        presenting claims of ineffective assistance of appellate counsel, see
when previously ruling on this case . . . . This Court did        Manning v. Alexander, 912 F.2d 878, 881-83 (6th Cir. 1990), we cannot
                                                                  conclude that the Murnahan rule – not clearly articulated until 1992 – was
previously review the entire record, and now, pursuant to the     sufficiently established and followed to bar our consideration of Byrd’s
Court of Appeals decision, has again reviewed the entire          ineffective appellate counsel claims. Thus, irrespective of the Supreme
record.” State v. Byrd, No. B-831662, at 1 (Hamilton County       Court’s resolution of Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 1998),
C.P., Apr. 1, 1991). The Hamilton County Court of Appeals         cert. granted sub nom, Edwards v. Carpenter, 120 S.Ct. 444, (U.S. Nov.
affirmed this judgment on February 26, 1992. State v. Byrd,       8, 1999) (No. 98-2060), Byrd’s appellate ineffectiveness claims are not
                                                                  barred by an “adequate” state procedural bar, and therefore can properly
No. C-910340, 1992 WL 37761 (Ohio Ct. App. 1 Dist., Feb.          serve as “cause” for any purported default of his trial ineffectiveness
26, 1992). In particular, the court of appeals determined that    claims. Finally, as should be apparent from the following discussion of
Petitioner’s ineffective assistance of appellate counsel claims   the merits of Byrd’s claims, he was clearly prejudiced by the failure to
                                                                  receive effective assistance.
102 Byrd v. Collins                                         No. 96-3209         No. 96-3209                              Byrd v. Collins     11

which the testimony of convicted felon and jailhouse                            were not properly raised in a post-conviction petition. Id. at
informant Armstead can be credited; the vouching results in                     *6. The Ohio Supreme Court declined to hear Petitioner’s
the presentation of Armstead as an upstanding member of the                     appeal of the denial of his post-conviction petition. State v.
prosecutor’s “our people”; the factual speculation allows for                   Byrd, 596 N.E.2d 472 (Ohio 1992).
the creation of an imaginary evidentiary predicate to
undergird Armstead’s testimony; and the victim impact                             After failing to persuade the state courts to hear his
evidence predisposes the jury to grant Armstead every benefit                   ineffective assistance of appellate counsel claims in a petition
of the doubt as it, understandably, seeks to make someone pay                   for post-conviction relief, Petitioner filed an application for
for the damage done to the Tewksbury family. In this context,                   delayed reconsideration with the Hamilton County Court of
confidence in the outcome of Byrd’s trial must be, and is,                      Appeals on June 17, 1992. On October 1, 1992, the court of
seriously undermined. One cannot, in good conscience, blink                     appeals issued an order in which it stated that it would not
at such substantial constitutional impropriety with full                        consider any of these claims because they were untimely.
comprehension of its deadly effects. In these circumstances,                    State v. Byrd, No. C-830676 (Ohio Ct. App. 1 Dist., Oct. 1,
judicial neglect transforms the justice system into an                          1992). Following the court of appeals’s refusal to hear his
accomplice to constitutional transgression.                                     claims, Petitioner pursued two different courses. First,
                                                                                Petitioner appealed that refusal to the Ohio Supreme Court.
                                    II.                                         On October 27, 1993, the state supreme court affirmed the
                                                                                judgment of the court of appeals in a one-sentence order.
  Byrd also claims that his trial and appellate counsel were                    State v. Byrd, 621 N.E.2d 407 (Ohio 1993). Second,
ineffective in violation of the Sixth Amendment. Initially, I                   Petitioner filed a motion for delayed reinstatement of his
note that Byrd has not procedurally defaulted his ineffective                   direct appeal to the Ohio Supreme Court. The court denied
assistance of trial and appellate counsel claims, 1and therefore                the motion without elaboration in another entry issued on
those claims are preserved for federal review. Turning to                       October 27, 1993. State v. Byrd, 621 N.E.2d 409 (Ohio
                                                                                1993). Motions to reconsider both orders were denied on
                                                                                December 15, 1993, and the Ohio Supreme Court scheduled
    1                                                                           an execution date of March 15, 1994.
       The majority primarily relies on the Ohio Supreme Court’s decision
in State v. Cole, 443 N.E.2d 169 (Ohio 1982) for its conclusion that Byrd
procedurally defaulted his ineffective assistance of trial counsel claims.        Then, on March 7, 1994, only eight days before his
It is settled that only state procedural bars that are deemed “adequate” to     scheduled execution, Petitioner filed a petition for a writ of
support the state’s judgment are given force by federal courts. See             habeas corpus pursuant to 28 U.S.C. § 2254. “That
Coleman v. Thompson, 501 U.S. 722, 729 (1991). This adequacy                    formidable filing included 29 claims for relief and filled
determination requires that a state procedural rule be actually enforced        almost 300 pages.” Collins v. Byrd, 510 U.S. 1185, 1186
and “firmly established and regularly followed.” Maupin v. Smith, 785
F.2d 135, 138 (6th Cir. 1986); Ford v. Georgia, 498 U.S. 411, 423-24            (1994) (Scalia, J., dissenting from denial of the application to
(1991). On one hand, the Ohio Supreme Court concluded in Cole that a            vacate stay of execution). The U.S. District Court for the
claim is barred by res judicata when a defendant, represented by new            Southern District of Ohio rejected Petitioner’s habeas petition
counsel, fails to raise on direct appeal a claim of ineffective assistance of   on grounds of inexcusable delay. However, we granted a stay
trial counsel that can be resolved without reference to evidence outside        of execution. Among other things, our order granted
the record. See 443 N.E.2d at 170. However, one year later in State v.
Cooperrider, the Ohio Supreme Court held:                                       Petitioner “120 days to allow for further investigation and
                                                                                discovery of possible habeas claims,” id. at 1187 (internal
    Appellant should have no fear that the doctrine of res judicata             quotations omitted), as well as “leave . . . to amend the
    will prevent him from raising the issue of ineffective assistance
12    Byrd v. Collins                            No. 96-3209      No. 96-3209                                Byrd v. Collins 101

petition within sixty (60) days of this order to include any      from jail. This videotape had little, if any, probative value
newly discovered claims,” Id. at 1187-88 (internal quotations     respecting Armstead’s testimony, and to the extent it did shed
omitted). Upon application by the State, the U.S. Supreme         minimal light on the circumstances surrounding Byrd’s
Court declined to vacate the stay. Petitioner’s case was          purported jailhouse confession, the State certainly could have
transferred to a different district court judge. On December      presented alternative evidence that carried less potential to
28, 1995, following three separate opinions disposing of the      inflame and prejudice the jury. One can comprehend the
claims raised, the district court entered an order denying the    relevance of this kind of material during the sentencing phase
petition for a writ of habeas corpus and dismissing the action.   where the sentencer needs to respond to “the specific harm
Petitioner now appeals from the district court’s denial of        caused by the defendant,” see Payne, 501 U.S. at 825. But
habeas relief.                                                    such a visceral appeal as this – with a highly attenuated
                                                                  connection to any material fact respecting Byrd’s guilt – is
                   II. Ronald Armstead                            inappropriate in the context of determining whether a
                                                                  defendant is guilty of a capital crime.
     A. Testimony Regarding Petitioner’s Confession
                                                                                                 D.
   The first issues that we will consider focus upon the
testimony of Ronald Armstead. All agree that Armstead’s              While it may be that each specific instance of prosecutorial
testimony was vitally important to the jury’s determination       misconduct might not per se warrant a new trial, taken as a
that Petitioner was the principal offender in the aggravated      whole, the cumulative effects of these improprieties certainly
murder of Monte Tewksbury. Armstead testified that,               denied Byrd a constitutionally fair trial. See United States v.
following their arrests, Petitioner, Brewer, and Woodall were     Young, 470 U.S. 1, 11 (1985) (holding that a prosecutor’s
transported to Block A at the Cincinnati Workhouse where          conduct must be analyzed in context to determine if defendant
Armstead was an inmate. Armstead testified that Petitioner        denied a fair trial). In Francis, 170 F.3d at 552, we recently
subsequently confessed to stabbing Monte. The following           ordered a new trial despite our findings that the specific
excerpts of Armstead’s testimony are the most crucial:            instances of prosecutorial vouching and improper factual
                                                                  speculation were not individually sufficient to warrant a new
  Q [by the prosecution]: And what were some of the               trial. We concluded: “[W]hen we review the numerous
  other questions that they asked you and talked to you           examples of impropriety in this case together and in the
  about?                                                          context of the entire trial, a new trial is appropriate.” Id.; see
                                                                  also Gravley v. Mills, 87 F.3d 779, 790 (6th Cir. 1996)
  A [by Armstead]: Well, they was doing a lot of                  (granting habeas petition given numerous instances of
  bragging, you know, about their case, period. Byrd              prosecutorial misconduct).
  (indicating) and Brewer, I talked to them in Byrd’s
  cell. . . . He [Petitioner] was telling me about how he had       For similar reasons, it is clear that the cumulative effect of
  stabbed that gentleman out there at the King Kwik, you          the numerous prosecutorial improprieties in this case denied
  know, and he wanted to be sure that they didn’t, wasn’t         Byrd a constitutionally fair trial. The only way the majority
  able to find any blood stains on the knife, you know. He        can reach a contrary conclusion is to focus myopically on
  wanted to, you know, as much information that he could          each specific instance of prosecutorial misconduct as if it
  get from my standpoint, how would they be able to find          occurred in a vacuum. The prosecutor’s conduct, however, is
  any blood on the knife if they cleaned it.                      symbiotic. The Brady violations create an environment in
100 Byrd v. Collins                               No. 96-3209      No. 96-3209                             Byrd v. Collins    13

of substantiation. Morever, it transforms a trial from                                       .   .   .
deliberate and sober fact-finding to visceral and capricious
guesswork.                                                           Q: Let me ask you this question. Did Defendant Byrd
                                                                     specifically tell you that he’s the one that stabbed Monte
   Finally, the prosecutor introduced substantial victim impact      Tewksbury?
evidence during the guilt phase of the trial. While the
Supreme Court has recently held that such evidence is                A: Yes, he did.
permissible during the sentencing phase of a capital trial, it
has not similarly approved of such evidence during the guilt         Q: How did he say that?
phase. See Payne v. Tennessee, 501 U.S. 808, (1991).
Indeed, five of the six Justices in the Payne majority wrote or      A: Okay. See, he kept on worrying, he, you know, he
joined separate concurrences, reiterating that the Court’s           kept on worrying about that knife, so like he had got
holding applied only to the sentencing phase of capital trials.      some stamps, so I was in the cell talking with him first
See id. at 830 (O’Connor, J., joined by White and Kennedy,           and then Brewer came in and then we just started, they
JJ., concurring) (“[A] state may legitimately determine that         just started asking me questions, and he said, “Yeah, I
victim impact evidence is relevant to a capital sentencing           killed him, I killed him, you know, because he was in my
proceeding.”); id. at 833 (Scalia, J., joined by O’Connor and        motherfu _ _ king way, f _ _ k him,” you know. That’s
Kennedy, JJ., concurring) (“The Court correctly observes the         the whole attitude they took the whole time they were
injustice of requiring the exclusion of relevant aggravating         there, they don’t care, you know. He [Petitioner] don’t
evidence during capital sentencing. . . .”); id. at 835 (Souter,     care (indicating).
J., joined by Kennedy, J., concurring) (“To my knowledge,
our legal tradition has never included a general rule that           Q: Did Brewer tell you who took the money?
evidence of a crime's effects on the victim and others is,           A: Brewer took the money. He [Petitioner] stabbed him
standing alone, irrelevant to a sentencing determination of the      (indicating).
defendant’s culpability.”). While it may be true that victim
impact evidence related to the underlying crime will               Tr. at 1547-52. In the district court, the Hamilton County
customarily be disclosed during the guilt phase, see id. at 840    Prosecutor’s Office submitted affidavits asserting that
(Souter, J., concurring), such disclosure must be limited by its   Armstead had provided the prosecutors with details about the
probative relevance respecting material facts. See, e.g.,          murder that were known only to the police and that had not
Bennett v. Angelone, 92 F.3d 1336, 1348 (4th Cir. 1996).           been provided to the media.
   In Byrd’s case, the prosecutor played a highly empathetic         B. Petitioner’s Challenges to Armstead’s Testimony
television news magazine videotape of Tewksbury and his
family, during the testimony of Ronald Armstead. The                 On appeal, Petitioner posits several challenges to
videotape was played without audio so that all the jury            Armstead’s testimony. First, Petitioner contends that either
observed were the highly-charged and undoubtedly heart-            of the following is true: (1) That Armstead and the
wrenching images of one who had been taken away from his           prosecution had agreed prior to the time that Armstead
family by a senseless crime. The majority asserts that the         testified that Armstead would receive favorable consideration
videotape was relevant to Armstead’s testimony since Byrd          in an upcoming parole revocation hearing he was facing in
allegedly confessed to Armstead while watching the program         exchange for his testimony and that Armstead testified falsely
14       Byrd v. Collins                                   No. 96-3209         No. 96-3209                               Byrd v. Collins     99

that no such deal had been made7; or (2) even if no deal had                   improper for a prosecutor to inform the jury as to purported
been reached between Armstead and the prosecution,                             facts not in evidence during closing argument. See United
Armstead nevertheless testified falsely when he stated that he                 States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (“A
was not facing additional charges at the time of Petitioner’s                  prosecutor's statement in a closing argument is improper if the
trial. Second, Petitioner alleges that Armstead’s testimony                    statement brings to the jury’s attention purported facts that are
about Petitioner’s confession was false in all material                        not in evidence and are prejudicial.”); Bess, 593 F.2d at 753
respects. In support of his position, Petitioner presented                     (“An attorney’s job arguing a case before a jury is to persuade
affidavits from several individuals who were incarcerated                      that body, based solely on the proof at trial and reasonable
with Armstead and Petitioner in the Cincinnati Workhouse in                    inferences that can be deduced therefrom.”); United States v.
the Spring of 1983. Petitioner asserts that these affidavits                   Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (holding
show that Armstead and another inmate, Virgil Jordan, were                     that “a prosecutor’s closing argument cannot roam beyond the
involved in a scheme to testify falsely against Petitioner in                  evidence presented during trial”).
order to further their8 own causes with the Hamilton County
Prosecutor’s Office. Under any of these theories, Petitioner                     In this case, the prosecutor engaged in wild and inexcusable
                                                                               factual speculation during his closing argument. Without any
                                                                               evidentiary predicate whatsoever, the prosecutor concluded
     7                                                                         that since Byrd’s boyhood home was in the same area as the
      We note that Armstead was never asked directly whether he had            store where Tewksbury was killed, “on numerous occasions
received any consideration from the State in exchange for his testimony.       [Byrd] was face to face with Monte Tewksbury, saw him, and
Presumably, Petitioner is referring to the prosecutor’s question on re-
direct examination, which asked Armstead to “tell the Jury and Judge why       recognized him.” J.A. at 3912. In attempting to explain why
you are here testifying?” Tr. at 1570.                                         Tewksbury’s blood was not found on the recovered knife, the
                                                                               prosecutor hypothesized -- again without any evidentiary
     8                                                                         predicate -- that Byrd had wiped the blood off the knife with
       Marvin Randolph’s affidavit claimed that Jordan was the originator
of a plan to help himself, Armstead, Randolph, and another inmate, Paul        a missing t-shirt sleeve and dumped the sleeve “out in
Sargent, by concocting a story that Petitioner had confessed, using details    Hamilton County in the northwest side with blood all over it.”
of the robbery and murder gleaned from news accounts. Robert Jones’s           J.A. at 3921-22. Given that this hypothesis was wholly
affidavit stated that he overheard Armstead and Jordan discussing this
plan. Elwood Jones, Jr., claimed both that he had overheard Jordan and         unsupported by introduced evidence, the prosecutor, of
Armstead putting their story together, and that Armstead later admitted to     course, could not identify the location of the sleeve.
him that Armstead had lied during Petitioner’s trial and had made a deal       However, he decided to take a guess at the sleeve’s location
with the prosecutor that Armstead would be released from prison if he          anyway, speculating: “Maybe [it’s in] the same place Monte
testified. Elwood Jones also produced a letter allegedly written by            Tewksbury’s ring is. Maybe the same place the top of the
Armstead that recants Armstead’s testimony. A handwriting examiner in          cash register is. But that is the explanation of what happened
state court concluded that the letter had not been written by Armstead and
that there were things about the letter which suggested that Elwood Jones      to the other sleeve.” J.A. at 3921. The majority has not
had written it himself. Finally, in the district court, Petitioner submitted   identified any evidentiary predicate from which the prosecutor
an affidavit from one of his post-conviction counsel. The letter claimed       could reasonably infer these purported facts. There is a good
that Jordan had told her that he and Armstead agreed to fabricate a story      reason for this omission: there is no evidence to substantiate
concerning Petitioner’s confession. However, Jordan refused to sign an         the prosecutor’s overzealous theorizing.            Similar to
affidavit to that effect.
                                                                               prosecutorial vouching for witness credibility, such
     The State, on the other hand, submitted affidavits in response. These     speculation places the government’s prestige behind
affidavits denied the existence of any type of deal between Armstead and       uncorroborated putative facts that have not survived the rigor
the Hamilton County Prosecutor’s Office, and also affirmatively asserted
98   Byrd v. Collins                             No. 96-3209      No. 96-3209                                    Byrd v. Collins       15

strikingly similar to what we see here. In that case, the         contends that the State violated his right to due process when
prosecutor stated that he “believe[d] beyond a reasonable         it presented testimony from a key witness which it knew was
doubt” that the defendant committed the charged crime. Id.        false and which it neither corrected nor disclosed to
at 753; see also United States v. Kerr, 981 F.2d 1050, 1053       Petitioner’s counsel. See Brady v. Maryland, 373 U.S. 83
(9th Cir. 1992) (finding improper vouching when prosecutor        (1963). Thus, Petitioner argues that we should reverse his
stated, “I think [the witness] was candid. I think he is          capital conviction and vacate his death sentence.
honest.”). We characterized such direct prosecutorial
vouching as “egregious,” “astonish[ing],” and “inexcusable.”        Petitioner’s third argument is an alternative one. He
Bess, 593 F.2d at 753, 757. There is no other way to describe     contends that the state courts denied him discovery and an
the prosecutor’s statements in this case. The essential           evidentiary hearing on these claims. Therefore, Petitioner
question is whether this vouching constitutes reversible error.   asks us, at a minimum, to vacate the district court’s judgment
                                                                  and remand Petitioner’s case with instructions that Petitioner
  In Carroll, we distilled the appropriate analysis for           be allowed to conduct discovery and be granted an evidentiary
determining whether identified prosecutorial vouching rises       hearing. In order to evaluate Petitioner’s claims fully, we
to the level of reversible error. As noted above, we first        must review Armstead’s criminal status at the time of
determine whether the remarks at issue were flagrant. Here,       Petitioner’s trial, as well as the testimony that Armstead
the prosecutor’s comments were certainly misleading to the        provided at trial.
jury. The majority does not dispute that Armstead’s
credibility was indispensable to Byrd’s conviction. Armstead               C. Armstead’s Status at the Time of Trial
was a jailhouse informant and convicted felon whose
credibility was questionable at best.             The State’s                     (1) Possible Parole Revocation
representations that it believed Armstead are certainly likely
to mislead a citizen jury as to Armstead’s actual credibility.      On December 4, 1980, Armstead began serving a 3-15 year
Additionally, the import of the remarks was exacerbated by        prison sentence, which was imposed by the Hamilton County
the weakness of alternative evidence of Byrd’s guilt. Again,      Court of Common Pleas following his convictions for
the majority does not dispute that this case turns on             felonious assault and trafficking in drugs. On September 2,
Armstead’s credibility, which was certainly bolstered by overt    1982, Armstead was paroled, notwithstanding the opposition
prosecutorial vouching. Though the statements do not appear       of the Hamilton County Prosecutor’s Office, which had
to be extensive, nor can we determine whether they were           maintained that Armstead showed a disposition to commit
deliberately placed before the jury, their strategic potency is   violent crimes. Approximately three months later, on
beyond dispute. Given the paucity of corroborating evidence       December 17, 1982, Armstead was arrested and charged with
of Byrd’s guilt, and the fact that these statements were the      robbery. The Ohio Adult Parole Authority (APA) was
kind that would mislead a jury, the prosecutorial vouching in
this case represents flagrant constitutional error.
                              C.                                  that Armstead had provided the prosecutors with details about the murder
                                                                  that were known only to the police and that had not been provided to the
  In addition to engaging in gross vouching during his closing    media. Moreover, the State provided letters from Randolph and Sargent,
                                                                  written before any contact had been made by Armstead, in which they
argument, Byrd’s prosecutor also speculated as to facts not in    volunteered to testify against Petitioner and in which they stated that
evidence. As the majority acknowledges, it is highly              Petitioner had admitted to various inmates at the jail that he had killed
                                                                  Monte.
16   Byrd v. Collins                              No. 96-3209      No. 96-3209                              Byrd v. Collins     97

notified of his arrest, and, by January 3, 1983, Armstead          prosecutorial vouching stems from its tendency to place the
waived a probable cause hearing on the issue of whether he         imprimatur and legitimacy of the government behind witness
was a parole violator given his recent arrest and was notified     testimony. See United States v. Francis, 170 F.3d 546, 550
that he would receive a full parole revocation hearing at a        (6th Cir. 1999). In this regard, the prohibition on government
later date. On February 2, 1983, Armstead was declared a           vouching is consistent with the prosecutor’s role as
parole violator, and the APA placed a detainer on him which        representative of a dispassionate sovereign, not a partisan
would result in his arrest as soon as he was released from jail    interest. See Berger v. United States, 295 U.S. 78, 88 (1935).
on this most recent charge. On March 15, 1983, Armstead
pleaded guilty to a reduced charge of assault and attempted          This Court applies a two-step analysis to determine whether
petty theft and received a sentence of 180 days in the             prosecutorial vouching constitutes reversible constitutional
Cincinnati Workhouse. His presumptive release date was             error. First, we assess whether the statements were improper,
September 15, 1983.                                                and second, whether the impropriety was harmless. See
                                                                   Carroll, 26 F.3d at 1384-87 (6th Cir. 1994). In determining
  While serving his 180 day sentence at the Workhouse,             whether improper conduct was harmless, we further inquire
Armstead met Petitioner and witnessed Petitioner’s                 into the flagrancy of the conduct. This flagrancy inquiry
confession to Monte’s stabbing. Armstead testified to this         requires that we assess the following factors: whether the
effect at Petitioner’s trial. Petitioner was convicted on August   remarks tended to mislead the jury; were isolated or
12, 1983, and sentenced to death on August 19, 1983. On            extensive; were deliberately or accidently placed before the
August 29, 1983, Armstead was released from the Workhouse          jury; and the strength of the evidence against the accused. See
and sent, pursuant to a parole violator warrant, to the            id. at 1385, 1389; see also Olsen v. McFaul, 843 F.2d 918,
Columbus Correctional Facility for further proceedings.            929 (6th Cir. 1988) (applying flagrancy factors to determine
Armstead was scheduled for an informal parole review               scope of prosecutorial misconduct in habeas case).
hearing on October 20, 1983.
                                                                     In this case, there is no doubt that the prosecutor improperly
   On the day Armstead was released to the custody of the          vouched for Armstead’s credibility; the only issue is whether
APA, Daniel Breyer, the prosecutor in Petitioner’s trial, spoke    the vouching was harmless. During closing arguments, the
to a supervisor with the APA and advised him of Armstead’s         prosecutor stated:
cooperation. The following day, Breyer confirmed this in
writing. Breyer’s letter stated that Armstead testified without      I’m not sure there is honor among thieves, but I believe
inducement by the State. The letter explained that, although         Armstead when he took the stand, and I believe you did,
it would not recommend parole, the Hamilton County                   too . . . . I have heard no evidence direct or
Prosecutor’s Office nonetheless would not be opposed to a            circumstantial to contradict what Armstead said. I
decision to continue Armstead on parole. Prior to the date of        believe him and submit that you should believe him. . . .
his parole hearing, Armstead allegedly faced threats and             Witnesses pay a price to testify. I never met Armstead
assaults from other inmates at the Columbus Correctional             before, but you know there’s something real genuine
Facility, including Petitioner’s father John Byrd, Sr. As a          about our people. . . .
result, Armstead was transferred to the Hamilton County Jail
on October 6, 1983. Then, on approximately October 20,             J.A. at 3920. There is no more direct way to vouch for a
1983, the APA determined that Armstead would be returned           witness’ credibility than to assert “I believe him.” In United
to parole. Armstead’s cooperation at Petitioner’s trial was        States v. Bess, 593 F.2d 749 (6th Cir. 1979), we ordered a
                                                                   new trial in the face of prosecutorial vouching that is
96   Byrd v. Collins                            No. 96-3209      No. 96-3209                              Byrd v. Collins    17

witnesses who corroborated Armstead’s testimony. In these        cited as a mitigating circumstance behind the decision to
ways, Armstead’s parole evidence certainly satisfies the Kyles   return Armstead to parole. On October 26, 1983, Armstead
definition of materiality as whether “the government’s           was reinstated to parole and he moved to San Diego,
evidentiary suppression undermines confidence in the             California. After approximately one year of supervision in
outcome of the trial.” Id. at 434 (internal quotations and       San Diego, Armstead received his final release on November
citation omitted). See also United States v. Scheer, 168 F.3d    1, 1984.
445, 452-53 (11th Cir. 1999) (finding a Brady violation when
evidentiary suppression related to a key witness’ testimony);                    (2) Armstead’s Testimony
East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997) (holding
that “when the withheld evidence would seriously undermine          At the outset, we note the extensive impeachment evidence
the testimony of a key witness on an essential issue or there    elicited from Armstead by Petitioner’s defense counsel on
is no strong corroboration, the withheld evidence has been       cross-examination. Armstead conceded, among other things,
found to be material”).                                          the following facts on cross-examination: (1) That he had
                                                                 been incarcerated in Block A of the Cincinnati Workhouse
   The imperative that we have the utmost confidence in a jury   (i.e., “the maximum security part” of the Workhouse) since
verdict is paramount when the punishment is death. We must       approximately December 20, 1982; (2) that he also had been
not tolerate any reasonable doubt in discharging this duty.      convicted within the previous ten years of a state or federal
Here, no one disputes that the State secured Byrd’s conviction   offense carrying a sentence of more than one year in prison;
as a direct result of Armstead’s testimony. We know that the     (3) that he previously had used the alias “Ronald Scott” after
jury was unaware that Armstead faced up to fifteen years         he escaped from the Workhouse during a prior period of
imprisonment, depending on the reception he received at his      incarceration and fled to Chicago; and (4) while in Chicago,
parole hearing. This reception would undoubtedly be warmer       he got into some “trouble” (i.e. arrested for robbery), but he
if he found a way to ingratiate himself with the Hamilton        had a “good work record up there and everything, so when
County prosecutor. None of these facts dictate that the jury     [he] went to court the Judge gave [him] some probation.” Tr.
would have necessarily reached a different verdict, but they     at 1552-56. We also point out that defense counsel elicited
certainly undermine confidence in its verdict. By failing to     from Armstead testimony in addition to that permitted by the
correct material testimony that it should have known was         Ohio Rules of Evidence. Ohio Evidence Rule 609 generally
false, the State committed reversible constitutional error.      authorizes the admission of evidence of a conviction within
                                                                 ten years prior to the date such evidence’s introduction is
                             B.                                  sought if the crime is punishable by imprisonment in excess
                                                                 of one year. Ohio Evid. R. 609(A)-(B). At Petitioner’s trial
  The prosecution’s Brady violations were exacerbated by         in 1983, Armstead admitted that he had an “escape charge”
numerous other instances of misconduct – notably improper        from 1972. Moreover, although defense counsel was
prosecutorial vouching for Armstead’s credibility and the        restricted at one point from pursuing the nature of Armstead’s
importing of facts not in evidence into closing argument.        conviction within the preceding ten year period, counsel
This Court has unambiguously stated its disdain of               successfully obtained the answer (i.e., a reference to robbery)
prosecutorial vouching for witness credibility. See United       at a later point in his cross-examination.
States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994) (“We
cannot overstate the extent to which we disapprove of . . .
improper vouching by prosecutors.”). Our contempt for
18   Byrd v. Collins                            No. 96-3209    No. 96-3209                              Byrd v. Collins     95

  At the conclusion of the cross-examination, the following    time pending or nothing else pending.” J.A. at 3863. On
colloquy occurred between Petitioner’s counsel and             redirect, the prosecution asked Armstead why he came to
Armstead:                                                      testify against Byrd. Armstead responded, “I don’t have no
                                                               more cases pending, and I come to testify against him because
  Q: Do you have any charges pending now?                      he was wrong.” J.A. at 3864. The majority attempts to
                                                               explain the undeniable falsity of these statements by
      MR. VOLLMAN [prosecution]: Objection, Judge.             hypothesizing that Armstead must have thought that the
      We have been over that.                                  questions referred to “criminal” charges, as opposed to his
                                                               impending parole revocation hearings. See ante 47-48. First,
      THE COURT: Overruled.                                    Armstead was asked whether he had “any charges pending.”
                                                               “Any” means “any.” Armstead was not asked whether he had
  A: No, I don’t sir.                                          any “criminal” charges pending, or any other kind of charges.
  Q: Did you have charges pending at the time that you         He was simply asked whether he had “any” pending charges.
  talked to the police and prosecutor?                         Moreover, Armstead responded that he had “nothing else
                                                               pending.” There is no qualification in this statement. By
  A: No, I didn’t, sir. I got my time in March the 15 and      testifying that he had “nothing else pending,” Armstead left
  I don’t have no time pending or nothing else pending.        the jury with the impression that he had no specific reason to
                                                               fabricate testimony, and that all of his jail time was behind
Tr. at 1569. On re-direct examination, the prosecution asked   him. This was patently untrue, and either the prosecution
Armstead when he was subject for release. Armstead stated:     knew or should have known.
“I got about two more weeks before my time is up.” Tr. at
1570. The prosecutor then concluded by asking Armstead            Additionally, the majority concludes that Armstead’s
why he was testifying. Amstead stated:                         testimony on his pending charges is immaterial since any
                                                               parole records evidence would merely serve as cumulative
     Because what he did is not what you would say is hip,     impeachment evidence, and that Armstead had been
  and he think it hip, and he brags about it, him and his      substantially impeached by other evidence.                While
  buddies, and Woodall and they bragged about it from the      Armstead’s overall credibility was certainly impugned by
  day that they come in the Workhouse until the day they       evidence that he was imprisoned at the Cincinnati Workhouse
  left. And he don’t care about nothing . . . and he killed    at the time of trial, and his admission that he had committed
  that man [Monte] for no reason, ‘cause he had the            a prior crime carrying at least a one-year prison term, none of
  money, and they could have left, and I don’t have no         this testimony furnished the kind of specific motivation to
  more cases pending, and I come to testify against him        fabricate testimony provided by his parole status. This
  because he was wrong.                                        evidence of a particular rationale to concoct testimony is not
                                                               merely cumulative with respect to Armstead’s general
Tr. at 1570.                                                   credibility. Neither the district court nor the majority dispute
                                                               that Armstead’s testimony was principally responsible for
  On appeal, Petitioner argues that Armstead lied — and the    Byrd’s conviction. Indeed, Armstead’s testimony provided
prosecution knew he was lying yet failed to respond            the only meaningful distinction between Byrd and co-
accordingly — when Armstead testified that he did not have     defendant John Brewer, who was not charged with
any charges pending at the time of Petitioner’s trial.         Tewksbury’s murder. Moreover, the State did not present any
94   Byrd v. Collins                            No. 96-3209      No. 96-3209                                Byrd v. Collins     19

   The majority attempts to remove itself from this              Petitioner points out that Armstead was facing an upcoming
constitutional thicket by relying on our decision in United      parole revocation hearing as a result of his guilty plea in
States v. Clark, 928 F.3d 733 (6th Cir. 1991), which provided    March 1983 to charges of assault and attempted petty theft.
that “[n]o Brady violation exists where a defendant knew or      In Petitioner’s view, his defense counsel’s question was not
should have known the essential facts permitting him to take     limited simply to any criminal charges Armstead might have
advantage of any exculpatory information.” Id. at 738            been facing at the time, but necessarily encompassed
(internal quotations and citation omitted).           Perhaps    something like a parole revocation hearing as well.
recognizing the dubiousness of Clark’s applicability to this
case, the majority further maintains that Armstead’s                In Petitioner’s state post-conviction proceedings, the
statements are neither false nor material for Brady purposes.    common pleas court rejected Petitioner’s Brady claims and
                                                                 denied his motion for a new trial. The court also set forth its
   First, the majority attempts to excuse the prosecution’s      factual findings with respect to the Brady claims. The district
failure to correct Armstead’s false and misleading testimony     court presumed these findings to be correct. While these
by asserting – as per Clark – that Byrd’s trial counsel should   findings are fatal to Petitioner’s Brady claims on habeas,
have known “that Armstead was on some form of parole             Petitioner contends that we need not defer to these findings.
when he was arrested in December 1982” since he had access       We now review the findings of the common pleas court, as
to Armstead’s arrest records. See ante at 46. While, perhaps,    well as Petitioner’s arguments that these findings are not
one might expect an effective counsel to infer from              entitled to deference.
Armstead’s arrest history that he was likely on some form of
parole at the time of his 1982 arrest, this omission is not so                III. State Court Factual Findings
egregious as to excuse the prosecutor’s failure to correct
known false testimony. In Clark, we held that defense                                   A. Introduction
counsel should have been aware of exculpatory evidence
when such evidence “was disclosed at [an] earlier detention        On September 19, 1989, the common pleas court denied
hearing in the presence of defendant and with the opportunity    Petitioner’s motion for a new trial, and in so doing, made
for inquiry by defense counsel.” 928 F.2d at 738. There was      several findings of fact. On October 2, 1989, and again on
no such disclosure in this case. Brady most assuredly does       April 1, 1991, the court denied Petitioner’s request for an
not allow a prosecutor to stand idly by while key witnesses      evidentiary hearing and denied his petition for post-conviction
testify in materially false and misleading ways. Indeed, the     relief. In conjunction with each denial, the court made a
Supreme Court recently asserted: “[T]he prosecution’s            number of factual findings. The Hamilton County Court of
responsibility for disclosing known, favorable evidence rising   Appeals ultimately affirmed the denials of both the motion for
to a material level of importance is inescapable.” Kyles, 514    a new trial and the petition for post-conviction relief.
U.S. at 438.                                                     Petitioner subsequently filed a petition for a writ of habeas
                                                                 corpus pursuant to 28 U.S.C. § 2254. On habeas review, the
  Perhaps recognizing that the Clark exception to Brady is       district court deferred to the state courts’ factual findings in
inapplicable to this case, the majority maintains that           rejecting Petitioner’s claims. On appeal, Petitioner contends
Armstead’s testimony was neither false nor material. The         that these findings were not entitled to the presumption of
notion that Armstead’s testimony was not false is simply         correctness, because the state post-conviction proceedings did
implausible. Byrd’s counsel asked Armstead, “Do you have         not afford Petitioner the opportunity to conduct discovery and
any charges pending?” Armstead replied, “I don’t have no         develop the record. We disagree. After careful study of the
                                                                 entire record, it appears that, prior to ruling on his claims, the
20        Byrd v. Collins                               No. 96-3209        No. 96-3209                               Byrd v. Collins     93

state courts afforded Petitioner a significant opportunity to              in the outcome of the trial.” Id. at 434 (internal quotations
conduct the discovery necessary to support his demand for an               and citation omitted). In this vein, “[if] there is no reasonable
evidentiary hearing.        Thus, even assuming that the                   doubt about guilt whether or not the additional evidence is
information Petitioner now seeks actually exists, we must                  considered, there is no justification for a new trial . . . [but]
defer to the state courts’ factual findings, because Petitioner            if the verdict is already of questionable validity, additional
had an adequate opportunity in the state courts to develop the             evidence of relatively minor importance might be sufficient
record to the extent necessary to warrant an evidentiary                   to create a reasonable doubt.” United States v. Agurs, 427
hearing, but he failed to do so. See Keeney v. Tamaro-Reyes,               U.S. 97, 112-13 (1976).
504 U.S. 1, 9 (1992).
                                                                             In this case, the prosecution did not disclose star witness
     B. Post-Conviction Proceedings in the State Courts                    Ronald Armstead’s parole records and pending charges. This
                                                                           evidence would have revealed that, at the time of Byrd’s trial,
   On April 19, 1988, the Ohio Supreme Court granted                       Armstead had a pending parole violation hearing where he
Petitioner six months to prepare and present his post-                     faced the probability of three to fifteen years of imprisonment.
conviction case. Petitioner proceeded to seek discovery on                 The evidence would have further revealed that the Hamilton
two different fronts: one in the common pleas court, and one               County prosecutor’s office, who so vehemently extolled
in the Hamilton County Court of Appeals. On July 19, 1988,                 Armstead’s virtues throughout Byrd’s trial, was adamantly
Petitioner, through his post-conviction counsel Richard J.                 opposed to any potential premature release for Armstead.
Vickers, filed a Motion for Release of Records. On August                  Indeed, on multiple occasions prior to Armstead’s testimony
5, 1988, the common pleas court issued what can only be                    against Byrd, the prosecutor informed the Ohio Adult Parole
described as a discovery order (hereinafter referred to as “the            Authority that it was strongly opposed to any early release for
August 5th order”).9 It states:                                            Armstead. After Armstead’s testimony against Byrd,
                                                                           however, the prosecutor – who was involved in pursuing both
    It is therefore ORDERED that the Southern Ohio                         Armstead’s and Byrd’s charges – committed an about-face,
  Correctional Facility, the Hamilton County Jail, the                     informing the parole board that Armstead would face physical
  Hamilton County Juvenile Court and the Juvenile                          harm in prison, and that he “sincerely hope[d]” that he would
  Detention Center, Adult Parole Authority, the Ohio                       not be placed in such an environment. With a proverbial
  Department of Rehabilitation and Corrections, University                 wink-and-nod, the prosecutor indicated that he “would not be
  Hospital of Cincinnati, Cincinnati General Hospital,                     opposed” to an early release for Armstead. J.A. at 1551-52.
  Cincinnati Children’s Hospital and any other juvenile or
  adult, public or private organization or person, release                    While the jury was wholly unaware that, barring a
  upon request to Petitioner Byrd, his counsel or his agent                fortuitous appearance at the parole hearing, Armstead was
  any records in their possession which concern John W.                    returning to prison, it did hear Armstead attest to the
  Byrd.                                                                    following: “I don’t have no time pending or nothing else
                                                                           pending. . . . I don’t have no more cases pending, and I come
   In addition, any person or organization having any                      to testify against [Byrd] because he was wrong.” J.A. at 3864.
  medical, psychological, psychiatric, hospital, police,                   At best, these statements were misleading and left the jury
                                                                           with a material mis-impression of fact. At worse, these
                                                                           statements were patently false, which the prosecution knew,
      9
     A copy of this order is contained in the Appendix at the end of the   or should have known.
opinion.
92   Byrd v. Collins                              No. 96-3209      No. 96-3209                                       Byrd v. Collins        21

constitutional guarantees of due process, fundamental                school and employment records related to Mr. Byrd
fairness, and effective assistance of counsel. These errors          should also release the records in their possession to Mr.
require an issuance of the writ or, at least, a remand for           Byrd, his attorneys or his agents.
limited discovery. Anything less is a gross and irrevocable
miscarriage of justice, as the stark and chilly choice here is     State v. Byrd, No. B-831662A (Hamilton County C.P., Aug.
between due process or death. Out of a deeply held belief that     5, 1988).10
the option compelled by the Constitution is clear, I now set
forth my dissenting views.                                           On October 18, 1988, Petitioner filed his post-conviction
                                                                   petition in state court and attached to it a number of affidavits
                               I.                                  of prison inmates alleging that Armstead’s trial testimony had
                                                                   been concocted and was untrue. Also attached to the petition
                              A.                                   were, among other things, a letter purportedly written by
                                                                   Armstead implying that he had testified pursuant to a deal
   It is well settled that prosecutorial suppression of evidence   with the prosecutor and a letter from the prosecutor to the
favorable to an accused “violates due process where the            APA indicating that Armstead had not testified as part of any
evidence is material either to guilt or to punishment,             deal but that, for a number of reasons, the prosecutor did not
irrespective of the good faith or bad faith of the prosecution.”   object to the possibility of Armstead returning to parole rather
Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Kyles v.       than being sent back to prison for violating his parole.
Whitley, 514 U.S. 419, 433-34 (1995) . More specifically,
due process prohibits the government from introducing                 Although he already obtained the August 5th order,
testimony that it knew or should have known was false, see         Petitioner’s post-conviction counsel prepared two broad
Kyles, 514 U.S. at 433, or failing to volunteer exculpatory        pseudo-discovery motions, which he presented to the
evidence of which it was or should have been aware. See            common pleas court on October 27, 1988 (hereinafter referred
United States v. Phibbs, 999 F.2d 1053, 1088 (6th Cir. 1993);      to as “the October 27th motions”). The first motion requested
Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998); see also       that the court order the Hamilton County Sheriff’s Office “to
Carriger v. Stewart, 132 F.3d 463, 480-81 (9th Cir. 1997)          turn over and advise the Hamilton County Prosecutor’s Office
(finding due process violation when prosecution failed to          of all information obtained during the course of their
disclose exculpatory evidence relating to witness’ history of      investigation of Petitioner’s case.” JA at 1718. The second
untruthfulness and violent behavior). Moreover, government         motion requested that the court order the Hamilton County
suppression of any evidence that is favorable to a defendant       Prosecutor’s Office to make a “complete copy of the entire
is material, and such suppression constitutes constitutional       Hamilton County Prosecutor’s File on Petitioner Byrd.” JA
error when “there is a reasonable probability that, had the        at 1721. The request stated that the court should review this
evidence been disclosed to the defense, the result of the          material and then seal a copy for use in further post-
proceeding would have been different.” Kyles, 514 U.S. at          conviction proceedings.
433 (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)).
  To establish constitutional error, a defendant need not show
that “more likely than not [he would] have received a                  10
                                                                          In his habeas petition, Petitioner claims that he sought all available
different verdict.” Id at 434. It suffices to show that “the       records through use of this motion; however, he relates the specifics only
government’s evidentiary suppression undermines confidence         with regard to his attempts to obtain a copy of a victim impact statement.
22     Byrd v. Collins                                     No. 96-3209         No. 96-3209                              Byrd v. Collins     91

   The prosecutor opposed the second motion, and Petitioner                                       __________________
stated later in his habeas petition that the common pleas court
failed to hear or grant these motions.11 Although Petitioner                                           DISSENT
requested much more extensive discovery in the district court,                                    __________________
these two motions appear to form the gravamen of
Petitioner’s protestations that the state post-conviction courts’                NATHANIEL R. JONES, Circuit Judge, dissenting. This
findings of fact are not entitled to deference.                                dissent is compelled by the majority’s validation of the
                                                                               unpardonable constitutional improprieties present in this
  On December 2, 1988, the common pleas court held a                           record. The effect of this validation is an intolerable
hearing concerning Petitioner’s request for copies of victim-                  abandonment of substantive and procedural principles deeply
impact statements, which Petitioner alleged were                               rooted in Anglo Saxon and American constitutional
impermissibly given to the jury (hereinafter referred to as “the               jurisprudence. Stated in its most simple form, these
December 2nd hearing”). At that time, the prosecutor asked                     principles are designed to protect individual rights from
the court to revoke the August 5th order in its entirety and                   constitutional shortcuts. I dissent here because rather than
order that, in the future, if Petitioner wanted further                        upholding these principles, as courts are sworn to do, a
“discovery type material, he can file a motion with this Court                 grievous breakdown has occurred.
and this Court can consider each application on its own
merits.” JA at 3992. During Petitioner’s response, the                            The ultimate penalty – death – hovers ominously over this
following colloquy took place:                                                 case, and this reality leads me to set forth several postulates.
                                                                               Democracy defends itself from anarchy by the degree it exalts
  Court:         Let’s try to cut through a lot of things that I               process over passion. The supremacy of due process over raw
                 don’t think are really important. What do                     emotion is even more compelling when government
                 you want? Specifically, what do you want?                     contemplates assuming the power to kill. Jurists most often
                                                                               find themselves in the cross-hairs of popular rage when
  Vickers:       Your Honor, there’s no case law or statutory                  confronted with constitutional infirmity in capital cases. In no
                 authority.                                                    other arena of civic decision-making is it more imperative that
                                                                               public officials operate with detachment. Judge Cranch, with
  Court:         Just answer my question. Specifically what                    unsurpassed clarity, spoke to the necessity of judicial
                 do you want?                                                  impartiality in charged circumstances when he declared
                                                                               during Aaron Burr’s 1807 treason trial: “The Constitution was
  Vickers:       We would like copies of the victim impact                     made for times of commotion. . . dangerous precedents occur
                 statement.                                                    in dangerous times. It then becomes the duty of the judiciary
                                                                               calmly to poise the scales of justice, . . . undisturbed by the
     11
                                                                               clamor of the multitude.”
       Petitioner supported his Brady claim with the same documents
used to support his other claims concerning Armstead and the                     Examining Petitioner John Byrd’s claims with the requisite
prosecutor’s alleged subornation of perjury. As discussed below,               judicial sobriety exposes serious and egregious instances of
Petitioner’s documents were insufficient to trigger an in camera review
of the prosecutor’s files with respect to any of Petitioner’s claims, and it   prejudicial error which, if uncorrected, will lead to his
appears that the post-conviction court never conducted such a review.          execution. It is beyond refutation that the State secured
The court found, however, that the prosecutor did not suppress any             Byrd’s death sentence in contravention of fundamental
evidence favorable to Petitioner.
90   Byrd v. Collins              No. 96-3209   No. 96-3209                              Byrd v. Collins     23

                       APPENDIX                  Court:       For what purpose?
                                                 Vickers:     It’s our understanding that the victim impact
                                                              statement went to the jury.
                                                 Court:       The victim impact statement did not go to the
                                                              jury. There was no PSI requested by the
                                                              defendant. That is part of the probation
                                                              report, is it not? You have a complete record
                                                              of what went to the jury. It’s not in there, is
                                                              it?
                                                 Vickers:     No sir.
                                                 Court:       I can assure you it didn’t go to the jury. I can
                                                              assure you the Court didn’t even have a copy
                                                              of it, if in fact there was one. Is that all
                                                              you’re requesting?
                                                 Vickers:     Your Honor, if I may be heard?
                                                 Court:       Is this all you’re requesting?
                                                 Vickers:     At this time, we have another motion pending
                                                              for emergency room records which has not
                                                              been heard.
                                                 Court:       I’m only going to hear what’s before me.
                                                 Vickers:     Yes sir. Once again, if this Court will allow
                                                              me just to address Mr. Breyer’s comments.
                                                              Mr. Breyer asked this Court to revoke or limit
                                                              its order without citing any case law or
                                                              statutory authority for it to do so.
                                                 Court:       I’m not going to revoke the entire order. I
                                                              think revocation of the order would cause
                                                              too much contact between Mr. Vickers and
                                                              his staff and your office, [sic] and this
                                                              particular Court with regard to discovery in
                                                              the future, as regards that which may be
24    Byrd v. Collins                                 No. 96-3209       No. 96-3209                           Byrd v. Collins   89

               necessary for their post-conviction relief.              of our Constitution. We are confident that they do.
               So I’m going to deny that portion of it. I am            Accordingly, the judgment of the district court denying the
               not going to allow the release of any of the             petition for a writ of habeas corpus is AFFIRMED.
               materials which the Probation Department
               may or may not have, because, one, the jury
               didn’t have that material and neither did the
               Court, and I find that it has absolutely no
               relevance with regard to the post-conviction
               relief.
JA at 3393-96 (emphases added). In response to a question
by Vickers, the court reiterated that it was not revoking the
August 5th order.
   The State then requested that post-conviction counsel
clarify Petitioner’s allegations concerning an alleged deal
between the prosecutor and Armstead. In response, counsel
stated that the petition was clear: Petitioner had attached the
August 30, 1983, letter from the prosecutor’s office to the
APA stating that the prosecutor     would not be opposed to
continuing Armstead’s parole.12 The State responded with a
request that counsel explain in writing what the consideration
was that the prosecutor allegedly gave to Armstead. This
colloquy followed:
  Vickers:     Your Honor, I would be glad to respond to
               Mr. Breyer, but we have sort of a Catch 22
               situation here. We can only supply the
               documents that we have. Until the Court
               grants an evidentiary hearing we cannot
               conduct the kind of discovery that we need to




     12
      The letter stated that, despite the absence of any promise,
Armstead’s testimony at Petitioner’s trial had greatly assisted the
prosecution and that, because of his testimony, Armstead’s safety was
now in danger.
88    Byrd v. Collins                               No. 96-3209       No. 96-3209                                     Byrd v. Collins       25

contends that Ohio’s death penalty scheme: (1) Allows for                             conduct in13order to fully answer Mr. Breyer’s
the imposition of capital punishment in an arbitrary and                              question.[ ]
discriminatory manner; (2) fails to narrow the class of death-
eligible defendants adequately; (3) imposes an impermissible            Court:        You’ve made an allegation. There’s certainly
risk of death on capital defendants who choose to exercise                            some basis for the allegation, sir.
their right to a jury trial; (4) violates defendants’ rights to due
process and effective assistance of counsel by allowing                 Vickers:      Sir, within the context of the petition, I
presentence investigation reports or mental evaluations                               believe the documents show that there was
requested by defendants to be provided to the jury; (5) fails to                      contact between Armstead and the
provide for an adequate proportionality review; (6) fails to                          prosecutor’s office. Also this cause of action
provide the sentencing authority with the option to choose a                          does not stand alone. There are other causes
life sentence even if the aggravating circumstances outweigh                          of action to indicate.
the mitigating factors; and (7) provides an execution process
that is cruel and unusual in that it offers defendants “the             Court:        Is it so difficult to put that in letter form and
macabre choice” of death by lethal injection or death by                              send it to Mr. Breyer?
electrocution. The district court rejected each of Petitioner’s
claims. We agree that the claims lack merit substantially for           Vickers:      I will do my best to respond, yes, sir.
the reasons given by the district court in its opinion of July        JA at 3999. It is unclear to what extent, if any, counsel
28, 1995.                                                             followed through with the court’s directive to respond in
                        IX. Conclusion                                writing to the prosecutor’s office. Other than an apparent
                                                                      request for the Sheriff’s investigatory records, which
   In his brief, Petitioner states that “[t]his will in all           Petitioner eventually received, we find nothing in the record
likelihood be the last court to review the merits of [his] claims     to indicate that Petitioner ever requested to view non-work
for relief from his capital conviction and death sentence.”           product prosecutorial materials, or, if he did make such a
Petitioner’s Br. at 1. Mindful of this likelihood and the             request but was met with prosecutorial opposition, that
finality of the sentence imposed, we have reviewed                    Petitioner took any steps to have the court enforce the request.
Petitioner’s claims for relief with great care, as the length of
this opinion plainly indicates.
   The people of the sovereign State of Ohio have concluded
that capital punishment is an appropriate sanction in certain             13
circumstances. Over sixteen years ago, an Ohio jury                           It appears that counsel had a preconceived notion that, since Ohio
                                                                      Rev. Code § 2953.21 does not entitle a petitioner to discovery, he was
recommended, and the trial court agreed, that Petitioner’s            somehow precluded from pursuing discovery under the August 5th order
crime warranted this ultimate sanction. Over the following            that the court had issued in response to his motion. There is, however, an
decade, Ohio’s state courts repeatedly affirmed Petitioner’s          important distinction between having no entitlement to discovery and
conviction and sentence. Our task on habeas review is not to          being precluded from undertaking discovery; here, although counsel may
question the wisdom or propriety of capital punishment.               not have been able to conduct depositions or serve interrogatories without
                                                                      a further order from the court, he certainly could have obtained
Instead, our sole responsibility is to ensure that Petitioner’s       documentary materials. Counsel made a similar “we-need-an-evidentiary-
conviction and death sentence comport with the requirements           hearing-to-do-discovery” statement earlier at the December 2nd hearing
                                                                      and in his memorandum in support of the second October 27th motion.
26    Byrd v. Collins                                     No. 96-3209        No. 96-3209                              Byrd v. Collins    87

   Just prior to participating in the above-described hearing,               777 (6th Cir. 1987). In any event, the claim is without merit.
on November 29, 1988, Petitioner requested from the                          On direct appeal, the Ohio Supreme Court noted that,
Hamilton County Sheriff’s Office records pertaining to the                   although it believed the argument to be improper, it was not
visitation at the Hamilton County Jail and the Workhouse of                  prejudicial to Petitioner when viewed in the context of the
inmates Armstead, Virgil Jordan, Marvin Randolph, Robert                     entire closing argument, which emphasized the evidence of
E. Jones, and Thomas Sargent. On December 23, 1988,                          aggravating circumstances present in the case. See State v.
pursuant to Ohio Rev. Code § 149.43, Petitioner filed with the               Byrd, 512 N.E.2d 611, 616 (Ohio 1987). This circuit has
Hamilton County Court of Appeals a mandamus action                           noted that, “[u]nless calculated to incite the passions and
seeking to enforce his public records request. State v. Leis,                prejudices of the jurors, appeals to the jury to act as the
No. C-880792 (Ohio Ct. App. 1 Dist., June 16, 1989).                         community conscience are not per se impermissible.” United
Sometime after Petitioner filed the mandamus action, the                     States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991).
court of appeals stayed the post-conviction proceedings in the               Solivan involved comments by the prosecutor that the jury
trial court.                                                                 should convict the defendant of drug charges in order to send
                                                                             a message to drug dealers that they were not welcome in the
   On January 17, 1989, counsel for the Sheriff’s Department                 community. That case was in the context of a direct appeal
wrote Petitioner’s counsel and informed him that he could                    where the court, under its supervisory powers, held that the
have access to visitation records by contacting Milt Casias at               argument constituted reversible error. Petitioner’s case is
the Hamilton County Sheriff’s Office. Petitioner’s counsel                   distinguishable not only because we must examine his claims
did not examine these records until April 4, 1989. At that                   under the more stringent standards applicable on habeas
time, counsel was permitted to review, and was given copies                  review, but also because the argument complained of does not
of, visitation cards for each inmate whose records he                        ask the jury to send a message to other potential murderers or
requested. The search for these records had been conducted                   robbers. The prosecutor quoted from the Supreme Court’s
in late 1988 when Petitioner first made his request, and the                 explanation of the purpose of capital punishment as a way of
Department of Corrections provided Petitioner with all of the                arguing that the jury should find that these purposes would be
requested visitation records that it could locate. However, not              served by imposing the death penalty on Petitioner. It is not
all of the records were found. In particular, the Department                 clear that this comment was even improper, and it certainly
was unable to locate the general attorney log book for the                   does not render Petitioner’s entire trial fundamentally unfair.
requested period, but Milt Casias averred that, to the best of               The prosecutor urged the jury to weigh all the aggravating
his knowledge, the log book had not been destroyed.14                        circumstances against the mitigating factors in making its
Petitioner’s counsel requested, and Casias agreed to conduct,                sentencing determination.        In short, the prosecutor’s
                                                                             comments did not deny Petitioner his right to a fair trial.
     14                                                                        For the foregoing reasons, we reject each of Petitioner’s
       When Casias spoke with Petitioner’s counsel on April 4, 1989, he
informed counsel that the Sheriff’s Department regularly destroyed           claims of prosecutorial misconduct.
records that were more than five years old. In Petitioner’s case, the
records sought were from spring and summer of 1983; Petitioner made                         VIII. Miscellaneous Claims
this request on November 29, 1988, shortly past the five-year mark.
Moreover, as the State noted, it is surprising that any visitation records     Finally, Petitioner raises a series of miscellaneous
were found: visitation records are supposed to be maintained on a three-
year retention cycle, and individual inmate visitation cards are normally    challenges to Ohio’s capital punishment scheme both on its
kept for only one year. Despite the foregoing, Petitioner’s counsel was      face and as applied to his case. In particular, Petitioner
able to obtain visitation cards for each inmate requested.
86    Byrd v. Collins                               No. 96-3209     No. 96-3209                                      Byrd v. Collins       27

  intelligence, interest and bias, if any; together with all the    a further search for the records in question. On April 7, 1989,
  facts and circumstances surrounding the testimony.                Casias’s office informed counsel that a large number of
  Applying these tests, you will assign to the testimony of         records had, in fact, been destroyed on March 8, 1989. The
  each witness such weight as you deem proper.                      Sheriff’s Office provided counsel with a list of destroyed
                                                                    items; this list did not include any visitation records or the
    You are not required to believe the testimony of any            attorney log book. The prosecutor’s office informed counsel
  witness merely because that witness was under oath.               that they would continue to look for the log book.
  You may believe or disbelieve all or any part of the
  testimony of any witness. It is in your province to                 Counsel apparently also asked the prosecutor to provide
  determine what testimony is worthy of belief and what             access to the sheriff’s investigatory files, a request
  testimony is not worthy of belief.                                substantially similar to the first of Petitioner’s two October
                                                                    27, 1988, motions. On May 10, 1989, the prosecutor’s office
Tr. at 1692-94. The remarks in question were extremely              informed counsel that, in order to expedite Petitioner’s
isolated and constituted only two brief comments in the midst       mandamus action, the prosecutor’s office had “decided to
of over thirty pages of transcript from closing argument. The       make available  to [Petitioner] all the records [Petitioner had]
comments were deliberate in the sense of attempting to              requested.”15 JA at 564. The prosecutor provided counsel
emphasize the credibility of Armstead, but they clearly were        with a contact at the Hamilton County’s Sheriff’s Office from
not deliberate in the sense of attempting to mislead or confuse     whom counsel could obtain the requested information. In
the jury. Indeed, the prosecutor explicitly told the jury that      addition, through the discovery process, in January 1989,
his closing argument was not evidence. Following our                counsel obtained Petitioner’s Juvenile Court records.
examination of all the factors, especially the fact that the
comments did not have any substantial likelihood of                   Sometime after April 7, 1989, Petitioner moved the
confusing the jury, we conclude that the two brief comments         Hamilton County Court of Appeals to hold an evidentiary
at issue did not render Petitioner’s conviction constitutionally    hearing regarding the lost visitation records. The Sheriff’s
infirm under the stringent standard applicable on habeas            Department moved to dismiss the action and opposed the
review. See Brecht v. Abramson, 507 U.S. 619, 623 (1993)            evidentiary hearing, providing affidavits and other documents
(harmlessness standard used by federal habeas courts is             showing that it had complied with Petitioner’s mandamus
whether the error had a "substantial and injurious effect or        request. On June 16, 1989, the Hamilton County Court of
influence in determining the jury's verdict.") (quoting             Appeals dismissed the mandamus action, stating that
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).              Petitioner “has failed to show, pursuant to Civil R. 26(B), the
                                                                    relevancy of the destroyed or lost records as to the
                E. Appeal to Societal Duty                          Postconviction Relief Petition.” JA at 3283. The court also
                                                                    overruled the motion for an evidentiary hearing, and dissolved
  Petitioner’s final claim is that the prosecutor argued to the     the stay and protective orders previously entered.
jurors during closing arguments at the sentencing phase that
they should impose the death penalty on Petitioner in order to
fulfill their societal duty. In making this argument, the
prosecutor quoted from Gregg v. Georgia, 428 U.S. 153
(1976). At the outset, we note that Petitioner did not raise this       15
                                                                            According to the State’s April 15, 1994, opposition to Petitioner’s
claim in the petition for habeas corpus, and, thus we need not      motion for discovery in the district court, this request covered the entire
consider it on appeal. See Chandler v. Jones, 813 F.2d 773,         file of the sheriff’s investigation into Monte’s murder.
28     Byrd v. Collins                                     No. 96-3209        No. 96-3209                              Byrd v. Collins     85

  We find nothing in the record to indicate that Petitioner’s                 reexamine Armstead’s testimony was to reevaluate
counsel otherwise utilized the August 5th order or Ohio Rev.                  Armstead’s credibility. Everyone involved with the case
Code § 149.43 to pursue further discovery. Counsel claims                     presumably knew that, if Armstead’s testimony was believed,
that, on an undisclosed date, he met with an employee of the                  then Petitioner was the principal offender and guilty of the
Ohio Auditor of State to discuss a “Furtherance of Justice                    cold-blooded murder of Monte Tewksbury.
Account” and was informed that the Hamilton County
Auditor’s Office would have audit oversight responsibility for                   In our view, the prosecutor’s statements did not “so infect[]
the prosecutor’s disbursements from such an account. There                    the trial with unfairness as to make the resulting conviction a
is no indication whatsoever that, after receiving such                        denial of due process.” Darden, 477 U.S. at 181 (internal
information, counsel either attempted to obtain these records                 marks and citation omitted). We are confident that the
from Hamilton County or pursue a public records action.                       prosecutor’s statements did not confuse or improperly
                                                                              influence the jury, especially given its decision to have the
                     C. State Court Findings                                  testimony reread. In addition, the trial judge instructed the
                                                                              jury as to the factors to consider in evaluating the weight to
   In reviewing the motion for a new trial, the common pleas                  give the testimony of a witness. These factors emphasized
court considered the affidavits and other evidence attached to                that it was within the jury’s sole discretion how much weight
the post-conviction petition. The court denied the motion,                    to give testimony, and the prosecutor’s opinion as to the
finding:                                                                      truthfulness of a witness was not one of these factors to
                                                                              consider. The judge instructed the jury as follows:
  (1) The affidavits and statements of Elwood Jones, and
  the affidavits of Marvin Randolph, Robert Jones, and                            In determining the weight to be given to such a
  Thomas Sargent are merely impeaching in nature.                               witness’s testimony, you may take into consideration that
                                                                                witness’s skill, experience, knowledge, veracity,
  (2) Elwood Jones, Marvin Randolph, Robert Jones, and                          familiarity with the facts of the case, and the usual rules
  Thomas Sargent are all convicted felons, whose                                for testing credibility.
  credibility is thereby diminished. The affidavits of
  Randolph and Sargent are       contradicted by their own                        As to all the evidence, you, ladies and gentlemen, are
  letters to the prosecutor.[16]                                                the sole judges of the facts, the credibility of the
                                                                                witnesses, and the weight to be given to the evidence.
                                                                                  To weigh the evidence, you must consider the
                                                                                credibility of the witnesses who have testified. You will
                                                                                apply the tests of truthfulness which you apply in your
                                                                                daily lives.
     16                                                                           These tests include the appearance of each witness
       Thomas Sargent and Marvin Randolph each contacted the
prosecutor’s office via handwritten letters and affirmatively asserted that     upon the stand; the manner of testifying; the
they frequently talked with Petitioner and his co-defendants and that they      reasonableness of the testimony; inconsistencies, if any,
had information regarding Monte’s murder. “Recanting affidavits and             in the testimony; the opportunity the witness had to see,
witnesses are viewed with extreme suspicion by the courts.” Spence v.
Johnson, 80 F.3d 989, 997 (5th Cir. 1996) (quoting May v. Collins, 955          hear and know the things concerning which that witness
F.2d 299, 314 (5th Cir. 1992)).                                                 testified; accuracy of memory; frankness or lack of it;
84    Byrd v. Collins                                    No. 96-3209        No. 96-3209                                       Byrd v. Collins        29

relief on the basis of improper vouching.43 The few cases in                  (3) The note purportedly signed by Ronald Armstead,
which vouching provided a basis for relief were in the context                attached to the affidavits of17Elwood Jones, was not
of a direct appeal where we exercise supervisory power over                   written by Ronald Armstead.[ ]
the federal trial court proceeding. Even on direct appeal,
however, reversal is not automatic. Compare United States v.                  (4) There is no credible evidence before the Court that
Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994) (finding                          Ronald Armstead lied in his trial testimony.
reversible error), with Collins, 78 F.3d at 1039-40 (holding
that improper vouching was harmless under the                                 (5) Ronald Armstead was not given any consideration    by
circumstances).                                                               the State for his testimony against John Byrd, Jr.[18]

   In Petitioner’s case, we conclude that the demanding                       (6) The credibility of Ronald Armstead was the subject
standard for habeas relief has not been met. Our review of the                of extensive cross-examination at trial.
“totality of the circumstances” convinces us of this. Angel,
682 F.2d at 608. First, the above remarks did not mislead the               JA at 4201-02. The court gave res judicata effect to these
jury at all. In fact, the prosecutor told the jury during his               findings of fact when Petitioner raised identical claims in his
closing argument that his argument was not evidence. He                     post-conviction petition. It found that all issues of fact could
stated, “I ask you to bear in mind what I say is not evidence.”             be resolved without an evidentiary hearing and granted
Tr. at 1643. In addition, the trial judge instructed the jury               summary judgment to the State.
immediately after closing arguments that the arguments of the
attorneys were not evidence. Tr. at 1688. This Court has
noted that where the court instructs the jury in this fashion,                  17
“[s]uch instructions have sometimes been deemed to cure                            The State presented a report by a handwriting expert that
improprieties in closing argument.” Carroll, 26 F.3d at 1389                concluded: “I have found no basis for believing that the ‘Ronald
n.12. Moreover, following an initial period of deliberation,                Armstead’ signature on the [letter implying that Armstead cut a deal in
                                                                            exchange for his testimony] was written by Ronald Armstead. I am
the testimony of Armstead was reread at the jury’s request.                 confident examination of the original would result in a definite
After hearing Armstead’s testimony again, the jury returned                 determination that it was not written by him.” JA at 3165. While not
a verdict of guilty approximately one hour later. Armstead’s                definitively so concluding, the report also indicated that the letter in
testimony was far from complicated. The crux of his                         question may have been written by Elwood Jones.
testimony was that Petitioner told him that Petitioner had                      18
stabbed Monte. The jury could not have wanted to reexamine                          Other than the letter that the common pleas court determined was
Armstead’s testimony for the purpose of remembering what                    forged, all correspondence from Armstead to the prosecutor’s office was
he said. Rather, the likely purpose behind the jury’s desire to             written after Petitioner’s conviction and stated only that Armstead felt that
                                                                            his life was now in danger and was requesting the prosecutor’s help. All
                                                                            correspondence from the prosecutor’s office to the APA was also written
                                                                            subsequent to Petitioner’s conviction. This correspondence advised,
     43                                                                     among other things, that Armstead had provided assistance, Armstead’s
       See, e.g., Toney v. Anderson, No. 96-4284, 1998 WL 68919 (6th        life appeared to be in danger because of this assistance, and the
Cir. Feb. 13, 1998); Martin v. Rivers, No. 95-2210, 1997 WL 49067 (6th      prosecutor’s office would not oppose continuing Armstead’s parole.
Cir. Feb. 3, 1997), cert. denied, 520 U.S. 1233 (1997); Boyle v. Brigano,   Prosecutor Breyer also averred that Armstead was not given a deal in
No. 93-3823, 1994 WL 242392 (6th Cir. June 2, 1994); Cantrell v. Gray,      exchange for his testimony and that Armstead served his local time in full
No. 84-3686, 1986 WL 16540 (6th Cir. Feb. 7, 1986); Mitchell v. Ravitz,     before being transferred to the State as a parole violator. The inmate
No. 85-1029, 1985 WL 13742 (6th Cir. Sept. 30, 1985) (all cases denying     affidavits are the only submissions tending to support Petitioner’s
habeas relief despite the petitioner’s claim of improper vouching).         contention that Armstead made a deal in exchange for his testimony.
30    Byrd v. Collins                                     No. 96-3209        No. 96-3209                                Byrd v. Collins      83

  In addition, in its order denying the post-conviction petition             Armstead’s testimony. Specifically, Petitioner complains of
to vacate Petitioner’s sentence, the common pleas court                      the following two statements:
found, among other things, that:
                                                                               [Armstead] looked Byrd right in the face. He looked me
  (1) Marvin Randolph and Thomas Sargent initiated                             in the face. He looked you in the face, Armstead did, he
  contact with the prosecutor’s office to testify against                      looked the defense attorneys in the face and he said,
  Petitioner, but were not called by the State.                                “What that man did was wrong. He killed that man for
                                                                               no reason.” I’m not sure there is honor among thieves,
  (2) Petitioner has submitted no credible evidence                            but I believe Armstead when he took that stand, and I
  suggesting that Ronald Armstead lied, or that would                          believe you did, too.
  result in the probability of a different outcome at a
  second trial.                                                              Tr. at 1658-59.
  (3) Ronald Armstead did19not have any charges pending                        Armstead said that he was told by Byrd that Byrd stabbed
  at the time of this trial,[ ] and received no bargain or                     Monte Tewksbury. I haven’t heard any evidence to
  deal from the State in return for his testimony.                             contradict that. I have seen a lot of circumstantial
                                                                               evidence to support that. I have heard no evidence direct
  (4) There are no fundamental discrepancies between the                       or circumstantial to contradict what Armstead said. I
  testimony of Ronald Armstead at this trial and his                           believe him, and I submit that you should believe him.
  testimony at the trial of the co-defendants.
                                                                             Tr. at 1662. Petitioner contends that these comments
  (5) No evidence favorable to the defendant was                             deprived him of his right to a fair trial and an impartial jury
  suppressed by the State.                                                   determination of his guilt. We have stated that “‘it is
                                                                             improper for a prosecuting attorney in a criminal case to state
JA at 1874, 1878, 1896.                                                      his personal opinion concerning the credibility of witnesses or
                                                                             the guilt of a defendant.’” United States v. Krebs, 788 F.2d
   The Hamilton County Court of Appeals affirmed the lower                   1166, 1176 (6th Cir. 1986) (quoting United States v. Daniels,
court. Ohio v. Byrd, No. C-910340, 1992 WL 37761 (Ohio                       528 F.2d 705, 709 (6th Cir. 1976)).
Ct. App. 1 Dist., Feb. 26, 1992). The court of appeals noted
that “[u]nder O.R.C. § 2953.21(C), the trial court has a                       However, we lack supervisory power over state courts, and
statutory duty before granting [an evidentiary] hearing to                   our inquiry on habeas review is limited to determining only
determine from the petition, the supporting affidavits, and the              whether the improper comments constitute a due process
                                                                             violation. See Cook v. Bordenkircher, 602 F.2d at 119 n.5.
                                                                             As we noted earlier, in a due process analysis, we consider
     19
       Although the common pleas court did not explicitly state that         “the fairness of the trial, not the culpability of the prosecutor.”
“Armstead did not lie about his charges” when discussing this claim, this    Pritchett, 117 F.3d at 964 (quotation marks and citation
is the clear import of its findings. The court explicitly found that         omitted). We have not discovered, nor have the parties
Armstead had no criminal charges pending at the time of trial and that he    directed us, to any cases in which we have granted habeas
served his six month sentence and was transferred to the State as a parole
violator. The court concluded that Petitioner was not entitled to relief
because “the factual premise underlying his claim is false.” JA at 1878-
79.
82   Byrd v. Collins                             No. 96-3209      No. 96-3209                                      Byrd v. Collins        31

remarks were relatively isolated, and other evidence of           record whether there are substantive grounds for relief.” Id.
Petitioner’s guilt is strong, especially his confession to        at *2. In particular, it found that the lower court properly
Armstead. Although the comments were deliberately placed          refused to hold an evidentiary hearing on Petitioner’s first
before the jury, the prosecutor was merely speculating about      cause of action (substantive lying) because “the record is
possible inferences from the evidence. Finally, defense           devoid of any evidence that the prosecution had any
counsel did not object to these comments or ask for a curative    knowledge that Armstead’s testimony was fallacious. Instead,
instruction. In sum, we hold that these comments were not         Petitioner offered evidence that served only to challenge the
“so egregious so as to render the entire trial fundamentally      credibility of Armstead as a witness for the state.” Id.
unfair.” Pritchett, 117 F.3d at 964.                              Similarly, the court held that, with respect to the question of
                                                                  a deal, there was no issue of fact that required a hearing. The
   Petitioner also complains that the prosecutor directed         court reasoned that (1) even assuming the “forged letter” was
personal insults at him and suggested that the defense counsel    authentic, it was inherently contradictory because it stated that
was hiding something from the jury. The prosecutor referred       Armstead testified “only” because of a deal, and then later
to Petitioner as a “predator” three times during closing          stated that he testified “only” because he wanted the truth to
arguments and suggested to the jury that the defense counsel      come out; (2) that the letter written by Prosecutor Breyer did
was trying to hide something from it about the source of          not recommend any particular action and clearly stated that
blood found on a sweater alleged to have been worn by             Armstead’s cooperation was attained without promise or
Woodall. Although “gratuitous insults” of the defendant by        inducement; (3) Elwood Johnson’s affidavit did not claim any
a prosecutor are not to be encouraged, the prosecutor’s use of    firsthand knowledge of a deal; and (4) the record contained no
the term “predator” to describe Petitioner did not deprive him    other evidence of a deal. Thus, an evidentiary hearing was
of a fair trial. See Olsen v. McFaul, 843 F.2d 918, 930 (6th      not required, because Petitioner failed to present sufficient
Cir. 1988) (denying habeas relief and holding that the            evidence to create an issue of fact that, if resolved in
petitioner defendant had not been deprived of a fair trial        Petitioner’s favor, would provide substantive grounds for
where the prosecutor referred to the petitioner as a              relief.
“deadbeat,” “thief,” “creep,” and “liar”, the remarks were
deliberate and not isolated, no curative instruction was given,              D. District Court Habeas Proceedings
and the evidence of guilt was not overwhelming). In addition,
while it is “unprofessional . . . to make personal attacks on        The district court deferred to the state courts’ factual
opposing counsel,” Collins, 78 F.3d at 1040, the statement        findings,20 but not until after it considered Petitioner’s several
about defense counsel in this case was clearly a suggestion of
a reasonable inference to be drawn from defense counsel’s
presentation of evidence and argument. “Where there is                20
                                                                         The district court presumed that the state courts’ findings were
conflicting testimony, it may be reasonable to infer, and         correct with respect to the “absence of any advance arrangement between
accordingly to argue, that one of the two sides is lying.” Id.    Armstead and the prosecutor for leniency, and the absence of any
(citing United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.    evidence that the prosecution was aware that Armstead’s testimony about
1991)).                                                           Byrd’s confession was false.” Byrd v. Collins, No. C-1-94-167, at 21
                                                                  (S.D. Ohio Dec. 26, 1995). It is unclear whether, in dismissing
                                                                  Petitioner’s “pending charges” claim, the district court relied on the state
  Finally, Petitioner argues that during closing arguments the    courts’ various findings that Armstead did not have any criminal charges
prosecutor improperly vouched for the truthfulness of             pending and did not perjure himself, or whether it relied on its own
                                                                  factual findings with respect to that issue. Nonetheless, the court
                                                                  apparently concluded that Armstead’s testimony was not false or
32    Byrd v. Collins                                   No. 96-3209       No. 96-3209                               Byrd v. Collins     81

discovery requests and ordered further discovery in two                     pants, you have seen them all that they were all blue. I
areas.21                                                                    speculate that that tan he wore, he had tan pants. I will
                                                                            tell you this, Nitz wasn’t concerned with what color pants
  Among other things, Petitioner’s document requests                        he had on, and he is trying to help the police. He made
included: (1) “All documents . . . received or prepared by                  a mistake. He’s a kid, lucky to be alive today, given that
the Hamilton County Prosecutor’s Office or the Hamilton                     one fault, that faulty recall.
County Sheriff’s Department authorizing, requesting[,]
directing or identifying Ronald Armstead, Virgil Jordan,                  Tr. at 1655.
Marvin Randolph, Robert Jones, Leroy Tunstall, to be
questioned and/or investigated in connection with the murder                [W]e are missing two sleeves there (demonstrating). We
of Monte Tewksbury, regardless of whether such individuals                  have this T-shirt altered, missing one sleeve, one of them
testified at trial”; (2) all documents containing statements by             dirtier than the other, and we recovered two sleeves from
Sharon Tewksbury concerning the murder of Monte                             that truck, one a little cleaner than the other, and I submit
Tewksbury; (3) all Prosecutor’s Office and Hamilton County                  to you we are missing a sleeve, and I will tell you where
Auditor’s Office documents concerning payments from a                       that sleeve is. It is out in Hamilton County in the
“Furtherance of Justice Account,” allegedly maintained by the               northwest side with blood all over it. Now, where out
Prosecutor’s Office, to Virgil Jordan, Ronald Armstead, or                  there? I don’t know. Maybe the same place Monte
any other person designated by the prosecutor as having                     Tewksbury’s ring is. Maybe the same place the top of
provided assistance in the investigation of Monte’s murder or               that cash register is. But that is the explanation as to
Petitioner’s capital trial; (4) all Sheriff’s Department,                   what happened to that other sleeve.
Cincinnati Police Department, and Prosecutor’s Office
documents relating to Armstead’s arrest in December 1982,                 Tr. at 1660-61. In our view, these statements constitute
and his subsequent prosecution; (5) all APA, Probation                    arguably reasonable inferences from the evidence presented
Department, and Prosecutor’s Office records pertaining to                 at trial. The prosecutor did not present these statements as
Armstead’s pending parole revocation; and (6) all Sheriff’s               factual assertions but, rather, as beliefs inferred from the
Department and Prosecutor’s Office records relating to the                evidence presented. For example, in stating that Petitioner
use of Armstead or Jordan as jailhouse informants.                        possibly had been in the store previously and recognized
                                                                          Monte, the prosecutor emphasized that the jury could assume
  Petitioner’s deposition requests included, among others: (1)            that Petitioner had seen Monte before, because the store was
Prosecutors Breyer and Vollman, “regarding the investigation,             near Petitioner’s boyhood home.
including the review of files and internal documents
                                                                            However, even if the statements in question are considered
                                                                          impermissible comments on facts not in evidence, we
                                                                          conclude that they do not meet the stringent standard for
misleading such that the prosecutor would be required to correct it;      obtaining habeas relief set out above. We find that the
instead it faulted defense counsel for failing to ask obvious questions   remarks did not mislead the jury, because the prosecutor
concerning Armstead’s supervised release status.                          qualified the remarks with statements such as “you would
     21                                                                   have to assume,” “I speculate,” and “where out there? I don’t
        After an April 11, 1994, hearing and subsequent briefing, the     know.” The jurors would know that these comments were
district court denied without prejudice Petitioner’s original discovery
motion, because it was made before filing of either Respondent’s return   inferences, and they would not be confused into believing that
of writ or Petitioner’s traverse.                                         these comments were factual evidence. Moreover, the
80    Byrd v. Collins                              No. 96-3209      No. 96-3209                               Byrd v. Collins     33

assertions by Petitioner that the prosecutor commented on           maintained by the prosecutor’s office pertaining to Ronald
matters not in evidence, directed personal insults at Petitioner,   Armstead, as well as interviews of Ronald Armstead, Virgil
suggested to the jury that defense counsel was attempting to        Jordan, Marvin Randolph and Robert Jones by investigators”
mislead the jury, and vouched for the truthfulness of               from the Sheriff’s Department and Prosecutor’s Office, and
Armstead as a witness. We address each one in turn.                 “interviews and preparation of Ronald Armstead by Daniel J.
                                                                    Breyer, Carl Vollman and all other Assistant Hamilton
  It is improper for a prosecutor, during closing arguments,        County Prosecuting Attorney’s that led to” Armstead’s
to bring to the attention of the jury any “purported facts that     testimony; (2) Nancy Rankin and Andrew Hitz, regarding the
are not in evidence and are prejudicial.” United States v.          victim impact statements; and (3) Anderson Resnick,22
Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (citing United States      regarding the name of the prosecutor who prosecuted
v. Leon, 534 F.2d 667, 679 (6th Cir. 1976)). However,               Armstead in relation to his December 1982 arrest.
prosecutors “must be given leeway to argue reasonable
inferences from the evidence.” United States v. Collins, 78            On October 12, 1995, the district court ordered the State to
F.3d 1021, 1040 (6th Cir. 1996). The statements of the              supplement the record with all records from the APA that
prosecutor which Petitioner challenges involve speculation          were related to the revocation of Armstead’s parole in 1983
regarding the clothing that Petitioner was wearing on the           and the release of Armstead either from parole or from the
night of the murder, the possible disposal of evidence that the     sentence which he began to serve upon parole revocation.
State never obtained, and the possibility that Petitioner           The State complied with this request by providing its entire
recognized Monte because Petitioner had been in the store           file on Armstead, which consisted of 147 indexed exhibits
prior to the night of the murder.                                   comprising 225 pages. The district court also ordered the
                                                                    State to produce a copy of the victim impact statement. Each
  In particular, the prosecutor made the following statements:      party was then to submit briefs addressing (1) whether,
                                                                    assuming that the victim impact statement went to the jury,
  Ironically, possibly, but more probably intentionally, this       such submission was harmless error; and (2) whether an
  King Kwik and that intersection were about a block                inference could be drawn from the parole records that
  away, as Officer Baker said, Detective Baker said, a              Armstead testified falsely concerning his future incarceration,
  block away from Byrd’s boyhood home, a home where I               and, if so, whether an inference could be drawn that the
  believe you would have to assume, and you can have that           prosecutor was aware of such false testimony. The court
  map, but I think you would have to assume, giving all the         deferred its decision on the materials requested in the balance
  close nature and location of that subdivision, a home             of the discovery motion. The State provided a copy of the
  where Byrd, I’m sure, on numerous occasions was face              statement, and on November 28, 1995, Petitioner deposed
  to face with Monte Tewksbury, saw him and recognized              Nancy Rankin and Andrew Hitz.
  him.
                                                                       After reviewing these records, the district court addressed
Tr. at 1649.                                                        in its third opinion the facts relevant to the parole issue. We
                                                                    have already recounted these. See supra at pp. 15-16. The
  Now, also you heard Nitz’ testimony, 18 or 19 year old
  kid, primarily; I think he was that old. I’m not even that
  sure. He didn’t look that old. He was playing a video                 22
                                                                          Anderson Resnik was a paralegal employed by the Ohio Public
  game before midnight. You heard him say that the guy              Defender’s Commission who attempted to find out the name of
  with the knife had tan pants. To be in that group, had tan        Armstead’s prosecutor.
34     Byrd v. Collins                                       No. 96-3209    No. 96-3209                                     Byrd v. Collins       79

district court found that the presumption of correctness                    to Petitioner’s failure to testify.42 While this determination is
applied to the state courts’ factual findings. The court first              dispositive, we also note that these comments were relatively
noted that the common pleas court was a court of competent                  isolated, were few in number, and were not objected to by
jurisdiction, Petitioner and the State were parties to the post-            defense counsel.
conviction proceedings, and written, factual findings were
made. See 28 U.S.C. § 2254(d). Citing Sumner v. Mata, 449                      During the penalty phase, Petitioner did not remain
U.S. 539, 597 (1981), and Nichols v. Perini, 818 F.2d 554,                  completely silent. Instead, he made an unsworn statement to
557 n.3 (6th Cir. 1987), the court flatly rejected Petitioner’s             the jury in which he expressed remorse for the incident but
contention that, unless the state court held an evidentiary                 did not directly admit that he was the one who actually
hearing, there had been no “hearing” for purposes of                        stabbed Monte. We agree with the district court that the
determining whether the state courts’ factual findings are                  prosecutor’s penalty phase comment to which Petitioner now
entitled to deference under 28 U.S.C. § 2254(d). The court                  objects was a fair response to Petitioner’s unsworn statement.
further concluded that none23of the eight exceptions listed in              The prosecutor was not commenting on Petitioner’s failure to
§ 2254(d) were applicable. Using the state courts’ factual                  present sworn testimony. Instead, the prosecutor merely
findings, the district court held that the prosecutor did not               suggested to the jury that Petitioner’s expression of remorse
                                                                            was “shallow,” because Petitioner did not accept more
                                                                            complete responsibility for his actions and for Monte’s death.
     23
                                                                            Case law permits comments that are made in response “to the
       The district court must defer to the factual findings of the state   argument and strategy of defense counsel.” Butler, 686 F.2d
courts unless one of the following exceptions applies:                      at 1172; see also Lockett v. Ohio, 438 U.S. 586, 595 (1978)
     (1) the merits of the factual dispute were not resolved in the
                                                                            (holding that the prosecutor’s closing remarks that the
     State court hearing;                                                   evidence was “unrefuted” and “uncontradicted” added
     (2) the factfinding procedure employed by the State court was          nothing to the impression that had already been created by the
     not adequate to afford a full and fair hearing;                        defendant’s refusal to testify after the jury had been promised
     (3) the material facts were not adequately developed at the State      a defense by her counsel and told that the defendant would
     court hearing;                                                         take the stand). In short, we find no constitutional violation.
     (4) the State court lacked jurisdiction of the subject matter or
     over the person of the applicant in the State court proceeding;
     (5) the applicant was an indigent and the State court, in                    D. Various Claims of Improper Prosecutorial
     deprivation of his constitutional right, failed to appoint counsel                           Argument
     to represent him in the State court proceeding;
     (6) the applicant did not receive a full, fair, and adequate hearing     Petitioner also challenges various allegedly improper
     in the State court proceeding; or                                      arguments, which he contends deprived him of a fair trial.
     (7) the applicant was otherwise denied due process of law in the       Some of these claims, such as comments on Petitioner’s
     State court proceeding;
     (8) or unless that part of the record of the State court proceeding    failure to testify and victim impact have been addressed
     in which the determination of such factual issue was made,             above. The remaining instances complained of include
     pertinent to a determination of the sufficiency of the evidence to
     support such factual determination, is produced as provided for
     hereinafter, and the Federal court on a consideration of such part         42
     of the record as a whole concludes that such factual                           Furthermore, the comment alluding to Petitioner as a “predator”
     determination is not fairly supported by the record.                   who was not “genuine” cannot reasonably be said to be a reference to his
                                                                            failure to testify. Nowhere in this comment does the prosecutor imply that
28 U.S.C. § 2254(d).                                                        this description of Petitioner was the result of his failure to testify.
78    Byrd v. Collins                                    No. 96-3209        No. 96-3209                                   Byrd v. Collins       35

as comments on the defendant’s failure to testify, “but                     knowingly suborn perjury. The court also held that, because
whether the jury necessarily would have done so.” Id. These                 the state courts’ findings are binding, further discovery on
standards have not been met here.                                           these issues was not warranted, as it would not lead to an
                                                                            evidentiary hearing or other independent fact-finding.
   As the district court noted, the comments were made during
a closing argument that focused on the reasons why                              E. Analysis of the State Courts’ Factual Findings
Armstead, a jailhouse informant, should have been viewed by
the jury as a credible witness. Armstead’s credibility was                    "[W]e presume a state trial or appellate court's conclusions
clearly at issue, and the prosecutor had a legitimate reason for            as to facts are correct unless the petitioner demonstrates by
attempting to focus on the strengths of his testimony during                convincing evidence that the facts are erroneous under one of
closing argument. Moreover, Armstead’s testimony regarding                  the eight conditions enumerated in 28 U.S.C. § 2254(d)(1-8)."
the “bragging” that was done by Petitioner, Brewer, and                     McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996)
Woodall about the murder, as well as his testimony regarding                (citing Sumner v. Mata, 455 U.S. 591, 597 (1982) (per
Petitioner’s comments while watching P.M. Magazine both                     curiam)). Petitioner has provided no evidence to establish
included references to other persons having been present. Tr.               that any of the § 2254(d) exceptions apply in his case.
at 1560 (“they bragged to everybody over there that was in                  Therefore, we must defer to the state courts’ factual findings.
that area”); Tr. at 1563 (“Well, at the time that [the P.M.
Magazine program] came on everybody stopped what they                         On brief and at oral argument, Petitioner strenuously argued
was doing just to watch the program”). This circuit has held                that the state courts’ factual findings are not entitled to
that “[g]eneral references to evidence as uncontradicted, while             deference, because the state courts did not order discovery.
not recommended, may not reflect on the defendant’s failure                 Specifically, Petitioner contends:
to testify where witnesses other than the defendant could have
contradicted the evidence.” Raper v. Mintzes, 706 F.2d 161,                   No discovery was ordered.[24] Byrd filed motions asking
164 (6th Cir. 1983). Petitioner was not the only person who                   the trial court to order the investigative files of the law
could have been called to refute the fact that Petitioner made                enforcement authorities who investigated his case to be
such statements, and the prosecutor could legitimately argue                  copied and incorporated into the files of the Hamilton
that Armstead should be deemed a credible witness, because                    County Prosecutor’s Office and that the prosecutor’s files
the defense failed to call 41
                            any witnesses from the Workhouse                  be copied and filed with the trial court. The files of the
to refute his testimony.         Hence, we conclude that the                  investigators and prosecutor would have been invaluable
prosecutor’s comments did not constitute indirect references                  to assess Byrd’s claims of perjured testimony and Brady
                                                                              violations. The trial court refused to grant or even hear
                                                                              Byrd’s motions.

     41
        Although a prosecutor may not comment on the failure of a
criminal defendant to produce evidence, the prosecutor may “summarize
the evidence and comment on its quantitative and qualitative
significance.” United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994)
(citing United States v. Drake, 885 F.2d 323, 323-24 (6th Cir. 1989)). In
Petitioner’s case, the prosecutor’s comment that Armstead’s testimony           24
was uncontradicted was a permissible comment on the quality of the                 Of course, Petitioner conveniently forgets to mention the August
evidence presented.                                                         5th order.
36     Byrd v. Collins                                     No. 96-3209        No. 96-3209                              Byrd v. Collins     77

Petitioner’s Br. at 44-45.25 Thus, Petitioner argues, he has                    It is well established that a prosecutor’s direct reference to
established the exceptions listed in 28 U.S.C. § 2254(d)(1),                  a criminal defendant’s failure to testify is a violation of that
(2), and (6). We disagree.                                                    defendant’s Fifth Amendment privilege against compelled
                                                                              self-incrimination. Griffin v. California, 380 U.S. 609
   Petitioner cannot show that “the merits of the factual                     (1965); Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988).
dispute were not resolved in the State court hearing.”                        However, indirect references on the failure to testify also can
§ 2254(d)(1). In fact, this contention is contrary to                         violate the Fifth Amendment privilege. When the alleged
Petitioner’s assertion that the state courts came to the wrong                infringements consist of such references, “a reviewing court
conclusions on the merits. In Fowler v. Jago, 683 F.2d 983                    must look at all the surrounding circumstances in determining
(6th Cir. 1982), we discussed the showing necessary to meet                   whether or not there has been a constitutional violation.”
this exception. We made clear that we defer where the                         Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir. 1982) (en banc).
findings are “sufficient to enable the district court to fulfill its          The court must undertake a “probing analysis of the context
obligation to determine that [the facts] are supported by the                 of the comment.” United States v. Robinson, 651 F.2d 1188,
evidence and that the correct standards of law were applied.”                 1197 (6th Cir. 1981). This “probing analysis” involves the
Id. at 989. In the present case, the state court clearly found                consideration of four factors:
that there was no deal, that there was no credible evidence
that Armstead lied about Petitioner’s confession, and that, at                  (1) Were the comments “manifestly intended” to reflect
the time of Petitioner’s trial, Armstead did not have any                       the accused’s silence or of such a character that the jury
pending criminal charges. The court also specified the                          would “naturally and necessarily” take them as such;
evidence upon which it relied. Thus, § 2254(d)(1) does not
apply. Similarly, Petitioner has failed to show either that “the                (2) Were the remarks isolated or extensive;
factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing” or that “the                        (3) Was the evidence of guilt otherwise overwhelming;
applicant did not receive a full, fair, and adequate hearing in                 [and]
the State court proceeding.” § 2254(d)(2), (6). Petitioner
simply failed to provide a sufficient quantum of cogent                         (4) What curative instructions were given, and when.
evidence to warrant an investigation of the prosecutor’s work
product and other trial preparation files.                                    United States v. Moore, 917 F.2d 215, 225 (6th Cir. 1990)
                                                                              (quoting Spalla v. Foltz, 788 F.2d 400, 404-05 (6th Cir.
  The Ohio post-conviction statute in effect at the time                      1986)). We will begin with the prosecutor’s comments
Petitioner was pursuing his state post-conviction remedies                    regarding Armstead’s testimony.
provided:
                                                                                 We are convinced that the statements concerning Armstead
                                                                              were not manifestly intended to reflect on Petitioner’s failure
                                                                              to testify at trial, nor would the jury have understood the
     25                                                                       statements as such. This Circuit has explained that we will
        Petitioner argues that this further discovery would have permitted
him to show that Armstead’s testimony was false; why prosecutors chose        not find “manifest intent” where some other explanations for
to have only Armstead, rather than also Randolph and Jordan, testify          the prosecutor’s comments are equally possible. United
against Petitioner; that the prosecution knew that Armstead had a pending     States v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997). In
parole revocation hearing; and that Armstead, in fact, had cut a deal prior   addition, we have made clear that the question is not whether
to testifying. As discussed below, Petitioner’s fishing expedition was
appropriately cut short.                                                      the jury possibly or even probably would view the statements
76   Byrd v. Collins                             No. 96-3209      No. 96-3209                                Byrd v. Collins     37

marks and citation omitted); Serra, 4 F.3d at 1355. Hence,          (A) Any person who has been convicted of a criminal
we reject this claim as well.                                       offense . . . claiming that there was such a denial or
                                                                    infringement of his rights as to render the judgment void
            C. Comments on Failure to Testify                       or voidable under the Ohio Constitution or the
                                                                    Constitution of the United States, may file a petition at
   Petitioner contends that the prosecutor violated his Fifth       any time in the court that imposed sentence, stating the
Amendment right against self-incrimination by making                grounds for relief relied upon, and asking the court to
comments that allegedly pertained to Petitioner’s failure to        vacate or set aside the judgment or sentence or to grant
testify at trial. In particular, Petitioner complains of            other appropriate relief. The petitioner may file a
comments made during closing arguments at both the guilt            supporting affidavit and other documentary evidence in
and sentencing phases of his trial. During the closing              support of the claim for relief.
argument of the guilt phase of the trial, the prosecutor
remarked that the State’s key witness, Ronald Armstead, was                                 .     .      .
credible because “his testimony is uncontradicted, no one has
disputed Armstead’s testimony.” Tr. at 1659. The prosecutor         (C) Before granting a hearing, the court shall determine
also stated that “[w]itnesses pay a price to testify.” Tr. at       whether there are substantive grounds for relief. In
1682. He followed that comment with a reference to                  making such a determination, the court shall consider, in
Armstead and the statement that “you know there’s something         addition to the petition and supporting affidavits, all the
real genuine about our people, not all of them, not the             files and records pertaining to the proceedings against the
predator [i.e. Petitioner].” Tr. at 1682. Petitioner contends       petitioner, including, but not limited to, the indictment,
that these comments were an intentional attempt to draw his         the court’s journal entries, the journalized records of the
failure to testify to the jury’s attention. During the closing      clerk of the court, and the court reporter’s transcript. . . .
argument at the penalty phase, Petitioner made an unsworn           If the court dismisses the petition, it shall make and file
statement to the jury in which he stated that he was “sorry for     findings of fact and conclusions of law with respect to
what happened,” and “sorry for Mr. Tewksbury and his                such dismissal.
family.” Tr. at 1777. However, Petitioner also stated that he
did not know exactly what was in his mind that night, and that                               .    .     .
he had been drinking and using drugs. Further, Petitioner
admitted that he had made a “tragic” mistake. Tr. at 1778.          (E) Unless the petition and the files and records of the
The prosecutor subsequently described these comments as             case show the petitioner is not entitled to relief, the court
“shallow.” Tr. at 1797. The prosecutor then asked the jury,         shall proceed to a prompt hearing on the issues, hold the
rhetorically: “Did you hear from this man’s mouth that he           hearing, and make and file written findings of fact and
was the principal offender that plunged that weapon into            conclusions of law upon entering judgment.
Monte Tewksbury? Nothing from him, not one shread [sic].
Yet he wants to spook you that, you know, I have had this         Ohio Rev. Code Ann. § 2953.21 (Anderson 1987).
problem, that problem. That’s nonsense.” Tr. at 1798.
Petitioner now argues that this was a reference to his failure      It is true that, under Ohio law, courts are not required to
to present sworn testimony during the penalty phase and to        hold evidentiary hearings in all post-conviction cases. See
acknowledge his guilt as the principal offender. We disagree      Sherills v. Cuyahoga County Court of Common Pleas, 650
for the reasons explained below.                                  N.E.2d 899, 900 (Ohio 1995). Where a petition alleges facts
                                                                  which, if proved, would entitle the petitioner to relief, but the
38    Byrd v. Collins                                    No. 96-3209        No. 96-3209                                     Byrd v. Collins       75

files and records of the case negate the existence of facts                 introduced in the guilt phase as well. See Black v. Collins,
sufficient to entitle the petitioner to relief, the trial court may         962 F.2d 394, 408 (5th Cir. 1992) (holding that victim impact
so find and summarily dismiss the petition; in so doing,                    argument presented during both guilt and sentencing phase
however, the court should specify the portions of the files and             did not render trial fundamentally unfair). See also Bennett v.
records that negate the existence of the petitioner’s alleged               Angelone, 92 F.3d 1336, 1348 (4th Cir. 1996) (“Thus Payne
facts. See State v. 26Perry, 226 N.E.2d 104,105 (Ohio 1967)                 suggests that limited victim background evidence may be
(syllabus para. 3).       To merit an evidentiary hearing, a                admitted — indeed, may have to be admitted — at the guilt
petitioner must submit evidentiary documents containing                     phase of trial.”). Moreover, as the Seventh Circuit has
sufficient cogent and operative facts that demonstrate                      remarked, “[w]e must recognize that the state should not be
substantive grounds for relief. See State v. Combs, 652                     required to present . . . closing arguments that are devoid of
N.E.2d 205, 210 (Ohio Ct. App. 1994); State v. Smith, 506                   all passion.” Williams v. Chrans, 945 F.2d 926, 947 (7th Cir.
N.E.2d 1205, 1208 (Ohio Ct. App. 1986). And it is true that,                1991).
according to caselaw, Ohio post-conviction courts are not
statutorily required to compel discovery so that a petitioner                  We have recognized that “[a] prosecutor is permitted a
may gather evidence to prove that a hearing is warranted. See               certain degree of latitude in summation.” United States v.
Smith, 506 N.E.2d at 1208. Nonetheless, if discoverable                     Barker, 553 F.2d 1013, 1025 (6th Cir. 1977). In our view, it
materials supportive of Petitioner’s claims actually do exist,              is far from clear that the statements complained of were
fault for failure to obtain them almost certainly lies not with             improper at all. In any event, even assuming the statements
Ohio’s post-conviction relief system, but rather with                       evoking sympathy for the Tewksbury family were improper,
Petitioner’s own post-conviction counsel.                                   they do not meet the stringent standard necessary for reversal
                                                                            of a conviction on habeas. The remarks were relatively
  On October 10, 1990, the Ohio Supreme Court held that a                   isolated, were not extensive, and were only a small part of a
criminal defendant who has exhausted his direct appeals is a                closing argument that focused    heavily on summarizing the
“person” who may avail himself of the State’s public records                evidence presented at trial.40 The prosecutor began his
law in Ohio Rev. Code § 149.43 in order to support a petition               closing argument by asking the jurors to “bear in mind what
for post-conviction relief. See Ohio ex rel. Clark v. City of               I say is not evidence,” and was intended only “to recreate . . .
Toledo, 560 N.E.2d 1313, 1315 (Ohio 1990).27 Obtainable                     the scenario which I believe the evidence has indicated did, in
public records include law enforcement investigatory files.                 fact, occur.” Tr. at 1643. When combined with the
See Ohio ex rel. Johnson v. City of Cleveland, 603 N.E.2d                   instruction from the trial judge that the closing arguments
1011, 1012-13 (Ohio 1992). Thus, this statutory procedure                   were not evidence, we simply cannot hold that the
provided Petitioner with access to most of the records he                   prosecutor’s isolated comments rendered “the entire trial
                                                                            fundamentally unfair.” Pritchett, 117 F.3d at 964 (quotation

     26
       A post-conviction petition may also be dismissed without a hearing
where the claims raised therein are barred by res judicata. See State v.
Perry, 226 N.E.2d 104, 106 (Ohio 1967) (syllabus para. 9).                      40
                                                                                   In complaining of the prosecutor’s arguments relating to the
     27                                                                     victimization of Monte Tewksbury, Petitioner only cites to a total of four
       We recognize that the Ohio Supreme Court subsequently overruled      pages of transcript. The closing arguments by the prosecutor at the guilt
Clark on September 15, 1994. See Ohio ex rel. Steckman v. Jackson, 639      phase comprised over 30 pages of transcript. Cf. Rodriguez v. Peters, 63
N.E.2d 83, 85 (Ohio 1994) (syllabus para. 6). However, Steckman             F.3d 546, 565 (7th Cir. 1995) (victim impact comments comprising one
obviously had no impact upon Petitioner’s case.                             of 35 pages of closing argument transcript did not render trial unfair).
74   Byrd v. Collins                             No. 96-3209      No. 96-3209                                Byrd v. Collins     39

evidence.” Byrd v. Collins, No. C-1-94-167, at 27 (S.D. Ohio      sought. Obviously, what Petitioner could not access pursuant
Nov. 2, 1995). We agree. Moreover, even assuming the              to Ohio Rev. Code § 149.43 was work product material.
introduction of this videotape into evidence was improper, it     However, Petitioner did use this procedure successfully to
surely would not rise to the level of a due process violation.    obtain visitation records from the Sheriff’s Department.
Any prejudice to Petitioner resulting from the showing of this    Moreover, the prosecutor represented that his office gave
videotape would result not from the tape itself, but from the     Petitioner access to all of the sheriff’s investigatory files. But
clearly admissible testimony regarding Petitioner’s confession    even if this were not the case, the process set forth in Ohio
to the crime and callous remarks about his victim that were       Rev. Code § 149.43 provided Petitioner with the ability to
made while watching the television interview in the               obtain such records and, given that the State has the burden of
Cincinnati Workhouse.                                             providing a public records exception, there does not appear to
                                                                  be any reason why Petitioner could not have requested from
  Petitioner also claims that, during closing argument at the     the prosecutor information that was not specifically compiled
guilt phase, the prosecutor used inflammatory arguments to        in reasonable anticipation of his trial or other non-work
generate sympathy for Monte and his family. The statements        product materials. Similarly, it appears that Petitioner could
complained of are as follows:                                     have obtained records concerning the Furtherance of Justice
                                                                  Account. However, it appears from the record that such
  After stripping Tewksbury of his personal possessions,          requests simply were never made.
  his belongings, the store’s belongings, and Tewksbury’s
  pride, they stripped him of his life, his breath, and his          Moreover, notwithstanding the lack of any statutory
  blood.                                                          requirement to do so, Petitioner’s post-conviction trial court
                                                                  provided Petitioner with other significant opportunities for
Tr. at 1650.                                                      discovery. From August 5, 1988, until October 2, 1989, there
                                                                  was a court order of record permitting him to obtain any and
  Monte Tewksbury will never see the sun. Monte                   all records from any organization or person, public or private,
  Tewksbury will never feel the chill of fall. He will never      “which concern John W. Byrd.” See supra at p. 20. Although
  watch his youngsters grow. He will never break bread            this language is quite broad, Petitioner’s counsel’s use of this
  with his wife . . . .                                           order apparently focused primarily on obtaining the victim
                                                                  impact statement. At the December 2, 1988, hearing, the
Tr. at 1679. We are unpersuaded.                                  court repeatedly asked counsel, “What do you want?”
   The U.S. Supreme Court has held that there is no per se bar    Counsel’s only response concerned the victim impact
to the introduction of victim impact evidence and argument.       statement and a brief mention of emergency room records.
See Payne v. Tennessee, 501 U.S. 808, 827 (1991). “In the         Nothing else was requested. Notably, at this very hearing, the
majority of cases, . . . victim impact evidence serves entirely   court explicitly refused to revoke that discovery order,
legitimate purposes. In the event that evidence is introduced     although urged to do so by the prosecutor.
that is so unduly prejudicial that it renders the trial             Despite the above-mentioned opportunities, Petitioner
fundamentally unfair, the Due Process Clause of the               failed to produce any reliable evidence that would support his
Fourteenth Amendment provides a mechanism for relief.” Id.        claim. Petitioner points to only one explicit limit placed on
at 825. While Payne was announced in the context of the           his discovery pursuant to the August 5th order; i.e.,
sentencing phase of a capital trial, its rationale has been       Petitioner’s access to the victim impact statement. The
applied to reject challenges to victim impact evidence
40    Byrd v. Collins                              No. 96-3209      No. 96-3209                                    Byrd v. Collins          73

common pleas court denied Petitioner access to it, because (1)      might have on them.39 This type of questioning is not
there was absolutely no evidence that the jury received a copy      improper and certainly does not constitute prosecutorial
of it (as well as significant evidence to the contrary), and (2)    misconduct.
the statement had no other relevance to the post-conviction
proceedings. Notwithstanding the foregoing, the district court         The prosecutor introduced into evidence at Petitioner’s trial
permitted discovery in this area, and Nancy Rankin, the             a videotape of a television interview with Monte’s family.
custodian of the victim-impact statement, confirmed that the        This interview featured Monte’s daughter, who was a singer.
statement never went to the trial court or the jury.                It was filmed the day before the murder, and both Monte and
                                                                    his wife were present and were a part of the interview.
   With respect to Petitioner’s requests for the sheriff’s          Petitioner contends that this was a “highly sympathetic and
records, the record demonstrates that Petitioner was provided       emotion-charged portrayal of the victim and the victim’s
with the documents he sought with the exception of the              family” and constitutes an improper attempt by the prosecutor
attorney log book. The missing visitation information was           to inflame the jury against Petitioner. Petitioner’s Br. at 135.
essentially duplicative of that which Petitioner was provided.      However, the State’s key witness, Ronald Armstead, testified
Petitioner received copies of each individual inmate’s              that, while watching this television interview in jail, he heard
visitation card; the attorney log and other visitation records      Petitioner confess to the crime. The district court noted that,
would only confirm that the information on those cards was          since the videotaped interview “was the centerpiece of the
accurate. Holding an evidentiary hearing on the matter would        arena where [Petitioner] allegedly confessed[,] . . . it was
have been pointless, as the Sheriff’s Office had conducted a        not wholly improper for the prosecutor to seek to introduce,
search in December 1988, provided Petitioner with copies of         nor for the trial judge to permit the introduction of, that
those documents found, fully explained its document
retention and destruction process, and provided proof that the
missing documents were not among those destroyed on March               39
8, 1989. Moreover, assuming the missing documents were,                    In fact, when one juror responded that the evidence might affect
in fact, destroyed at some other time, neither an evidentiary       her emotionally, the prosecutor asked whether she could still be fair and
hearing nor further discovery would have resurrected them.          impartial, to which she answered that she could. We note the following
                                                                    exchange:
In addition, it is noteworthy that Petitioner’s failure to obtain
these records before they were either destroyed or misplaced            Q: A knife was used in this killing. Would that bother you to
is due, in large part, to his own delay in seeking them, since          see or hear evidence where a man was stabbed with a knife in
he waited more than five years even to attempt to obtain them.          the side and bled to death? I know it’s not a pleasant thing, but
 The Sheriff’s Department records pertaining to the murder              from the standpoint you couldn’t be a fair and impartial juror?
investigation were made available by the Prosecutor’s Office            A: I don’t know, I think it would bother me.
in May 1989. This more than fulfilled the first of Petitioner’s
two October 27th motions.                                               Q: Mrs. Thompson, I’m not suggesting to you that it wouldn’t
                                                                        bother you. What I’m saying to you, would the bother be such
                                                                        that you couldn’t be a fair and impartial juror?
                                                                        A: No.
                                                                        Q: That’s all I’m asking.
                                                                    Tr. at 623 (voir dire of Juror Thompson).
72   Byrd v. Collins                              No. 96-3209      No. 96-3209                                    Byrd v. Collins       41

emotionally charged victim impact arguments during closing           When Petitioner still failed to sustain his initial burden of
arguments at the guilt phase.                                      proof more than a year after obtaining the August 5th order,28
                                                                   the common pleas court properly followed Ohio law and
   Upon review of the transcripts of the voir dire questions       denied an evidentiary hearing. The Hamilton County Court
and comments cited by Petitioner as illustrative of                of Appeals affirmed the trial court’s conclusion that no
misconduct, it is clear that the context and purpose of these      evidentiary hearing was warranted under the statute. See
questions and comments were to ascertain whether or not the        State v. Byrd, No. C-890659, 1991 WL 17781, at *2 (Ohio Ct.
prospective juror could set aside his or her emotions and          App. 1 Dist., Feb. 13, 1991) (affirming denial of the motion
decide the case impartially. This is certainly proper. Indeed,     for a new trial).
a trial judge “retains great latitude in deciding what questions
should be asked on voir dire.” Mu’Min v. Virginia, 500 U.S.           What Petitioner really wants is access to the prosecutor’s
415, 424 (1991). Hence, “[s]o long as the court ensured that       work product and trial preparation files. Unfortunately for
the defendant or defendants had ‘a fair trial by a panel of        Petitioner, he failed to provide the state courts with a
impartial, “indifferent” jurors,’ reversal is not mandated.”       sufficient reason to force the Prosecutor’s Office to turn over
United States v. Phibbs, 999 F.2d 1053, 1071 (6th Cir. 1993)       its files and conduct an in camera review. Such a review
(quoting Irvin v. Dowd, 366 U.S. 717, 722 (1960)).                 might have been warranted, for instance, if Petitioner had
                                                                   supplied Furtherance of Justice Account records showing that
 Petitioner cites the following question as evidence of            Armstead had received money from the State, or at least
misconduct:                                                        showing that Jordan had received money for testifying at the
                                                                   trial of Petitioner’s co-defendant, Brewer. However,
  Secondly, I don’t know if you will be bothered by this or        Petitioner’s attempt to obtain such documents during the state
  not. Some people are bothered by the method of death             post-conviction proceedings appears to have been feeble at
  and how a person dies, and as I previously indicated, we         best. Despite the fact that Petitioner’s post-conviction
  are talking about a knife this long (indicating), about a        counsel knew that the Hamilton County Auditor’s Office
  blade that long being stuck in a man and him bleeding            would have records of the prosecutor’s disbursements from
  through his liver, and bleeding internally. Do you have
  a stomach for that, to listen to the coroner testify about
  the method of death?
Tr. at 804-05. In response to an affirmative answer, the               28
                                                                          Although he claims to the contrary, not one affidavit Petitioner
prosecutor then asked, “You will be able to set that aside,        presented contained any evidence within the affiant’s personal
however gruesome the details are, and get to the truth because     knowledge. Each affiant’s statement —whether it concerned the alleged
that is what we are all here for? [,]” to which the juror          deal or the alleged concocted confession—was nothing more than
                                                                   hearsay. All of the admissible “evidence” submitted, e.g., the “forged”
answered “[y]es.” Tr. at 805. This demonstrates that the           letter allegedly written by Armstead, the post-trial letters from the
prosecutor, far from trying to inflame prospective jurors          prosecutor to the APA, and the prosecutor’s own affidavit, tended to
against Petitioner, was attempting to determine whether the        establish that no deal existed. The “Armstead” letter was internally
prospective jurors could remain fair and objective regardless      inconsistent, was determined by a handwriting expert to be a forgery, and
of the emotional impact that the facts of this brutal crime        was not supported by any evidence authenticating it. The letters from the
                                                                   Prosecutor’s Office, as well as the prosecutor’s own affidavit, all
                                                                   indicated that Armstead’s testimony was obtained without any promise or
                                                                   inducement from the State, and expressed a concern for Armstead’s
                                                                   physical safety.
42     Byrd v. Collins                                        No. 96-3209         No. 96-3209                                      Byrd v. Collins        71

such an account, it appears that he made no attempt to obtain                     aggravating circumstances outweighed any mitigating factors.
these documents through a public records action.                                  Petitioner’s brief cites as an example the following question:
                                                                                  “[I]f you feel, based upon everything that you are instructed
  Similarly, such a court review might have been warranted                        on by the law that this defendant’s life should be taken in the
had Petitioner obtained an affidavit from Jordan stating that                     electric chair for the incident he did on April 17, 1983, you
he had conspired with Armstead to fabricate a story and had                       could do it. Is that what you are saying?” Tr. at 259. This
conveyed that information to the prosecutor, or that Jordan                       question only inquired into whether the prospective juror
had personal knowledge that Armstead received payment or                          could follow the law. It is not intended to weed out those
some other sort of deal in exchange for his testimony.                            with any personal doubts about the use of capital punishment.
Petitioner’s attempt to provide information about Jordan via                      The answer the juror gave, and the prosecutor’s response, are
the affidavit of Jane Perry is insufficient: like the other                       telling in this regard. The juror answered, “Yes, if the
affidavits, it is nothing more than hearsay. Moreover, given                      evidence warrants it [,]” to which the prosecutor responded,
that Perry’s alleged conversation with Jordan took place in                       “That’s the ground rules. . . . Whatever I talk to you about
October 1988, in the midst of Petitioner’s state post-                            is if the evidence warrants it.” Tr. at 260. The prosecutor
conviction proceedings, the fact that Perry’s affidavit was                       was inquiring only whether the juror could follow the law.
never presented to the state post-conviction courts, and was                      Needless to say, this is entirely permissible. The questioning
not even made until October 1995, would cause most courts                         of the other jurors was similar in nature.38 Therefore,
to raise at least one eyebrow.                                                    Petitioner’s claim must fail.
   As the district court determined, it was not unreasonable for                           B. Victim Impact Evidence and Argument
Ohio to forbid Petitioner’s access, even via in camera review,
to the prosecutor’s work product notes of conversations with                         Petitioner also argues that the prosecutor improperly
informants when Petitioner had made no credible showing                           injected victim impact evidence and arguments into the trial.
that those documents would contain information indicating                         In particular, Petitioner alleges that the prosecutor (1) made
Armstead had lied or cut a deal with the prosecutor. To hold                      comments during voir dire about the nature and manner of the
otherwise would in effect mandate that every time a petitioner                    murder, (2) introduced into evidence a videotape of a
makes an unsubstantiated allegation that his trial was                            television interview with the victim’s family, and (3) made
constitutionally infirm, the post-conviction court must
conduct an evidentiary     hearing and order the prosecution’s
files to be opened.29 Given the fact that Petitioner failed to                        38
present any admissible evidence supporting his position,                                  For example, one juror answered the prosecutor’s question of
despite opportunities for discovery, we cannot say that the                       whether she could impose the death penalty where the law merited doing
                                                                                  so by stating that “I believe that would be my duty to do.” Tr. at 963 (voir
state court’s factfinding procedures were unfair or that                          dire of Juror Hall). The trial judge had asked her earlier whether she
Petitioner was not afforded a fair hearing.                                       could fairly consider the death penalty, and she stated that it was “not
                                                                                  simple” for her. Tr. at 958. In spite of these possible doubts about her
                                                                                  views of the death penalty, the prosecutor did not challenge her being
                                                                                  seated on the jury, because she had indicated that she could follow the law
                                                                                  despite any personal doubts. This demonstrates that the prosecutor was
     29                                                                           not attempting to screen from the jury everyone who had any doubts about
      Even with the expanded record including all of Armstead’s parole            capital punishment. Rather, the prosecutor was merely attempting to
records, Petitioner still fails to point to any evidence indicating that a deal   ensure that each juror would be able to apply the law to the facts in the
might have existed.                                                               case.
70   Byrd v. Collins                              No. 96-3209      No. 96-3209                                    Byrd v. Collins          43

  Petitioner’s allegations of prosecutorial misconduct can be        After considering the post-conviction petition, the affidavits
grouped into five categories. Petitioner contends that the         Petitioner submitted in support of the petition, and the entirety
prosecutor (1) improperly “death-qualified” the jury during        of the record, the common pleas court made specific findings
voir dire; (2) improperly injected victim impact evidence and      of fact and conclusions of law, denied an evidentiary hearing,
argument into the trial; (3) improperly commented on               and dismissed the petition. The Hamilton County Court of
Petitioner’s failure to testify; (4) made various improper and     Appeals reviewed these findings and conclusions, and
inflammatory arguments during closing arguments; and (5)           affirmed the trial court in all respects. The appellate court’s
improperly appealed to the jury’s sense of societal duty to        opinion included specific factual findings and concluded that
impose the death penalty. We will address each of these in         an evidentiary hearing was not required, because Petitioner
turn.                                                              had failed to present evidence that he had a substantive
                                                                   ground for relief. See State v. Byrd, No. C-910340, at 5 (Ohio
             A. “Death-Qualification” of Jury                      Ct. App. 1 Dist., Feb. 26, 1992).
  Petitioner argues that the prosecutor improperly secured a          On habeas review, the district court concluded that the
commitment from each juror that the juror could impose the         factual findings of the state courts were entitled to the
death penalty in Petitioner’s case. In Lockhart v. McCree,         presumption of correctness, because Petitioner had failed to
476 U.S. 162, 173 (1986), the Supreme Court held that “the         establish any of the eight exceptions contained in 28 U.S.C.
Constitution does not prohibit the States from ‘death              § 2254(d). The essence of Petitioner’s claim on appeal is that
qualifying’ juries in capital cases.” The State is allowed to      the record in the state court proceedings, and therefore in the
remove, for cause, “prospective jurors whose opposition to         district court, was inadequately developed and that he is
the death penalty is so strong that it would prevent or            entitled to discovery and an evidentiary hearing in federal
substantially impair the performance of their duties as jurors.”   court in order to provide substance to the claims raised in his
Id. at 165; accord Morgan v. Illinois, 504 U.S. 719, 733           habeas petition. However, the conclusion is inescapable that,
(1992); Buchanan v. Kentucky, 483 U.S. 402, 414 (1987).            if the state court record was inadequately developed, it was so
The Court has held that a juror may not be excluded merely         because Petitioner failed to pursue the avenues that were
“because they voiced general objections to the death penalty       available to him to develop it.
or expressed conscientious or religious scruples against its
infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).       If a habeas petitioner has failed to develop the factual basis
However, instead of prohibiting inquiry into whether a             of a claim in the state trial court, petitioner must show cause
prospective juror could impose the death penalty if the case so    and prejudice or a fundamental miscarriage of justice before
merited, these principles “demand inquiry into whether the         relitigating the facts. See Keeney v. Tamaro-Reyes, 504 U.S.
views of prospective jurors on the death penalty would             1, 11-12 (1992); Mitchell v. Rees, 114 F.3d 571,   579 (6th Cir.
disqualify them from sitting.” Morgan, 504 U.S. at 731.            1997), cert. denied, 522 U.S. 1120 (1998).30 We find no
  A review of the record in this case indicates that the
prosecutor was well within the scope of these governing                30
principles in his questioning of prospective jurors. The                 We note that, in the Antiterrorism and Effective Death Penalty Act
prosecutor merely asked the jurors whether they could impose       of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress added
                                                                   an evidentiary hearing provision to the habeas corpus statute. Section
the death penalty if they believed that Petitioner was guilty of   2254(e)(2), as amended by the AEDPA, now provides as follows:
aggravated murder beyond a reasonable doubt and that the
                                                                       (2) If the applicant has failed to develop the factual basis of a
44     Byrd v. Collins                                      No. 96-3209   No. 96-3209                                      Byrd v. Collins       69

indication that Petitioner attributes this failure to anything            602 F.2d 117, 119 (6th Cir. 1979)); see Darden, 477 U.S. at
other than Ohio’s statutory and procedural requirements and               181; Serra, 4 F.3d at 1355; Angel v. Overberg, 682 F.2d 605,
the state courts’ interpretation and utilization of them.                 608 (6th Cir. 1982) (en banc). Indeed, our case law
However, as we have exhaustively recounted, Petitioner has                demonstrates the “extreme nature of prosecutorial misconduct
failed to show that Ohio’s post-conviction relief system                  required for a federal court to issue the writ.” Angel, 682 F.2d
caused his failure to conduct adequate discovery. Perhaps                 at 609 (quoting Cook, 602 F.2d at 102).
Petitioner’s post-conviction counsel negligently failed to
pursue potential avenues of discovery adequately. Even so,                   The factors to consider in determining whether this
this is clearly not a sufficient ground for relief, as the                stringent standard has been met in a habeas case37have been
Supreme Court has held that ineffective assistance of post-               articulated consistently by this circuit as follows:
conviction counsel cannot constitute “cause.” See Coleman
v. Thompson, 501 U.S. 722, 755-57 (1991). The Court also                    [W]e consider the degree to which the remarks
has noted that “[i]t is hardly a good use of scarce judicial                complained of have a tendency to mislead the jury and to
resources to duplicate factfinding in a federal court merely                prejudice the accused; whether they are isolated or
because a petitioner has negligently failed to take advantage               extensive; whether they were deliberately or accidentally
of opportunities in state-court proceedings.” Keeney, 504                   placed before the jury, and the strength of the competent
                                                                            proof to establish the guilt of the accused.
                                                                          Pritchett, 117 F. 3d at 964 (quotations and citations omitted).
     claim in State court proceedings, the court shall not hold an        Important to our analysis as well is the principle that relief
     evidentiary hearing on the claim unless the applicant shows          will not be granted unless “the prosecutor’s statement likely
     that—                                                                had a bearing on the outcome of the trial in light of the
         (A) the claim relies on—                                         strength of the competent proof of guilt.” Id. (citing Angel,
              (i) a new rule of constitutional law, made                  682 F.2d at 608). Finally, “each case turns on its own unique
              retroactive to cases on collateral review by the            facts and . . . only a full review will reveal whether a
              Supreme Court, that was previously                          constitutional violation took place.” Cook, 602 F.2d at 120.
              unavailable; or                                             To constitute a denial of due process, the misconduct must be
              (ii) a factual predicate that could not have                “so pronounced and persistent that it permeates the entire
              been previously discovered through the
              exercise of due diligence; and                              atmosphere of the trial.” Pritchett, 117 F.3d at 964 (internal
                                                                          quotations omitted). For the reasons set forth below, we must
         (B) the facts underlying the claim would be sufficient           conclude that Petitioner’s claims do not meet this demanding
         to establish by clear and convincing evidence that but           standard.
         for constitutional error, no reasonable factfinder would
         have found the applicant guilty of the underlying
         offense.                                                             37
                                                                                 We note that other tests have been used in the context of a direct
§ 104, 110 Stat. at 1219. Where the omission of material facts from the   appeal of a federal criminal conviction. See United States v. Carroll, 26
state court record is attributable to the habeas petitioner, the new      F.3d 1380 (6th Cir. 1994). These tests, however, are not applicable to the
legislation both codifies and narrows the standard set forth in Keeney.   present case, because, as noted above, we lack supervisory powers over
See Weeks v. Bowersox, 119 F.3d 1342, 1354 n.12 (8th Cir. 1997), cert.    state court proceedings. Our standard of review on habeas review is
denied, 522 U.S. 1093 (1998). Of course, the provisions of the AEDPA      limited to whether there has been a denial of due process. In this respect,
are not applicable to Petitioner’s case. See Lindh v. Murphy, 521 U.S.    this Court has been consistent in its application of the standards and
320 (1997).                                                               factors on which we rely to resolve Petitioner’s claims.
68   Byrd v. Collins                              No. 96-3209      No. 96-3209                               Byrd v. Collins     45

   Having rejected each of the claims of ineffective assistance    U.S. at 9. To hold otherwise in Petitioner’s case would not
of appellate counsel presented above, we now consider in Part      only be contrary to well-settled law, but also would establish
VII Petitioner’s claims of prosecutorial misconduct during his     a blueprint for delay by other capital defendants. This we are
trial.                                                             unwilling to do. As the Supreme Court stated in Keeney:
                                                                   “The state court is the most appropriate forum for resolution
          VII. Prosecutorial Misconduct Claims                     of factual issues in the first instance, and creating incentives
                                                                   for the deferral of factfinding to later federal-court
   Petitioner contends that his appellate counsel were             proceedings can only degrade the accuracy and efficiency of
ineffective for failing to raise certain claims of prosecutorial   judicial proceedings.” Id. Similarly, in Eaton v. Angelone,
misconduct. Petitioner alleges that various instances of           139 F.3d 990, 995 (4th Cir.), cert. denied, 524 U.S. 934
unconstitutional prosecutorial misconduct occurred during the      (1998), the Fourth Circuit explained:
course of his trial and that they warrant a reversal of his
longstanding conviction and death sentence. Petitioner’s               More fundamentally, we refuse to transform a federal
burden on habeas review is quite a substantial one. For relief       habeas proceeding into a second trial. In this case an
to be granted, the misconduct must have “‘so infected the trial      evidentiary hearing would be precisely that. The
with unfairness as to make the resulting conviction a denial of      Supreme Court has charged us to preserve “the state trial
due process.’” Darden v. Wainwright, 477 U.S. 168, 181               on the merits [as] the ‘main event,’ so to speak, rather
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,             than a ‘tryout on the road’ for what will later be the
643 (1974)). We do not possess supervisory powers over               determinative federal habeas hearing.” Wainwright v.
state court trials. Cook v. Bordenkircher, 602 F.2d 117, 119         Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d
n.5 (6th Cir. 1979) (“it is the responsibility of the [state         594 (1977). We would be unfaithful to this charge if we
courts] to police their prosecutors; we have no such                 acted to supplant the state factfinding process with
authority.”). Therefore, on habeas review, our standard of           repetitive federal proceedings.
review is limited to “‘the narrow one of due process.’”
Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo,        We share these same sentiments here.
416 U.S. at 642).
                                                                      Although the procedural history of this case in the state
   In making this determination, we must bear in mind that         courts is labyrinthine, one thing is clear: Petitioner is not
“‘the touchstone of due process analysis . . . is the fairness     entitled to discovery and an evidentiary hearing. Because
of the trial, not the culpability of the prosecutor.’” Serra v.    Petitioner failed to rebut the statutory presumption of
Michigan Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir.         correctness that the federal habeas court must award to the
1993) (quoting Smith v. Phillips, 455 U.S. 209, 219 (1982));       factual findings of the state courts, the district court properly
see Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.) (quoting    concluded that it was required to defer to those factual
Serra, 4 F.3d at 1355), cert. denied, 118 S.Ct. 572 (1997).        findings. Furthermore, given this conclusion, we would be
Therefore, even if the prosecutor’s conduct was “undesirable       hard-pressed to say that the district court abused its discretion
or even universally condemned,” Darden, 477 U.S. at 181            in denying further discovery on these issues. See Rules
(quotation marks and citation omitted), it does not constitute     Governing Section 2254 Cases in the United States District
a due process violation unless “the conduct was ‘so egregious      Courts, Rule 6(a) (“A party shall be entitled to invoke the
so as to render the entire trial fundamentally unfair.’”           processes of discovery . . . if, and to the extent that, the
Pritchett, 117 F.3d at 964 (quoting Cook v. Bordenkircher,
46   Byrd v. Collins                              No. 96-3209      No. 96-3209                                 Byrd v. Collins      67

judge in the exercise of his discretion and for good cause         under the Confrontation Clause were violated by the
shown grants leave to do so, but not otherwise.”).                 introduction of hearsay evidence of Monte Tewksbury’s
                                                                   statements immediately before his death. The admission of
        IV. Analysis of Petitioner’s Brady Claims                  hearsay evidence does not violate the Confrontation Clause
                                                                   where the witness is unavailable and the statement bears
   In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme           adequate indicia of reliability. Idaho v. Wright, 497 U.S. 805,
Court recently summarized the relevant law on Brady                814 (1990). “Reliability can be inferred without more in a
violations. The Court reaffirmed the rule that “‘a conviction      case where the evidence falls within a firmly rooted hearsay
obtained by the knowing use of perjured testimony is               exception.” Id. at 815. The hearsay exception for dying
fundamentally unfair, and must be set aside if there is any        declarations has been recognized by the Supreme Court since
reasonable likelihood that the false testimony could have          at least 1892. See Mattox v. United States, 146 U.S. 140, 151
affected the judgment of the jury.” Id. at 433 n.7 (quoting        (1892); Pointer v. Texas, 380 U.S. 400, 407 (1965). The
United States v. Agurs, 427 U.S. 97, 103 (1976)). It is settled    dying declarations exception is firmly rooted, and the
that there exists no difference between exculpatory and            admission of Monte’s dying declarations did not violate
impeachment evidence for Brady purposes. Id. at 433. Of            Petitioner’s rights under the Confrontation Clause.
course, our conclusion that we must defer to the factual
findings of the state courts necessarily requires that we deny        Petitioner next contends that the trial court acted
Petitioner relief on the basis of his Brady claims. These          improperly in allowing the jury to be “death-qualified,” and
factual findings establish, among other things, that Armstead      in admitting improper evidence and allowing improper
“received no bargain or deal from the State in return for his      arguments by the prosecutor. We reject Petitioner’s claims.
testimony,” that “Petitioner has submitted no credible             First, it is not improper for jurors to be death-qualified, i.e., to
evidence suggesting that Ronald Armstead lied, or that would       be asked whether they could impose capital punishment, if
result in the probability of a different outcome at a second       warranted, regardless of any personal opposition that they
trial,” and that “[n]o evidence favorable to the defendant [i.e.   might have. Lockhart v. McCree, 476 U.S. 162, 173 (1986).
Petitioner] was suppressed by the State.” JA at 1874, 1878.        Second, we find that the evidence and arguments complained
                                                                   of were not improper, and, therefore, it was not error for the
  We also reject Petitioner’s argument that Armstead’s             judge to allow them at trial. In any event, it is surely not our
testimony that he had no charges pending at the time of            role on habeas review to decide whether a state trial judge’s
Petitioner’s trial violated Brady. The record indicates that the   decision whether to admit evidence pursuant to state
prosecution provided defense counsel with a copy of                evidentiary rules was a proper one. Our sole task is to decide
Armstead’s record. The record which Petitioner attached to         whether federal constitutional violations have occurred. See
his “Petition to Vacate or Set Aside Sentence: R.C. Section        Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“[T]he
2953.21” indicates “015Y” (fifteen years) across from the          Due Process Clause does not permit the federal courts to
date of disposition of Armstead’s felonious assault conviction     engage in a finely tuned review of the wisdom of state
and “005Y” (five years) across from the date of disposition of     evidentiary rules.”). Petitioner’s final claim is that his
his drug trafficking conviction. The record states the date that   appellate counsel were constitutionally ineffective for failing
the fifteen and five years were imposed as “Date Disp.             to argue on direct appeal that Petitioner was denied a fair trial
11/25/80.” Armstead’s record also noted, among other things,       because the prosecution presented testimony of a “jailhouse
prior convictions for assault with intent to rape, sodomy, and     informant.” This claim has no merit.
assault and battery. Although it should have been obvious
66   Byrd v. Collins                              No. 96-3209      No. 96-3209                              Byrd v. Collins    47

give under Ohio law. See Ohio Rev. Code Ann. § 2901.05(B)          from his record that Armstead was on some form of parole
& (D) (Anderson 1996). This Circuit has previously upheld          when he was arrested in December 1982, defense counsel
the constitutionality of this instruction. See Thomas v. Arn,      never questioned Armstead regarding whether his parole
704 F.2d 865, 869 (6th Cir. 1983). Similarly, Petitioner           status would be adversely affected by the six-month sentence
challenges instructions which stated that the jury’s verdict       he received in March 1983 following his plea of guilty to
was only a recommendation, that the jury was to consider all       assault and attempted petty theft. This Circuit has held that
statutory mitigating factors, and that if the aggravating          “[n]o Brady violation occurs ‘where a defendant knew or
circumstances outweighed the mitigating factors then a             should have known the essential facts permitting him to take
recommendation of death was mandatory. These challenges            advantage of any exculpatory information, or where the
are without merit as well. These instructions reflect Ohio         evidence is available from another source.’” See Workman v.
statutory law, see Ohio Rev. Code Ann. §§ 2929.03(D)(2) &          Bell, 178 F.3d 759, 767 (6th Cir. 1998) (quoting United States
2929.04(B) (Anderson 1996), and raise no constitutional            v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)), cert. denied, 120
concerns.                                                          S.Ct. 264 (1999). This principle applies in the impeachment
                                                                   context as well, as there exists no difference for Brady
  Nor do we find any problems with the remaining                   purposes between exculpatory and impeachment evidence.
instructions Petitioner contests. The trial judge’s instruction    See Kyles, 514 U.S. at 433. Under these circumstances, it is
that the jury could consider the arguments of counsel in           difficult to conclude that Armstead’s testimony violated
weighing the aggravating circumstances against the mitigating      Brady. The prosecution provided Petitioner’s defense counsel
factors was proper, especially since the judge distinguished       with sufficient information to enable counsel to question
between evidence and arguments of counsel and previously           Armstead regarding his status at the conclusion of his six-
had provided an instruction that the arguments of counsel          month sentence in the Cincinnati Workhouse. The fact that
were not evidence. The instruction that a jury verdict             defense counsel failed to do so was no fault of the State.
recommending a life sentence must be unanimous was a
proper statement of Ohio law, see State v. Brooks, 661 N.E.2d         In any event, in order to establish a claim of prosecutorial
1030, 1042 (Ohio 1996), and was constitutionally                   misconduct or denial of due process, the defendant must show
permissible. Finally, Petitioner contends that the judge’s         that the statement in question was false, that the prosecution
instruction that the jury must not be motivated by feelings of     knew it was false, and that it was material. See United States
sympathy but must render a fair and impartial verdict was          v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); United
improper. This argument is utterly without merit, as such an       States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986).
instruction is a perfectly appropriate and indeed wise one. In     Moreover, the defendant must show that the statement in
sum, none of the judge’s instructions to the jury was              question was “indisputably false,” rather than merely
unconstitutional, and Petitioner’s claim that his appellate        misleading. Lochmondy, 890 F.2d at 823. Here, we simply
counsel was constitutionally ineffective for failing to raise      cannot say that Armstead’s statement that he did not have any
them must necessarily fail.                                        charges pending at the time of Petitioner’s trial was
                                                                   “indisputably false.” Armstead certainly was not facing any
                  D. Miscellaneous Claims                          criminal charges when he testified in Petitioner’s case. At the
                                                                   time of trial in August 1983, Armstead was nearing
  The remaining claims that Petitioner asserts as a basis for      completion of his six-month sentence at the Cincinnati
his ineffective assistance of appellate counsel argument also      Workhouse that he had received in March 1983. In our view,
lack any hint of merit. First, Petitioner argues that his rights   Armstead’s answer indicates that he interpreted defense
48     Byrd v. Collins                                    No. 96-3209        No. 96-3209                                Byrd v. Collins     65

counsel’s question as referring specifically to criminal                     the ailing instruction by itself so infected the entire trial that
charges and not as encompassing the parole revocation                        the resulting conviction violates due process.’” Id. at 72
hearings he would face at the 31
                               end of his six-month sentence                 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
at the Cincinnati Workhouse. Tr. at 1569 (“I got my time                     Moreover, the Supreme Court has cautioned that it has
in March the 15th and32I don’t have no time pending or                       “defined the category of infractions that violate ‘fundamental
nothing else pending.”). Moreover, the prosecutor himself                    fairness’ very narrowly.” Dowling v. United States, 493 U.S.
appears to have interpreted defense counsel’s question to refer              342, 352 (1990). Petitioner has not come close to meeting
to criminal charges. Tellingly, when defense counsel asked                   this standard here.
Armstead about any pending charges, the prosecutor objected,
stating “[w]e have been over that.” Tr. at 1569. In lodging                     First, Petitioner argues that the trial judge improperly
his objection, the prosecutor obviously was referring to                     instructed the jury on causation and undermined the specific
defense counsel’s previous cross-examination of Armstead                     intent to kill requirement that is necessary for a finding of
regarding his criminal history. This indicates that the                      aggravated murder in Ohio. The trial judge instructed the jury
prosecutor did not know that Armstead’s testimony was                        that the causation requirement is met when death is the
“false,” another requirement for a Brady violation.                          natural and foreseeable result of the defendant’s actions. The
                                                                             trial judge continued:
  Nor are we inclined to find that the statement was material.
In United States v. Avellino, 136 F.3d 249, 257 (2nd Cir.                        The test for foreseeability is not whether the defendant
1998), the Second Circuit remarked: “where the undisclosed                     should have foreseen the death in its precise form. The
                                                                               test is whether in light of all the circumstances, a
                                                                               reasonably prudent person would have anticipated that
     31
                                                                               death was likely to result to anyone from the performance
       We note that the Hamilton County Court of Common Pleas                  of the act or acts.
similarly interpreted Armstead’s testimony in denying Petitioner’s post-
conviction petition. See supra at p. 30 & n.19.                              Tr. at 1697. In his habeas petition, Petitioner argues that this
     32                                                                      instruction was “completely incompatible with the
      Petitioner included in his brief the following excerpt from            requirement that the defendant must have a specific intent to
Armstead’s testimony at the trial of William Woodall. The following          cause a certain result — the death of another person.” JA at
colloquy occurred during defense counsel’s cross-examination of
Armstead regarding Armstead’s motivation for testifying against              247. We are unpersuaded. In his immediately preceding
Woodall:                                                                     instruction, the trial court informed the jury that “[n]o person
                                                                             may be convicted of aggravated murder unless he is
     Q [by defense counsel]: And you didn’t expect to receive                specifically found to have intended to cause the death of
     anything in exchange for doing your good civic duty as a                another.” Tr. at 1697. In our view, the causation instruction
     citizen?
                                                                             did not undermine the requirement of specific intent. In short,
     A [by Armstead]: My time is up, I got three more weeks—about            it was not even an erroneous instruction, much less an
     two or three more weeks and my six months will be up.                   unconstitutional one.
Petitioner’s Br. at 67 n.28 (emphasis added). We note that Armstead            Petitioner’s challenge to the judge’s instruction defining
stated that his “six months” would be completed in two or three weeks.       reasonable doubt must also fail. The trial judge’s instruction
Similarly, in Petitioner’s case, Armstead remarked that “I got my time in
March the 15.” Tr. at 1569. These statements clearly refer to the sentence   was taken virtually verbatim from the statutorily required
Armstead received on March 15, 1983, following his guilty plea.              definition of reasonable doubt that the judge was required to
64   Byrd v. Collins                              No. 96-3209      No. 96-3209                            Byrd v. Collins    49

mitigation material with Petitioner, as well as his mother,        evidence merely furnishes an additional basis on which to
sister, grandmother, and stepfather. Counsel made a                challenge a witness whose credibility has already been shown
determination that this material would be presented most           to be questionable or who is subject to extensive attack by
credibly by Petitioner’s mother. In affirming the common           reason of other evidence, the undisclosed evidence may be
pleas court, the Hamilton County Court of Appeals noted:           cumulative, and hence not material.” We already have noted
                                                                   the extensive amount of impeachment information that
  The remaining affidavits [from Petitioner’s family               Petitioner’s counsel elicited during his cross-examination of
  members, former girlfriend, and parole officer] share a          Armstead. This information included, among other things,
  common theme, i.e., that Byrd’s life was fraught with            Armstead’s then-current incarceration in the maximum
  abuse, rejection, disappointment and violence. At the            security area of the Cincinnati Workhouse, as well as his
  mitigation hearing, Byrd’s mother recounted numerous             conviction within the preceding ten years of an offense
  negative episodes of Byrd’s life. The trial court, in its        carrying a sentence of more than one year in prison. Hence,
  opinion, recognized that Byrd had been subjected to              Armstead’s credibility had been seriously questioned. To be
  abuse and that he had endured various difficulties in his        sure, defense counsel certainly could have asked Armstead
  life. Thus, the evidence of Byrd’s chaotic life, as set          whether he was facing a parole revocation hearing after the
  forth in the supporting affidavits, is merely cumulative to      completion of his sentence in the Workhouse. However, if
  that presented at trial by Byrd’s mother.                        defense counsel had asked such a question, the prosecution
                                                                   presumably would have responded on re-direct examination
State v. Byrd, No. C-910340, 1992 WL 37761, at *6 (Ohio Ct.        by asking Armstead whether he had entered into any type of
App. 1 Dist., Feb. 26, 1992). The common pleas court also          agreement with the prosecution concerning its assistance at
determined that counsel made a tactical decision not to            his upcoming hearing. There would not have been anything
introduce records regarding Petitioner’s juvenile, medical, and    further to explore; as the state courts found, there was no
school records so as to avoid revealing Petitioner’s prior         evidence that Armstead had struck any sort of a deal with the
behavior patterns to the jury. Finally, the common pleas court     prosecution prior to his testimony at Petitioner’s trial.
found that the trial court had authorized Petitioner to employ
a psychologist or a psychiatrist; however, Petitioner refused        In our view, Armstead had been subjected to extensive
to be interviewed by either. Given these factual findings, we      impeachment by defense counsel, and it is difficult to
conclude that Petitioner has not shown that defense counsel’s      conclude that there exists a reasonable probability that, had
performance at the mitigation phase was constitutionally           the issue of Armstead’s upcoming parole hearing been
ineffective.                                                       disclosed, the outcome in Petitioner’s trial would have been
                                                                   different. See Kyles, 514 U.S. at 433-34; United States v.
                    C. Jury Instructions                           Bagley, 473 U.S. 667, 678 (1985); cf. Agurs, 427 U.S. at 109
                                                                   (“The mere possibility that an item of undisclosed
  Petitioner next claims that his appellate counsel were           information might have helped the defense, or might have
constitutionally ineffective for failing to challenge several of   affected the outcome of the trial, does not establish
the trial judge’s instructions to the jury at both the guilt and   ‘materiality’ in the constitutional sense.”). In short, we
penalty phases of Petitioner’s trial. The standard we apply on     simply cannot say that this evidence “could reasonably be
habeas review is highly demanding. Indeed, “the fact that the      taken to put the whole case in such a different light as to
instruction was allegedly incorrect under state law is not a       undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-
72 (1991). Rather, the sole question on habeas is “‘whether
50     Byrd v. Collins                                     No. 96-3209        No. 96-3209                               Byrd v. Collins     63

  For the foregoing reasons, we reject Petitioner’s claims of                 not shown that this decision was anything other than a
Brady violations in this case.                                                legitimate tactical decision, see Nguyen v. Reynolds, 131 F.3d
                                                                              1340, 1350 (10th Cir. 1997), cert. denied, 119 S. Ct. 128
      V. Procedural Issues Related to the Ineffective                         (1998), nor has he shown a reasonable probability of a
              Assistance of Counsel Claims                                    different outcome had defense counsel, in fact, made an
                                                                              opening statement. None of the alleged instances of
  Petitioner further alleges that his trial counsel were                      ineffective trial counsel has merit. Moreover, we “must
ineffective in violation of his Sixth Amendment right to                      indulge a strong presumption that counsel’s conduct falls
counsel. To prevail, Petitioner must show not only that                       within the wide range of reasonable professional assistance.”
performance of counsel was deficient but also that this                       Strickland v. Washington, 466 U.S. 668, 689 (1984).
deficient performance prejudiced the defense. Strickland v.                   Therefore, Petitioner’s appellate counsel were not
Washington, 466 U.S. 668, 687 (1984).                                         constitutionally ineffective for failing to raise these issues on
                                                                              direct appeal.
     A. Ineffective Assistance of Trial Counsel Claims
                                                                                 B. Ineffective Assistance of Trial Counsel (Penalty
   On appeal, Petitioner raises ineffective assistance of trial                                        Phase)
counsel challenges to the representation provided      by his
defense counsel at the guilt and penalty phases.33 Petitioner                    Petitioner contends that he received constitutionally
contends that defense counsel were ineffective at the guilt                   ineffective assistance of counsel at the penalty phase of his
stage as a result of (1) their failure to present an opening                  trial. The Eighth Amendment requires a jury to consider the
statement; (2) the fact that one of the two defense counsel                   circumstances of the crime and the defendant’s character and
refused to participate in the preparation of Armstead’s cross-                background during the sentencing phase of a capital trial.
examination, because that counsel previously had represented                  Boyde v. California, 494 U.S. 370, 377-78 (1990); Austin v.
Armstead in a criminal matter; and (3) the failure of defense                 Bell, 126 F.3d 843, 848 (6th Cir. 1997), cert. denied, 523 U.S.
counsel to object to alleged prosecutorial misconduct.                        1079 (1998). Moreover, the Constitution requires defense
                                                                              counsel to conduct a reasonable investigation into the
  Petitioner posits several arguments with respect to                         defendant’s background and present it to the jury. Austin, 126
counsel’s performance at the penalty phase of his trial. At the               F.3d at 848. Failure to do either may constitute ineffective
outset, Petitioner contends that defense counsel were                         assistance of counsel. Id.; Glenn v. Tate, 71 F.3d 1204, 1206-
ineffective due to their failure to investigate possible                      08 (6th Cir. 1995). Petitioner argues that counsel was
mitigating factors. Petitioner asserts that counsel failed to                 ineffective for failing to present sufficient mitigation evidence
obtain an independent mental health expert after the trial court              and obtain the assistance of an independent psychologist.
authorized counsel to do so, and failed to request the                        Petitioner’s defense in mitigation consisted of nine pages of
                                                                              testimony from his mother, Mary Ray, as well as an unsworn
                                                                              statement from Petitioner expressing “regret” over the
     33                                                                       incident.
       In the district court, Petitioner alleged that defense counsel were
ineffective at the pre-trial and voir dire stages as well. However,             We are unpersuaded that counsel’s performance was
Petitioner does not assert these particular ineffectiveness arguments on
appeal. Curiously, Petitioner nonetheless contends that his counsel on        constitutionally ineffective. The factual findings of the
direct appeal were ineffective for failing to raise the claim of misconduct   common pleas court establish that defense counsel discussed
by the State’s attorneys during voir dire.
62    Byrd v. Collins                              No. 96-3209      No. 96-3209                                Byrd v. Collins     51

to at trial was not crucial to proof of defendant’s guilt.” The     appointment of an independent mitigation specialist.
court declined to place any weight on the affidavits submitted      Petitioner maintains that the alleged failure of defense counsel
by Petitioner’s purported experts, finding that one of the          to obtain a psychological expert prevented Petitioner from
purported experts “was not qualified to give an expert opinion      presenting mitigation evidence about his background and how
on matters of forensic pathology,” and that the conclusions of      factors from his background affected his behavior. In
another were “without any basis in fact.” JA at 1888, 1890.         addition, Petitioner argues that a mitigation specialist would
The court stated: “Petitioner does not allege that he possesses     have helped counsel investigate, prepare, and present
any new evidence or could obtain any such evidence, which           information regarding Petitioner’s history, family background,
would aid his client.” JA at 1890. We agree with this               and formative environment. Petitioner presents several
analysis.                                                           additional arguments as well. He contends that defense
                                                                    counsel’s opening statement at the penalty phase was
   Petitioner cites his trial counsel’s decision not to present a   deficient and revealed a lack of “thorough familiarity” with
defense of intoxication as another instance of alleged              the law and the evidence presented. Petitioner also challenges
ineffectiveness. We disagree. There is no evidence of               the extent of the defense’s mitigation case, which consisted of
intoxication in this case aside from Petitioner’s self-serving      testimony from Petitioner’s mother and an unsworn statement
statements. Moreover, an intoxication defense presumably            from Petitioner. Petitioner argues that “[t]he brevity and
would have required Petitioner to admit to the act of stabbing      sparseness of the defense case provided Petitioner’s jurors
and killing Monte Tewksbury, an admission that likely would         with no real understanding of how or why the Petitioner
have been detrimental to his defense. See State v. Poole, 294       wound up on the wrong end of a capital indictment.” JA at
N.E.2d 888, 889 (Ohio 1973) (listing intoxication as one of         237. Finally, Petitioner contends that defense counsel were
several affirmative defenses consistently recognized in Ohio).      ineffective in the penalty phase for failing to object to
Petitioner has shown nothing to undermine the common pleas          numerous instances of alleged prosecutorial misconduct at
court’s finding that counsel made a legitimate tactical             closing argument, as well as certain allegedly improper
decision not to raise intoxication as a defense. Thus, we           instructions from the trial court.
reject his argument.
                                                                      The district court found that the great bulk of Petitioner’s
   Petitioner further contends that his trial counsel were          ineffective assistance of trial counsel claims were
ineffective for failing to voir dire potential jurors adequately,   procedurally defaulted, because they had not been raised
to make an opening statement, and to object to prosecutorial        properly in the Ohio state courts. The district court found that
misconduct. The common pleas court found that defense               only the following issues were properly preserved: (1) That
counsel had adequate information at voir dire regarding             counsel was ineffective for breaching their pre-trial duty to
potential jurors and had a particular type of juror in mind.        investigate and thus failing to determine that Armstead’s
The court concluded that counsel’s performance at voir dire         testimony was false and that Armstead had reached a deal
was not ineffective. Petitioner has not convinced us                with the prosecutors in exchange for his testimony; (2) that
otherwise. Petitioner’s other claims of ineffective assistance      counsel was ineffective for failing to object to the trial court’s
of counsel are similarly unpersuasive. The failure to object to     instruction to the jury at the penalty phase that it could not be
alleged prosecutorial misconduct did not rise to the level of       governed by considerations of sympathy; and (3) that counsel
constitutional infirmity. See infra Part VII. Nor did defense       was ineffective for failing to object when the trial court
counsel’s decision not to make an opening statement render          permitted the prosecutor to argue that the jury should sentence
their performance constitutionally ineffective. Petitioner has      Petitioner to death as a duty to satisfy society’s moral outrage.
52   Byrd v. Collins                             No. 96-3209      No. 96-3209                              Byrd v. Collins     61

In our view, it also appears that the Hamilton County Court of      VI. Analysis of the Merits of Petitioner’s Ineffective
Appeals did not apply a procedural bar and decided on the                Assistance of Appellate Counsel Claims
merits Petitioner’s claim that defense counsel were ineffective
at the penalty phase due to their failure to present additional     Each of Petitioner’s ineffective assistance of appellate
mitigation evidence. Petitioner does not argue that the           counsel claims alleges a failure on the part of counsel to raise
remaining ineffective assistance claims were considered by        a certain issue on direct appeal. For convenience, we group
the state courts on their merits.           Indeed, Petitioner    these claims into the following five categories: (1) Ineffective
acknowledges that he raised his ineffective assistance of trial   assistance of trial counsel (guilt phase); (2) ineffective
counsel claims in his post-conviction petition to vacate          assistance of trial counsel (penalty phase); (3) prosecutorial
sentence pursuant to Ohio Rev. Code § 2953.21, and both the       misconduct; (4) jury instructions; and (5) miscellaneous. We
common pleas court and the Hamilton County Court of               will now review the merits of these claims with the exception
Appeals declined to reach the merits, finding that the claims     of the prosecutorial misconduct arguments, which we will
were barred by the doctrine of res judicata. Thus, as to these    address separately in Part VII.
defaulted claims, we must consider whether the applicable
Ohio procedural rule constitutes an adequate and independent      A. Ineffective Assistance of Trial Counsel (Guilt Phase)
state ground. We hold that it clearly does.
                                                                    Petitioner argues that his appellate counsel were
     B. Procedural Default of Trial Counsel Claims                constitutionally ineffective for failing to raise certain claims
                                                                  of alleged ineffective assistance of trial counsel at the guilt
   Federal courts “will not review a question of federal law      phase of his trial. These claims are completely without merit.
decided by a state court if the decision of that court rests on   First, petitioner alleges that his trial counsel were
a state law ground that is independent of the federal question    constitutionally ineffective for failing to file a motion for
and adequate to support the judgment.” Coleman v.                 discovery as to the existence of any deals between the
Thompson, 501 U.S. 722, 729 (1991). In 1967, the Ohio             prosecution and any of its witnesses. There is no evidence
Supreme Court held that “[c]onstitutional issues cannot be        whatsoever that any such deals existed, and the common pleas
considered in post-conviction proceedings under Section           court made specific findings to this effect in denying
2953.21 et seq., Revised Code, where they have already been       Petitioner’s post-conviction petition.
or could have been fully litigated by the prisoner while
represented by counsel, either before his judgment of                Petitioner also contends that trial counsel were ineffective
conviction or on direct appeal from that judgment, and thus       for failing to retain experts to test the State’s physical
have been adjudicated against him.” State v. Perry, 226           evidence. Petitioner maintains that counsel should have
N.E.2d 104, 105-06 (Ohio 1967) (syllabus para. 7). In State       obtained a criminologist to analyze evidence regarding blood
v. Cole, 443 N.E.2d 169 (Ohio 1982), the state supreme court      stains that were found on Petitioner’s clothing and on a knife
articulated how this procedural rule would apply with respect     found in the van, and shoe prints that were taken from the
to ineffective assistance of trial counsel claims. The court      crime scene. However, the common pleas court found that
explained: “Where defendant, represented by new counsel           “[t]he jury was aware that exhibit 7, the knife, could not be
upon direct appeal, fails to raise therein the issue of           shown to be the murder weapon, that the blood stains could
competent trial counsel and said issue could fairly have been     not be shown to be the victim’s and that the shoe prints were
determined without resort to evidence dehors [i.e., outside]      not those of defendant Byrd.” State v. Byrd, No. B-831662
the record, res judicata is a proper basis for dismissing         (Hamilton County C.P. Oct. 2, 1989). The court further found
                                                                  that “[t]he source of the blood which was tested and testified
60     Byrd v. Collins                                        No. 96-3209         No. 96-3209                                    Byrd v. Collins      53

that an ineffective assistance of appellate counsel claim can                     defendant’s petition for post-conviction relief.” Id. at 170
establish cause for a procedural default of an independent                        (syllabus).
claim and need not itself be subjected to a procedural default
analysis as long as the ineffective assistance of appellate                          Before applying a state procedural bar, the federal court
counsel claim has been presented to the state courts and                          must determine whether (1) the state courts actually enforced
exhausted. See id. at 945. The panel stated that “[t]he                           their state’s procedural rule, see Reynolds v. Berry, 146 F.3d
Supreme Court . . . [has] not implement[ed] a procedural                          345, 347 (6th Cir. 1998); Maupin v. Smith, 785 F.2d 135, 138
default requirement for claims asserted as cause, and until it                    (6th Cir. 1986); and (2) the rule in question is “firmly
does, we see no reason to engraft such a requirement on our                       established and regularly followed,” Ford v. Georgia, 498
own.” Id.                                                                         U.S. 411, 423-24 (1991); James v. Kentucky, 466 U.S. 341,
                                                                                  348-51 (1984). An adequate and independent procedural
   We recognize that the Supreme Court has granted certiorari                     default rule bars habeas review of a petitioner’s federal claim
to review this aspect of Carpenter. See also Stewart v.                           unless the petitioner can show cause for the default and
LaGrand, 526 U.S. 115, 120 (1999) (per curiam) (finding that                      prejudice attributable thereto, or demonstrate that a failure to
an ineffective assistance of counsel claim could not be                           consider the federal claim will result in a fundamental
considered as cause to excuse a procedurally defaulted claim                      miscarriage of justice. Coleman, 501 U.S. at 749-50; Harris
because, among other things, the claim asserted as cause had                      v. Reed, 489 U.S. 255, 262 (1989).34 On appeal, Petitioner
itself been defaulted, and the petitioner had failed to                           raises two principal arguments: (1) That the Ohio rule relied
demonstrate cause and prejudice for this default). However,                       on in this case to bar federal review of Petitioner’s ineffective
regardless of Carpenter, our review of the underlying merits                      assistance of trial counsel claims does not constitute an
of Petitioner’s ineffective assistance of appellate counsel                       “adequate and independent” state ground; and (2) in any
claims in Parts VI and VII, infra, convinces us that these                        event, Petitioner can show cause, i.e., the ineffective
claims do not warrant relief on habeas. As a result,                              assistance of his appellate counsel to raise the claims, and
Petitioner’s ineffective assistance of appellate counsel claims                   prejudice resulting therefrom.
cannot constitute cause to excuse the procedural default of his
ineffective assistance of trial counsel claims.                                      Petitioner cites a total of four cases from the Ohio Supreme
                                                                                  Court, which he contends show that neither Perry’s res
                                                                                  judicata rule in general nor its application in Cole-type
                                                                                  situations in particular is regularly followed, and hence the
                                                                                  State’s res judicata rule is insufficient for purposes of
R. 26 and 14(B).”).                                                               applying procedural default. We do not agree. First, we note
                                                                                  that this circuit has applied Cole in holding that an ineffective
      To be sure, the decision in Rone was relevant to the court of
appeals’s determination to deny the motion for reconsideration. However,          assistance of trial counsel claim had been procedurally
Rone was not the procedural rule upon which the Hamilton County Court             defaulted. See Wong v. Money, 142 F.3d 313, 322 (6th Cir.
of Appeals relied in denying the motion for reconsideration. The court of         1998). Second, we note in any event that the Supreme Court
appeals simply held that, as a matter of state law, Rone and several other
decisions of the Hamilton County Court of Appeals precluded a finding
of “good cause” in Petitioner’s case. The Hamilton County Court of                    34
Appeals had affirmed Petitioner’s conviction and sentence in 1986, yet                  “The miscarriage of justice exception is concerned with actual as
Petitioner did not file his motion for reconsideration until 1992. In light       compared to legal innocence.” Calderon v. Thompson, 523 U.S. 538
of its previous decisions, the court of appeals held that, as a matter of state   (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Petitioner
law, no “good cause” had been shown.                                              does not argue that this exception applies to his case.
54   Byrd v. Collins                              No. 96-3209      No. 96-3209                                    Byrd v. Collins       59

has indicated that a procedural rule need not be applied in        Court repeatedly since 1983.” State v. Byrd, No. C- 830676,
every applicable case. Dugger v. Adams, 489 U.S. 401, 410          at 1 (Ohio Ct. App. 1 Dist, Oct. 1, 1992). The Ohio Supreme
n.6 (1989). Rather, the Court in Dugger found a procedural         Court rejected two subsequent appeals in separate orders. See
rule to be sufficient where it was applied “[i]n the vast          State v. Byrd, No. 92-2222, at 1 (Ohio Oct. 27, 1993); State
majority of cases.” Id. Moreover, the case law Petitioner          v. Byrd, No. 86-512, at 1 (Ohio Oct. 27, 1993).
cites is unpersuasive. In State v. Howard, 537 N.E.2d 188
(Ohio 1989), as Justice Resnick noted in her dissenting                                  E. Carpenter v. Mohr
opinion, the same attorney represented the defendant at trial
and on direct appeal. Id. at 196 (dissenting opinion). Hence,        When Petitioner presented his ineffective assistance of
Cole was inapplicable. In State v. Decker, 502 N.E.2d 647,         appellate counsel claims on habeas, the district court
649 n.3 (Ohio 1986), the Ohio Supreme Court pointed out in         determined that they had been procedurally defaulted. In the
its opinion that the defendant had not raised his ineffective      district court’s view, the relevant procedural rule was the
assistance of trial counsel claim on direct appeal. The State      Hamilton County Court of Appeals’s decision in Rone. The
presumably failed to raise res judicata as a defense.              court concluded that, while no statewide procedure for raising
Moreover, in State v. Nichols, 463 N.E.2d 375, 376-77 (Ohio        ineffective assistance of appellate counsel claims existed in
1984), the state supreme court expressly noted the limited         Ohio until Murnahan, the rule in the Hamilton County Court
issue before it: “Nichols’ latest constitutional claims . . .      of Appeals had been well established since the decision in
were not presented to either the trial court or the court of       Rone in August 1983. The court stated: “it was not
appeals. Accordingly we will confine ourselves to the              unreasonable to expect a defendant convicted in Hamilton
procedural question presented and make no attempt . . . to         County to follow the rule established by that County’s Court
review the . . . constitutional claims.” Finally, State v.         of Appeals.” Byrd v. Collins, No. C-1-94-167, at 17 (S.D.
Cooperrider, 448 N.E.2d 452 (Ohio 1983), upon which                Ohio Nov. 2, 1995).
Petitioner relies heavily, is entirely consistent with Cole.
Cooperrider has been consistently interpreted to stand for the        On the basis of this Circuit’s opinion in Carpenter v. Mohr,
proposition that a claim of ineffective assistance of trial        163 F.3d 938 (6th Cir. 1998), cert. granted sub nom, Edwards
counsel, which is dependent upon evidence outside the              v. Carpenter, 120 S.Ct. 444, 68 U.S.L.W. 3008, 68 U.S.L.W.
record, is to be raised in a post-conviction proceeding rather     3305, 68 U.S.L.W. 3310 (U.S. Nov. 8, 1999) (No. 98-2060),
than on direct appeal. See, e.g., State v. Kent, No. 96CA794,      the district court’s decision to subject Petitioner’s ineffective
1998 WL 106158, at *4 (Ohio Ct. App. 4 Dist., Mar. 4,              assistance of appellate  counsel claims to a procedural default
1998); State v. Hull, No. 58024, 1990 WL 14156, at *1 (Ohio        analysis was error.36 In Carpenter, a panel of this court held
Ct. App. 8 Dist., Feb. 15, 1990).
  In sum, Petitioner’s argument that the Cole rule is not              36
                                                                          In addition, a careful reading of the Hamilton County Court of
regularly applied in Ohio and thus does not constitute an          Appeals’s October 1, 1992 “Entry Denying Application for Delayed
adequate and independent state law ground for purposes of          Reconsideration” indicates that the court did not rely upon Rone. Rather,
invoking a procedural bar to Petitioner’s ineffective assistance   the court relied upon former Ohio Rule of Appellate Procedure 26 —
of trial counsel claims is rejected. As the district court         which provided for the reconsideration of an appeals court judgment —
                                                                   and former Rule of Appellate Procedure 14(B) — which required a
correctly found, Ohio state courts consistently invoke Cole        showing of good cause for the enlargement of time to file an untimely
and apply res judicata when a defendant, who is represented        motion. See State v. Byrd, No. C-830676, at 1 (Ohio Ct. App. 1 Dist.,
by new counsel on direct appeal, fails to raise at that stage of   Oct. 1, 1992) (“The Court . . . finds that said application is not well
                                                                   taken and that the same ought to be and hereby is overruled under App.
58   Byrd v. Collins                             No. 96-3209      No. 96-3209                                       Byrd v. Collins        55

Dist., Aug. 31, 1983). The court of appeals stated that, among    the litigation an ineffective assistance of trial counsel claim
other alternative remedies, “the appellate court in which         appearing on the face of the record. See, e.g., State v. Lentz,
counsel has been alleged ineffective could consider the issue     639 N.E.2d 784, 785 (Ohio 1994) (“This court’s decision in
upon a motion for reconsideration of its own judgment.” Id.       Cole . . . forms the applicable law in the area [of res
On the basis of Rone, the common pleas court declined to          judicata].” ); State v. Caslin, No. 97APA09-1275, 1998 WL
address the merits of Petitioner’s claims. On April 1, 1991,      255559 (Ohio Ct. App. 10 Dist., May 21, 1998) (applying
in its opinion following a remand from the court of appeals,      Cole to bar a claim of ineffective assistance of counsel); State
the common pleas court incorporated its previous conclusion.      v. Combs, 652 N.E.2d 205 (Ohio Ct. App. 1 Dist. 1994)
On February 26, 1992, the Hamilton County Court of Appeals        (same). See also Mapes v. Coyle,171 F.3d 408, 421 (6th Cir.
affirmed for the same reasons, and the Ohio Supreme Court         1999) (citing Cole as the only exception to the res judicata
subsequently declined to hear Petitioner’s appeal of the denial   rule set forth in State v. Perry).
of the post-conviction petition. State v. Byrd, 596 N.E.2d 472
(Ohio 1992).                                                        We have considered Petitioner’s remaining arguments
                                                                  challenging the application of Cole to this case and find them
   On February 19, 1992, one week before the Hamilton             to be without merit. Suffice it to say, Petitioner was
County Court of Appeals’s decision in Petitioner’s case, the      represented by new counsel on direct appeal, and his
Ohio Supreme Court decided State v. Murnahan, 584 N.E.2d          ineffective assistance of trial counsel claims could have been
1204 (Ohio 1992). Murnahan resolved a split among the             considered without resort to evidence outside the record.
state courts of appeals as to the proper procedure for raising    Petitioner failed to raise the great bulk of these claims on
claims of ineffective assistance of appellate counsel. See        direct appeal. We now conclude that Petitioner’s ineffective
Manning v. Alexander, 912 F.2d 878, 881-82 (6th Cir. 1990)        assistance of trial counsel claims—with    the exceptions noted
(citing cases). The state supreme court determined that           above—are procedurally defaulted.35 Therefore, in order for
claims of ineffective assistance of appellate counsel were not    us to consider them, Petitioner must show cause and prejudice
cognizable in post-conviction relief petitions. Murnahan, 584     for his failure to raise them in his direct appeal. Petitioner
N.E.2d at 1205 (syllabus para. 1). The court explained: “[t]o     argues that the “cause” behind this failure was the ineffective
allow such claims could in effect permit trial courts to          assistance of his appellate counsel. We turn now to this
second-guess superior appellate courts.” Id. at 1208. The         claim.
court concluded that the proper method for raising such
claims was a motion for reconsideration in the court of            C. Ineffective Assistance of Appellate Counsel Claims
appeals or a direct appeal to the state supreme court. See id.
at 1208-09.                                                          Petitioner argues that the ineffective assistance of his
                                                                  appellate counsel provides him with the “cause” necessary to
  Approximately four months after the state supreme court’s       excuse the procedural default of his ineffective assistance of
decision, Petitioner finally filed a Murnahan petition (i.e., a   trial counsel claims. In Murray v. Carrier, 477 U.S. 478, 488
motion for delayed reconsideration) with the Hamilton
County Court of Appeals. The court of appeals refused to
consider the petition, finding that there had “been no showing        35
                                                                         Of course, Petitioner’s claims that his trial counsel were ineffective
of good cause to justify the delay, considering that the remedy   for failing to determine that Armstead’s testimony was false and that
of reconsideration in relation to claims of ineffective           Armstead had reached a deal with the prosecution must fail, as we have
assistance of appellate counsel has been discussed by this        already rejected the underlying merits of these claims. The remainder of
                                                                  the preserved claims will be addressed infra.
56   Byrd v. Collins                               No. 96-3209     No. 96-3209                              Byrd v. Collins    57

(1986), the Supreme Court held that constitutionally                 9. The trial court’s penalty phase charge created an
ineffective assistance of counsel may provide grounds for            unconstitutional presumption in favor of the death
“cause” for a procedural default.                                    sentence and effectively made that sentence mandatory in
                                                                     Petitioner’s case.
  Petitioner raises sixteen claims of alleged ineffective
assistance of appellate counsel with respect to his direct           10. The trial court improperly instructed the jury on all
appeal to the Hamilton County Court of Appeals. Petitioner           statutory mitigating factors.
contends that his appellate counsel were ineffective for failing
to raise the following arguments:                                    11. The procedures and instructions of the trial court
                                                                     during voir dire skewed the entire capital proceeding in
  1. The preclusion of mitigation evidence through the               favor of guilty verdicts and a capital sentence.
  ineffective assistance of counsel at Petitioner’s penalty
  hearing violated Petitioner’s right to a reliable sentencing       12. The trial court’s actions during Petitioner’s trial
  determination by an informed jury.                                 denied Petitioner due process of law.
  2. Petitioner was denied his due process, equal                    13. The admission of hearsay evidence violated
  protection, effective assistance of counsel and statutory          Petitioner’s rights of confrontation of witnesses and due
  rights when his trial counsel failed to present evidence           process.
  from an independent psychologist.
                                                                     14. The prosecution put forward argument attacking
  3. Misconduct by the State’s attorneys occurred at the             Petitioner’s failure to testify as proof of his guilt of a
  voir dire phase of Petitioner’s capital trial.                     capital crime and as a basis for his death sentence.
  4. Petitioner was deprived of his right to the effective           15. The trial court improperly instructed the jury on
  assistance of counsel at the guilt-innocence phase of his          reasonable doubt.
  capital trial.
                                                                     16. Erroneous jury instructions at the penalty phase
  5. The trial court improperly instructed the jury on               violated Petitioner’s rights.
  causation.
                                                                     D. Procedural History of Appellate Counsel Claims
  6. Petitioner was deprived of his right to the effective
  assistance of counsel during the mitigation phase of his           Petitioner raised his ineffective assistance of appellate
  trial.                                                           counsel claims in his post-conviction petition. On October 2,
                                                                   1989, the common pleas court held: “A claim of ineffective
  7. The State used a jailhouse informant to secure                assistance of appellate counsel cannot be raised in a R.C.
  Petitioner’s conviction.                                         2953.21 proceeding. State v. Rone, C-820640 (1st Dist., C/A
                                                                   8/31/83).” The Hamilton County Court of Appeals had held
  8. The trial court’s instruction to the jury that its verdict    in Rone, which was decided on August 31, 1983, that
  was only a recommendation diminished the jury’s sense            ineffective assistance of appellate counsel claims could not be
  of responsibility for its decision and misled the jury           pursued in state post-conviction proceedings. See State v.
  concerning its key role in sentencing.                           Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct. App. 1
