       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Frazier v. Huffman                          No. 01-3122
    ELECTRONIC CITATION: 2003 FED App. 0320P (6th Cir.)
                File Name: 03a0320p.06                    Nalbandian, Daniel F. Oberklein, James V. Schuster, TAFT,
                                                          STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David
                                                          Paul Bradley, GALLAGHER, SHARP, FULTON &
UNITED STATES COURT OF APPEALS                            NORMAN, Cleveland, Ohio, for Appellant. Michael L.
                                                          Collyer, OFFICE OF THE ATTORNEY GENERAL OF
              FOR THE SIXTH CIRCUIT                       OHIO, Cleveland, Ohio, Henry G. Appel, OFFICE OF THE
                _________________                         ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
                                                          Appellee.
 RICHARD M. FRAZIER,             X
         Petitioner-Appellant, -                             GILMAN, J., delivered the opinion of the court, in which
                                  -                       CLAY, J., joined. BATCHELDER, J. (pp. 34-42), delivered
                                  -  No. 01-3122          a separate opinion concurring in part and dissenting in part.
           v.                     -
                                   >                                          _________________
                                  ,
 STEPHEN J. HUFFMAN,              -
 Warden,                                                                          OPINION
                                  -                                           _________________
         Respondent-Appellee. -
                                  -                         RONALD LEE GILMAN, Circuit Judge. Tiffany Skiba
                                 N                        was stabbed to death on November 8, 1990. The grand jury
      Appeal from the United States District Court        in Cuyahoga County, Ohio indicted Richard M. Frazier on
      for the Northern District of Ohio at Toledo.        two counts of aggravated murder for the death of Skiba, each
     No. 98-02098—James G. Carr, District Judge.          with three death-penalty specifications, and on one count of
                                                          aggravated burglary. Frazier proceeded to trial in state court
               Argued: October 15, 2002                   on August 5, 1991. The jury convicted him on all counts and
                                                          subsequently recommended that he be sentenced to death.
         Decided and Filed: September 8, 2003             That recommendation was adopted by the trial judge.

 Before: BATCHELDER, CLAY, and GILMAN, Circuit               After exhausting his direct appeals and state postconviction
                   Judges.                                remedies, Frazier sought a writ of habeas corpus in federal
                                                          court pursuant to 28 U.S.C. § 2254. He raised multiple
                  _________________                       grounds for relief, but primarily focused on claims of
                                                          evidentiary error, prosecutorial misconduct, and ineffective
                       COUNSEL                            assistance of counsel. The district court denied Frazier’s
                                                          petition, but granted him a certificate of appealability on all
ARGUED: John B. Nalbandian, TAFT, STETTINIUS &            issues. For the reasons set forth below, we REVERSE in
HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Michael   part the judgment of the district court, GRANT Frazier a
L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF             conditional writ of habeas corpus that will result in the
OHIO, Cleveland, Ohio, for Appellee. ON BRIEF: John B.    vacation of his death sentence unless the state of Ohio

                            1
No. 01-3122                        Frazier v. Huffman      3    4    Frazier v. Huffman                          No. 01-3122

commences a new penalty-phase trial against him within 180         Skiba’s grandfather, Robert Skiba, followed his usual
days from the date that the judgment in this matter becomes     practice on November 8, 1990 when, at 5:00 a.m., he drove
final, and REMAND the case for further proceedings              his wife to work at a nearby hospital and returned home
consistent herewith.                                            fifteen minutes later. Upon his arrival home, his dog was
                                                                barking and looking excitedly at the back door. Robert Skiba
                   I. BACKGROUND                                apparently thought little of this unusual behavior at the time.
                                                                After calling upstairs for his granddaughter at 10:00 a.m. and
A. Factual background                                           receiving no response, however, he went upstairs to check on
                                                                her. Upon entering Tiffany Skiba’s bedroom to rouse her,
   Frazier married Susan Bednarski in 1980, thereby             Robert Skiba was met with the ghastly sight of his
becoming the stepfather of Bednarski’s eight-year-old           granddaughter’s corpse lying in bed, covered in blood and full
daughter from a previous relationship, Tiffany Skiba. In        of puncture wounds.
February of 1988, Bednarski discovered that Skiba was
pregnant. Both women believed that Skiba’s pregnancy was           Police officers who arrived at the scene discovered a broken
the result of sexual abuse by Frazier. Bednarski sought a       steak knife next to Skiba’s body. The knife was part of a set
divorce. Skiba spoke to the local authorities in Medina         belonging to her grandparents. There was blood on the knife,
County, Ohio. In October of 1988, Frazier was indicted in       in the surrounding area, on the stairway heading down from
state court on two counts of rape and two counts involving      the second-floor bedroom, and on the first-floor living room’s
other sex crimes. One month earlier Skiba had given birth to    door frame. The police discovered that the screen on a
a son.                                                          basement window had been removed and that one of the
                                                                panes of glass had been shattered. Although it was normally
  The state criminal court ordered Frazier to submit to a       kept closed, the door leading from the basement into the rest
blood test to determine the paternity of Skiba’s child. He      of the house was open. One of Skiba’s uncles had once
appealed that order to the intermediate state appellate court   shown Frazier how to gain access to the house through the
and to the Ohio Supreme Court. After the Ohio Supreme           basement window when they had been accidentally locked
Court denied Frazier relief, he petitioned the United States    out. The neighboring yard contained footprints that pointed
Supreme Court for a writ of certiorari. Frazier remained free   away from the Skiba residence. A study of the footprints
on bond during the pendency of these proceedings. The           revealed that they were made by someone wearing size nine
United States Supreme Court declined to hear Frazier’s case     or ten boots in a style sold exclusively by K-Mart.
on October 1, 1990. Dates for the blood test and the trial
were then set by the state criminal court.                        Also on the morning of November 8, 1990, Frazier visited
                                                                a medical clinic to get treatment for a one-inch cut on his
  Throughout 1989 and 1990, Skiba was terrified of Frazier.     wrist. The cut was consistent with a stab wound. That night,
She was visibly disturbed any time that she was in his          Frazier drove to the home of his friends, the Shamons, in a car
presence. Skiba confided in one friend her fear that Frazier    that he had rented at the airport two days earlier. The police
was going to kill her. She moved into her grandparents’         arrested him at the Shamons’ home on November 12, 1990.
home and started sleeping with a knife under her pillow.        At the time of his arrest, Frazier had with him a letter from
                                                                the United States Supreme Court informing him that his
                                                                petition for certiorari had been denied. In Frazier’s apartment
No. 01-3122                         Frazier v. Huffman      5    6      Frazier v. Huffman                          No. 01-3122

the police discovered a receipt from K-Mart for a size-nine      what his intent was that morning.” Svekric related the
boot of the same style found imprinted in the neighboring        remainder of the interview as follows:
yard near the Skiba residence.
                                                                     And I asked him a question, “Do you want to tell us
   Frazier was taken to the Medina County jail. He was               exactly what happened on November 8th with Tiffany
transported the next day from the jail to a clinic, where the        Skiba, yes or no,” and his answer was, “Yes, I will tell
long-ordered paternity test was administered. The test               you everything you want to know.” But at that time he
confirmed that Frazier had fathered Skiba’s son.                     also stated that he thinks his attorney should be present
                                                                     ....
   On November 14, 1990, Frazier telephoned Officer James
Svekric from the jail. Frazier had known Svekric for many        Frazier’s jailhouse interview was then terminated.
years, and Svekric was one of the police detectives who had
transported Frazier the previous day. Frazier asked Svekric      B. Procedural background
to bring him Frazier’s telephone book and prescription
medication. Svekric, accompanied by another police officer,        The Cuyahoga County grand jury returned a three-count
visited Frazier that day. According to Svekric, Frazier waived   indictment against Frazier. Count One charged him with the
his right not to incriminate himself and asked the officers      murder of Skiba. The first count contained three death-
“what [they] could do for him, if [they] could get him a         penalty specifications—for felony murder, the murder of a
definite sentence in Cleveland as to a flat time, how much       witness, and murder to escape accounting for another crime.
time he was going to do if he was to plead guilty.” The police   Count Two charged Frazier with the murder of Skiba during
officers told Frazier that although they could tell the          the commission of a burglary. It also contained the three
prosecutor and the judge that Frazier had cooperated, they had   identical death-penalty specifications enumerated in Count
no authority to negotiate a plea agreement. Frazier then         One. The third count charged Frazier with burglary.
returned to his cell.
                                                                    On August 21, 1991, the jury convicted Frazier on all
   A short time later, however, the police officers conducted    counts. The next phase of the trial concerned the appropriate
a second interview with Frazier, this time in the presence of    penalty, at the conclusion of which the jury recommended
the local prosecutor, Tim McGinty, who had been waiting in       that Frazier be sentenced to death. On August 29, 1991, the
an adjacent building. McGinty informed Frazier that he was       trial court adopted that recommendation.
about to bring the matter of Skiba’s death before a grand jury
and that he intended to have Frazier indicted for murder.          Frazier appealed his conviction and sentence without
Frazier offered to provide information about other crimes in     success through the Ohio state courts, both on direct appeal
exchange for an agreement to allow him to plead guilty.          and through a petition for postconviction relief. He then
McGinty replied, however, that in order to establish his         initiated federal proceedings for a writ of habeas corpus
credibility, Frazier would need to provide the details of        pursuant to 28 U.S.C. § 2254 in September of 1998. The
Skiba’s murder. Frazier was then asked whether he intended       district court denied his petition, but granted him a certificate
to kill Skiba when he went to her grandparents’ home on          of appealability on all issues. This timely appeal followed.
November 8, 1990. In Svekric’s recounting, “he shook his
head no, but he did not give us a verbal answer or explain
No. 01-3122                          Frazier v. Huffman         7   8      Frazier v. Huffman                           No. 01-3122

                       II. ANALYSIS                                 extends or unreasonably refuses to extend a legal principle
                                                                    from Supreme Court precedent to a new context.” Campbell,
A. Standard of review                                               260 F.3d at 539.
  The Antiterrorism and Effective Death Penalty Act of 1996           The Supreme Court has declared that “a federal habeas
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,              court making the ‘unreasonable application’ inquiry should
1996), applies to Frazier’s case because he filed his habeas        ask whether the state court’s application of clearly established
corpus petition after the Act’s effective date. Lindh v.            federal law was objectively unreasonable.” Williams, 529
Murphy, 521 U.S. 320, 336 (1997). A federal court is                U.S. at 409. In its elaboration on the meaning of the term
authorized to grant a writ of habeas corpus to a person in          “objectively unreasonable,” the Court stated that “a federal
custody pursuant to a state-court judgment, but only if the         habeas court may not issue the writ simply because that court
adjudication of the claim                                           concludes in its independent judgment that the relevant state-
                                                                    court decision applied clearly established federal law
  (1) resulted in a decision that was contrary to, or               erroneously or incorrectly. Rather, that application must also
  involved an unreasonable application of, clearly                  be unreasonable.” Id. at 411.
  established Federal law, as determined by the Supreme
  Court of the United States; or (2) resulted in a decision           In the present case, the district court applied the standards
  that was based on an unreasonable determination of the            set forth under AEDPA and determined that Frazier was not
  facts in light of the evidence presented in the State court       entitled to habeas relief. We review de novo the district
  proceeding.                                                       court’s denial of Frazier’s petition. Macias v. Makowski, 291
                                                                    F.3d 447, 451 (6th Cir. 2002).
28 U.S.C. § 2254(d). All of Frazier’s claims are governed by
§ 2254(d)(1).                                                       B. Certificate of appealability
  A federal court may grant a writ of habeas corpus under             Before reaching the merits of Frazier’s claims, we address
§ 2254(d)(1)’s “contrary to” clause “if the state court arrives     a procedural problem that has hindered our consideration of
at a conclusion opposite to that reached by [the Supreme]           this appeal. The district court in this case granted a certificate
Court on a question of law or if the state court decides a case     of appealability on all issues, with the following explanation:
differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,               Until such time as such precedent is submitted to me,
412-13 (2000).          Section 2254(d)(1)’s “unreasonable              and, is shown to be applicable to a case at hand, I expect
application” clause provides two additional bases for habeas            that I shall, as I did in this case, grant certificates of
relief. Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir. 2001),           appealability in capital habeas cases as a matter of
cert. denied, 535 U.S. 975 (2002). The first avenue of relief           routine.
occurs if “the state court identifies the correct governing legal         Others may view this as an abdication of
principle from [the Supreme] Court’s decisions but                      responsibility; it is, rather, a manifestation of the
unreasonably applies that principle to the facts . . . .”               possibility of my own fallibility, and concern that I may
Williams, 529 U.S. at 413. Second, relief is available under            have erred. I do not believe that I have erred—but doubt
this provision if the state-court decision “either unreasonably
No. 01-3122                            Frazier v. Huffman        9    10     Frazier v. Huffman                          No. 01-3122

  that I have, no matter how strongly felt, is not certainty          of appealability may issue “only if the applicant has made a
  that I have not.                                                    substantial showing of the denial of a constitutional right,” 28
                                                                      U.S.C. § 2253(c)(2) (emphasis added), and that any such
   This rationale is contrary to our decision in Porterfield v.       certificate “shall indicate which specific issue or issues satisfy
Bell, 258 F.3d 484 (6th Cir. 2001), which was also a capital-         the showing required,” id. § 2253(c)(3) (emphasis added).
murder case. Like here, Porterfield had been granted a
certificate of appealability on all issues. We noted in                  To focus our consideration of the issues in the face of this
Porterfield that such a blanket grant conformed to neither the        blanket certificate of appealability, we asked counsel for
commands of 28 U.S.C. § 2253(c) (providing in part that a             Frazier at oral argument which claims he perceived to be his
“certificate of appealability may issue . . . only if the applicant   strongest. He replied that his primary claims for habeas relief
has made a substantial showing of the denial of a                     were those premised upon the due process right to a
constitutional right . . . [and] shall indicate which specific        fundamentally fair trial and those based upon the ineffective
issue or issues satisfy the showing required”), nor the               assistance of counsel. We agree, particularly in light of the
Supreme Court’s construction of the statute in Slack v.               fact that the district court singled out “the remarkable and
McDaniel, 529 U.S. 473 (2000) (holding that the                       unnecessary misconduct of the prosecutor” as a concern
requirements of § 2253(c) applied regardless of whether the           regarding the petitioner’s right to a fair trial. Accordingly, we
district court rejected a constitutional claim on the merits or       devote our attention to these two issues first.
on procedural grounds). Because a blanket grant
“undermine[s] the gate keeping function of certificates of            C. The right to a fundamentally fair trial
appealability, which ideally should separate the constitutional
claims that merit the close attention of counsel and this court          Frazier alleges that he was denied his due process right to
from those claims that have little or no viability,” and              a fair trial, both because certain evidence was improperly
“because the district court [was] already deeply familiar with        admitted and because of prosecutorial misconduct. “Cases in
the claims raised by petitioner,” we vacated the certificate of       [the Supreme] Court have long proceeded on the premise that
appealability in Porterfield and remanded the matter “in order        the Due Process Clause guarantees the fundamental elements
to permit the court to engage in the reasoned assessment of           of fairness in a criminal trial.” Spencer v. Texas, 385 U.S.
each . . . claim as required by Slack.” 258 F.3d at 487.              554, 563-64 (1967).

  The language of § 2253(c) is mandatory. It was therefore              1.    Due process and evidentiary matters
error for the district court to issue a blanket certificate of
appealability without any analysis. We recognize, however,               Frazier’s first contention is that the trial court improperly
that the district court rendered its decision before our opinion      admitted (1) cumulative, gruesome photograhs of Skiba’s
in Porterfield. In contrast to Porterfield, moreover, both            corpse, (2) evidence that Skiba was terrified of Frazier, and
parties in the present case have already briefed the merits of        (3) evidence that Frazier raped Skiba. To the extent that this
Frazier’s claims, so that vacating the certificate of                 is a challenge to the technical correctness of these evidentiary
appealability would “further delay an already lengthy                 rulings, we lack authority to consider the challenge. Coleman
process.” 285 F.3d at 485. For these reasons, we will excuse          v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001) (“A state court
the procedural error of the district court. This is an                evidentiary ruling will be reviewed by a federal habeas court
appropriate time, however, to reiterate both that a certificate       only if it were so fundamentally unfair as to violate the
No. 01-3122                           Frazier v. Huffman       11    12    Frazier v. Huffman                            No. 01-3122

petitioner’s due process rights.”). Rather, Frazier must             admissible as a present-state-of-mind exception to the hearsay
demonstrate that the state court’s conclusion — that the             rule. Frazier, 652 N.E.2d at 1013. The district court
admission of the challenged evidence did not violate his due         concluded that evidence of Skiba’s fear “supported the
process rights — was unreasonable, as those rights have been         substantial evidence of [Frazier’s] likely motive.” Although
articulated by the Supreme Court.                                    we find that the relationship between Skiba’s fear and
                                                                     Frazier’s motive is tangential at best, we recognize the
  Frazier argues that the admission into evidence of multiple        existence of a logical argument that the relevance of such
photographs of Skiba’s corpse was excessive. He notes that           evidence outweighed its potential prejudice. We are unaware,
the Supreme Court has stated: “In the event that evidence is         moreover, of any Supreme Court precedent that establishes
introduced that is so unduly prejudicial that it renders the trial   that the admission of evidence that a murder victim feared the
fundamentally unfair, the Due Process Clause of the                  defendant violates the defendant’s due process rights.
Fourteenth Amendment provides a mechanism for relief.”               Frazier’s assertion that “[s]everal states have held
Payne v. Tennessee, 501 U.S. 808, 825 (1991).                        unambiguously that the state of mind of a murder victim is
                                                                     irrelevant to the issue of the identity of the perpetrator” has no
  The Ohio Supreme Court directly addressed this                     bearing on our task under AEDPA. We therefore conclude
evidentiary issue, concluding that the multiple photographs          that the state courts’ resolution of this matter was not an
“were introduced during the coroner’s testimony to illustrate        unreasonable application of federal law.
the testimony,” that “[e]ach photograph presents a different
perspective of the victim,” and that the photographs “were             The third category of evidence challenged by Frazier
used to illustrate” the nature of the encounter that                 concerns his alleged rape of Skiba and paternity of her child.
immediately preceded Skiba’s death. State v. Frazier, 652            He claims that the admission of the evidence without a
N.E.2d 1000, 1010 (Ohio 1995). It ultimately determined that         limiting instruction rendered his trial fundamentally unfair.
the photographs’ “probative value substantially outweigh[ed]         Before reaching the merits of this claim, we must first
the danger of unfair prejudice” to Frazier. Id. We conclude          consider the state’s argument that this challenge was rejected
that the Ohio Supreme Court’s resolution of Frazier’s federal        by the state courts on the basis of state procedural rules.
constitutional claim concerning the admission of multiple
photographs of Skiba’s corpse was not an unreasonable                   A federal court is generally barred from considering an
application of federal law as articulated by the Supreme             issue of federal law arising from the judgment of a state court
Court. See Willingham v. Mullin, 296 F.3d 917, 928-29 (10th          if the state judgment “rests on a state-law ground that is both
Cir. 2002) (refusing to grant relief on a habeas petitioner’s        ‘independent’ of the merits of the federal claim and an
claim that the admission of 22 photos of the victim’s body           ‘adequate’ basis for the [state] court’s decision.” Harris v.
was so unduly prejudicial as to render his trial fundamentally       Reed, 489 U.S. 255, 260 (1989). The adequate-and-
unfair, where the state court provided a reasonable basis for        independent-state-ground doctrine has been applied in
concluding that the photographs’ relevance outweighed the            refusing to address the merits of a federal claim because of
danger of unfair prejudice).                                         violations of state procedural rules, such as the failure to
                                                                     make a timely objection at trial. Id. at 261. An adequate and
  Frazier next contends that the admission of evidence that          independent finding of procedural default will preclude
Skiba feared him rendered his trial fundamentally unfair. In         habeas corpus relief “unless the prisoner can demonstrate
the opinion of the Ohio Supreme Court, such evidence was             cause for the default and actual prejudice as a result of the
No. 01-3122                            Frazier v. Huffman       13    14     Frazier v. Huffman                         No. 01-3122

alleged violation of federal law, or demonstrate that failure to        Turning to the merits of the claim, we agree with the Ohio
consider the claims will result in a fundamental miscarriage          Supreme Court that the evidence was directly relevant to
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).           Frazier’s motive and to the death-penalty specifications. The
                                                                      United States Supreme Court decision upon which Frazier
  In determining whether a procedural default has occurred            relies in pressing this claim held that the introduction of
and, if so, what effect the default will have on federal review       evidence of prior crimes, where relevant to prove death-
of a state conviction, the district court must consider whether       penalty specifications, is not unconstitutional. Spencer v.
(1) a state procedural rule exists that applies to the petitioner’s   Texas, 385 U.S. 554, 568-69 (1967). We therefore conclude
claim, (2) the petitioner failed to comply with the rule, (3) the     that the admission of evidence that Frazier raped Skiba and
state court actually applied the state rule in rejecting the          fathered her child, even without a limiting instruction, was
petitioner’s claim, and (4) the state procedural rule is an           not an unreasonable application of Supreme Court precedent
adequate and independent ground upon which the state can              and did not deprive Frazier of his due process rights.
rely to deny relief. Reynolds v. Berry, 146 F.3d 345, 347 (6th
Cir. 1998). The rule precluding federal habeas corpus review            2.    Due process and prosecutorial misconduct
of claims rejected by the state courts on state procedural
grounds applies only in cases where the rule relied upon by              Frazier’s next contention is that prosecutorial misconduct
the state courts involves a “firmly established and regularly         deprived him of his right to a fair trial. Frazier identifies
followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-         eight examples of what he characterizes as prosecutorial
24 (1991). Furthermore, a procedural default does not bar             misconduct. Some of the conduct that he challenges took
consideration of a federal claim on habeas corpus review              place during the guilt phase of his trial, while other instances
unless the last state court rendering a reasoned opinion in the       occurred during the penalty phase. Our conclusion in Part
case “clearly and expressly states that its judgment rests on a       II.D. below that Frazier must be given a new sentencing
state procedural bar.” Harris, 489 U.S. at 263 (internal              hearing makes it unnecessary for us to consider the alleged
quotation marks omitted).                                             prosecutorial misconduct that occurred during the penalty
                                                                      phase.
   In this case, the Ohio Supreme Court noted that Frazier
failed to object at trial to the omission of a limiting                 None of the alleged prosecutorial misconduct in the guilt
instruction. It therefore analyzed his entitlement to the             phase of the trial impinged upon a particular provision in the
inclusion of such a jury instruction using the “plain-error”          Bill of Rights. The relevant question, therefore, is whether
standard. But the larger issue was whether “the trial court           the prosecutorial conduct “so infected the trial with unfairness
erred by admitting evidence of other crimes committed by              as to make the resulting conviction a denial of due process.”
[Frazier].” Frazier, 652 N.E.2d at 1013. The Ohio Supreme             Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To
Court analyzed the claim on its merits, ultimately finding            decide this question, we first determine whether the conduct
Frazier’s argument to be “without merit.” Id. at 1013, 1014.          about which Frazier complains was indeed improper. United
We therefore conclude that Frazier is not procedurally barred         States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A four-
from presenting the claim that the admission of evidence              factor test is then applicable to any conduct that we find
about his rape of Skiba and the paternity of her child rendered       inappropriate: “(1) whether the conduct and remarks of the
his trial fundamentally unfair.                                       prosecutor tended to mislead the jury or prejudice the
                                                                      defendant; (2) whether the conduct or remarks were isolated
No. 01-3122                          Frazier v. Huffman      15    16   Frazier v. Huffman                           No. 01-3122

or extensive; (3) whether the remarks were deliberately or         is nothing improper about a prosecutor’s reliance on a state
accidentally made; and (4) whether the evidence against the        court’s evidentiary ruling, whether or not the ruling itself was
defendant was strong.” Id.                                         correct.
   Frazier takes issue with the following instances of the            The third instance concerns the prosecutor’s references to
prosecutor’s conduct during the guilt phase of the trial:          Skiba’s character during his closing and rebuttal argument in
(1) using a photograph of Skiba taken before her murder in         the guilt phase of the trial. These references had no relevance
his closing argument, (2) relying on Skiba’s fear of Frazier as    to any matter in issue and were therefore improper. The Ohio
part of the state’s case-in-chief, (3) referring to Skiba’s        Supreme Court reached the same conclusion. Frazier, 652
character during his closing and rebuttal argument, and            N.E.2d at 1015 (commenting that “the prosecutor’s remarks
(4) placing an empty chair before the jury during his closing      were intemperate”). This leads us to the application of the
argument to “represent” Skiba. The first instance, the use of      Carter factors. In this instance, the prosecutor’s remarks
a photograph of Skiba during closing argument, has been            were not limited to an isolated instance. On the other hand,
found by some courts to be within the bounds of acceptable         they did not form the centerpiece of the prosecutor’s
conduct. Nefstad v. Baldwin, No. 94-35714, 1995 WL                 argument. But the prosecutor’s remarks were plainly
520050, at *2-*3 (9th Cir. Sept. 1, 1995) (finding no error by     deliberate. Furthermore, the state’s case was not unusually
the trial court in permitting a “closing argument [wherein] the    strong. The evidence was sufficient to prove the defendant
prosecutor asked the jury to compare a photograph of the           guilty beyond a reasonable doubt, but it was not
victim before the murder with an autopsy photograph of the         overwhelming. There were no witnesses and no confession
victim”); Lowe v. Abrahamson, No. 92-2020, 1995 WL                 (only an ambiguous offer to plead guilty), and the state
150585, at *1-*2 (7th Cir. Apr. 6, 1995) (order) (finding          produced no blood-type or DNA evidence.
“nothing improper” about “the presentation at trial of a
photograph of the murdered victim wearing a hat from his              Whether the references to Skiba’s character tended to
son’s Little League baseball team”). Other courts have found       mislead the jury or prejudice the defendant is more difficult
such photographs of the victim improper. Cargle v. Mullin,         to determine. Although the prosecutor’s remarks did not
317 F.3d 1196, 1223-24 (10th Cir. 2003) (agreeing with the         misstate the evidence, they were in a sense misleading
state court’s determination that the trial court erred in          concerning the law. The prosecutor’s explicit juxtaposition
admitting “a number of photographs of the victims while they       of the defendant’s constitutional rights (like the presumption
were alive” because the photographs were “irrelevant and           of innocence) with the “rights” of the decedent (like “the right
prejudicial”). The state courts in this case determined that the   to go on to college” or “the right to walk down the aisle”)
prosecutor’s use of Skiba’s photograph during closing              suggested to the jury that certain nonexistent rights of the
argument was not improper. In light of the split of authority      decedent somehow balanced or nullified the constitutional
about the propriety of such conduct, we cannot say that the        rights of the defendant. On the other hand, although a defense
state courts’ determination was unreasonable.                      objection to the prosecutor’s remarks was overruled, the trial
                                                                   court correctly instructed the jury on the law, specifically
  The second instance of alleged prosecutorial misconduct          stating: “You must not permit sympathy or bias, prejudice or
concerns the state’s reliance on Skiba’s fear of Frazier as part   favoritism for either side to affect your judgments.”
of its proof. As noted above in Part II.C.1., the state courts
ruled that such evidence was relevant and admissible. There
No. 01-3122                          Frazier v. Huffman      17    18   Frazier v. Huffman                          No. 01-3122

  A similar analysis applies to the fourth and final alleged       a reasonable doubt, the nature and circumstances of the
incident of prosecutorial misconduct during the guilt phase,       offense, the history, character, and background of the
the placing of an empty chair before the jury during the           offender” and seven other factors, including “[w]hether, at the
prosecutor’s closing argument to “represent” Skiba. We             time of committing the offense, the offender, because of a
again agree with the Ohio Supreme Court’s conclusion that          mental disease or defect, lacked substantial capacity to
this conduct was improper. Frazier, 652 N.E.2d at 1015             appreciate the criminality of the offender’s conduct or to
(“We agree with appellant that the use of the empty chair was      conform the offender’s conduct to the requirements of the
excessive.”) It was also deliberate. The empty chair,              law.” Ohio Rev. Code § 2929.04(B). A sentence of death is
however, was not the focus of the prosecutor’s argument, and       appropriate only if the jury is unanimously convinced beyond
the state trial court properly instructed the jury not to be       a reasonable doubt that the aggravating factors outweigh the
influenced by sympathy, bias, or prejudice.                        mitigating factors. Id. § 2929.03(D)(2).
   Were we to consider Frazier’s claim of prosecutorial              The jury had already found Frazier guilty beyond a
misconduct in the first instance, after weighing all of the        reasonable doubt of the death-penalty-specification charges.
pertinent factors, the possibility exists that we might be         Because no mitigation proof was introduced by Frazier at the
persuaded that he was denied a fundamentally fair trial. But       guilt phase of the trial, he was therefore virtually guaranteed
that is not our task. Rather, our inquiry is limited to deciding   a sentence of death unless he could produce sufficient
whether the Ohio Supreme Court’s contrary determination            mitigation evidence at the penalty phase to generate
was an unreasonable application of clearly established federal     reasonable doubt in the mind of at least one juror about
law. Because the direction in which the Carter factors point       whether the aggravating factors outweighed the mitigating
is neither obvious nor unambiguous, we conclude that the           factors. But the sum total of the evidence presented on
Ohio Supreme Court’s resolution of Frazier’s prosecutorial-        Frazier’s behalf during the penalty phase of the trial was the
misconduct claim was not unreasonable. See Macias v.               following unsworn statement: “Ladies and gentlemen, I know
Makowski, 291 F.3d 447, 454 (6th Cir. 2002) (holding that,         you found me guilty, and in the past I have done things that
although the court “might have concluded that the                  were wrong, but I am not guilty of this crime and I am asking
prosecutor’s comments violated [the petitioner’s] due process      you to spare my life.”
rights,” the state court of appeals’s contrary conclusion was
not unreasonable, where two factors weighed in favor of the           The test for establishing constitutionally ineffective
petitioner’s claim and two weighed against it).                    assistance of counsel is two-fold. A defendant must first
                                                                   show that the performance of his or her counsel was “below
D. The right to the effective assistance of counsel                an objective standard of reasonableness.” Strickland, 466 U.S.
                                                                   at 688. In order to avoid second-guessing trial counsel’s
   Frazier’s other major claim is that he was denied his right     strategic decisions, “a court must indulge a strong
to the effective assistance of counsel during the penalty phase    presumption that counsel’s conduct falls within the wide
of the trial, a right guaranteed by the Sixth Amendment to the     range of reasonable professional assistance; that is, the
United States Constitution. Strickland v. Washington, 466          defendant must overcome the presumption that, under the
U.S. 668, 684 (1984). Once a defendant has been convicted          circumstances, the challenged action might be considered
of a capital offense in Ohio, the jury “shall consider, and        sound trial strategy.” Id. at 689 (internal quotation marks
weigh against the aggravating circumstances proved beyond          omitted). The second requirement of an ineffective assistance
No. 01-3122                           Frazier v. Huffman      19    20   Frazier v. Huffman                         No. 01-3122

claim is that “[t]he defendant must show that there is a            because they saw his medical records, yet counsel failed to
reasonable probability that, but for counsel’s unprofessional       investigate the matter or present any evidence regarding the
errors, the result of the proceeding would have been different.     same.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.                      Under Strickland, “strategic choices made after less than
                                                                    complete investigation are reasonable precisely to the extent
  Frazier’s ineffective-assistance claim was rejected by the        that reasonable professional judgments support the limitations
Ohio Court of Appeals on the basis of the first prong of            on investigation.” 466 U.S. at 690-91. This court has
Strickland. The court explained: “From the record, it can           commented when evaluating facts similar to those here that
reasonably be concluded trial counsel were appraised of the         “the inadequacy of the attorney’s investigation . . . was
purported brain injury from their review of medical records;        manifest.” Campbell v. Coyle, 260 F.3d 531, 553 (6th Cir.
however, as a matter of trial strategy counsel deemed this          2001) (distinguishing the facts of Campbell, where trial
avenue of defense unworthy of further pursuit.” State v.            counsel had the defendant evaluated by a mental health
Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.            professional who did not find any mental illness, from those
Dec. 11, 1997).                                                     of Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), where trial
                                                                    counsel had actual notice of the defendant’s mental health
  The “purported brain injury” referred to above is the             problems but failed to investigate them). We do not believe
damage to Frazier’s brain that occurred as the result of a 1987     that any reasonable attorney who saw the medical records
fall from a ladder. Affidavits from postconviction experts on       indicating Frazier’s brain injury would have declined to
this matter indicate that Frazier suffers from a functional brain   investigate the matter. At a bare minimum, a reasonable
impairment. According to one, Frazier has a “significant            attorney would have compared the records with the medical
history for head trauma” to the “frontal lobe” of his brain,        literature on brain damage, elicited information from Frazier
which is “the site of impulse control, social judgment and          himself about the injury and its effects on him, or presented
reasoning.” Frazier himself has described “a change in              the records on Frazier to someone who could competently
decision-making abilities after his head trauma.” These             evaluate them. To do none of these things after seeing
reports also suggest that a correlation could exist between this    Frazier’s medical records was unreasonable.
injury and Frazier’s criminal conduct. The state has not
challenged the contention that Frazier’s trial counsel could           Our conclusion is bolstered by the Supreme Court’s recent
have developed this same information had they conducted a           decision in the capital case of Wiggins v. Smith, 123 S. Ct.
reasonable investigation.                                           2527 (2003). Trial counsel in Wiggins knew from their
                                                                    client’s presentence report that he had lived in “misery as a
  We can conceive of no rational trial strategy that would          youth,” but they did not investigate his life history any
justify the failure of Frazier’s counsel to investigate and         further. Id. at 2536. The Maryland Court of Appeals was of
present evidence of his brain impairment, and to instead rely       the opinion that this performance comported with Strickland,
exclusively on the hope that the jury would spare his life due      but the United States Supreme Court disagreed and held that
to any “residual doubt” about his guilt. This failure was not       the state court’s contrary conclusion was unreasonable. Id. at
due to counsel’s ignorance of Frazier’s brain injury. To the        2538. In Wiggins, as in the present case, “any reasonably
contrary, the Ohio Court of Appeals acknowledged that trial         competent attorney would have realized that pursuing these
counsel were actually aware of Frazier’s brain impairment           leads”—in Wiggins’s case, allusions to his horrible
No. 01-3122                          Frazier v. Huffman      21    22    Frazier v. Huffman                            No. 01-3122

childhood; in Frazier’s, medical records of his brain              above factors, we conclude that Frazier’s trial counsel
injury—“was necessary to making an informed choice among           performed below an objective standard of reasonableness.
possible defenses . . . . Indeed, counsel uncovered no
evidence in their investigation to suggest that a mitigation         The Ohio Court of Appeals, on the other hand, implicitly
case, in its own right, would have been counterproductive, or      held that Frazier’s trial counsel performed at or above an
that further investigation would have been fruitless.” Id. at      objective standard of reasonableness when it opined that “as
2537.                                                              a matter of trial strategy counsel deemed this avenue of
                                                                   defense unworthy of further pursuit.” We have concluded the
   Furthermore, as both this court and the Ohio Supreme            opposite. The question under AEDPA, then, is whether the
Court have noted, residual doubt is not a mitigating factor        state court applied the first prong of Strickland unreasonably,
under Ohio law. Coleman v. Mitchell, 268 F.3d 417, 447 (6th        or only erroneously. See Bell v. Cone, 122 S. Ct. 1843, 1852
Cir. 2001); State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio          (2002) (clarifying that the question of whether a state court’s
1997). This court nevertheless concluded in Scott v. Mitchell,     application of Strickland is unreasonable is conceptually
209 F.3d 854, 881 (6th Cir. 2000), albeit in dicta, that the       distinct from the underlying question of whether counsel’s
pursuit of a residual-doubt strategy in that case was              performance fell short of an objective standard of
reasonable because the defendant’s extensive criminal history      reasonableness).
would have come to light if the jury had heard about his
background. Cf. Abdur’Rahman v. Bell, 226 F.3d 696, 707-             Three factors were cited by the Ohio Court of Appeals in
08 (6th Cir. 2000) (concluding that “trial counsel were            support of its conclusion:
ineffective in failing to further investigate the background of
the accused,” but finding no prejudice where “it probably            1) counsel’s argument to the trial court that a
would not have been the most prudent trial strategy to use           psychologist would be used merely to interpret the
proof of appellant’s history of violent behavior and anti-social     mitigation expert’s findings; 2) counsel’s filing of the
personality disorders at either the guilt or innocence phase or      motion requesting a limitation on references to
at the sentencing phase of the trial”). No such concerns could       mitigation factors to only those upon which appellant
have justified the approach in the present case, however,            ultimately relied; and 3) the thorough and professional
where the jury had already heard considerable evidence about         manner in which counsel conducted appellant’s defense
Frazier’s rape of Skiba.                                             during both the guilt and the penalty phase of appellant’s
                                                                     trial.
  The prosecutor himself aptly summarized the strategy of
Frazier’s trial counsel during the penalty phase. After quoting    Frazier, 1997 WL 764810, at *6. The first two factors,
Frazier’s unsworn denial of guilt, the prosecutor stated:          however, have no relevance in explaining how the strategy
“That’s it. Fifteen seconds of mitigation. Now, we heard a         ultimately pursued by Frazier’s counsel was reasonable.
moment ago about factors of mitigation that you find.              Although the third factor is relevant in determining whether
Apparently they don’t know.” This summary strikes us as            the trial strategy was reasonable, it is largely conclusory and
accurate to the extent that it reflects the fact that Frazier’s    again provides no theory upon which trial counsel’s
counsel failed to offer any evidence during the penalty phase      “strategy” could have been based. We do not believe that it
that is recognized under Ohio law as mitigation. Based on the      is reasonable to infer that a trial strategy, which is on its face
                                                                   irrational and for which no justification has ever been
No. 01-3122                          Frazier v. Huffman      23    24    Frazier v. Huffman                           No. 01-3122

produced, becomes reasonable simply because of “the                  underwent after serving in Vietnam; his drug
thorough and professional manner” in which trial counsel             dependency, which apparently drove him to commit the
otherwise performed.                                                 robbery in the first place; and its effects. . . . Defense
                                                                     counsel advised the jury that the testimony of the experts
   We note, moreover, that the theory of Frazier’s defense           established the existence of mitigating circumstances,
during the guilt phase of his trial was that Frazier did not         and the trial court specifically instructed the jury that
commit the murder. He presented no insanity or diminished            evidence of a mental disease or defect insufficient to
capacity defense. The jury therefore did not hear any                establish a criminal defense could be considered in
evidence about Frazier’s brain injury during the guilt phase of      mitigation.
the trial. Indeed, it heard no evidence whatsoever during the
guilt phase of the trial that could bear on the issue of           Id. Frazier’s counsel, in contrast, introduced absolutely no
mitigation. As the prosecutor accurately commented at the          mitigating evidence during the guilt phase of the trial.
opening of the penalty phase: “The State’s job is over. The
proof of the aggravating circumstances here is monumental,           In sum, no reason at all has been adduced to justify the
unrebutted, and it is no mere allegation any longer. It is fact,   failure of Frazier’s trial counsel to investigate and present
since the conclusion of this case. There has been absolutely       evidence of his brain impairment, and to instead rely
zero, zilch, nil evidence of mitigation.” This being the           exclusively on an argument of residual doubt. The state court
situation, it appears to us that competent trial counsel for       did not articulate one. Nor can we fathom one. Absent any
Frazier would have realized that their client had everything to    reason to explain or justify such a trial strategy, we conclude
gain and nothing to lose by introducing evidence of his brain      that the state court’s determination that Frazier’s trial counsel
injury at the penalty phase of the case. Yet they sat on their     had performed in a competent manner during the penalty
hands.                                                             phase was not simply erroneous, but unreasonable. See
                                                                   Wiggins, 123 S. Ct. at 2538 (rejecting as unreasonable a state
   The instant case, therefore, is easily distinguishable from     court’s determination that trial counsel performed adequately
the ruling in Bell, where the defendant’s trial counsel also       where, although no trial strategy could be articulated to justify
introduced no evidence during the penalty phase of the trial.      counsel’s unreasonable failure to investigate and present
122 S. Ct. at 1848. The state court concluded that this trial      evidence of their client’s terrible childhood, the state court
strategy passed muster under Strickland, and the Supreme           “merely assumed that the investigation was adequate”).
Court held that the state court’s conclusion was not
unreasonable. Id. at 1853-54. Crucial to this determination,         Habeas relief is thus warranted if Frazier can show that
however, was the fact that the defendant had already               there is a reasonable probability that, but for his counsel’s
introduced his best mitigation evidence during the guilt phase     deficient performance, the result of the penalty phase would
of the trial:                                                      have been different. See id. at *16 (“In order for counsel’s
                                                                   performance to constitute a Sixth Amendment violation,
  Because the defense’s theory at the guilt phase was not          petitioner must show that counsel’s failures prejudiced his
  guilty by reason of insanity, counsel was able to put            defense. . . . [O]ur review is not circumscribed by a state
  before the jury extensive testimony about what he                court conclusion with respect to prejudice, as neither of the
  believed to be the most compelling mitigating evidence           state courts below reached this prong of the Strickland
  in the case—evidence regarding the change his client             analysis.”). To make this showing, Frazier must direct us to
No. 01-3122                         Frazier v. Huffman      25    26   Frazier v. Huffman                          No. 01-3122

mitigating evidence that could have been presented and that         In concluding that Frazier had not shown prejudice, the
is sufficient to undermine our confidence in the outcome of       district court observed in a footnote “that the evidence of
the penalty phase. Strickland v. Washington, 466 U.S. 668,        record, in addition to enabling the jury to find the petitioner
694 (1984). Furthermore, AEDPA requires Frazier to have           guilty beyond a reasonable doubt, shows that he acted with
developed the factual bases for his claims during                 deliberation and forethought . . . . These acts do not manifest
postconviction proceedings in state court. Alley v. Bell, 307     impulsive or uncontrolled behavior.” This analysis, however,
F.3d 380, 386 (6th Cir. 2002) (“These rules apply both to         does not account for the probability that the jury would find
entirely new legal claims and new factual bases for relief; for   that a murderer who suffers from a functional brain
a claim to be considered exhausted, the habeas petitioner must    impairment is less morally culpable than one who does not,
have fairly presented to the state courts the substance of his    even if the brain impairment did not “cause” Frazier to
federal habeas claim.”) (internal quotation marks omitted).       murder Skiba.
   We agree with the state that Frazier failed to develop any        Indeed, we think that the circumstances of the crime were
facts concerning his general history, character, and              amenable to such mitigating evidence. Competent trial
background in the state postconviction proceedings.               counsel could have pointed out, for example, that the blood-
Accordingly, we cannot consider the facts that Frazier was        stained, broken knife found beside Skiba’s corpse came from
abandoned as a child or that he has an abnormal response to       her grandparents’ silverware, and that Skiba had been
stress. The state concedes, however, that Frazier presented       sleeping with a knife under her pillow. Furthermore, during
evidence concerning his brain injury to the state courts during   the jailhouse questioning of Frazier on November 14, 1990,
the postconviction proceedings. Although information about        the police officers and prosecutor did not ask Frazier whether
the nature and severity of the injury was less thoroughly         he murdered Skiba. They asked, instead, whether he intended
developed in those proceedings than it is now, sufficient facts   to kill her when he went to her grandparents’ home on the
were presented to indicate the existence of evidence              morning of the murder. Frazier shook his head no in response
concerning Frazier’s brain injury that could have been            to that question. Trial counsel could thus have depicted a
developed and presented to the jury during the penalty phase.     scenario in which Frazier went unarmed to Skiba’s
                                                                  grandparents’ home to confront or threaten her, not to kill.
   We must therefore examine whether the existence of this        But when he encountered the knife-wielding Skiba, Frazier
evidence is sufficient to undermine our confidence in the         succumbed to the stress of the moment, grabbed the knife
result of the penalty-phase proceeding. Frazier’s trial counsel   from her hands, and wildly stabbed Skiba far more times than
presented only his unsworn denial of guilt, which does not        would have been necessary to kill her.
amount to mitigating circumstances under Ohio law. This
virtually assured him a sentence of death. Had trial counsel’s      Such a scenario fits the facts of the crime and is made
performance not been deficient, the jury could have heard         plausible by the existence of a functional brain impairment,
evidence of Frazier’s fall from a ladder and associated brain     which, although it might not have turned Frazier into a cold
injury, which could have correlated with his criminal conduct.    and calculating murderer, could have impaired his ability to
Such evidence would have constituted mitigating                   deal with stressful or emotional situations, even ones of his
circumstances under Ohio law.             Ohio Rev. Code          own making. This is but one example of how competent trial
§ 2929.04(B).                                                     counsel might have utilized the evidence of Frazier’s
                                                                  functional brain impairment to generate reasonable doubt that
No. 01-3122                           Frazier v. Huffman       27    28   Frazier v. Huffman                          No. 01-3122

the aggravating circumstances outweighed the mitigating              dissent, the Ohio Court of Appeals never reached the merits
circumstances in the present case. We are by no means                because it held that the claim was barred by the state-law
suggesting that the presentation of such evidence and                doctrine of res judicata. (Id.)
argument would have assured Frazier the avoidance of the
death penalty, but we are saying that this outcome is within           This will surely come as a surprise to the state, which
the realm of reasonable probability as defined in Strickland.        (1) conceded in its brief that “Frazier did present his ‘brain
466 U.S. at 694.                                                     damage’ claim to the state courts,” and (2) then proceeded to
                                                                     argue that “the Ohio court’s finding that trial counsel acted
   As the Supreme Court observed in Williams v. Taylor, 529          competently in this regard is not an unreasonable application
U.S. 362, 398 (2000): “Mitigating evidence unrelated to              of Strickland.” We therefore believe that the dissent
dangerousness may alter the jury’s selection of penalty, even        mischaracterizes the state’s argument by asserting that the
if it does not undermine . . . the prosecution’s death-eligibility   state raised a procedural-default defense to every instance of
case.” In Williams, the Court recognized that “the reality that      ineffective assistance alleged by Frazier. Instead, the state
[the defendant] was ‘borderline mentally retarded[]’ might           made clear its position that Frazier had forfeited any
well have influenced the jury’s appraisal of his moral               ineffective-assistance claim premised upon his abandonment
culpability.” Id. We conclude that the same is true here. Had        as a child or his abnormal response to stress, and that his
the jurors been confronted with the mitigating evidence of           preservation of the claim based upon his brain damage did not
Frazier’s brain injury, the probability that at least one juror      permit him to revive his other instances of ineffective
would not have decided that the aggravating circumstances of         assistance.
the case outweighed the mitigating circumstances beyond a
reasonable doubt “is a probability sufficient to undermine              As the above-quoted language demonstrates, however, the
confidence in the outcome.” Strickland, 466 U.S. at 694; see         state did not contend that Frazier procedurally defaulted his
also Wiggins v. Smith, 123 S. Ct. 2527, 2543 (2003) (“Had            ineffective-assistance claim based upon his counsel’s failure
the jury been able to place petitioner’s excruciating life           to investigate and present evidence of his brain damage. The
history on the mitigating side of the scale, there is a              state’s failure to raise the issue of procedural default with
reasonable probability that at least one juror would have            respect to this instance of ineffective assistance is itself
struck a different balance.”); Ohio Rev. Code § 2929.03(D)(2)        sufficient to dispense with our consideration of the question.
(requiring jury unanimity for the imposition of a death              “A court of appeals is not ‘required’ to raise the issue of
sentence). We therefore hold that Frazier has established that       procedural default sua sponte.” Trest v. Cain, 522 U.S. 87,
his right to the effective assistance of counsel was violated at     89 (1997).
the penalty phase of his trial, and that the state court’s
conclusion to the contrary is an unreasonable application of           Even if the state had not waived its procedural-default
clearly established Supreme Court precedent.                         defense, moreover, we do not believe that the defense would
                                                                     be applicable in this case. “[A] procedural default does not
  The dissent does not quibble with the foregoing analysis on        bar consideration of a federal claim on either direct or habeas
the merits. It contends instead that “Frazier’s claim of             review unless the last state court rendering a judgment in the
ineffective assistance of counsel is procedurally defaulted and      case clearly and expressly states that its judgment rests on a
this court consequently has no business considering the merits       state procedural bar.” Harris v. Reed, 489 U.S. 255, 263
of that claim.” (Dissenting Op. at 34) According to the              (1989) (internal quotation marks omitted). Contrary to the
No. 01-3122                         Frazier v. Huffman      29    30    Frazier v. Huffman                            No. 01-3122

dissent’s interpretation of the discussion by the Ohio Court of   injury” does not in and of itself establish ineffective
Appeals, we find no clear and express statement in the            assistance of counsel. We thus conclude that the dissent’s
opinion that the state procedural doctrine of res judicata was    reading of the decision by the Ohio Court of Appeals is
the basis for the decision.                                       plausible, but that it is neither the only nor the best
                                                                  interpretation.
  The Ohio Court of Appeals concluded its analysis of
Frazier’s ineffective-assistance claim as follows:                  The Ohio Court of Appeals’s decision also contains no
                                                                  express statement that its conclusion on the merits of
  In view of the fact that appellant had the assistance of at     Frazier’s ineffective-assistance claim is an alternative
  least three experienced attorneys during all phases of the      holding. This contrasts with that court’s disposition of
  trial proceedings, and mindful that a reviewing court will      another argument raised by Frazier concerning “the trial
  not second-guess what are essentially matters of trial          court’s failure to grant appellant’s motion for a psychological
  strategy, neither the record nor appellant’s evidence           expert in mitigation,” as to which the appellate court
  provided dehors the record supported his claim.                 specifically stated that “the trial court properly applied the
                                                                  doctrine of res judicata.” Frazier, 1997 WL 764810, at *6.
Frazier, 1997 WL 764810, at *6. We do not believe that the
above statement can be fairly characterized as a determination      In sum, the state did not raise the issue of procedural
that Frazier had attempted to present evidence that should        default with respect to the “brain damage” claim by Frazier
have been presented on direct appeal. Rather, the Ohio            upon which we grant relief. Alternatively, we do not believe
court’s conclusion goes to the merits of Frazier’s claim.         that the Ohio Court of Appeals clearly and expressly rested its
                                                                  decision regarding this claim on an independent state
   Disposing of Frazier’s ineffective-assistance claim on the     procedural ground. We are therefore unpersuaded by the
merits was also sensible as a matter of state law. The Ohio       thoughtful argument of the dissent.
Supreme Court has held that “[w]here defendant, represented
by new counsel upon direct appeal, fails to raise therein the     E. Remaining claims
issue of competent trial counsel and said issue could fairly
have been determined without resort to evidence dehors the          Frazier advances sixteen other claims on appeal that merit
record, res judicata is a proper basis for dismissing             substantially less discussion. Having concluded that the
defendant’s petition for postconviction relief.” State v. Cole,   penalty phase of Frazier’s trial was constitutionally defective,
443 N.E.2d 169, 170 (Ohio 1982) (syllabus). According to          we have no need to consider any other arguments concerning
the dissent, the Ohio Court of Appeals decided that Frazier’s     that portion of the trial. We therefore will not address
claim was barred by res judicata after concluding that the        Frazier’s claim that he was entitled to the appointment of an
evidence provided by his postconviction experts was not new       independent psychological expert for the penalty phase, or his
because trial counsel had been “appraised of the purported        claim that the trial court’s instruction to the jury at the penalty
brain injury.” (Dissenting Op. at 36 (quoting Frazier, 1997       phase was unconstitutional.
WL 764810, at *6)) Such a decision, however, would have
been a mistaken application of Cole, because, as our own            Of the remaining fourteen claims, the only one that
analysis of Frazier’s claim demonstrates, the simple fact that    deserves further discussion by this court is Frazier’s argument
trial counsel “had been appraised of the purported brain          that his rights under the Ex Post Facto Clause, U.S. Const.
No. 01-3122                            Frazier v. Huffman       31    32    Frazier v. Huffman                           No. 01-3122

art. I, § 9, cl. 3, were violated. As detailed in Part I.A. above,    counts in construing the Ohio Rules of Evidence. See
Frazier, while in jail and without a lawyer, requested and            Frazier, 652 N.E.2d at 1012 (“[W]e concur with the lower
received a meeting with two police officers and Prosecutor            courts in their determination that the interview that occurred
McGinty on November 14, 1990. Frazier essentially offered             on November 14, 1990 was simply not a plea discussion. We
to plead guilty to the rape and murder of Skiba in exchange           would reach the same result regardless of which version of
for a definite prison term. That offer played prominently in          Evid. R. 410 we applied.”) (emphasis omitted).
the state’s presentation of its case. Frazier argues that the
admission of evidence concerning his offer was made                      We add, moreover, that the Ex Post Facto Clause is not
possible only by a change in the Ohio rules of evidence that          implicated by the change to Rule 410. Frazier argues that the
occurred after the offense but prior to trial, resulting in a         Clause is violated by “[e]very law that alters the legal rules of
violation of the Ex Post Facto Clause.                                evidence, and receives less, or different testimony, than the
                                                                      law required at the time of the commission of the offence, in
  In November of 1990, when Skiba was murdered, Rule 410              order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.)
of the Ohio Rules of Evidence provided that evidence of “an           386, 390 (1798) (opinion of Chase, J.). But the change to
offer to plead guilty or no contest to the crime charged or to        Rule 410 did not alter the quantum of evidence necessary to
any other crime, or statements made in connection with, and           convict Frazier. Rather, it expanded the range of admissible
relevant to, any of the foregoing . . . offers, is not admissible     testimony. The Supreme Court explained the difference over
in any . . . criminal proceeding against the person who made          a century ago:
the offer.” Rule 410 was revised in July of 1991. The revised
version, in effect during Frazier’s trial, prohibited the               Statutes which simply enlarge the class of persons who
introduction of evidence concerning “[a]ny statement made in            may be competent to testify in criminal cases are not ex
the course of plea discussions in which counsel for the                 post facto in their application to prosecutions for crimes
prosecuting authority or for the defendant was a participant            committed prior to their passage; for they do not . . . alter
and that do not result in a plea of guilty or that result in a plea     the degree, or lessen the amount or measure, of the proof
of guilty later withdrawn.” Ohio R. Evid. 410(5).                       which was made necessary to conviction when the crime
                                                                        was committed.
   Every court to have considered Frazier’s ex post facto claim
has resolved it by concluding that, because the police officers       Hopt v. Utah, 110 U.S. 574, 589 (1884); see also Carmell v.
and the prosecutor told Frazier that they could not negotiate         Texas, 529 U.S. 513, 542-47 (2000) (explaining the
a plea bargain at that time, no plea discussions took place on        distinction). In addition to falling short under AEDPA,
November 14, 1990. We find this analysis problematic.                 therefore, Frazier’s ex post facto claim fails on the merits.
Although current Rule 410 requires the occurrence of plea
discussions in order to activate the prohibition, former Rule           The district court disposed of Frazier’s thirteen remaining
410 does not. The former rule instead references only “an             claims in a careful and detailed manner. These claims range
offer to plead guilty.” Thus, were we in a position to decide         from the contention that Ohio’s statutory scheme of capital
this question of state law in the first instance, it would seem       punishment is unconstitutional to the argument that the
to us that Frazier’s offer to plead guilty was admissible under       instruction on reasonable doubt given by the trial court was
current Rule 410, but not under former Rule 410. Of course,           constitutionally deficient. Our discussion of these other
it is the contrary judgment of the Ohio Supreme Court that            claims would be duplicative and serve no useful purpose. We
No. 01-3122                          Frazier v. Huffman      33    34    Frazier v. Huffman                            No. 01-3122

therefore adopt the reasoning of the district court as to all of     _____________________________________________
these remaining claims and find them without merit.
                                                                     CONCURRING IN PART, DISSENTING IN PART
                    III. CONCLUSION                                  _____________________________________________
   For all of the reasons set forth above, we REVERSE in             ALICE M. BATCHELDER, Circuit Judge, concurring in
part the judgment of the district court, GRANT Frazier a           part and dissenting in part. The majority entertains the
conditional writ of habeas corpus that will result in the          question of whether Frazier received the effective assistance
vacation of his death sentence unless the state of Ohio            of counsel at the mitigation stage of his trial, despite the fact
commences a new penalty-phase trial against him within 180         that the Ohio courts never reached that question because, they
days from the date that the judgment in this matter becomes        held, Frazier’s claim was barred by the state law doctrine of
final, and REMAND the case for further proceedings                 res judicata. Because Frazier’s claim of ineffective assistance
consistent herewith.                                               of counsel is procedurally defaulted and this court
                                                                   consequently has no business considering the merits of that
                                                                   claim, I respectfully dissent from the majority’s holding in
                                                                   Part II.D of its opinion. To the extent that the claims
                                                                   addressed in Parts II.C and II.E are not waived or
                                                                   procedurally defaulted, I concur in the majority’s treatment of
                                                                   those claims, see 28 U.S.C. § 2254(b)(2) (“An application for
                                                                   a writ of habeas corpus may be denied on the merits,
                                                                   notwithstanding the failure of the applicant to exhaust the
                                                                   remedies available in the courts of the State”), as I do in the
                                                                   remainder of its opinion.
                                                                                                   I
                                                                     Before addressing the legal arguments the majority makes
                                                                   in Part II.D, it is important to understand the treatment of
                                                                   Frazier’s ineffective assistance of counsel claim by the Ohio
                                                                   courts. After his conviction and sentencing in state trial court,
                                                                   Frazier appealed to the Ohio Court of Appeals, where he
                                                                   raised fourteen assignments of error. In none of those
                                                                   assignments did Frazier mention the issue of the effectiveness
                                                                   of his trial counsel, despite the fact that Frazier’s attorneys on
                                                                   appeal were not the same lawyers that represented him at
No. 01-3122                                  Frazier v. Huffman          35     36       Frazier v. Huffman                                  No. 01-3122

trial.1 On appeal by right to the Ohio Supreme Court, Frazier                     been determined without evidence [beyond] the record,
once again failed to raise his claim of ineffective assistance of                 res judicata is a proper basis for dismissing the
counsel.                                                                          defendant’s Petition for Post-Conviction Relief. State v.
                                                                                  Cole (1982), 2 Ohio St. 3d 112.
  After the United States Supreme Court denied Frazier’s
petition for a writ of certiorari, he brought a petition under                  J.A. at 312 (Court of Common Pleas opinion). Because, the
Ohio Rev. Code § 2953.21 (1997),2 to vacate or set aside his                    court held, Frazier’s trial counsel were different from his
sentence in the Cuyahoga County, Ohio, Court of Common                          counsel on direct appeal, “[a]ny [in]effective assistance of
Pleas, and asserted for the first time that his trial counsel were              counsel [claim] concerning trial counsel’s performance
ineffective because they failed to investigate and present                      should have been raised on direct appeal in accordance with
mitigating evidence at the sentencing phase of his trial. The                   Cole.” Id. The court therefore granted the State’s motion to
Court of Common Pleas, without addressing the merits of this                    dismiss, and denied Frazier’s request for an evidentiary
claim, stated as follows:                                                       hearing.
  Consistent with the principles of res judicata, matters                         The Ohio Court of Appeals affirmed. After examining the
  which have been or should have been raised on direct                          “new evidence” of his “organic brain impairment” that Frazier
  appeal may not be considered in post-conviction                               claimed was unavailable at trial,3 the court held that the
  proceedings. State v. Ishmail (1981), 67 Ohio St. 2d 16.                      evidence was not new, and hence did not permit Frazier to
  In addition, where a defendant, represented by new                            overcome the bar of res judicata. The court noted that “it can
  counsel on direct appeal, fails to raise the issue of                         reasonably be concluded trial counsel were appraised of the
  competent trial counsel and said issue could fairly have                      purported brain injury from their review of the medical
                                                                                records; however, as a matter of trial strategy counsel deemed
                                                                                this avenue of defense unworthy of further pursuit.”4 State v.
    1
                                                                                Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.
      Frazier did challenge the constitutionality of several Ohio statutes      Dec. 11, 1997). This conclusion, the court said, was
on the basis that those statutes worked to deprive him of the effective
assistance of counsel. However, he did not argue on direct appeal that his
counsel were ineffective.                                                            3
                                                                                      Ohio law provides that the p rocedural bar of res jud icata does not
    2                                                                           app ly in this context if the petitioner sets forth, in support of his newly
      Ohio Rev. Cod e § 2953 .21 p rovid es, when a prisoner has filed for
post-conviction relief, that “[u]nless the petition and the files and records   raised claim, evidence that was not availab le at trial or o n direc t appeal,
of the case show the petitioner is not entitled to relief, the court shall      and without which the defense could not have been expected to raise the
proceed to a prompt hearing on the issues . . . .” § 2953.21(E) (1997).         new claim. See State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982 ).
However,                                                                             4
     [b]efore granting a hearing on a petition filed under division (A)               The majority agrees with the Ohio courts’ factual finding that
     of this section, the court shall determine whether there are               Frazier’s trial attorneys knew enough about his head injury to present that
     substantive grounds for relief. In making such a determination,            evidence for mitigation purposes: “Although information about the nature
     the court shall consider, in addition to the petition, the                 and severity of the injury was less thoroughly develope d in those [state
     supporting affidavits, and the documentary evidenc e, [and ] all           postconviction] proceed ings than it is now, sufficient facts were presented
     the files and records pertaining to the proceedings against the            to indicate the existence o f evidence concerning Frazier’s brain injury that
     petitioner . . . .                                                         could have bee n developed an d presented to the jury d uring the pena lty
§ 2953 .21(C).                                                                  phase.” Supra, at 25.
No. 01-3122                                     Frazier v. Huffman            37     38   Frazier v. Huffman                           No. 01-3122

“reinforced” by three factors, namely, (1) counsel’s argument                        decision resting on an adequate foundation of state
that a psychologist would merely interpret the findings of the                       substantive law is immune from review in the federal
mitigation expert; (2) counsel’s filing of a motion to limit                         courts”). Instead, this court must first consider whether
reference to mitigating factors; and (3) “the thorough and                           Frazier’s ineffective assistance of counsel claim is properly
professional manner in which counsel conducted appellant’s                           before it prior to discussing the merits of that claim.
defense . . . .”5 Id. These statements by the Ohio Court of
Appeals were not made in the context of discussing the merits                           This issue “concerns the respect that federal courts owe the
of Frazier’s claim of ineffective assistance of trial counsel,                       States and the States’ procedural rules when reviewing the
but in the context of determining whether that ineffective                           claims of state prisoners in federal habeas corpus.” Coleman
assistance claim was barred by the state law doctrine of res                         v. Thompson, 501 U.S. 722, 726 (1991). The Supreme Court
judicata. The Common Pleas Court, without reaching the                               has held that “[w]here the petitioner . . . failed properly to
merits of that claim, had granted the state’s motion to dismiss                      raise his claim on direct review, the writ [of habeas corpus] is
Frazier’s post-conviction petition, holding that the claim was                       available only if the petitioner establishes ‘cause’ for the
barred by res judicata. The Court of Appeals affirmed that                           waiver and shows ‘actual prejudice resulting from the alleged
judgment, mentioning the merits only to the extent of                                . . . violation.’” Reed v. Farley, 512 U.S. 339, 354 (1994)
explaining their conclusion that the “new”evidence of head                           (quoting Wainwright v. Sykes, 433 U.S. at 84). This rule
injury Frazier urged the court to rely on in order to get around                     applies when a state court, relying upon a state rule of law,
the res judicata bar was not new at all.                                             refused on collateral appeal to consider a claim that the
                                                                                     petitioner could have raised on direct review, and the
                                       II                                            petitioner now raises the same claim on habeas appeal.
                                                                                     Teague v. Lane, 489 U.S. 288, 297-98 (1989) (holding that
   Respondent Huffman raises Frazier’s “failure to present the                       petitioner’s claim, which he failed to raise on direct review in
[ineffective assistance of counsel] claim and the facts in                           state court, was procedurally defaulted because the Illinois
support of it to the state courts.” Huffman Br. at 49-50.                            appeals court refused, on the basis of a state law doctrine of
Notwithstanding the Supremacy Clause of the Constitution,                            res judicata, to consider the claim in a state collateral
see Cooper v. Aaron, 358 U.S. 1, 18-19 (1958), federal                               proceeding); Coleman v. Mitchell, 268 F.3d 417, 428-29 (6th
habeas courts are not free to undertake a plenary review of all                      Cir. 2001) (Clay, J.) (holding that Ohio’s doctrine of “res
claims brought pursuant to 28 U.S.C. § 2254. See, e.g.,                              judicata under § 2953.21 [is] an adequate and independent
Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“a state                                state ground justifying foreclosure of constitutional claims”
                                                                                     in habeas proceedings); see generally Coleman v. Thompson,
                                                                                     501 U.S. at 729-30 (“The [independent and adequate state
     5                                                                               ground] doctrine applies to bar federal habeas when a state
       The majo rity corre ctly notes that “[t]he first two facto rs . . . have no   court declined to address a prisoner’s federal claims because
relevance in explaining ho w the strategy ultimately pursued by Frazier’s
counsel was reasonable.” Supra, at 22. But this statement indicates that             the prisoner had failed to meet a state procedural requirement.
the majo rity misund erstand s the legal ana lysis that the Ohio Court of            In these cases, the state judgment rests on independent and
Appeals unde rtook. T he O hio Court of App eals was not see king to                 adequate state procedural grounds.”).
support the “reasonab leness” of the trial counsel’s investigatory tactics (or
lack thereof); rather, the court was explaining the basis for its conclusion           This court’s initial obligation with regard to Frazier’s
that trial counsel was aware of evidence Frazier claimed was not available
at trial, a ma tter to which the first two factors are obviously relevant.
                                                                                     ineffective assistance of counsel claim, which the Ohio courts
No. 01-3122                                Frazier v. Huffman         39     40     Frazier v. Huffman                                  No. 01-3122

held was barred by res judicata, is to determine whether the                 35. “[A] procedural default does not bar consideration of a
claim is in fact procedurally defaulted. First, we must                      federal claim on either direct or habeas review unless the last
consider whether Ohio’s procedural bar to Frazier’s raising                  state court rendering a judgment in the case clearly and
his constitutional claim was “firmly established and regularly               expressly states that its judgment rests on a state procedural
followed” at the time the Ohio Court of Appeals ruled. Ford                  bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (internal
v. Georgia, 498 U.S. 411, 424 (1991). It clearly was. State                  quotations omitted). So long as the state court does so, its
v. Cole, 443 N.E.2d 169 (Ohio 1982), the case on which the                   finding of procedural default precludes consideration by a
Court of Common Pleas relied, and which was subsequently                     federal court even when the state court also analyzed the
cited by the Ohio Court of Appeals as support for its holding                defaulted claim under federal law. Id. at 264 n.10. In this
on res judicata, is not only itself established, but relies                  case, the majority uses as its tenuous springboard to launch
directly upon the 1967 case of State v. Perry, 226 N.E.2d 104                into the merits of Frazier’s ineffective assistance
(Ohio 1967). State v. Perry was cited by this court when we                  claim—without ever addressing whether the claim was
held that “application of res judicata . . . is an adequate and              procedurally defaulted—a patently incorrect characterization
independent state ground for barring habeas review of                        of the Ohio Court of Appeals’ ruling: “Frazier’s ineffective-
constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429.                assistance claim was rejected by the Ohio Court of Appeals
                                                                             on the basis of the first prong of Strickland.” Supra, at 19. In
   Second, we must determine whether the state’s procedural                  fact, as I discussed above, the Ohio Court of Appeals held that
rule barring review is an adequate and independent state                     “the trial court properly applied the doctrine of res judicata.”
ground sufficient to foreclose review of constitutional claims.              Frazier, 1997 WL 764810, at *6. That court never mentioned
I have already cited authority establishing that Ohio’s                      Strickland or any other federal court precedents pertaining to
doctrine of res judicata meets this requirement. See id.; see                ineffective assistance of counsel (with the exception of
also Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003)                    one—Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995)—upon
(reaffirming Coleman v. Mitchell’s holding that Ohio’s                       which Frazier relied but that contained facts “inapposite” to
doctrine of res judicata is an adequate and independent state                those of the present case). Even if the Ohio Court of Appeals
ground).                                                                     had analyzed the merits of Frazier’s ineffective assistance
                                                                             claim, its distinct holding based upon the state law doctrine of
  Third, we must be sure that the last state court to rule on                res judicata is sufficient to bar our consideration of that claim
Frazier’s claim actually disposed of that claim on a state law               unless Frazier can show cause and prejudice.
procedural ground.6        Thompson, 501 U.S. at 734-
                                                                               Finally, we must examine whether the Ohio Court of
                                                                             Appeals, which applied the doctrine of res judicata and
    6                                                                        rejected Frazier’s contention that his claim was based upon
       W hile the Ohio Supreme Court was actually the last state court to    evidence outside the record, actually “discuss[ed] any of that
rule on Frazier’s collateral appeal, the Court summarily “decline[d]
jurisdiction to hear the case and dismisse[d] the appeal as not involving    evidence, ma[d]e specific factual findings on the matter, or
any substantial constitutional question.” J.A. at 345 (Ohio Supreme C ourt   provide[d] any reasoned analysis” to uphold its decision.
order). This court therefore loo ks to the Ohio Court of Appeals decision    Williams v. Coyle, 260 F.3d 684, 696 (6th Cir. 2001).
as the final reasoned state court decision for purposes of considering
procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)
(holding that a federal court looks through an unexplained order “to the
last reasoned decisio n,” and does not assume that the unexplained order     lifts the prior holding that the claim at issue was procedurally barred).
No. 01-3122                          Frazier v. Huffman      41    42   Frazier v. Huffman                          No. 01-3122

“Without such analysis, we are unwilling to rule that the          conviction of one who is actually innocent, a federal habeas
claim is procedurally barred.” Id. In this case, the Ohio          court may grant the writ even in the absence of a showing of
Court of Appeals discussed the “new” evidence put forth by         cause for the procedural default.” Murray v. Carrier, 477
Frazier, including the affidavit of psychologist Sharon L.         U.S. 478, 496 (1986). The present issue concerns whether
Pearson, who opined that Frazier should have been examined         Frazier was sentenced fairly, and so “the ‘actual innocence’
by a licensed psychologist as part of his mitigation defense.      requirement must focus on those elements that render a
Frazier, 1997 WL 764810, at *6. Moreover, the court                defendant eligible for the death penalty, and not on additional
explained—in the portion of its opinion that the majority          mitigating evidence that was prevented from being introduced
confuses for a Strickland analysis—the basis for its               as a result of a claimed constitutional error.” Sawyer v.
conclusion that Frazier’s trial counsel were aware of Frazier’s    Whitley, 505 U.S. 333, 347 (1992). Since Frazier only claims
head injury and therefore why the evidence dehors the record       that the alleged ineffective assistance of his counsel resulted
was not sufficient to overcome the procedural bar of res           in a failure to present available mitigating evidence at the
judicata. Id. The Ohio Court of Appeals’ analysis was more         sentencing phase, and since the evidence of his brain
than sufficient to comply with the requirements of Williams        impairment does not call into question the jury’s finding of
v. Coyle.                                                          aggravating factors, Frazier cannot use the doctrine of “actual
                                                                   innocence of the death penalty” to excuse his procedural
   Therefore, this court is required to determine whether          default. Id. Moreover, since Frazier does not set forth any
Frazier can show both cause and prejudice for his failure to       evidence which, if believed, might lead a trier of fact to find
comply with Ohio’s procedural rule. Clearly, he cannot.            him innocent of the murder of Tiffany Skiba, he cannot meet
Frazier has not shown any cause for his failure to raise on        Carrier’s actual innocence standard, namely, that the alleged
direct appeal his claim of ineffective assistance of counsel. In   constitutional error probably resulted in the conviction of a
his brief before this court, he fails to address the issue of      defendant who was actually innocent. Schlup v. Delo, 513
procedural default at all, and instead launches directly into a    U.S. 298, 322-27 (1995).
discussion of the merits of his claim. “We . . . require a
prisoner to demonstrate cause for his state-court default of                                    III
any federal claim, and prejudice therefrom, before the federal
habeas court will consider the merits of that claim.” Edwards        All means of circumventing the Ohio courts’ holding that
v. Carpenter, 529 U.S. 446, 451 (2000). Frazier has not even       Frazier’s ineffective assistance claim was barred by res
attempted to make such a demonstration, and any excuse             judicata have been foreclosed; this court therefore has no
Frazier might now present for his failure to raise his             legal authority to consider the merits of that claim. In so
ineffective assistance claim properly on direct appeal is          doing, the majority contravenes clearly established precedent
waived. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153       of the United States Supreme Court and this Circuit, and
(6th Cir. 1996) (citing Fed. R. App. P. 28 and noting that the     “undermine[s] the State’s interest in enforcing its laws.”
court “normally decline[s] to consider issues not raised in the    Coleman v. Thompson, 501 U.S. at 731. I therefore dissent.
appellant’s opening briefs”).
  The one means by which Frazier could bypass the
requirement that he show cause is extraordinary: “where a
constitutional violation has probably resulted in the
