                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0183p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                             Petitioner-Appellant, -
 DARRYL M. DURR,
                                                      -
                                                      -
                                                      -
                                                          No. 00-3353
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                   No. 96-00792—Donald C. Nugent, District Judge.
                                      Argued: April 26, 2006
                                Decided and Filed: May 18, 2007
            Before: SUHRHEINRICH, BATCHELDER, and COLE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New Mexico, for
Appellant. Stephen E. Maher, ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, Ohio,
for Appellee. ON BRIEF: Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New
Mexico, Dennis Lyle Sipe, BUELL & SIPE CO. L.P.A., Marietta, Ohio, for Appellant. Stephen E.
Maher, ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee.
       SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J.,
joined. COLE, J. (p. 21), delivered a separate concurring opinion.
                                       _________________
                                           OPINION
                                       _________________
        SUHRHEINRICH, Circuit Judge. Petitioner-Appellant Darryl Durr, an Ohio death row
inmate, appeals from the order of the United States District Court for the Northern District of Ohio,
Eastern Division, denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On
appeal, Durr challenges the district court’s: (1) procedural default rulings; (2) denial of his Sixth
Amendment claim that the trial court failed to appoint an independent psychologist; (3) denial of
his ineffective assistance of counsel claim; and (4) denial of the sufficiency of evidence claim. For
the reasons that follow, we AFFIRM the opinion of the district court denying Durr’s petition for
a writ of habeas corpus.




                                                 1
No. 00-3353          Durr v. Mitchell                                                           Page 2


                                         I. Background
                                             A. Facts
       On direct appeal, the Ohio Supreme Court made the following findings of fact:
               On January 31, 1988, at approximately 10:50 p.m., Norma Jean O’Nan and
       her husband returned to their home in Elyria and discovered the front door unlocked,
       the lights and television on, and their sixteen-year-old daughter, Angel Vincent,
       missing. Only twenty minutes earlier, Mrs. O’Nan had spoken with her daughter by
       telephone to learn that Angel’s girlfriend, Deborah Mullins, was at her home and that
       Deborah’s boyfriend, appellant Darryl Durr, was expected to arrive later in the
       evening. That was the last chance Mrs. O’Nan would have to speak to her daughter
       alive.
        Mrs. O’Nan testified that Angel was wearing a hot pink sweater, a light pink and white
checkered blouse, hot pink pants, and white tennis shoes when she and her husband left Angel home
alone on the evening of January 31, 1988. After notifying the Elyria Police of Angel’s
disappearance, Mrs. O’Nan searched her home to determine if any of Angel’s belongings were
missing. Although Angel’s pink pants were found, Mrs. O’Nan’s search revealed the following
items missing: an old lavender blanket with a hole in the center, a pair of black acid-washed denim
jeans, Angel’s pink and white checkered blouse, light blue eyeglasses that Angel wore only in her
home, a jean jacket that Angel had borrowed from a friend, an Avon necklace with an “A” charm
attached, a small chain bracelet, an Avon slip-on bracelet, an inexpensive rhinestone ring and a dog
chain that hung from her mirror. Mrs. O’Nan also discovered Angel’s handbag stuffed under her
bed.
               Three or four days later, Mrs. O’Nan confronted Deborah Mullins and the
       appellant regarding the disappearance of her daughter, and was told by the appellant
       that “you know how kids are, she probably ran away.”
                On April 30, 1988, three boys noticed a foul odor coming from two orange
       traffic barrels while playing in Brookside Park. The barrels and been placed open
       end to open end, and were underneath a railroad tie. Upon separating the barrels, the
       boys discovered a severely decomposed female body that had been wrapped in a
       dirty old blanket. A portion of a leg was visible through a large hole in the blanket.
               A deputy coroner testified that the only clothing found on the victim was a
       pink sweater and a pair of white tennis shoes. The pink sweater had been pushed up
       well above the victim’s breast area. An initial external examination determined the
       body to be that of a young white female, who was in an advanced state of
       decomposition. The body was heavily infested with maggots and the body’s eyes
       and ears had been lost. There was also prominent evidence of animal activity about
       the inguinal and vulval regions of the body, and in and about the thighs. According
       to the deputy coroner, the decomposition was consistent with three months exposure.
               After examining the body, the deputy coroner concluded that the cause of
       death was homicidal violence. Since the body was so badly decomposed, the deputy
       coroner could not determine whether ligature marks, scrapes or tears indicating
       strangulation were present. There was no damage noted to the internal cartilaginous
       structures of the neck. The deputy coroner declined, however, to rule out
       strangulation as a cause of death since damage to these structures is not always
       present in young strangulation victims due to the flexibility of these structures. In
No. 00-3353         Durr v. Mitchell                                                           Page 3


      addition, because the body was so severely infested with bacteria, testing for the
      presence of acid phosphates and spermatozoa was inconclusive.
             In September, 1988, after appellant was arrested for two unrelated rapes,
      Deborah Mullins revealed her knowledge of Angel’s disappearance to the Cleveland
      Police Department. As the result of her information, an ankle X-ray obtained from
      Elyria Memorial Hospital, and dental records, the body discovered in Brookside Park
      was determined to be that of Angel Vincent.
              At trial, Deborah Mullins testified that on the evening Angel disappeared
      Deborah had asked the appellant to drive to the house of one of Angel’s friends to
      retrieve a package of cigarettes for Angel. Appellant agreed and left. Shortly
      thereafter, appellant returned to Deborah’s house and, instead of entering through the
      front door, began throwing stones at her upstairs bedroom window and blew his car
      horn for her to come out. Deborah and her baby, who had been fathered by the
      appellant, left the house and entered the appellant’s car where the appellant
      brandished a knife toward both of them.
              As the appellant was driving, Deborah heard noises from the back seat and
      after turning around discovered Angel bound on the rear floorboard.
             According to Deborah’s testimony, Angel was wearing black acid-washed
      denim jeans, a jean jacket, and tennis shoes when she was last seen in the back of
      appellant’s car.
             When Deborah asked the appellant why Angel was bound in his car, the
      appellant responded that he intended to “waste” her because “she would tell.” He
      never revealed just what Angel was going to tell.
              After threatening the life of both Deborah and his baby, the appellant let
      Deborah out of his car. He returned to her home three or four hours later. Upon
      returning, appellant told Deborah that he had “wasted” Angel and that she should
      pack her things because they were leaving.
              Appellant drove Deborah and their baby to his wife’s, Janice Durr’s,
      Cleveland apartment. After dropping Deborah and the baby off, the appellant left
      with a duffle bag containing two shovels.
              When appellant returned, he was wet and covered with snow. Upon entering
      the room, appellant placed a ring and bracelet that belonged to Angel on a coffee
      table. As he was falling asleep, appellant told Deborah that he had strangled Angel
      with a dog chain until she “pissed, pooped and shit and made a few gurgling sounds,”
      took her body to a park, wrapped it in a blanket, placed it between two construction
      cones, and left her by some railroad tracks.
             Later that day or the next day, appellant burned a bag of clothing in the
      basement of Janice Durr’s apartment building and asked Deborah to model the black
      acid-washed jeans that Angel had worn on the evening of her abduction.
              The appellant then drove Deborah, Janice Durr and his children to the west
      side of Cleveland where he burned another bag of items, and while driving from
      Cleveland toward Elyria, the appellant threw Angel’s jean jacket out the car window.
No. 00-3353           Durr v. Mitchell                                                           Page 4


               After arriving at Deborah’s home in Elyria, Deborah’s mother informed her
        that Mrs. O’Nan had come over and inquired about Deborah’s knowledge of
        Angels’s disappearance. Deborah testified that appellant threatened her and their
        baby’s life and instructed her to tell Mrs. O’Nan that Angel had been talking about
        running away. Deborah also testified that the appellant took her and their baby to
        Edgewater Park where the appellant threw Angel’s glasses over a cliff into the lake.
        A month or so later, while driving past the Cleveland Zoo, appellant pointed to a
        location and said, “Over there.” When Deborah questioned his statement, the
        appellant replied, “You know what I am talking about.”
State v. Durr, 568 N.E.2d 674, 676-78 (Ohio 1991).
         Following a jury trial, Durr was convicted of aggravated murder, in violation of Ohio Rev.
Code § 2903.01; kidnaping, in violation of § 2905.01; aggravated robbery, in violation of § 2911.01;
and rape, in violation of § 2907.02. The trial court followed the jury’s recommendation and
sentenced Durr to death. On direct appeal, the Ohio Court of Appeals affirmed Durr’s conviction
and sentence, see State v. Durr, No. CR-231670, 1989 WL 147626 (Ohio Ct. App. Dec. 7, 1989)
(unpublished opinion), as did the Ohio Supreme Court, see Durr, 568 N.E.2d 674, cert. denied, 502
U.S. 912 (1991). Durr next sought post-conviction relief in state court, raising fifty claims. After
the trial court denied his request, State v. Durr, No. CR-231670 (Ohio Ct. Com. Pl. July 6, 1993)
(unpublished opinion), Durr appealed to the Ohio Court of Appeals, which affirmed the trial court,
State v. Durr, No. 65958, 1994 WL 463813 (Ohio Ct. App. Aug. 25, 1994) (unpublished opinion).
The Ohio Supreme Court denied Durr’s request for further appeal. See State v. Durr, 644 N.E.2d
1028 (Ohio 1995). The Ohio Court of Appeals also denied his motion for delayed reconsideration,
State v. Durr, No. 57140 (Ohio Ct. App. July 6, 1994) (unpublished opinion), and the Ohio Supreme
Court subsequently affirmed that decision, State v. Durr, 643 N.E.2d 1147 (Ohio 1994). Durr also
filed two additional motions for reconsideration in the Ohio Supreme Court, both of which were
denied. See State v. Durr, 647 N.E.2d 493 (Ohio 1995).
         In June 1996, Durr filed a petition for a writ of habeas corpus in the United States District
Court for the Northern District of Ohio, Eastern Division, asserting fifty-one claims for relief. The
district court denied habeas relief as to all fifty-one claims, and further found no basis upon which
to issue a certificate of appealability. This Court granted a certificate of appealability as to three
issues: First, whether the district court correctly held that habeas claims forty-two (trial court’s
failure to appoint an independent psychologist), and fifty (ineffective assistance of counsel), were
procedurally defaulted. Second, if not procedurally defaulted, whether these claims were properly
denied on the merits. Third, whether the evidence of rape was insufficient to support Durr’s rape
conviction.
                                      II. Standards of Review
       Durr filed his habeas petition after April 24, 1996,and it is therefore governed by the
requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214 (1996).
         Under the AEDPA, a federal court may not grant a writ of habeas corpus unless it concludes
that the state court's adjudication of the claim resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).
Deferential review under AEDPA applies only where the state court has adjudicated a claim on the
merits. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Williams v. Coyle, 260 F.3d 684,
706 (6th Cir. 2001)). When the state court has not assessed the merits of a claim properly raised in
No. 00-3353               Durr v. Mitchell                                                                    Page 5


a habeas petition, the deference due under AEDPA does not apply. Id. In that case, this Court
reviews questions of law and mixed questions of law and fact de novo. Id.
        In an appeal from a denial of habeas relief under the AEDPA, this Court reviews a district
court’s legal conclusions de novo and its factual findings for clear error. Hill v. Hofbauer, 337 F.3d
706, 710 (6th Cir. 2003).
                                                   III. Analysis
                 A. Trial Court’s Failure to Appoint an Independent Psychologist
         Durr contends in habeas claim forty-two that the trial court’s failure to appoint an
independent psychologist to assist trial counsel with preparation for the mitigation phase denied him
a fundamentally fair trial. Initially we must determine whether the district court erred in ruling that
habeas claim forty-two was procedurally defaulted. The district court reasoned that claim forty-two
was procedurally defaulted because Durr knew the claim existed during direct appeal, but failed to
raise it at that time.
        This Court has held that Ohio’s use of the doctrine of res judicata to preclude a merits
determination of a claim raised in post-conviction proceedings that had been, or should have been,
raised on direct appeal is an adequate and independent state ground barring federal habeas review.
Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th
Cir. 2000) ("Ohio has a rule that claims must be raised on direct appeal if possible; otherwise, res
judicata bars their litigation in subsequent state proceedings."). A claim is procedurally defaulted
if there is a state procedural rule that the petitioner failed to follow, that the state courts actually
enforced, and that constitutes an adequate and independent state ground to foreclose review of the
federal constitutional claim. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). However, the
petitioner may excuse the default if he can show cause for failure to follow the rule and prejudice
resulting therefrom. Id.; Poindexter v. Mitchell, 454 F.3d 564, 583 (6th Cir. 2006).
         As the Warden concedes, the district court incorrectly determined that habeas claim forty-
two was procedurally defaulted,        because the state courts adjudicated this claim on the merits on
post-conviction review.1 Although Durr could have presented the claim on direct appeal, because
the state courts did not “actually enforce” the procedural rule requiring presentation of claims on
direct appeal, the procedural default doctrine is not applicable. See Caldwell v. Mississippi, 472
U.S. 320, 327 (1985) (stating that “[t]he mere existence of a basis for a state procedural bar does not
deprive . . . [federal courts] of jurisdiction; the state court must actually have relied on the procedural
bar as an independent basis for its disposition of the case”); Bowling v. Parker, 344 F.3d 487, 499
(6th Cir. 2003) (stating that “there must be unambiguous state-court reliance on a procedural default
for it to block” this Court’s review). Therefore, we review the merits of habeas claim forty-two.
         On Durr’s motion for delayed reconsideration, the Ohio Court of Appeals held that no duty
existed on the part of the trial court to unilaterally appoint an expert on behalf of a defendant who
is charged with a capital offense. Durr, No. 57140, at *13. The district court also found no merit
in this claim, explaining that because trial counsel did not request the appointment of a psychologist,
“the trial court had no basis to determine whether such an expert was ‘reasonably necessary.’”2

         1
            In denying this claim on post-conviction, the Ohio Court of Common Pleas, County of Cuyahoga held that
“[s]ince no expert psychologist was requested, the Court had no duty to appoint one and thereby interfere with defense
trial strategy, and accordingly, this claim is denied.” State v. Durr, No. CR-231670, at *10 (Ohio Ct. Com. Pl. July 6,
1993) (unpublished opinion).
         2
          Durr was represented at his criminal trial by Jay Milano, Thomas M. Shaughnessy, and Michael Pincus.
Future references to “trial counsel” will therefore reference these attorneys.
No. 00-3353           Durr v. Mitchell                                                         Page 6


        Durr is not entitled to relief on this claim. As Durr concedes, trial counsel did not request
the appointment of a psychologist from the trial court. Trial counsel Jerry Milano said, “the most
the Court would pay for any expert is $500.00, [so] we did not attempt to get any other experts, such
as a pathologist, criminalist, psychologist, or mitigation specialist. In my experience, you cannot
even get a qualified expert to talk to you for $500.00.”
         Durr nonetheless argues that the appointment of a psychologist would have provided the jury
with mitigation evidence. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court held that an
indigent defendant is entitled to expert assistance in two scenarios: (1) where the defendant’s sanity
at the time of the offense is likely to be a significant factor at trial; or (2) where the prosecution
submits evidence of a capital defendant’s future dangerousness through the state’s own psychiatrists.
Ake, 470 U.S. at 82-84 (“The risk of error from denial of [expert] assistance, as well as its probable
value, is most predictably at its height when the defendant’s mental condition is seriously in
question. . . . [This] discussion compels a similar conclusion in the context of a capital sentencing
proceeding, when the State presents psychiatric evidence of the defendant’s future dangerousness.”);
see also Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir. 2000) (interpreting Ake to recognize that an
indigent defendant is entitled to psychiatric assistance during sentencing if sanity was a significant
issue at trial or state first presents evidence of future dangerousness).
        Neither Ake scenario applies here. Durr did not allege that there was a significant issue as
to his sanity at the time of trial nor did the prosecutor present evidence concerning his future
dangerousness. In fact, during mitigation, when Durr’s counsel referred to mental disease as a
possible mitigation factor, he expressly stated that “there’s been no evidence of that, so that doesn’t
apply.” Similarly, at no point during the prosecution’s arguments at mitigation was evidence
presented establishing Durr’s future dangerousness. For this reason, the cases Durr cites are
inapposite. Cf. Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir. 1995) (pre-AEDPA case vacating
defendant’s death sentence where the jury did not hear evidence during mitigation that the crime was
the product of defendant’s mental retardation or organic brain disease); Powell v. Collins, 332 F.3d
376, 392 (6th Cir. 2003) (pre-AEDPA case holding that the defendant was entitled to an independent
psychiatrist after presenting sufficient facts that his diminished mental capacity would be his main
defense at trial).
        Thus, the state courts’ decision cannot be contrary to, or an unreasonable application of Ake.
Furthermore, to extend Ake to the facts of this case would force every trial court to appoint experts
for indigent defendants even if not requested, or risk a subsequent challenge to the fairness of the
trial. Such a result is not only an unnecessary expansion of Ake, but actually undermines the Court’s
subsequent discussion of Ake in Caldwell, 472 U.S. at 323 n.1 (“Given that Petitioner offered little
more than undeveloped assertions that the requested assistance would be beneficial, we find no
deprivation of due process in the trial judge’s decision.”); see also Carter v. Mitchell, 443 F.3d 517,
527 (6th Cir. 2006) (holding that to establish ineffective assistance of counsel at mitigation for
failure to obtain a mental health expert, there must be some evidence that the petitioner’s mental
health was at issue), cert. denied, (Jan. 08, 2007) (2007 WL 36643) (No. 06-7399).
        In short, the state court’s decision was not contrary to nor an unreasonable application of
clearly established federal law. The district court did not err in denying the merits of this claim.
                B. Ineffective Assistance of Trial Counsel at Mitigation Phase
         In habeas claim fifty, Durr contends that trial counsel were constitutionally ineffective for
failing to: (1) interview members of his family; (2) obtain experts for mitigation; (3) object to
portions of the State’s closing argument; and (4) object to allegedly improper jury instructions. The
district court held that habeas claim fifty was procedurally defaulted because Durr could have raised,
but failed to raise claim fifty on direct appeal.
No. 00-3353           Durr v. Mitchell                                                           Page 7


         There are two variants of res judicata under Ohio law for collateral attacks on convictions.
Lundgren v. Mitchell, 440 F.3d 754, 765 n.2 (6th Cir. 2006). The first variant is when a petitioner
could have, but failed, to bring a claim on direct review. Id. The second variant occurs in state court
when a claim was actually brought and litigated on direct appeal. Id. This second variant of res
judicata cannot form the basis of federal procedural default, however, because the petitioner did not
fail to comply with a state procedural rule–namely that claims must be raised on direct appeal if
possible. See id.
        As the Warden again concedes, habeas claim fifty is not procedurally defaulted because the
state courts either incorrectly ruled that certain claims were barred by res judicata, or did not
correctly enforce the procedural bar. Claim fifty is comprised of fifteen sub-claims. Although sub-
claims 1, 2, 3(d)-(h), and 4(a) were not raised until post-conviction and delayed reconsideration, and
could have been presented on direct appeal, the Ohio post-conviction courts thought they had been
raised and actually litigated on direct appeal and ruled that these eight sub-claims were barred by
res judicata. This was incorrect because these sub-claims were being raised for the first time in post-
conviction and delayed reconsideration, and had never been ruled on during direct appeal. The Ohio
post-conviction courts’ res judicata ruling was factually incorrect. Thus, it cannot be said that Durr
failed to comply with a state procedural rule that was an “adequate and independent” state ground
under Maupin. See Maupin, 785 F.2d at 138. We may therefore review these sub-claims on the
merits. See Caldwell, 472 U.S. at 327; Baze, 371 F.3d at 320.
        The Ohio state courts correctly held on collateral review that claims: 3(a)-(c), (i), and 4(b)-
(d) were barred by res judicata because they were raised and decided on the merits on direct appeal.
The error arose in the district court, which incorrectly held that these claims were procedurally
defaulted because the Ohio state court held they were barred by res judicata. However, because the
state court relied on the second type of res judicata, the district court erred because this type of res
judicata is not available as a basis for procedural default in federal court. See Lundgren, 440 F.3d
at 765 n.2. We also review these sub-claims on the merits.
        To prove ineffective assistance of counsel, a petitioner must show deficient performance and
resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel renders
ineffective assistance when his performance “[falls] below an objective standard of reasonableness,”
but there is a “strong presumption” that counsel’s performance was professionally reasonable. Id.
at 688-89. Prejudice requires a showing “that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Although this is a high burden for a petitioner to satisfy, it is even higher for a petitioner proceeding
under the AEDPA. That is, a petitioner must do more than show that he would have satisfied
Strickland’s test if his claim were being analyzed in the first instance. He must show that the state
court of appeals applied Strickland to the facts of his case in an “objectively unreasonable manner.”
Bell v. Cone, 535 U.S. 685, 698-99 (2002).
                          1. Failure to Investigate Mitigation Evidence
       Durr argues that trial counsel failed to interview certain family members prior to mitigation
and neglected to obtain his social history. The district court found that Durr failed to show prejudice
because “[s]imply listing the claimed omissions of trial counsel is not enough.” The Ohio courts
never addressed this portion of claim fifty on the merits, and never held it to be procedurally
defaulted. Therefore, this Court applies the less deferential standard of review set forth in Maples.
Maples, 340 F.3d at 436.
       During mitigation, Durr’s trial counsel presented two witnesses: Azriel Johnson, Durr’s
mother, and Janice Durr, Durr’s common law wife. Azriel Johnson gave the jury a historical
perspective of Durr’s early childhood years, academics, work experience, relationships, and marital
No. 00-3353           Durr v. Mitchell                                                          Page 8


history. Durr’s mother testified about his seemingly normal childhood. She described his years at
Catholic school, where he earned average grades and “got along very well,” showing no behavior
problems. She also described her relationship with Durr as “very good,” noting that if Durr had a
problem, he could always come and talk to her about it, no matter how late at night. Azriel further
recounted Durr working two jobs, and how he always kept her grass cut and made sure to shovel the
snow in her driveway. Azriel testified that although Durr never knew his real father, he maintained
a “very good relationship” with his step-father during his early years. She concluded by stating she
loved and believed in Darryl.
        Janice Durr testified about her marriage with Durr, how she initiated the sexual part of their
relationship, the various jobs that Durr maintained during the relationship, and described Durr as
“really sweet” and a “real gentlem[a]n.” She recounted the birth of their son, how Durr stayed with
her and provided whatever she might need, and even recalled how Debbie Mullins became a part
of the Durr family.
        Durr alleges that his trial counsel were ineffective for failing to interview and present
additional testimony from Tammy Jackson, Charles Johnson, Michael Durr, and Denise Durr. In
her affidavit, Tammy Jackson, a former girlfriend, stated that she dated Durr for two years starting
in 1979, and that he “was never disrespectful to [her] in any way.” Charles Johnson, Durr’s
stepfather, described in his affidavit Durr’s early childhood years, stating that Durr called him
“Dad,” followed him everywhere, and as he was growing up “always talked about becoming a
manager.” Like Azriel, Charles also stated that he trusted and believed in Durr, that Azriel made
sure that Durr got good grades in school, and that Durr was a good kid who did things for
everybody. The jury heard similar comments during his mother’s testimony.
         In his affidavit, Michael, Durr’s older brother, discussed how all the Durr children adhered
to strict rules about house chores, telephone use, and playing outside. Michael also recalled how
Durr would run away from home as a child, but never for more than twelve hours. Denise, Durr’s
oldest sister, stated in her affidavit that her father, Willie Durr, used to beat Azriel prior to their
separation, and that Azriel refused to let the children contact Willie or his family. Denise described
that Durr never witnessed any abuse because Willie left the home before Durr’s birth, but that Azriel
became “bitter” for years afterwards. Denise also discussed Durr’s early childhood years, providing
a similar background as Michael’s affidavit and Azriel’s testimony about growing up in the Durr
house. She also added that the family’s needs were met by their mother’s income and that their
mother emphasized the importance of a good education.
        The foregoing testimony is cumulative of that given by Durr’s mother and his common law
wife that Durr grew up in a relatively stable home where rules were enforced, and basic needs were
met. This Court has held the failure to present additional mitigating evidence that is “merely
cumulative” of that already presented does not establish prejudice. Clark v. Mitchell, 425 F.3d 270,
286 (6th Cir. 2005); see also Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (“[I]n order to
establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial
way–in strength and subject matter–from the evidence actually presented at sentencing.”). Cf.
Carter, 443 F.3d at 531 (holding that trial counsel was not ineffective where the additional testimony
of the petitioner’s family members was cumulative, and affidavits themselves described a relatively
stable, although imperfect, family environment). The omitted testimony does not reflect an
upbringing that would give rise to an ineffective assistance of counsel claim.
        Moreover, had Tammy testified, the prosecution could have introduced rebuttal evidence
concerning Durr’s treatment of other women, including his rape convictions. See State v. Raglin,
699 N.E.2d 482, 490 (Ohio 1998) (holding that the appellant was not unfairly prejudiced by state’s
presentation of rebuttal witness, because the “prosecution was entitled to introduce relevant evidence
rebutting the existence of any statutorily defined or other mitigating factor first asserted by the
defense”). This included the fact that only a few weeks before the start of his capital trial, Durr pled
No. 00-3353              Durr v. Mitchell                                                                    Page 9


guilty to rape charges involving two separate incidents involving teenage girls. One of these rapes
took place just one quarter of a mile from where the body of Angel Vincent was found.
        Trial counsel conducted a reasonable investigation by interviewing and presenting the two
people who appear to know more about Durr than anyone else: Azriel, his mother, and Janice, his
ex-wife, and presenting Durr as basically a good person. Taken together, the additional affidavits
present nothing new that “would have stood out to the jury in such a way as to change the
calculation the jury previously made when weighing the aggravating and mitigating circumstances
of the murder.” Hill, 400 F.3d at 319. Durr fails to show error under either prong of Strickland.
The district court correctly rejected this claim. This claim is denied.
                                 2. Failure to Obtain Necessary Experts
        Durr claims that trial counsel rendered ineffective assistance by failing to obtain all
necessary competent experts; specifically a social worker, an independent psychologist, and an
expert on cross-cultural issues. The district court rejected the merits of this claim, explaining that
trial counsel knew enough about Durr’s background to make a tactical decision that the risk of
having the experts testify outweighed the potential benefit. This claim was never addressed by the
Ohio courts on the merits, so we apply the less deferential standard of review set forth in Maples.
        Durr contends that the failure to retain a social worker resulted in the absence of a
comprehensive and thorough psychosocial history, making it impossible for counsel to understand,
develop, and present evidence in mitigation to the jury, or to make reasonable and informed
decisions about Durr. In support, Durr submitted the affidavit of Jane Core, the director of the
mitigation section of the Ohio Public Defender Commission. Core’s affidavit, however, contains
no analysis of Durr and fails to mention any facts of his case. Rather, Core only describes the role
of a mitigation specialist and how defense counsel use these experts in the typical death penalty
case. The affidavit does not even discuss the potential effect such an expert would have had on the
jury’s decision to return a death sentence or not. Durr fails to show how the absence of this expert
resulted in prejudice under Strickland.
         Durr also submitted the affidavit of Dr. James Eisenberg, a psychologist. Dr. Eisenberg
claimed that an independent psychologist’s testimony during mitigation3would have provided the
jury with a mitigating factor under Ohio Rev. Code § 2929.04(B)(7) due to “Durr’s lack of
appropriate role models, [the] absence of a biological father, [and having] an emotionally isolated
family . . . .” Dr. Eisenberg claimed that Durr grew up in a home with inconsistent discipline and
little supervision. He also claimed that the jury had no understanding of Durr’s underlying
psychological issues.
         Dr. Eisenberg’s conclusions are contradicted by the affidavits of Durr’s family members.
Contrary to Dr. Eisenberg’s assertion that the Durr children received inadequate discipline, Denise
Durr stated in her affidavit that “house rules were strictly enforced. Punishment was meted out by
spanking, or pinching when [Azriel] was too pregnant to spank . . . . Overnight stays were
prohibited, even with relatives.” Further, although Dr. Eisenberg claimed that the Durr children had
little supervision, Denise stated that Azriel “spent her days off taking us [children] to ice shows and
the movies.”
        Michael’s affidavit undermines Dr. Eisenberg’s assertions that the Durr family was
“emotionally isolated,” stating that “[m]y mother worked a floating schedule, but always seemed
to have time for her children.” Also, Charles Johnson stated in his affidavit that Durr “followed me


         3
         “Any other factors that are relevant to the issue of whether the offender should be sentenced to death.” Ohio
Rev. Code § 2929.04(B)(7).
No. 00-3353           Durr v. Mitchell                                                         Page 10


everywhere” and “called me Dad,” contrary to Dr. Eisenberg’s conclusion that Durr lacked an
appropriate father figure. Durr himself admitted to having a father figure, stating that “[t]he ‘father
figure’ in my life was Mr. Paul,” referring to the biological father of Durr’s younger brother, Milton.
         More importantly, Dr. Eisenberg did not find Durr to have any psychological problems. In
fact, Dr. Eisenberg stated in his report that “[t]he clinical interview and the psychological testing do
not indicate the presence of an underlying mental disorder.” Counsel then cannot be faulted for
failing to present evidence that apparently does not exist. See Lorraine v. Coyle, 291 F.3d 416, 439
(6th Cir. 2002) (holding that counsel’s failure to discover evidence of mental disease after pursuing
false leads was not ineffective under Strickland). Thus, Durr cannot demonstrate that counsel was
deficient for failing to present Dr. Eisenberg’s testimony.
        Finally, Durr argues that counsel should have retained an expert on cross-cultural issues,
submitting the affidavit of Dr. Judith Skillings in support. Durr claims that Dr. Skillings would have
given the jurors a better explanation into the cross-cultural issues Durr faced – such as explaining
to the jury some of the reasons that Durr was drawn to white women. However, Dr. Skillings’
affidavit merely speculates on the impact racism had on the jury:
             In my opinion, the jury should have received an explanation of who Darryl
       Durr was, and been forced to turn the color of the case around. If Darryl had been
       white, and Janice and Debby African-American, it is doubtful that Debby’s
       uncorroborated accusations would have been given much weight.
    Phrases such as “in my opinion” or “it is doubtful” do not establish prejudice under Strickland.
See Strickland, 466 U.S. at 693 (“It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.”). Again, Durr fails to show prejudice.
         In sum, we agree with the district court that the background information provided by the
experts’ affidavits would have “open[ed] an indeniable Pandora’s box allowing the jury to hear
about [Durr’s] prior record and anything and everything about [his] life.” Given the lack of
mitigating evidence available in this case, and the likelihood that the testimony of Durr’s experts
would have done more harm than good, the decision not to retain experts was a sound one. Not only
is there no prejudice, but trial counsels’ decision appears to be very prudent given the circumstances.
This claim is denied.
               3. Failure to Object to Portions of the State’s Closing Argument
         Durr contends that trial counsel should have objected to the following instances of
prosecutorial misconduct during the prosecutor’s closing argument for the penalty phase: (a) listing
of all statutory mitigating factors on a blackboard; (b) commenting about Durr’s statement being
unsworn; (c) discussing all of the potential mitigating factors; (d) comparing civil and criminal law;
(e) referring to Durr’s prior convictions; (f) stating that society demanded the death penalty for Durr;
(g) asserting his personal knowledge and belief that Durr deserved the death penalty; (h) stating that
there were younger people on death row; and (i) arguing non-statutory aggravating circumstances,
including the facts of the crime, the lack of remorse, and the photographs admitted into evidence.
The district court found no merit to this sub-claim. The Ohio courts addressed some, but not all, of
these sub-claims on the merits. We address each sub-claim in turn, except for sub-claim (b), which
we will address last.
       The relevant question in analyzing a claim for prosecutorial misconduct on habeas review
is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden , 477 U.S. at 181 (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). To satisfy this standard, the conduct must be both improper and flagrant.
Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006) (citing Bates v. Bell, 402 F.3d 635, 641 (6th
No. 00-3353            Durr v. Mitchell                                                          Page 11


Cir.), cert. denied, 126 S.Ct. 163 (2005)), cert. denied, 127 S. Ct. 1376 (2007). Conduct is improper
if made “to incite the passions and prejudices of the jurors . . . .” United States v. Solivan, 937 F.2d
1146, 1151 (6th Cir. 1991). If conduct is found to be improper, four factors are then considered to
determine flagrancy: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury
or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the
remarks were deliberately or accidentally made; and (4) the total strength of the evidence against
the defendant.” Bates, 402 F.3d. at 641.
       In a trial of any size, numerous potentially objectionable events occur. "[T]he Constitution
does not insure that defense counsel will recognize and raise every conceivable constitutional
claim." Lundgren, 440 F.3d at 774 (quoting Engle v. Isaac, 456 U.S. 107, 134 (1982)).
        [A]ny single failure to object usually cannot be said to have been error unless the
        evidence sought is so prejudicial to a client that failure to object essentially defaults
        the case to the state. Otherwise, defense counsel must so consistently fail to use
        objections, despite numerous and clear reasons for doing so, that counsel’s failure
        cannot reasonably have been said to have been part of a trial strategy or tactical
        choice. See Hodge v. Hurley, 426 F.3d 368, 376 (6th Cir. 2005) ("[C]ounsel's failure
        to object to any of the numerous improper statements in the prosecution's closing
        argument is well outside [professional norms].").
Id. at 774-75. With these standards in mind, we now turn to the individual claims.
        As an initial matter, we note that an examination of the trial court transcript shows that
Durr’s counsel successfully objected to sub-claims (b), (e), (g), and (h). Thus, Durr cannot show
deficient performance on trial counsels’ part. However, even if counsel had not objected, Durr has
not shown how this failure denied him due process.
        Taking sub-claims (a) and (c) together, Durr charges that trial counsel should have objected
to the prosecution’s argument discussing all statutory mitigating factors. In ruling on these sub-
claims, the Ohio Supreme Court held that Durr was not prejudiced by prosecutorial misconduct.
Durr, 568 N.E.2d at 684. The district court also found no merit in this claim. Because these claims
were addressed on the merits by the Ohio courts, we review them under the AEDPA standard.
        The prosecutor’s discussion of all statutory mitigating factors was improper. Hicks v.
Collins, 384 F.3d 204, 223 (6th Cir. 2004). Nevertheless, Durr is not entitled to relief because “the
prosecution simply laid out all the mitigating factors and argued why they did not apply. “ Hicks,
384 F.3d at 224 (quoting Turner v. Calderon, 281 F.3d 851, 870 (9th Cir. 2002)). “The prosecution
did not ‘mischaracterize[] a potentially mitigating factor as an aggravating factor . . . .’” Id. (quoting
Turner, 281 F.3d at 870). The prosecution in Durr’s case made a similar argument. Durr does not
allege that the State mischaracterized a potentially mitigating factor as an aggravating factor. As
in Hicks, we do not find the decision of the Ohio Supreme Court to be an unreasonable application
of Strickland. Finding no merit, claims (a) and (c) are denied.
        Durr’s sub-claim (d) alleges that trial counsel should have objected to what he characterizes
as “the prosecution’s allegedly improper comparison between civil and criminal law.” The Ohio
state courts did not decide this sub-claim on the merits. Therefore, we review this claim under the
Maples standard.
        In closing, the prosecutor stated: “[n]ow, the first matter you can consider, whether the
victim, whether the victim infused or facilitated the offense. That may be like a bar room brawl or
fight where the victim may have picked a fight with the defendant, the defendant gains the upper
hand and slays her.” In the first place, it is far from clear how this testimony can be characterized
as a comparison of civil with criminal law, and no other comments by the prosecutor fit that
No. 00-3353           Durr v. Mitchell                                                          Page 12


description either. In any event, when read in context, it is clear that the prosecutor was simply
attempting to explain one of the statutory mitigating factors; the remark was isolated and was not
likely to confuse the jury or create prejudice for Durr. In other words, the prosecutor’s statement
did not so infect the trial with unfairness so as to deny Durr due process. See Darden, 477 U.S. at
181; Donnelly, 416 U.S. at 637; Bowling, 344 F.3d at 512-13. Again, Durr fails to show resulting
prejudice for counsel’s failure to object. Considering the abundance of evidence against Durr, this
remark did not affect the outcome of the proceedings. The district court found this claim meritless.
We agree. Sub-claim (d) fails.
        Sub-claim (e) alleges that Durr’s trial counsel were ineffective for failing to object to the
State’s improper reference to Durr’s prior convictions. The trial record shows that Durr’s counsel
did in fact object to this statement. Therefore, this sub-claim is denied.
         In sub-claim (f) Durr asserts that trial counsel should have objected to the prosecutor’s
statement that society demanded the death penalty in this case. The prosecutor rhetorically inquired
as to how the jury should determine the existence of mitigating factors: “What tells you as a human
being, then a juror? Who speaks on behalf of society? Who will tell society what society’s additude
[sic] is toward this crime? You decide what mitigating factors have been shown you by defense
counsel in this case.” The prosecutor later added: “We are down to something more than just the
law right now. We are down to what society views as an appropriate punishment for this type of
conduct and this type of act. It’s a heavy issue.”
         On direct appeal, the Ohio Supreme Court held that the prosecutor did not improperly argue
that the jury was socially obligated to sentence Durr to death. In rejecting this claim, the court stated
that: “[e]ven if we were to interpret the prosecutor's remarks as [Durr] argues, we ‘should not lightly
infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a
jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less
damaging interpretations.’” Durr, 568 N.E.2d at 684 (quoting Donnelly, 416 U.S. at 647). Because
the state court reviewed this claim on the merits, we review this claim under the AEDPA standard.
        This Court has held that “‘unless calculated to incite the passions and prejudices of the
jurors, appeals to the jury to act as the community conscience are not per se impermissible.’” Byrd
v. Collins, 209 F.3d 486, 538-39 (6th Cir. 2000) (holding on habeas review that prosecutor’s
argument to jurors that they should impose the death sentence to fulfill their societal duty was not
clearly improper, and did not result in a fundamentally unfair trial) (quoting Solivan, 937 F.2d at
1151). Cf. Solivan, 937 F.2d at 1148 (holding that egregious prosecutorial misconduct constituted
error when in closing the prosecutor asked the jury to “tell [defendant] and all of the other drug
dealers like her . . . that we don’t want that stuff in Northern Kentucky . . . .”).
         The prosecutor in Durr’s case urged the jury to weigh all the aggravating circumstances
against the mitigating factors in making its sentencing determination. Like in Byrd, it is not clear
that the comment in Durr’s case was even improper “and it certainly does not render Petitioner’s
entire trial fundamentally unfair” for purposes of the “more stringent standards applicable on habeas
review . . . .” Byrd, 209 F.3d at 539. The Ohio court’s decision was not an unreasonable application
of federal law. We agree with the district court’s determination that this claim is meritless. Sub-
claim (f) is denied.
       In sub-claim (g), Durr alleges that trial counsel failed to object to the prosecutor’s allegedly
improper statement about his personal knowledge and belief that Durr deserved the death penalty.
The prosecutor stated:
        I have tried cases for about 17 years. I have also felt that the most important phase
        of any trial is the guilt or innocence phase and that’s why I and the people in my
        division argue in favor of conviction when we are certain of it.
No. 00-3353            Durr v. Mitchell                                                          Page 13


        That’s why I argue to you so strongly because I believe in the facts and I believe that
        you would see them. This stage is considerably different though. You will, when
        I explain it to you, readily recognize that the words of counsel are spoken from a
        standpoint of irresponsibility.
Durr’s trial counsel objected, but was overruled by the court. On direct appeal, the Ohio Supreme
Court held that no error occurred because “[i]n this case, the prosecutor stated his opinion after
summarizing the evidence that described the circumstances surrounding Angel Vincent's death.
Viewed in the proper perspective, the prosecutor's comments do not constitute error.” Durr, 568
N.E.2d at 684. The district court found no merit in this claim. Because the state courts ruled on this
claim on the merits, we review sub-claim (g) under the AEDPA standard.
        In Bates v. Bell, 402 F.3d 635, 644 (6th Cir. 2005), this Court recognized that “prosecutors
are prohibited from expressing their personal opinion as to the existence of aggravating or mitigating
circumstances and the appropriateness of the death penalty.” In Bates, the prosecutors repeatedly
expressed their personal opinion as to both the “credibility of the witnesses and the ultimate issue
in the hearing.” Bates, 402 F.3d at 644. Again and again, the prosecutors denigrated the mitigating
evidence presented by Bates's two witnesses. Id. at 646. “The prosecutors repeatedly referred to
the near-certain murders that would occur if Bates were permitted to live,” “suggest[ed] that the jury
would be an accomplice to future murders if they failed to sentence Bates to death,” and “compared
him to a rabid dog.” Id. at 643. This Court held that “[t]he prosecutor’s unnecessary and
intolerable conduct injected such vitriol into the proceedings, as to question the fairness of the entire
sentencing hearing.” Id. at 649. This Court went on to say that “if a habeas court is in “grave
doubt” as to the harmlessness of an error, the habeas petitioner must prevail.” Id. at 649.
         While the prosecutor’s comments in Durr’s case were improper, they were not so flagrant
as those in Bates. And the prosecutor later offered words tending to offset his comments concerning
his personal beliefs about the case, when he stated: “You should make your decision uninfluenced
by any attorney who has talked to you . . . I feel society’s interest is best served if you look at a case
objectively and reach a decision without somebody telling you what you have to do, urge you to do
. . . .” The prosecutor’s subsequent statement was consistent with state law and therefore did not
prejudice Durr. In any event, Durr’s counsel did object, and the trial court instructed the jury that
closing arguments by counsel were not evidence. Additionally, while the prosecutor’s statement
appears deliberate, it was isolated. Thus, on balance, the prosecutor’s comments do not give this
Court the same “grave doubt” about their harmlessness as we felt in Bates. The Ohio Supreme
Court’s decision was not an unreasonable application of federal law, and the district court did not
err in denying habeas relief as to this claim.
       In sub-claim (h) Durr alleges that trial counsel were ineffective for failing to object to the
prosecution’s statement that there were younger people on death row. The trial record shows that
Durr’s counsel did object to this statement. Therefore, sub-claim (h) is denied.
         Sub-claim (i) alleges that trial counsel were ineffective for failing to object to the State’s
argument concerning non-statutory aggravating circumstances. The Ohio Supreme Court denied
sub-claim (i) on direct appeal, holding that the remarks were too insignificant to rise to the level of
plain error, and that Durr did not suffer prejudice because of it. Durr, 568 N.E.2d at 684. The
district court also found no merit in this claim. Because the state court ruled on sub-claim (i) on the
merits, we review this claim under the AEDPA standard.
         This Court has previously held that the “consideration of a non-statutory aggravating
circumstance, even if contrary to state law, does not violate the Constitution.” Smith v. Mitchell, 348
F.3d 177, 210 (6th Cir. 2003) (citing Barclay v. Florida, 463 U.S. 939 (1983)). The decision of the
Ohio Supreme Court was not an unreasonable application of federal law. We find no prejudice from
trial counsels’ failure to object to the prosecution’s statements concerning non-statutory aggravating
No. 00-3353           Durr v. Mitchell                                                         Page 14


circumstances. We agree with the merits determination of the district court. Therefore, sub-claim
(i) is denied.
        The most meritorious of Durr’s claims, and the most troublesome allegations of prosecutorial
misconduct, are raised in sub-claim (b). Durr claims that trial counsel were ineffective for failing
to object to the prosecution’s repeated references at mitigation to Durr’s decision not to testify under
oath. Durr points to three occasions when the prosecutor made such statements. The first example
occurred during mitigation when the prosecutor said:
       This man has taken the stand and talked to you in an unsworn statement, never
       den[y]ing that he killed that girl, never apologizing that he killed that girl, never
       explaining to you why he did these things. This is his time. He could have said
       anything from that witness stand and a man, I think with a little more courage than
       an aunt(sic), would have done more than send women to the stand on his behalf and
       then take the stand and try to create a reasonable doubt in your mind to intimidate
       you.
        The second objectionable statement occurred when discussing the application of the
mitigating factor concerning duress, coercion, or strong provocation, the prosecutor said:
       You saw him on the stand, calm and cool in his statements, prepared to face you. Of
       course he doesn’t want to face cross-examination.
       A third time, when addressing the mitigating factor concerning whether Durr had prior
convictions, the prosecutor said:
       The defendant’s lack of prior criminal convictions. Will he take the stand with a
       [s]worn statement? Unfortunately, I don’t know how that applies to this case.
Durr’s counsel objected to this third statement, which the trial court sustained. Defense counsel then
asked the court to instruct the jury to disregard that line, which the court then did.
       On direct appeal in the context of a prosecutorial misconduct claim, the Ohio Supreme Court
determined that the prosecutor’s first statement was “adequately tailored to inform the jury that the
appellant’s statements were made absent oath or affirmation.” Durr, 568 N.E.2d at 683. As for the
prosecutor’s third statement, the state court held that it violated State v. DePew, 528 N.E.2d 542
(Ohio 1988) (syllabus), but found no denial of a fair trial as the trial court admonished the jury to
disregard the remark. Id. at 684. The district court found no merit in this claim on habeas review
when it was raised as an ineffective assistance of trial counsel claim. Because the Ohio Supreme
Court denied this claim on the merits, we review under the AEDPA standard.
        As a general proposition, a prosecutor’s comment regarding a defendant’s failure to testify
violates the Fifth Amendment. DePew v. Anderson, 311 F.3d 742, 750 (6th Cir. 2002) (citing Griffin
v. California, 380 U.S. 609 (1965)). In Ohio, a defendant may present an unsworn statement during
the mitigation phase without being subjected to cross-examination. Ohio Rev. Code
§ 2929.03(D)(1). Accordingly, “the prosecution may comment that the defendant’s statement has
not been made under oath or affirmation, but such comment must be limited to reminding the jury
that the defendant’s statement was not made under oath, in contrast to the testimony of all other
witnesses.” DePew, 311 F.3d 742, 745 (6th Cir. 2002) (quoting DePew, 528 N.E.2d 542, 553-54
(Ohio 1998)).
        DePew involved several inflammatory statements made by the prosecutor during the penalty
phase, each designed to completely undercut the defendant’s sole mitigation theory that he was
basically a law-abiding and peaceful person. DePew, 311 F.3d 748-49. The prosecutor made
No. 00-3353           Durr v. Mitchell                                                       Page 15


several inflammatory statements. First, the prosecutor commented on the defendant’s failure to
testify in the following manner:
       [T]he gentleman for the defendant, he told you five different times about the oath
       you took, and about the oath we all take, and the oath I take, and the oath you take
       – everybody takes the oath except the defendant; he isn’t man enough to get up here
       and take the oath. Everybody in this case took the oath. Everybody in this case
       raised his right hand to this man, and he says I solemnly swear to tell the truth, the
       whole truth and nothing but the truth so help me God. Everybody except DePew.
DePew, 528 N.E.2d at 554.
        The prosecution then made several more improper statements regarding the defendant’s past.
The prosecutor asked a defense witness on cross-examination whether he was aware of the
defendant’s involvement in a knife fight at a convenience store. DePew, 528 N.E.2d at 553. This
question “was particularly inflammatory because it involved the same violent act of which the
defendant had been convicted . . . .” DePew, 311 F.3d at 749. Next, the prosecutor presented
without authentication or foundation, an irrelevant photograph of the defendant standing next to a
marijuana plant. DePew, 528 N.E.2d at 555. “The admission of this photograph raised
unsubstantiated questions about the defendant’s criminal history, threatening his assertions of having
a law-abiding past.” DePew, 311 F.3d at 749. “Finally, the prosecutor stated in his closing
argument that the defendant failed to take the stand in order to prevent the prosecutor from asking
him whether he had a subsequent conviction.” Id. “This improper statement also undermined
defendant’s theory that he was a law-abiding citizen, implying that the defendant was instead a
recidivist continually engaged in criminal conduct.” Id.
        The Ohio Supreme Court affirmed DePew’s convictions and sentence, finding the remarks
“harmless error in light of the overwhelming weight of the aggravating circumstances in this case
relative to the factors offered in mitigation . . . .” DePew, 528 N.E.2d at 554. On habeas review,
however, this Court reversed, holding that the improper statements, particularly when taken
together:
       [W]ere designed to keep the jury from properly considering and weighing the
       mitigating evidence offered by the defendant. While improper comments of a
       prosecutor do not generally warrant automatic reversal, the statements in [DePew]
       require it because they go to the heart of the defendant’s sole mitigating theory . . .
       [a]llowing the prosecutor to make inadmissible, inflammatory – and in the words of
       the Ohio Supreme Court, ‘misleading’ – statements . . . undermines the defendant’s
       right under the Eighth Amendment to receive the ‘constitutionally indispensable’
       consideration of his proffered mitigating evidence.
DePew, 311 F.3d at 749.
        We also held that the prosecutor’s statement concerning the defendant’s refusal to testify at
sentencing violated the defendant’s Fifth Amendment rights as set forth in Griffin. DePew, 311 F.3d
at 750 (citing Griffin, 380 U.S. 609).
        We concluded that the state courts improperly applied the harmless error standard. DePew,
311 F.3d at 751. The Ohio Supreme Court had found the error harmless on the grounds that “the
crime was ‘brutal’ and that reversal of the death penalty on these grounds violated the ‘interest of
the public, which has every right to expect its criminal justice system to work effectively.’” Id.
(quoting DePew, 528 N.E.2d at 557). This Court held that this was not the proper constitutional
definition of harmless error, and that “[t]he public’s, or the voter’s feelings in favor of capital
punishment for brutal crimes are a well-known part of our political tradition, but these feelings
No. 00-3353               Durr v. Mitchell                                                                     Page 16


cannot rise above or displace constitutional provisions ensuring a fair trial.” DePew, 311 F.3d at
751. Thus, cumulatively, it was clear that the errors were not harmless, because “we [had] ‘grave
doubt’ that the statements by the prosecutor did not have an effect on the sentencing of the
defendant.” DePew, 311 F.3d at 749.
         Although close, we find that DePew is distinguishable. In DePew, defense counsel did not
object to the prosecutor’s comment on defendant’s unsworn statement, and did not request, nor did
the trial court give, any curative instruction. See Joseph v. Coyle, 469 F.3d 441, 473-74 (6th Cir.
2006) (holding it was not contrary to nor an unreasonable application of federal law to deny claim
of prosecutorial misconduct in spite of prosecutor’s comment pointing out defendant’s failure to
take the stand, when the comment was not flagrant and the court instructed the jury about
defendant’s right not to testify), cert. denied, 127 S. Ct. 1827 (2007). In Durr’s case, defense
counsel did object to the prosecutor’s third reference to Durr’s failure to testify under oath. Durr’s
counsel also requested, and received, an instruction to the jury to disregard the statement. The
prosecutor made no subsequent references to Durr’s failure to testify under oath after the objection
was granted and the curative jury instruction was given. At the close of mitigation, defense counsel
went so far as to move for a mistrial based on the objections to the prosecution’s statements during
final argument.
        Furthermore, unlike DePew, the prosecutor in Durr’s case did not question any of Durr’s
witnesses in an attempt to bring up Durr’s inflammatory criminal past: his two previous rape
convictions. Also, the prosecutor in this case did not introduce any irrelevant prejudicial evidence
that tended to “raise unsubstantiated questions about [Durr’s] criminal history, threatening his
assertions of having a law-abiding past.” DePew, 311 F.3d at 749. Also, here, the prosecutor made
no impermissible statements in his closing argument. Durr’s claim is also distinguishable because
DePew was a pre-AEDPA case subject to de novo review. DePew, 311 F.3d at 748.
        Clearly, the prosecution’s statements regarding Durr’s failure to testify under oath were
improper, and utterly gratuitous given the strength of the evidence against Durr. The rule in Griffin
is simple, and there is no reason why any prosecutor should flirt with violating it. However, we are
not on direct appeal here, but applying the deferential standard of the AEDPA. Cf. DePew, 311 F.3d
at 748 (applying pre-AEDPA standard by reviewing the district court’s grant of habeas corpus de
novo). And the prosecutor’s behavior in this case was much more limited than that in DePew, and
attempts were made to correct it. On balance, then, we are not convinced that the prosecutor’s
conduct “‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. 643). Nonetheless, we would like
to remind prosecutors to avoid such dramatic, needless errors. Nevertheless, for the reasons just
discussed, this case is distinguishable from DePew, and therefore, is neither contrary to nor an
unreasonable application of clearly established federal law.4
                                 4. Failure to Object to Jury Instructions
        Durr claims that trial counsel rendered ineffective assistance by failing to object to the
following jury instructions upon completion of the mitigation phase: (a) informing the jury that it
could consider additional evidence and argument on the aggravating circumstances as submitted
during the mitigation phase; (b) instructing the jury on all statutory mitigating factors, including
those not raised by the defense; (c) instructing the jury that it was making a recommendation only;
and, (d) instructing the jury that it was not permitted to consider sympathy or mercy.


         4
            Durr raises a fifth issue in his brief before this Court. Even though not granted in the COA, Durr contends
that the district court erred in denying him an evidentiary hearing under 28 U.S.C. §2254(e)(2). Even if properly brought
before this Court, this claim would fail because Durr’s “bald assertions and conclusory allegations do not provide
sufficient ground to warrant . . . an evidentiary hearing.” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).
No. 00-3353            Durr v. Mitchell                                                          Page 17


        “‘On habeas review, errors on instructions are not reviewable unless they deprive a defendant
of constitutional due process.’” Mason v. Mitchell, 320 F.3d 604, 638 (6th Cir. 2003) (quoting Gall
v. Parker, 231 F.3d 265, 321 (6th Cir. 2000)). This Court must determine “‘whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violate[d] due process.’”
Byrd, 209 F.3d at 527 (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)).
        In sub-claim (a), Durr argues that trial counsel should have objected to the trial court’s
instruction that the jury could consider additional evidence and argument on the aggravating
circumstances presented during the mitigation phase of his trial. The district court found this claim
without merit. The Ohio Courts never ruled on the merits of this claim, so we review under the
Maples standard.
       During mitigation, the State did not cross-examine any witness for the defense and offered
no additional evidence. The State chose instead to rely upon the jury’s verdicts of guilty for
kidnaping, robbery, and rape to support the death sentence for the aggravated murder conviction.
Durr does not explain how this instruction resulted in prejudice, and we can find none.
         In sub-claim (b), Durr argues that trial counsel were ineffective at mitigation for failing to
object to the trial court’s instructions to the jury on all statutory mitigating factors, including those
not raised by the defense. On direct appeal, the Ohio Supreme Court denied this claim, finding that
Durr was afforded a fair trial in which counsel protected all of his constitutional rights. Durr, 568
N.E.2d at 685. The district court found no merit in this claim. Because it was ruled on the merits
in state court, we review sub-claim (b) under the AEDPA standard.
        This Court has recently held that, “[t]he right to have certain statutory mitigating factors
considered (or aggravating ones ignored) is a creature of state statute, not the federal Constitution.”
Hill, 400 F.3d at 333 (citing Zant v. Stephens, 462 U.S. 862, 878-79 (1983)). The fact that an
“‘instruction was allegedly incorrect under state law is not a basis for habeas relief’ by itself.” Hill,
400 F.3d at 333 (quoting Estelle, 502 U.S. at 71-72). “It is only when the error of state law “‘so
infected the entire trial that the resulting conviction violates due process.’” Id. Durr does not show
how the allegedly incorrect instruction “so infected the entire trial” that his conviction violated due
process. The district court correctly determined that this instruction did not violate Durr’s federal
rights. The Ohio Supreme Court’s decision was not contrary to or an unreasonable application of
federal law. The district court did not err in denying this claim.
        Next, Durr argues that trial counsel were ineffective for failing to object to the trial court’s
use of the term “recommendation” to describe the jury’s sentencing role at mitigation. On direct
appeal, the Supreme Court of Ohio denied this claim under Strickland, holding that based upon the
facts in the case, the use of the term “recommendation” was not error, and remained within the
constitutional boundaries set by Caldwell, so counsel’s performance could not have been deficient.
Durr, 568 N.E.2d at 683, 85. The district court also found no merit in this claim. Because the state
courts ruled on sub-claim (c) on the merits, we review this claim under the AEDPA standard.
         This Court has denied habeas relief arising from jury instructions that inform the jury that
it is making a sentencing recommendation when such an instruction is an accurate recitation of state
law. See Buell v. Mitchell, 274 F.3d 337, 352-53 (6th Cir. 2001) (citing Ohio Rev. Code
§ 2929.03(D)(2)). In Mapes v. Coyle, 171 F.3d 408, 415 (6th Cir. 1999), the Court held that, “while
it is somewhat inaccurate to state that a sentencing jury ‘recommends’ a life sentence when such a
recommendation would be binding . . . even if the trial judge's instruction was erroneous it could not
have diminished the jury's sense of responsibility in Caldwell terms . . . this is an accurate statement
of Ohio Law. . . [t]here [is] no constitutional error.” Durr does not show resulting prejudice from
this instruction. It follows that the Ohio Supreme Court’s decision was not contrary to or an
unreasonable application of federal law. We agree with the district court’s determination that this
instruction did not violate Durr’s constitutional rights. Sub-claim (c) is denied.
No. 00-3353           Durr v. Mitchell                                                         Page 18


        Finally, Durr argues in sub-claim (d) that his constitutional rights were violated by the trial
court’s instructing the jury at mitigation that they were not permitted to consider sympathy or mercy.
On direct appeal, the Supreme Court of Ohio denied this claim on the merits. Durr, 568 N.E.2d at
685. The district court found no merit in this claim, explaining that nothing in the instruction
violated Durr’s federal rights. Because the state court ruled on this claim on the merits, we review
sub-claim (d) under the AEDPA standard.
       This Court held in Mapes that “an instruction that the jury should not be swayed by ‘mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling’ was not only
unobjectionable . . . it ‘served the useful purpose of confining the jury's imposition of the death
sentence by cautioning it against reliance on [irrelevant,] extraneous emotional factors.’” Mapes,
171 F.3d at 416 (quoting California v. Brown, 479 U.S. 538, 542-43 (1987)). Based on this Court’s
previous holdings, the instructions given at Durr’s trial were not improper. Thus, Durr cannot show
any resulting prejudice from trial counsel’s failure to object. The Ohio Supreme Court’s decision
was not contrary to or an unreasonable application of federal law, as the district court found. Sub-
claim (d) is denied.
                       C. Insufficiency of Evidence for Rape Conviction
        Finally, Durr argues that the prosecution presented insufficient evidence to support his rape
conviction. Specifically, Durr claims that the state failed to present proof beyond a reasonable doubt
that Durr at any time raped Angel Vincent. He argues that there was no medical or eyewitness
testimony to establish a rape occurred, and that circumstantial evidence of Angel’s partially naked
body is insufficient to sustain the charge of rape and the capital specification that the offense
occurred in the commission of rape. Durr initially raised this claim on direct appeal. Because the
state court reviewed this claim on the merits, we review this claim under the stricter AEDPA
standard.
        Ohio’s statute concerning rape at the time of Durr’s trial stated that no person shall engage
in sexual conduct with another when the offender purposely compels the other person to submit by
force or threat of force. Ohio Rev. Code § 2907.02 (A)(2) (repealed 1995). Sexual conduct was
defined as “vaginal intercourse between a male and female, and anal intercourse, fellatio, and
cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.” Ohio Rev. Code § 2907.01(A) (repealed 1995). Sexual contact was
defined at the time of Durr’s trial as “any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is female, a breast for
the purpose of sexually arousing or gratifying either person.” Ohio Rev. Code 2907.01 (repealed
1995).
       Acknowledging that Vincent’s “body was so severely infested with bacteria, testing for the
presence of acid phosphates and spermatozoa was inconclusive,” Durr, 568 N.E.2d at 677, the Ohio
Supreme Court nevertheless rejected the claim, stating:
       In this case, the prosecution presented highly probative circumstantial evidence.
       Except for a pair of tennis shoes, the victim’s body was found nude from the waist
       down. In addition, Deborah Mullins testified that when she saw Angel tied up in the
       back of [Durr’s] car, [Durr] informed Deborah that he was going to kill Angel
       because she would tell. Based on these facts, we believe that there was sufficient
       probative evidence from which a rational trier of fact could have found [Durr] guilty
       of rape beyond a reasonable doubt.
Durr, 568 N.E.2d at 682.
No. 00-3353            Durr v. Mitchell                                                          Page 19


        Two state supreme court justices disagreed with the majority’s determination that there was
sufficient evidence to support a conviction of rape. Id. at 686. (Moyer, C.J. and Brown, J.,
concurring). The district court held that “the evidence cited by . . . the Supreme Court of Ohio
support[s] a finding that sufficient evidence existed for any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.” We review this claim under the AEDPA
standard.
        This issue presents a very close question, since there is absolutely no physical evidence of
any penetration to affirmatively establish sexual conduct under Ohio Rev. Code § 2907.01(A)
(repealed 1995), rather then a less severe charge of sexual contact under Ohio Rev. Code
§ 2907.01(B) (repealed 1995). Were this case before us on de novo review, we might be hard-
pressed to conclude “after reviewing the evidence in the light most favorable to the prosecution,
[that] any trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). However, our review on habeas is very
deferential to the state courts, and we simply cannot say that the insufficiency of evidence claim
resulted in a decision that was contrary to, or involved an unreasonable application of Jackson.
        As the Ohio Supreme Court held, although circumstantial, the evidence in this case was
“highly probative.” Deborah Mullins testified that she saw the victim tied up in Durr’s car, and that
Durr told her that he was going to “waste” Angel because “she would tell.” The body was nude
from the waste down, except for tennis shoes. Medical evidence was inconclusive because the
amount of bacteria in the body. Based on this evidence, a jury could have reasonably inferred that
Angel had been raped. As circumstantial evidence is entitled to equal weight as direct evidence,
United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993), we cannot conclude on habeas review that
the Ohio Supreme Court erred. As the state of Ohio has considerable expertise in matters of Ohio
state criminal law, it is appropriate for this Court to exercise substantial deference to the Ohio
Supreme Court in this area. See Medina v. California, 505 U.S. 437, 445-46 (1992) (stating that
Court “should not lightly construe the Constitution so as to intrude upon the administration of justice
by the individual States.”). Therefore, claim thirty-six is denied.
                                           IV. Conclusion
        For the foregoing reasons, we AFFIRM the district court’s denial of Durr’s petition for a
writ of habeas corpus.
No. 00-3353           Durr v. Mitchell                                                         Page 20


                                     _____________________
                                        CONCURRENCE
                                     _____________________
        R. GUY COLE, JR., Circuit Judge, concurring. I concur in the majority’s opinion, but I
write separately to address two concerns.
         First, with regard to the rape conviction, I disagree with the Ohio Supreme Court’s view that
the circumstantial evidence in this case was “highly probative” of rape. (Maj. Op. 19.) The court
relied on (1) Durr’s unexplained statement that he was going to “waste” Angel because “she would
tell,” and (2) that her body was nude from the waist down when discovered. This strikes me as
somewhat probative; I have doubts whether any juror could properly infer from this evidence,
beyond a reasonable doubt, that rape occurred. Nonetheless, AEPDA constrains our review, and I
cannot say that the Ohio Supreme Court—even if incorrect—was objectively unreasonable when
holding that a juror could reach that conclusion. See Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(“In order for a federal court to find a state court’s application of our precedent ‘unreasonable,’ the
state court’s decision must have been more than incorrect or erroneous.”).
         Second, with regard to the relevance of expert testimony to ineffective-assistance claims, the
majority’s broad statement that “[p]hrases such as ‘in my opinion’ or ‘it is doubtful’ do not establish
prejudice under Strickland,”(Maj. Op. 10), must be clarified. If this statement is read to mean that
opinion testimony cannot establish prejudice, it is simply wrong. Opinions are at the heart of expert
testimony. See Fed. R. Evid. 702 (“If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise . . . .”) (emphasis added). And expert testimony is often crucial, and necessary,
to show what mitigating evidence could have been presented at the penalty phase. In short, there
is nothing suspect about testimony involving phrases such as “in my opinion” or “it is doubtful,” and
Strickland does not say otherwise. See, e.g., Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005)
(holding that petitioner satisfied Strickland’s prejudice prong based on forensic psychiatrist’s
“opinion” that petitioner did not have specific intent to kill); Riley v. Cockrell, 215 F. Supp. 2d 765,
777 (D. Tex. 2002) (noting that to establish prejudice, petitioner “would have to establish that had
his counsel requested Dr. Lawrence to opine whether [petitioner] would commit crimes of violence
[that] would constitute a continuing danger to people outside of the prison environment, Dr.
Lawrence would have in fact given that opinion, and had Dr. Lawrence so testified, there is a
reasonable probability that the result in his punishment hearing would have been different”
(emphasis added)).
       In this case, it was Dr. Skillings’s opinion that explaining cross-cultural issues to the jury
would have impacted the jurors’ views of Durr. That opinion fails to establish prejudice, not
because it is an opinion, but because there is not a reasonable probability that the jury would have
reached a different outcome even if it had heard this particular evidence.
