                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0204p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                                                 -
 KENNETH W. SMITH,
                                                 -
                             Petitioner-Appellant,
                                                 -
                                                 -
                                                      No. 05-4211
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 BETTY MITCHELL, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
                 No. 99-00832—Walter H. Rice, District Judge.
                                  Argued: March 10, 2009
                             Decided and Filed: June 5, 2009
              Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

                                    _________________

                                         COUNSEL
ARGUED: Kyle E. Timken, LAW OFFICE, Columbus, Ohio, for Appellant. Charles L.
Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Kyle E. Timken, LAW OFFICE, Columbus, Ohio, S. Scott Haynes,
HALLOWES, ALLEN & HAYNES, Reynoldsburg, Ohio, for Appellant. Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        KAREN NELSON MOORE, Circuit Judge. Ohio death-row inmate Kenneth Smith
(“Smith”) appeals the district court’s denial of his petition for habeas corpus relief from his
state-court convictions and sentence. In 1996, Smith was convicted on two counts of
aggravated felony murder and was sentenced to death for each aggravated-murder count.
After Smith exhausted his remedies in the Ohio state courts, he filed this petition for habeas
corpus pursuant to 28 U.S.C. § 2254. After the district court denied his petition, a certificate


                                               1
No. 05-4211           Smith v. Mitchell                                                  Page 2


of appealability (“COA”) was granted on five issues: (1) whether the prosecutor committed
misconduct at trial by arguing that Smith lacked remorse and by improperly questioning
Smith on cross-examination; (2) whether trial counsel provided ineffective assistance of
counsel in challenging Smith’s confession to police; (3) whether Smith was sentenced to
death for a murder he did not commit; (4) whether the Ohio death penalty is unconstitutional
as applied to Smith; and (5) whether Ohio’s adoption of a one-tier system of appellate review
for capital cases denied Smith due process under the United States Constitution. For the
reasons discussed below, we AFFIRM the district court’s denial of Smith’s petition for
habeas relief under 28 U.S.C. § 2254.

                                     I. BACKGROUND

A. Factual Background

          The underlying facts were set forth by the Ohio Supreme Court on Smith’s direct
appeal:

                  On May 12, 1995, sometime around 11:00 p.m., defendant-appellant,
          Kenneth W. Smith (“defendant”), and his brother, Randy Smith (“Randy”),
          brutally murdered Lewis Ray and Ruth Ray in their Hamilton, Ohio home.
          Lewis was severely beaten, his skull was fractured, and his throat was slit,
          severing his windpipe and carotid arteries. Ruth died from manual
          strangulation. Their home was ransacked, and money and jewelry were
          taken. The following morning, David L. Lester, Ruth’s son, discovered the
          bodies of his mother and stepfather and called the police.
                  In the Rays’ home, police observed signs of a struggle, blood on the
          kitchen floor, and bloody footprints throughout the house. Police found a
          damaged white ceramic coffee pot covered with blood stains in the trash can
          and a green army camouflage hat on the floor. A knife had recently been
          removed from a butcher block set. Police found Lewis lying on the kitchen
          floor and Ruth lying in the doorway between the hall and bedroom. The
          Rays’ bedroom had been ransacked, and the contents of dressers were
          strewn about the floor.
                  Earlier in the evening of May 12, 1995, defendant and Randy had
          gone to the Crystal Lounge, a.k.a. Crystal Bar, with a friend, Russell C.
          Baker. At approximately 10:20 p.m., defendant borrowed Baker’s car
          allegedly to pick up his wife, Brenda Smith, and some friends. By midnight,
          defendant had not returned Russell’s car. At about that time, Brenda and
          Lillian Canafax, Randy’s live-in girlfriend, arrived at the Crystal Lounge
          also looking for the Smith brothers. About forty-five minutes later, Russell
          and the two women decided to go to Chasteens Bar. Defendant eventually
No. 05-4211       Smith v. Mitchell                                                     Page 3


      showed up at Chasteens Bar at approximately 1:30 a.m. When Russell
      questioned defendant about the car, defendant claimed that he was late
      because he had been in a fight at a gas station. Defendant showed Russell
      a bump on his head. At the time, Russell also noticed that defendant had
      changed his clothes.
                At approximately 2:00 a.m., defendant left Chasteens Bar in his
      Monte Carlo automobile with Brenda, Randy, Lillian, and Russell.
      Defendant drove to his house, handed his car keys to Randy, and instructed
      Randy to take a stuffed pillowcase from a nearby blue automobile and put
      it into the trunk of the Monte Carlo. Russell accused the Smith brothers of
      being “out thieving with my car.” Defendant replied, “Russell, I wouldn’t
      do that.” The group then drove to Buckeye Street, where Russell’s brother,
      James, was staying. Russell soon went home and to bed.
               In the early hours of May 13, 1995, defendant admitted to his friend,
      James Baker, that he had killed Lewis Ray and that his brother, Randy, had
      strangled Ruth Ray. James testified that on May 12, 1995, he was staying
      at his mother’s apartment, when defendant and Randy arrived at
      approximately 1:30 a.m. in Russell’s automobile. The Smiths had been to
      the apartment earlier in the evening before going to the Crystal Lounge.
      Defendant told James that he had been in a fight, and James noticed that
      defendant had cleaned up and changed clothes. Defendant was wearing a
      sweater and boots instead of tennis shoes. He was not wearing a hat. James
      further testified that defendant left the apartment again at 1:35 a.m. to go to
      Chasteens Bar.
               When defendant returned to James’s mother’s apartment at
      approximately 2:45 a.m., he began to tell James about the murders. James
      testified that defendant told him that he had taken a hammer and “struck
      Louie Ray between his eye[s],” and that during this time, defendant had
      winked at his brother, Randy, who followed Ruth into a bedroom and
      strangled her. Defendant also told James that they took gold and jewelry in
      a pillowcase from the Rays’ home.
              James testified that when he asked defendant why he killed the Rays,
      defendant replied that they had killed them to prevent the Rays from
      identifying them. James testified that defendant “was talking how he sliced
      Lewis Ray’s throat from ear to ear and just laughing about it.” Defendant
      also told James that after he killed Lewis, he “kicked Ruth’s brain in” to
      make sure she was dead. James testified that defendant brought a pillowcase
      stuffed with jewelry inside the apartment, but James asked him to take it
      back to the car.
              Later that morning, James was driving around with defendant and
      Brenda. They stopped to buy cigarettes and marijuana. Defendant
      mentioned to James that he was concerned because he lost his green army
      camouflage hat in the struggle with Lewis. Eventually they drove to
      Russell’s home. There, out of defendant’s presence, James told Russell what
No. 05-4211       Smith v. Mitchell                                                     Page 4


      defendant had admitted. Defendant then suggested to James that he hide the
      remaining jewelry. This prompted Russell to contact the police. Police later
      recovered the jewelry in the attic of a garage.
               In addition to the testimony of James Baker, Lillian Canafax testified
      that she was outside Chasteens Bar arguing with Randy when he showed her
      a gun. She testified that she saw the same gun in her bedroom the following
      morning. Several days later, after she found the gun and money under the
      bed, she authorized police to search the apartment. Lillian also turned over
      to police three money orders she had purchased for Randy the day after these
      crimes occurred.
              Another witness testified that around 11:15 or 11:30 p.m., he saw
      Randy standing outside a pizza parlor about a block from the Rays’
      residence. The witness testified that Randy had a hammer in his hand as he
      ducked behind the building. Russell testified that a hammer was missing
      from his car after he had loaned his car to defendant.
              That afternoon, the police detained defendant for questioning. At the
      time, police observed cuts and scratches on defendant’s face, and a long cut
      and bruises near his right collarbone. Police also searched Brenda’s purse
      and discovered a cellophane bag containing rings, two $100 bills, and a
      quantity of nonsequentially numbered food stamps. Police knew that Lewis
      sold similar jewelry and suspected that he may have dealt in food stamps as
      currency.
              At the police station, defendant waived his Miranda rights and
      admitted that he and Randy had killed Lewis and Ruth. Defendant said that
      while at the Crystal Bar, he and Randy had talked about going to rob the
      Rays, and decided that they would have to kill the Rays because they did not
      want the Rays to be able to identify them. Defendant told police that after
      arriving at the Rays’ house, he and Lewis began to argue about money that
      defendant supposedly owed Lewis. Defendant further admitted that he
      picked up an object from the kitchen counter and struck Lewis, eventually
      overpowering him. Defendant claimed that Lewis said, “I’m going to kill
      you, Kenny,” so defendant grabbed a knife and cut Lewis’s throat. He then
      rolled Lewis on his side and took his wallet. Defendant said he walked to
      the bedroom and saw Ruth’s body on the floor. Randy had choked her to
      death. The two men ransacked the bedroom and left in Russell’s
      automobile.
              Police apprehended Randy Smith. They found $344 in bloodstained
      currency on him. Randy initially denied any knowledge of the murders.
      Police allowed Randy to speak with his brother, who said, “They got us
      brother, everybody is telling on us, tell the truth, that’s what I did.” Randy
      then explained to the police his involvement in the crimes.
             Later, after again being advised of his Miranda rights, defendant
      gave the police a written confession. In his statement, defendant said that
No. 05-4211       Smith v. Mitchell                                                   Page 5


      while playing pool at the Crystal Lounge, he talked with Randy about
      robbing Lewis. He borrowed Russell’s car and drove to a pool hall about
      half a block from the Ray home. Defendant stated that he and his brother
      walked to the Rays’ house. Lewis invited the Smiths into his home.
      Defendant and Lewis began to argue about $2,500 that defendant owed
      Lewis. The men began to fight in the kitchen and defendant grabbed
      something from the counter and struck Lewis’s head. They continued to
      wrestle on the floor. Defendant knew he was going to have to kill Lewis to
      keep him from telling anyone what happened. Defendant then grabbed a
      knife and “sliced Louie across the throat.”
              In his written confession, defendant further admitted that he took
      Lewis’s wallet, then walked into the bedroom. Ruth was lying on the floor
      in the doorway, and defendant had to step over her body. Defendant said he
      asked Randy what had happened, and Randy said he had choked Ruth.
      Defendant further admitted that he then ransacked the bedroom, taking rings,
      watches, and necklaces, and placed the items in a plastic bag and left.
              According to his signed confession, defendant went home after the
      murders to shower and change clothes. He and Randy divided the money
      found in Lewis’s wallet. Defendant’s share was around $625. Defendant
      then put his bloody clothes, the knife, and Lewis’s wallet into a green trash
      bag that Randy later threw into the river. The two men then drove to
      Chasteens Bar.
              In his confession, defendant explained that after leaving Chasteens
      Bar, he drove to the apartment where James Baker was staying and began to
      go through the jewelry that the defendant and Randy had taken from the
      Rays’ house. Defendant picked out some items he wanted to keep. The
      following morning he placed some rings into a plastic bag and gave them to
      Brenda, who put them into her purse. Defendant put the remainder of the
      jewelry into the trunk of his Monte Carlo. He and James then put the
      jewelry into the attic of James’s grandmother’s garage. During police
      questioning, defendant also admitted that the wristwatch he was wearing had
      belonged to Lewis.
               At trial, defendant testified that he and Randy went to the Rays,
      intending only to steal saws and drills from the yard. They parked the car
      away from the house, but as they walked into the yard, Lewis opened the
      gate and saw them. Lewis invited them into the house, and the men began
      to argue about money that defendant allegedly owed Lewis. Defendant
      testified that within ten minutes, “everything got real violent.” Lewis
      “jumped up,” told defendant he “was going to shoot” him, and hit defendant
      “upside the head with something.” Defendant testified that he grabbed
      something from near the stove and struck Lewis. Defendant testified that
      Lewis tried to push him down the basement steps. Defendant then grabbed
      a knife and cut Lewis as he approached. Defendant bent down, turned Lewis
      on his side, and grabbed his wallet. Defendant further testified that Randy
No. 05-4211            Smith v. Mitchell                                                           Page 6


          told him that he had choked Ruth. The brothers then ransacked the
          bedroom, taking jewelry.
                  Defendant denied that he intended to kill the Rays. Defendant
          claimed that Lewis was his best friend, and he “wouldn’t cold blooded kill
          him for nothing.” Defendant testified that he was very upset about the Rays
          because they were “like family” to him. He admitted that he told James
          about killing Lewis, but testified that he wasn’t laughing or joking, but
          instead, he was “in tears.”
                   Kenneth Smith was charged in two counts with the aggravated
          felony-murder of Lewis Ray and Ruth Ray in violation of R.C. 2903.01(B).
          Each murder charge contained three death specifications: the offense was
          committed to escape detection, apprehension, trial, or punishment for other
          offenses, R.C. 2929.04(A)(3); the offense was part of a course of conduct
          involving the purposeful killing of two or more persons, R.C.
          2929.04(A)(5); and the offense was committed during the course of an
          aggravated robbery, R.C. 2929.04(A)(7). He was also charged with two
          counts of aggravated robbery that included the allegation of a prior felony
          conviction for attempted burglary. The jury convicted defendant as charged
          and recommended the death penalty on the aggravated murder counts. The
          trial court sentenced defendant to death.
Smith v. State, 684 N.E.2d 668, 675-78 (Ohio 1997).

B. State Proceedings

          Prior to trial, Smith’s counsel filed a motion to suppress Smith’s confession to the
police. The motion challenged both the arrest itself and the subsequent interrogation and
was described by the trial court at the hearing as a “shotgun motion.” Suppression Hr’g Tr.
at 69. At the hearing, the government called three detectives who participated in Smith’s
arrest and interrogation, and Smith’s counsel did not call any witnesses. Smith’s counsel did
not question any of the witnesses about Smith’s mental state at the time of the interrogation.
A supplemental brief filed by Smith’s counsel focused not on the interrogation but on the
supposed lack of probable cause for the arrest. The trial court subsequently denied the
motion.

                                                                                               1
          Smith appealed his convictions and sentence to the Ohio Supreme Court, raising
several assignments of error. Among other things, Smith argued that (1) recent


          1
           Smith initially sought to appeal his convictions and sentence to the Ohio Court of Appeals, but
review was denied due to then-recent changes in Ohio law limiting capital defendants to a single tier of
appellate review in the Ohio Supreme Court. See Ohio Const. art. IV, §§ 2(B)(2)(c) and 3(B)(2).
No. 05-4211        Smith v. Mitchell                                               Page 7


amendments to the Ohio constitution providing for one-tier appellate review in capital
cases violate the Fourteenth and Eighth Amendments; (2) the capital specifications on
his conviction for the murder of Ruth Ray required the jury inappropriately to examine
the actions of the principal offender, his brother Randy, rather than Smith’s actions;
(3) the death penalty was applied inappropriately, excessively, and disproportionately
because Smith’s brother Randy received only a life sentence; (4) prosecutorial
misconduct at Smith’s trial denied his right to due process; (5) Smith did not receive
effective assistance of counsel at all stages of the proceedings; (6) Smith’s statement to
police was obtained involuntarily and unknowingly; and (7) Ohio’s statutory provisions
governing the imposition of the death penalty are unconstitutional on their face and as
applied. The Ohio Supreme Court denied Smith’s appeal on all grounds and affirmed
his convictions and sentence.

       Smith then sought postconviction relief in the Ohio state courts pursuant to Ohio
Revised Code § 2953.21, raising eleven claims for relief and requesting an evidentiary
hearing and the opportunity to conduct discovery. Among his grounds for relief, Smith
claimed that he was denied effective assistance of counsel and that his statements to the
police should have been suppressed because he was intoxicated at the time of the
interrogation. The trial court denied Smith relief, and the Ohio Court of Appeals
affirmed. The Ohio Court of Appeals concluded that many of Smith’s claims were
barred by res judicata and that Smith had not met his burden to show that an evidentiary
hearing was warranted. State v. Smith, No. CA97-12-223, 1998 WL 549964 (Ohio Ct.
App. Aug. 31, 1998).

C. Federal Proceedings

       On October 4, 1999, Smith filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of Ohio pursuant to 28 U.S.C.
§ 2254, asserting nineteen grounds for relief. Among these claims, Smith asserted that
(1) his constitutional rights were violated by the prosecutor’s misconduct on cross-
examination of Smith and during closing arguments, (2) Smith’s counsel was ineffective
in challenging his confession, (3) Smith’s constitutional rights were violated when he
No. 05-4211        Smith v. Mitchell                                               Page 8


was sentenced to death for a murder he did not commit, (4) Smith’s rights to equal
protection and due process were violated by Ohio’s elimination of the intermediate level
of appellate review for capital defendants, and (5) Ohio’s death-penalty statute is
unconstitutional on its face and as applied to Smith. Smith initially sought discovery and
an evidentiary hearing, but both motions were denied without prejudice. Although
Smith filed a renewed motion for leave to conduct discovery, which was then denied, he
never filed a renewed motion for an evidentiary hearing.

       The case was referred to a magistrate judge, who recommended that the petition
be denied on all grounds. Smith filed objections to the magistrate judge’s report and
recommendation, but the district court ultimately adopted the report and
recommendation and denied relief. Smith v. Mitchell, No. C-1-99-832, 2005 WL
1969309 (S.D. Ohio Aug. 15, 2005); Smith v. Mitchell, No. C-1-99-832, 2003 WL
24136073 (S.D. Ohio Sept. 20, 2003). The district court did, however, grant a COA on
one claim: whether Ohio’s one-tier system of appellate review for capital cases violates
the Due Process Clause of the Fourteenth Amendment. Smith, 2003 WL 24136073, at
*26-28. We subsequently expanded the COA to include four additional claims:
“(1) whether the prosecutor committed misconduct at trial by arguing that Smith lacked
remorse and by improperly questioning Smith on cross-examination; (2) whether trial
counsel ineffectively challenged Smith’s confession; (3) whether Smith was sentenced
to death for a murder he did not commit; (4) whether the Ohio death penalty statute is
unconstitutional as applied to Smith.” Joint Appendix (“J.A.”) at 612 (Order).

                                    II. ANALYSIS

A. Standard of Review

       “‘In a habeas corpus proceeding, this Court reviews a district court’s legal
conclusions de novo and its factual findings for clear error.’” Smith v. Berghuis, 543
F.3d 326, 334 (6th Cir. 2008) (quoting Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir.
2005)). Because Smith filed his habeas petition after April 24, 1996, we review all
claims that were adjudicated on the merits by the Ohio state courts under the standards
No. 05-4211         Smith v. Mitchell                                                 Page 9


set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Under AEDPA,

        An application for a writ of habeas corpus on behalf of a person in
        custody pursuant to the judgment of a State court shall not be granted
        with respect to any claim that was adjudicated on the merits in State
        court proceedings unless the adjudication of the claim—
                (1) resulted in a decision that was contrary to, or
                    involved an unreasonable application of, clearly
                    established Federal law, as determined by the
                    Supreme Court of the United States; or
                (2) resulted in a decision that was based on an
                    unreasonable determination of the facts in light of
                    the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has explained that subsection 2254(d)(1)
contains two prongs, the “contrary to” and the “unreasonable application of” clauses,
each with an independent meaning. Terry Williams v. Taylor, 529 U.S. 362, 404 (2000).
A decision is contrary to clearly established federal law if either “the state court applies
a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” id.
at 405, or “the state court confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives at a result different from
[Supreme Court] precedent,” id. at 406. A decision is an unreasonable application of
clearly established federal law, on the other hand, if “the state court identifies the correct
governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the
facts of the particular state prisoner’s case.” Id. at 407.

B. Prosecutorial Misconduct

        Smith argues that the prosecutor committed misconduct during the guilt phase
of the trial. Specifically, Smith claims that the prosecutor argued during his closing
statement that Smith lacked remorse and that the prosecutor badgered Smith and made
inflammatory comments about the victim on cross-examination. In the evaluation of a
claim for prosecutorial misconduct, it is not enough that the prosecutor’s comments were
improper, but “[t]he relevant question is whether the prosecutors’ comments ‘so infected
No. 05-4211        Smith v. Mitchell                                              Page 10


the trial with unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)); accord Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006),
cert. denied, 549 U.S. 1255 (2007). “In order to satisfy the standard for prosecutorial
misconduct, the conduct must be both improper and flagrant.” Broom, 441 F.3d at 412;
accord Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). We consider four factors in
determining whether a prosecutor’s improper conduct is flagrant:

       (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.
Broom, 441 F.3d at 412 (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied,
546 U.S. 865 (2005)); accord Boyle, 201 F.3d at 717.

       The Ohio Supreme Court rejected Smith’s prosecutorial-misconduct arguments,
finding that neither instance of alleged misconduct was improper. As to the prosecutor’s
remarks during closing arguments, the court found that “[t]he prosecutor’s reference to
defendant’s lack of remorse may have been intended to question his credibility.” Smith,
684 N.E.2d at 689. We agree that this statement was not improper in the context of this
case. On direct examination, Smith testified that he cried when he told his friend James
Baker about the murders; this contradicted Baker’s testimony that Smith was laughing
when he told Baker about slitting Lewis Ray’s throat. The prosecutor’s reference to
Baker’s testimony that Smith lacked remorse was proper to discredit Smith’s
contradictory testimony.

       Regarding Smith’s cross-examination, the state court concluded that “[b]ecause
defendant claimed that parts of his written confession to police were untrue, it was not
improper for the prosecutor to ask defendant to identify those parts of his confession”
and that because “[d]efendant’s testimony also conflicted with the crime-scene
photographs . . . it was not improper for the prosecutor to question defendant about the
photographs in evidence.” Id. at 689. Although we believe that some of the prosecutor’s
conduct on cross-examination may have been improper, particularly his questioning of
No. 05-4211        Smith v. Mitchell                                             Page 11


Smith about the “kind of sounds [Ray Lewis] made when you ripped his throat from ear
to ear,” Trial Tr. at 889, we cannot conclude that this conduct was flagrant such that it
“so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181. The comments were isolated, do not seem to have
been purposeful, and any prejudice was slight, as the jury already had graphic
photographs of the crime scene. Further, the evidence against Smith, particularly the
crime-scene photographs, the physical evidence, Baker’s testimony, and the statement
Smith gave to police after he was arrested, was very strong. Overall, we do not find
unreasonable the conclusion of the Ohio Supreme Court that “no misconduct occurred
that would have affected the fairness of the trial.” Smith, 684 N.E.2d at 689-90.

C. Ineffective Assistance of Counsel

       Smith argues that his trial counsel performed ineffectively by failing to develop
and introduce at the suppression hearing evidence of Smith’s intoxication at the time of
his arrest and interrogation and of his low mental capacity. The standard for claims of
ineffective assistance of counsel was set out by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). “Claims of ineffective assistance of counsel have
‘two components: A petitioner must show that counsel’s performance was deficient, and
that the deficiency prejudiced the defense.’” Mason v. Mitchell, 543 F.3d 766, 772 (6th
Cir. 2008) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). To establish that
counsel was deficient, “the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” Strickland, 466 U.S. at 688. To establish
prejudice, “[t]he defendant must show 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. After setting forth the Strickland standard, the Ohio Supreme
Court denied Smith’s claim because “[i]ntoxication affecting one’s state of mind, absent
coercive police activity, would be an insufficient reason to exclude his voluntary
confession.” Smith, 684 N.E.2d at 690 (citing Colorado v. Connelly, 479 U.S. 157
(1986)).
No. 05-4211          Smith v. Mitchell                                              Page 12


          Although we believe that Smith has likely established the first Strickland prong,
that his counsel’s performance was deficient, we conclude that Smith has not shown that
this deficiency prejudiced the outcome of the suppression hearing. We first note,
however, that the Ohio Supreme Court’s reliance solely on Colorado v. Connelly was
misplaced, because Smith did not argue only that evidence of intoxication would have
shown that his confession was involuntary, but also Smith contended that this evidence
would have shown that he did not knowingly and intelligently waive his Miranda rights.
A suspect in custody may waive his Miranda rights “provided the waiver is made
voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444
(1966).     The Supreme Court has stated that this inquiry involves “two distinct
dimensions”:

          First the relinquishment of the right must have been voluntary in the
          sense that it was the product of a free and deliberate choice rather than
          intimidation, coercion, or deception. Second, the waiver must have been
          made with a full awareness both of the nature of the right being
          abandoned and the consequences of the decision to abandon it. Only if
          the totality of the circumstances surrounding the interrogation reveal both
          an uncoerced choice and the requisite level of comprehension may a
          court properly conclude that the Miranda rights have been waived.
Colorado v. Spring, 479 U.S. 564, 573 (1987) (quoting Moran v. Burbine, 475 U.S. 412,
421 (1986)). As this court has explained, while Connelly establishes the standard for
showing that a confession was involuntary, the question of whether a Miranda waiver
was knowing and intelligent is a separate question. Clark v. Mitchell, 425 F.3d 270, 283
(6th Cir. 2005). In considering the merits of Smith’s underlying Miranda claim, the
Ohio Supreme Court improperly looked only at whether Smith would have been able to
satisfy the first element of the inquiry, voluntariness.

          The Ohio Supreme Court’s application of Strickland, however, was not
unreasonable. In evaluating whether a Miranda waiver was knowing and intelligent, a
court will “apply a totality of the circumstances test to ascertain whether [the defendant]
understood his right to remain silent and to await counsel.” Clark, 425 F.3d at 283.
Applying this standard, we conclude that Smith has not shown that he was prejudiced
by his counsel’s performance. In support of his claim, Smith presents his trial testimony,
No. 05-4211           Smith v. Mitchell                                                       Page 13


as well as that of James Baker, who was with Smith the day of the arrest, that Smith had
ingested various prescription medications, smoked marijuana, and consumed a large
amount of alcohol during the hours leading up to his arrest. Smith also presents the
affidavits of three experts detailing Smith’s limited mental capability and long history
of polysubstance abuse.            Dr. Charles T. Kandiko, Ph.D., who conducted a
neuropharmacological evaluation of Smith, concluded that “Mr. Smith was intoxicated
at the time of his arrest and interrogation by police” and therefore “was not in a mental
state to competently decide whether he wanted to talk to the police or not.” J.A. at 765
(Kandiko Evaluation at 6). Even in light of this evidence however, Smith would not
have been able to show that his waiver was not knowing and intelligent under the totality
of the circumstances. The testimony of the officers at the suppression hearing showed
that Smith was given his Miranda warnings at least three times and that he affirmatively
stated that he did not need a lawyer and that he would talk about the killings. After
completing a typed statement, the detective had Smith read the statement back to him to
show that Smith could read, and Smith then signed the statement and initialed various
edits. It is highly unlikely that this testimony would have been controverted by Smith
had he testified at the suppression hearing. During his trial testimony, Smith stated that
he recalled being advised of his rights and agreed that he was “willing to talk to [the
detective],” “willing and ready to confess at that time to actually killing Lewis,” and
“had no intention of denying at all.” Trial Tr. at 840-41. Smith’s age and previous
experience with the criminal justice system would have weighed further toward finding
the waiver knowing and intelligent. See Murphy v. Ohio, 551 F.3d 485, 514 (6th Cir.
2009). Moreover, Smith has submitted no evidence that his conduct during the
interrogation gave the police any indication of his alleged intoxication or failure to
understand his repeated waivers. See Garner v. Mitchell, 557 F.3d 257, 261-63 (6th Cir.
2009) (en banc). Overall, we conclude that Smith has not shown a likelihood that the
presentation of this evidence at the suppression hearing would have changed the
outcome of the proceeding.2

         2
          We note that our analysis of Smith’s ineffective-assistance-of-counsel claim would have been
enhanced had an evidentiary hearing been conducted in the district court. We do not know, for example,
what indication the police officers may have had that Smith was intoxicated during his interrogation. It
No. 05-4211           Smith v. Mitchell                                                       Page 14


D. Smith’s Death Sentence for the Murder of Ruth Ray

         Smith argues that his constitutional rights were violated when he was sentenced
to death for the murder of Ruth Ray, who was killed by Smith’s brother Randy, because
the capital specifications did not require that Smith had the specific intent to murder
Ruth Ray and did not genuinely narrow the class of persons eligible for the death
penalty. The Ohio Supreme Court rejected these claims on direct appeal, concluding that
“[t]he Eighth Amendment does not prohibit the death penalty for an accomplice whose
participation in the felony murder was significant, and whose mental state is one of
reckless indifference,” Smith, 684 N.E.2d at 693 (citing Tison v. Arizona, 481 U.S. 137
(1987)), and finding that “the jury specifically found that [Smith] purposely intended to
kill Ruth Ray, and that he did so with ‘prior calculation and design’ as an aider and
abettor in her aggravated murder,” id.

         Smith was found guilty for the murder of Ruth Ray under Ohio Revised Code
§ 2903.01(B) (1995), the felony-murder provision of the aggravated-murder statute in
effect at the time the offenses were committed. He also was found guilty on three capital
specifications, making him eligible for the death penalty: (1) “[t]he offense was
committed for the purpose of escaping detection, apprehension, trial, or punishment for
another offense committed by the offender,” Ohio Rev. Code § 2929.04(A)(3) (1995);
(2) “the offense at bar was part of a course of conduct involving the purposeful killing
of or attempt to kill two or more persons by the offender,” § 2929.04(A)(5); and
(3) “[t]he offense was committed while the offender was committing, attempting to
commit, or fleeing immediately after committing or attempting to commit . . . aggravated
robbery . . . , and either the offender was the principal offender in the commission of the
aggravated murder or, if not the principal offender, committed the aggravated murder
with prior calculation and design,” § 2929.04(A)(7).




appears from the record, however, that, after Smith’s first motion for an evidentiary hearing was denied
without prejudice to renew upon consideration of the Supreme Court’s decision in Michael Williams v.
Taylor, 529 U.S. 420 (2000), his habeas counsel never filed a renewed motion. Under these circumstances,
we do not find it proper to remand to the district court for an evidentiary hearing.
No. 05-4211        Smith v. Mitchell                                               Page 15


       In arguing that these capital specifications were deficient, Smith primarily relies
on the Supreme Court’s decisions in Tison v. Arizona, 481 U.S. 137 (1987), and Enmund
v. Florida, 458 U.S. 782 (1982). In Tison, the Court stated, “Enmund held that when
‘intent to kill’ results in its logical though not inevitable consequence—the taking of
human life—the Eighth Amendment permits the State to exact the death penalty after a
careful weighing of the aggravating and mitigating circumstances.” Tison, 481 U.S. at
157. The Court therefore held “that the reckless disregard for human life implicit in
knowingly engaging in criminal activities known to carry a grave risk of death represents
a highly culpable mental state, a mental state that may be taken into account in making
a capital sentencing judgment when that conduct causes its natural, though also not
inevitable, lethal result.” Id. at 157-58. The Supreme Court recently noted with
approval that the Ohio “aggravated murder charge’s intent element [does] not require
any showing that [the defendant] had himself shot [the victim]. Rather, Ohio law
considers aiders and abettors equally in violation of the aggravated murder statute, so
long as the aiding and abetting is done with the specific intent to cause death.”
Bradshaw v. Stumpf, 545 U.S. 175, 184 (2005).

       Smith essentially argues that the state did not prove that he had the specific intent
required to sentence him to death for the murder of Ruth Ray, because the capital
specifications used do not require a showing of “prior calculation and design.” This
argument fails, however, because, the Ohio Supreme Court reasonably concluded that
the jury found that Smith and his brother had planned to kill both Lewis and Ruth Ray
to avoid leaving any witness, providing the requisite intent. Smith, 684 N.E.2d at 693.
Smith’s focus on the wording of the capital specifications ignores the fact that the
specific intent to cause death is an element of the aggravated-felony-murder statute
itself, which requires that “[n]o person shall purposely cause the death of another while”
committing or fleeing an enumerated felony. Ohio Rev. Code § 2903.01(B) (1995)
(emphasis added). The aggravated-murder statute also states that “[n]o person shall be
convicted of aggravated murder unless he is specifically found to have intended to cause
the death of another” and instructs that the jury may not conclusively infer such intent
from the fact that the person “engaged in a common design with others to commit the
No. 05-4211           Smith v. Mitchell                                                       Page 16


offense by force and violence or because the offense and the manner of its commission
would be likely to produce death.” Ohio Rev. Code § 2903.01(D) (1995). Therefore,
regardless of the capital specifications, the jury made a finding of specific intent and
purpose to cause the death of Ruth Ray when it found Smith guilty of her aggravated
murder under § 2903.01. No more was required under Enmund and Tison.

         Smith also argues that the jury instructions improperly added the phrase “as an
aider and abettor” to the language of the third capital specification, § 2929.04(A)(7),3
resulting in failure “genuinely [to] narrow the class of persons eligible for the death
penalty or reasonably [to] justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder” as required by Zant v. Stephens,
462 U.S. 862, 877 (1983). Smith Br. at 35. Smith argues that this addition removed the
requirement that Smith acted with prior calculation and design in the murder of Ruth
Ray, which is a requirement of the capital specification for defendants, such as Smith,
who were not the principal offender. This argument fails. Any confusion caused by this
phrase was cleared up by the next paragraph of the jury instructions, which explained
that “[p]rior calculation and design means that the purpose to cause the death was
reached by a definite process of reasoning in advance of the homicide, which process of
reasoning must have included a mental plan involving studied consideration of the
method and the means or instrument with which to cause the death of another.” Jury
Instructions at 19; Trial Tr. at 978. Therefore, adding the phrase “as an aider and
abettor” does not remove the requirement that Smith had “prior calculation and design”
with regard to the murder of Ruth Ray. The specification required that the jury find that



         3
            Section § 2929.04(A)(7) allows for imposition of the death penalty if
          [t]he offense was committed while the offender was committing, attempting to commit,
          or fleeing immediately after committing or attempting to commit . . . aggravated robbery
          . . . , and either the offender was the principal offender in the commission of the
          aggravated murder or, if not the principal offender, committed the aggravated murder
          with prior calculation and design.
§ 2929.04(A)(7). Smith’s jury instruction added the phrase “as an aider and abettor,” requiring that the
jury find that
          [t]he aggravated murder of Ruth Ray was committed while the defendant, Kenneth
          Wayne Smith, acting with prior calculation and design as an aider and abettor in the
          commission of the aggravated murder of Ruth Ray, was committing or attempting to
          commit the offense of aggravated robbery.
Jury Instructions at 18; Trial Tr. at 978.
No. 05-4211           Smith v. Mitchell                                                      Page 17


Smith had prior calculation and design to murder Ruth Ray, and the Ohio Supreme Court
found that the jury did so find. Smith, 684 N.E.2d at 693. Neither the felony-murder
provision of Ohio’s aggravated-murder statute nor the capital specifications found in
Smith’s case violated the Supreme Court’s holdings in Tison, Enmund, or Zant.4

E. Constitutionality of Ohio’s Death-Penalty Scheme

        Smith argues that Ohio’s death-penalty statute is unconstitutional on its face and
as applied to Smith because it imposes arbitrary and unequal punishment and because
it employs an inadequate system of proportionality review. The Ohio Supreme Court
did not address these claims directly when raised by Smith on direct appeal, but did
evaluate the appropriateness and proportionality of Smith’s sentence, declining to
compare it to his brother Randy’s sentence. Smith, 684 F.3d at 694-98. To the extent
that the Ohio Supreme Court did not address Smith’s claims on direct appeal, we review
these arguments de novo. See Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005),
cert. denied, 546 U.S. 1100 (2006).

        Smith makes two arguments to support his facial challenge to Ohio’s death-
penalty scheme, both of which are foreclosed by prior Sixth Circuit precedent. First,
Smith argues that “[p]rosecutors’ virtually uncontrolled indictment discretion allows
arbitrary and discriminatory imposition of the death penalty.” Smith Br. at 41. We have
previously rejected the same argument regarding the death-penalty system in Ohio. See
Williams v. Bagley, 380 F.3d 932, 963 (6th Cir. 2004), cert. denied, 544 U.S. 1003
(2005). Second, Smith argues that Ohio’s system of proportionality and appropriateness
review, as required by sections 2929.021 and 2929.03 of the Ohio Revised Code, is
inadequate. Specifically, Smith argues that the “statutes[’] failure to require the jury or
three-judge panel recommending life imprisonment to identify the mitigating factors
undercuts adequate appellate review,” Smith Br. at 43, that “[l]imiting review to only
cases where the death penalty was imposed . . . prevents a fair proportionality review,”


        4
          Smith also argues that § 2929.04(A)(3) violates double jeopardy because he was punished twice
for the murder of Lewis Ray. This claim is not within the scope of the COA, which was concerned with
whether Smith was unconstitutionally sentenced to death for the murder of Ruth Ray.
No. 05-4211        Smith v. Mitchell                                              Page 18


id., and that the Ohio Supreme Court’s cursory appropriateness review violates due
process. Again, we previously rejected these same challenges to Ohio’s death penalty-
scheme. See Buell v. Mitchell, 274 F.3d 337, 367-69 (6th Cir. 2001). For these reasons,
Smith’s facial challenge to the Ohio death-penalty system must fail.

       Smith also argues that Ohio’s death-penalty scheme resulted in arbitrary and
unequal punishment as applied to Smith because he was sentenced to death while his
accomplice, his brother Randy, was sentenced to life in prison. This court recently
rejected a similar argument in Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) (en banc),
cert. denied, --- U.S. ---, 128 S. Ct. 1475 (2008), which concluded that the Ohio Supreme
Court’s decision upholding the defendant’s death sentence in the face of a codefendant’s
life sentence was neither contrary to nor an unreasonable application of clearly
established federal law.     495 F.3d at 305 (“[A] defendant could not ‘prove a
constitutional violation by demonstrating that other defendants who may be similarly
situated did not receive the death penalty.’” (quoting McCleskey v. Kemp, 481 U.S. 279,
306-07 (1987))). Because we are bound by the precedent established in Getsy, we must
conclude that the Ohio Supreme Court’s refusal to consider Randy Smith’s life sentence
in upholding Kenneth Smith’s death sentence was neither contrary to nor an
unreasonable application of clearly established federal law.

F.     Constitutionality of Ohio’s One-Tier System of Appellate Review of Capital
       Cases
       Smith was the first capital inmate in Ohio subject to the amendments to the Ohio
constitution that eliminated the intermediate level of appellate review for capital
defendants. See Ohio Const. art. IV, § 3(B)(2). Under these amendments, which apply
to all cases in which the crime was committed on or after January 1, 1995, defendants
sentenced to the death penalty may appeal directly to the Ohio Supreme Court as a
matter of right. Ohio Const. art. IV, § 2(B)(2)(c). Smith argues that this one-tier system
of appellate review for capital cases violates his equal protection and due process rights
and constitutes cruel and unusual punishment under the Eighth Amendment. Because
Smith was the first capital defendant in Ohio to be subject to the new system, his claims
No. 05-4211        Smith v. Mitchell                                             Page 19


were considered in depth by the Ohio Supreme Court on direct review, which found that
Ohio’s system did not violate the Constitution. Smith, 684 N.E.2d at 678-85.

       Regarding the equal-protection claim, Smith argues that the one-tier system
unconstitutionally treats noncapital defendants more favorably than capital defendants
with no rational basis for the disparate treatment. The Ohio Supreme Court correctly
applied rational-basis review to Smith’s claim, following the standard in Estelle v.
Dorrough, 420 U.S. 534, 539 (1975). As the Ohio Supreme Court explained, in certain
ways capital defendants have more appeal rights than noncapital defendants under
Ohio’s appellate-review system, because capital defendants may appeal all issues,
including noncapital convictions, to the Supreme Court as a matter of right, whereas
“[o]nly two to three percent of all noncapital defendants who seek review by this court
even have their cases heard.” Smith, 684 N.E.2d at 682. More important, the Ohio
Supreme Court articulated a rationale for treating capital defendants differently than
noncapital defendants:

               In addition, defendants sentenced to imprisonment are usually
       already serving their terms and have a great interest in expediting their
       appeals. Capital defendants, on the other hand, while seeking to overturn
       their convictions, also seek to prolong the appeal process as long as
       possible, using every conceivable avenue of attack, and the statistics
       show they have been extremely successful in Ohio.
Id. at 682. The Ohio Supreme Court’s conclusion that Ohio’s capital appellate system
passes rational basis review is not contrary to or an unreasonable application of clearly
established federal law.

       Smith’s due-process argument is essentially the same as his equal-protection
argument: because “[d]eath is different,” capital defendants should be provided more
process than noncapital defendants. Smith Br. at 55. Responding to Smith’s due-
process argument, the Ohio Supreme Court again explained that review of right directly
to the state supreme court has advantages over review of right only to the intermediate
state appellate court:
No. 05-4211        Smith v. Mitchell                                             Page 20


               Additionally, a single-tier system does not violate the capital
       defendant’s right to due process. A direct appeal to this court affords a
       capital defendant significant advantages in comparison with other
       criminal defendants. As stated, all of a defendant’s issues, both
       noncapital and capital, constitutional or statutory, are reviewed by the
       Supreme Court. A court of appeals must apply this court’s existing
       precedents, but this court can directly reverse its own precedents. A
       defendant can still directly challenge existing precedent and seek change.
       Indeed, his or her opportunities are better, as a lower court could not
       reexamine precedent from the Supreme Court.
               Further, this court can more readily judge both the
       appropriateness and proportionality of death sentences on a statewide
       basis, instead of the geographical limits of an appellate district. An
       appellate court does not have the breadth and scope of experience that
       this court has to review the death sentences of all eighty-eight counties
       and to measure the appropriateness and proportionality of all cases in the
       state.
Smith, 684 N.E.2d at 683 (citations omitted). Further, contrary to Smith’s argument, the
fact that capital defendants were afforded greater rights before the amendment does not
mean that the lesser rights they now have are less than the Due Process Clause requires.

       Smith also argues that Ohio’s one-tier system of appellate review violates the
Eighth Amendment’s guarantee against cruel and unusual punishment because this
system does not provide for “meaningful appellate review,” leading to the imposition of
the death penalty in an arbitrary and capricious manner. Smith Br. at 56-57. The
Supreme Court has not directly addressed the issue of whether a one-tier system of
appellate review violates the Eighth Amendment, but the Court has “held that [the death
penalty] could not be imposed under sentencing procedures that created a substantial risk
that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428
U.S. 153, 188 (1976) (citing Furman v. Georgia, 408 U.S. 238 (1972)). The Supreme
Court has allowed states substantial leeway in implementing procedures to assure that
the death penalty is not imposed arbitrarily or capriciously, refusing “to say that there
is any one right way for a State to set up its capital sentencing scheme.” Spaziano v.
No. 05-4211           Smith v. Mitchell                                                        Page 21


Florida, 468 U.S. 447, 464 (1984); accord Gregg, 428 U.S. at 195.5 One tool that states
may use is an appropriateness and proportionality review by the state supreme court.
See Gregg, 428 U.S. at 204-06 (noting that the Georgia Supreme Court’s proportionality
review “serves as a check against the random or arbitrary imposition of the death
penalty”). As discussed above, the Ohio Supreme Court reasonably rejected Smith’s
arguments that Ohio’s scheme does not provide for meaningful adequate review for
appropriateness and proportionality, noting that the Ohio Supreme Court “can more
readily judge both the appropriateness and proportionality of death sentences on a
statewide basis, instead of the geographical limits of an appellate district.” Smith, 684
N.E.2d at 683. We therefore conclude that the Ohio Supreme Court’s decision
upholding Ohio’s one-tier system of appellate review was neither contrary to nor an
unreasonable application of clearly established federal law.

                                       III. CONCLUSION

         For these reasons, we AFFIRM the district court’s denial of Smith’s petition for
habeas relief under 28 U.S.C. § 2254.




         5
           The Ohio Supreme Court noted that, at the time of Smith’s direct appeal, at least thirty-three
other states provided only one level of appellate review to capital defendants. Smith, 684 N.E.2d at 680-
81.
