Antonio Franklin v. Margaret Bradshaw

Filing

OPINION and JUDGMENT filed: The district court's denial of Franklin's petition for a writ of habeas corpus is AFFIRMED. Decision for publication pursuant to local rule 206. Danny J. Boggs (AUTHORING), R. Guy Cole, Jr., and Julia Smith Gibbons, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0342p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 09-3389
v.
>
,
MARGARET BRADSHAW,
Respondent-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 04-00187—Michael R. Merz, Magistrate Judge.

ANTONIO FRANKLIN,

Petitioner-Appellant,

Argued: November 16, 2011
Decided and Filed: September 19, 2012
Before: BOGGS, COLE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio,
for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: S. Adele Shank, LAW OFFICE OF S.
ADELE SHANK, Columbus, Ohio, James P. Fleisher, BIESER, GREER & LANDIS,
Dayton, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Antonio Franklin, an Ohio death-row prisoner, appeals
a district court judgment denying his petition for a writ of habeas corpus. See 28 U.S.C.
§ 2254. The district court granted a certificate of appealability (COA) on nine claims.
The first claim actually consists of two related, yet distinct, subclaims. Thus, there are
ten claims presented on appeal. First, Franklin claims that the trial court erred at the
1

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pretrial competency hearing in determining that he was competent. Second, Franklin
argues that he was tried while incompetent. Third, Franklin asserts that the trial court
erred in not ordering sua sponte a second competency hearing after the start of the trial.
Fourth, Franklin claims that trial counsel were ineffective for failing to request a second
competency hearing. Fifth, Franklin asserts that the trial court abused its discretion by
denying a continuance after one of his arson experts died before testifying at trial.
Sixth, Franklin claims that his execution would constitute cruel and unusual punishment
because he committed the crimes when he was mentally ill.

Seventh and eighth,

Franklin asserts that his execution would violate his Equal Protection and Due Process
Rights because he committed his crimes when he was mentally ill. Ninth, Franklin
asserts that the definition of “reasonable doubt” given in the guilt-phase jury instructions
was constitutionally inadequate. Tenth, Franklin argues that the trial court erred in
admitting gruesome photographs. We affirm the district court’s judgment.
I
A
On April 18, 1997, nineteen-year-old Antonio Franklin killed his grandmother,
grandfather, and uncle. Franklin shot his grandmother in the head and beat her in the
head, probably with a baseball bat. Franklin beat his uncle in the head with a baseball
bat. Franklin beat his grandfather in the back of his head with some object other than
a baseball bat. After these attacks, Franklin set the house on fire and left the three to die.
His grandmother died of either the gunshot wound or her blunt-force injuries. His
grandfather and uncle died of a combination of blunt-impact injuries and smoke
inhalation. Franklin fled from this grisly scene in his grandfather’s car, taking with him
his grandfather’s gun and his grandmother’s jewelry.
B
Franklin was charged in a 17-count indictment with nine counts of aggravated
arson, two counts of aggravated robbery, and six counts of aggravated murder that
reflected the two ways that each of the three killings could be classified: prior-

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calculation-and-design murder and felony murder. A firearm specification was attached
to one of the aggravated robberies and two of the aggravated murders—the three crimes
committed against Franklin’s grandmother. Four death specifications were attached to
each aggravated murder: murder for the purpose of escaping detection, apprehension,
trial, or punishment for another offense (“escaping-detection” specification); murder
during commission of aggravated robbery (“aggravated-robbery” specification); murder
during commission of aggravated arson (“aggravated-arson” specification); and murder
as part of a course of conduct involving the purposeful killing of two or more persons
(“mass-murder” specification). Franklin pleaded not guilty by reason of insanity and
claimed incompetence to stand trial.
The trial court found him competent at a pretrial competency hearing but
dismissed two of the aggravated-arson charges. The jury found Franklin guilty of the
remaining 15 counts (seven aggravated arsons, two aggravated robberies, and six
aggravated murders) and all attached specifications. The jury recommended a sentence
of death. Agreeing with the jury, the trial court sentenced Franklin to death and 91 years
of imprisonment. The trial court overruled Franklin’s motion for a new trial.
On direct appeal, the Ohio Supreme Court merged the escaping-detection
aggravator into the aggravated-robbery and aggravated-arson aggravators (“the felonymurder aggravators”), then independently reweighed aggravation and mitigation before
determining that death was indeed the appropriate sentence. The court otherwise
affirmed. State v. Franklin, 776 N.E.2d 26 (Ohio), reh’g denied, 780 N.E.2d 288 (Ohio
2002), cert. denied, 539 U.S. 905 (2003).

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Franklin unsuccessfully sought relief via post-conviction proceedings.1 In 2004,
Franklin filed a federal habeas corpus petition raising 51 claims. The district court
denied the petition and dismissed it with prejudice but granted a COA on the nine claims
at issue here: claims 1, 2, 14, 22, 30, 31, 32, 34, and 45 (claim 1 has two subparts).
Franklin v. Bradshaw, No. 3:04-cv-187, 2009 WL 649581 (S.D. Ohio Mar. 9, 2009).
Franklin timely appealed.
C
Franklin filed his federal petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), whose standards therefore govern. See
Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). District court rulings on legal questions
and mixed questions of law and fact are reviewed de novo. Lucas v. O’Dea, 179 F.3d
412, 416 (6th Cir. 1999). This de novo review does not extend, however, to the state
court’s conclusions. A federal court may not grant habeas relief on any claim adjudicated
on the merits in state court unless the adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court; or (2) was based on an unreasonable determination
of the facts in light of the evidence presented to the state courts. See 28 U.S.C.
§ 2254(d). In analyzing whether a state-court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may look
only to the holdings of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000).
A state-court decision on the merits is contrary to clearly established Supreme
Court precedent only if the reasoning or the result of the decision contradicts that

1

See State v. Franklin, No. 97-CR-1139 (Montgomery C.P. Aug. 23, 2001), aff’d, No. 19041,
2002 WL 1000415 (Ohio Ct. App. May 17, 2002) (unpublished), juris. denied, 782 N.E.2d 77 (Ohio 2003),
reh’g denied, 804 N.E.2d 37 (Ohio 2004); pro se successor post-conviction proceedings, State v. Franklin,
No. 97 CR 1139 (Montgomery C.P. Aug. 27, 2004), aff’d, No. 20716, 2005 WL 678925 (Ohio Ct. App.
Mar. 25, 2005) (unpublished), juris. denied, 830 N.E.2d 1170 (Ohio 2005), cert. denied, 546 U.S. 1179
(2006), State v. Franklin, No. 19041 (Ohio Ct. App. Sept. 22, 2005), juris. denied, 842 N.E.2d 1054
(Ohio), cert. denied, 549 U.S. 878 (2006); pro se Murnahan motions (Ohio’s vehicle for bringing
appellate-counsel-ineffectiveness claims, State v. Murnahan, 584 N.E.2d 1204, ¶ 2 (Ohio 1992)), State v.
Franklin, No. 98-2061 (Ohio Mar. 19, 2003), State v. Franklin, No. 98-2061 (Ohio Aug. 4, 2004).

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precedent. Early v. Packer, 537 U.S. 3, 8 (2002). A federal court may grant habeas
relief under the unreasonable-application clause if the state-court decision: (1) identifies
the correct governing legal principle from the Supreme Court’s decisions, but
unreasonably applies it to the facts; or (2) either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent to a new context.
Williams, 529 U.S. at 407–08. To violate the unreasonable-application clause, the statecourt application of Supreme Court precedent must have been “objectively
unreasonable,” not simply erroneous or incorrect. Id. at 409–11. State-court factual
findings are presumed correct unless rebutted by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
II
Franklin raises four variations on the argument that he was not competent to be
tried. First, he asserts that at the pretrial competency hearing, the trial court erred in
determining that he was competent (Subclaim 1(a)). Second, he claims that at the actual
trial, he was incompetent (Subclaim 1(b)). Third, he argues that the trial court erred in
not sua sponte ordering a second competency hearing (Claim 2). Fourth, he claims that
trial counsel were ineffective in failing to request a second competency hearing
(Claim 14). Each claim is without merit.
A
“A criminal defendant may not be tried unless he is competent.” Godinez v.
Moran, 509 U.S. 389, 396 (1993). The standard for competence to stand trial is whether
the defendant has: (1) sufficient present ability to consult with a lawyer with a
reasonable degree of rational understanding; and (2) a rational and factual understanding
of the proceedings against him. Id. at 396. The due-process right to a fair trial is
violated by a court’s failure to hold a proper competency hearing where there is
substantial evidence of a defendant’s incompetency. Pate v. Robinson, 383 U.S. 375,
385–86 (1966). “[E]vidence of a defendant’s irrational behavior, his demeanor at trial,
and any prior medical opinion on competence to stand trial are all relevant in

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determining whether further inquiry is required, but . . . even one of these factors
standing alone may, in some circumstances, be sufficient.” Drope v. Missouri, 420 U.S.
162, 180 (1975). On review, this court must determine whether a reasonable judge,
situated as was the trial judge, should have doubted the defendant’s competency.
Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir. 1983); see also Filiaggi v.
Bagley, 445 F.3d 851, 859 (6th Cir. 2006).
A state-court determination of competence is a factual finding, to which
deference must be paid.

Thompson v. Keohane, 516 U.S. 99, 108–11 (1995).

“[R]egardless of whether we would reach a different conclusion were we reviewing the
case de novo, the findings of the state court must be upheld unless there is clear and
convincing evidence to the contrary.” Clark v. O’Dea, 257 F.3d 498, 506 (6th Cir. 2001)
(applying 28 U.S.C. § 2254(e)(1)); see also Wood v. Allen, 130 S. Ct. 841, 849 (2010)
(stating that as for 28 U.S.C. § 2254(d)(2), “a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance”). And that deference must be paid even to state-court
factual findings made on appeal. See Rushen v. Spain, 464 U.S. 114, 120 (1983);
Sumner v. Mata, 449 U.S. 539, 546–47 (1981). “Further, the Supreme Court has very
recently made abundantly clear that the review granted by AEDPA is even more
constricted than AEDPA’s plain language already suggests.” Peak v. Webb, 673 F.3d
465, 472 (6th Cir. 2012). “[S]o long as fairminded jurists could disagree on the
correctness of the state court’s decision,” relief is precluded under AEDPA. Harrington
v. Richter, 131 S. Ct. 770, 786 (2011) (internal quotation marks omitted).
B
On May 21, 1998, the trial court held a competency hearing. Eugene S. Cherry,
Ph.D., testified as an expert witness for the defense, and Thomas O. Martin, Ph.D.,
testified as an expert witness for the State. Dr. Cherry testified that Franklin suffered
from paranoid schizophrenia, had been both paranoid and delusional since about
eight months before the murders, and was presently incompetent to stand trial.
Dr. Martin, by contrast, testified that Franklin was not mentally ill and was competent.

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Roughly two weeks later, tracking, but not citing, the test from Moran, the trial court
found Franklin competent:
The law presumes that Defendant is competent to stand trial
(2945.37(G)). The Defendant has not overcome this presumption by a
preponderance of the evidence[,] and the Court finds he is capable of
advising his attorneys in his own defense, does understand the nature
and objectives of the proceedings against him and is therefore,
competent to stand trial.
(emphasis added).
On August 6, 1998, two-and-a-half months after the competency hearing, trial
began. According to Franklin, his condition had deteriorated, and it is apparent from the
videotape of the trial that he was not visibly engaged in the proceedings. During the first
few days, he sat alone, while defense counsel sat behind the prosecution table. Franklin
nodded, stared at the floor, played shadow games with his tie, and even formed shadow
figures with his hands “in light cast from the screen upon which were displayed slides
of his deceased family members and the burned house in which they died.” He burped
so often that the prosecutor mentioned it. Franklin also disrupted the proceedings by
calling out to the judge that he needed to use the bathroom. Near the end of trial, a
deputy guarding Franklin informed the court that his personality was changing and asked
that he be shackled while in the courtroom. At sentencing, defense counsel told the
court that, as an officer of that court, he personally believed Franklin was severely
mentally ill and that he had been “very little if no help at all” in assisting in his defense.
C
Franklin’s claim that he was “tried while incompetent” involves two subclaims:
(a) the trial court erred in determining that Franklin was competent at the pretrial
competency hearing; and (b) Franklin was incompetent at the trial, held two-and-a-half
months later. In other words, even assuming he was competent at the pretrial
competency hearing, by the time trial commenced two-and-a-half months later, he was
no longer competent. The latter subclaim overlaps with Franklin’s third claim that the

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district court erred in not ordering sua sponte a second competency hearing during the
trial.
1
First, we consider the issue of Franklin’s competency at the time of the pre-trial
competency hearing. Franklin contends that the pretrial determination that he was
competent to stand trial was an unreasonable determination of fact in light of the
evidence and an unreasonable application of clearly established Supreme Court
precedent. He did not challenge the trial court’s competency determination in state
court, however, and it is not completely clear that he even raised this subclaim in his
federal habeas petition. The Warden did not raise a procedural-default defense, but the
district court nonetheless credited the Warden with raising the argument. Although the
district court suggested that the claim might be procedurally defaulted, it nevertheless
reached the merits and denied relief.
On appeal, the Warden argues that this subclaim is defaulted because it was
never raised in state court. She concedes that she did not raise the default defense below,
but points out that this court may raise it sua sponte. Lorraine v. Coyle, 291 F.3d 416,
426 (6th Cir.), amended on other grounds on reh’g, 307 F.3d 459 (6th Cir. 2002).
Alternatively, the Warden contends that the subclaim is meritless. Franklin does not
reply to the default argument that the Warden makes for this subclaim. We find that this
subclaim is defaulted and, alternatively, it is meritless.
a
Franklin did not present this claim to the state courts, nor may he take it there
now.2 Claims that could have been, but were not, presented to the state courts and that
are now barred by state procedural rule are deemed procedurally defaulted. See Murray
v. Carrier, 477 U.S. 478, 485 (1986). Default is excused if the petitioner demonstrates:

2

It could not, for example, be presented in a post-conviction petition, because—assuming he was
even permitted to file yet another—a post-conviction petitioner in Ohio is not allowed to raise
constitutional claims that could have been raised on direct appeal. See State v. Perry, 226 N.E.2d 104,
¶¶ 7–9 (Ohio 1967).

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(1) cause for the default and prejudice flowing therefrom; or (2) that failure to consider
the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson,
501 U.S. 722, 750 (1991). Franklin argues neither cause and prejudice nor fundamental
miscarriage of justice. We find that this subclaim is defaulted.
b
Even assuming that this subclaim was not defaulted, it fails on the merits. Two
witnesses accepted as experts in the matter testified, and they disagreed about whether
Franklin was competent. He has not shown that the trial court was clearly wrong in
believing the State’s expert. Nor has Franklin shown that the district court’s finding was
an unreasonable determination of the facts in light of the evidence presented.
2
Separate from his claim that he was not competent during the trial, Franklin
argues that the trial court erred in not ordering sua sponte a second competency hearing
midtrial. On direct appeal, the Ohio Supreme Court found this argument meritless.
Franklin raised the claim in state post-conviction proceedings, where the state court of
appeals held it was barred by res judicata. In federal habeas proceedings, the district
court held that the Ohio Supreme Court’s rejection of the claim was neither an
unreasonable determination of the facts in light of the evidence presented nor clearly
wrong.
To show that the trial court was aware of sufficient indicia of incompetence that
it was required to order a midtrial competency hearing, Franklin first points to his
pretrial suicide attempt and his stabbing of a cellmate while awaiting trial. Franklin’s
reliance on these two events is misplaced, however, as this information was before the
trial court during its pretrial competency determination—in Dr. Cherry’s original
competency report—and thus did not provide the court with any new evidence that
would require a reevaluation of Franklin’s competency.
Franklin also invokes Dr. Cherry’s expert testimony characterizing Franklin as
paranoid schizophrenic—given at the first competency hearing—as a reason to hold a

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second competency hearing. But Franklin cannot rely on testimony already considered
at the first competency hearing as cause to demand a second. As the Ohio Supreme
Court noted, Dr. Cherry’s testimony did not require the trial court to hold an additional
competency hearing “because similar testimony had been presented at appellant’s
pretrial competency hearing” and thus had already been considered in the court’s
original competency determination. Franklin, 776 N.E.2d at 35.
Finally, Franklin relies on his affect and demeanor at trial—nodding, staring at
the floor, rarely paying attention, making shadow figures with his hands, and playing
shadow games with his tie—as evidence that the trial court was on notice of his
incompetence and thus required to hold a second hearing. As his most poignant
example, Franklin describes his reaction when autopsy photographs depicting the
charred, disfigured, and gory remains of his relatives were presented to the jury—he
made shadow figures on the projection screen. Furthermore, Franklin recounts that at
the trial’s conclusion, the deputy guarding him informed the court that Franklin’s
personality was changing and requested that he be shackled, a request the court denied.
Despite this odd courtroom behavior, according to Franklin’s own summary of
events, his actions were a continuation of the type of behavior he engaged in at the
competency hearing.

At that hearing, rather than attending to the courtroom

proceedings, Franklin stared at his hands, the ceiling, or in front of him, showing little
interest or emotion and playing with his handcuffs. The trial court had already seen and
considered Franklin’s detached affect when making its pretrial competency
determination. To the extent that Franklin’s behavior was more extreme than what the
trial court witnessed during the initial competency hearing, the Ohio Supreme Court
found that Franklin’s actions “illustrated a pattern of rudeness rather than incompetency
to stand trial.” Ibid. The district court noted that “Franklin’s burden [on habeas review
was] to demonstrate that the state supreme court’s determination that it was rudeness
rather than incompetence that explained his strange behavior during his trial was an
‘unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.’”

Franklin, 2009 WL 649581, at *19 (quoting 28 U.S.C.

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§ 2254(d)(2)). The district court correctly concluded that Franklin failed to supply “clear
and convincing evidence sufficient to justify a finding that the state supreme court’s
[determination] was unreasonable.” Ibid. (internal quotation marks omitted).
The trial court has a continuing duty to “always be alert to circumstances
suggesting a change that would render the accused” incompetent. Drope, 420 U.S. at
181. However, because Franklin failed to provide significant evidence that was not
before the court during its original competency hearing and failed to show that his
behavior at trial was evidence of incompetence rather than rudeness, the trial court was
not required to hold a second hearing. As such, the trial court’s failure to hold a midtrial
competency hearing sua sponte was not a “decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
3
Franklin contends that, whether the pretrial determination of competence was
correct or not, he was incompetent two-and-a-half months later, leading up to and during
the trial. This subclaim does not argue that the trial court erred in failing to order a
midtrial competency hearing. That assertion is raised in claim 2. This subclaim instead
argues that the fact that Franklin was incompetent at trial rendered that trial
unconstitutional.
Franklin raised this argument in state post-conviction proceedings. However, the
state court of appeals seemed to merge the resolution of this subclaim with claim
2 (whether another competency hearing was required). Thus, the state courts did not
consider this discrete subclaim separately when denying it on collateral review.
During federal habeas proceedings, the Warden seemed unaware that this claim
existed as a separate subclaim and so did not deal with it. Likewise, the district court
never dealt with this as a discrete subclaim, existing separate and apart from both
Subclaim 1(a) and Claim 2. Like the state court of appeals, the district court subsumed
this subclaim into the broader issue of whether Franklin was entitled to a second
competency hearing. Because the Warden has not argued that it is procedurally

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barred—and because it is not clear that it is procedurally barred, cf. Cone v. Bell, 129 S.
Ct. 1769, 1781 (2009) (“When a state court declines to review the merits of a petitioner’s
claim on the ground that it has done so already, it creates no bar to federal habeas
review.”)—we will reach the merits.
Subclaim 1(b) (incompetency during trial) and claim 2 (error in not holding a
second competency hearing)—which are distinct legal claims—rest on the exact same
evidence: Franklin’s behavior after the first competency hearing and during the trial.
These claims are subject to the deferential AEDPA standard. 28 U.S.C. § 2254(d)(2)
(“[A] writ of habeas corpus . . . shall not be granted . . . unless the adjudication of the
claim . . . 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.”); Harrington,
131 S. Ct. at 786 (noting that as long as “fairminded jurists could disagree on the
correctness of the state court’s decision,” relief is precluded under AEDPA.) As
discussed earlier, a review of only the evidence before the trial court—and not new
evidence raised at the evidentiary hearing, see Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011)—regarding Franklin’s competency falls short of indicating that Franklin
was incompetent during trial. Franklin fails to establish that having him stand trial in
light of his unusual courtroom behavior, which the Ohio Supreme Court deemed a
demonstration of “rudeness,” is contrary to or an unreasonable application of clearly
established federal law.
D
Franklin argues that trial counsel were ineffective in the guilt phase in failing to
request another competency hearing. The district court denied this claim because, there
being no merit to the underlying claim (trial-court error in not sua sponte ordering
another hearing), there could be no merit to this claim either. We agree.
To establish trial counsel’s ineffectiveness, petitioner must show: (1) that
counsel’s performance was deficient, i.e., objectively unreasonable under prevailing
professional norms; and (2) that this deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). Prejudice exists if there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different. Id. at 694.
Because this claim was raised on direct appeal and Franklin abandoned the postconviction version of the claim, see Robinson v. Jones, 142 F.3d 905, 906 (6th Cir.
1998), he can only rely on the record evidence that was before the Ohio Supreme Court
on direct appeal. Based on this evidence and the presumptions attendant to the state
supreme court’s findings, Franklin was competent. There was no reason to hold a
second competency hearing. It causes no prejudice not to raise an argument that would
have lost anyway. Hence, counsel caused Franklin no prejudice when they did not
request another competency hearing. The Ohio Supreme Court’s rejection of this claim
was neither contrary to, nor an unreasonable application of, clearly established Supreme
Court precedent, was not based on an unreasonable determination of the facts in light of
the evidence presented, and was not clearly erroneous. Franklin fails to demonstrate
prejudice.
III
Turning to arguments other than competency, Franklin argues that the trial court
erred by denying him the continuance that he requested when one of his two arson
experts died just days before testifying. Franklin raised this claim in a motion for new
trial, which the trial court overruled. On direct appeal, the Ohio Supreme Court held that
the claim was without merit. The district court held that the decision was neither
contrary to, nor an unreasonable application of, clearly established Supreme Court
precedent. Although the district court mentioned some evidence that came out at the
federal evidentiary hearing,3 the court’s ultimate holding was “[b]ased on the
information available to the trial judge at the time the motion for a continuance was
made.” This claim is without merit.

3

The evidentiary hearing was held two months before the Supreme Court’s decision in Cullen
v. Pinholster, 131 S. Ct. 1388 (2011). Cullen held that federal habeas review under 28 U.S.C. § 2254(d)
is generally limited to the record that was before the state court that adjudicated the claim on the merits.
Id. at 1398, 1400 & n.7. In accordance with Cullen, we do not consider any evidence adduced at the
hearing.

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Trial courts are granted broad discretion on matters of continuances. Morris v.
Slappy, 461 U.S. 1, 11 (1983). “The denial of a defendant’s motion for a continuance
amounts to a constitutional violation only if there is an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay.” United
States v. King, 127 F.3d 483, 486–87 (6th Cir. 1997) (internal quotation marks omitted);
see also Morris, 461 U.S. at 11–12. As the Supreme Court put it:
The matter of continuance is traditionally within the discretion of the trial
judge, and it is not every denial of a request for more time that violates
due process even if the party fails to offer evidence or is compelled to
defend without counsel. Contrariwise, a myopic insistence upon
expeditiousness in the face of a justifiable request for delay can render
the right to defend with counsel an empty formality. There are no
mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (emphasis added) (citations omitted). It is
not enough for the defendant to demonstrate error, however. He must demonstrate
reversible error: that the continuance’s denial “resulted in actual prejudice to his
defense.” King, 127 F.3d at 487 (internal quotation marks omitted). “The defendant
demonstrates ‘actual prejudice’ by showing that a continuance would have made relevant
witnesses available or added something to the defense.” Ibid.
The record shows that the State finished presenting its witnesses on Friday
afternoon, August 14, 1998. The defense planned to present its two arson experts,
William Fricker and William Yeazell, the following Monday. In preparation for their
case, defense counsel spent considerable time with Fricker on Saturday afternoon. Late
that evening, however, Fricker suddenly died. On Monday morning, August 17, counsel
moved for a continuance of one to two weeks to allow them to obtain a new expert to
replace Fricker. The court asked whether they had another expert available. Counsel
replied that, yes, they did: Yeazell was also an arson expert. But, counsel pointed out,
the State had two arson experts, and the defense wanted to present two, who would

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“complement each other.” The court indicated that the defense could present its arson
theory through Yeazell’s testimony and overruled the motion.
After presentation of the defense witnesses and just before presentation of the
State’s rebuttal witnesses, defense counsel renewed their motion for a continuance and
proffered the testimony Fricker would have given: “[H]e would’ve testified to the same
conclusions as has Mr. Yeazell regarding the cause and origin of the fire being the space
heater in the center room.”

The trial court overruled the motion. At the close of

evidence, defense counsel moved for a mistrial “due to the untimely death of
Mr. Fricker.” The court overruled the motion.
Later, when overruling Franklin’s motion for a new trial, the trial judge pointed
out that counsel had given him no indication that Fricker’s testimony would have
differed in any salient respect from Yeazell’s. The judge also wrote that he did not share
the “perception” of counsel
that they lost on the arson charge because the State had two experts and
[the defense] only had one. As the Court instructed the jury, it is the
quality of the testimony that is significant, and that may or may not
reside with the number of witnesses testifying on a particular subject.
On appeal, the Ohio Supreme Court held that the trial court had not abused its
discretion. In support of this conclusion, the state supreme court cited the following
factors:
1) the continuance was requested midtrial “which would have
inconvenienced everyone involved and would have placed the jurors out
of the court’s control for a great deal of time”;
2) this would have been the second continuance granted to the defense;
the court had postponed the start of trial for seven months because of an
auto accident one of Franklin’s counsel had been involved in; and
3) the defense was able to call Yeazell to testify.
The trial court’s denial of a continuance was neither unreasoned nor arbitrary.
See Morris, 461 U.S. at 11–12; King, 127 F.3d at 486–87. The trial court reasonably
found that the defense’s theory could be presented through Franklin’s other arson expert.

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Whether counsel had consciously prepared for this contingency or not, the fact remained
that Yeazell was available and was presumably prepared, since counsel already planned
to put him on. At the moment the continuance was requested, defense counsel gave the
judge no reason to think that Fricker’s testimony would have differed from Yeazell’s in
any important respect. Nor did they indicate that Fricker would have been a stronger
witness. That theory came later, after Yeazell’s cross-examination. At the time, the only
justifications counsel gave for needing another expert—and thus, needing more time to
get one—were parity (the State had two experts) and the defense’s desire for
complementary expert testimony. The trial judge’s response—given later, when denying
a new trial—was quite reasonable: it is the quality of the testimony, not the number of
witnesses, to which jurors are instructed to assign significance.
There is no doubt that the unexpected death of a prepared expert just two days
before he was scheduled to testify placed counsel in trying circumstances. However, this
difficult situation does not warrant the relief sought. There being no error, it is
unnecessary to consider prejudice. The Ohio Supreme Court’s rejection of this claim
was neither contrary to, nor an unreasonable application of, clearly established Supreme
Court precedent.
IV
Franklin argues that executing the seriously mentally ill violates the prohibition
against cruel and unusual punishment, the Equal Protection Clause, and the Due Process
Clause. None of these claims was raised in state court. These claims are defaulted.
A
Franklin argues that the Eighth Amendment, as extended to the states through the
Fourteenth Amendment, prohibits the execution of the mentally ill. The claim was never
raised in state court and is defaulted. To overcome default, Franklin must show cause
and prejudice or a fundamental miscarriage of justice.
Franklin argues that the claim could not have been raised earlier. The Supreme
Court has ruled that the Eighth Amendment draws its meaning from the evolving

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standards of decency that mark the progress of a maturing society. Atkins v. Virginia,
536 U.S. 304, 311–12 (2002) (citing Trop v. Dulles, 356 U.S. 86, 100–01 (1958)
(plurality)). Therefore, Franklin asserts that the claim could not be raised until those
standards had evolved to the point where executing the seriously mentally ill was
unconstitutional. He argues: “That time is now. It could not be raised before.”
Appellant Br. at 66.
Franklin similarly argues that the novelty of the claim provides cause to excuse
the default. “[W]here a constitutional claim is so novel that its legal basis is not
reasonably available to counsel, a defendant has cause for his failure to raise the claim
in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16 (1984).
These arguments fail. At bottom, Franklin’s claim depends on three cases, each
holding that it is unconstitutional to execute a particular category of defendants:
Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality), which prohibited execution of
those who were less than 16 years old when committing a murder; Atkins, 536 U.S. 304,
which prohibited execution of the mentally retarded; and Roper v. Simmons, 543 U.S.
551 (2005), which expanded Thompson’s prohibition to include those who were 16 or
17 when committing a murder. Franklin compares the severely mentally ill, with their
lesser culpability, to juveniles and the mentally retarded and argues that, as with them,
executing the severely mentally ill should be held unconstitutional. Although no
authorities have extended Thompson, Atkins, and Simmons to prohibit the execution of
those with mental illnesses, arguing to remove certain categories of murderers from the
death penalty, even when unsupported by earlier precedent, is a fairly common, not
especially novel strategy, as shown by the very cases Franklin cites.
Given that Franklin failed to raise this claim before the state courts, there is a
presumption that it is procedurally defaulted. In order for Franklin to overcome this
presumption, he must show that the claim could not have previously been raised.
Because he has failed to uphold his burden of demonstrating cause and prejudice, the
claim is procedurally defaulted.

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B
Franklin argues that the Equal Protection Clause prohibits the execution of those
who are mentally ill. The Warden argues that this claim is defaulted because it was
never raised in state court. Franklin argues that he was not required to present this claim
to the state courts because there was an absence of available state corrective process or
circumstances existed that rendered that process ineffective to protect his rights. What
he means by this argument is that the Ohio Supreme Court had rejected this claim one
year earlier in State v. Scott, 748 N.E.2d 11 (Ohio 2001), so he would have lost had he
presented the same claim. Disinclination to lose is not cause for not trying. “If a
defendant perceives a constitutional claim and believes it may find favor in the federal
courts, he may not bypass the state courts simply because he thinks they will be
unsympathetic to the claim.” Engle v. Isaac, 456 U.S. 107, 130 (1982). As the Warden
correctly notes, “[f]utility cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time.” Bousley v. United States,
523 U.S. 614, 623 (1998) (internal quotation marks omitted).
The claim was not raised in state court and may not be raised there now.
Franklin has established neither cause and prejudice nor a fundamental miscarriage of
justice. This claim is defaulted.
C
Franklin argues that the Due Process Clause prohibits the execution of the
mentally ill. The Warden argues that this claim is defaulted. Franklin again argues
novelty and absence or ineffectiveness of available state corrective process because of
the Scott decision. These arguments fail for the same reason that his Eighth Amendment
and Equal Protection arguments fail. The claim was not raised in state court and may
not be raised there now. Franklin has established neither cause and prejudice nor a
fundamental miscarriage of justice. This claim is defaulted.

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V
Franklin argues that the trial court gave a constitutionally inadequate definition
of “reasonable doubt.” This claim fails. Tracking Ohio’s statutory definition of
reasonable doubt, the challenged instruction offered to the jury provided:
Reasonable doubt is present when, after you have carefully considered
and compared all the evidence, you cannot say you are firmly convinced
of the truth of the charge or charges. It is a doubt based on reason and
common sense. Reasonable doubt is not mere possible doubt, because
everything relating to human affairs or depending on moral evidence is
open to some possible or imaginary doubt. Proof beyond a reasonable
doubt is proof of such character that an ordinary person would be willing
to rely and act upon it in the most important of his or her own affairs.
See Ohio Rev. Code § 2901.05(E).
Franklin attacks this definition on two grounds, one general, the other capitalspecific. The general claim asserts that Ohio’s definition of reasonable doubt is
constitutionally inadequate because it diminishes the level of proof needed to convict in
any criminal case. On direct appeal, the Ohio Supreme Court summarily rejected the
claim. In federal habeas proceedings, the district court understood Franklin to be raising
only the capital-specific argument—that a stricter reasonable-doubt instruction was
required to convict in capital cases than in other cases—and held it defaulted because
never raised in state court. Citing a long line of Sixth Circuit precedent, the district court
also held that the claim was without merit. See Buell v. Mitchell, 274 F.3d 337, 366
(6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854, 884 (6th Cir. 2000); Byrd v. Collins, 209
F.3d 486, 527 (6th Cir. 2000) (all dealing with the general attack on Ohio’s reasonabledoubt definition). We agree with the district court. As Buell, Scott, and Byrd all show,
that argument—assuming it was not defaulted—is meritless. Its rejection by the Ohio
Supreme Court was neither contrary to, nor an unreasonable application of, clearly
established Supreme Court precedent.
The Warden argues that the “substance” of Franklin’s capital-specific argument
is defaulted and that, in any event, the instruction given was constitutional. See Thomas

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v. Arn, 704 F.2d 865, 869 (6th Cir. 1983). Denying that he presented only a general
attack on the reasonable-doubt instruction on direct appeal, Franklin argues that his
capital-specific argument is not defaulted. He is wrong. He never argued that more
process was due capital defendants in the guilt phase than other defendants nor that a
stricter definition of reasonable doubt was required to convict them than was needed for
noncapital defendants. See Picard v. Connor, 404 U.S. 270, 276 (1971); Wong v.
Money, 142 F.3d 313, 322 (6th Cir. 1998). Because Franklin never raised this issue in
state court, it is defaulted. Franklin does not show cause and prejudice or a fundamental
miscarriage of justice for either attack on the instruction. This claim was properly
denied.
VI
Franklin argues that the trial court erred in admitting 18 gruesome autopsy
photographs of his victims that were shown to the jurors on a large projector screen. The
Ohio Supreme Court overruled the claim. “Errors by a state court in the admission of
evidence are not cognizable in habeas corpus proceedings unless they so perniciously
affect the prosecution of a criminal case as to deny the defendant the fundamental right
to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (stating the general due-process standard:
whether the error “so infected the trial with unfairness as to make the resulting
conviction a denial of due process”). After review of the photographs, we find that the
admission of the photographs did not meet this high standard. It was not contrary to
clearly established Supreme Court precedent for the Ohio Supreme Court to reject this
claim.
VII
All of Franklin’s claims are meritless or defaulted, and the judgment of the
district court denying the petition for a writ of habeas corpus is accordingly AFFIRMED.