Hale v. Shoop

Filing 40

Memorandum Opinion and Order: For the reasons set forth herein, petitioner Delano Hale's motion (Doc. No. 37 ) to expand the record is granted in part and denied in part. Hale's motion (Doc. No. 34 ) for discovery is denied. The Court denies Hale's Petition for Writ of Habeas Corpus (including the amended twenty-sixth ground for relief). (See Order for details.) Judge Sara Lioi on 3/31/2021. (E,CK)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DELANO HALE,

Petitioner,
vs.
WARDEN TIM SHOOP,

Respondent.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 1:18-cv-504

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

INTRODUCTION
Petitioner Delano Hale (“Hale” or “petitioner”) was convicted and sentenced to death in
the Cuyahoga County Common Pleas Court for the aggravated murder of Douglas Green. Hale
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his convictions and sentences. (Doc. No. 13. 1) He later amended his twentysixth ground for relief. (Doc. No. 24-1.) Respondent Warden Timothy Shoop (“Shoop” or
“respondent”) filed a return of writ to the petition and amended claim. (Doc. Nos. 17, 28.) Hale
filed a traverse (Doc. No. 31), and respondent filed a sur-reply. (Doc. No. 33.) For the reasons
stated below, Hale’s petition (including the amended twenty-sixth ground for relief) is DENIED.
FACTUAL HISTORY
The Ohio Supreme Court set forth the following facts underlying Hale’s convictions:
{¶ 1} On June 21, 2004, defendant-appellant Delano Hale Jr. killed Douglas Green
by firing four bullets into his head. He then stole Green’s Visa card and SUV. Hale
was convicted of aggravated murder with an aggravated-robbery specification and
was sentenced to death.
1
For ease of reference and the convenience of the reader, record citations will be made to document number rather
than document title.

{¶ 2} In 2003, Hale was released from prison after serving 12 years of a sentence
for aggravated robbery and carrying a concealed weapon. At first, he lived with his
father, but left in February 2004. That same month, he obtained a telemarketing job
with a base pay of $7.64 per hour. On March 9, 2004, Hale told his sister Lashayla
that he had a gun.
{¶ 3} By June 2004, Hale was in financial difficulty. His bank account had a
negative balance during all of June 2004. On June 8, he moved into Room 260 of
the Lake Erie Lodge, a motel in Euclid. He initially rented the room for a week. He
renewed his stay for another week on June 15, renewed for a single night on June
22, and checked out on June 23.
{¶ 4} On June 23, 2004, an employee of the lodge found a human corpse wrapped
in plastic garbage bags in Room 231, a vacant room being used for storage. He
notified the management, who summoned the police. The body was identified as
that of Douglas Green, a local voice teacher, professional singer, and music
producer.
{¶ 5} An autopsy disclosed that Green had been shot four times in the right side of
the head. Two shots went into Green’s right ear, one entered his skull directly
behind the ear, and one entered about two and one-half inches behind the ear. Three
of the four shots entered Green’s brain. Any one of these three wounds would have
immediately stopped any voluntary movement on Green’s part. Three of the
wounds were contact wounds, meaning that the shots were fired from no more than
an inch away. Gunshot residue was found on Green’s right hand, but not his left,
an indication that Green’s right hand was in close proximity to the gun when it was
fired.
{¶ 6} Green’s bank statement shows that at 12:07 p.m. on June 22, 2004, a person
using Green’s Visa card made a $55.15 purchase at a Giant Eagle store in
Willoughby Hills. Giant Eagle records show that the purchaser bought garbage
bags, cleaning supplies, beer, and cigarettes in that transaction. Green did not
smoke or drink beer. The purchaser also used a Giant Eagle discount card registered
to Hale’s sister and deceased mother.
{¶ 7} Hale’s friend James Hull saw Hale driving a Explorer SUV on two occasions
after Green’s murder, including on June 23, 2004, when Hull helped Hale move out
of the lodge. Hull later identified photographs of Green’s SUV as the one Hale had
been driving.
{¶ 8} On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of the
Euclid police found Hale inside Green’s Ford Explorer SUV, parked near Hale’s
workplace in Cleveland. Pestak, supported by Cleveland police units, arrested Hale.
2

{¶ 9} When told that he was being arrested for Green’s murder, Hale said, “I didn’t
kill anybody.” Sergeant Pestak administered Miranda warnings to Hale. While
being led to a cruiser, Hale again said, “I didn’t kill anybody.”
{¶ 10} Hale was taken to the Euclid police station and placed in a cell. After
approximately five hours, Hale was removed from the cell and brought to the
detective bureau. There, Detective Sergeant James Baird completed a personalinformation form on Hale and presented it to Hale for his signature. Hale signed
the form using his left hand, but Baird noted that Hale had difficulty writing with
that hand.
{¶ 11} Baird then administered Miranda warnings to Hale. Hale signed
a Miranda waiver form, and this time, Hale used his right hand. Baird proceeded to
interrogate Hale. During the interrogation, Baird told Hale that Green “was possibly
bisexual” and that “if this was a case of self-defense, then that would be
understandable if he felt that Mr. Green had attacked him.”
{¶ 12} Hale wrote out and signed a four-page statement. In his statement, Hale
claimed that he had met Green in May 2004 when Green, identifying himself as a
record producer, asked Hale whether he had considered singing professionally and
gave Hale his cell-phone number. According to Hale, he later called Green, and
Green agreed to go to Hale’s motel room to hear him sing.
{¶ 13} According to Hale, they had arranged to meet at the Underground Railroad,
a bar near the lodge. Hale claimed that he and Green had met at the Underground
Railroad on Monday, June 21, 2004. (However, according to the owner of the
Underground Railroad, that establishment was closed on Mondays.) They then
went to Hale’s room. According to Hale, Green had a small gun in his shoulder bag
and displayed it to Hale as they entered the room.
{¶ 14} Hale claimed that he sang for Green, then went to the bathroom. Hale
claimed that when he returned, he found Green lying on the bed, nude. Hale told
Green to leave. According to Hale, Green grabbed Hale’s wrists and “laid his head
on [Hale’s] crotch” while making “slurping” noises.
{¶ 15} Hale claimed that he then freed his right hand, reached into Green’s bag,
pulled out the gun, held it to Green’s head, and cocked it. According to Hale, Green
said, “It isn’t loaded, so why don’t you give me some of that dick.”
{¶ 16} Hale fired. Green “reeled back,” but still gripped Hale’s left wrist, according
to Hale. Hale cocked the gun and fired again. He then backed away from Green,
took some bullets from Green’s bag, and reloaded. According to Hale, Green then
tried to stand up. Hale fired “once or twice” more.

3

{¶ 17} According to Hale, he considered calling an ambulance or the police, but
decided not to after he “thought about * * * [his] record” and “the life [he] was
attempting to build.” Instead, he disposed of the gun and Green’s belongings. Then
he went out to buy cleaning supplies to clean up Green’s blood, using Green’s credit
card because Hale’s “funds were low.” The next day, he wrapped Green’s body in
garbage bags, also purchased with Green’s credit card, and dragged the body to a
storage room.
State v. Hale, 892 N.E.2d 864, 877–879 (Ohio 2008).
These factual findings “shall be presumed to be correct,” and Hale has “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Warren v. Smith, 161 F.3d 358, 360–361 (6th Cir. 1998).
PROCEDURAL BACKGROUND
A.

State-Court Proceedings
1.

Trial

A Cuyahoga County, Ohio, Grand Jury indicted Hale on July 28, 2004, for the aggravated
murder of Douglas Green. (Doc. 7-1 at 33-39. 2) Hale was charged with two counts of aggravated
murder, one under Ohio Rev. Code § 2903.01(A) (purposely causing death with prior calculation
and design) and the other under Ohio Rev. Code § 2903.01(B) (causing death while committing,
or attempting to commit or fleeing immediately after committing or attempting to commit
aggravated robbery). (Id. at 34-35.) Each aggravated-murder count carried a capital specification
for felony murder, alleging murder during an aggravated robbery, as well as firearm, priorconviction, and repeat-violent-offender specifications. (Id.) Hale also was charged with aggravated

2

All references to document page numbers are to the page numbers assigned by the Court’s electronic filing system
for each document, and not to page numbers assigned by the document’s author or the “PageID” numbers.

4

robbery, tampering with evidence, escape, and having a weapon while under disability. (Id. at 36–
39.) 3 Hale entered pleas of not guilty to all charges. (Id. at 40.)
Hale’s trial began on May 9, 2005. (See Doc. No. 8-1 (Trial Tr.) at 226.) He was
represented by G. Kenneth Mullin and David Magee of the Cuyahoga County Public Defender’s
Office and Jillian Davis. (See, e.g., Doc. No. 7-1 at 150.)
The jury convicted Hale on all charges and specifications on June 7, 2005. (Doc. No. 7-2
at 182.) On July 5, 2005, Hale entered a plea of guilty to the escape charge and stipulated to the
prior conviction underlying the charge of carrying a weapon while under disability. (Doc. No. 8-5
(Trial Tr.) at 787–89.)
The penalty phase of the trial began on June 13, 2005, and three days later, the jury
recommended that Hale be sentenced to death. (Doc. No. 7-2 at 213.) On July 18, 2005, the trial
court accepted the jury’s recommendation and imposed a death sentence on the merged counts of
aggravated murder. (Id. at 267.) The court also imposed consecutive prison sentences of ten years
for the aggravated-robbery charge, with an additional three years for the attached firearms
specification, and eight years for the escape charge; and prison sentences of five years each for the
tampering-with-evidence and weapons-while-under-disability charges, which were to run
concurrently with the murder charges. (Id.)
2.

Direct Appeal

Hale filed a timely appeal of his convictions and sentences directly to the Ohio Supreme
Court. (Doc. No. 7-3 at 5–7.) He was represented by Kelly Culshaw, Ruth Tkacz, and Kimberly

3

The escape count was severed for trial. (Doc. No. 7-2 at 11.)

5

Rigby of the Ohio Public Defender’s Office. (See id.) In his merit brief, Hale presented twentytwo propositions of law, stated as follows:
1.

A defendant’s right under the Due Process Clause of the Fourteenth
Amendment and the Confrontation Clause of the Sixth Amendment are
violated when a trial court prohibits defense counsel from reviewing witness
statements pursuant to Ohio Criminal Rule 16(B)(1)(g). U.S. CONST.
amends. VI[,] XIV.

2.

Hale was sentenced to more than minimum, concurrent sentences by the
trial court, despite the fact that the State proves the statutory criteria for
increasing the sentence to a jury beyond a reasonable doubt, depriving Hale
of his rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments
to the Constitution.

3.

The trial court erred in failing to suppress Hale’s statements in violation of
his rights guaranteed by the Fifth and Fourteenth Amendments of the United
States Constitution, as well as Article 1, §§ 10 and 16 of the Ohio
Constitution.

4.

The accused has a right of presence at all critical stages of the trial under
the Confrontation Clause and the Due Process Clause. The right of presence
is personal to the accused and may only be waived by the accused. U.S.
CONST. amends. VI, XIV.

5.

When a trial court sua sponte death qualifies a capital jury, but fails to sua
sponte life qualify that same jury, the defendant is denied his fundamental
right to a fair trial in violation of the Equal Protection Clause and the
prosecution inures a benefit unfairly denied the defendant in violation of the
Due Process Clause. U.S. CONST. amend. XIV.

6.

Ohio’s death penalty scheme results in an arbitrary application of
punishment in violation of the Eighth Amendment. Furthermore, jurors who
consider non-statutory aggravating circumstances at the penalty phase
violate the capital defendant’s rights to due process and a fair and reliable
sentencing hearing. U.S. CONST. amends. VI, VIII, XIV; Ohio CONST. art.
I, §16.

7.

When the trial court fails to remove two jurors and denies a challenge for
cause for a third juror who are biased in favor of the death penalty, the
capital defendant is deprived of his rights as guaranteed by U.S. CONST.
amends. V, VIII, and XIV; Ohio CONST. art. I, §§ 9 and 16.

6

8.

A trial court violates a capital defendant’s constitutional rights to a fair trial
and due process when it allows the State to violate the rules of discovery,
allows misleading, prejudicial evidence and testimony to be introduced
during the trial, arbitrarily limits evidence in the defense’s case-in-chief,
and makes arbitrary evidentiary rulings. U.S. CONST. amends. VI, XIV.

9.

The admission of shocking and graphic photographs into evidence at both
phases violated Hale’s right to due process when the probative value of the
photographs was outweighed by the danger of prejudice, and the
photographs were cumulative.

10.

The trial court erred when it allowed unqualified expert witness testimony
under Ohio Rule of Evidence 702 and the Fourteenth Amendment to the
United States Constitution and Article I, §§ 10 and 16 of the Ohio
Constitution.

11.

When the trial court precludes a capital defendant from presenting relevant
mitigation evidence, a capital defendant’s rights to a fair sentencing
proceeding and individualized sentencing [are violated]. U.S. CONST.
amends. VIII, XIV; Ohio CONST. art. I, §§ 9, 16.

12.

The admission of prejudicial and irrelevant evidence during the sentencing
phase of Hale’s capital trial denied Hale his rights to due process and a
reliable determination of his sentence as guaranteed by U.S. CONST.
amends. V, VI, VIII, and XIV; Ohio CONST. art. I, §§ 10, 16.

13.

The capital defendant’s right against cruel and unusual punishment and his
right to due process are violated when the legal issue of relevance is left to
the jury regarding sentencing considerations and, the sentencing proceeding
creates an unacceptable risk of arbitrary, non-statutory aggravators in the
weighing process. U.S. CONST. amends. VIII, XIV. Those same rights are
violated when the trial court instructs the jury not to consider relevant
mitigating evidence.

14.

Sentencing before a court biased in favor of the death penalty deprived Hale
of his due process rights. U.S. CONST. amend. XIV; Ohio CONST. art. I, §
16.

15.

It is constitutional error for the trial court to consider victim impact evidence
in capital sentencing in the form of opinions by the victim’s family members
about the defendant’s character and the offense. U.S. CONST. amends.
VIII[,] XIV.

16.

When a trial court weights mitigation evidence separately, relies on an
improper expert opinion, diminishes relevant mitigation, and fails to specify
7

why the aggravating factors outweigh the mitigating circumstances, the
capital defendant is deprived of the right to individualized sentencing and
of his liberty interest in the statutory sentencing scheme in violation of
rights as guaranteed by U.S. CONST. amends. V, VII, XIV; Ohio CONST. art.
I, §§ 9[,] 16.
17.

Imposition of costs on an indigent defendant violates the spirit of the Eighth
Amendment. U.S. CONST. amends. VIII, XIV; Ohio CONST. art. 1, §§ 10[,]
16.

18.

Delano Hale’s sentence of death is inappropriate. His childhood, the
circumstances of the offense, which includes inducement, provocation, and
duress, remorse, the love and support of his family, and the ability to
successfully adjust to a prison sentence, all favor a life sentence. Moreover,
Hale’s death sentence is not proportionate when compared to other similar
offenses.

19.

A capital defendant is denied substantive and procedural due process rights
to a fair trial and a reliable sentence when the prosecutor commits acts of
misconduct during the capital trial. U.S. CONST. amends. VI, VIII, XIV;
Ohio CONST. art. 1, §§ 9, 16.

20.

Hale’s right to effective assistance of counsel was violated when counsel’s
performance was deficient and [Hale] was thereby prejudiced. U.S. CONST.
amends. VI, XIV; Ohio CONST. art. I, § 10.

21.

The cumulative effect of trial error renders a capital defendant’s trial unfair
and his sentence arbitrary and unreliable. U.S. CONST. amends. VI, XIV;
Ohio CONST. art. I, §§ 5, 16.

22.

Ohio’s death penalty law is unconstitutional. Ohio Rev. Code Ann. §§
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and
2929.05 do not meet the prescribed constitutional requirements and are
unconstitutional on their face as applied to Delano Hale. U.S. CONST.
amends. V, VI, VIII, and XIV; Ohio CONST. art. I, §§ 2, 9, 10[,] 16. Further,
Ohio’s death penalty statute violates the United States’ obligations under
international law.

(Doc. No. 7-3 at 137–40 (capitalization altered).)
The State filed a responsive brief. (Id. at 476–553.)
On April 17, 2008, Hale filed a motion to remand his case to the trial court for resentencing
pursuant to a new Ohio Supreme Court case, State v. Foster, 845 N.E.2d 470 (Ohio 2006). (Doc.
8

Id. at 54–89.) The State filed a reply brief in which it “agree[d] that Hale [would] have to be resentenced on counts 3–6[,]” the non-capital offenses. (Id. at 92.)
On July 15, 2008, the Ohio Supreme Court affirmed Hale’s convictions and sentences and
denied his motion to remand for sentencing. Hale, 892 N.E.2d 864 (Ohio 2008). Hale moved for
reconsideration of the judgment, (Doc. No. 7-3 at 669–97), which the court denied (id. at 3).
Hale filed a timely petition for writ of certiorari with the United States Supreme Court. (Id.
at 717.) The Court declined jurisdiction over the appeal on April 6, 2009. (Id. at 718.)
Meanwhile, on September 16, 2008, Hale requested appointment of counsel to file an
application for reopening his direct appeal pursuant to Ohio Supreme Court Practice Rule XI, § 6.
(Id. at 3, 707–13.) That rule permits defendants to request to reopen the direct appeal from a
judgment to present claims of ineffective assistance of appellate counsel within ninety days from
issuance of the court’s direct-appeal mandate, or later for “good cause.” See Ohio S. Ct. Prac.
R. 11.06(A) (the current version of Ohio S. Ct. Prac. R. XI, § 6); see also State v. Murnahan, 584
N.E.2d 1204 (Ohio 1992). The court granted the motion and appointed Attorney Dennis Sipe.
(Doc. No. 7-3 at 3.) On October 16, 2008, Sipe filed a notice with the Ohio Supreme Court that he
had “reviewed the record as it existed before this Court and determined that there exists no
irregularities that would raise a genuine issue as to whether appellant received ineffective
assistance of counsel.” (Id. at 714–15.)
3.

Post-Conviction Proceedings

While his direct appeal was pending, Hale, now represented by T. Kenneth Lee and Rachel
Troutman of the Ohio Public Defender’s Office, filed a timely petition for post-conviction relief
with the trial court on March 6, 2007. (Doc. No. 7-4 at 60–282.) He raised nineteen grounds for
relief:
9

1.

Hale’s death sentence is void or voidable because his trial counsel failed to
thoroughly investigate and present mitigating evidence. A prison expert was
available to testify on Hale’s behalf, but his trial counsel failed to procure
such an expert. As a result, Hale was denied his constitutional rights
guaranteed by the Sixth, Eighth, and Fourteenth Amendments of the United
States Constitution. U.S. CONST. amends. V, VI, VIII, XIV; Ohio CONST.
art. I[,] §§ 2, 5, 9, 10, 16, 20.

2.

Hale’s convictions and sentences are void or voidable because he was
denied the effective assistance of counsel during his capital trial as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution. Strickland v. Washington, 466 U.S. 668 (1984). As a result,
he was prejudiced.

3.

Hale’s conviction and sentence are void and/or voidable because he was
denied the effective assistance of counsel during his capital trial as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984). Hale’s
trial counsel failed to utilize a crime scene expert to present the defense case
at Hale’s trial. Counsel’s performance “fell below an objective standard of
reasonableness.” . . . As a result, he was prejudiced.

4.

Hale’s death sentence is void or voidable because the trial court’s failure to
permit defense counsel to participate in the in[-]camera inspection of the
witness statements and call to the court’s attention any perceived
inconsistencies denied Delano Hale his rights to confrontation and due
process. This inaction violated Hale’s rights guaranteed by the Sixth and
Fourteenth Amendments of the United States Constitution.

5.

Hale’s death sentence is void or voidable because his trial counsel failed to
thoroughly investigate and present mitigating evidence. This inaction
violated Hale’s rights guaranteed by the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution.

6.

Hale’s conviction is void or voidable because his trial counsel failed to
thoroughly investigate and present evidence in his defense. This inaction
violated Hale’s rights guaranteed by the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution.

7.

The death sentence imposed on Hale is void or voidable because he did not
receive the effective assistance of counsel during the penalty phase of his
capital trial. Defense counsel’s failure to present available, relevant, and
compelling mitigation evidence to the sentencer prejudiced Hale.

10

8.

Hale’s conviction and sentence are void or voidable because his attorneys
failed to present evidence to support their argument that the death penalty
is applied in an arbitrary and discriminating manner. Hale was denied his
right to effective assistance of counsel, due process, and a fair trial as
guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the
United States Constitution and Sections 1, 2, 5, 9, 10, 16, and 20, Article I
of the Ohio Constitution.

9.

Hale’s conviction is void or voidable because his trial counsel failed to use
a prison expert during his trial. A prison expert was necessary to support
Hale’s defense of self-defense. As a result, Hale was denied his
constitutional rights guaranteed by the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. U.S. CONST. amends. V, VI,
VIII, XIV; Ohio CONST. art. I[,] §§ 2, 5, 9, 10, 16, 20.

10.

Hale’s convictions and sentence are void or voidable because his death
sentence was disproportionate to similarly situated capital defendants in
Cuyahoga County. As a result, Hale’s rights were violated as guaranteed by
the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution and [Sections] 1, 2, 5, 9, 10, 16, and 20 of Article I of the Ohio
[Constitution].

11.

Hale’s convictions and sentence are void or voidable because the death
penalty law permits the imposition of capital punishment in an arbitrary,
capricious and discriminatory manner due to the uncontrolled discretion
afforded elected county prosecutors in determining when to seek the death
penalty. The arbitrary, capricious, and discriminatory application of the
death penalty law in Cuyahoga County is obvious from the analysis of that
County’s indictments and case dispositions. As a result, Hale’s rights as
guaranteed by the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments
of the United States Constitution and [Sections] 1,2,5,9, 10, and 16 of
Article I of the Ohio Constitution are violated.

12.

Hale’s convictions and sentence are void or voidable because the statutory
proportionality reporting system for death penalty cases is inaccurately and
ineffectively processed in Cuyahoga County, Ohio. Consequently[,] Hale’s
rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution and [Sections] 1, 2, 5, 9, 10,
and 16 of Article I of the Ohio Constitution are violated.

13.

Hale’s conviction and sentence are void or voidable because the death
penalty as administered by lethal injection in the state of Ohio violates his
constitutional rights to protection from cruel and usual punishment and to
due process of law. U.S. CONST. amends. VIII, IX, XIV; Sections 1, 2, 5, 9,
10, 16, and 20, Article I of the Ohio Constitution.; Ohio Adult Parole
11

Authority v. Woodard, 523 U.S. 272 (1998) (five justices holding that that
the Due Process Clause protects the “life” interest at issue in capital cases).
Recently, the United States Supreme Court enhanced the capital defendant’s
ability to challenge the lethal injection method of execution in the federal
courts. Hill v. McDonough, No. 05-8794, 2006 U.S. LEXIS 4674 (June 12,
2006).
14.

Hale’s judgment and sentence are void or voidable because Ohio’s
postconviction procedures do not provide an adequate corrective process,
in violation of the constitution. U.S. CONST. amends. V, VI, VIII, and XIV;
Ohio CONST. art. I, §§ 1, 2, 5, 9, 10, 16, and 20.

15.

Hale’s sentence is void or voidable because he was denied the effective
assistance of counsel during the mitigation phase of his capital trial. Defense
counsel failed to move the trial court for appointment of a cultural expert to
assist defense preparations at the mitigation phase of Hale’s trial. Instead,
defense counsel relied upon the testimony of a psychologist who lacked the
necessary experience to adequately convey cultural mitigation evidence to
the sentencer. . . . As a result, counsel’s performance “fell below an
objective standard of reasonableness.” Strickland v. Washington, 466 U.S.
668 (1984); Ake v. Oklahoma, 470 U.S. 68 (1985).

16.

Hale’s convictions and sentence are void or voidable because his trial
counsel failed to reasonably investigate, prepare, and present mitigating
evidence regarding that Hale may have suffered from neurological deficits
due to his extensive history of alcohol abuse and chemical dependence,
including his accompanying black-outs. . . . Hale’s rights were denied under
the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution and Sections 2, 5, 9, 10, 16 and 20 of Article I of the Ohio
Constitution.

17.

The death sentence imposed on Hale is void or voidable because he did not
receive effective assistance of counsel during the penalty phase of his
capital trial. Defense counsel’s failure to present available, relevant, and
compelling mitigation evidence to the sentencer prejudiced Hale. At Hale’s
capital trial, defense counsel failed to investigate, prepare and present
mitigating evidence regarding his character, history, and background—
namely, Hale’s history of substance abuse. This evidence would have given
his sentencer reasons to spare his life.

18.

The death sentence imposed on Hale is void or voidable because he did not
receive effective assistance of counsel during the penalty phase of his
capital trial. Defense counsel’s failure to present available, relevant, and
compelling mitigation evidence to the sentencer prejudiced Hale. At Hale’s
capital trial, defense counsel failed to investigate, prepare and present
12

mitigating evidence regarding his character, history, and background—
namely, how the loss of important influences in his life shaped Hale. This
evidence would have given his sentencer reasons to spare his life.
19.

Hale’s judgment and sentence are void or voidable because, assuming
arguendo that none of the grounds for relief in his post-conviction petition
individually warrant the relief sought from this court, the cumulative effects
of the errors and omissions presented in the petition’s foregoing paragraphs
have been prejudicial and have denied Hale his rights secured by the Fifth,
Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.

(Doc. No. 7-4 at 70, 73, 75, 78, 81, 84, 86, 89, 91, 93, 96, 99, 102, 105, 108, 111, 114, 117, 120
(supporting arguments, legal citations, and citations to the trial record omitted).) Hale submitted
thirty-five exhibits in support of his petition. (Id. at 123–282; Doc. No. 7-5 at 1–232.)
After requesting and receiving a sixty-day extension of time, the State filed its opposition
to Hale’s petition nearly four and one-half years later, on July 7, 2011. (Doc. No. 7-5 at 240–42,
245-73.) 4 Hale moved to strike the State’s untimely response. (Id. at 276–78.) On July 25, 2011,
the trial court denied Hale’s motion to strike but granted him sixty days to reply to the State’s
response (id. at 279), which Hale did on September 23, 2011 (id. at 280–90). The trial court denied
the petition on September 24, 2015, another four years later. (Id. at 292–306.)
Hale, now represented by Jessica Carrico and Isa Mauch of the Ohio Public Defender’s
Office, filed a timely notice of appeal with Ohio’s Eighth District Court of Appeals. (Id. at 308–
09.) In his appellate brief, he presented the following assignments of error, stated as:
1.

The trial court erred by applying the doctrine of res judicata to bar Hale’s
first through twelfth and fifteenth through nineteenth grounds for relief.

4

The State also filed a motion for a thirty-day extension of time, which apparently was never ruled upon. (See Doc.
No. 7-5 at 243-44.)

13

2.

The trial court erred in dismissing Hale’s post-conviction petition when he
presented sufficient operative facts to merit relief or, at a minimum, an
evidentiary hearing.

3.

The trial court erred when it failed to rule on Hale’s motion for leave to
conduct discovery.

4.

The trial court erred when it failed to rule on Hale’s motion for funds to
employ experts and to conduct expert testing.

5.

The trial court abused its discretion when it denied Hale relief without
affording him the necessary due process to meet his burden.

(Doc. No. 7-6 at 78–79.)
The State filed a responsive brief. (Id. at 147–89.) The Ohio appellate court affirmed the
trial court’s judgment on September 15, 2016. State v. Hale, No. 103654, 2016 WL 4978449 (Ohio
Ct. App. Sept. 15, 2016). Hale moved for reconsideration, which was denied. (Doc. No. 7-6 at
287.)
Hale filed a timely notice of appeal with the Ohio Supreme Court. (Id. at 302–04.) In his
memorandum in support of jurisdiction, he presented the following propositions of law, stated as:
1.

When a petitioner presents sufficient operative facts to merit relief or, at a
minimum, an evidentiary hearing, in a petition for post-conviction relief,
the trial court errs in denying the petition.

2.

The doctrine of res judicata does not bar meritorious post-conviction claims
that are supported by sufficient evidence dehors the records.

3.

When a death-sentenced defendant files a meritorious post-conviction
petition, due process, equal protection, the right to counsel, and the freedom
from cruel and unusual punishment require that the defendant receive
funding for expert assistance and discovery. U.S. CONST. amend[s]. VI,
VIII, XIV.

4.

Denying a petitioner relief without affording him the necessary due process
is an abuse of discretion and leaves petitioner without a meaningful forum
to present his constitutional challenges within Ohio.

(Id. at 308.)
14

The State filed a memorandum in response. (Id. at 411–50.) The Ohio Supreme Court
denied jurisdiction over the appeal on October 11, 2017. State v. Hale, 83 N.E.3d 938 (Table)
(Ohio 2017).
Hale file a petition for writ of certiorari with the United States Supreme Court on January
5, 2018. (Doc. No. 7-6 at 452.) The Supreme Court denied certiorari on March 5, 2018. Hale v.
Ohio, 138 S. Ct. 1269 (Mem.), 200 L. Ed. 2d 425 (2018).
B.

Federal Habeas Proceedings

Hale filed a notice of intent to initiate this habeas action on March 5, 2018. (Doc. No. 1.)
He requested appointment of counsel and permission to proceed in forma pauperis. (Doc. Nos. 2,
3.) The Court granted the motions and appointed counsel Jordan Berman and Lisa Lagos of the
Federal Public Defender’s Office for the Southern District of Ohio.
Hale filed his original petition for a writ of habeas corpus on October 10, 2018. (Doc. No.
13.) Respondent filed a return of writ on February 8, 2019. (Doc. No. 17.)
Hale filed a motion for leave to amend the twenty-sixth ground for relief of his petition on
July 8, 2019. (Doc. No. 24.) Respondent filed a response to the motion on August 22, 2019 (Doc.
No. 25), to which Hale replied (Doc. No. 26). This Court granted Hale’s motion on December 9,
2019. (Doc. No. 27.) On January 7, 2020, Respondent filed an amended return of writ as to the
amended twenty-sixth ground for relief. (Doc. No. 28.)
Hale filed his traverse of March 13, 2020. (Doc. No. 31.) Respondent filed a sur-reply on
July 13, 2020. (Doc. No. 33.)
Hale filed a motion for discovery on July 13, 2020. (Doc. No. 34.) Respondent opposed
the motion on August 12, 2020. (Doc. No. 35), eliciting a reply from Hale on August 26, 2020
(Doc. No. 6). Hale then filed a motion to expand the record the next day, on August 27, 2020 (Doc.
15

No. 37), which Respondent also opposed, on September 25, 2020 (Doc. No. 38). Hale filed a reply
on October 9, 2020. (Doc. No. 39.) The Court will address Hale’s motions for discovery and to
expand the record in Section XVII of this memorandum of opinion and order.
PETITIONER’S GROUNDS FOR RELIEF
Hale asserts twenty-seven grounds for relief in his petition (including the amended twentysixth ground for relief), stated as:
1.

The fundamentally flawed process used by Cuyahoga County to select
members of petit jury venires, and grand juries, deprived Hale of his rights
to an impartial jury, a fair trial, due process, equal protection, and the right
to be free of excessive punishment under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the Constitution.

2.

The trial court violated Hale’s Sixth and Eighth Amendment rights to a jury
trial because it: 1) sua sponte death qualified the jury, but failed to sua
sponte life qualify the jury; 2) encouraged consideration of non-statutory
aggravating factors; 3) repeatedly informed jurors of incorrect legal
standards; 4) failed to remove a juror who expressed racial bias; 5) failed to
remove four jurors and denied a challenge for cause to jurors who were
biased in favor of the death penalty; 6) improperly excluded prospective
jurors. 5

3.

Hale’s right to effective assistance of counsel was violated when counsel’s
performance in voir dire was deficient and he was thereby prejudiced. 6

4.

Hale’s rights under the Due Process Clause of the Fourteenth Amendment
and the Confrontation Clause of the Sixth Amendment were violated when
the trial court prohibited defense counsel from reviewing witness
statements.

5.

Hale was deprived of his right of presence at all critical stages of the trial,
in violation of the Confrontation Clause and the Due Process Clause under
the Sixth and Fourteenth Amendments.

6.

The trial court violated Hale’s rights guaranteed by the Fifth and Fourteenth
Amendments when it failed to suppress his statements to law enforcement.

5

The identifying title for the second ground for relief is omitted from the petition’s table of contents.

6

The identifying title for the third ground for relief is omitted from the petition’s table of contents.

16

7.

Hale was denied his constitutional right to testify on his own behalf. Any
presumed waiver was based on threats, coercion and misrepresentations,
and therefore not knowing, intelligent, and voluntary as guaranteed by the
Fifth, Sixth, Eighth, and Fourteenth Amendments.

8.

The trial court violated Hale’s rights under the Fourteenth Amendment of
the United States Constitution when it allowed unqualified expert witness
testimony.

9.

The admission of shocking and graphic photographs into evidence at both
phases violated Hale’s right to due process, a fair trial, and a fair and reliable
sentencing determination, when the probative value of the photographs was
outweighed by the danger of prejudice, and the photographs were
cumulative.

10.

Numerous errors at trial violated Hale’s constitutional rights to due process
and a fair trial under the Sixth and Fourteenth Amendments to the United
States Constitution, including the State’s violation of the rules of discovery,
the admission of misleading, prejudicial evidence and testimony, the
placing of arbitrary limits on the evidence in Hale’s case-in-chief, and the
trial court’s multiple arbitrary and unsupported evidentiary rulings.

11.

Hale’s right to effective assistance of counsel was denied by counsel’s
deficient performance during the trial phase of his capital trial in violation
of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

12.

The trial court left the legal issue of relevance of trial phase evidence to the
jury during the mitigation phase, in violation of Hale’s rights to due process
and to be free from cruel and unusual punishment under the Fifth, Sixth,
Eighth and Fourteenth Amendments.

13.

The trial court precluded Hale from presenting relevant mitigating evidence,
in violation of his rights to a fair sentencing proceeding and individualized
sentencing under the Eighth and Fourteenth Amendments.

14.

The trial court allowed prejudicial and irrelevant evidence during the
sentencing phase of Hale’s capital trial, in violation of his rights to due
process and a reliable determination of his sentence under the Fifth, Sixth,
Eighth and Fourteenth Amendments.

15.

The trial court’s consideration, during sentencing in a capital case, of
victim-impact evidence in the form of opinions by the victim’s family
members about the defendant’s character and the offense violates the Eighth
and Fourteenth Amendments of the United States Constitution.
17

16.

The trial court deprived Hale of his right to an individualized sentencing
and of his liberty interest, in violation of the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution by committing numerous
errors at the mitigation phase of Hale’s trial.

17.

Sentencing before a court biased in favor of the death penalty deprived Hale
of his due process rights under the United States Constitution.

18.

Hale’s right to effective assistance of counsel was denied by counsel’s
deficient performance during the sentencing phase of trial in violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

19.

Hale was sentenced to more than minimum, concurrent sentences by the
trial court, despite the fact that the State failed to prove the statutory criteria
for increasing the sentence to a jury beyond a reasonable doubt, depriving
Hale of his [rights] as guaranteed by the Fifth, Sixth, [a]nd Fourteenth
Amendments to the Constitution.

20.

Imposition of costs on an indigent defendant violates the spirit of the Eighth
Amendment. U.S. CONST. amends. VIII and XIV.

21.

Prosecutorial misconduct committed throughout his capital trial denied
Hale his substantive and procedural due process rights to a fair trial and
reliable sentence in violation[] of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

22.

Hale was denied effective assistance of appellate counsel on his sole appeal
of right to the Supreme Court of Ohio in violation of the Fifth, Sixth,
Eight[h,] [a]nd Fourteenth Amendments.

23.

The State failed to provide trial counsel with exculpatory evidence in
violation of the Fourteenth Amendment.

24.

Cumulative error at trial deprived Hale of due process in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments.

25.

Ohio’s death penalty scheme is unconstitutional on its face, and as applied
to Hale, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, as well as violative of the United States’
obligations under international law.

26.

Execution by lethal injection as administered by the State of Ohio violates
Hale’s rights to due process, equal protection, and freedom from cruel and
unusual punishment under the Eighth and Fourteenth Amendments of the
United States Constitution.
18

27.

Hale is innocent of the death penalty. But for the constitutional violations
in this record and the new evidence in this petition, no rational fact finder
could impose the death penalty.

(See Doc. No. 13 at 17-29; Doc. No. 24-1 at 1 (capitalization altered).)
STANDARD OF REVIEW
A.

AEDPA Review

Hale’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “Act”). See Lindh v. Murphy,
521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997) (AEDPA governs federal habeas
petitions filed after Act’s effective date). The Act, which amended § 2254, authorizes federal
courts to issue writs of habeas corpus to state prisoners who are “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
At the same time, however, AEDPA was intended “to reduce delays in the execution of
state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of
comity, finality, and federalism.’” Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398, 155
L. Ed. 2d 363 (2003) (quoting M. Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 146 L.
Ed. 2d 435 (2000)). The Act “recognizes a foundational principle of our federal system: State
courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19,
134 S. Ct. 10, 187 L. Ed. 2d 348 (2013). It therefore “erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state court.” Id.
Most significantly, AEDPA forbids a federal court from granting habeas relief with respect
to a “claim that was adjudicated on the merits in State court proceedings” unless the state-court
decision either:
19

(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).
Habeas courts review the “last explained state-court judgment” on the federal claim at
issue. Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) (emphasis
in original). A state court has adjudicated a claim “on the merits,” and AEDPA deference applies,
regardless of whether the state court provided little or no reasoning for its decision. “When a
federal claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99, 131 S.
Ct. 770, 178 L. Ed. 2d 624 (2011).
“[C]learly established Federal law” for purposes of § 2254(d)(1) “is the governing legal
principle or principles set forth by the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). It
includes “only the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v.
Woodall, 572 U.S. 415, 419, 134 S. Ct. 1697, 188 L. Ed. 2d 698 (2014) (internal quotation marks
and citations omitted). When identifying what a Supreme Court decision actually holds, courts
should not frame the decision “at too high a level of generality.” Woods v. Donald, 575 U.S. 312,
318, 135 S. Ct. 1372, 191 L. Ed. 2d 464 (2015). Clearly established law under § 2254(d)(1)
“squarely addresses” the issue presented or “clearly establishes” a legal rule developed in a

20

different context applied to the facts of that case. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.
Ct. 743, 169 L. Ed. 2d 583 (2008).
A state-court decision is contrary to “clearly established Federal law” under § 2254(d)(1)
only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” T. Williams v. Taylor, 529 U.S. 362, 412–13, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000). The state-court decision need not refer to relevant Supreme Court
cases or even demonstrate an awareness of them; it is sufficient that the result and reasoning are
consistent with Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L.
Ed. 2d 263 (2002) (per curiam). And a state court does not act contrary to clearly established law
when the precedent of the Supreme Court is ambiguous or nonexistent. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 17, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003) (per curiam). “[R]eview under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011).
A state-court decision is based on an “unreasonable determination of the facts” under §
2254(d)(2) if the court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528–29, 123
S. Ct. 2527, 156 L. Ed. 2d 471 (2003). The petitioner bears the burden of rebutting the state court’s
factual findings “by clear and convincing evidence.” Burt, 571 U.S. at 18; Rice v. White, 660 F.3d
242, 250 (6th Cir. 2011). This requirement mirrors the “presumption of correctness” AEDPA
affords state-court factual determinations, which only can be overcome by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). 7 The Supreme Court has cautioned, however, that “‘a state-court

7

Section 2254(e)(1) provides: “In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be

21

factual determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.’” Burt, 571 U.S. at 18 (quoting Wood v. Allen,
558 U.S. 290, 301, 130 S. Ct. 841, 175 L. Ed. 2d 738 (2010)).
Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended by
AEDPA, is an intentionally demanding standard, affording great deference to state-court
adjudications of federal claims. The Court has admonished that a reviewing court may not “treat[]
the reasonableness question as a test of its confidence in the result it would reach under de novo
review,” and that “even a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Harrington, 562 U.S. at 102; see also Schriro v. Landrigan, 550 U.S. 465,
473, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) (“The question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.”). Rather, § 2254(d) “reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and
does not function as a “substitute for ordinary error correction through appeal.” Harrington, 562
U.S. at 102-03 (internal quotation marks omitted). A petitioner, therefore, “must show that the
state court’s ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
This is a very high standard, which the Court readily acknowledges: “If this standard is difficult to
meet, that is because it is meant to be.” Id. at 102.
But AEDPA “stops short of imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings.” Id. “[E]ven in the context of federal habeas, deference does

presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).

22

not imply abandonment or abdication of judicial review. Deference does not by definition preclude
relief.” Miller-El v. Cockrelll, 537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).
Rather, under AEDPA standards, a federal court can disagree with a state court’s factual
determination and “conclude the decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence.” Id. Federal habeas courts may, for example, review
de novo an exhausted federal claim where a state court misapplied a procedural bar and did not
review the claim on the merits. See, e.g., Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005). They
likewise may review de novo claims adjudicated on the merits in state court if the petitioner meets
the criteria for one of § 2254(d)’s exceptions. See, e.g., Wiggins, 539 U.S. at 534 (performing de
novo review under Strickland’s second prong because the state court unreasonably applied the law
in resolving Strickland’s first prong).
B.

Exhaustion and Procedural Default

Under AEDPA, state prisoners must exhaust all possible state remedies, or have no
remaining state remedies, before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d
379 (1982). This entails giving the state courts “one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). In other words,
“the highest court in the state in which the petitioner was convicted [must have] been given a full
and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881
(6th Cir. 1990). The exhaustion requirement, however, “refers only to remedies still available at
the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28, 102 S. Ct. 1558, 71. L.

23

Ed. 2d 783 (1982). It “does not require pursuit of a state remedy where such a pursuit is clearly
futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
Procedural default is a related but “distinct” concept from exhaustion. Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain
consideration of a federal constitutional claim by state courts because he failed to either: (1)
comply with a state procedural rule that prevented the state courts from reaching the merits of the
petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies were
still available. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 80, 84–87, 97 S. Ct. 2497, 53 L. Ed. 2d
594 (1977); Engle, 456 U.S. at 125 n.28; Williams, 460 F.3d at 806.
Where a state court declines to address a prisoner’s federal claim because the prisoner has
failed to meet a state procedural requirement, federal habeas review is barred as long as the state
judgment rested on “independent and adequate” state procedural grounds. Coleman v. Thompson,
501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). To be independent, a state procedural
rule and the state courts’ application of it must not rely in any part on federal law. Id. at 732–33.
To be adequate, a state procedural rule must be “‘firmly established’ and ‘regularly followed’” by
the state courts at the time it was applied. Beard v. Kindler, 558 U.S. 53, 60–61, 130 S. Ct. 612,
175 L. Ed. 2d 417 (2009). 8

8

In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit established the now-familiar test to be followed
when the state argues that a habeas claim is defaulted because of a prisoner’s failure to observe a state procedural rule.
It is:
First, the federal court must determine whether there is a state procedural rule that is applicable to
the petitioner’s claim and whether the petitioner failed to comply with that rule. Second, the federal
court must determine whether the state courts actually enforced the state procedural sanction—that
is, whether the state courts actually based their decisions on the procedural rule. Third, the federal
court must decide whether the state procedural rule is an adequate and independent state ground on
which the state can rely to foreclose federal review of a federal constitutional claim. Fourth, if the
federal court answers the first three questions in the affirmative, it would not review the petitioner’s

24

A petitioner also may procedurally default a claim by failing to raise the claim in state court
and pursue it through the state’s “‘ordinary appellate review procedures,’” if, at the time of the
federal habeas petition, state law no longer allows the petitioner to raise the claim. Williams, 460
F.3d at 806 (quoting O’Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282 F. Supp. 2d 655,
661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the state courts] cannot
be considered in a federal habeas corpus petition.”). Under these circumstances, while the
exhaustion requirement is technically satisfied because there are no longer any state-court
remedies available to the petitioner, the petitioner’s failure to have the federal claims fully
considered in the state courts constitutes a procedural default of those claims, barring federal
habeas review. Williams, 460 F.3d at 806 (“Where state court remedies are no longer available to
a petitioner because he or she failed to use them within the required time period, procedural default
and not exhaustion bars federal court review.”); see also Gray v. Netherland, 518 U.S. 152, 161–
62, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996) (“Because [the exhaustion requirement] ‘refers only
to remedies still available at the time of the federal petition,’ . . . it is satisfied ‘if it is clear that
[the habeas petitioner’s] claims are now procedurally barred under [state] law’”) (internal citations
omitted). Furthermore, to “fairly present” a claim to a state court, a petitioner must assert both its
legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir. 2000)). Most importantly, a “‘petitioner must present his claim to the state courts as a
federal constitutional issue—not merely as an issue arising under state law.’” Id. (quoting Koontz
v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)).

procedurally defaulted claim unless the petitioner can show cause for not following the procedural
rule and that failure to review the claim would result in prejudice or a miscarriage of justice.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (internal citations omitted) (citing Maupin, 785 F.2d at 138).

25

In determining whether a claim is procedurally defaulted and barred from consideration on
federal habeas review, the federal court again looks to the last state court rendering a reasoned
opinion on that claim. Ylst, 501 U.S. at 805. If the state court “clearly and expressly states that its
judgment rests on a state procedural bar,” then the claim is procedurally defaulted. 9 Harris v. Reed,
489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). Conversely, if the last state court
presented with the claim reaches its merits, then the procedural bar is removed and the federal
habeas court may consider the merits of the claim in its review. Ylst, 501 U.S. at 801.
A petitioner may overcome procedural default by demonstrating cause for the default and
actual prejudice that resulted from the alleged violation of federal law, or that there will be a
“fundamental miscarriage of justice” if the claim is not considered. Coleman, 501 U.S. at 750.
“‘[C]ause’ under the cause and prejudice test must be something external to the petitioner,
something that cannot be fairly attributed to him.” Id. To establish prejudice, a petitioner must
demonstrate that the constitutional error “worked to his actual and substantial disadvantage.”
Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S.
152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). “A fundamental miscarriage of justice results
from the conviction of one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764
(6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397
(1986)).

9

Where a later state-court decision rests upon a prohibition against further state review, the decision “neither rests
upon procedural default nor lifts a pre-existing procedural default, [and] its effect upon the availability of federal
habeas is nil . . . .” Ylst, 501 U.S. at 804 n.3. In that situation, habeas courts “look through” that later decision to the
prior reasoned state-court judgment. Id. at 805 (“state rules against [a] superfluous recourse [of state habeas
proceedings] have no bearing upon [a petitioner’s] ability to raise the [federal] claim in federal court”).

26

A fundamental miscarriage of justice in capital cases also means actually innocent of the
death penalty. See Sawyer v. Whitley, 505 U.S. 333, 347, 112 S. Ct. 2514, 120 L. Ed. 2d 269
(1992). In this sense, “[t]o show ‘actual innocence’ one must show by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty under the applicable state law.” Id. at 336. This “actual innocence”
standard “must focus on the elements that render a defendant eligible for the death penalty.” Hutton
v. Mitchell, 839 F.3d 486, 498 (6th Cir. 2016) (citing Sawyer, 505 U.S. at 347).
C.

Cognizability

In conducting habeas review, a federal court is limited to deciding whether a conviction or
sentence violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502
U.S. 62, 68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (citing 28 U.S.C. § 2241). “[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-law questions.”
Id. at 63; see also Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990)
(“[F]ederal habeas corpus relief does not lie for errors of state law[.]”); Engle, 456 U.S. at 121
n.21 (“We have long recognized that a ‘mere error of state law’ is not a denial of due process.”)
(citation omitted)).
Moreover, “a state court’s interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (citing Estelle, 502 U.S. at 67–
68). A federal habeas court does not function as an additional state appellate court reviewing state
courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988).
State-court rulings on issues of state law may, however, “rise to the level of due process
violations [if] they ‘offend[] some principle of justice so rooted in the traditions and conscience of
27

our people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996) (further
citation omitted)). But they must be “so egregious that [they] result in a denial of fundamental
fairness[.]” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Courts, therefore, “have defined
the category of infractions that violate ‘fundamental fairness’ very narrowly.” Id. (some internal
quotation marks omitted) (quoting Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993) (further
citation omitted)).
DISCUSSION
I.

First Ground for Relief: Jury Selection
For his first ground for relief, Hale claims that the trial court’s jury-selection procedures

violated his Sixth Amendment right to a jury from a fair cross-section of his community and his
Fourteenth Amendment rights to due process and equal protection because persons convicted of
felonies were excluded from the jury pool. (Doc. No. 13 at 70–82.) Respondent argues that this
claim is both procedurally defaulted and lacks merit. (Doc. No. 17 at 41–43.)
A.

Procedural Posture

Respondent contends that this claim is procedurally defaulted because Hale never raised it
in state courts and is no longer able to do so. (Id. at 41–42.) Indeed, Hale cannot now raise his faircross-section claim in state court due to Ohio’s filing deadlines, post-conviction procedures, and
res judicata rules. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (“Under Ohio law, the
failure to raise on appeal a claim that appears on the face of the record constitutes a procedural
default under the State’s doctrine of res judicata.”); State v. Perry, 226 N.E.2d 104, 108–09 (Ohio
1967) (Ohio’s res judicata rule precludes a defendant from raising for the first time in postconviction proceedings a claim that was fully litigated or could have been fully litigated at trial or
28

on direct appeal.); Ohio R. Crim. P. 33(B) (defendant may be entitled to new trial after deadline
for filing motion for new trial if he was “unavoidably prevented” from filing motion or there is
“newly discovered evidence”); Ohio Rev. Code § 2953.23(A)(1) (second, successive, or untimely
post-conviction petition permitted if petitioner shows: (1) that he was “unavoidably prevented
from discovery of the facts” of the claim, or the claim is based on a new federal or state right the
Supreme Court has recognized that applies retroactively; and (2) but for constitutional error at trial,
no reasonable factfinder would have found petitioner guilty of offense or eligible for death
sentence). And with no state-court remedies still available to him, Hale has defaulted this claim.
See Gray, 518 U.S. at 161–62 (1996) (“Because the [exhaustion requirement] refers only to
remedies still available at the time of the federal petition, . . . it is satisfied if it is clear that [the
habeas petitioner’s] claims are now procedurally barred under [state] law”) (internal quotation
marks and citations omitted); Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (“[I]f an unexhausted
claim would be procedurally barred under state law, that claim is procedurally defaulted for
purposes of federal habeas review.”) (citations omitted).
Hale counters, however, that he can establish cause and prejudice to excuse the default. He
first asserts that he could not present this claim to state courts because the facts underlying the
claim were “reasonably unknown” to him until his federal habeas counsel discovered them in 2018.
(Doc. No. 31 at 61–62.) As Hale notes, a habeas petitioner shows “cause” where he demonstrates
that he failed to raise a constitutional issue because it was “reasonably unknown to him” at the
time. Fautenberry v. Mitchell, 515 F.3d 614, 629 (6th Cir. 2008) (citing Amadeo v. Zant, 486 U.S.
214, 222, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988)). And, more specifically, the Sixth Circuit
has found that petitioners established cause where the factual basis for their fair-cross-section
claim, a computer glitch, “was not reasonably available to counsel, and petitioners could not have
29

known that minorities were underrepresented in the jury pool by looking at the venire panel.”
Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012) (emphasis in original). The court explained
that to “suggest that an effective defense attorney must investigate the jury assembly process in
every case conditioned upon his client’s loss of the right is unnecessary and wasteful.” Id. at 646
(internal quotation marks omitted) (citation omitted). Alternatively, Hale asserts that his trial and
post-conviction counsel were at fault for failing to raise the claim. (Doc. No. 31 at 63–66.)
“Attorney error that constitutes ineffective assistance of counsel is cause.” Coleman, 501 U.S. at
753–54.
This Court need not reach this issue, however, as this claim is easily resolved on its merits.
See 28 U.S.C. § 2254(b)(2) (courts may deny unexhausted habeas petitions on the merits); Lambrix
v. Singletary, 520 U.S. 518, 525, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997) (courts may skip
complicated “procedural-bar issues” if the merits are “easily resolvable against the habeas
petitioner”).
B.

Merits Analysis

Hale alleges that, according to the transcript of a hearing conducted in 2011 before Judge
Richard Ambrose, the same judge who presided over his trial six years earlier, Cuyahoga County
excluded all felons from jury service at that time. (Doc. No. 31 at 43–46.) He asserts, with some
support, 10 that this practice existed in 2005 and continues to this day. (Id.) Hale contends the

10

To show that felons were excluded from jury venires in Cuyahoga County in his trial in 2005, Hale cites to testimony
from the 2011 hearing of a county employee that the jury selection software used in 2011 was designed in 1998, and
of Judge Ambrose that the jury-selection procedures in that case were “‘no different than any other case’” and “‘were
used as for the policy for general juries in this jurisdiction.’” (Doc. No. 31 at 45–46 (citing and quoting 2011 hearing
transcript (Doc. No. 13-8 at 71–84)).) This transcript (Doc. No. 13-8) is one of several exhibits that Hale attached to
his petition in support of this claim. He also submitted: a news article (Doc. No. 13-9); an Ohio Attorney General
opinion (Doc. No. 13-10); a document showing the distribution of people with felony convictions (Doc. No. 13-11);
Urban Institute reentry data (Doc. No. 13-12); juror questionnaire cover pages with race data (Doc. No. 13-13); excerpt
of a transcript from another Ohio case (Doc. No. 13-14); and information from the Jury Commission website (Doc.
No. 13-15). Hale has moved to have the record expanded to include these documents, among other exhibits supporting

30

county’s exclusion of felons from jury service is—and presumably was in 2005—contrary to Ohio
law, which permits convicted felons to serve on juries once their probation or term of community
control sanctions is completed. (Id. at 46 (citing Ohio Rev. Code § 2967.16(C)(1) (restoring “rights
and privileges forfeited by a conviction”) 11; Ohio Att’y Gen. Op. No. 2006-031 (“RC
2967.16(C)(3) restores the privilege of serving as a juror on a petit jury to a person who was
convicted of a felony under the laws of Ohio prior to, or on or after July 1, 1996, and who has
completed his probation or period of one or more community control sanctions.”)).) Moreover, he
argues, felons comprise a “substantial” portion of Cuyahoga’s population, and a “disproportionate”
number of those individuals are African-American men. (Id. at 47–49.) The county’s jury-selection
practice of excluding felons, Hale concludes, violated his Sixth Amendment right to a jury that
represents a fair cross-section of his community and his Fourteenth Amendment rights to due
process and equal protection. (Id. at 49–61.)
The Sixth Amendment guarantees criminal defendants a jury selected from a fair crosssection of the community. Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 357, 58 L. Ed. 2d 579 (1979).
The Supreme Court in Duren set forth three criteria necessary to establish a prima facie violation
of the fair-cross-section requirement: “(1) that the group alleged to be excluded is a ‘distinctive’
group in the community; (2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons in the community; and

other grounds for relief. (See Doc. No. 37.) For reasons fully explained in Section XVII of this opinion, the Court has
granted Hale’s request to include the exhibits supporting his jury-selection claim (Doc. Nos. 13-8—13-15) and they
have been duly considered in its merits review.
11

This provision also applies to prisoners who have completed their prison term. See Ohio Rev. Code §
2967.16(C)(1)(a). Section 2967.16(C) was in effect in 2005; it has been amended twice since then (in 2008 and 2018)
to create an exception to those eligible for restoration of privileges but otherwise remains substantially the same. See
Ohio Rev. Code § 2967.16(C)(1).

31

(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection
process.” Id. at 364. Even if a defendant has established a prima facie fair-cross-section violation,
the government may overcome the right to a proper jury by proffering a significant state interest
that manifestly and primarily advance “those aspects of the jury-selection process . . . that result
in the disproportionate exclusion of a distinctive group.” Id. at 367–68.
The selection of juries also must comply with the Equal Protection Clause of the Fourteenth
Amendment. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89
(1994). The Supreme Court has long recognized that racial exclusions and substantial
underrepresentation in juries deny defendants equal protection under the law. Castaneda v.
Partida, 430 U.S. 482, 492–93, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). Traditionally, to show
that an equal protection violation has occurred in this context, the defendant must satisfy the threepart test established in the Supreme Court decision Castaneda v. Partida. Id. at 494. United States
v. Ovalle, 136 F.3d 1092, 1104 (6th Cir. 1998) (citing Castaneda, 430 U.S. at 494). The defendant
must demonstrate: (1) “‘the group excluded from the grand jury is one that is a recognizable,
distinct class capable of being singled out for different treatment under the laws’”; (2) the selection
procedure was “‘susceptible to abuse or is not racially neutral’”; and (3) “‘the degree of
underrepresentation occurring over a significant period of time by comparing the proportion of the
excluded group in the total population to the proportion serving as grand jurors.’” Id. (quoting
Jefferson v. Morgan, 962 F.2d 1185, 1188–89 (6th Cir. 1992)). “‘Once [a defendant] has
established a prima facie case, the burden shifts to the state to rebut the inference of intentional
discrimination.’” Id. (quoting Jefferson, 962 F.2d at 1189).
Hale’s jury-selection claim fails, whether asserted under the Sixth or the Fourteenth
Amendment. First, to the extent that Hale argues that Cuyahoga County violated Ohio law
32

(specifically, Ohio Rev. Code § 2967.16(C)(1)) in its jury-selection process by excluding felons,
that claim is not cognizable on federal habeas review. Estelle, 502 U.S. at 68.
Further, courts have roundly rejected claims such as Hale’s that the exclusion from jury
service of individuals convicted of, or even charged with, the commission of a felony violates the
fair cross-section requirement. See James M. Binnall, Sixteen Million Angry Men: Reviving a Dead
Doctrine to Challenge the Constitutionality of Excluding Felons from Jury Service, 17 Va. J. Soc.
Policy and Law 1, 18 (2009) (“establishing felons as a ‘distinctive group’ for the purpose of
supporting a fair cross-section claim has proven impossible for litigants”) (citing Brian Kalt, The
Exclusion of Felons From Jury Service, 53 Am. U. L. Rev. 65, 75 n.34 (2003) (collecting cases)).
Many of these courts have concluded that excluding felons is justified because “groups
defined solely in terms of shared attitudes that would prevent or substantially impair members of
the group from performing one of their duties as jurors . . . are not ‘distinctive groups’ for faircross-section purposes.” Lockhart v. McCree, 476 U.S. 162, 174, 106 S. Ct. 1758, 90 L. Ed. 2d
137 (1986). And felons, the courts find, may not “conscientiously and properly carry out [a juror’s]
sworn duty to apply the law to the facts of the particular case.” Id. at 184. See United States v.
Barry, 71 F.3d 1269, 1273–74 (7th Cir. 1995) (“On the whole, [felons’] exclusion, more than their
inclusion, would be likely to preserve public confidence in the criminal justice system.”); United
States v. Greene, 995 F.2d 793, 797–98 (8th Cir. 1993) (holding jury service of charged but not
convicted felons is “‘incompatible with [the] significant [governmental] interest’ . . . of having
jurors who ‘can conscientiously and properly carry out their sworn duty to apply the law to the
facts of the particular case’” and therefore is not a fair-cross-section violation (quoting,
respectively, Duren, 439 U.S. at 368, and Lockhart, 476 U.S. at 184)); United States v. Foxworth,
599 F.2d 1, 4 (1st Cir. 1979) (upholding disqualification of persons convicted of or charged with
33

a crime punishable by imprisonment for more than one year whose civil rights have not been
restored as “intended to assure the ‘probity’ of the jury . . . [and] rationally based”); United States
v. Test, 550 F.2d 577, 594 (10th Cir. 1976) (“The reasons for movants’ challenge to this provision
are beyond our comprehension.”). Hale’s fair-cross-section claim, therefore, lacks merit.
Courts have likewise uniformly rejected equal-protection claims based on the exclusion of
felons from jury service. See James M. Binnall, Sixteen Million Angry Men: Reviving a Dead
Doctrine to Challenge the Constitutionality of Excluding Felons from Jury Service, 17 Va. J. Soc.
Pol’y & L. 1, 19 (2009) (“Most often fatal to Equal Protection claims is the refusal of the Supreme
Court to recognize felons as a class worthy of special protections.”); United States v. Arce, 997
F.2d 1125, 1127 (5th Cir. 1993) (holding that “excluding convicted felons from jury service does
not violate the constitutional guarantee of equal protection” because the government “has a
legitimate interest in protecting the probity of juries . . . [and] [e]xcluding convicted felons from
jury service is rationally related to achieving that purpose”); Greene, 995 F.2d at 795–96 (“the
exclusion from juror eligibility of persons charged with a felony is rationally related to the
legitimate governmental purpose[s] of guaranteeing the probity of jurors . . . [and] of creating a
pool of jurors likely to give unbiased consideration to the evidence presented”).
Hale attempts to distinguish his claim from these cases on the ground that not only were
felons excluded from his jury pool, resulting in a significant racial and sex-based disparity in the
jury’s composition, but the excluded felons were only from Cuyahoga County, which violated
Ohio law. (Doc. No. 31 at 59.) But courts have rejected similar arguments to Hale’s, and for
reasons that apply equally here. The Eighth Circuit, for example, found no merit in a defendant’s
argument that the exclusion of charged felons from his jury pool was impermissible because it had
a disparate impact on potential jurors who were African-American, which warranted a higher
34

standard of review than whether the exclusion was rationally related to a legitimate governmental
purpose. Greene, 995 F.2d at 796. The circuit court concluded that because the exclusion of felons
was facially race-neutral, the rational-relationship test applied, unless the defendant had some
evidence of purposeful intent to discriminate or that the size of the disparity alone was sufficient
to allow an inference of intent to discriminate, which he did not. Id. And the court further found
that the exclusion of felons was “rationally related to the legitimate governmental purpose[s] of
guaranteeing the probity of jurors . . . [and] of creating a pool of jurors likely to give unbiased
consideration to the evidence presented.” Id. at 795–96; see also United States v. Best, 214 F. Supp.
2d 897, 904–05 (N.D. Ind. 2002) (rejecting argument that African Americans were
unconstitutionally unrepresented on venire because convicted felons are generally ineligible for
jury service). The Court agrees with the Eighth Circuit’s analysis. Even if Hale could establish a
prima facie case of discriminatory intent, which he has not, it is rebutted by the State’s significant
interest in the honesty, integrity, and impartiality of jurors. Hale, therefore, has not established an
equal-protection violation either.
Accordingly, Hale’s first ground for relief is procedurally defaulted and meritless.
II.

Second Ground for Relief: Trial-Court Error/Voir Dire
Hale asserts for his second ground for relief that the trial court violated his constitutional

rights in conducting voir dire. Specifically, the trial court erred in: (1) death-qualifying the jury
while failing to life-qualify the jury; (2) encouraging consideration of non-statutory aggravating
factors; (3) misinforming jurors of the law; (4) failing to remove a juror who expressed racial bias;
(5) failing to remove four jurors who were biased in favor of the death penalty; and (6) improperly
excluding prospective jurors who were not biased against the death penalty. (Doc. No. 13 at 83–

35

108.) Respondent argues this claim is procedurally defaulted and meritless. (Doc. No. 17 at 43–
56.)
A.

Procedural Posture

Respondent contends that each of Hale’s six sub-claims, as listed above, is procedurally
defaulted.
1.

Sub-claim 1

Respondent characterizes Hale’s first sub-claim as comprising two separate assertions of
trial-court error in conducting voir dire: (1) judicial bias in life- and death-qualifying
venirepersons; and (2) unfairly “priming” one of the jurors “to be disposed towards death.” (Id. at
44–46.) He contends both claims are procedurally defaulted. (Id.)
As to the first argument, Respondent notes the Ohio Supreme Court found Hale’s claim of
judicial bias waived. The state court stated:
{¶ 76} In his fifth proposition of law, Hale claims that the trial judge conducted
voir dire in a one-sided, and therefore unfair, manner. According to Hale, the judge
death-qualified each prospective juror without any request by the prosecution, but
he did not similarly “life-qualify” each prospective juror—i.e., he did not ask those
jurors questions to determine whether they would automatically vote for the death
penalty. See generally Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S. Ct.
2222, 119 L. Ed. 2d 492. Hale alleges that “the trial court failed to ask lifequalifying questions of at least 28 prospective jurors.”
{¶ 77} Crucially, Hale does not contend that the trial judge prevented defense
counsel from life-qualifying the jurors. Instead, he argues “that the trial court’s
conduct of voir dire was biased” because the judge asked death-qualifying
questions himself, but left it to defense counsel to ask life-qualifying questions.
{¶ 78} Hale has failed to preserve his claim that the trial judge was not impartial.
Such claims must be raised by filing an affidavit of disqualification with the chief
justice of this court. Hale did file such an affidavit in this case, but that affidavit
made no allegation concerning the conduct of the trial judge during voir dire. See In
re Disqualification of Ambrose, 110 Ohio St.3d 1220, 2005-Ohio-7154, 850 N.E.2d
722.
36

Hale, 892 N.E.2d at 887.
As Respondent argues, the requirement that litigants file an application of disqualification
to assert claims of judicial bias is an adequate and independent state procedural ground, wellestablished in Ohio. See Ohio Rev. Code § 2701.03; Getsy v. Mitchell, 495 F.3d 295, 309 (6th Cir.
2007). Furthermore, although the Ohio Supreme Court conducted a plain-error review of the claim
after invoking the procedural rule, such analysis “does not constitute a waiver of the state’s
procedural default rules and resurrect the issue . . . .” Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir.
2006). 12
Hale responds that the default should not be enforced because the Ohio Supreme Court
misapplied the disqualification-affidavit rule. (Doc. No. 31 at 105.) As he asserts, “an incorrect
application of a state [procedural] rule does not constitute reliance on an adequate and independent
state ground.” Wogenstahl v. Mitchell, 668 F.3d 307, 341 (6th Cir. 2012) (evaluating state-court
application of res judicata doctrine). According to the Ohio Supreme Court, Hale argues, this rule
applies only to the “‘narrow issue of possible bias or prejudice of a judge,’” and “‘is not a vehicle
to contest matters of substantive or procedural law . . . .’” (Doc. No. 31 at 105 (quoting In re
Disqualification of Solovan, 798 N.E.2d 3 (Mem) (Ohio 2003).) And the claim he asserted in state
court, Hale maintains, was actually a “failure-to-life-qualify claim,” challenging the judge’s
conduct in empaneling jurors with a bias in favor of the death penalty, not one alleging the judge’s

12

A state court’s review for plain error is “properly viewed as a court’s right to overlook procedural defects to prevent
manifest injustice . . . .” Lundgren, 440 F.3d at 765; see also Ohio R. Crim. P. 52(B) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the court.”); State v. Long, 372
N.E.2d 804, 808 (Ohio 1978) (Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice where, but for the error, the outcome
of the trial clearly would have been otherwise.).

37

personal bias. The claim, therefore, was outside the scope of the disqualification-affidavit rule,
according to Hale, and the Ohio Supreme Court misapplied the rule. (Id.)
As the Ohio Supreme Court explained, however, Hale argued before it “‘that the trial
court’s conduct of voir dire was biased’ because the judge asked death-qualifying questions
himself, but left it to defense counsel to ask life-qualifying questions.” Hale, 892 N.E.2d at 887.
And here, too, Hale squarely attacks the judge’s bias. He states in his petition: “Hale is not alleging
that the trial court precluded him from questioning jurors. Instead, Hale argues that the trial court’s
conduct at voir dire was biased.” (Doc. No. 13 at 86.) The Ohio Supreme Court, therefore, correctly
applied Ohio law in ruling that Hale waived any judicial-bias challenge by failing to raise the issue
in an affidavit of disqualification to the state high court, as he did with regard to other issues during
the pendency of his trial. See In re Disqualification of Ambrose, 850 N.E.2d 722 (Mem.) (Ohio
2005). To the extent that Hale asserts a claim of judicial bias, therefore, that claim is procedurally
defaulted.
When the Ohio Supreme Court conducted its plain-error review of this claim, however, the
court addressed more than judicial bias. It also considered the claim Hale contends he raised in
state court and asserts here: whether the trial court’s conduct of voir dire violated Hale’s
constitutional right to a jury free of bias, including bias in favor of the death penalty. See Hale,
892 N.E.2d at 887. As Hale argues, this was “a matter[] of substantive . . . law” and therefore not
covered by Ohio’s disqualification-affidavit rule. In re Disqualification of Solovan, 850 N.E.2d at
3–4. Therefore, to the extent Hale raises a claim regarding the trial court’s obligation to life-qualify
jurors, that claim is not procedurally defaulted.
As to Hale’s assertion that the trial judge unfairly “primed” one juror’s disposition in favor
of the death penalty, Respondent argues that Hale defaulted that claim, too, because he never raised
38

it in state courts. (Doc. No. 17 at 45.) The Court agrees. That issue arises out of the record of
proceedings in the trial court, and therefore could have been raised on direct appeal. Hale failed to
do so, however, and, under Ohio law, res judicata now prohibits him from raising the issue in any
post-conviction proceeding. See Wong, 142 F.3d at 322 (“Under Ohio law, the failure to raise on
appeal a claim that appears on the face of the record constitutes a procedural default under the
State’s doctrine of res judicata.”); Perry, 226 N.E.2d 104 (holding that res judicata bars a criminal
defendant from raising in post-conviction proceedings those claims that could have been raised on
direct appeal). With no state-court remedies still available to him, Hale has defaulted this claim.
See Gray, 518 U.S. at 161–62; Alley, 307 F.3d 3at 385.
2.

Sub-claims 2, 3, 4 and 6

Respondent argues that sub-claims 2, 3, 4, and 6, as listed above, also are procedurally
defaulted. (Doc. No. 17 at 47–48, 49, 50–51, 55.) He asserts that because the claims are recordbased and Hale never presented them to state courts on direct appeal, they are now procedurally
barred under Ohio’s doctrine of res judicata and precluded from federal habeas review. (Id.)
Hale challenges Respondent’s procedural-default defense to these claims only as to subclaim 2, in which Hale asserts that the trial court “misled” the jurors during voir dire about nonstatutory aggravating factors. (See Doc. No. 31 at 104–05.) He argues that he raised this claim to
the Ohio Supreme Court, citing one sentence of his merit brief filed in that court, which stated,
“‘The judge misled the jurors further when he mentioned ‘prior calculation and design’ as an
example of an aggravating circumstance.’” (Id. at 104 (quoting Doc. No. 7-3 at 188).) Hale’s
habeas claim, however, differs significantly in substance and factual support from his state claim.
In state court, Hale included the sentence he cites above in his discussion of a broader claim that
also charged Ohio’s “deficient death penalty scheme,” “juror misconduct,” and “vague” and
39

“misleading” jury instructions with failing to “cure the jurors’ misperceptions” of what constitutes
an aggravating circumstance under Ohio law for purposes of weighing against mitigating factors
in determining whether to impose a death sentence. (Doc. No. 7-3 at 188.) The heading for the
claim in Hale’s merit brief to the Ohio Supreme Court asserted that “Ohio’s Death Penalty Scheme
Results In An Arbitrary Application Of Punishment In Violation Of The Eighth Amendment [and]
Jurors Who Consider Nonstatutory Aggravating Circumstances At The Penalty Phase Violate [a]
Defendant’s Rights To Due Process . . . .” (Id.) And the discussion concludes: “Juror misconduct
and a defective capital trial system deprived Hale of due process and a fair and reliable sentencing
hearing.” (Id. at 189.) The Ohio Supreme Court, therefore, reasonably characterized this claim as
one of “Juror Misconduct/Misunderstanding,” stating, “Hale contends that the jurors did not
understand the concept of aggravating circumstances and that they committed ‘juror misconduct’
by considering nonstatutory aggravating circumstances.” Hale, 892 N.E.2d at 887.
Here, however, Hale focuses entirely on the judge’s conduct, and he challenges not just the
judge’s statement to the jurors during voir dire regarding “prior calculation and design” as an
aggravating circumstance, but also the court seating jurors who were “willing to consider
nonstatutory aggravating circumstances in the sentencing phase of trial.” (Doc. No. 31 at 77–78.)
Hale did not fairly present the fundamental legal basis of this claim to state courts “such
that the ultimate question would have been the same despite variations in the legal theory or factual
allegations urged in its support.” Jells v. Mitchell, 538 F.3d 478, 504 (6th Cir. 2008) (citing Picard
v. Connor, 404 U.S. 270, 277–78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971)). This claim is
procedurally defaulted.
Accordingly, sub-claims 2, 3, 4, and 6 are all procedurally defaulted.

40

3.

Sub-claim 5

Respondent argues that Hale also defaulted sub-claim 5, which asserts that the trial court
erred by failing to remove four jurors who were biased. (Doc. No. 17 at 52–53.) Hale raised jurorbias claims as to two of the jurors, Jurors Nos. 4 and 5, to the Ohio Supreme Court on direct appeal.
The court found them waived, ruling:
{¶ 89} Jurors No. 4 and 5 served on the jury. But Hale waived any objection to their
service. First, he declined to challenge either one for cause. Second, he did not
exhaust his peremptories, and he thereby “acquiesced in the jury that was finally
selected.” State v. Carter (1970), 21 Ohio St.2d 212, 214, 50 O.O.2d 446, 256
N.E.2d 714; see also State v. Stallings (2000), 89 Ohio St.3d 280, 288, 731 N.E.2d
159. Finally, defense counsel expressly stated that they were satisfied with the jury.
See Eaton, 19 Ohio St.2d at 149, 48 O.O.2d 188, 249 N.E.2d 897.
Hale, 892 N.E.2d at 888. Hale did not raise a juror-bias claim regarding the other two jurors, Jurors
Nos. 1 and 6, in state court, and as a record-based claim he no longer may do so. Hale does not
contest Respondent’s assertion that this sub-claim is procedurally defaulted. (See Doc. No. 31 at
104–05.)
4.

Cause and prejudice

Hale argues that he can demonstrate cause to excuse the procedural default of each of these
claims in the ineffectiveness of his trial and direct-appeal counsel. (Doc. No. 31 at 105–06.) As
will be discussed below, however, Hale’s ineffective-assistance claims, asserted in grounds for
relief three, eleven, and eighteen, are meritless and/or themselves procedurally defaulted, and they
therefore cannot constitute cause for the defaults. Edwards v. Carpenter, 529 U.S. 446, 453, 120
S. Ct. 1587, 146 L. Ed. 2d 518 (2000) (holding that claims of ineffective assistance of counsel
cannot provide cause for the procedural default of another claim if the ineffective-assistance claim
itself is procedurally defaulted).

41

B.

Merits Analysis

Regardless of whether each sub-claim of Ground 2 has been preserved for federal habeas
review, each would be denied as meritless.
1.

Failure to “life qualify” the jury

Hale first contends that the trial court erred when, without being asked, it “death-qualified”
each prospective juror by ensuring that they would consider imposing a death sentence but failed
to “life-qualify” each of them by ensuring that they would not always impose a death sentence.
(Doc. No. 31 at 75–77;101–02.) He alleges that the judge did not ask life-qualifying questions of
“at least” twenty-eight prospective jurors, including half of the seated jurors. (Id. at 76.)
Hale presented this claim to the Ohio Supreme Court on direct appeal. As noted above, the
court first found the claim waived because Hale did not raise these allegations of judicial bias in
an application of disqualification with the chief justice of that court as required under Ohio law. It
then reviewed the claim for plain error and found none, reasoning:
{¶ 76} In his fifth proposition of law, Hale claims that the trial judge conducted
voir dire in a one-sided, and therefore unfair, manner. According to Hale, the judge
death-qualified each prospective juror without any request by the prosecution, but
he did not similarly “life-qualify” each prospective juror—i.e., he did not ask those
jurors questions to determine whether they would automatically vote for the death
penalty. See generally Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S. Ct.
2222, 119 L. Ed. 2d 492. Hale alleges that “the trial court failed to ask lifequalifying questions of at least 28 prospective jurors.”
{¶ 77} Crucially, Hale does not contend that the trial judge prevented defense
counsel from life-qualifying the jurors. Instead, he argues “that the trial court’s
conduct of voir dire was biased” because the judge asked death-qualifying
questions himself, but left it to defense counsel to ask life-qualifying questions.
***
{¶ 79} . . . [T]the claimed error does not reach the level of plain error. In the first
place, the record shows that the trial judge asked numerous prospective jurors
42

whether they could consider mitigating factors or whether they would automatically
vote for a death sentence. In many cases, the judge asked both questions.
{¶ 80} Second, the trial court had no obligation to personally life-qualify the
jurors. State v. Stojetz (1999), 84 Ohio St.3d 452, 705 N.E.2d 329, syllabus; State
v. Mundt, 115 Ohio St .3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 164–167. The
fact that the judge did ask death-qualifying questions did not create any such
obligation. The fact remains that the trial judge did not prevent defense counsel
from asking such questions, and counsel in fact did ask such questions without
hindrance. Hale provides no support for his assertions that the trial judge’s method
of proceeding caused the seating of a “death-prone jury.” We overrule Hale’s fifth
proposition of law.
Hale, 892 N.E.2d at 887.
The parties disagree about whether AEDPA applies to the Ohio Supreme Court’s plainerror review of this claim, reflecting a prolonged intra-circuit split in the Sixth Circuit on the issue.
As Respondent argues, however, the Sixth Circuit resolved the matter in Stewart v. Trierweiler,
867 F.3d 633 (6th Cir. 2017). There, the court recognized as controlling precedent its decision in
Fleming v. Metrish, 556 F.3d 520 (6th Cir. 2009), in which it held that AEDPA applies to a state
court’s plain-error analysis if it “‘conducts any reasoned elaboration of an issue under federal
law.’” Stewart, 867 F.3d at 638 (quoting Fleming, 556 F.3d at 531). The state court here considered
federal law in its analysis of this claim, and AEDPA deference therefore applies to its decision.
Hale argues that, if AEDPA governs, the state court’s decision unreasonably applied
Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) under § 2254(d)(1)
by concluding that “[t]he fact that the judge did ask death-qualifying questions did not create any
such obligation” to life-qualify potential jurors. (Doc. No. 31 at 101.) The Supreme Court clearly
established in Morgan, Hale asserts, that “[t]he Constitution requires the trial court to seek out and
remove” jurors who cannot impose a death sentence and those who will always impose a death
sentence. (Id. (citing Morgan, 504 U.S. at 728–29).) It did not.
43

The Court first held in Morgan that a juror “who will automatically vote for the death
penalty in every case” is not impartial as required by the Sixth and Fourteenth Amendments, and
a capital defendant may challenge for cause any prospective juror who holds such views. Morgan,
504 U.S. at 729. It then turned to what procedures in voir dire are needed to identify that specific
bias. Id. at 729–36. The Court held that the “[p]etitioner was entitled, upon his request, to inquiry
discerning those jurors who” would always impose a death sentence following conviction. Id. at
736. And in that case, it concluded, general questions about “fairness” and ability to “follow the
law” that were asked during voir dire were inadequate. Id. at 735–36. The crux of the matter,
according to the Court, was the defendant’s ability to uncover juror bias through voir dire: “We
deal here with petitioner’s ability to exercise intelligently his complementary challenge for cause
against those biased persons on the venire . . . .” Id. at 733; see also id. at 735–36 (“A defendant
on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors
function under such misconception.”). Whether the trial judge conducted the life-qualifying
inquiry or defense counsel did so was not at issue. The Court explained, “‘[a]s with any other trial
situation where an adversary wishes to exclude a juror because of bias, then, it is the adversary
seeking exclusion who must demonstrate, through questioning, that the potential juror lacks
impartiality. It is then the trial judge’s duty to determine whether the challenge is proper.’” Id. at
733 (emphasis in original) (quoting Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844, 83 L.
Ed. 2d 841 (1985)); see also Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001) (“Morgan does
not mandate that life-qualifying questions be asked of potential jurors in every case. Instead,
Morgan holds that a defendant has the right to life-qualify his jury upon request.”).
And here, as the Ohio Supreme Court noted, the judge queried prospective jurors about
their views on the death penalty, including asking life-qualifying questions, as did Hale’s counsel
44

“without hindrance.” Hale, 892 N.E.2d at 887. Venire persons also were asked many questions
about their views on the death penalty on the juror questionnaire, including to what extent they
agreed or disagreed that the death penalty should “always be used as the punishment for every
murder”; “never be used for the punishment of any murder”; and “sometimes be used as the
punishment in certain murder cases.” (E.g., Doc. No. 13-16 at 10–12 (emphasis in original).) 13 The
state court’s decision, therefore, was neither contrary to, nor an unreasonable application of,
Morgan or any other Supreme Court precedent.
The state court also reasonably found no judicial bias. As the court found, and Hale does
not contest, the judge questioned potential jurors about their views on the death penalty, including
whether they could consider a lesser punishment or whether they would automatically impose
death, or both. On its face, this does not demonstrate a “one-sided voir dire” as Hale alleges. (Doc.
No. 31 at 101.) Nor does it show the judge had any personal bias favoring the death penalty or the
prosecution.
Similarly unfounded is Hale’s new claim, never addressed by state courts, that the trial
court’s voir dire questioning “primed at least one juror to be disposed towards death by listing the
facts of the case—which the juror had not yet heard—as a hypothetical . . . of a case where a death
penalty instruction would be appropriate . . . .” (Id. at 76–77 (citing Doc. No. 8-1 (Trial Tr.) at
695).) The judge made the statement at issue in response to the remark of a prospective juror who

13

Hale has moved to have the record expanded to include the juror questionnaires of Juror Nos. 34 (Doc. No. 13-16),
5 (Doc. No. 13-17), 6 (Doc. No. 13-18), and 7 (Doc. No. 13-19), among other exhibits he submitted with his petition
in support of other grounds for relief. (See Doc. No. 37.) Respondent does not oppose the inclusion of the juror
questionnaires as they were part of the state-court record. (Doc. No. 38 at 2.) For that same reason, as explained in
Section XVII of this opinion, the Court has granted Hale’s request to include the juror questionnaires in the record
and has considered them in its merits review of this claim.

45

was ultimately seated on the jury that he assumed that an “aggravating circumstance” for purposes
of capital sentencing “would mean something like extreme brutality” or “extreme circumstances.”
(Doc. No. 8-1 (Trial Tr.) at 693.) The court stated (with the challenged language in bold):
I’m glad you raised that because that is a good point because the circumstances that
you might feel would be appropriate for a death penalty may not be what the law
says is appropriate for a death penalty. And that’s where we have to go in terms of
figuring out whether or not you’d follow the law, or you’d just follow your own
conscience and not follow the law.
So what I’m trying to get at is a matter of conscience with you, and again, we’re
not trying to judge your conscience because it’s who you are, and what you believe
is who you are. And we’re not here to change that, we’re just here to find out what
it is, because we have to make a determination as to whether or not you could serve
as a juror on this case because it is such a serious issue. I am going, and the attorneys
obviously want to ask you questions as well.
. . . I just want to ask you on the one issue, because I can give you an example, I’ll
just pose it as a hypothetical because, again, what facts and the law will be at trial
are subject to some modification, we haven’t tried the case yet, so we don’t know
a lot of this stuff, but in a situation such as this, I could instruct you that if the
State has proven that a murder has been committed and that also the murder
was committed in the course of, or in furtherance of a robbery, you know,
while someone was being robbed, they were murdered, then I would instruct
you that is an aggravating circumstance attached to that murder that would
require an instruction to you as a juror on the death penalty.
Now, if you think that – that, well, I wouldn’t – I can’t impose a death penalty if
it’s just a killing that happened during a robbery, it would have to be
something worse, that’s what we need to know. That’s what we need to find out,
because that’s telling me that you wouldn’t be able to do that, then you wouldn’t
be able to follow the instructions of law. You would have to – if you’re going to go
your own way, then we have to make sure that that’s known.
(Id. at 694–95 (emphasis added).)
The judge’s remarks, especially when placed in context, do not demonstrate that he
“primed” a juror toward any particular view regarding the death penalty, as Hale charges. Rather,
the judge was trying to explain that aggravating circumstances are defined by the law through the
use of a simple hypothetical, so that he could discern the juror’s ability to follow the law should a
46

capital sentencing phase of the trial take place. The judge did not specify any facts of the case other
than that the State alleged the murder took place during a robbery. Moreover, this claim is entirely
speculative, as there is nothing in the record to show that this juror was in any way “disposed
toward death.”
Hale’s claims regarding the trial court’s questioning of potential jurors regarding the death
penalty and judicial bias, therefore, are unfounded.
2.

Encouragement to consider non-statutory aggravating circumstances

Hale next claims that during jury selection, the trial court “encouraged consideration of,”
and “erroneously seated jurors willing to consider,” non-statutory aggravating circumstances at
the penalty phase of trial. (Doc. No. 31 at 77–78; 102–03.) Hale notes that one juror stated during
voir dire: “But then again it would have to be the circumstances, I would have to decide by what
was presented as far as the reason or the cause of death, how it was done, why it was done.” (Doc.
No. 8-1 (Trial Tr.) at 501.) Another remarked: “I mean I’m assuming that the aggravated
circumstances would mean like something like extreme brutality . . . .” (Id. at 693.) Because no
state court has addressed this claim, AEDPA deference does not apply and this Court reviews it de
novo. E.g., Rice, 660 F.3d at 252 (“It is well settled that we may review de novo an exhausted
federal claim that was not adjudicated on the merits in state court.”).
As the Ohio Supreme Court observed in reviewing a related claim, these jurors’ statements
regarding aggravating circumstances, “made on voir dire—before the jury had even been selected,
much less formally instructed as to the meaning of aggravating circumstances—cannot support an
inference that the jurors either misunderstood or disobeyed the instructions they later received in
the penalty phase.” Hale, 892 N.E.2d at 887–88. Hale concedes that the trial court “mentioned the
correct standard at other points in the trial” and does not challenge the court’s jury instructions on
47

the issue. (Doc. No. 31 at 102.) Moreover, “juries are presumed to follow their instructions . . . .”
Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). There is no
reason to believe that the jurors in this case did not follow the judge’s instructions on what
constitutes an aggravating circumstance under Ohio’s capital sentencing laws. This claim is
meritless.
3.

Misstatements of the law

Hale further contends the trial court misstated the law during voir dire. (Doc. No. 31 at
102–03.) He cites two statements the judge made to prospective jurors: (1) “Another example of
an aggravating circumstance under the law of the State of Ohio is if someone were to commit an
aggravated murder by a prior calculation and design[,]” which Hale argues is incorrect; and (2)
“[I]f there were to be a second phase, then it becomes a test of balancing mitigating factors against
aggravating circumstances and that’s something that you as a member of the jury would have to
do[,]” which Hale contends improperly omitted the State’s burden of proof beyond a reasonable
doubt. (Id. at 77–78 (quoting, respectively, Doc. No. 8-1 (Trial Tr.) at 407, 504).) Hale further
asserts that the judge improperly instructed counsel for both parties during voir dire that the
potential jurors should understand “that if they don’t agree with the rest of the jury, they do not
find mitigating outweighs aggravating, or vice versa, then they have to have a valid reason for their
feelings, in other words, to not vote for the death penalty if that was the way the jury was divided.”
(Id. at 77 (quoting Doc. No. 8-2 (Trial Tr.) at 355).) This characterization of the law “inverts” the
prosecution’s burden of proof, Hale says, and “shackled” the defense. (Id.) No state court has
addressed this claim, so this Court reviews it de novo.
Hale’s argument is unavailing. First, the Court does not agree that the trial judge misstated
the law to the jurors in the context of voir dire, in which the jurors are provided preliminary,
48

simplified legal standards to assist them in responding to the questions posed to them. The court’s
definition of an aggravated murder with prior calculation and design comports with Ohio’s statute
regarding aggravating circumstances. See Ohio Rev. Code § 2929.04(A)(7). And omitting a
discussion of the standard of proof in explaining Ohio’s capital sentencing procedure of weighing
aggravating circumstances against mitigating factors is reasonable. See Ohio Rev. Code
§ 2929.03(D).
Moreover, even if these statements regarding the law were incomplete or confusing, as
Hale contends, they did not prejudice Hale. The challenged statements to the jurors were cured by
the court’s later instructions on the law. As noted above, “juries are presumed to follow their
instructions . . . .” Richardson, 481 U.S. at 211. Further, the record does not show that counsel
disagreed with, or felt “shackled” by, the judge’s articulation of the law regarding Ohio’s capital
sentencing scheme; defense counsel did not object or attempt to further discuss the matter and Hale
does not cite any instances in which counsel incorrectly stated the standard after the court made
the statements at issue. This claim, too, fails.
4.

Removal of juror who expressed racial bias

Hale next claims that the trial court should have sua sponte removed a juror who expressed
racial bias. (Doc. No. 31 at 78–79; 106–07.) Hale notes that Juror No. 34, a 50-year-old white
male, checked “[a]gree” in his juror questionnaire to the statement that “[s]ome races and/or ethnic
groups tend to be more violent than others.” (Doc. No. 13-16 at 3, 13.) The juror explained in his
own words: “There’s simply a lot of violence in the world—parents don’t discipline enough or
teach values.” (Id. at 13–14.) He also checked “[n]ot too serious” when asked to indicate how
serious of a problem he felt racial discrimination was against African Americans in our society.
(Id.) Finally, Hale points to the juror’s response to a question during voir dire about the death
49

penalty. The juror affirmed that he agreed on his juror questionnaire that the death penalty should
“sometimes” be used. (Doc. No. 8-2 (Trial Tr.) at 347.) He also agreed that he would “want[] to
know the circumstances surrounding that crime[.]” (Id.) He elaborated:
It would always have to depend on, you know, evidently you have to show what
was going through his head. I mean, if there is found, you know, that there may be
a little imbalance or something, just don’t know, you know, what drives somebody
to that. If it was just brutal, you know, everything is okay and he is whatever, sure,
hang him high, but if it’s, you know, you really got to take every instance for itself
on its own merit.
(Id. at 347–48.) Juror No. 34 was not challenged by either party and was seated on the jury. (Id. at
352, 963.)
The Court reviews this claim de novo as it was never presented to state court. The Sixth and
Fourteenth Amendments “ensure the impartiality of any jury that will undertake capital
sentencing.” Morgan, 504 U.S. at 728. The question of whether a trial court seated a fair and
impartial jury is a factual one: Is there “fair support in the record for the state courts’ conclusion
that the jurors here would be impartial[?]” Patton v. Yount, 467 U.S. 1025, 1038, 104 S. Ct. 2885,
81 L. Ed. 2d 847 (1984). Under AEDPA, such factual findings are presumed correct unless the
petitioner can prove otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Indeed,
habeas courts have long accorded trial courts “special deference” in empaneling a jury, as a trial
judge is in the best position to assess the demeanor and credibility of the jurors. See, e.g.,
Patton, 467 U.S. at 1038; Darden v. Wainwright, 477 U.S. 168, 175–78, 106 S. Ct. 2464, 91 L.
Ed. 2d 144 (1986).
Here, the record does not show that Juror No. 34 was racially biased. As Hale points out,
the juror agreed to the questionnaire’s statement that some races and/or ethnic groups “tend to be
more violent than others.” (Doc. No. 13-16 at 13.) But his explanation for that belief was that
50

“there’s simply a lot of violence in the world,” indicating a far more nuanced view of the issue in
general and no particular view about African Americans at all. (Id. at 13–14.) The juror also stated
in the questionnaire that he did not feel uncomfortable around any racial or ethnic group; had never
had a negative or frightening experience with a person of another race; and did not feel that people
are overly sensitive about racial and ethnic jokes. (Id.) As to the juror’s remarks about the death
penalty during voir dire that Hale cites, they had nothing to do with race. And, regardless, they
occurred during a discussion of whether he could consider mitigating evidence, such as “family
life, social history, [and] circumstances of the crime[,]” which the juror unequivocally said he
could. (Doc. No. 8-2 (Trial Tr.) at 346–47.) The statements Hale points to as evidencing bias do
not contradict that view. Indeed, a review of Juror No. 34’s responses in the questionnaire and to
voir dire questioning reveals nothing to suggest that he exhibited overt racial bias such that it was
clear he could not perform his duties as a juror and the trial court should have sua sponte removed
him. This claim is unfounded.
5.

Removal of jurors biased against Hale and in favor of death penalty

For this sub-claim, Hale asserts that the trial court failed to sufficiently question and sua
sponte remove for cause four jurors whom he alleges were biased against Hale and in favor of the
death penalty: Jurors Nos. 1, 4, 5, and 6. (Doc. No. 13 at 93–102.) As Hale concedes, his trial
counsel did not challenge these jurors and they were all empaneled on the jury. (Id. at 93.) Hale
presented his juror-bias claims regarding Jurors Nos. 4 and 5 to state courts; he did not raise a
claim regarding the other two.
As explained above, the trial court has no constitutional duty to conduct a life-qualifying
inquiry. Morgan, 504 U.S. at 733. To the extent Hale claims that the trial court erred by failing to
question these jurors further on their views of the death penalty, therefore, the claim fails.
51

The question here is whether the trial court should have sua sponte dismissed the jurors
because it was apparent that their views on capital punishment “would ‘prevent or substantially
impair the performance of [their] duties as . . . juror[s] in accordance with [their] instructions and
. . . oath.’” Witt, 469 U.S. at 424. As explained above, “a juror who in no case would vote for
capital punishment regardless of his or her instructions, is not an impartial juror and must be
removed for cause.” Morgan, 504 U.S. at 728. A state-court determination of juror bias is a factual
finding, which is presumed correct. Witt, 469 U.S. at 428–29; see also 28 U.S.C. § 2254(e)(1).
And habeas courts are to accord “special deference” to trial courts in applying these standards,
because trial judges are in the best position to assess the demeanor and credibility of the jurors.
See, e.g., Darden, 477 U.S. at 175–78; Patton, 467 U.S. at 1038.
Jurors Nos. 4 and 5. After finding that Hale had waived his claims regarding Jurors Nos.
4 and 5, the Ohio Supreme Court, the last state court to review the claims, conducted a plain-error
review, stating:
{¶ 84} In his seventh proposition of law, Hale contends that three prospective jurors
should have been excused for cause.
***
{¶ 90} The trial court did not commit plain error in failing to excuse jurors No. 4
and 5 sua sponte. The record does not show that they were automatic-death-penalty
jurors. Juror No. 4 thought he could consider all sentencing options. He agreed that
the death penalty is “for a very few select people” and should not be imposed on all
murderers without regard to mitigating circumstances.
{¶ 91} Juror No. 5 thought that sex murderers and child murderers should be
executed and that in cases such as Charles Manson’s, “you really want to see that
person hang.” Otherwise, she stated, it depended on the individual case. These
statements in no way suggest that juror No. 5 would vote automatically for a death
sentence in this case.
{¶ 92} Indeed, juror No. 5 appeared uncertain that she could sign a death verdict
and was reluctant to answer that question without knowing the circumstances of the
52

case. She understood that the death penalty “is reserved for only a few.” She said
that she could consider mitigating factors and would consider all sentencing
options. She said, “I may not vote for the death penalty in this instance. I might
think something lesser would be appropriate.”
{¶ 93} Hale has waived his claims with respect to jurors No. 4 and 5, and the trial
court did not commit plain error in allowing them to sit. We therefore overrule
Hale’s seventh proposition of law.
Hale, 892 N.E.2d at 888–89.
Hale argues that the Ohio Supreme Court’s decision was based on unreasonable
determinations of fact in light of the evidence presented under AEDPA’s § 2254(d)(2). (Doc. No.
31 at 103–04.) He challenges the state court’s assertion that Juror No. 4 “agreed that the death
penalty is ‘for a very few select people’ and should not be imposed on all murderers without regard
to mitigating circumstances.” Hale, 892 N.E.2d at 888. But the court was correct, as shown in
these exchanges:
MR. MULLIN: So what we’re talking about here in the death penalty portion of
this case is a very, very narrow portion of crimes charged in the State of Ohio. And
it’s reserved for a very few select people, do you understand that? Would you agree
with that?
JUROR NO. 4: I understand. I certainly understand.
MR. MULLIN: Do you agree with it?
JUROR NO. 4: Again, you’re asking me to – I don’t know the facts of this case, so
how – I agree it should be reserved for those that meet those requirements.
(Doc. No. 8-1 (Trial Tr.) at 488.)
MR. MULLIN: Do you think that if somebody did something in a premeditated
fashion, for example, and they had things, their background such as mental illness
or drug abuse or bad family situation, do you think you would consider that in
determining whether or not death is appropriate?
***

53

JUROR NO. 4: It’s important stuff. I would like to think, I would – I take this very
seriously, just being in that room I would take all information relative to this very
seriously but I would tell you that also my opinion is that when I watch – I’ll hear
lots of stuff, I don’t necessarily out of the box consider that stuff, you know, mental
illness as an excuse for, if somebody had a tough upbringing, that’s a tough
situation, but there is a lot of people who have tough upbringing who don’t commit
violent acts. I would like to – long way of saying I would like to think I would
consider all of the relevant facts, I mean, but I don’t necessarily think that out of
the box those things take away culpability from doing things.
(Id. at 490–91.)
Juror No. 4’s answers to the questions posed show that, although the juror was careful to
acknowledge his views supporting the death penalty, he was willing to keep an open mind and
follow the law in deciding whether it was warranted in Hale’s case. Hale has not shown by clear
and convincing evidence that the juror would automatically impose the death penalty.
As to Juror No. 5, Hale contends the state court unreasonably found that the juror said the
death penalty “depended on the individual case” and “appeared uncertain” about whether she could
sign a death verdict. (Doc. No. 31 at 103.) He argues that these findings were based only on the
juror’s one-word responses to questions – “yes” – which differed from the juror’s longer replies
about her views that the death penalty takes too long to carry out and convicted criminals are
released too soon. (Id.) But there is no reason that a prospective juror’s answer of “yes” to a
question during voir dire is an insufficient basis from which to discern that person’s views. And
the juror’s criticisms of the death penalty do not necessarily show a bias in favor of it and certainly
do not show that the juror would impose it in every case. Hale has not rebutted the presumption
that the Ohio Supreme Court’s findings regarding Juror No. 5 were correct.
Hale’s claims about Jurors Nos. 4 and 5, therefore, are meritless.
Jurors Nos. 1 and 6. Even under the more lenient standard of de novo review, as no state
court has adjudicated these claims, the Court find Hale’s claims regarding Jurors Nos. 1 and 6 also
54

lack merit. There is ample evidence in the record demonstrating that these jurors could impartially
follow Ohio’s capital sentencing laws.
Hale notes that Juror No. 1 stated that she would “probably be against” sentences less than
life without parole. (Doc. No. 31 at 81 (quoting Doc. No. 8-1 (Trial Tr.) at 421).) But the juror
went on to say that she “would have to hear more about the discussion on the other[]” possible
lesser sentences if that issue were presented. (Doc. No. 8-1 (Trial Tr.) at 421.) When asked how
she felt about the death penalty, Juror No. 1 replied that she “was very open minded to that. I
believe all points should be taken into consideration, it’s a very important decision on one’s life.
And I think after hearing all sides and all views, my decision would be made on that.” (Id. at 416–
17.) The juror also agreed that she would “give full, fair, and meaningful consideration” to the
legal requirements for imposition of a death sentence. (Id. at 420.)
Hale argues that Juror No. 6’s remarks on voir dire indicate that “he could and would
automatically vote for death for any sane defendant.” (Doc. No. 31 at 83.) They do not. The
prosecutor questioned the juror about his statement on his questionnaire that he “believe[d] in the
death penalty if the person’s actions caused another to die and that [at] the time he or she was
mentally capable of knowing what he[/]she was doing.” (Doc. No. 8-1 (Trial Tr.) at 523.) The juror
agreed that there were other possible circumstances aside from competency in which the death
penalty would not be appropriate, such as where the defendant acted in self-defense. (Id. at 524.)
When defense counsel asked the juror about this comment on his questionnaire, he explained that
the decision whether to impose a death sentence “[d]epends on the circumstances” and “mental
competency is just one of the factors [he] would consider . . . .” (Id. at 538.) Most significantly,
Juror No. 6 unequivocally affirmed that he was “willing to accept and follow all instructions of
law” given by the judge. (Id. at 535.)
55

The record does not show that Jurors Nos. 1 and 6 would have automatically voted to
impose the death penalty in every case, Morgan, 504 U.S. at 729, or otherwise had views regarding
capital punishment that “would ‘prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath[.]’” Witt, 469 U.S. at 424. This claim also is
meritless.
6.

Exclusion of unbiased prospective jurors

Finally, Hale argues that the trial court improperly granted the prosecution’s challenges for
cause of three jurors whom Hale claims were not biased against the death penalty. (Doc. No. 31 at
92–94.) Hale did not raise this claim in state courts, so this Court reviews it de novo.
Hale cites numerous instances in which Jurors Nos. 9, 27, and 41 expressed conflicting
views about capital punishment but ultimately agreed that they would follow the court’s
instructions on the law in applying it. (See id. at 83–87.) In reviewing the record, however, and
mindful of the “special deference” owed to the trial judge, the Court finds that the jurors’ responses
in voir dire support the trial court’s conclusion that their views on the death penalty “would
‘prevent or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.’” Witt, 469 U.S. at 424. As the Supreme Court stated in Witt, a juror’s
bias need not be proven with “‘unmistakable clarity.’” Id. It explained:
[V]eniremen may not know how they will react when faced with imposing the death
sentence, or may be unable to articulate, or may wish to hide their true feelings.
Despite this lack of clarity in the printed record, however, there will be situations
where the trial judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law. . . . [T]his is why
deference must be paid to the trial judge who sees and hears the juror.
Id. at 425–26. This claim, too, fails.
Accordingly, Hale’s second ground for relief is procedurally defaulted and/or meritless.
56

III.

Fourth, Eighth through Tenth, and Thirteenth through Fifteenth Grounds for
Relief: Trial-Court Error/Evidentiary Rulings
In the above-listed grounds for relief, Hale claims that the trial court made numerous

erroneous evidentiary rulings. Specifically, he alleges in thirteen sub-claims that the trial judge
erred by: (1) prohibiting defense counsel from reviewing State witness statements (Ground 4); (2)
permitting expert testimony of Curtiss Jones and Detective Michael Grida (Ground 8); (3)
admitting into evidence gruesome photographs (Ground 9); (4) improperly ruling on the State’s
discovery violations (Ground 10); (5) permitting the State to elicit testimony from Robert Stewart
(Ground 10); (6) permitting victim-impact testimony in both guilt and sentencing phases of trial
(Ground 10); (7) admitting into evidence a publicity photo of the victim (Ground 10); (8) admitting
into evidence testimony from the State’s blood-spatter expert (Ground 10); (9) restricting
testimony of defense witness Johnny Smith (Ground 10); (10) improperly ruling on defense
allegations of prosecutorial misconduct (Ground 10); (11) precluding defense from presenting
relevant mitigating evidence (Ground 13); (12) admitting prejudicial evidence during sentencing
phase of trial (Ground 14); and (13) considering victim-impact evidence at sentencing phase of
trial (Ground 15). (Doc. No. 13 at 123–28; 143–70; 226–44.) Respondent maintains that these
claims are procedurally defaulted, non-cognizable on habeas corpus, and/or meritless. (Doc. No.
17 at 83–85; 99–117; 120–27.)
A.

Procedural Posture
1.

Sub-claims 3, 4, 5, 7, 9, 11, and 13

Respondent acknowledges that Hale raised evidentiary sub-claims 3, 4, 5, 7, 9, 11, and 13,
as listed above, on direct appeal to the Ohio Supreme Court, which adjudicated them on their

57

merits, and they are preserved for federal habeas review. (Doc. No. 17 at 104, 108, 109, 112, 113,
120, 125.)
2.

Sub-claims 1, 2, 8, and 12

Respondent contends that Hale procedurally defaulted sub-claims 1, 2, 8, and 12, as listed
above, because he raised them on direct appeal to the Ohio Supreme Court, but the court found
them waived because defense counsel did not properly object at trial to the evidentiary rulings at
issue. (Id. at 83–84; 99; 112–13; 122–24.) Ohio’s contemporaneous objection rule requires that a
party preserve an error for appeal by calling it to the attention of the trial court at a time when the
error could have been avoided or corrected. State v. Mason, 694 N.E.2d 932, 950–51 (Ohio 1998);
State v. Glaros, 166 N.E.2d 379, 380(Ohio 1960), paragraph one of the syllabus. Failure to adhere
to the “firmly-established” contemporaneous objection rule is “an independent and adequate state
ground” upon which to find federal habeas claims procedurally defaulted. See, e.g., Keith, 455
F.3d at 673. And, as noted above, the Ohio Supreme Court’s plain-error review does not constitute
a waiver of the state’s procedural default rules and resurrect the issue. Id.
Hale challenges Respondent’s charge that sub-claims 1 and 12 are defaulted. As to claim
1, as explained above, Hale raised this claim on direct appeal in the Ohio Supreme Court, which
found it waived because Hale did not object to the complained-of evidentiary ruling. Hale, 892
N.E.2d at 890. Hale then presented this claim again on post-conviction review in state court, with
supporting evidence dehors the record. See State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985)
(an exception to Ohio’s res judicata doctrine exists where a petitioner presents evidence dehors,
or outside, the record to support a claim on post-conviction review). But the last state postconviction court to review the claim, the court of appeals, found it barred by res judicata because
it had already been litigated by the Ohio Supreme Court on direct appeal and Hale’s extra-record
58

evidence was insufficient to overcome the res judicata bar. Hale, 2016 WL 4978449, at *7; see
also State v. Lawson, 659 N.E.2d 362, 367 (Ohio Ct. App. 1995) (to defeat the res judicata bar on
post-conviction review, extra-record evidence must be “competent, relevant and material”). Where
a later state-court decision rests upon a prohibition against further state review, the decision
“neither rests upon procedural default nor lifts a pre-existing procedural default, [and] its effect
upon the availability of federal habeas is nil . . . .” Ylst, 501 U.S. at 804 n.3. In that case, habeas
courts “look through” that later decision to the prior reasoned state-court judgment. Id. at 805. As
Respondent correctly asserts, therefore, claim 1 remained procedurally defaulted on the ground
invoked by the Ohio Supreme Court on direct review. (Doc. No. 17 at 84.)
Hale counters that the post-conviction appellate court’s assertion of res judicata was an
unreasonable determination of fact under § 2254(d)(2) due to its “improper reliance” on the Ohio
Supreme Court’s “unreasonable” decision on direct appeal denying the claim on its merits under
plain-error review. (Doc. No. 31 at 150–51.) Section 2254(d), however, applies only to claims
“adjudicated on the merits in State court proceedings”; it does not apply to a state court’s ruling
on a procedural issue governed by state law. See 28 U.S.C. § 2254(d). Moreover, even if the Ohio
Supreme Court’s alternative merits decision were unreasonable, that would not resurrect the
claim’s procedural default for purposes of federal habeas review. See, e.g., Coe v. Bell, 161 F.3d
320, 330 (6th Cir. 1998) (“The alternative [merits] holding thus does not require us to disregard
the state court’s finding of procedural bar.”) (citing Harris, 489 U.S. at 264 n.10). Sub-claim 1,
therefore, is procedurally defaulted.
As to sub-claim 12, the Ohio Supreme Court found the claim waived because defense
counsel did not state his objections to the testimony at issue with the specificity required under
Ohio Evidentiary Rule 103(A)(1). Hale, 892 N.E.2d at 894. Hale counters that the nature of the
59

objections was “apparent from the context” and, therefore, exempt from Rule 103. Moreover, he
contends that defense counsel “substantially complied” with the rule by requesting a sidebar soon
after stating his initial objections and providing the court with specific grounds for the objections
at that time, which, he argues, is sufficient under Lee v. Kemna, 534 U.S. 362, 366–67, 122 S. Ct.
877, 151 L. Ed. 2d 820 (2002). (Doc. No. 31 at 342–43 (citing Doc. No. 8-5 (Trial Tr.) at 453–
56).)
As Respondent points out, however, Hale’s counsel did not assert at trial many of the
grounds for the objections that Hale does here. Defense counsel stated to the trial court, for
instance, that “relevancy is not my objection.” (Doc. No. 8-5 (Trial Tr.) at 454.) Ultimately, habeas
courts are bound by state courts’ interpretation of state evidentiary rules, Bradshaw, 546 U.S. at
76, and Hale has not presented sufficient evidence to support his claim that the Ohio Supreme
Court misapplied those rules here. Sub-claim 12 is procedurally defaulted.
Hale further argues that he can establish cause and prejudice to excuse the defaults of
claims 1, 2, and 12 based on the ineffective assistance of counsel. (Doc. No. 31 at 149–50, 199–
202, 344–45.) As discussed below, however, the Court finds those ineffective-assistance claims
themselves are either procedurally defaulted or meritless.
3.

Sub-claim 6

Respondent argues that claim 6, as listed above, also is procedurally defaulted because
Hale did not fairly present it to state courts. (Doc. No. 17 at 110.) He asserts that Hale did not
frame this claim as a federal issue and did not include the same factual allegations in state court.
(Id.) A “‘petitioner must present his claim to the state courts as a federal constitutional issue—not
merely as an issue arising under state law.’” Williams, 460 F.3d at 806 (quoting Koontz, 731 F.2d
at 368). But Hale was clear in his merit brief to the Ohio Supreme Court that he was asserting a
60

federal constitutional violation. (Doc. No. 7-3 at 202, 205.) And the factual allegation to which
Respondent refers does not present a new, unexhausted claim, as “the ultimate question would
have been the same despite variations in the . . . factual allegations urged in its support.” Jells, 538
F.3d at 504 (citing Picard, 404 U.S. at 277–78). This claim is not procedurally defaulted.
4.

Sub-claim 10

Claim 10, as listed above, asserts the trial court erred by overruling defense objections to
prosecutorial misconduct. Respondent argues that this claim is partially procedurally defaulted.
(Doc. No. 17 at 117.) But the Court need not decide that issue because, as will be explained below,
it finds no merit to the underlying claims of prosecutorial misconduct and therefore no error in the
trial court’s rulings on the conduct at issue.
B.

Merits Analysis

Regardless of any procedural default, each of these claims either is not cognizable on
habeas review or lacks merit.
As a general rule, to the extent that Hale’s claims allege violations of Ohio evidentiary law,
they are not cognizable on federal habeas review. See, e.g., Moreland v. Bradshaw, 699 F.3d 908,
923 (6th Cir. 2012) (“alleged errors in evidentiary rulings by state courts are not cognizable in
federal habeas review”). “[A] state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”
Bradshaw, 546 U.S. at 76 (citing Estelle, 502 U.S. at 67–68). In particular, federal habeas courts
presume that state courts correctly interpret state law in their evidentiary rulings. Small v. Brigano,
134 F. App’x 931, 936–37 (6th Cir. 2005). Their review of state-court evidentiary rulings,
therefore, “is limited to whether [a petitioner] can demonstrate a violation of his federal

61

constitutional rights.” Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007) (citing Bell v. Arn,
536 F.2d 123, 125 (6th Cir. 1976)).
State-court evidentiary rulings may “rise to the level of due process violations [if] they
‘offend[] some principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.’” Seymour, 224 F.3d at 552 (quoting Egelhoff, 518 U.S. at 43). But they
must be “so egregious that [they] result in a denial of fundamental fairness.” Bugh, 329 F.3d at
512. Courts, therefore, “‘have defined the category of infractions that violate ‘fundamental
fairness’ very narrowly.’” Id. (quoting Wright, 999 F.2d at 178) (further citation omitted)).
The Court will address in turn each ground for relief.
1.

Inspection of witness statements (Ground Four)

Hale claims in his fourth ground for relief that the trial court violated his Fourteenth
Amendment due process rights and Sixth Amendment right to confront witnesses by not allowing
him to examine the prior statements of State witnesses as was then required under Ohio law. (Doc.
No. 13 at 123–28.) After finding this claim waived because defense counsel did not object to the
alleged errors, the Ohio Supreme Court, the last state court to review the merits of this claim, 14
conducted a review for plain error, reasoning:
{¶ 94} Crim.R. 16(B)(1)(g) provides for the in camera inspection of a witness’s
written or recorded out-of-court statement to determine whether the statement is
inconsistent with the witness’s testimony (in which case it may be used in crossexamining the witness). Under the rule, counsel for both parties “must be given the
opportunity to: (1) inspect the statement personally; and (2) call to the court’s
attention any perceived inconsistencies between the testimony of the witness and
the prior statement.” State v. Daniels (1982), 1 Ohio St.3d 69, 1 OBR 109, 437
14

As explained above, Hale later presented this claim on post-conviction review in state court, with supporting
evidence dehors the record. But the last post-conviction court to review it, the court of appeals, found the claim barred
by res judicata because it had already been litigated by the Ohio Supreme Court on direct appeal and Hale’s evidence
did not overcome the res judicata bar. And, where a later state-court decision rests upon a prohibition against further
state review, habeas courts “look through” that later decision to the prior reasoned state-court judgment. Ylst, 501 U.S.
at 805.

62

N.E.2d 1186, syllabus. In his first proposition of law, Hale contends that his trial
counsel were not allowed to participate in the trial court’s in camera review of
several witnesses’ prior statements.
{¶ 95} Hale’s strongest claim involves a police report written by Sergeant Baird.
At a pretrial suppression hearing, the trial court reviewed Baird’s report, but Hale’s
counsel were not allowed to participate in that review.
{¶ 96} However, the defense failed to preserve this issue. “[O]nce the trial court
concluded that there were no inconsistencies between the statements and trial
testimony * * *, defense counsel did not ask to review the statements or object to
the procedure employed by the court * * *. Defense counsel merely accepted the
trial court’s decision that there were no inconsistencies * * *.” State v.
Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 48. Thus,
Hale “has waived all but plain error in regard to this issue.” Id.
{¶ 97} There was no plain error here, because Hale “has failed to identify any
inconsistencies that would warrant reversal.” Id. at ¶ 49. The “inconsistencies”
mentioned by Hale are actually details of the interrogation to which Baird testified
but did not mention in his report. However, “[t]he fact that details may be lacking
in a pretrial statement does not mean that inconsistencies exist for purposes of Crim.
R. 16(B)(1)(g).” Id.
{¶ 98} Hale also claims that his counsel were not allowed to participate in the
inspection of statements by James Hull, Hale’s sister Lashayla, and Jude Nilsson, a
carpenter at the Lake Ohio Lodge in 2004, but these claims are far less substantial.
First, the record does not show that defense counsel were prevented from
participating in the in camera inspection of statements by these three witnesses, and
we decline to speculate on the matter. Thus, with regard to those statements, the
factual premise for Hale’s claims simply does not exist.
{¶ 99} Second, any issue was waived at trial, for the defense neither objected to the
inspection procedure nor asked to review the statements. Id. at ¶ 48. And there was
no plain error. As to Hull’s statements, the claimed “inconsistencies” are again
merely details that Hull mentioned in his testimony but that do not appear in his
pretrial statements. Id. at ¶ 49. As for Lashayla Hale and Jude Nilsson, Hale fails
to identify any purported inconsistencies between these witnesses’ statements and
their testimony. Hale’s first proposition of law is overruled.
Hale, 892 N.E.2d at 889–91.
AEDPA deference may not apply to the state court’s plain-error analysis of this claim, as
the court did not “conduct[] any reasoned elaboration of [the] issue under federal law.” Stewart,
63

867 F.3d at 638 (quotation marks and citation omitted). But even under the more lenient de novo
standard of review, the claim fails.
To the extent that Hale asserts that the trial court did not comply with Ohio Criminal
Procedural Rule 16(B)(1)(g), as discussed above, this claim is not cognizable on federal habeas
review. The Sixth Amendment does not provide Hale relief, either. The Sixth Amendment’s
Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. CONST. amend VI. It “guarantees an
opportunity for effective cross-examination . . . .” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.
Ct. 292, 88 L. Ed. 2d 15 (1985) (emphasis in original). It does not, however, guarantee “crossexamination that is effective in whatever way, and to whatever extent, the defense might wish.”
Id. Hale does not allege that the trial court denied defense counsel the opportunity to cross-examine
the State’s witnesses, including about prior statements they may have made. Indeed, as the state
court found, the record does not show that defense counsel even asked to examine the statements
at issue. Hale’s confrontation rights, therefore, were not violated in this case.
Nor was there any due process violation based on the trial court’s handling of the State
witnesses’ statements, as Hale contends. Hale alleges the trial court failed to permit defense
counsel to review three prior inconsistent statements of State witnesses but has not demonstrated
that the alleged inconsistencies, to the extent that they even existed, were so material that defense
counsel’s inability to cross-examine the witnesses about them rendered his trial fundamentally
unfair.
First, Hale notes that James Hull, a friend of Hale’s, testified that he helped Hale move his
belongings out of the Lake Erie Lodge, the site of the murder, on June 23, 2004, two days after the
murder occurred; but Hull’s statement to police shows that the detective informed Hull that the
64

day he helped Hale move was June 23. (Doc. No. 31 at 143.) Consistent with his statement,
however, Hull testified that he did not recall “what day exactly” he first socialized with Hale the
week he helped Hale move, but after the prosecutor explained the various dates involved, such as
the checkout date from the lodge, he agreed that he helped with the move on June 23. (Doc. No.
8-4 (Trial Tr.) at 317–18 (Hull Test.); Doc. No. 7-10 at 32–33 (Hull Statement).) Defense counsel
also cross-examined Hull about his inability to recall the exact dates of the events at issue. (Doc.
No. 8-4 (Trial Tr.) at 383, 387–88.) Hull’s testimony regarding the date he assisted Hale move,
therefore, was not inconsistent with his statement.
Second, Hale notes that Hull testified that after moving Hale’s things from the lodge, they
purchased beer and cigarettes, went to Hull’s sister’s house and took her children swimming, and
then parted ways; but Hull told the police that after having drinks at a bar called Christine’s and
helping Hale move, he did not see Hale again. (Doc. No. 31 at 143-44 (citing Doc. No. 8-4 (Trial
Tr.) at 371–77; Doc. No. 7-10 at 32–33 (Hull Statement)).) Hale argues that Hull’s differing
account at trial of the day’s activities, which omitted any mention of a stop at the bar Christine’s
and added details such as a beer-and-cigarettes purchase and a swim with children, “made Hale
seem particularly cold and callous.” (Id. at 144.) The state court reasonably concluded that this
inconsistency is not material. Hull mentioned in his statement that, as he testified, he and Hale
visited Hale’s sister’s house the day in question, and after that day he did not see Hale again. (Doc.
No. 8-4 (Trial Tr.) at 373 (Hull Test.); Doc. No. 7-10 at 32–33 (Hull Statement).) In addition, Hale
does not explain how cross-examining Hull about these inconsistencies would have bolstered his
defense, including by making him appear less “cold and callous.” Hull simply may have recalled
the day more clearly since being interviewed by police and drawing attention to Hale’s activities
that day through cross-examining Hull could have done Hale more harm than good.
65

Moreover, even if this inconsistency were material, the prosecutor informed defense
counsel that Hull’s testimony about the events of the day was inconsistent with his statement to
police, and defense counsel could have cross-examined Hull or requested to see Hull’s statement
but did not. Before Hull testified, the prosecution informed the court and defense counsel in a sidebar that there was a “contradiction [in] how [Hull] describe[d] the events surrounding his
involvement with Mr. Hale” the week of the murder between his statement and his expected
testimony. (Doc. No. 8-4 (Trial Tr.) at 270–71.) He requested that Hull be considered a court’s
witness so that both parties could cross-examine him, because his testimony might have
incriminated him as an accessory to a charge of tampering with evidence, which the judge denied
after appointing counsel for Hull. (See id. at 269–73.) Then, after Hull testified about his activities
with Hale on June 23, prosecutor Thomas asked Hull if he had given a statement to police. (Id. at
380.) Hull said he had, and the prosecutor requested an in camera meeting with the judge and
defense attorney Magee to discuss Hull’s statement. (Id.) The full record of that discussion states:
THE COURT: Well, it wasn’t covered in the testimony, but to contradict with that.
MR. THOMAS: If you want me to I’ll agree to let counsel ask that question.
THE COURT: I’ll just note a portion of the statement that seemed to be in question
and answer format and there is a long – longer narrative portion that does appear
more in the form of a pure statement.
MR. MAGEE: Judge, we would just inquire as to when the statement was recorded.
THE COURT: Appears from the notation on the bottom, May 25, 2005.
MR. MAGEE: Okay.
THE COURT: It doesn’t indicate the time of day.
MR. THOMAS: Still proffer for the record.

66

THE COURT: All right. So I don’t find anything inconsistent based on what he
testified to. Again, it doesn’t cover everything that he’s testified to.
MR. THOMAS: Well, just so we have a complete record, the point that you’re
noting is on page 2 at the end of the narrative at the upper half of the page, and I
believe what you are referring to is I didn’t see him any more after that until I went
to the bar, Christine’s, and he had killed a guy. Is that what you’re focusing on?
Does counsel deem that to be a material omission, do you wish to cross-examine?
MR. MAGEE: No.
THE COURT: We’ll mark it for proffer.
(Doc. No. 8-4 (Trial Tr.) at 381–82.) The record shows, therefore, that the State informed defense
counsel of Hull’s prior inconsistent statement about the events of June 23, and counsel neither
requested to review the statement nor objected to their inability to see it. Moreover, they had every
opportunity to cross-examine Hull about the contradiction at issue.
Third, Hale asserts that the trial court improperly precluded defense counsel from
inspecting the report of Detective Baird after Baird testified at a suppression hearing, which would
have shown that he did not tell Hale as he testified that Green was bisexual and that if Green had
propositioned Hale his actions would have been understandable. (Doc. No. 31 at 144 (citing Doc.
No. 8-1 (Trial Tr.) at 351; Doc. No. 7-10 at 5–9 (Baird Rpt.)).) Hale claims that this inconsistency
was significant because “it undermined the notion that Hale made up the sexual assault as a result
of the information from Baird.” (Id.) But this argument is speculative. The fact that Baird did not
write in his report that he made this statement to Hale during the interrogation does not mean that
he did not say it as he testified. Furthermore, defense counsel had the opportunity to cross-examine
Baird on any facet of his testimony.
Accordingly, Hale has not shown that the trial court’s decision that defense counsel was
not entitled to inspect the statements of Hull and Detective Baird for prior inconsistent statements
67

did not violate Hull’s confrontation rights or render Hale’s trial so fundamentally unfair as to
violate his due process rights.
2.

Expert testimony of Curtiss Jones and Detective Michael Grida (Ground
Eight)

For his eighth ground for relief, Hale claims the trial court erred by permitting Curtiss
Jones, the State’s crime-scene expert, to testify about blood spatter, and Detective Michael Grida
to testify about Hale’s bank records, when they were not qualified to render opinions on those
matters. (Doc. No. 13 at 143–48.) Hale raised this claim on direct appeal to the Ohio Supreme
Court, which reasoned:
{¶ 50} In his tenth proposition of law, and in section (E) of his eighth proposition
of law, Hale contends that the trial court erred by allowing prosecution witnesses
Curtiss Jones and Michael Grida to give expert testimony.
{¶ 51} Curtiss Jones was the supervisor of the trace-evidence department of the
Cuyahoga County coroner’s office. He testified regarding blood spatter found in
Hale's motel room. Hale argues that Jones had insufficient practical experience to
qualify as an expert on blood-spatter evidence.
{¶ 52} Hale did not object at trial to the court’s recognizing Jones as an expert.
Hence, he has waived this issue unless he can demonstrate plain error.
***
{¶ 54} No plain error occurred here. Evid.R. 702(B) provides that a witness may
qualify as an expert by reason of his or her specialized knowledge, skill, experience,
training, or education. Neither special education nor certification is necessary to
confer expert status on a witness. The witness offered as an expert need not have a
complete knowledge of the field in question, as long as the knowledge he or she
has will aid the trier of fact. State v. Baston (1999), 85 Ohio St.3d 418, 423, 709
N.E.2d 128.
{¶ 55} Jones testified that he has a master’s degree in forensic science.
Additionally, he underwent 48 hours of instruction in the field of blood-spatter
analysis, had passed two proficiency tests in that field, and had testified three or
four times previously on blood-spatter evidence. Jones testified that he deals with
blood-spatter evidence “every day in terms of looking at evidence.” Examining
items “for the presence of biological fluid such as blood” is “one of the main things”
68

he does, and when he does so, he applies his knowledge of blood-spatter analysis.
In light of Jones’s training and experience, the trial court did not commit any
obvious error in permitting him to testify as an expert on blood spatter. Cf. State v.
Wogenstahl (1996), 75 Ohio St.3d 344, 362, 662 N.E.2d 311. Hence, no plain error
exists, and this issue is waived.
{¶ 56} Hale also questions the reliability of blood-spatter analysis in general.
However, we have recognized that blood-spatter analysis is a proper subject for
expert testimony. State v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891.
{¶ 57} Michael Grida was a Euclid police detective. Using Hale’s bank statements
and ATM receipts, Grida testified that Hale had carried a negative bank balance in
June 2004, the month of the murder. He also reconciled Hale’s bank statement with
an ATM receipt showing a negative balance of $1,099.84 in Hale’s account.
{¶ 58} Hale objected to some of Grida’s testimony, but not on the ground that Grida
lacked expert qualifications. Hence, this issue is waived absent plain error. No plain
error occurred here. Hale’s financial situation gave him a motive for robbery, but
the aggravated robbery itself was firmly established by other evidence. In his
statement to the Euclid police, Hale admitted stealing Green’s SUV and credit card.
Hale’s friend James Hull saw Hale in possession of Green’s SUV after the murder,
and police found Hale inside Green’s SUV when they arrested him. Green’s bank
records confirmed that Green’s Visa card was used on June 22. Giant Eagle records
provided additional evidence that Hale had used the Visa card at the Giant Eagle
store.
{¶ 59} Hale’s tenth proposition of law and section (E) of his eighth proposition of
law are overruled.
Hale, 892 N.E.2d at 883–84.
As Respondent argues, this claim is not cognizable on federal habeas review. Hale argues
that the trial court’s admission of Jones’ testimony about blood-spatter evidence and Grida’s
testimony about financial records violated his due process rights. (Doc. No. 31 at 188.) But the
only federal law Hale cites is Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and Kumho v. Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167,
143 L. Ed. 2d 238 (1999). (Doc. No. 31 at 188, 190–92.) These cases concern the admissibility of
expert testimony based on scientific, technical, and other specialized knowledge under the Federal
69

Rules of Evidence and are not relevant to a state prisoner’s conviction. Norris v. Schotten, 146
F.3d 314, 335 (6th Cir. 1998).
Moreover, Hale offers only conclusory assertions that the two witnesses were unqualified
to provide the testimony at issue to support his claim that the trial court erred under Ohio law, and
no basis at all for a finding that the testimony resulted in a fundamentally unfair trial. Id. (denying
habeas petitioner’s claim based on the admission of expert testimony where, “as a state evidentiary
matter, appellant presents no reason for this court to believe Mitchell’s testimony was admitted in
error nor any reason to believe that this testimony denied appellant a fundamentally fair trial”).
This claim, too, is meritless.
3.

Gruesome photographs (Ground Nine)

Hale’s ninth ground for relief asserts that the trial court erred in admitting “cumulative and
gruesome photographs.” (Doc. No. 13 at 149–54.) He also presented this claim on direct appeal to
the Ohio Supreme Court, which adjudicated the claim’s merits, disposing of the claim as follows:
{¶ 72} In his ninth proposition of law, Hale contends that he was prejudiced by the
admission of gruesome and cumulative autopsy and crime-scene photographs. See
generally State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267.
{¶ 73} State’s Exhibits 27 and 28, although they are autopsy photographs, are not
gruesome. Neither are the photographs of Green’s body wrapped in opaque plastic
bags, or those showing the bags after their removal from the body. Likewise, the
crime-scene photographs are not gruesome, even though a few show small
bloodstains on carpets, furniture, or walls. Thus, although some of these photos are
cumulative, Morales does not apply to them.
{¶ 74} Six autopsy photos showing Green’s head wounds can be characterized as
gruesome. However, State’s Exhibits 32, 33, and 34 are not repetitious or
cumulative. Each one shows something the other does not. Exhibit 33 shows
“fouling” around one of the bullet wounds that indicates it was a contact wound.
Exhibit 32 does not show fouling, but does depict the probes that the coroner
inserted into the bullet holes to show the angles of entry. Exhibit 34 also shows the
probes, but from an angle different from that in Exhibit 32.
70

{¶ 75} On the other hand, State’s Exhibit 31 appears to show nothing not shown by
Exhibit 33, and Exhibit 30 appears to be merely a closer view of Exhibit 29.
Nevertheless, we find no prejudice and no reversible error in the admission of two
cumulative photographs. Cf. State v. Jalowiec (2001), 91 Ohio St. 3d 220, 230, 744
N.E.2d 163 (cumulative effect of several repetitive autopsy photographs was
harmless). We therefore overrule Hale’s ninth proposition of law.
Hale, 892 N.E.2d at 886–87.
Hale argues that AEDPA does not apply to this claim because the state court failed to
address the federal constitutional grounds he raised before it. (Doc. No. 31 at 208.) A state court
has adjudicated a claim “on the merits,” however, and AEDPA deference applies, regardless of
whether the state court provided little or no reasoning at all for its decision. Harrington, 562 U.S.
at 99.
The Sixth Circuit repeatedly has held that a trial court’s admission of gruesome
photographs of a murdered victim does not violate the Constitution when there is some legitimate
evidentiary purpose for demonstrating the nature of the injuries. See, e.g., Biros v. Bagley, 422
F.3d 379, 391 (6th Cir. 2005) (“The [state] court found, however, that the photographs were
properly admitted as they demonstrated that Biros beat Engstrom rather severely and meticulously
dissected her body with two different knives.”); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir.
2003) (“The Ohio Supreme Court directly addressed this evidentiary issue, concluding that the
multiple photographs ‘were introduced during the coroner’s testimony to illustrate the testimony,’
that ‘[e]ach photograph presents a different perspective of the victim,’ and that the photographs
‘were used to illustrate’ the nature of the encounter that immediately preceded Skiba’s death.”)
(citation omitted); Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002) (noting Ohio Supreme Court
ruling that although the photographs were gruesome, they were highly probative) (citation
omitted).
71

Similarly, here, the Ohio Supreme Court reasonably concluded that the photographs were
probative demonstrative evidence of the manner of Green’s death, showing the entrance points of
the gunshot wounds he sustained, and were not so gruesome, cumulative, or repetitive that they
unduly prejudiced Hale. Indeed, these photographs were far less inflammatory than those
challenged in Biros, where the Sixth Circuit upheld the admission of photographs depicting a
victim’s severed head, severed breast, and severed body parts placed near the victim’s torso. Biros,
422 F.2d at 391.
The trial court’s admission of these photographs, therefore, was not so egregious that it
deprived Hale of a fundamentally fair trial, nor did the Ohio Supreme Court’s decision contravene
or unreasonably apply Supreme Court precedent.
4.

State’s discovery violations (Ground Ten)

In his tenth ground for relief, Hale first claims the trial court erred in refusing to penalize
the prosecution by excluding oral statements Hale made to police officers when prosecutors did
not disclose the statements to defense counsel prior to trial in the form required under the court’s
discovery orders. (Doc. No. 13 at 155–58.) Hale raised this claim on direct review to the Ohio
Supreme Court, which resolved the claim on its merits, stating:
{¶ 106} In section (A) of his eighth proposition of law, Hale contends that the trial
court should have punished the state’s noncompliance with its discovery orders by
excluding Hale’s oral statements to Sergeants Baird and Pestak.
{¶ 107} Crim.R. 16(B)(1)(a)(ii) provides: “Upon motion of the defendant, the court
shall order the prosecuting attorney to permit the defendant to inspect and copy
* * * [w]ritten summaries of any oral statement * * * made by the defendant or codefendant to * * * any law enforcement officer.” This rule requires that the
prosecution “reduce the [defendant’s] statement to writing, in the form of a
summary, to be provided to the defense during discovery.” State v. Bidinost (1994),
71 Ohio St. 3d 449, 456, 644 N.E.2d 318.

72

{¶ 108} At issue are Hale’s statement to Pestak that he “didn’t kill anybody” and
Hale’s statement to Baird that he had discarded the gun, Green’s clothing and
shoulder bag, and some towels in a dumpster outside the lodge. The state had
informed defense counsel of the statements to Baird during a pretrial, but had failed
to provide written summaries of either statement, as required by Bidinost, within
the deadline set by the trial court.
{¶ 109} The trial court initially ordered that Hale’s oral statement to Baird be
excluded as a discovery sanction. However, the court did not exclude the statement
to Pestak. Later, the trial court found that the defense had opened the door to part
of Hale’s oral statement to Baird—all except the part about the shoulder bag—and
allowed Baird to testify to that portion of the statement.
{¶ 110} The prosecutor asked Sergeant Baird about Hale’s admission that he had
disposed of the gun and Green’s clothing and shoulder bag. On objection, the
prosecutor withdrew this question. The defense did not ask the trial court to strike
the prosecutor’s reference to the shoulder bag or to issue a curative instruction.
{¶ 111} The prosecutor then asked, “[W]hat did the defendant tell you he disposed
of?” Baird replied, “He told me that he had disposed of the clothing, the gun and
the bag, along with some towels.” (Emphasis added.)
{¶ 112} Defense counsel objected and moved for a mistrial. At sidebar, the
prosecutor suggested that Baird had been referring to a garbage bag that Hale had
placed the gun and clothing in before disposing of them. The trial court determined
that its order did not bar references to the garbage bag. Further questioning clarified
that the “bag” mentioned by Baird was indeed a garbage bag.
{¶ 113} Crim.R. 16(E)(3) provides: “If at any time during the course of the
proceedings it is brought to the attention of the court that a party has failed to
comply with this rule or with an order issued pursuant to this rule, the court may
order such party to permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing in evidence the material not disclosed, or it may
make such other order as it deems just under the circumstances.”
{¶ 114} We have held that Crim.R. 16(E)(3) vests the trial court “with a certain
amount of discretion in determining the sanction to be imposed for a party’s
nondisclosure of discoverable material. The court is not bound to exclude such
material at trial although it may do so at its option.” State v. Parson (1983), 6 Ohio
St.3d 442, 445, 6 OBR 485, 453 N.E.2d 689.
{¶ 115} Parson established guidelines for evaluating the trial court’s exercise of
discretion in this area: “Where, in a criminal trial, the prosecution fails to comply
with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made
by a co-defendant to a law enforcement officer, and the record does not demonstrate
73

(1) that the prosecution’s failure to disclose was a willful violation of Crim.R. 16,
(2) that foreknowledge of the statement would have benefited the accused in the
preparation of his defense, or (3) that the accused was prejudiced by admission of
the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3)
by permitting such evidence to be admitted.” Parson, 6 Ohio St.3d 442, 6 OBR
485, 453 N.E.2d 689, syllabus.
{¶ 116} None of the three Parson factors exists in this case. First, nothing in the
record indicates that the state’s failure to provide written summaries of Hale’s oral
statements in question was a willful discovery violation. To the contrary, the trial
court expressly found that the prosecution had engaged in “no intentional
withholding of the information.”
{¶ 117} Second, there is no evidence that foreknowledge of the statements at issue
would have benefited the defense. In fact, the defense had foreknowledge of these
statements. As we have noted, the prosecution had orally informed the defense of
Hale’s statements to Baird before trial. While this conduct did not satisfy the
requirement of a written summary, it clearly did provide the defense with
foreknowledge of the statement.
{¶ 118} As for Hale’s statements to Pestak that he “didn’t kill anybody,” the
defense learned of them no later than May 9, 2005, when Pestak testified about that
statement at the suppression hearing. That hearing occurred 22 days before Pestak
testified at trial concerning those statements. Thus, “[w]hile the defense was
entitled to a written summary of the statement[s], the record does not reflect that a
written summary would have benefited appellant in the preparation of his
defense.” Bidinost, 71 Ohio St.3d at 457, 644 N.E.2d 318.
{¶ 119} Third, the record does not show prejudice. The defense was not surprised
by these statements, because defense counsel had actual foreknowledge of their
content. Nor did the defense request a continuance to prepare to cross-examine
Pestak and Baird. Hence, “the trial court may have properly determined that
appellant was prepared to proceed despite any claim of unfair
‘surprise.’” Bidinost, 71 Ohio St.3d at 457, 644 N.E.2d 318. See also State v.
Wiles (1991), 59 Ohio St. 3d 71, 80, 571 N.E.2d 97, citing State v. Edwards (1976),
49 Ohio St. 2d 31, 42–43, 3 O.O.3d 18, 358 N.E.2d 1051.
{¶ 120} Finally, no due process issue exists here. “There is no general constitutional
right to discovery in a criminal case * * *.” Weatherford v. Bursey (1977), 429 U.S.
545, 559, 97 S. Ct. 837, 51 L.Ed.2d 30. See also Gray v. Netherland (1996), 518
U.S. 152, 168, 116 S. Ct. 2074, 135 L.Ed.2d 457. In particular, a criminal defendant
has no due process right to inspect his own confession. See Leland v.
Oregon (1952), 343 U.S. 790, 801–802, 72 S. Ct. 1002, 96 L. Ed. 1302; Cicenia v.
La Gay (1958), 357 U.S. 504, 510–511, 78 S. Ct. 1297, 2 L.Ed.2d 1523, overruled
in part on other grounds, Escobedo v. Illinois (1964), 378 U.S. 478, 492, 84 S .Ct.
74

1758, 12 L. Ed. 2d 977, fn. 15. We overrule section (A) of Hale’s eighth proposition
of law.
Hale, 892 N.E.2d at 891–93.
Hale argues that the Ohio Supreme Court’s conclusions that the State’s discovery
violations were not willful and did not prejudice Hale were based on unreasonable determinations
of fact in light of the evidence presented. (Doc. No. 31 at 226.) But he points to no evidence to
show the prosecution’s willfulness or how the defense was prejudiced when the prosecutors
informed defense counsel of the statements at issue well before trial. (See id. at 212–14.) Hale also
has not, and cannot, refute the state court’s observation that the Supreme Court has clearly
established that criminal defendants have no due process right to discovery or to inspect the
defendant’s own confession. This claim, too, fails.
5.

Testimony from Robert Stewart (Ground Ten)

Hale next contends in his tenth ground for relief that the trial court erred when it admitted
the testimony of Robert Stewart, a maintenance worker at the Lake Erie Lodge, about his reaction
to finding Green’s body. (Doc. No. 13 at 158–59.) He raised this claim on direct appeal to the Ohio
Supreme Court, which addressed the claim’s merits, concluding:
{¶ 60} In section (B) of his eighth proposition of law, Hale contends that Robert
Stewart gave inflammatory, irrelevant testimony. Stewart, a maintenance worker at
the lodge, had seen Green’s body in Room 231. The prosecutor asked him how that
affected his emotions. Over a defense objection, the trial court permitted Stewart to
answer. Stewart testified that seeing the body “shook [him] up pretty good” and
that he “didn’t work much the rest of the day.”
{¶ 61} Because Stewart’s emotional reaction to seeing the victim’s body was
irrelevant, the trial court erred by overruling Hale’s objection. However, Stewart
was a minor witness, and his testimony that seeing the body upset him was not
inflammatory. The trial court’s error was harmless.
Hale, 892 N.E.2d at 885.
75

Hale asserts that the state court’s decision was contrary to clearly established federal law.
(Doc. No. 31 at 227.) But he fails to cite any on-point Supreme Court precedent. (See id. at 226–
27.) Further, the state court reasonably concluded that the testimony was of little value and its
admission harmless; it certainly did not render Hale’s trial fundamentally unfair. This claim is
meritless.
6.

Victim-impact testimony (Ground Ten)

For his next sub-claim under Ground Ten, Hale argues that the trial court erred by
permitting the State to elicit improper “victim-impact testimony” from two friends of Green,
Ricardo Cuffari and Vivian Wilson Jr. (Doc. No. 13 at 159–64.) Hale raised this claim on direct
review to the Ohio Supreme Court, which reasoned:
{¶ 62} In section (C) of his eighth proposition of law, Hale contends that the
testimony of Ricardo Cuffari and Vivian Wilson Jr. amounted to improper “victimimpact evidence.” In response to Hale’s self-defense claim, the state called Cuffari
and Wilson, two friends of Green’s, to testify that Green had a peaceful character.
Hale claims that their testimony went beyond Green’s character for peacefulness.
{¶ 63} First, Hale complains that Cuffari testified about Green’s “business
practices.” Cuffari testified that it was not Green’s “normal practice” to “audition”
a potential student before agreeing to teach him. This testimony was relevant
because it contradicted Hale’s account of why Green was in Hale’s hotel room.
{¶ 64} Hale also complains that Cuffari testified about Green’s work in the music
industry. Cuffari, who owned a recording and voice-coaching studio, testified that
he had met Green after hearing him sing professionally; Green later became a
coproducer at Cuffari’s studio. Their relationship was originally a professional one,
but they quickly became friends. This testimony was relevant to establish Cuffari’s
relationship with Green, and thus his knowledge of Green’s character. “[T]o
introduce opinion evidence the offering party must qualify the character witness by
laying a foundation showing that the witness is sufficiently acquainted with the
accused or victim to have formed an opinion about that person’s character.” 1
Gianelli & Snyder, Evidence (2d Ed.2001) 253, Section 405.4.
{¶ 65} Finally, Hale argues that Cuffari’s testimony that he and Green had prayed
together should have been excluded. The prosecutor asked Cuffari, “[L]eading up
to the point in time when Doug died, how would you describe the level of friendship
76

between the two of you?” Cuffari replied: “Doug was probably one of my best
friends at that time. * * * We called each other a lot on the phone. If there was
problems on his side or my side, I would call for prayers and vice versa. When my
mom was passing away he came to the hospital and prayed over my mom. He also
sang in her funeral so you could see how direct it was. And he was a very, very
close and dear friend.”
{¶ 66} Cuffari briefly mentioned prayers as part of his response to the prosecutor’s
question about the “level of friendship” between Cuffari and Green. In this context,
Cuffari was simply elaborating on Green’s status as “one of [his] best friends,” thus
laying a foundation to establish his knowledge of Green’s character.
{¶ 67} Hale complains that Vivian Wilson testified that Green did not smoke or
drink beer. Wilson’s testimony was relevant to the aggravated-robbery charge,
because Green’s Visa card was used at the Giant Eagle store to buy beer and
cigarettes.
{¶ 68} Wilson also testified that the last time he saw Green, Green had greeted him
by saying, “[G]ive me some love * * *.” On that occasion, Wilson had asked Green
to sing “Happy Birthday” for Wilson’s son the next day. This testimony illustrated
the close relationship between Green and Wilson and was thus relevant to Wilson’s
knowledge of Green’s character. We reject section (C) of Hale’s eighth proposition
of law.
Hale, 892 N.E.2d at 885–86.
Hale argues that the state court’s conclusion here—that the testimony at issue was
admissible as laying a foundation to establish the witnesses’ knowledge of Green’s character—
was an unreasonable application of the Supreme Court’s holding in Payne v. Tennessee, 501 U.S.
808, 111 S. Ct. 808, 115 L. Ed. 2d 720 (1991). (Doc. No. 31 at 227.) In Payne, the Supreme Court
removed any per se constitutional bar to a prosecutor’s use of evidence and argument relating to
the victim and the impact of the victim’s death on the victim’s family. Payne, 501 U.S. at 827.
And if such “victim-impact evidence” is introduced, the Court explained, and it “is so unduly
prejudicial that it renders the trial fundamentally unfair, the Fourteenth Amendment’s Due Process
Clause provides a mechanism for relief.” Id. at 809. Therefore, “excessive or prejudicial references
to victim-impact evidence might ‘so infect[] the trial with unfairness as to make the resulting
77

conviction a denial of due process.’” Beuke v. Houk, 537 F.3d 618, 648 n.9 (6th Cir. 2008)
(citations omitted); see also Byrd v. Collins, 209 F.3d 486, 532 (6th Cir. 2000) (applying Payne’s
rationale to victim-impact evidence introduced during the guilt phase of trial).
Hale argues that Cuffari and Wilson’s testimony about Green’s personal traits—such as his
musical talent and business, strong family relationships, abstention from drinking beer and
smoking, religious practices, and wife’s frail health—was victim-impact evidence that was “highly
prejudicial and had no relevance to the charges at issue.” (Doc. No. 31 at 227.) Hale also challenges
the prosecution’s references to this testimony made during closing argument in the guilt phase of
trial. (Doc. No. 13 at 163–64.)
To the extent Hale challenges the Ohio Supreme Court’s determination that this testimony
was relevant, primarily because it laid a foundation to establish Green’s character for peacefulness
in rebutting Hale’s self-defense argument, that is a matter of state evidentiary law to which this
Court must defer. See, e.g., Bradshaw, 546 U.S. at 76 (2005) (“a state court’s interpretation of state
law, including one announced on direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus”). And even if the testimony at issue were properly characterized as victimimpact evidence, it was not so extensive or inflammatory as to rise to a due process violation under
Payne. See, e.g., Beuke, 537 F.3d at 648 (finding testimony about a victim’s children was not
constitutionally improper, as it was “minimal and largely insignificant” at less than one-half page
of transcript testimony and “not inflammatory”).

78

The Ohio Supreme Court’s decision, therefore, neither contravened nor misapplied Payne
or other Supreme Court precedent. 15
7.

Photo of the victim (Ground Ten)

Hale next claims in ground ten that the trial court should not have admitted into evidence
a photograph of Green because it was irrelevant and misleading victim-impact evidence. (Doc. No.
13 at 164–65.) The Ohio Supreme Court, in rejecting this claim on direct review, stated:
{¶ 69} In section (D) of his eighth proposition of law, Hale contends that State’s
Exhibit 151, a photograph of Green, was irrelevant and misleading. The photograph
was taken from the cover of a compact disc containing songs by Green. In the photo,
Green wears rings on both hands. The state introduced the photo to show that Green
owned and wore jewelry, thus suggesting robbery as Hale’s motive to kill him.
{¶ 70} Hale argues that the photo is misleading because it does not specifically
show Green’s appearance “at the time he met Hale at his motel room.” We find this
contention specious. Evid.R. 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” This test is a broad one, and the photo clearly satisfies it. See 1
McCormick, Evidence (2006) 733–735, Section 185.
{¶ 71} Moreover, the photo created no danger of unfair prejudice; hence, no cogent
argument exists to exclude the photo under Evid.R. 403(A). Hale offers no
explanation to support his assertion that the photo “amounted to victim impact”
evidence. Cf. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166,
¶ 57 (predeath photo of victim admissible). We reject section (D) of Hale’s eighth
proposition of law.
Hale, 892 N.E.2d at 886.
Hale argues that the Ohio Supreme Court misapplied Payne in concluding that this
photograph was not victim-impact evidence and was not unfairly prejudicial. (Doc. No. 31 at 228.)

15

Hale also contends the state court’s decision was based on an unreasonable determination of fact in light of the
evidence presented. (Doc. No. 31 at 227.) But he does not specify any clearly erroneous factual finding of the state
court, and that argument also fails.

79

But, again, the state court’s ruling regarding the photo’s relevancy under Ohio evidentiary rules
binds this Court, and Hale presents no persuasive argument that it was “so unduly prejudicial that
it render[ed] the trial fundamentally unfair” under Payne. Payne, 501 U.S. at 825. He asserts only
that the photo “represented [Green] at a different time.” (Doc. No. 31 at 228.) This is insufficiently
egregious to support a due process violation. This claim is meritless.
8.

State’s blood-spatter expert (Ground Ten)

For this sub-claim, Hale repeats his assertion of sub-claim 2 that the trial court improperly
permitted State witness Curtiss Jones, who supervised the trace-evidence department of the
Cuyahoga County coroner’s office, to testify about blood-spatter evidence. (Doc. No. 13 at 165–
67.) The Court rejects this claim for the same reasons as those provided above.
9.

Testimony of defense witness Johnny Smith (Ground Ten)

Hale also claims in his tenth ground for relief that the trial court erred by excluding certain
testimony of defense witness Johnny Smith concerning a sexual assault Green allegedly committed
in 1998. (Doc. No. 13 at 167–69.) Hale presented this claim on direct appeal to the Ohio Supreme
Court, which reviewed the merits, deciding:
{¶ 35} In section (F) of his eighth proposition of law, Hale argues that the trial court
erred by partly excluding defense testimony about a sexual assault Green allegedly
committed in 1998.
{¶ 36} At trial, the defense claimed that Hale’s killing of Green constituted lawful
self-defense because Green had attempted to rape Hale. The state responded to this
claim by calling witnesses to testify about Green’s peaceful character. See Evid.R.
404(A)(2) (victim’s peaceful character admissible to rebut evidence that victim was
first aggressor). In response, the defense adduced the testimony of Johnny A. Smith
that in 1998, Green had performed oral sex on him, forcibly and against his will.
{¶ 37} The state objected to Smith’s testimony. Citing State v. Barnes (2002), 94
Ohio St.3d 21, 759 N.E.2d 1240, the state argued that the 1998 sexual assault could
not be used to prove Hale’s claim of self-defense. The defense argued
that Barnes was inapplicable because the 1998 assault was being introduced only
80

to rebut the state’s evidence of Green’s peaceful character, not to prove Hale’s selfdefense claim.
{¶ 38} The trial court agreed with the state that Barnes barred evidence about the
1998 sexual assault. Nevertheless, the trial court permitted Smith to testify that the
assault had taken place, because Sergeant Baird had already mentioned the 1998
sexual-assault accusation in his testimony about Hale’s interrogation. However, the
trial court limited Smith’s testimony to information the jury had already heard:
that Green had sexually assaulted Smith in 1998 . . . and that the assault had
involved oral sex.
{¶ 39} On direct examination, the defense asked Smith whether Green had been
“restraining” him during the assault. The state’s objection to this question was
sustained. Hale claims that the jury should have been allowed to hear Smith’s
answer.
{¶ 40} The parties’ arguments address the applicability of our holding in State v.
Barnes: “A defendant asserting self-defense cannot introduce evidence of specific
instances of a victim’s conduct to prove that the victim was the initial
aggressor.” Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240, syllabus (applying Evid.R.
405(B)). As he did at trial, Hale argues that Barnes is inapplicable, because Smith’s
testimony was not offered to prove that Green was the initial aggressor, but rather
“to rebut the good character evidence the State had presented.”
{¶ 41} In our view, it does not matter whether the proffered testimony was offered
to rebut the state’s character evidence, as Hale suggests, or to prove that Green was
the aggressor, as the state argues. Under Evid.R. 405, the testimony was
inadmissible for either purpose.
{¶ 42} Evid.R. 405 governs methods of proving character, including the use of
specific instances of conduct. Evid.R. 405 authorizes use of specific instances in
only two situations: on cross-examination of the other party’s character witnesses,
Evid.R. 405(A), and in cases where “character or a trait of character of a person is
an essential element of a charge, claim, or defense.” Evid.R. 405(B).
{¶ 43} Under our holding in Barnes, Smith’s testimony could not be used in direct
support of Hale’s self-defense claim, i.e., to prove that Green was the aggressor on
June 21, 2004, because Evid.R. 405(B) authorizes specific instances of a person’s
conduct only when the person’s character “is an essential element of a charge,
claim, or defense” and the victim’s character is not an essential element of a selfdefense claim.
{¶ 44} If we accept Hale’s claim that he offered Smith’s testimony not to prove that
Green was the aggressor but merely to rebut the state’s evidence of Green’s
character, then Evid.R. 405(A) would apply, and Barnes would be inapplicable.
81

But Evid.R. 405(A) does not authorize Smith’s testimony either. Nothing in Evid.R.
405(A) allows a party to use extrinsic evidence of specific instances of a person’s
conduct to rebut the other party’s evidence regarding that person’s character.
Accord United States v. Benedetto (C.A.2, 1978), 571 F.2d 1246, 1249–
1251; United States v. Pantone (C.A.3, 1979), 609 F.2d 675, 680; State v.
Bourgeois (Me.1994), 639 A.2d 634, 636–637; People v. Champion (1981), 411
Mich. 468, 471, 307 N.W.2d 681; Spadafina v. State (Tenn.Crim.App. 2000), 77
S.W.3d 198, 212; Daggett v. State (Tex.Crim.App. 2005), 187 S.W.3d 444, 454,
fn. 24.
{¶ 45} Hale also argues that, pursuant to Evid.R. 404(B), the proffered testimony
was admissible as “other acts” evidence for non character purposes. He argues that
the testimony would have provided evidence of Green’s intent to sexually assault
Hale and of Green’s modus operandi in committing such assaults. But Hale did not
offer Smith’s testimony for those purposes at trial. He offered it only on the issue
of Green’s character. Hence, he waived any argument for admissibility based on
Evid.R. 404(B). See Pantone, 609 F.2d at 682.
{¶ 46} Finally, Hale claims that the exclusion of Smith’s testimony denied him due
process. We disagree. Due process requires only “that criminal defendants be
afforded a meaningful opportunity to present a complete defense.” California v.
Trombetta (1984), 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413.
Nevertheless, “[t]he accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Taylor v. Illinois (1988), 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d
798.
{¶ 47} In United States v. Bautista (C.A.10, 1998), 145 F.3d 1140, the court
rejected a due process claim on nearly identical facts. Bautista, charged with
murder, claimed to have killed the victim “in the heat of passion upon adequate
provocation.” The claimed provocation was that the victim had made a homosexual
advance at Bautista. The defense proffered the testimony of a witness who claimed
that the victim had once made such an advance at him. The trial court excluded this
testimony, and the defendant was convicted. Id. at 1145, 1151.
{¶ 48} The court of appeals affirmed, noting that “the right to present defense
witnesses is not absolute. A defendant must abide [by] the rules of evidence and
procedure.”
{¶ 49} Like Bautista, Hale was able to present his self-defense claim to the jury by
relying on his confession. Indeed, the trial court gave Hale greater leeway than
Bautista received. Smith was permitted to testify about the alleged sexual assault
by Green, notwithstanding Evid.R. 405. He was prevented only from stating that
Green had restrained him. The trial court’s (partial) enforcement of Evid.R. 405 did
not deny Hale a “meaningful opportunity to present a complete defense,” and hence
82

did not violate Hale’s right to due process. Trombetta, 467 U.S. at 485, 104 S.Ct.
2528, 81 L.Ed.2d 413. We overrule section (F) of Hale’s eighth proposition of law.
Hale, 892 N.E.2d at 881–83.
Hale argues that the state court’s decision was contrary to, or an unreasonable application
of, clearly established Supreme Court precedent and was based on an unreasonable determination
of the facts. (Doc. No. 31 at 230.) But, again, he merely restates the arguments he advanced before
the state court—namely, that Smith’s testimony regarding the specifics of Green’s alleged assault
was relevant to rebut the State’s evidence of Green’s character, show Green’s intent to assault
Hale, and “further corroborate[] Hale’s version of events.” (Id. at 229–30.) Hale does not specify
any facts that are clearly erroneous or any clearly established Supreme Court case that the state
court misapplied or contravened. The court’s interpretation of Ohio evidentiary law is binding on
this Court. And, as the Ohio Supreme Court explained, Hale was afforded the due process
protections clearly established by the Supreme Court for defendants in their presentation of a
defense: “‘a meaningful opportunity to present a complete defense’” but not “‘an unfettered right
to offer testimony that is . . . otherwise inadmissible under standard rules of evidence.’” Hale, 892
N.E.2d at 883 (quoting, respectively, California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528,
81 L. Ed. 2d 413 (1984), and Taylor v. Illinois, 484 U.S. 400, 410, 108 S. S. Ct. 646, 98 L. Ed. 2d
798 (1988)). This claim is unfounded.
10.

Allegations of prosecutorial misconduct (Ground Ten)

Hale’s final claim in his tenth ground alleges that the trial court erred by overruling
numerous defense objections to instances of prosecutorial misconduct. (Doc. No. 13 at 169–70.)
As will be explained in relation to Hale’s twenty-first ground for relief, Hale’s underlying claims

83

of prosecutorial misconduct lack merit. It follows that the trial court did not err in failing to sustain
defense counsel’s objections to that conduct.
11.

Preclusion of mitigating evidence (Ground Thirteen)

For his thirteenth ground for relief, Hale asserts that the trial court improperly excluded
relevant mitigating evidence regarding the potential impact of a death sentence on Hale’s family.
(Doc. No. 13 at 226–31.) Hale raised this claim on direct review to the Ohio Supreme Court, which
adjudicated the claim on the merits, deciding:
{¶ 121} In Hale’s 11th proposition of law, he contends that the trial court
improperly excluded relevant mitigating evidence from the penalty phase.
{¶ 122} Hale’s three sisters, Latisha, Lashayla, and Laquatia, testified on his behalf
in the penalty phase. During Lashayla’s testimony, defense counsel asked: “What
would it do to you if your brother was sentenced to death?” The state’s objection
was sustained.
{¶ 123} Hale claims this ruling was erroneous because the impact of the death
penalty on the defendant’s family is a relevant mitigating factor. The constitutional
right of a capital defendant to present mitigating evidence includes any aspect of
his character or record and any of the circumstances of the offense. Lockett v.
Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973.
{¶ 124} However, a trial court may exclude proffered mitigation that is not relevant
to the defendant’s character, his record, or the circumstances of the offense. Id. at
fn. 12. Several jurisdictions have held that testimony by the defendant’s relatives
concerning the impact that the defendant’s execution will have on them is not
relevant to the defendant’s character, his record, or the circumstances of his offense
and therefore may be excluded. See, e.g., People v. Vieira (2005), 35 Cal.4th 264,
295, 106 P.3d 990, 25 Cal.Rptr.3d 337; People v. Armstrong (1998), 183 Ill.2d 130,
154–155, 233 Ill.Dec. 252, 700 N.E.2d 960; Ross v. State (Miss. 2007), 954 So.2d
968, ¶ 15; Fuller v. State (Tex.Crim.App. 1992), 827 S.W.2d 919, 936; State v.
Stenson (1997), 132 Wash.2d 668, 750–754, 940 P.2d 1239. Contra State v.
Stevens (1994), 319 Or. 573, 584, 879 P.2d 162 (effect of execution on defendant’s
family is relevant to his character because it shows his capacity to be of emotional
value to others).
{¶ 125} Even were we to conclude that the evidence should have been admitted,
we would find in this case that any error was harmless. The trial court’s ruling was
narrow. Although Lashayla was precluded from testifying as to how Hale’s
84

execution would affect her, she was permitted to testify that she loved him.
Similarly, Latisha and Laquatia testified that they loved Hale and wanted to
maintain a relationship with him. In addition, all three sisters were permitted to
expound on Hale’s good qualities. Thus, while staying within the bounds of the trial
court’s ruling, Hale’s sisters were fully able to convey that they loved and valued
their brother and to present aspects of his character that militated in favor of sparing
his life. See Vieira, 35 Cal.4th at 295, 106 P.3d 990, 25 Cal.Rptr.3d 337; State v.
Loftin (1996), 146 N.J. 295, 369, 680 A.2d 677 (any error would have been
harmless; defendant presented character evidence that directly focused on his
relationship with wife and child). We overrule Hale’s 11th proposition of law.
Hale, 892 N.E.2d at 893.
Hale asserts that the Ohio Supreme Court’s decision was contrary to authority of
“numerous federal courts including the U.S. Supreme Court, [that] evidence [of the effect of a
death sentence on his family] may have caused the jury to impose a less severe penalty and was
therefore relevant to mitigation.” (Doc. No. 31 at 330–31.) But the only Supreme Court decision
he cites in support of that specific proposition is Pinholster, 563 U.S. at 191, which he explains
“notes the ‘family sympathy’ mitigation defense.” (Doc. No. 31 at 331.) Clearly established law
for purposes of § 2254(d)(1), however, includes “only the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.” White, 572 U.S. at 419 (internal quotation marks and citations
omitted). And must “squarely address[]” or “clearly establishe[]” a legal rule developed in a
different context applied to the facts of that case. Wright, 552 U.S. at 125. As Hale concedes, the
Court in Pinholster did not squarely address whether the constitution guarantees defendants the
right to present “family sympathy” mitigation defense but merely noted in the context of discussing
the constitutional effectiveness of the defense counsel’s trial strategy that this particular “defense
was known to the defense bar in California at the time and had been used by other attorneys.”
Pinholster, 563 U.S. at 191.

85

The Ohio Supreme Court correctly identified the controlling Supreme Court precedent on
this issue: Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). There, the Court
held that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest
kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id. at 604 (emphasis in original). The Court
cautioned, however, that “[n]othing in this opinion limits the traditional authority of a court to
exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.” Id. at n.12. The state court’s decision that the testimony of Hale’s
sisters regarding the toll a possible death sentence on their brother would take on them was not
relevant to Hale’s character, his record, or the circumstances of his offense and was properly
excluded, therefore, did not contravene or misapply Lockett. The state court also reasonably
concluded that even if the evidence should have been admitted, any error would have been
harmless, as Hale’s sisters’ testimony as it was established their love for Hale and positive aspects
of his character that weighed against a death sentence.
Hale’s thirteenth ground for relief, therefore, is meritless.
12.

Admission of prejudicial evidence during sentencing phase of trial (Ground
Fourteen)

For his fourteenth ground for relief, Hale challenges the trial court’s admission of certain
evidence in the mitigation phase of trial that he deems prejudicial and irrelevant. (Doc. No. 13 at
232–39.) Hale raised this claim in state court on direct appeal. The Ohio Supreme Court denied it
on plain-error review, concluding:
{¶ 126} In his 12th proposition of law, Hale argues that the trial court allowed
inadmissible evidence in the penalty phase.
86

{¶ 127} Hale’s sister Laquatia testified in the penalty phase. During her crossexamination, the state elicited testimony regarding a threat by Hale to kill his father.
Laquatia testified that she had heard about the threat, but “wasn’t present” when it
was made. The defense objected, but did not state any grounds for the objection,
and the trial court overruled it.
{¶ 128} Hale now advances three grounds for holding the testimony inadmissible.
First, he argues that Laquatia’s testimony was inadmissible hearsay. See State v.
Jalowiec (2001), 91 Ohio St.3d 220, 233, 744 N.E.2d 163 (hearsay rule applies to
the penalty phase). Second, Hale argues that the prosecutor was “testifying,”
although he makes no attempt to explain this assertion. Third, he argues that
Laquatia’s testimony was inadmissible because it went to the issue of future
dangerousness and showed that Hale was a person of bad character.
{¶ 129} However, Hale did not advance any of these grounds at trial. By failing to
“stat[e] the specific ground of objection,” Hale waived his claims. Evid.R.
103(A)(1). Hence, he can prevail now only if he shows that the admission of
Laquatia’s testimony was plain error.
{¶ 130} We find that it was not. Hale’s sister Latisha testified that she was present
at times when Hale argued with his father. On one such occasion, Hale threatened
to kill his father, “but then he told him that he kn[e]w that he wouldn’t die so he’s
not going to kill him. If anything he’ll torture him.” Laquatia’s testimony regarding
the death threat was thus merely cumulative of Latisha’s testimony, whose
admissibility Hale does not challenge.
{¶ 131} Hale also claims that the state improperly elicited evidence about Hale’s
having been paroled. On cross-examination, the prosecutor asked Dr. John Fabian,
the defense psychologist, about the length of the sentence from which Hale had
been released in 2003. Fabian knew that Hale had served 12 years, but did not know
the length of the original sentence. The prosecutor asked: “In fact, doctor, it was an
indeterminate sentence of 12 to 25 years, was it not?” Fabian repeated, “I don't
know.” The prosecutor then asked: “[A]ssuming that that is accurate, * * * would
you agree from your knowledge of the prison system that in order to be red lighted
after the minimum term of an indeterminate sentence, the parole board reviewed
the inmate’s performance while in prison [and] was satisfied that parole was
justified at that point?” Fabian said: “That seems logical to me.” Fabian had not
discussed parole on direct examination.
{¶ 132} Again, the defense made nonspecific objections to the prosecutor’s
questions. Thus, Hale has failed to preserve his claim and must demonstrate that it
was plain error to permit Fabian to answer these questions. Raising the issue of
parole on cross-examination may have been improper, see State v. Cassano, 96
Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 98, but it was not clearly
87

outcome-determinative. We therefore find that no plain error occurred. Moreover,
our independent review of the death sentence will cure the error, as the possibility
of parole will play no part in our analysis. Hale’s 12th proposition of law is
overruled.
Hale, 892 N.E.2d at 893–94.
As the state court, in its plain-error review, analyzed these evidentiary issues only under
state law, this Court reviews this claim de novo. Hale argues that the challenged testimony
regarding Hale’s prior death threats and parole was “constitutionally inadmissible.” (Doc. No. 31
at 338.)
Hale first asserts that Laquatia’s testimony about Hale threatening his father was
inadmissible hearsay and violated the Sixth Amendment’s Confrontation Clause. (Id. (citing Lilly
v. Virginia, 527 U.S. 116, 124, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)).) As noted above, the
Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. CONST. amend VI. “The main and essential
purpose of confrontation is to secure for the opponent the opportunity of crossexamination.” Davis v. Alaska, 415 U.S. 308, 315–16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)
(citation omitted).
In Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the Supreme
Court held that the Clause permits the admission of out-of-court statements by an unavailable
witness, so long as the statements carried “adequate ‘indicia of reliability.’” Id. at 66. Such indicia
are present, it explained, if “the evidence falls within a firmly rooted hearsay exception” or bears
“particularized guarantees of trustworthiness.” Id. More recently, however, in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Court adopted a different
approach. It concluded that “witnesses” under the Confrontation Clause are those “who bear
88

testimony,” and defined “testimony” as “a solemn declaration or affirmation made for the purpose
of establishing or proving some fact.” Id. at 51 (internal quotation marks and alteration omitted).
The Sixth Amendment, the Court reasoned, prohibits the introduction of testimonial statements by
a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.” Id. at 54. It has force outside traditional hearsay
rules. Id. at 50–51. In Crawford, the Court held that statements by a witness during police
questioning at the station house were testimonial and thus could not be admitted. Id. at 65–69. The
Court did not provide an exhaustive definition of “testimonial” statements, but it explained that
the label “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to police interrogations.” Id. at 68.
Here, Hale does not argue that his sister’s testimony about his prior death threats was
“testimonial.” And for good reason; it was not. Laquashia testified only that she “heard about” this
incident. There is no indication that she is relaying prior testimony at any kind of legal proceeding
or a statement made during a police interrogation. Crawford, 541 U.S. at 54. And if a statement
does not qualify as testimonial, its “admissibility . . . is the concern of state and federal rules of
evidence, not the Confrontation Clause.” Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143,
179 L. Ed. 2d 93 (2011).
Hale further contends that the testimony about Hale’s death threat and parole history
violated his rights to due process and a reliable sentencing determination, ostensibly because it
was “inflammatory and prejudicial bad-character evidence.” (Doc. No. 31 at 332, 336.) As the
Ohio Supreme Court concluded, however, the testimony about Hale’s threats to his father was
cumulative to the testimony of Hale’s sister, Latisha, who was present when Hale made similar
threats. (See Doc. No. 8-5 (Trial Tr.) at 305–07, 323–24.) And, as the Ohio Supreme Court noted,
89

even if the trial court’s alleged error rose to the level of a due process violation, it cured that error
through its independent reweighing of aggravated and mitigating circumstances in reviewing
Hale’s death sentence. See Hoffner v. Bradshaw, 622 F.3d 487, 497 (6th Cir. 2010) (holding that
“even if the trial court’s alleged error rose to the level of a due process violation, the state supreme
court cured it through independent reweighing”).
Lastly, Hale claims the prosecution’s questioning that elicited this testimony amounted to
prosecutorial misconduct. (Doc. No. 31 at 336-37.) As will be discussed in relation to Hale’s
twenty-first ground for relief, the Court finds those claims meritless, and it therefore follows that
the trial court did not err in admitting the testimony at issue.
Hale’s fourteenth ground for relief, therefore, is denied.
13.

Consideration of victim-impact evidence at sentencing phase of trial
(Ground Fifteen)

Hale argues for his fifteenth ground for relief that the trial court improperly considered
victim-impact evidence at the sentencing phase of trial. (Doc. No. 13 at 240–44.) Hale presented
this claim on direct appeal to the Ohio Supreme Court, which reviewed the merits of the claim as
follows:
{¶ 146} In his 15th proposition of law, Hale contends that the trial judge improperly
considered victim-impact evidence in sentencing him to death.
{¶ 147} After the jury returned its sentencing recommendation on June 16, 2005,
the trial judge scheduled a final hearing for the purpose of imposing sentence. This
hearing was held on July 18, 2005. At that time, after hearing from counsel for both
parties and giving Hale an opportunity for allocution, the trial judge explained why
the aggravating circumstance outweighed the mitigating factors and announced his
decision to sentence Hale to death. After that, the judge heard the statements of
Douglas Green’s sister and daughter. He then imposed sentence on all counts, both
capital and noncapital.
{¶ 148} “Absent an indication that the trial court considered the victim-impact
evidence in arriving at its sentencing decision, the admission of such evidence is
90

not reversible error. * * * [T]his court will presume that a trial court considered
only the relevant, material, and competent evidence in arriving at its judgment,
unless the contrary affirmatively appears from the record.” State v. Myers, 97 Ohio
St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 131.
{¶ 149} The record contains no affirmative indication that the trial judge considered
the statements of Green’s relatives in sentencing Hale to death. To the contrary, the
judge announced his findings and sentence on the aggravated
murder before hearing from Green’s relatives. We therefore overrule Hale’s 15th
proposition of law.
Hale, 892 N.E.2d at 896.
Hale argues that the state court’s decision was contrary to, and an unreasonable application
of, clearly established Supreme Court precedent and is based on an unreasonable determination of
fact. (Doc. No. 31 at 350–52.)
In Booth v. Maryland, 482 U.S. 496, 509, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), the
Supreme Court held that the introduction of evidence of evidence and argument relating to the
victim and the impact of the victim’s death on the victim’s family at the sentencing phase of a
capital murder trial violates the Eighth Amendment. As explained above, however, the Court later
reversed that holding in Payne, 501 U.S. at 827, removing Booth’s per se constitutional bar to a
prosecutor’s use of victim-impact evidence. But the Court did not disturb Booth’s proscription
against “a victim’s family members’ characterization and opinions about the crime, the defendant,
and the appropriate sentence.” Id. at 830 n.2.
Hale argues that the Green family’s testimony went beyond Payne’s permissible victimimpact evidence into areas still forbidden under Booth. (Doc. No. 31 at 350–51.) Green’s sister,
Rose Reeves, for example, called Hale a “heartless, ruthless person,” and testified that “[t]here is
nothing that you can say or do to convince me that my brother – that you were threatened [by] my
brother.” (Doc. No. 8-5 (Trial Tr.) at 820–21.) Green’s daughter, Christian Green, contradicted
91

Hale’s defense by testifying that “[m]y father always told someone where he was going, or when
he was going to be late.” (Id. at 823–24.)
Respondent maintains that the Ohio Supreme Court did not misapply Payne or Booth
because the judge heard the family members’ testimony after he had already announced his
sentencing decision. (Doc. No. 17 at 126–27.) The Court agrees. In both cases, the Supreme Court
was clear that the issue before them was whether this type of evidence was relevant to a capital
sentencer’s decision. In Booth, the Supreme Court held, “[W]e find that this information
is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally
unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.
Booth, 482 U.S. at 502–03 (emphasis added). In Payne, the Supreme Court declared:
We thus hold that if the State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the Eighth Amendment erects
no per se bar. A State may legitimately conclude that evidence about the victim and
about the impact of the murder on the victim’s family is relevant to the jury’s
decision as to whether or not the death penalty should be imposed. There is no
reason to treat such evidence differently than other relevant evidence is treated.
Payne, 501 U.S. at 25 (emphasis added). See also Fautenberry, 515 F.3d at 637–39 (holding that
the Ohio Supreme Court did not unreasonably apply Booth in finding that a three-judge panel’s
consideration of victim-impact evidence did not require reversal of petitioner’s death sentence
because there was no evidence that the judges considered the evidence in sentencing the
defendant).
Hale further challenges the Ohio Supreme Court’s finding that the trial judge did not
consider the family’s improper testimony because he did not impose Hale’s death sentence until
immediately after hearing the family’s testimony. (Doc. No. 31 at 351.) But the record supports
the state court’s finding. As the state court described, the judge carefully explained each
92

aggravating circumstance and mitigating factor presented, heard argument from both parties, asked
Hale if he would like to make a statement, and described how he weighed the aggravating
circumstances and mitigating factors. (Doc. No. 8-5 (Trial Tr.) at 791–819.) The trial judge then
pronounced, “the Court finds that the aggravating circumstance outweighs the mitigating factors
beyond a reasonable doubt, and therefore find[s] that the sentence of death is appropriate in this
case.” (Id. at 819.) After so ruling, the judge asked if anyone wished to speak on behalf of Green.
(Id.) It was then that Green’s family testified. (Id. at 820–25.) Afterward, the judge declared Hale’s
formal sentence for each separate conviction. (Id. at 825–27.) The Ohio Supreme Court, therefore,
correctly determined that the judge announced Hale’s death sentence before hearing Hale’s
family’s testimony.
Accordingly, Hale’s fifteenth ground for relief is denied.
IV. Fifth Ground for Relief: Right to Presence
Hale argues for his fifth ground for relief that he was not present at all critical stages of his
trial in violation of his constitutional right to be present. (Doc. No. 13 at 129–31.) Specifically,
Hale alleges the trial court permitted his absence from seven pretrial hearings and from four trial
proceedings without securing a valid waiver. (Id. at 129.) Respondent contends this claim is
partially procedurally defaulted and meritless. (Doc. No. 17 at 85–89.)
A. Procedural Posture
Hale raised a right-to-presence claim on direct appeal to the Ohio Supreme Court. (See
Doc. No. 7-3 at 174–77.) The court resolved the claim on its merits. See Hale, 892 N.E.2d at 890–
91. Respondent maintains, however, that the claim is partially procedurally defaulted because Hale
alleges here two additional instances in which he was denied his right to presence at trial
proceedings. (Doc. No. 17 at 86.)
93

Determining when a claim has been “fairly presented” because of variations in legal theory
or factual allegations “is contextual and individual to each case.” Houston v. Waller, 420 F. App’x
501, 509 (6th Cir. 2011). With a right-to-presence claim, each individual allegation of an improper
absence can constitute a separate constitutional violation and must be evaluated in light of its
particular circumstances. See Snyder v. Massachusetts, 291 U.S. 97, 115, 54 S. Ct. 330, 78 L. Ed.
674 (1934) (overruled in part on other grounds) (explaining the issue in a right-to-presence claim
is “whether in the particular conditions exhibited by the record the enforced absence of the
defendant [was] . . . flagrantly unjust”). Hale’s allegations regarding his absence from trial
proceedings on January 11, 2005, and March 24, 2005, therefore, are procedurally defaulted as
they are record-based (see Doc. No. 8-1 (Trial Tr.) at 14–25 (Jan. 11, 2005 pretrial); id. at 39–43
(March 24, 2005 pretrial)) and were never raised on direct appeal in state court.
Hale argues that even if he defaulted the two new claims, he could demonstrate cause and
prejudice to excuse the defaults in the ineffectiveness of his counsel. (Doc. No. 31 at 157.) As will
be discussed below in relation to the underlying ineffective-assistance claims, however, those
claims themselves are either procedurally defaulted and/or meritless.
B. Merits Analysis
The Ohio Supreme Court was the last state court to address this claim, which it rejected,
reasoning:
{¶ 100} In his fourth proposition of law, Hale contends that trial proceedings were
conducted in his absence. An accused has a fundamental right to be present at all
critical stages of his criminal trial. However, “the presence of a defendant is a
condition of due process to the extent that a fair and just hearing would be thwarted
by his absence, and to that extent only.” (Emphasis added.) Snyder v.
Massachusetts (1934), 291 U.S. 97, 107–108, 54 S.Ct. 330, 78 L.Ed. 674, overruled
on other grounds by Malloy v. Hogan (1964), 378 U.S. 1, 17, 84 S.Ct. 1489, 12
L.Ed.2d 653. The question is whether his presence has a “reasonably substantial”
94

relationship to “the fullness of his opportunity to defend against the charge.” Id. at
105–106, 54 S.Ct. 330, 78 L.Ed. 674.
{¶ 101} On May 12, 2005, Hale was absent during all or part of a brief, inconclusive
discussion between the trial judge and counsel for the parties. The defense
complained that the state was still disclosing evidence that should have been
disclosed earlier. The state asserted that it had already informally disclosed the
evidence in question and was now merely doing so “in a formal written fashion”
for the record.
{¶ 102} Hale’s “absence was not prejudicial because the jury received neither
testimony nor evidence, and no critical stage of the trial was involved.” State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 145. Hale
contends that his presence during this discussion “would have been important”
because it “would have alerted him to the ineffective assistance of counsel he was
receiving * * * which would have prompted him to raise the issue before the trial
court.” We reject this speculative claim.
{¶ 103} Hale was also absent from a proceeding in chambers on May 25, 2005.
This proceeding involved a discussion of “technical and procedural and evidentiary
matters,” and defense counsel waived Hale’s presence. Hale contends that counsel
may not waive a client’s right to be present, but he is incorrect. See,
e.g., Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 144; State
v. Green (2000), 90 Ohio St.3d 352, 372, 738 N.E.2d 1208. Moreover, Hale’s
absence was not prejudicial, as the jury received no testimony or evidence in his
absence. See Frazier at ¶ 145.
{¶ 104} Hale also contends that he was not present during ten “pretrial hearings”
held between August 23, 2004, and March 10, 2005. The record does not show that
any hearings actually took place on the dates indicated. The trial court’s docket and
journal entries state only that “pretrial[s]” were held on those dates. These may
have been pretrial conferences. See generally Crim.R. 17.1.
{¶ 105} Whatever the “pretrials” were, none of them was recorded.4 “[T]he record
must affirmatively indicate the absence of a defendant or his counsel during a
particular stage of the trial.” State v. Clark (1988), 38 Ohio St.3d 252, 258, 527
N.E.2d 844. As no record was made, we cannot determine whether Hale was absent
from the pretrials in question. Hale’s fourth proposition of law is overruled.
4

Pretrial conferences need not be recorded if the defendant is represented by
counsel. Crim.R. 17.1.

Hale, 892 N.E.2d at 890–91.

95

Hale asserts that the state court’s decision was contrary to, and an unreasonable application
of, clearly established Supreme Court precedent and was based on an unreasonable determination
of facts in light of the evidence presented under AEDPA’s § 2254(d). (Doc. No. 31 at 155–56.)
This Court reviews de novo Hale’s new claims regarding the January 11 and March 24
proceedings.
The Constitution guarantees a criminal defendant the right to be present at trial. United
States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 846 (1985) (noting the right to
presence is “rooted to a large extent in the Confrontation Clause of the Sixth Amendment . . . [and]
is protected by the Due Process Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him.”). But this right is not absolute: “‘[T]he presence
of a defendant is a condition of due process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.’” Id. (quoting Snyder, 291 U.S. at 105–06
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 17, 84 S. Ct. 1489, 12 L. Ed. 2d 653
(1964)) (alteration in original). It exists, therefore, only “at [a] stage of the criminal proceeding
that is critical to its outcome” and “if [the defendant’s] presence would contribute to the fairness
of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631
(1987); see also Taylor, 484 U.S. at 418 (“The adversary process could not function effectively if
every tactical decision required client approval.”). Whether a defendant has been improperly
excluded from a trial proceeding must be considered in light of all of the circumstances. Snyder,
291 U.S. at 115.
As to Hale’s allegations regarding his absence from ten “pretrial hearings,” Hale challenges
the Ohio Supreme Court’s conclusion that the record does not show he was actually absent from
them. (Doc. No. 31 at 156.) The state court noted that the trial court’s docket showed only that
96

“pretrials” took place on the dates in question, not hearings, and because the proceedings were not
recorded, which was not required under Ohio court rules, it could not determine if Hale attended
them or not. Hale, 892 N.E.2d at 890–91. That said, Hale insists that he “was not present” at the
pretrial proceedings at issue. (Doc. No. 31 at 152, 156.) As support, he cites an assertion of his
state appellate counsel that Hale was absent from the pretrials in a motion he filed in the Ohio
Supreme Court requesting police reports that he claimed may have reported on the pretrials. (Id.
at 152 (citing Doc. No. 7-3 at 465–68).) But the only supporting evidence submitted with that
motion was an affidavit of one of Hale’s trial counsel, who averred only that the pretrials in
question concerned discovery and “some” were canceled—not that Hale was absent from them.
(Doc. No. 7-3 at 468.) 16 The Ohio Supreme Court, therefore, correctly determined that the record
does not establish Hale’s absence from the pretrials at issue, and reasonably rejected Hale’s rightto-presence claim based on court proceedings from which he could not prove his absence.
Hale asserts that he also was absent from four “trial” proceedings in violation of his
presence rights. (Doc. No. 31 at 152.) Two occurred during his 2005 trial, on May 12 and May 25,
which the Ohio Supreme Court examined. See Hale, 892 N.E.2d at 890. As the state court noted,
the May 12 proceeding was a “brief, inconclusive discussion” about a discovery dispute; the May
25 proceeding dealt with “‘technical and procedural and evidentiary matters’” and defense counsel
waived Hale’s presence. Id. The other two proceedings, which Hale did not complain of in his
state-court appeals, took place before the trial began, on January 11 and March 24 of that year.
The judge stated at both of those recorded proceedings that Hale had waived his right to be present;
he described the January proceeding as concerning a “procedural matter” regarding discovery and

16

The Ohio Supreme Court denied Hale’s motion for discovery of the police reports. (Doc. No. 7-3 at 471.)

97

the March proceeding as addressing “housekeeping” matters. (Doc. No. 8-1 (Trial Tr.) at 15 (Jan.
11); id. at 39 (March 24).)
The Ohio Supreme Court reasonably concluded that the May 12 and 25 proceedings did
not occur during critical stages of the trial, as the jury received no evidence or testimony. Hale,
Hale, 892 N.E.2d at 890. The same is true of the other two proceedings, which occurred before
trial and concerned only discovery and housekeeping matters. See, e.g., United States v. Taylor,
489 F. App’x 34, 44 (6th Cir. 2012) (finding no violation of presence right where defendant was
absent from sidebar conferences and chambers conferences considering matters of law or decisions
regarding trial procedures and the progress of the trial) (colleting cases). The record does not show
that the pretrials were “critical to [the trial’s] outcome” and Hale’s “presence would [have]
contribute[d] to the fairness of the procedure.” Stincer, 482 U.S. at 745. Hale “could have done
nothing had [he] been at the conference[s], nor would [he] have gained anything by attending.”
Gagnon, 470 U.S. at 527.
Despite the mundane nature of these proceedings, Hale argues that his presence rights were
violated at each of them because he did not personally waive his right to attend on the record.
(Doc. No. 31 at 152–53.) As the state court explained, however, Hale is incorrect. The Supreme
Court held in United States v. Gagnon, supra, that a trial court “need not get an express ‘on the
record’ waiver from the defendant for every trial conference which a defendant may have a right
to attend.” Gagnon, 470 U.S. at 528. A defendant’s failure to assert the right to presence is an
adequate waiver. Id. at 528–29. The Court declared, “[i]f a defendant is entitled . . . to attend certain
‘stages of the trial’ which do not take place in open court, the defendant or his counsel must assert
that right at the time; they may not claim it for the first time on appeal . . . .” Id. at 529. Here,
Hale’s counsel waived Hale’s right to attend three of the proceedings at issue. And because neither
98

Hale nor his attorneys objected to his absence from the fourth, Hale waived his right to be present
at the fourth as well.
Hale attempts to distinguish his case from Gagnon because Gagnon concerned a federal,
rather than state, trial and the Court analyzed the waiver issue in the context of a federal evidentiary
rule rather than constitutional principles. (Doc. No. 31 at 154.) Instead, he argues the Court’s
decision in Taylor v. Illinois, supra, is controlling, as it “held” that counsel cannot waive the
accused’s right to presence without a “fully informed and publicly acknowledged consent.” (Id. at
153.) But this argument, too, is unavailing. The Court held in Gagnon that the defendants’ due
process rights were violated when they were excluded from an in camera conference between the
judge, defense counsel, and a juror regarding the juror’s possible bias. Gagnon, 470 U.S. at 526.
The fact that the Supreme Court went on to analyze the defendants’ waiver of that right in the
context of an evidentiary rule (because the lower court had) did not strip the right of its
constitutional underpinning. Indeed, the Supreme Court itself has cited Gagnon for the proposition
that the constitutional right to presence can be waived. See, e.g., Peretz v. United States, 501 U.S.
923, 936, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991).
Taylor, on the other hand, did not squarely address the right to presence at all. That case
concerned whether exclusion of testimony of a material defense witness as a discovery sanction
against the defendant violated the Compulsory Process Clause. Taylor, 484 U.S. at 401–02. The
Court only mentioned the right to presence in a footnote as an example of a right an attorney cannot
waive without the “fully informed and publicly acknowledged consent of the client,” citing a 1963
court of appeals case, Cross v. United States, 325 F.2d 629 (D.C. Cir. 1963), for that proposition.
Taylor, 484 U.S at 418 n.24. Gagnon, therefore, not Taylor, clearly established the controlling law
regarding a defendant’s waiver of the right to be present. See also White, 572 U.S. at 419 (“clearly
99

established Federal law” for purposes of § 2254(d)(1) includes “only the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions”) (internal quotation marks and citations omitted).
And in applying Gagnon, the Ohio Supreme Court correctly found that Hale had waived his right
to attend the May 25, 2005, proceedings. Hale also waived his presence right through his counsel
or his silence at the other proceedings.
Accordingly, the Ohio Supreme Court did not misapply or contravene clearly established
Supreme Court precedent in rejecting Hale’s right-to-presence claim or base its decision on an
unreasonable determination of fact in light of the evidence presented. In addition, even if Hale’s
new allegations were not procedurally defaulted, they also would fail. Hale’s fifth ground for relief
is denied.
V. Sixth Ground for Relief: Unreasonable Search and Seizure
For this sixth ground for relief, Hale claims that the trial court erred in denying his motion
to suppress oral and written statements he gave to the police after he was apprehended. (Doc. No.
13 at 132–36.) Hale raised this claim on direct appeal to the Ohio Supreme Court, which rejected
it on the merits. Respondent concedes the claim is properly preserved for habeas review but
contends it lacks merit. (Doc. No. 17 at 89.)
The Ohio Supreme Court, the last state court to adjudicate this claim, rejected the claim,
stating:
{¶ 20} In his third proposition of law, Hale contends that the trial court erred by
denying his motion to suppress the oral and written statements he gave Sergeant
Baird on June 28, 2004.
{¶ 21} Sergeant Baird initially questioned Hale in order to obtain his personal
information before administering Miranda2 warnings. Only after giving
the Miranda warnings did Baird interrogate Hale about the murder. In response to
Baird’s post-Miranda interrogation, Hale gave Baird both oral and
100

written statements admitting that he had killed Green and setting forth his version
of the killing.
2

Miranda v. Arizona (1966), 384 U.S. 436, 460–61, 86 S.Ct. 1602, 16 L.Ed.2d 694.

{¶ 22} Hale argues that because Baird had asked him questions before
giving Miranda warnings—even though the pre-Miranda questions did not deal
with the murder in any way—his oral and written statements about the murder
should have been suppressed.
{¶ 23} The record of the suppression hearing establishes the following sequence of
events:
{¶ 24} Sergeant Pestak arrested Hale at approximately 2:30 p.m., June 28, and
informed Hale of his Miranda rights, which Sergeant Pestak recited from memory.
Hale was then driven to the Euclid police station, arriving at 3:35 p.m. Before his
shift ended at 5:00 p.m., Sergeant Pestak asked Sergeant Baird to “get a personal
history” from Hale.
{¶ 25} Pestak’s request referred to the standard personal-history form used by the
Euclid detective bureau. The form contains such information as the arrestee’s name,
address, age, phone number, Social Security number, physical description,
employer, education, and the names of his immediate family members. The
detective bureau routinely obtains this information from every felony suspect and
uses it to complete the form. The bureau gathers this information for police records
and to verify the arrestee's identity.
{¶ 26} At 7:50 p.m., Baird had Hale escorted from his cell to the detective bureau.
For 20 to 25 minutes, Baird questioned Hale to obtain information for the personalhistory form.
{¶ 27} When questioning finished, Baird told Hale that Baird “was going to talk to
him briefly about the crime that he was being charged with, and that before [Baird]
asked him any questions or talked to him at all about it, that [Baird] had to advise
him of his rights.” Baird asked Hale to read a form containing
the Miranda warnings. Baird then read the Miranda form aloud to him. Baird asked
if Hale understood his rights. Hale said yes and signed the form, acknowledging
that he understood them. Baird then showed Hale the waiver portion of
the Miranda form and told Hale that if he wanted to talk to Baird, he needed to sign
the waiver. Hale signed the Miranda waiver at 8:22 p.m.
{¶ 28} Baird explained to Hale that he was under arrest for murder, then began
what Baird described as a “soft interrogation.” Baird discussed the case with Hale
for about 20 minutes. Hale then orally stated his version of the events of June
21.3 When Hale finished, Baird said, “I’d really like to get this on paper so we can
101

have your side of the story.” At 8:53 p.m., Baird gave Hale a statement sheet and
asked him to write his statement in his own words. Over the next two hours, Hale
wrote out a four-page statement, which was ultimately introduced at trial.
3

The trial court later excluded Hale’s oral statement (but not his written statement)
pursuant to Crim.R. 16 as a sanction for the state’s failure to make timely discovery. See
discussion of section (A) of Hale’s eighth proposition of law, below.

{¶ 29} Hale was given Miranda warnings twice on June 28: first by Pestak at 3:00
p.m., during his arrest, and then by Baird at approximately 8:15 p.m., just before he
began to interrogate Hale about the murder. Hale contends that neither set of
warnings was effective and that his statement should therefore have been
suppressed.
{¶ 30} We need not determine whether Pestak’s warnings were still effective by
the time Baird interrogated Hale. See generally State v. Roberts (1987), 32 Ohio
St.3d 225, 232, 513 N.E.2d 720. It is undisputed that Baird administered
full Miranda warnings and obtained an express, written waiver immediately before
he interrogated Hale about Green’s murder.
{¶ 31} Hale argues that the Miranda warnings given by Baird were ineffective and
should be ignored because Baird questioned him about his personal history before
giving those warnings. Because Baird’s warnings did not precede all questioning,
including the personal-history questions, Hale contends that they were ineffective
for any portion of the questioning.
{¶ 32} We disagree. Baird was not required to preface the personal-history
questions with Miranda warnings. The personal-history questions were routine
booking questions, and the requirement that police administer Miranda warnings
before questioning a suspect in custody does not apply to routine booking questions.
{¶ 33} Routine booking questions are questions asked in order “to secure the
‘biographical
data
necessary
to
complete
booking
or
pretrial
services.’” Pennsylvania v. Muniz (1990), 496 U.S. 582, 601, 110 S.Ct. 2638, 110
L.Ed.2d 528, quoting United States v. Horton (C.A.8, 1989), 873 F.2d 180, 181, fn.
2. The personal-history questions in this case clearly fit within that definition. The
information elicited for the personal-history form was routinely requested for
record-keeping and identification purposes. Moreover, the personal-history form
was not “designed to elicit incriminatory admissions.” Id. at 602, 110 S.Ct. 2638,
110 L.Ed.2d 528, fn. 14. Hence, the personal-history questions were “reasonably
related to the police’s administrative concerns.” Id. at 601–602, 110 S.Ct. 2638,
110 L.Ed.2d 528.
{¶ 34} Thus, no reason exists to suppress Hale’s statement. Baird was not required
to administer Miranda warnings any sooner than he did. By giving
complete Miranda warnings and obtaining an express waiver before asking Hale
102

any questions about the crime, Baird complied fully with the relevant constitutional
requirements. That fact distinguishes this case from cases such as Oregon v.
Elstad (1985), 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, and Missouri v.
Seibert (2004), 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643, in which police
first interrogated suspects about their crimes, then administered Miranda warnings,
then engaged in further interrogation. Cf. Seibert, 542 U.S. at 616, 124 S.Ct. 2601,
159 L.Ed.2d 643 (plurality opinion) (postwarning interrogation was “a mere
continuation” of prewarning interrogation) and 542 U.S. at 622, 124 S.Ct. 2601,
159 L.Ed.2d 643 (Kennedy, J., concurring) (postwarning interrogation was “related
to the substance of [the suspect’s] prewarning statements”). We therefore overrule
Hale’s third proposition of law.
Hale, 892 N.E.2d at 879–81.
Hale argues that the state court’s decision unreasonably applied clearly established federal
law and was based on an unreasonable determination of facts in light of the evidence presented.
(Doc. No. 31 at 170.) The Court disagrees.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme
Court held that the Fifth Amendment privilege against self-incrimination is implicated whenever
an individual is “taken into custody or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning.” Id. at 478. Because custodial interrogations are
said to be inherently coercive, Miranda established that a suspect must be apprised of certain rights
to protect this privilege, including the right to remain silent. Id. at 444.
For Miranda to apply, the defendant must be in custody and “subjected to questioning.” Id.
at 478. Miranda defined interrogation simply as “questioning initiated by law enforcement
officers.” Id. at 444. In Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297
(1980), the Court clarified that an “interrogation” for purposes of triggering Miranda’s protections
refers “not only to express questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. The intent of the
103

police is relevant, the Court explained, as it may have bearing on whether the police should have
known their words were reasonably likely to elicit an incriminating response. Id. at 301 n.7. Ten
years later, in Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), a
plurality of the Supreme Court expanded on Innis’ exclusion of police activity “normally attendant
to arrest and custody” from its definition of an interrogation under Miranda. It recognized the socalled “routine booking exception” to Miranda, in which “questions . . . reasonably related to the
police’s administrative concerns . . . fall outside the protections of Miranda and the answers
thereto need not be suppressed.” Id. at 601–02. 17
Hale argues that the Ohio Supreme Court unreasonably applied Muniz in concluding that
Detective Baird was not required to administer Miranda warnings before asking him questions
about his “personal history,” as they were “routine booking questions,” and that Baird properly
gave him Miranda warnings and obtained his express waiver before he later provided statements
regarding his crime. (Doc. No. 31 at 168–70.) Hale alleges that several of the questions Baird asked
him do not fall within Muniz’s routine booking exception because the information requested was
“not necessary for administrative and booking purposes.” (Id. at 170). He cites the detective’s
questions about the brand of cigarettes that he smoked, each school he attended, the names of and
identifying information about his siblings, and whether he was right- or left-handed. (Id.) Hale

17

The Supreme Court has since described the Muniz plurality’s recognition of the routine booking exception as its
holding in that case. Maryland v. King, 569 U.S. 435, 456, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) (“[T]he Court has
held that ‘questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protections
of Miranda and the answers thereto need not be suppressed.’”) (quoting Muniz, 496 U.S. at 601–02) (alteration
omitted); see also United States v. Woods, 711 F.3d 737, 743 (6th Cir. 2013); (“[I]n Pennsylvania v. Muniz, . . . the
Court held that the defendant’s incriminating statements in response to the police officer’s question as to whether the
defendant understood the instructions for certain sobriety tests was not the product of custodial interrogation . . . .”);
United States v. Gaston, 357 F.3d 77, 82 (D.C. Cir. 2004) (“The Supreme Court held in Pennsylvania v. Muniz . . .
that officers asking routine booking questions ‘reasonably related to the police’s administrative concerns’ are not
engaged in interrogation within Miranda’s meaning and therefore do not have to give Miranda warnings.”) (quoting
Muniz, 496 U.S. at 601–02). Muniz, therefore, “clearly established” the “routine booking exception” to Miranda for
purposes of § 2254(d)(1). See, e.g., White, 572 U.S. at 419.

104

points out that one of those questions, about his handedness, was not included on the personalhistory form Baird was working with, but the prosecution used evidence of Hale’s answer that he
was ambidextrous and mostly left-handed, when Baird could see that he was not, in his closing
argument as evidence of deception. (Id.; Doc. No. 13 at 135 (citing Doc. No. 8-5 (Trial Tr.) at
173–75).)
The standard established in Muniz, however, was not whether police questions were
“necessary” for administrative reasons, as Hale asserts, but whether they were routine booking
questions “reasonably related to the police’s administrative concerns.” Muniz, 496 U.S. at 601–02.
And the state court reasonably applied that test, finding Detective Baird’s initial inquiry of Hale
“clearly fit” within the Muniz plurality’s definition of routine booking questions, which
specifically included questions asked “to secure the biographical data necessary to complete
booking or pretrial services” and those “for record-keeping purposes only.” Muniz, 496 U.S. at
601–02 (internal quotation marks and citations omitted). As the state court noted, the personalhistory form was routinely used in the Euclid Police Department. Baird explained at the
suppression hearing that the form was “an administrative form that we have in the detective bureau.
We use it for our records and also to verify identification to make sure that we have the right person
in jail.” (Doc. No. 8-1 (Trial Tr.) at 328.) Baird testified that he was not charged with
“undertak[ing] a full interrogation” of Hale. (Id. at 328–29.) Some of the questions Hale
challenges, such as those concerning Hale’s education and family members, were included on the
personal-history form itself. (See Doc. No. 7-8 at 94 (Personal History Form).) As to the detective’s
questions that were not on the form, like whether Hale was left- or right-handed and what brand
of cigarettes he smoked, Hale makes no showing that they were “designed to elicit incriminatory
admissions.” Muniz, 496 U.S. at 602. As Hale argues, the prosecutor commented on Hale’s
105

handedness in his closing argument, stating: “The first thing that he does with Detective Baird is
to try and use left hand. He later goes on to use his right hand.” (Doc. No. 8-5 (Trial Tr.) at 173.)
But Baird’s observation stemmed from his routine requests that Hale sign the personal-history
form to verify its accuracy and later the Miranda form to verify he understood his rights. (Doc.
No. 8-3 (Trial Tr.) at 473–75, 497.) And the court sustained defense counsel’s objection to that
statement, instructing the prosecutor at a sidebar to limit any comment about Hale’s handedness
to Baird’s observations. (Doc. No. 8-5 (Trial Tr.) at 173–74.) The State, therefore, did not use
Hale’s response to Baird’s question about his handedness against him.
The Ohio Supreme Court reasonably concluded, therefore, that Detective Baird’s initial
questioning of Hale in completing Hale’s personal history form fell within the Muniz routine
booking exception and outside Miranda’s protections, and the trial court did not err in denying
Hale’s motion to suppress his statements to the police. The court’s decision did not misapply Muniz
or other Supreme Court precedent or make any unreasonable determination of fact. Hale’s sixth
ground for relief is meritless.
VI.

Seventh Ground for Relief: Right to Testify
Hale asserts in his seventh ground for relief that he did not knowingly, voluntarily, and

intelligently waive his right to testify on his own behalf during the guilt phase of his trial. (Doc.
No. 13 at 137–42.) Respondent argues this claim is procedurally defaulted and meritless. (Doc.
No. 17 at 95–99.)
A. Procedural Posture
Hale did not raise this record-based claim on direct appeal in state court. As Hale no longer
is able to raise this claim in state court, it is procedurally defaulted.

106

Hale contends he can demonstrate cause and prejudice for the default in the ineffective
assistance of his trial, appellate, and post-conviction counsel. (Doc. No. 31 at 180–84.) However,
as will be discussed below, those claims themselves are either procedurally defaulted and/or
meritless.
B. Merits Analysis
Even if Hale’s right-to-testify claim were not procedurally defaulted, it would fail. Because
no state court has addressed this claim, this Court reviews it de novo.
“[A] defendant in a criminal case has the right to take the witness stand and to testify in his
or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).
This right is grounded in several provisions of the Constitution, including the Due Process Clauses
of the Fifth and Fourteenth Amendments, the Compulsory Process Clause of the Sixth
Amendment, and the Fifth Amendment’s guarantee against compelled testimony. Id. at 51–52.
The right to testify is personal to the defendant and may be relinquished only by the
defendant’s knowing and intentional waiver of that right. United States v. Webber, 208 F.3d 545,
550–51 (6th Cir. 2000) (citing United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)). Defense
counsel’s role is to advise their client about testifying, but it is ultimately the defendant’s choice.
Id. at 551 (citation omitted). However, where a tactical decision is made that the defendant will
not testify, the defendant’s assent is presumed. Id. (citing Joelson, 7 F.3d at 177). This is because
the defendant’s attorney is presumed to follow the professional rules of conduct and is “‘strongly
presumed to have rendered adequate assistance’” in carrying out the general duty “‘to advocate
the defendant’s cause and the more particular duties to consult with the defendant on important
decisions and to keep the defendant informed of important developments in the course of the

107

prosecution.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688–90, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)).
Thus, if a defendant wishes to testify or disagrees with counsel regarding whether he
should, he “must alert the trial court.” Id. (internal quotation marks and citation omitted). “Waiver
is presumed from the defendant’s failure to testify or notify the trial court of the desire to do so.” Id.
(citing Joelson, 7 F.3d at 177). And without any such notice from the defendant, “the trial court is
neither required to sua sponte address a silent defendant and inquire whether the defendant
knowingly and intentionally waived the right to testify, nor ensure that the defendant has waived
the right on the record.” Id. (citing Joelson, 7 F.3d at 177; United States v. Ortiz, 82 F.3d 1066,
1069 n.8 (D.C. Cir. 1996) (noting the agreement of the First, Third, Fifth, Seventh, Ninth, Tenth,
and Eleventh Circuits that the trial court does not have a duty to sua sponte conduct an on-therecord colloquy regarding waiver)). 18

18

Hale also appears to assert a separate claim based on his right to “autonomy,” recently recognized by the Supreme
Court in McCoy v. Louisiana, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018). (See Doc. No. 13 at 185.) But McCoy does
not apply here. In McCoy, the Court held that the trial court violated the defendant’s “right to insist that counsel refrain
from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the
best chance to avoid the death penalty.” McCoy,138 S. Ct. at 1505. It clarified that at issue was the defendant’s Sixth
Amendment right to “autonomy”—in that case, the autonomy to decide that the objective of the defense was to assert
innocence—not his right to the effective assistance of counsel. Id. at 1510–11. And it determined that the error was
structural and ordered a new trial. Id. at 1511–12. Although the Court relied on Florida v. Nixon, 543 U.S. 175, 125
S. Ct. 551, 160 L. Ed. 2d 565 (2004), which also concerned a trial attorney’s concession of guilt, the dissent considered
the right to autonomy “a new right” that was “likely to appear only rarely[.]” McCoy, 138 S. Ct. at 1515 (Alito, J.,
dissenting). Hale argues that “[f]airly read, McCoy simply confirms that the defendant must make his objection [to
counsel’s decision that he not testify] to defense counsel or the court.” (Doc. No. 31 at 185.) McCoy, however,
addressed the defendant’s right to insist that counsel contest guilt. The Court noted that the right to testify is one of
the choices in a trial “reserved for the client,” but only in dicta. McCoy, 138 S. Ct. at 1508. The Court did not overrule
existing precedent and hold that a defendant may assert the right to testify merely by informing counsel. Moreover,
the Court stressed in McCoy that the defendant had “opposed [his counsel’s] assertion of his guilt at every opportunity,
before and during trial, both in conference with his lawyer and in open court.” Id. at 1509. He requested new counsel
two days before trial because he disagreed with his attorney’s plan to concede guilt; protested to the court about
counsel’s strategy outside the presence of the jury; and, most significantly, testified on his own behalf, maintaining
his innocence. Id. at 1506–07. Hale did none of those things, and McCoy does not apply to his right-to-testify claim.

108

Here, Hale claims that any “presumed waiver” of his right to testify was not knowing,
intelligent, or voluntary because it was the result of “threats, coercion and misrepresentations made
to him by trial counsel.” (Doc. No. 31 at 172.) As support, he points to remarks he made in his
unsworn statement during the sentencing phase of his trial and the trial court’s references to his
unsworn statement in the court’s sentencing ruling.
Toward the end of Hale’s unsworn statement, his attorney asked him if he had anything
else to say. (Doc. No. 8-5 (Trial Tr.) at 661.) Hale launched into a discussion of the merits of his
robbery conviction and an explanation for false statements he had made to the police. (Id.) His
counsel then tried to turn Hale’s focus from his defense to expressing remorse for his crime and
the pain he had caused. (Id.) Hale then stated:
I’m very sorry. But I know you’re trying to cut me off from going off into pretty
much of that, but the fact that I wasn’t allowed to make a statement weighs heavy
on my mind and my heart, very heavy. As I said, I’ve never blamed anyone for
anything I’ve ever done, any crime that I’ve ever committed, I’ve admitted to. . . .
I understood you guys’ reasons for not allowing me to testify, but I also don’t
understand none of them. I felt that they had a right to hear as well as them,
especially them, they had a right to hear exactly what happened in that room
because both scenarios were unrealistic, his as well as what was in that statement.
As I said, I’ve never blamed anybody else for what I’ve done, but I don’t understand
things that other people do as well. I truly don’t believe if I had made a statement,
I’d even be sitting up here right now because it clearly was not about a robbery. It
was too many things leading elsewhere. If you look at my notes over there that I
wouldn’t allow you guys to read, you see how I actually felt during this trial and
about this trial. But I had to sit over there like a good soldier and not say nothing,
otherwise as you guys have said I would have been held in contempt, and it
wouldn’t have benefited nobody. My question is who is it benefiting right now?
I’m done.
(Id. at 661–62.)
Hale claims that when he said, “the fact that I wasn’t allowed to make a statement weighs
heavy on my mind and my heart, very heavy[,]” he was “explain[ing] to the trial court that he was
109

unaware of any right to testify.” (Doc. No. 31 at 172.) And when he stated, “I understood you
guys’ reasons for not allowing me to testify, but I also don’t understand none of them[,]” he was
telling “the trial court unambiguously that counsel did not allow him to testify.” (Id.) Finally, Hale
argues, when he told the court and jury, “But I had to sit over there like a good soldier and not say
nothing, otherwise as you guys have said I would have been held in contempt, and it wouldn’t have
benefited nobody[,]” he was “inform[ing] the trial court that counsel threatened him with legal
consequences if he had testified at the trial phase[.]” (Id.)
Even accepting Hale’s interpretation of his remarks, his unsworn statement did not
adequately alert the trial court that he wanted to testify on his own behalf and disagreed with this
attorney’s position that he should not for one simple reason: it was too late. At that point, the guilt
phase of his trial was over, the jury had rendered its verdict, and his chance to testify had passed.
Furthermore, Hale did not “unambiguously” inform the court in his unsworn statement of
any of the things he now claims. He did not tell the court he was “unaware” of his right to testify;
he seemed to suggest the opposite by saying, “I felt that they had a right to hear . . . exactly what
happened in that room . . . .” Hale did not clearly alert the trial court that counsel “did not allow
him to testify”; he said on the stand, “I understood you guys’ reasons for not allowing me to
testify[,]” suggesting that he initially agreed with counsel’s decision that he not testify. Hale then
backtracked in his statement by saying, “but I also don’t understand none of [the reasons,]” but
that reasonably could be interpreted to mean that in hindsight he did not understand counsel’s
strategy. And Hale did not unambiguously inform the court that counsel “threatened” him with the
chance of a contempt ruling if he testified; he stated that counsel advised him to “sit . . . and not
say nothing” in court because not doing so “wouldn’t have benefited nobody[,]” suggesting that

110

counsel spoke of a possible contempt finding to encourage Hale to refrain from disrupting the
proceedings, not to prevent him from testifying.
Hale also cites references the trial court made to his unsworn statement in his sentencing
decision as evidence that he asserted his right to testify. (Doc. No. 31 at 173.) In finding no weight
to Hale’s expression of remorse as a mitigating factor, the court stated,
Moreover, when given the opportunity to express his feelings about responding to
a question posed by his attorney, the defendant insisted that he did not commit the
aggravated robbery, and intimated if his attorneys would have allowed him to
testify at trial, he wouldn’t be sitting up here right now.
The defendant’s statements that he believes in taking responsibility for his actions
are belied by the blame that he placed on his attorneys for his conviction on the
charge upon which the death penalty is based.
(Doc. No. 8-5 (Trial Tr.) at 818.)
Hale argues that, in this statement, the trial court “acknowledged that defense counsel did
not allow Hale to testify.” (Doc. No. 31 at 173.) But “[r]ather than inquiring further,” Hale
continues, the judge used the statement against him in his sentencing judgment. (Id.) Again,
however, Hale’s comments during his unsworn statement could not trigger any obligation on the
part of the trial court because they were simply too late. And even though the court acknowledged
that Hale’s attorneys did not allow him to testify, that does not mean it was aware of Hale’s desire
to testify or any disagreement between Hale and his counsel about that decision.
During the guilt phase of his trial, Hale never alerted the trial court that he wished to testify
on his own behalf or that he disagreed with his counsel’s decision that he should not testify. His
waiver of the right to testify, therefore, is presumed, and the trial court had no duty to inquire into
his choice any further. Hale’s seventh ground for relief is meritless.

111

VII.

Twelfth Ground for Relief: Trial-Court Error/Jury Instructions
For his twelfth ground for relief, Hale asserts that the trial court improperly instructed the

jury regarding what evidence was relevant for consideration in its sentencing deliberations. (Doc.
No. 13 at 220–25.) Specifically, he challenges the court’s instruction on: (1) the definition of
mitigation evidence; and (2) the relevance of evidence admitted in the guilt phase of trial. (Id.)
Hale presented this claim on direct appeal to the Ohio Supreme Court. Respondent states that the
claim is ripe for federal habeas review. (Doc. No. 17 at 117.) 19
The state court disposed of the claim as follows:
{¶ 133} In his 13th proposition of law, Hale argues that erroneous instructions
rendered the penalty phase unreliable.
{¶ 134} During closing argument, the prosecutor asked the jury to consider whether
there was “any mitigation in” the circumstances of the crime, specifically the
robbery and the defendant’s attempts to conceal the murder. The defense objected
on the ground that the prosecutor could not argue mitigating factors not raised by
the defense. See State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542.
The trial court sustained the objection and gave, without objection, the following
curative instruction:
{¶ 135} “Mitigation evidence is the evidence that was presented by the defense
during this portion of the trial or that would have been presented during the trial
phase. It does not exist within the context of the crime itself.” (Emphasis added.)
{¶ 136} It is unclear what the judge meant by the last sentence of this instruction,
but Hale contends that it can reasonably be understood to mean that the
circumstances of the crime cannot be considered in mitigation. Such an instruction
would, of course, be incorrect. See R.C. 2929.04(B) (sentencer “shall consider” the
nature and circumstances of the offense).
19

As shown below in the state court’s decision, the court found the first of this claim’s two sub-claims waived because
defense counsel did not object to the jury instruction at issue. This portion of Ground Twelve, therefore, may be
procedurally defaulted. See, e.g., Keith, 455 F.3d at 673 (failure to adhere to the “firmly-established” contemporaneous
objection rule is “an independent and adequate state ground” upon which to find federal habeas claims procedurally
defaulted). Respondent did not assert this defense to the sub-claim, however, and failure to raise the defense of
procedural default results in its waiver. See, e.g., Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 139 L. Ed. 2d 444
(1997) (“procedural default is normally a ‘defense’ that the State is ‘obligated to raise’ and ‘preserv[e]’ if it is not to
‘lose the right to assert the defense thereafter’”) (quoting Gray, 518 U.S. at 166); Baze v. Parker, 371 F.3d 310, 320
(6th Cir. 2004) (“The state may waive a defense,” including procedural default, “by not asserting it.”).

112

{¶ 137} However, on the facts of this case, we cannot find that this instruction
constituted plain error. The only “circumstances of the offense” in which Hale
claims to find mitigation is that Green allegedly provoked the murder by making
an unwanted sexual advance. However, the physical evidence is inconsistent with
that claim. Furthermore, the trial judge did instruct the jury, correctly, that “duress,
coercion or strong provocation” was a mitigating factor. Under these
circumstances, it is unlikely that the jury would have imposed a life sentence even
if the trial court had not given the instruction at issue. Hence, we cannot find that
the instruction constituted plain error, and this claim is waived.
{¶ 138} The trial court also instructed the jury to consider “only that evidence
admitted in the trial phase that is relevant to the aggravating circumstances and to
any of the mitigating factors.” This instruction was erroneous, as we have held it to
be the trial court’s responsibility to determine what guilt-phase evidence is relevant
in the penalty phase. See State v. Getsy (1998), 84 Ohio St.3d 180, 201, 702 N.E.2d
866.
{¶ 139} Hale contends that this instruction was prejudicial because it allowed the
jury to consider guilt-phase evidence about the gunshot wounds. However, the
gunshot wounds were “neither irrelevant nor prejudicial to the penalty phase.” State
v. Lindsey (2000), 87 Ohio St.3d 479, 485, 721 N.E.2d 995. The execution-style
nature of the murder—four shots, at least three at close range, to the head—tends
to show prior calculation and design, which are elements of the felony-murder
aggravating circumstance. See State v. Campbell (2000), 90 Ohio St.3d 320, 330,
738 N.E.2d 1178. The wounds also disprove Hale’s story of a sexual assault by
Green, thus refuting the claimed mitigating factor of provocation. In any event, the
nature and circumstances of the offense are relevant and must be considered in the
penalty phase. See State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598,
paragraph one of the syllabus; State v. Hill (1996), 75 Ohio St.3d 195, 201, 661
N.E.2d 1068; State v. Fears (1999), 86 Ohio St.3d 329, 345, 715 N.E.2d 136,
quoting State v. DePew (1988), 38 Ohio St.3d 275, 282–283, 528 N.E.2d 542.
{¶ 140} In fact, practically all the guilt-phase evidence was relevant to the
aggravating circumstance, the nature and circumstances of the offense, or the claim
of provocation. Thus, the trial court’s instruction was not prejudicial. See State v.
Jones (2001), 91 Ohio St.3d 335, 350, 744 N.E.2d 1163.
Hale, 892 N.E.2d at 894–95.
The state court’s plain-error analysis of the first sub-claim did not address the evidentiary
issue under federal law and therefore must be reviewed de novo. AEDPA applies to the second
sub-claim. Regardless, under either standard of review, the claims lack merit.
113

Errors in jury instructions generally do not rise to the level of federal constitutional
violations. Federal habeas courts must determine “‘whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process’, not merely whether ‘the
instruction is undesirable, erroneous, or even universally condemned.’” Henderson v. Kibbe, 431
U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141,
147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). “‘[A] single instruction to a jury may not be judged
in artificial isolation, but must be viewed in the context of the overall charge.’” Boyde v. California,
494 U.S. 370, 378, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (quoting Cupp, 414 U.S. at 146–
47). If the instructions as a whole are ambiguous, the question is whether there is a “‘reasonable
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde, 494 U.S. at 380).
Hale first claims that the trial court’s curative instruction defining mitigation evidence
removed from the jury’s consideration relevant mitigating evidence. (Doc. No. 31 at 317.) Indeed,
the Ohio Supreme Court found this instruction erroneous under Ohio law. Hale, 892 N.E. 2d at
895. And, as Hale argues, “the Eighth and Fourteenth Amendments require that the sentencer . . .
not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett, 438 U.S. at (emphasis in original). However, as the state court
observed, any prejudice to Hale was remedied by the trial court’s correct instruction that one of
the mitigating factors to consider was “duress, coercion or strong provocation,” and Green’s
unwanted sexual advance was the precise “circumstance of the offense” that Hale presented as a
mitigating factor. (See Doc. No. 8-5 (Trial Tr.) at 747 (in closing argument, defense counsel asked
the jury to consider as a mitigating factor evidence from trial regarding “whether the victim
114

facilitated, induced or facilitated the offense, and whether the defendant acted under duress or
coercion or strong provocation”).) “[T]he ailing instruction by itself[,]” therefore, did not “so
infect[] the entire trial that the resulting conviction violate[d] due process[.]” Kibbe, 431 U.S. at
154 (citation omitted).
The second sub-claim fails for a similar reason. Hale argues that the trial court’s instruction
regarding the relevance of evidence admitted in the guilt phase improperly gave the jurors too
much discretion in determining what was relevant evidence to consider. (Doc. No. 31 at 317.) The
state court agreed with Hale but found no prejudice as “practically all the guilt-phase evidence was
relevant to the aggravating circumstance, the nature and circumstances of the offense, or the claim
of provocation.” Hale, 892 N.E.2d at 895. Hale refutes this finding by arguing that the jury could
have considered “Hale’s bad acts and bad character and erroneously admitted victim-impact
evidence.” (Doc. No. 31 at 321.) But this Court has already found no erroneously admitted victimimpact evidence, and it finds the state court reasonably concluded that Hale was not prejudiced by
the instruction given the evidence adduced at trial and the aggravating circumstances and
mitigating factors presented. This instruction, too, did not “so infect[] the entire trial that the
resulting conviction violate[d] due process[.]” Kibbe, 431 U.S. at 154 (internal parenthesis and
citation omitted).
Hale’s twelfth ground for relief is unfounded.
VIII. Sixteenth, Seventeenth, Nineteenth, and Twentieth Grounds for Relief: Trial-Court
Error/Sentencing
Hale claims for his sixteenth, seventeenth, nineteenth, and twentieth grounds for relief that
the trial court committed various errors in sentencing. Specifically, he alleges the trial court: (1)
improperly weighed each mitigation factor separately against the aggravating circumstance
115

(Ground Sixteen); (2) relied on an improper expert opinion (Ground Sixteen); (3) improperly
diminished relevant mitigating evidence (Ground Sixteen); (4) failed to specify why the statutory
aggravating circumstance outweighed the mitigating factors (Ground Sixteen); (5) was biased in
favor of death (Ground Seventeen); (6) imposed improper sentences for non-capital offenses
(Ground Nineteen); and (7) improperly imposed costs on an indigent defendant (Ground Twenty).
(Doc. No. 13 at 245–54; id. at 277–82.) Respondent contends these claims are procedurally
defaulted and/or meritless. (Doc. No. 17 at 127–33.)
A. Procedural Posture
Hale raised each of these seven sub-claims on direct appeal to the Ohio Supreme Court. See
Hale, 892 N.E.2d at 895–98, 908. Respondent concedes that Hale raised sub-claims 1 through 4,
as listed above, on direct appeal to the Ohio Supreme Court, which adjudicated them on the merits,
and therefore preserved them for federal habeas review. (Doc. No. 17 at 127.) The parties disagree,
however, about the procedural status of sub-claims 5 through 7.
Hale first asserted sub-claim 5, alleging judicial bias in sentencing, during his trial in an
affidavit of disqualification filed with the Ohio Supreme Court pursuant to Ohio Rev. Code
§ 2701.03. See In re Disqualification of Ambrose, 850 N.E.2d 722 (Mem.) (Ohio 2005) (Moyer,
C.J.). The chief justice reviewed the merits of the affidavit, which he has sole authority to do under
Section 5(C), Article IV of the Ohio Constitution, and denied it on July 11, 2005. (Id.) Hale then
raised the same claim on direct appeal to the Ohio Supreme Court, adding the factual allegation
that “[a]t least three times during voir dire, the trial court indicated to prospective jurors that if
they recommended death, the court would impose death.” (Doc. No. 7-3 at 244 (Merit Brief).) The
court noted the chief judge’s judgment denying Hale’s affidavit of disqualification on the ground
that “‘[i]solated remarks made by a judge near the end of a three- or four-week trial are not
116

sufficient to prove that the judge is biased or prejudiced.” Hale, 892 N.E.2d at 896. But it invoked
the res judicata bar to preclude a merits review of the claim, rejecting Hale’s “attempt to relitigate
a settled issue,” as the chief judge had already found no bias in the judge’s conduct at issue. Id.
Respondent argues that on direct appeal, the Ohio Supreme Court “essentially reiterated”
the chief judge’s judgment on the disqualification affidavit, conducting an “adjudication on the
merits” under AEDPA. (Doc. No. 17 at 129–30.) Hale contends the Ohio Supreme Court did not
adjudicate this claim on the merits at all but found it barred under the doctrine of res judicata on
direct appeal and AEDPA therefore does not apply. (Doc. No. 31 at 365–66.) Neither position is
persuasive.
Hale is correct that the Ohio Supreme Court on direct appeal invoked the res judicata bar to
preclude a merits review of this claim. But he is wrong that AEDPA does not apply to the claim.
Where a later state-court decision rests upon a prohibition against further state review, as the state
direct-appeal decision did here, that decision “neither rests upon procedural default nor lifts a preexisting procedural default, [and] its effect upon the availability of federal habeas is nil . . . .” Ylst,
501 U.S. at 804 n.3. Rather, habeas courts “look through” the later decision to the prior reasoned
state-court judgment. Id. at 805. Here, the prior reasoned state-court decision is the chief justice’s
judgment on Hale’s affidavit of disqualification. Hale’s claim of judicial bias in sentencing,
therefore, was adjudicated on the merits in state court and is preserved for federal habeas review,
as Respondent contends. But it is the earlier judgment to which AEDPA applies.
The parties also disagree about the procedural posture of sub-claim 6. Respondent argues
that that Hale defaulted sub-claim 6, regarding his non-capital sentencing, because the Ohio
Supreme Court found it forfeited, as he did not object at trial to the sentences under the then-new
Supreme Court case Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
117

(2004). (Doc. No. 17 at 131–32.) Hale counters that the claim was not barred on a “firmly
established and regularly followed” state procedural rule governing Blakely claims under Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), and is therefore not procedurally defaulted. (Doc. No.
31 at 450–51.) He argues that the Ohio Supreme Court remanded numerous cases for re-sentencing
after the court issued a decision following Blakely, State v. Foster, 845 N.E.2d 470 (Ohio 2006),
regardless of defendants’ waiver of the issue, citing as support an unreported Sixth Circuit opinion,
Smith v. Moore, 415 F. App’x 624, 628 (6th Cir. 2011). (Doc. No. 31 at 450.) Further, Hale asserts,
the State waived the procedural-default defense by agreeing on direct appeal that Hale was entitled
to a remand and resentencing under Blakely. (Id. at 451 (citing Doc. No. 7-3 at 72 (Reply to
Appellant’s Motion to Remand)).) Respondent replies that, as the warden, he was not a party to
Hale’s appeals and is not bound by any representations made in those proceedings. (Doc. No. 33
at 64–65.)
The Court need not reach this issue, however, because this claim is easily resolved on the
merits. See 28 U.S.C. § 2254(b)(2) (courts may deny unexhausted habeas petitions on the merits);
Lambrix, 520 U.S. at 525, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997) (courts may skip complicated
“procedural-bar issues” if the merits are “easily resolvable against the habeas petitioner”).
Finally, Respondent argues Hale procedurally defaulted sub-claim 7 because the Ohio
Supreme Court found it waived, as Hale failed to object to the alleged error at trial. (Doc. No. 17
at 131–32.) Hale does not dispute the default but contends he can demonstrate cause and prejudice
to excuse it through the ineffectiveness of counsel. (Doc. No. 31 at 457.) As will be shown below,
Hale’s ineffective-assistance claims themselves are either procedurally defaulted and/or meritless.
Sub-claim 7, therefore, is procedurally defaulted.

118

B. Merits Analysis
Challenges to a state court’s interpretation and application of state sentencing laws
generally are not cognizable in federal habeas corpus. See, e.g., Austin v. Jackson, 213 F.3d 298,
300 (6th Cir. 2000); Kipen v. Renico, 65 F. App’x 958, 959 (6th Cir. 2003). A trial court’s failure
to conform with Ohio law in rendering a sentencing opinion in a capital case may warrant relief in
federal habeas corpus only if the trial court’s errors “‘rise for some reason to the level of a denial
of rights protected by the United States Constitution.’” Hoffner, 622 F.3d at 495–96 (quoting
Barclay v. Florida, 463 U.S. 939, 957–58, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983)). Abuse of
discretion by a state-court judge does not necessarily violate federal constitutional law and, without
more, does not warrant habeas corpus relief. See Sinistaj v. Burt, 66 F.3d 804, 807–08 (6th Cir.
1995).
1.

Weighing mitigating factors separately (Ground Sixteen)

Hale argues that in its sentencing opinion, the trial court improperly weighed each
mitigation factor separately against the aggravating circumstance. (Doc. No. 13 at 246–47.)
The Ohio Supreme Court, in rejecting this claim, reasoned:
{¶ 150} In his 16th proposition of law, Hale contends that flaws in the trial court’s
sentencing opinion invalidate his death sentence. Hale’s principal claim is that the
trial court failed to weigh the mitigating factors collectively against the aggravating
circumstances. See State v. Bays (1999), 87 Ohio St.3d 15, 30, 716 N.E.2d 1126.
{¶ 151} In analyzing Hale’s history, character, and background evidence, the trial
court stated that the evidence deserved “some weight” but that its weight was
“not sufficient on its own to overcome the Aggravating Circumstance.” (Emphasis
added.) However, the court later stated that the love and support of Hale’s family
would not be considered under the R.C. 2929.04(B)(7) catchall provision because
“the Court previously considered this factor in mitigation and gave it some weight
when the Court considered the Defendant’s Character, Background and History.”
It appears from this passage that the trial court was trying to avoid giving double
weight to the love and support of Hale's family and that the court was weighing
history, character, and background together with the other factors. Thus, it is not
119

clear that the trial court failed to weigh the mitigating circumstances collectively.
Even if the trial court did make this mistake, our independent review will cure it.
See Bays, 87 Ohio St.3d at 30–31, 716 N.E.2d 1126.
Hale, 892 N.E.2d at 896–97.
Hale argues that AEDPA does not apply to this claim, or his other three claims challenging
the trial court’s sentencing opinion, because the Ohio Supreme Court did not consider his federal
constitutional claims, only his state-law claims. (Doc. No. 31 at 358–59.) A state court need not
cite any federal law, however, for its decision to be an “adjudication on the merits” for purposes
of § 2254(d). See Early, 537 U.S. at 8 (a state-court decision need not refer to relevant Supreme
Court cases or even demonstrate an awareness of them; it is sufficient that the result and reasoning
are consistent with Supreme Court precedent); Harrington, 562 U.S. at 99 (“When a federal claim
has been presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.”).
Alternatively, Hale asserts that by failing to evaluate the mitigating evidence, the trial
court’s sentencing decision misapplied Gregg v. Georgia, 428 U.S. 153, 96 L. Sc. 2909, 49 L. Ed.
2d 859 (1976), and Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
(Doc. No. 31 at 356–57.) He claims these decisions clearly establish that if a sentencer does not
act under the “guided discretion” of state law defining specifically enumerated sentencing factors
in sentencing a defendant to death, then the death sentence is arbitrary and void under the Eighth
and Fourteenth Amendments. (Id.) But these cases do not hold that if a trial court fails to apply a
state’s constitutional statutory capital sentencing scheme in every respect, then the resulting
sentence is unconstitutional. Rather, those cases established standards for state capital-sentencing
schemes. See McCleskey v. Kemp, 481 U.S. 279, 322, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)
120

(“Furman held that the death penalty may not be imposed under sentencing procedures that create
a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.”)
(internal quotation marks and citation omitted); Godfrey v. Georgia, 446 U.S. 420, 422–23, 100 S.
Ct. 1759, 64 L. Ed. 2d 398 (1980) (explaining Gregg held that Georgia’s capital sentencing statute
was not unconstitutional on its face). Gregg and Furman, therefore, do not constitute “clearly
established law” that would govern Hale’s claim under § 2254(d)(1). See Woods, 575 U.S. at 318
(cautioning habeas courts to avoid framing Supreme Court decisions “at too high a level of
generality” when identifying what a Supreme Court decision actually holds).
Moreover, as the Ohio Supreme Court noted, even if the trial court did err in the manner
Hale contends, and that error rose to the level of a due process violation, the court’s independent
review of the trial court’s sentencing determination cured it. See, e.g., Hoffner, 622 F.3d at 495–
96 (“Nonetheless, if a trial court considers unconstitutional aggravating factors, the Supreme Court
has held that this error can be cured by the state appellate court ‘independently ‘reweighing’
aggravating and mitigating factors and reaching a sentence without the consideration of the factors
found impermissible at the trial level.’”) (quoting Lundgren, 440 F.3d at 783 (citing Clemons v.
Mississippi, 494 U.S. 738, 740, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) and Ohio Rev. Code §
2929.05(A) (“The . . . supreme court . . . shall review and independently weigh all of the facts . . .
and consider the offense and the offender to determine whether the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating factors in the case, and whether
the sentence of death is appropriate.”))). This claim is meritless.
2.

Relying on expert opinion (Ground Sixteen)

The Ohio Supreme Court also considered Hale’s claim that the trial court improperly relied
on the blood-spatter testimony of Curtiss Jones, stating:
121

{¶ 152} Hale also faults the trial judge for relying on Curtiss Jones’s expert opinion
on blood-spatter evidence to support its finding that Green did not sexually assault
Hale. This claim essentially duplicates Hale’s tenth proposition of law, which we
have already rejected, and which we now reject again.
Hale, 892 N.E.2d at 897.
This Court, too, already has determined that Jones’ testimony regarding blood spatter was
properly admitted. The trial court, therefore, properly considered it in sentencing Hale. This claim
also fails.
3.

Diminished weight of adjustment to prison (Ground Sixteen)

Hale next complains that the trial court did not assign enough weight to the mitigating
factor of adjustment to prison. The Ohio Supreme Court reviewed this claim, stating:
{¶ 153} Next, Hale contends that the trial court “improperly diminished” the
mitigating weight of his adjustment to prison. However, a trial court need not accept
mitigating factors at the defendant’s proposed valuation; their weight is for the trial
court to determine. State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293.
See also State v. Fox (1994), 69 Ohio St.3d 183, 193, 631 N.E.2d 124; State v.
Wiles (1991), 59 Ohio St.3d 71, 91, 571 N.E.2d 97.
Hale, 892 N.E.2d at 897.
Hale argues that the state court misapplied Skipper v. South Carolina, 476 U.S. 1, 106 S.
Ct. 1669, 90 L. Ed. 2d 1 (1986), by “determining that Hale’s inability to adjust to free society
somehow lessened the importance of his ability to conduct himself appropriately in prison.” (Doc.
No. 31 at 355.) The trial court wrote in the sentencing opinion:
{¶ 44} Defendant’s ability to function as a productive person while in prison is
given little weight in mitigation. The institutional record produced by Defendant
during the Sentencing Phase indicates that the Defendant adjusted to prison during
past incarcerations. However, it is equally clear that Defendant’s pattern of criminal
behavior has escalated to a more serious crime with each offense and has now
culminated in murder. Therefore, minimal weight is given to this factor.
(Doc. No. 7-3 at 26.)
122

Skipper does not apply to Hale’s claim. The Supreme Court did not hold in that case that
the sentencer must accord prison adjustment “substantial weight” in capital sentencing as Hale
asserts. (Doc. No. 31 at 361.) Rather, Skipper held that if the defendant presents such evidence as
a mitigation factor, the trial court cannot exclude it. Skipper, 476 U.S. at 4. And here, the court
admitted the evidence and expressly considered it, although it reasonably found Hale’s escalating
violence undercut any assumptions about his future behavior based on prior conduct while
incarcerated. The Ohio Supreme Court reasonably concluded that the trial court acted within its
discretion in determining the weight to assign Hale’s proffered mitigation evidence of prison
adjustment, and its decision did not contravene or misapply clearly established Supreme Court
precedent.
4.

Insufficient explanation (Ground Sixteen)

Hale further challenges the trial court’s sentencing judgment on the ground that it provides
insufficient explanation. The Ohio Supreme Court overruled this challenge, as follows:
{¶ 154} Finally, Hale contends that the trial court failed to explain why the
aggravating circumstance outweighed the mitigating factors. We find that the
opinion as a whole adequately explains this issue. The trial court explained that
Hale's history, character, and background had some weight, but “there was also
testimony concerning aspects of [Hale’s] family life that were normal.” The court
further stated that Hale’s adjustment to prison deserved “minimal” weight because
of his pattern of escalating criminal behavior, culminating in murder. The court also
explained why no other mitigating factors deserved any weight.
{¶ 155} In any case, “inadequate explanations of the weighing process do not
constitute reversible error because any such error may be readily cured by this
court’s independent review.” State v. Keith (1997), 79 Ohio St.3d 514, 533, 684
N.E.2d 47. Hale’s 16th proposition of law is overruled.
Hale, 892 N.E.2d at 897.
This claim is meritless. There is no error here that rises to the level of a due process
violation. And, as the Ohio Supreme Court noted, any such error was readily cured by that court’s
123

independent review. See Tibbetts v. Bradshaw, 633 F.3d 436, 446 (6th Cir. 2011) (“Even
assuming, arguendo, that the state trial judge’s sentencing opinion failed to meet the requirements
of § 2929.03(F), [which governs a trial judge’s capital sentencing opinion,] the Ohio Supreme
Court’s independent consideration of the mitigating evidence allegedly ignored by the trial judge
cured any error.”) (citation omitted).
5.

Bias toward death (Ground Seventeen)

Hale also contends the trial court was biased in favor of a death sentence. (Doc. No. 31 at
362–67.) As explained above, the last reasoned state-court judgment on this claim is from the chief
justice of Ohio’s high court, upon review of Hale’s affidavit of disqualification. He ruled:
{¶ 1} Attorney John T. Martin—counsel for the defendant—has filed an affidavit
with the clerk of this court under R.C. 2701.03 seeking the disqualification of Judge
Dick Ambrose from acting on any further proceedings in case No. CR 454857 in
the Court of Common Pleas of Cuyahoga County.
{¶ 2} Martin alleges that Judge Ambrose has expressed a predisposition to impose
a death sentence on the defendant, who was recently tried on aggravated-murder
charges in the judge’s courtroom. The defendant has evidently been convicted by a
jury on those charges, and that jury has recommended a death sentence. When the
jury’s sentencing recommendation was received by the trial court on June 16, 2005,
Judge Ambrose said, “[T]he sentence of death shall be imposed upon the
Defendant. A sentencing hearing will be set in this case * * * to place that verdict
into effect. The Court will enter that verdict at that time.”
{¶ 3} The judge’s statement was improper, affiant Martin alleges, and shows that
the judge has already decided to impose a death sentence without first hearing a
statement from the defendant before a sentence is imposed.
{¶ 4} Judge Ambrose has responded to the affidavit, saying that his words were
“imprecise” and were “spoken in error” when the jury returned its verdict at the end
of the penalty phase of the trial. His words did not reflect his true intent, he states,
which is “to follow the law at all times” and to “review all of the evidence presented
during the sentencing phase before determining what sentence to impose.” The
judge explains that since receiving the jury’s recommendation, he has ordered a
complete transcript of the penalty-phase proceedings and has given defense counsel
an opportunity to file a sentencing memorandum addressing any mitigating factors
that might support a life sentence for the defendant.
124

{¶ 5} I find no basis for ordering the disqualification of Judge Ambrose. Both the
tone and content of his written response show that the judge is neither biased nor
prejudiced against the defendant. The affidavit cites no other grounds for the
judge’s removal except his brief remarks quoted above, and in fact the affidavit
notes that the judge earlier made other statements that could be perceived as
favorable to the defense. Isolated remarks made by a judge near the end of a threeor four-week trial are not sufficient to prove that the judge is biased or prejudiced.
And the remarks themselves were spoken in error and do not reflect his true
intentions, the judge contends.
{¶ 6} Given that defense counsel has cited no other words or conduct on the judge’s
part suggesting any bias or prejudice, given that the judge has readily acknowledged
his misstatement, and given that his conduct since June 16, 2005, suggests that he
is carefully weighing the jury’s sentencing recommendation and is taking very
seriously his own independent responsibility to weigh the aggravating
circumstances and mitigating factors before imposing a sentence, I find no reason
on the record before me to disqualify him from the case.
{¶ 7} As I have said, “[a] judge is presumed to follow the law and not to be biased,
and the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in this case.
{¶ 8} For the reasons stated above, the affidavit of disqualification is denied. The
case may proceed before Judge Ambrose.
In re Disqualification of Ambrose, 850 N.E.2d 722 at 722–723.
Due process requires a fair trial in a fair tribunal, before a judge with no actual bias against
the defendant or interest in the outcome of a particular case. Bracy v. Gramley, 520 U.S. 899, 904–
05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). “[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540,
555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994).

125

Hale assumes that if AEDPA applies to this claim, the Court would examine the decision
the Ohio Supreme Court issued on direct appeal. (Doc. No. 31 at 366–67.) And he asserts that that
court’s reliance on the chief justice’s decision and invocation of res judicata on direct appeal was
“unreasonable” because his claim before the court at that point included three additional
allegations that “[a]t least three times during voir dire, the trial court indicated to prospective jurors
that if they recommended death, the court would impose death.” (Doc. No. 7-3 at 244 (Merit Br.).)
Yet, on direct appeal, Hale maintains, the Ohio Supreme Court cited only the chief judge’s finding
that “‘[i]solated remarks made by a judge near the end of a three- or four-week trial are not
sufficient to prove that the judge is biased or prejudiced.’” Hale, 892 N.E.2d at 896 (quoting In re
Disqualification of Ambrose, 850 N.E.2d 722 (2005)).
But it is telling that the Ohio Supreme Court did not discuss Hale’s additional evidence on
direct review, as it was weak support for his claim and did not alter or strengthen it. Although Hale
only provides a page citation for these comments, the Court presumes they are:
(1)

And if that verdict was returned by the jury, and the Court would carry out
that sentence. So it is important that we know whether or not you would
have any religious, moral or conscientious objection to imposing the death
penalty . . . .

(2)

So if the aggravating circumstances outweigh the mitigating, in that second
phase, then death should be the verdict. And the Court will carry out that
sentence. You have to, you know, agree all 12 jurors would have to agree
on that, but then once that verdict is made, the Court will carry out that
sentence.

(3)

[If] you do enter [a death] verdict, then the Court will carry out that verdict,
so that is serious and that would be carried out.

(Respectively, Doc. No. 8-1 (Trial Tr.) at 771, 868; Doc. No. 8-2 (Trial Tr.) at 71.) In his merit
brief to the Ohio Supreme Court on direct review, Hale offered the most reasonable interpretation
of these remarks, stating: “At the time, defense counsel likely presumed that this was merely the
126

court impressing on the jury the significance and importance of their sentencing recommendation.”
(Doc. No. 7-3 at 244 (Merit Br.).) It was only in hindsight, he argued, that “those earlier statements
are more proof of the bias evidenced during the sentencing phase of Hale’s capital trial.” (Id.) The
remarks during voir dire do not demonstrate bias, either standing alone or in conjunction with the
judge’s remarks at sentencing.
Hale has not put forth any credible argument that the Ohio Supreme Court’s decision
denying his affidavit of disqualification was unreasonable in any respect, either by contravening
or misapplying clearly established Supreme Court precedent or by being based upon unreasonable
determinations of fact. Hale’s seventeenth ground for relief lacks merit.
6.

Sentencing for non-capital offenses (Ground Nineteen)

For his nineteenth ground for relief, Hale asserts that the trial court erred in sentencing on
his non-capital offenses. (Doc. No. 31 at 443-52.) The Ohio Supreme Court addressed this claim
on direct review, reasoning:
{¶ 241} In his second proposition of law, Hale contends that his sentences on
the noncapital offenses should be vacated, and his case remanded for resentencing
on those offenses, pursuant to our decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, following Blakely v. Washington (2004), 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. See also State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547. The state agrees that Hale’s case
should be remanded for resentencing on the noncapital crimes.
{¶ 242} However, Hale was sentenced on July 18, 2005. Although Blakely had
been decided the previous year, Hale did not raise a Blakely objection in the trial
court. Thus, he has forfeited this claim. See State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 31; State v. Frazier, 115 Ohio St.3d 139, 2007Ohio-5048, 873 N.E.2d 1263, ¶ 205.
{¶ 243} The noncapital sentences imposed in this case were not plain error.
“Nothing in the record suggests that the noncapital sentencing would have been
different if [the defendant] had been sentenced in accordance
with Blakely and Foster.” Frazier at ¶ 208. Accordingly, we overrule Hale’s
127

second proposition of law and, for the same reason, deny Hale’s motion to remand
for resentencing.
Hale, 892 N.E.2d at 907–08.
AEDPA applies to the state court’s plain-error analysis, which considered federal law. Hale
argues the Ohio Supreme Court’s decision was contrary to, and an unreasonable application of,
clearly established federal law. (Doc. No. 31 at 448–50.)
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the
Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. The Court broadened and clarified Apprendi in the
2004 case Blakely, 542 U.S. 296, holding:
[T]he “statutory maximum” for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant. In other words, the relevant “statutory maximum” is not
the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has not found all
the facts “which the law makes essential to the punishment,” and the judge exceeds
his proper authority.
Blakely, 542 U.S. at 304 (internal citations omitted) (emphasis in original).
The trial court sentenced Hale a year later, on July 18, 2005. The court recorded its
sentencing judgment in a journal entry, listing Hale’s convictions and sentences (Doc. No. 7-2 at
267), and the judge announced the sentences, along with his findings underpinning the sentences,
at a sentencing hearing that day. (Doc. No. 8-5 (Trial Tr.) at 815–28.) After stating his findings
and sentencing Hale to death on the merged counts of aggravated murder (see id. at 815–19, 825–
26), the court turned to Hale’s non-capital convictions—for aggravated robbery, tampering with
evidence, escape, and having a weapon while under disability. It found that Hale “committed the
128

worst form of the offense[s]” and was “on parole at the time of the offense[s],” and imposed the
maximum sentence for each, with the aggravated-robbery and escape sentences to run
consecutively. (Id. at 826–27.)
Seven months later, on February 27, 2006, the Ohio Supreme Court, in State v. Foster, 845
N.E.2d 470 (2006), held that Ohio’s non-capital sentencing scheme, under which Hale was
sentenced, violated Apprendi and Blakely in four areas. Id. at 494. The court reaffirmed the
principle that “‘[a]ny fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable doubt.’” Id. (quoting
United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)). And, of
relevance here, the court invalidated two sentencing statutes that the trial court applied in
sentencing Hale: Ohio Rev. Code § 2929.14(C), which required a judicial finding that “only those
offenders who committed the worst forms of the offense” before imposing a maximum sentence;
and Ohio Rev. Code § 2929.14(E)(4), which required a judicial finding that “the offender was
already under the control of the court due to an earlier conviction” before imposing consecutive
sentences. Id. at 490–91. In the future, the Ohio Supreme Court concluded in Foster, trial courts
would “have full discretion to impose a prison sentence within the statutory range and [were] no
longer required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Id. at 498. 20

20

In 2009, the Supreme Court changed course in Oregon v. Ice, 555 U.S. 160 (2009), holding that judicial fact-finding
for the imposition of consecutive sentences was constitutional. The Ohio Supreme Court followed suit. See State v.
Hodge, 941 N.E.2d 768, 769 (Ohio 2010) (“The jury-trial guarantee of the Sixth Amendment to the United States
Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to
imposing consecutive sentences.”) (citing Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009)
construed).

129

Hale argues that the trial court violated Foster and Blakely because it, not the jury, made
the prescribed factual findings under Ohio Rev. Code §§ 2929.14(C) and (E)(4) before imposing
maximum and consecutive sentences for his non-capital offenses. (Doc. No. 31 at 445.) And, he
contends, the Ohio Supreme Court on direct review unreasonably applied Blakely, the clearly
established law at the time of its decision in 2008, by finding any error in his non-capital sentencing
under Foster and Blakely harmless. (Id. at 449–50.) Hale notes that the Sixth Circuit has declined
to find a Blakely error harmless because, given the wide range of factors a sentencing judge now
may consider, it “‘simply [could not] know whether the sentencing judge would accord the relevant
factors the same weight when reassessing the matter outside the dictates of the severed
provisions.’” (Id. at 450 (quoting Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529, 539 (6th
Cir. 2010)).
The Ohio Supreme Court was correct to employ a harmless-error analysis to Hale’s Blakely
claim. In Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), the
Supreme Court held that a Blakely error from “[f]ailure to submit a sentencing factor to the jury,
like failure to submit an element to the jury, is not structural error.” Id. at 222. The Court stressed
that it has “repeatedly recognized that the commission of a constitutional error at trial alone does
not entitle a defendant to automatic reversal. Instead, ‘most constitutional errors can be
harmless.’” Id. at 218 (quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed.
2d 35 (1999)).
On habeas review, an error is harmful only if it had a “substantial and injurious effect”
upon the petitioner’s sentence, or if the court has “grave doubt” as to whether the error had such
an effect. Owens v. Parris, 932 F.3d 456, 459 (6th Cir. 2019) (quoting O’Neal v. McAninch, 513
U.S. 432, 435, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995)). And a habeas court may not grant relief
130

“if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas
relief is appropriate only if the [state court] applied harmless-error review in an ‘objectively
unreasonable’ manner.” Mitchell, 540 U.S. at 18 (quoting Lockyer, 538 U.S. at 65–77).
In Owens v. Parris, the Sixth Circuit held that, contrary to its earlier decision in Villagarcia,
which Hale cites as support, the “dispositive” question under Recuenco for a Blakely harmlesserror analysis is “‘whether the jury would have returned the same verdict absent the error[.]’”
Owens, 932 F.3d at 460 (quoting Recuenco, 548 U.S. at 221). Here, the Ohio Supreme Court
reasonably concluded that Hale’s sentence would not have been different even if his sentencing
had comported with Blakely. Given that Hale’s non-capital offenses—aggravated robbery,
tampering with evidence, escape, and having a weapon while under disability—were committed
in connection with an execution-style murder and disposed of his victim’s body in garbage bags,
it is reasonable to believe the jury would have found the crimes “the worst forms of the offenses.”
And the fact that Hale was on parole at the time of these offenses and therefore “already under the
control of the court due to an earlier conviction” was an easily verifiable fact, whether determined
by the court or jury upon sentencing. The Ohio Supreme Court, therefore, reasonably concluded
that the Blakely error in his sentencing was harmless, and its decision neither contravened nor
misapplied Blakely or Recuenco.
7.

Imposed court costs (Ground Twenty)

Hale asserts in his twentieth ground for relief that the trial court’s imposition of court costs
“violates the spirit of the Eighth Amendment.” (Doc. No. 13 at 281–82.) He raised this claim in
the Ohio Supreme Court on direct appeal, which determined:
{¶ 244} The trial court imposed court costs on Hale in the amount of $2,826.52.
Hale did not then object. Now, in his 17th proposition of law, he claims that he is
indigent and that assessing costs violates the “spirit” of the Eighth Amendment.
131

{¶ 245} Hale has waived this issue by failing to object. See State v. Threatt, 108
Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23 (indigent defendant’s motion
for waiver of costs must be made at time of sentencing). There was no plain
error. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393,
paragraphs one and two of the syllabus, holds that costs must be assessed against,
and may be collected from, indigent defendants, and Hale cites no authority to
support his “spirit-of-the-Eighth-Amendment” claim. Hale's 17th proposition of
law is overruled.
Hale, 892 N.E.2d at 908.
Hale has not presented any authority to support his claim that the Eighth Amendment
prohibits the collection of costs from an incarcerated and indigent defendant. (Doc. No. 31 at 453.)
And for good reason: This claim is not cognizable on habeas corpus review.
AEDPA grants district courts subject-matter jurisdiction “only for claims that a person ‘is
in custody in violation of the Constitution or laws or treaties of the United States.’” Dickerson v.
United States, 530 U.S. 428, 439 n.3, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (quoting 28 U.S.C.
§ 2254(a)). Generally, fines or restitution orders fall outside the scope of the federal habeas review
because they do not satisfy the “in custody” requirement of a cognizable habeas claim. Washington
v. McQuiggin, 529 F. App’x 766, 773 (6th Cir. 2013) (citing, among other cases, United States v.
Watroba, 56 F.3d 28 (6th Cir. 1995) (holding that § 2255 does not grant subject-matter jurisdiction
over restitution orders); and Michaels v. Hackel, 491 F. App’x 670, 671 (6th Cir. 2012) (stating
that a fine is not cognizable under § 2254 and citing Watroba, 56 F.3d at 29)). “‘[C]ollateral relief
from a noncustodial punishment, such as a fine or restitution order, is not made readily available
to a defendant just because he happens at that time to also be subject to custodial penalties.’” Id.
(quoting Brian R. Means, Federal Habeas Manual § 1:21 (2012 ed.)). A claim regarding a feerepayment order, for example, “falls outside of even ‘the margins of habeas,’ . . . because it is ‘not
a serious restraint on . . . liberty as to warrant habeas relief.’” Id. (quoting, respectively, Nelson v.
132

Campbell, 541 U.S. 637, 646, 124 S. Ct. 2117, 158 L. Ed. 2d 924 (2004) and Tinder v. Paula, 725
F.2d 801, 805 (1st Cir. 1984)). So, too, does Hale’s challenge to the trial court’s imposition of
court costs.
Hale’s twentieth ground for relief, therefore, is denied.
IX.

Third, Eleventh, and Eighteenth Grounds for Relief: Ineffective Assistance of Trial
Counsel
Hale asserts numerous claims of ineffective assistance of trial counsel in his third, eleventh,

and eighteenth grounds for relief, presenting them chronologically in three categories: voir dire,
guilt phase, and sentencing phase. (Doc. No. 13 at 110–22; 171–219; 255–76.) Combined, he
alleges trial counsel failed to: (1) challenge a juror’s racial bias (Ground Three); (2) challenge
impartial jurors for cause (Ground Three); (3) challenge a juror who knew the victim (Ground
Three); (4) rehabilitate “death-hesitant” jurors (Ground Three); (5) correctly state the law during
voir dire (Ground Three); (6) object to the trial court and prosecution’s misstatement of the law
during voir dire (Ground Three); (7) object to impartial panel of jurors and question potential
jurors about race (Ground Three); (8) ensure jurors understood aggravating circumstances (Ground
Three); (9) properly investigate the case and retain experts and witnesses on forensic sciences,
Hale’s background, and Hale’s activities shortly before the murder (Ground Eleven); (10) present
Hale’s testimony; (11) present a defense supported by law and evidence (Ground Eleven); (12)
effectively cross-examine State witnesses (Ground Eleven); (13) prevent introduction of evidence
of Hale’s prior incarceration (Ground Eleven); (14) effectively cross-examine Detective Baird
(Ground Eleven); (15) review records related to a State witness before she testified (Ground
Eleven); (16) opened the door to excluded information (Ground Eleven); (17) object to Hale’s
absence and waived his presence (Ground Eleven); (18) object to exclusion from review of witness
133

statements (Ground Eleven); (19) object to admission of gruesome photographs (Ground Eleven);
(20) object to improper expert testimony (Ground Eleven); (21) object to prosecutorial misconduct
(Ground Eleven); (22) properly investigate mitigating evidence (Ground Eighteen); (23) obtain
and present available mitigating evidence, including expert witnesses, lay witnesses, and parole
and prison records (Ground Eighteen); (24) interview the jury after the verdict (Ground Eighteen);
(25) object to victim-impact evidence admitted during the sentencing phase of trial (Ground
Eighteen); (26) object to instructional errors at the sentencing phase of trial (Ground Eighteen);
(27) object to unconstitutional non-capital sentences (Ground Eighteen); and (28) object to
imposition of costs (Ground Eighteen). (Id.)
Respondent contends these claims are procedurally defaulted and/or meritless. (Doc. No.
17 at 56–83.)
A.

Procedural Posture
1.

Claims preserved for habeas review

Hale raised in state courts sub-claims 3 through 6, 8, 11, 13 through 21, and 24 through 28,
as listed above, and they were adjudicated on the merits. (See Doc. No. 7-3 at 302–25 (Hale Direct
Appeal Merit Br.); Doc. No. 7-4 at 70–88 (PCR Petition).) Respondent argues, however, that of
those sub-claims 3 and 5 are partially procedurally defaulted because Hale added new factual
allegations or legal theories to the claims he presents here. (See Doc. No. 17 at 62, 64–65, 72–73.)
But the Court finds that Hale fairly presented the fundamental legal basis of those claims to state
courts “such that the ultimate question would have been the same despite variations in the legal
theory or factual allegations urged in its support.” Jells, 538 F.3d at 504 (citing Picard, 404 U.S.
at 277-78). These claims, therefore, are properly preserved for federal habeas review.

134

2.

Procedurally defaulted claims

Respondent contends that only one of Hale’s trial counsel ineffective-assistance claims,
the first, is entirely procedurally defaulted. (Doc. No. 17 at 59–60.) Sub-claim 1, as listed above,
relates to trial counsel’s failure to question and remove a juror whom Hale alleges was racially
biased. Hale never raised this claim in state court and no longer may do so. It is procedurally
defaulted.
Respondent further argues that claims 2, 7, 9, 10, 12, 22, and 23, as listed above, are
partially procedurally defaulted, again, because Hale added new factual allegations or legal
theories in his petition before this Court. (Doc. No. 17 at 61, 66, 71, 72–73, 76–77.) The Court
agrees. Petitioner is no longer able to raise the claims in state court due to Ohio’s filing deadlines,
post-conviction procedures, and res judicata rules. See Wong, 142 F.3d at 322 (“Under Ohio law,
the failure to raise on appeal a claim that appears on the face of the record constitutes a procedural
default under the State’s doctrine of res judicata.”); Perry, 226 N.E.2d at 108 (Ohio’s res judicata
rule precludes a defendant from raising for the first time in post-conviction proceedings a claim
that was fully litigated or could have been fully litigated at trial or on direct appeal.); Ohio R. Crim.
P. 33(B) (defendant may be entitled to new trial after deadline for filing motion for new trial if he
was “unavoidably prevented” from filing motion or there is “newly discovered evidence”); Ohio
Rev. Code § 2953.23(A)(1) (second, successive, or untimely post-conviction petition permitted if
petitioner shows: (1) that he was “unavoidably prevented from discovery of the facts” of the claim,
or the claim is based on a new federal or state right the Supreme Court has recognized that applies
retroactively; and (2) but for constitutional error at trial, no reasonable factfinder would have found
petitioner guilty of offense or eligible for death sentence). For the sake of clarity and brevity,

135

however, the Court will specify which sub-claims are procedurally defaulted and which are not in
connection with its merits analysis of the individual sub-claims.
3.

Cause and prejudice

Hale argues that any default of his trial counsel ineffective-assistance claims should be
excused for cause due to the ineffective assistance of his appellate and post-conviction counsel.
(Doc. No. 31 at 135–38; 282–83; 312–13; 423.) The Court disagrees.
To the extent that the defaulted ineffective-assistance claims arise from the trial record,
Hale would have had to raise them on direct appeal, but he did not. And, as will be explained in
greater detail in relation to Hale’s twenty-second ground for relief, Hale cannot establish cause for
the default of those claims through the ineffective assistance of his appellate counsel, because he
did not assert any appellate counsel ineffective-assistance claims in state court, so those claims
also are procedurally defaulted. Edwards, 529 U.S. at 453 (claims of ineffective assistance of
counsel cannot provide cause for the procedural default of another claim, if the ineffectiveassistance claim itself is procedurally defaulted).
For those trial counsel ineffective-assistance claims that are not record-based but rely on
evidence outside the record, Hale argues that the defaults should be excused by the ineffective
assistance of his post-conviction counsel. Defendants have no constitutional right to an attorney in
state post-conviction proceedings, and an attorney’s negligence in those proceedings, therefore,
generally cannot establish cause to excuse a habeas petitioner’s procedural default of claims in
state court. Coleman, 501 U.S. at 756-57; see also 28 U.S.C § 2254(i). In Martinez v. Ryan, 566
U.S. 1, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), however, the Supreme Court created a “narrow
exception” to Coleman, holding that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
136

assistance at trial.” Id. at 9. The Supreme Court recognized, “as an equitable matter, that the initialreview collateral proceeding, if undertaken without counsel, or with ineffective counsel, may not
have been sufficient to ensure that proper consideration was given to a substantial claim.” Id. at
14.
The following year, the Supreme Court clarified and expanded the Martinez exception in
Trevino v. Thaler, 569 U.S. 413, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). It explained that
under Martinez, federal habeas courts may find cause to excuse a petitioner’s procedural default
of a claim of ineffective assistance of trial counsel where: (1) the defaulted claim is “substantial”;
(2) the “cause” consists of there being “no counsel” or “ineffective” counsel in the state collateralreview proceeding; (3) the state collateral-review proceeding was the “initial” review of the claim;
and (4) state law required that ineffective-assistance-of-trial-counsel claims be raised in the first
instance in a collateral-review proceeding. Id. at 423. But the Court modified the fourth
requirement so that Martinez would apply to Texas’ procedural system, which “as a matter of its
structure, design, and operation[, did] not offer most defendants a meaningful opportunity to
present a claim of ineffective assistance of trial counsel on direct appeal.” Id. at 428.
The Sixth Circuit “[has] held that Martinez does not apply in Ohio because Ohio permits
ineffective-assistance-of-trial-counsel claims on direct appeal[,]” and, until recently, had
questioned whether Trevino applies to Ohio prisoners. Williams v. Mitchell, 792 F.3d 606, 615
(6th Cir. 2015); see also Hill v. Mitchell, 842 F.3d 910, 937 (6th Cir. 2016) (“We have yet to decide
whether Trevino applies in Ohio, but we have suggested it may not on multiple occasions.”)
(collecting cases); McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 752 (6th Cir. 2013)
(observing that Trevino’s application to Ohio cases was neither “obvious nor inevitable” as,
“[a]rguably, . . . the review of trial counsel ineffectiveness claims in Ohio is more ‘meaningful’
137

than in Texas, because in Ohio there is ‘ordinarily’ the availability of direct review with
constitutionally required counsel, with the back-up of collateral attack where evidence outside the
record is required”).
But in White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th Cir. 2019), the circuit court
applied the Martinez/Trevino exception to excuse the default of an Ohio prisoner’s ineffectiveassistance-of-trial-counsel claim. In that case, the petitioner’s appellate counsel had advised him
that the claim at issue could be adequately addressed on direct appeal, but the appellate court
determined that the claim needed factual development beyond the record and suggested it should
be raised in post-conviction proceedings. Id. at 272–74. By the time the appellate court issued its
opinion, however, the deadline to file a post-conviction petition had passed, and the prisoner had
no post-conviction counsel. Id. The circuit court held that, under those circumstances, Trevino
applied to the petitioner’s claim, because “[t]he confluence of Ohio’s general rule requiring the
presentation of ineffective-assistance claims on direct review unless the record lacks sufficient
evidence, the incorrect advice from [the prisoner’s] appellate counsel that his record did contain
sufficient evidence, and the tight procedural timeline imposed by Ohio’s post-conviction-relief
statute left [the pro se prisoner] without a ‘meaningful opportunity’ to obtain review of his
substantial ineffective-assistance claim.” Id. at 278 (citing Trevino, 569 U.S. at 428) (emphasis in
original).
Respondent argues that White applies only to its narrow set of facts and not to Hale’s
claims. (Doc. No. 33 at 36–37.) The Court agrees. Hale had both appellate and post-conviction
counsel in state court and does not allege that either set of attorneys failed to adhere to the proper
procedures for filing his trial counsel ineffective-assistance claims. In essence, he makes no
equitable argument that he was not provided a “meaningful opportunity” to obtain review of his
138

ineffective-assistance claims under Ohio’s procedural scheme—the premise of the Martinez,
Trevino, and White decisions. See Martinez, 566 U.S. at 14; Trevino, 569 U.S. at 428; White, 940
F.3d. at 278. Instead, he claims his appellate and post-conviction counsel were ineffective for
failing to raise his defaulted claims at all. The Court agrees with Respondent, therefore, that the
Martinez/Trevino exception does not apply here. See Statzer v. Marquis, No. 1:18-cv-626, 2020
WL 1510241, at *15 (S.D. Ohio March 30, 2020) (Merz, M.J.) (distinguishing White and finding
it did not apply to Ohio prisoner’s claim). 21
Nevertheless, even if the fourth prong of the Martinez/Trevino framework were satisfied
in this case, and the exception applied, it would not assist Hale. As discussed below, Hale’s
ineffective-assistance-of-trial-counsel claims are not strong enough to satisfy the exception’s first
requirement—that they are “substantial.”
B.

Merits Analysis

Although many of Hale’s ineffective-assistance claims are procedurally defaulted, each of
the claims also lacks merit.
The Supreme Court has long recognized the Sixth Amendment right to the effective
assistance of counsel at trial as a “bedrock principle in our justice system.” Martinez, 566 U.S. at
12; see also Gideon v. Wainwright, 372 U.S. 335, 342–44, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
The Court announced a two-prong test for claims of ineffective assistance of counsel in Strickland,
466 U.S. at 687. First, the petitioner must demonstrate that counsel’s errors were so egregious that

21

Supplemented, No. 1:18-cv-626, 2020 WL 4220463 (S.D. Ohio July 23, 2020), report and recommendation adopted
sub nom. Statzer v. Warden, Richland Corr. Inst., No. 2018-cv-626WOBMRM, 2020 WL 7029281 (S.D. Ohio Nov.
30, 2020), and report and recommendation adopted sub nom. Statzer v. Warden, Richland Corr. Inst., No. 2018-cv626WOBMRM, 2020 WL 7029281 (S.D. Ohio Nov. 30, 2020).

139

“counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687. To determine if counsel’s performance was “deficient” pursuant to Strickland, a
reviewing court must find that the representation fell “below an objective standard of
reasonableness.” Id. at 688. It must “reconstruct the circumstances of counsel’s challenged
conduct” and “evaluate the conduct from counsel’s perspective at the time.” Id. at 689.
Second, the petitioner must show that he was prejudiced by counsel’s errors. He must
demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.” Id. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. If a petitioner fails
to prove either deficiency or prejudice, his ineffective-assistance claim will fail. Id.
The Supreme Court has emphasized that “‘[s]urmounting Strickland’s high bar is never an
easy task.’” Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.
Ct. 1473, 176 L. Ed. 2d 284 (2010)). It has explained,
An ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial, and so the Strickland standard must
be applied with scrupulous care, lest intrusive post-trial inquiry threaten the
integrity of the very adversary process the right to counsel is meant to serve.
Id. (internal quotation marks and citations omitted). Thus, “[j]udicial scrutiny of a counsel’s
performance must be highly deferential” and “every effort [must] be made to eliminate the
distorting effects of hindsight . . . .” Strickland, 466 U.S. at 689. “Strickland specifically commands
that a court ‘must indulge [the] strong presumption’ that counsel ‘made all significant decisions in
the exercise of reasonable professional judgment,’” recognizing “‘the constitutionally protected

140

independence of counsel and . . . the wide latitude counsel must have in making tactical
decisions.’” Pinholster, 563 U.S. at 195–96 (quoting Strickland, 466 U.S. at 689).
The Supreme Court further has observed that the standards imposed by Strickland and
§ 2254(d) are both “highly deferential,” so that in applying them together, “review is ‘doubly’
so.” Harrington, 562 U.S. at 105 (internal quotation marks and citations omitted). It has
cautioned:
Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Id.
1.

Voir Dire (Sub-claims 1, 2, 3, 4, 5, 6, 7, and 8)

Juror No. 34. Hale claims that his trial counsel were ineffective in failing to strike or
challenge Juror No. 34, whom he contends exhibited racial bias in his voir dire responses. (Doc.
No. 31 at 110-11.) Hale did not present this claim to state courts, so this Court reviews the claim
de novo.
Trial counsel’s questioning during voir dire is presumed to be a matter of sound trial
strategy. See, e.g., Keith, 455 F.3d at 676 (noting the “particular deference” owed to counsel’s
decisions when conducting voir dire) (citing Hughes v. United States, 258 F.3d 453, 457 (6th Cir.
2001)); Stanford, 266 F.3d at 454 (“Stanford presents no evidence to counteract our presumption
that his counsel’s failure to ask life-qualifying questions during general voir dire constituted trial
strategy.”). And, here, this Court previously has found in relation to Hale’s second ground for
relief, that the record does not show that Juror No. 34 exhibited overt racial bias in his responses
to questioning during voir dire such that it was clear he could not perform his duties as a juror with
141

impartiality and in accordance with the court’s instructions. Hale’s counsel, therefore, did not
perform deficiently in failing to further question or strike this juror.
Juror Nos. 1, 4, 5, and 6. Hale also complains that his counsel should have challenged four
jurors who were “facially biased.” Hale never raised this claim as to Juror No. 6, so that claim is
procedurally defaulted and will be reviewed de novo. He presented the claim as to Juror Nos. 1, 4,
and 5 on direct appeal to the Ohio Supreme Court, and those claims are preserved for habeas
review. The Ohio Supreme Court addressed Hale’s claims as to Jurors Nos. 1, 4, and 5 as follows:
{¶ 206} . . . Hale contends that his counsel were ineffective because they did not
challenge jurors No. 4 and 5 for cause. Hale claims these jurors were automaticdeath-penalty jurors. However, the case for so regarding them was weak, as we
explain above in discussing Hale’s seventh proposition of law. It was therefore not
ineffective assistance to fail to challenge them.
* * *
{¶ 210} Hale contends that his counsel should have challenged juror No. 1 for cause
because she could not fairly consider all three possible life sentences. Juror No. 1
stated that she would be open to a sentence of life without parole, but “probably
would be against” anything less.
{¶ 211} But juror No. 1 also had strong leanings against capital punishment and
thus was a desirable juror for the defense. She said in her questionnaire that the
death penalty should be used only if there was “absolutely no doubt” of guilt. A
death sentence “would be very hard for [her] to agree to.” Her statements also reveal
her strong sense of the seriousness and finality of the decision: “[I]t's so final that
that's really a big decision to make.” “[I]t’s an incredibly serious undertaking.”
{¶ 212} In the penalty phase of a capital case, counsel’s primary objective is to
avoid a death sentence. Obtaining a life sentence with the possibility of parole, as
opposed to without it, is a secondary consideration. Thus, competent counsel could
make a reasonable tactical decision to accept a juror whose answers indicated a
strong reluctance to impose death, even though that reluctance may have come
packaged with a predisposition against parole. Juror No. 1 was such a juror, and
Hale’s counsel did not perform deficiently by accepting her.
Hale, 892 N.E.2d at 903–05.

142

Hale argues that the state court’s decision contravened and misapplied Supreme Court
precedent and was based on unreasonable determinations of fact. (Doc. No. 31 at 126.) But he does
not specify any basis for that claim, and this Court finds none. As the Ohio Supreme Court
explained, the record does not demonstrate that Jurors No. 1, 4, and 5 revealed during voir dire
that they would automatically impose the death penalty or not fairly consider the appropriate range
of sentences available for Hale’s offenses as instructed. The record shows the same regarding Juror
No. 6. Counsel, therefore, did not provide ineffective assistance in failing to remove Juror Nos. 1,
4, 5, and 6 from the jury.
Juror No. 7. Hale further complains that counsel should have challenged Juror No. 7, who
disclosed during voir dire that she knew the victim. Hale raised this claim on direct appeal to the
Ohio Supreme Court, which determined, as follows:
{¶ 207} Hale contends that his counsel should have challenged juror No. 7 for cause
because the juror knew the victim. Juror No. 7 remembered Green as an entertainer
who had been known locally when the juror was in her teens. However, juror No.
7 “didn’t know him personally.” Green was a “friend of a friend of a friend.” The
juror’s interaction with Green was limited to saying “Hello” or “[H]ow you doing?”
About three years before the trial, Green had sung at the wedding of the juror’s
brother, but the juror had been ill and did not remember him well. Juror No. 7 stated
that her acquaintance with Green would not affect her ability to be fair and
impartial.
{¶ 208} “There is no constitutional prohibition against jurors simply knowing the
parties involved or having knowledge of the case.” McQueen v. Scroggy (C.A.6,
1996), 99 F.3d 1302, 1320. Juror No. 7 testified that her slight acquaintance with
Green would not affect her impartiality, and her voir dire gives no reason to doubt
this. The relationship was distant and casual, not “close and ongoing” as in Wolfe
v. Brigano (C.A.6, 2000), 232 F.3d 499, 502. See Miller v. Francis (C.A.6, 2001),
269 F.3d 609, 618 (distinguishing Wolfe).
{¶ 209} Moreover, the defense had strong tactical reasons for wanting juror No. 7
to sit on the jury. Her religious beliefs emphasized that “thou shall not judge,” and
she believed her religion would deem it a sin to vote for a death sentence. In fact,
for this very reason, the prosecution repeatedly (but unsuccessfully) challenged
143

juror No. 7 for cause. Accordingly, defense counsel’s failure to challenge juror No.
7 was neither deficient nor prejudicial.
Hale, 892 N.E.2d at 903–04.
Hale contends this decision is “unreasonable.” (Doc. No. 31 at 126.) He does not, however,
identify any Supreme Court precedent the state court unreasonably applied. He challenges the
court’s reliance on the two Sixth Circuit cases, but those cases addressed the issue of juror bias
based on knowing a party, and the court reasonably looked to them for guidance. Hale also does
not identify any unreasonable determination of fact upon which the state court relied. He criticizes
the court’s observation that the juror “testified that her slight acquaintance with Green would not
affect her impartiality,” Hale, 892 N.E.2d at 903, as an insufficient basis for its conclusion that she
lacked bias. (Doc. No. 31 at 126–27.) But the state court cited many other remarks of the juror
during voir dire from which it assessed the closeness of her relationship with Green. See id. Hale
also asserts that the court unreasonably found defense counsel had a strong tactical reason for
wanting the juror seated on the jury when the juror made critical remarks about repeat offenders
during voir dire. (Doc. No. 31 at 127–28.) But Hale has not rebutted the “strong presumption” that
counsel “made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. This claim also fails.
Juror Nos. 8 and 41. Hale also faults his trial attorneys for not rehabilitating Jurors Nos. 8
and 41, who had expressed some hesitancy toward the death penalty during voir dire. (Doc. No.
31 at 128–29.) The Ohio Supreme Court reviewed this claim on direct appeal, stating:
{¶ 213} Hale contends that defense counsel should have tried to rehabilitate
prospective jurors No. 8, 28, and 41, each of whom was excused as unwilling to
consider a death sentence. Hale’s claim of prejudice is necessarily speculative,
because we cannot know whether these jurors could have been rehabilitated. Hale’s
trial counsel saw and heard the jurors respond to the voir dire questions; we did not.
144

We are therefore in no position to second-guess counsel on this point. See State v.
Bradley (1989), 42 Ohio St.3d 136, 143, 538 N.E.2d 373.
Hale, 892 N.E.2d at 904.
Hale again argues that the state court’s decision contravened and misapplied Supreme
Court precedent and was based on unreasonable determinations of fact. (Doc. No. 31 at 128.) He
argues the state court’s decision was contrary to Witt, 469 U.S. at 424, which established the
constitutional standard for challenging a juror for cause because of the juror’s views on the death
penalty, and an Ohio statute to the same effect, which he contends created a liberty interest under
Michigan v. Long, 463 U.S. 1032, 1038–42, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). (Doc. No.
31 at 129.) But neither of these decisions clearly established that the State may not challenge for
cause a potential juror who voices “[a]ny equivocations” about imposing the death penalty, as Hale
argues. (Doc. No. 31 at 129.) The Supreme Court in Witt held that the standard for such a challenge
“is whether the juror’s views would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’” Witt, 469 U.S. at 424. Indeed, the
Court explicitly noted that “this standard likewise does not require that a juror’s bias be proved
with ‘unmistakable clarity.’” Id. Moreover, neither case clearly established that defense counsel
has a duty to “rehabilitate” a venireperson who expresses some (reluctant) willingness to consider
capital punishment—which is the actual basis of this ineffective-assistance claim.
Hale also argues that the state court unreasonably deferred to counsel in evaluating the
jurors’ views on the death penalty when, according to him, the record was “clear” that trial counsel
were deficient in that respect. (Doc. No. 31 at 128.) As noted above, trial counsel’s questioning
during voir dire is presumed to be a matter of sound trial strategy. See, e.g., Keith, 455 F.3d at 676.
But the record shows that Juror No. 8 was in fact nearly unequivocal in her objection to the death
145

penalty. (See Doc. No. 8-1 (Trial Tr.) at 588–93.) And Juror No. 41 expressed views veering
between hesitancy toward the death penalty and strong support of it—surely not an attractive juror
for the defense. (See Doc. No. 8-2 (Trial Tr.) at 435–37, 448–50.) The Ohio Supreme Court
reasonably ruled, therefore, that it is entirely speculative as to whether these jurors even could be
“rehabilitated,” and Hale was not prejudiced by his counsel’s performance with regard to these
potential jurors.
Misstating Ohio law to the trial court. Hale next asserts that his trial counsel were
ineffective by misstating the law to the trial court during voir dire, which he alleges resulted in an
incorrect jury instruction. (Doc. No. 31 at 129–30.) The Ohio Supreme Court rejected this claim
on direct appeal, stating:
{¶ 214} Hale claims his trial counsel misstated the law to the trial judge during voir
dire. Trial counsel stated that in the penalty phase, the jury must initially consider
whether the aggravating circumstances outweigh the mitigating factors. But Hale’s
trial counsel correctly stated the law. See State v. Lindsey (2000), 87 Ohio St.3d
479, 487, 721 N.E.2d 995; State v. Brooks (1996), 75 Ohio St.3d 148, 162, 661
N.E.2d 1030 (when jury cannot unanimously agree on a death sentence, it must
move on to consider which life sentence is appropriate).
{¶ 215} There would have been no prejudice to Hale even if counsel’s statement
had been incorrect. No jurors were present when counsel made the statement at
issue, and Hale makes no claim that the trial court gave incorrect jury instructions
as a result of counsel’s alleged error.
Hale, 892 N.E.2d at 904.
Hale argues that the Ohio Supreme Court incorrectly found no error in his counsel’s
characterization of Ohio law regarding capital sentencing and made an unreasonable factual
determination regarding the trial court’s jury instruction on the law at issue, which incorporated
his counsel’s misstatement. (Doc. No. 31 at 129–30.) But “a state court’s interpretation of state
law, including one announced on direct appeal of the challenged conviction, binds a federal court
146

sitting in habeas corpus.” Bradshaw, 546 U.S. at 76 (citing Estelle, 502 U.S. at 67–68.). And Hale
cites no Supreme Court precedent that the state court contravened or misapplied. This claim is
meritless.
Misstating Ohio law to Juror No. 30. Hale further contends that his trial counsel performed
deficiently when both he and the trial judge misstated the law to Juror No. 30 regarding the burden
of proof in weighing mitigating factors and aggravating circumstances in capital sentencing. (Doc.
No 31 at 130.) He raised this claim on direct appeal to the Ohio Supreme Court, which found no
prejudice:
{¶ 216} Defense counsel did make an incorrect statement during the voir dire of
juror No. 30. Both the trial court and defense counsel incorrectly referred to the
mitigating factors outweighing the aggravating circumstances. However, in the
penalty phase, the trial court correctly instructed the jury that the state had the
burden of proving that the aggravating circumstances outweighed the mitigating
factors beyond a reasonable doubt. Thus, Hale was not prejudiced.
Hale, 892 N.E.2d at 904.
Hale claims the state court’s conclusion that Hale was not prejudiced by this misstatement
of law was an unreasonable determination of fact because the court “ignored the earlier
misstatements” and Juror No. 30 was seated. (Doc. No. 31 at 130.) This argument is too vague to
establish that the state court’s decision was unreasonable in any respect. The trial court’s correct
jury instruction on the law at issue precluded any prejudice to Hale from his counsel’s
misstatement. See, e.g., United States v. Carter, 236 F.3d 777, 787 (6th Cir. 2001) (“As a general
matter, juries are presumed to understand and follow directions from the court.”). This claim, too,
is unfounded.
Questioning venire about race. Hale also complains that his attorneys failed to question
the venire about race and to object to the prosecution’s questions on that topic. (Doc. No. 31 at
147

131.) Hale raised this claim on direct appeal as to counsel’s failure to question jurors but did not
present the assertion in state court as to counsel’s failure to object. A failure to object is an
independent and separate factual allegation from a failure to question and it constitutes a new
claim. The objection claim, therefore, is procedurally defaulted, and the Court will review it de
novo. The Ohio Supreme Court on direct review rejected Hale’s claim regarding counsel failure to
question the venire about race, as follows:
{¶ 217} Citing Turner v. Murray (1986), 476 U.S. 28, 36–37, 106 S.Ct. 1683, 90
L.Ed.2d 27, Hale contends that his counsel performed deficiently by failing to
question the jurors about racial bias. However, Turner has no application to this
case. Turner holds that a capital defendant accused of an interracial murder is
entitled, upon request, to have prospective jurors informed of the race of the victim
and questioned concerning racial bias. But this case does not involve an interracial
murder.
{¶ 218} And Turner held only that the defense was entitled to engage in racial-bias
inquiry, not that defense counsel must do so in order to effectively assist their client.
We have recognized that “the actual decision to voir dire on racial prejudice is a
choice best left to a capital defendant’s counsel,” State v. Smith (2000), 89 Ohio
St.3d 323, 327, 731 N.E.2d 645, and we normally defer to counsel’s judgment on
this question. Id. at 328, 731 N.E.2d 645.
{¶ 219} We decline to deviate from that practice here. There was no discernible
reason to ask about racial bias. This case did not involve an interracial murder, nor
did the evidence raise any racial issues. In State v. Watson (1991), 61 Ohio St.3d 1,
13, 572 N.E.2d 97, we held that defense counsel’s failure to examine racial attitudes
on voir dire was not ineffective assistance, even though Watson did involve an
interracial murder. Because the case did not involve any issue of “racial
confrontation,” defense counsel “could have properly determined that the
examination of jurors’ racial views * * * would be unwise.” Smith, 89 Ohio St.3d
at 328, 731 N.E.2d 645 (noting risks of examining racial prejudice on voir dire).
Hence, it was neither deficient performance nor prejudicial for counsel not to ask
racial-bias questions.
Hale, 892 N.E.2d at 904–05.
Hale contends this decision was contrary to clearly established Supreme Court precedent
and based on an unreasonable determination of the facts. (Doc. No. 31 at 131.) He argues the state
148

court “ignore[d] . . . that the prosecution injected the issue of race into voir dire through its
questioning” and should have responded by questioning the jurors because there was a “‘risk that
racial prejudice may have infected petitioner’s capital sentencing[.]” (Id. (quoting Turner, 476 U.S.
at 36 (alterations added).) But, again, Hale does not identify any Supreme Court precedent,
including Turner, that the Ohio Supreme Court misapplied or contravened in its decision. Nor does
he offer any evidence to rebut the presumption that his trial counsel employed sound trial strategy
in their decision not to question the potential jurors about race or to object to the prosecution’s
questioning on that issue. See Stojetz v. Ishee, 892 F.3d 175, 194–95 (6th Cir. 2018) (rejecting
petitioner’s per se ineffective-assistance claim based on trial counsel’s failure to ask venire
questions about racial attitudes). It is possible, for example, that counsel was concerned such
questions would be offensive to potential jurors or unlikely to actually uncover conscious or
unconscious bias. See Stanford, 266 F.3d at 454 (“The record is silent as to the rationale behind
[petitioner’s] counsel’s performance. Thus, we can do no more than speculate as to some of the
reasons why Stanford’s counsel might not have asked life-qualifying questions during general voir
dire.”). This claim also fails.
Ensuring venire understood aggravating circumstances. For his final sub-claim to his
claim of ineffective assistance of trial counsel during voir dire, Hale asserts that his attorneys were
ineffective for failing to ensure that the venire understood the meaning of aggravating
circumstances for purposes of capital sentencing. (Doc. No. 31 at 132.) He raised this claim on
direct appeal to the Ohio Supreme Court, which concluded:
{¶ 220} Hale contends that his counsel, during voir dire, failed to ensure that
prospective jurors understood the meaning of aggravating circumstances. In
essence, this issue recasts Hale’s sixth proposition of law as an ineffective-counsel
claim. However, because Hale does not contend that the penalty-phase instructions
were incorrect, no reason exists to believe that the jurors actually seated at trial
149

misunderstood the meaning of aggravating circumstances. Hale accordingly has
failed to show the prejudice requisite to an ineffective-assistance claim.
Hale, 892 N.E.2d at 905.
As this Court explained in relation to Hale’s second ground for relief, the Ohio Supreme
Court reasonably rejected Hale’s claim that the jurors’ remarks during voir dire demonstrated a
misunderstanding of the meaning of aggravating circumstances for purposes of capital sentencing
after being correctly instructed on the law by the court. It follows, therefore, that Hale, has not
shown that he was prejudiced by his counsel’s conduct in this respect, and the claim fails. See
Henness v. Bagley, 644 F.3d 308, 319 (6th Cir. 2011) (finding that because the petitioner had not
demonstrated that an underlying Fourth Amendment claim had merit, his related ineffectiveassistance-of-trial-counsel claim failed, along with the ineffective-assistance-of-appellate-counsel
claim) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305
(1986); Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)).
2.

Trial (Sub-claims 10, 11, 12, 13, 14, 15, 16, and 24)

Failure to present Hale’s testimony. Hale further complains that his trial counsel should
have permitted Hale to take the stand in his own defense but instead coerced him into not testifying.
(Doc. No. 31 at 278–82.) Hale acknowledges that he did not previously allege the coercion portion
of this claim. (Id. at 282.) It is therefore procedurally defaulted and will be reviewed de novo. The
Ohio Supreme Court addressed the remaining portion of the claim on direct appeal, stating:
{¶ 222} Hale claims his counsel erred by failing to call him to testify in his own
behalf. Hale contends that, in a self-defense case, it can never be sound trial strategy
to decline to present the defendant’s testimony.
{¶ 223} No such blanket statement can be made. “Representation is an art, and an
act or omission that is unprofessional in one case may be sound or even brilliant in
another.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. In this case,
by relying on Hale’s confession instead of his live testimony, Hale’s counsel were
150

able to present his story to the jury without subjecting him to cross-examination. In
view of the many weaknesses in Hale’s story, this defense strategy was reasonable.
Hale, 892 N.E.2d at 905.
Hale again contends the state court’s decision contravenes or misapplies Supreme Court
precedent and was based on an unreasonable determination of fact, without identifying one onpoint Supreme Court holding or factual dispute. (Doc. No. 31 at 281–82.) He contends “the need
for the jury to hear and see from [him] personally . . . clearly outweigh[ed] any concerns about
cross-examination.” (Doc. No. 31 at 282.) Yet aside from that conclusory assertion, he does not
explain why. As the state court reasonably concluded, Hale was able to present his account of the
events surrounding the murder and claim of self-defense through his statement, without the risk of
a grueling and potentially devastating cross-examination. Moreover, this Court already has found,
in relation to Hale’s seventh ground for relief, that Hale waived his right to testify by failing to
clearly inform the court in a timely fashion that he wished to do so or that he disagreed with his
counsel on the matter, and there was no evidence of coercion on the part of his attorneys. Defense
counsel’s strategic decision that Hale should not take the stand, therefore, did not fall “below an
objective standard of reasonableness,” and this claim fails. Strickland, 466 U.S. at 688.
Presenting a stronger defense. For his next claim, Hale argues that his trial counsel were
ineffective for arguing that no robbery occurred. (Doc. No. 31 at 283–84.) Hale raised this claim
on direct appeal to the Ohio Supreme Court, which concluded:
{¶ 226} Hale claims that his counsel, by arguing that Hale did not commit
aggravated robbery by taking Green's property after killing him, undermined their
credibility with the jury. This claim is inherently speculative and finds no support
in the record.
Hale, 892 N.E.2d at 906.

151

As the Strickland Court noted, “There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. And the Ohio Supreme Court reasonably determined
that this claim was inherently speculative – it is impossible to know how the jury assessed defense
counsel’s credibility or why – and Hale has not shown otherwise. This claim is also meritless.
Cross-examinations of Lashayla Hale and Ricardo Cuffari. Hale further asserts that his
counsel performed deficiently in their cross-examinations of his sister Lashayla and Green’s friend
Ricardo Cufffari. (Doc. No. 31 at 286–90.) He did not present this claim as to Cuffari in state court;
that claim, therefore is procedurally defaulted and will be reviewed de novo. Hale raised this claim
as to Lashayla in state post-conviction proceedings. The last court to address this issue was the
Ohio court of appeals, which determined, as follows:
{¶ 28} Hale argues that he discovered after the trial that his sister Lashayla was
threatened by the prosecutor that if she did not testify that their sickly father would
be called to testify instead. He claims that his defense counsel knew about this threat
and failed to cross-examine Lashayla regarding the threat. He claims this would
have shown that Lashayla was testifying under duress. He further states that
Lashayla’s testimony was prejudicial because she testified that Hale had a gun
several months prior to the murder. In support of this claim, he attached the affidavit
of his trial counsel who stated that she knew about the threat and that the failure to
question Lashayla about the threat was not the result of trial strategy.
{¶ 29} We do not see how defense counsel’s failure to question Lashayla about the
prosecutor’s threat was prejudicial to Hale. Lashayla appeared as a defense witness;
therefore, the prosecutor would have been able to cross-examine her regardless of
whether or not she testified for the state. Lashayla was also under subpoena and had
to testify. Thus, the trial court did not err by refusing to conduct a hearing based on
this evidence.
Hale, 2016 WL 4978449, at *5-6.
Hale argues the state court “made an unreasonable determination of facts by finding that
the defense calling Lashayla as a witness meant that there could be no deficiency in their cross152

examination of her” and by finding “that Lashayla’s subpoena erased any concerns about the
defense’s cross-examination of her . . . .” (Doc. No. 31 at 290.) But, factual or not, that is not what
the court stated. Rather, it concluded that cross-examination about the prosecution’s alleged threat
would not have helped Hale by lessening the impact of Layshala’s damaging testimony, as Hale
contends, because she appeared voluntarily for the defense anyway, and even if she had not, she
would have been compelled to testify under a subpoena. Hale’s claim that the “jury very well may
have discounted her testimony if they thought that she felt like she had to testify in a certain way
to protect her sick father from having to testify” is speculative. The Ohio court reasonably found
no “reasonable probability that, but for counsel’s [decision not to question Lashayla about the
prosecution’s alleged threat], the result of the proceeding would have been different.” Id. at 694.
Hale also argues that his trial counsel performed deficiently in failing to properly crossexamine Ricardo Cuffari, Green’s friend, about a telephone call Cuffari allegedly had with a police
officer. (Doc. No. 31 at 287–88.) Hale claims in his twenty-third ground for relief, however, that
the prosecution suppressed notes taken of this phone call, and he did not learn of the call until
2018. Counsel cannot be ineffective for failing to cross-examine a witness about something of
which they knew nothing. This claim is meritless.
Introducing evidence of prior incarceration. Hale also complains that his attorneys were
ineffective in introducing to the jury his entire written statement to police, in which he referenced
a prior criminal conviction and his twelve-year incarceration. (Doc. No. 31 at 292–94.) The Ohio
Supreme Court addressed this claim, as follows:
{¶ 224} Hale also contends that introducing his written statement, instead of his
live testimony, prejudiced him because the written statement mentioned that Hale
had served 12 years in prison. Hale admits that had he testified, his felony
conviction might have been introduced to impeach him. But he says that had he
testified, he could have explained that he had been sexually abused in prison, thus
153

explaining why he feared rape when he allegedly encountered Green nude on his
bed.
{¶ 225} But Hale ignores the fact that his written statement contains precisely the
information that he claims only his live testimony could have provided. Hale’s
statement says: “I not too long ago served 12 long years in prison and had fought
off unwanted advances before. I was prepared in prison though. You expected this
type of thing. No way in hell did I expect this out here.” (Emphasis added.) Thus,
Hale’s argument lacks merit.
Hale, 892 N.E.2d at 905–06.
Hale argues that the state court’s conclusion was unreasonable because the information
regarding his prior conviction and prison term may not have been permitted in impeachment had
he testified and defense counsel did not even attempt to use his prior prison term to his benefit by
placing it in the context of his history of sexual assault in his childhood and later in prison. (Doc.
No. 31 at 293–94.) But Hale’s argument is precisely the type of second-guessing of counsel with
its attendant “distorting effect[] of hindsight” the Supreme Court in Strickland cautioned against.
Strickland, 466 U.S. at 689. As noted above, the Ohio Supreme Court reasonably concluded that
it was sound trial strategy to use Hale’s statement rather than testimony to present his self-defense
theory to the jury, including any history of sexual assault in prison. This claim, too, fails.
Deficient cross-examination of Sergeant Baird. Hale contends his trial counsel performed
deficiently in their cross-examination of Sergeant Baird. (Doc. No. 31 at 294–98.) Hale raised this
claim on direct appeal to the Ohio Supreme Court, which reasoned:
{¶ 227} Hale contends that counsel, in cross-examining Sergeant Baird,
“improperly emphasized” Baird’s claim that he had told Hale that Green might be
bisexual, thus planting the idea of a sexual assault in Hale’s head. But the crossexamination was a matter of debatable trial tactics, which do not constitute
ineffective assistance. See State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d
35, 402 N.E.2d 1189.
Hale, 892 N.E.2d at 906.
154

Hale argues that the state court’s decision was “contrary to and an unreasonable application
of federal law.” (Doc. No. 31 at 297.) But he does not identify any Supreme Court precedent the
court misapplied or contravened. Indeed, as the state court noted, courts “generally entrust crossexamination techniques, like other matters of trial strategy, to the professional discretion
of counsel, and tactical decisions are not ineffective assistance of counsel simply because, in
retrospect, better tactics may have been available.” Sowell v. Collins, 557 F. Supp. 2d 843, 886
(S.D. Ohio 2008) (internal quotation marks and citation omitted).
Hale also claims there is “no identifiable strategic reason” for eliciting Baird’s testimony
that he told Hale that Green might have been bisexual. (Doc. No. 31 at 297–98.) The Court does
not agree. Baird testified on cross-examination that before Hale wrote out his statement, he told
Hale that the police department “had reason to believe that Mr. Green was possibly bisexual and
that if this was a case of self-defense, then that would be understandable if he felt that Mr. Green
had attacked him.” (Doc. No. 8-3 (Trial Tr.) at 494.) When the prosecution questioned him
moments later on redirect examination, Baird acknowledged again what he told Hale about Green.
(Id. at 495.) He then explained that he was “giving the defendant a straw, something to grab on
to[,]” which worked, because Hale then “began to speak to me and gave me the confession.” (Id.
at 495–96.)
Baird’s testimony was double-edged. The jury may have concluded from this testimony,
as Hale argues, that the detective planted the idea of self-defense with Hale before Hale wrote his
statement, undercutting Hale’s self-defense claim. But the jury also may have found this
information, coming from a police sergeant, strong corroboration of Hale’s story. Moreover, the
value of the testimony for the defense may explain why the prosecution did not question Baird
about this on direct examination and did not suggest during redirect examination of Baird that the
155

statement was untruthful or that Hale appeared to be just following Baird’s lead in his account of
the shooting. Defense counsel’s cross-examination of Baird, therefore, did not amount to
constitutional ineffective assistance.
Reviewing records while witness testified. Hale further asserts that his counsel were
ineffective because they reviewed criminal records relating to a State witness (a lodge housekeeper
who knocked on Hale’s room door and briefly spoke to him) while she testified because the State
produced the records just before she took the stand. (Doc. No. 31 at 304 (citing Doc. No. 8-3 (Trial
Tr.) at 181.) The Ohio Supreme Court, in reviewing this claim on direct appeal, rejected the claim
because “Hale fail[ed] to identify any resulting prejudice.” Hale, 892 N.E.2d at 906.
Hale claims that this decision unreasonably applies United States v. Cronic, 466 U.S. 648,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which held that courts may presume that a defendant
has suffered unconstitutional prejudice if he “is denied counsel at a critical stage of his trial.” Id.
at 659. But Hale has not established that he was denied assistance of counsel during the witnesses’
testimony. Defense agreed to proceed with her testimony as a courtesy to the court to avoid further
delay and under the condition that if she denied anything in the records, they would have a recess
to inquire further into the matter. (Doc. No. 8-3 (Trial Tr.) at 183–84.) Counsel then crossexamined this witness extensively about her criminal record. (Id. at 193–98.) It also is worth noting
that Hale had three attorneys representing him at trial; it is doubtful he was ever entirely without
attentive counsel during the witness’ testimony. Cronic does not apply here. The Ohio Supreme
Court reasonably found no prejudice in counsel’s performance at issue here, and this claim is
denied.
Permitting introduction of damaging evidence. Hale contends his trial counsel performed
deficiently while cross-examining Sergeant Pestak by “opening the door” to incriminating
156

evidence that had been excluded—evidence of bounced checks and post-interrogation oral
statements recorded in a report of Sergeant Baird, including Hale’s statement that he threw away
the gun and some of Green’s belongings. (Doc. No. 31 at 301–03.) On direct appeal, the Ohio
Supreme Court found “these alleged errors were not prejudicial in light of overwhelming evidence
of Hale’s guilt.”
Arguably, Hale’s counsel’s performance in cross-examining Pestak “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. But the state court reasonably
concluded that, given the strong evidence of Hale’s guilt, these errors were not prejudicial. Hale
has not demonstrated that if his attorneys had not allowed that evidence to be introduced, there
was a “reasonable probability that . . . the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. This claim also fails.
Interviewing the jury after the guilt phase of trial. In this sub-claim, Hale contends his
counsel should have interviewed the jury after their verdict and discharge. (Doc. No. 31 at 435–
37.) The Ohio Supreme Court rejected this claim on direct appeal, stating:
{¶ 230} . . . After the guilt-phase verdicts, the trial court released the jurors from
sequestration and stated that they were “discharged.” However, the court asked
them to remain for further instructions. Those instructions informed the jurors that
they were “still jurors on this case” and that they must continue to obey the court’s
instructions not to discuss the case with anyone and not to watch newscasts or read
newspapers.
{¶ 231} Hale contends that because the jurors had been “discharged” after the guilt
phase, his trial counsel should have requested a voir dire of the jury before the
penalty phase to ensure that they had not discussed the case in the interim. See
generally Remmer v. United States (1954), 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed.
654. However, a Remmer hearing is required only “when the trial court learns of
‘private communication, contact, or tampering * * * with a juror during a trial about
the matter pending before the jury.’” State v. Johnson, 112 Ohio St.3d 210, 2006Ohio-6404, 858 N.E.2d 1144, ¶ 263, quoting Remmer, 347 U.S. at 229, 74 S.Ct.
450, 98 L.Ed. 654. In this case, there was no allegation that any such contact
occurred. Nor does the trial court’s use of the word “discharged” justify the
157

supposition that the jurors discussed the case between the guilt and penalty phases.
There was thus no reason for counsel to ask for a voir dire.
Hale, 892 N.E.2d at 906.
Hale argues that the state court did not respond to his true claim that his counsel “failed to
even try to protect Hale’s constitutional right to an impartial and indifferent jury by questioning
the jurors to ensure that they were not improperly influenced during this period of discharge.”
(Doc. No. 31 at 437.) Even under Hale’s characterization of his claim, it fails. Hale offers no
evidence that he was prejudiced by his attorney’s omission—namely, proof that the jury was
improperly contacted or influenced during the time between their verdict and the sentencing phase
of trial. This claim is meritless.
3.

Investigation and experts (Sub-claims 9, 22, and 23)

Hale claims that his trial counsel did not conduct adequate investigations for either the guilt
or sentencing phases of trial, retain the necessary experts, or obtain and present available evidence.
(Doc. No. 13 at 171–219; 255–76.) Specifically, Hale alleges that his attorneys performed
deficiently during the guilt phase of trial because they did not: (1) retain experts in forensic
pathology, prison conditions, bloodstain pattern analysis and gunshot residue, crime scenes and
crime-scene reconstruction, and sexual abuse and trauma; (2) investigate Green’s background and
discover corroborating witness Steven Key and the fact that Green may have been suicidal before
his death; and (3) investigate Hale’s activities in the weeks before Green’s death and discover
Hale’s parole records and financial information. (Doc. No. 31 at 235.) And he asserts that for the
sentencing phase of trial, they failed to: (1) retain experts in forensic psychiatry, sexual abuse and
assault, prison conditions, and substance abuse; (2) sufficiently interview his sisters and present
lay witness Steven Key; and (3) obtain his parole and prison records. (Id. at 377–99.)
158

Hale raised a claim of ineffective assistance of trial counsel related to their investigation
and preparation for the sentencing phase of trial on direct appeal to the Ohio Supreme Court. He
claimed that they should have called more witnesses and better supervised and prepared their
witness Dr. John Fabian, a psychologist. See Hale, 892 N.E.2d at 907. The court rejected the claim
as speculative. Id. Hale again raised an ineffective-assistance claim related to guilt-and sentencingphase investigation in state post-conviction proceedings, asserting that counsel failed to: (1) retain
experts in crime scenes, prison conditions, substance abuse, neurology, and culture; and (2) present
lay witness Steven Key. See Hale, 2016 WL 4978449, at *2–7. The last state court to review the
post-conviction claims, the state appellate court, adjudicated the claims on the merits without an
evidentiary hearing. Id. These claims are ripe for habeas review.
Hale concedes that he did not raise in state court the remaining claims, alleging counsel
were ineffective for failing to: (1) hire experts in forensic pathology, bloodstain pattern analysis,
forensic psychiatry, and sexual abuse and trauma; (2) discover Green’s alleged suicidal condition
before his murder; and (3) obtain parole and prison records. (See Doc. No. 31 at 312.) The court
reviews those claims de novo.
a.

State post-conviction claims/guilt phase

Crime-scene expert. The state post-conviction appellate court rejected Hale’s claim that
trial counsel should have hired a crime scene reconstructionist for the guilt phase of trial,
reasoning:
{¶ 30} Hale argues that the trial court erred by not finding merit to his claim that
counsel was ineffective for failing to retain a crime scene expert to refute the
forensic evidence presented by the state. Attached to Hale’s petition in support of
this argument was the affidavit of Gary Rini, who opined that the evidence could
be viewed as being consistent with Hale’s story that he shot Green to stop his sexual
advances. Although the trial court held that res judicata prevented this claim
because the Ohio Supreme Court in Hale’s direct appeal held that the failure to hire
159

a crime scene expert was speculative, Hale at that time of the direct appeal, did not
have Rini’s expert opinion, which is dehors the record. Although the trial court
erred by concluding res judicata prevented the claim, we agree that the evidence
did not support the claim.
{¶ 31} Hale stated in his statement to detectives that the victim, while seated at the
foot of the bed, grabbed both of his wrists and laid his head in Hale’s crotch area.
Hale then allegedly freed his right wrist, reached into the bag of the victim and
grabbed the gun from the bag and placed it near the victim’s head. The victim told
him it was not loaded. Hale stated he pulled the trigger and the victim “reeled back
still gripping my wrist.” Hale fired the gun again while backing away toward the
mirror. He was not sure whether Green was incapacitated, so he retrieved some
bullets from the victim’s bag and reloaded the gun. When the victim again
attempted to stand, he fired “once or twice again.”
{¶ 32} According to the state’s forensic witnesses at trial, the bullet wounds showed
an execution style killing with three out of the four gunshots being clear contact
wounds to the right side of Green’s head in the area behind the ear. Because Hale
is right handed, the victim had to be standing facing forward with Hale behind him
or facing forward with Hale to his right. Both of these positions indicate an
execution-style killing. Green also had gunshot residue to his right hand, indicating
he lifted his hand to protect himself when the shots were fired. Hale had claimed
that Green was at the foot of the bed when he shot him, but a circular spot of blood
was found on the head board showing the origin was no more than three to four feet
from the headboard.
{¶ 33} The pathologist also testified that at least three of the four gunshot wounds
would have immediately rendered the victim incapacitated. This conflicts with
Hale’s statement in which he stated that he shot the victim two times and that as the
victim got up from the bed he grabbed a handful of bullets, reloaded the gun, and
shot him two more times. There is no way that the victim could have been moving
towards Hale due to the incapacitating shots.
{¶ 34} Hale contends that Rini’s expert report supports his statement to police that
he acted in self-defense. Rini claimed that “the state did not take into account the
possibility that, while seated at the edge of the bed, the decedent could have turned
his head down and to his left, thereby exposing the right side of his head to a right
handed shooter.” While this would account for the location of the entrance wounds,
the evidence showed the bullets traveled towards the front of Green’s head, not
straight to the other side. So Green’s head would have to be turned so far to the left
that he was facing away from Green. Hale stated that Green attempted to stand up
and advance toward him when he fired the last two shots. Thus, he would have been
facing towards Green, not away from Green. Rini also fails to address how the
gunshot residue got onto Green’s right hand. Thus, because Rini’s expert report
160

does not refute the state’s evidence, counsel was not ineffective for failing to retain
him and there was no reason for the trial court to conduct an evidentiary hearing.
Hale, 2016 WL 4978449, at *6-7.
Hale argues the state appellate court based its conclusion that “Rini’s expert report does
not refute the state’s evidence” on three unreasonable determinations of fact (Doc. No. 31 at 255–
58): (1) the court’s characterization of Hale’s statement as attesting that, after being shot twice,
Green “got up from the bed” and “advanced toward” Hale, “facing forward,” before Hale fired
again, when Hale wrote only that when Green “attempted to stand, I fired again once or twice”;
(2) the court found that Rini “fail[ed] to address how the gunshot residue got onto Green’s right
hand,” when Rini addressed that issue in his report; and (3) the court noted that the State’s blood
spatter evidence demonstrated that Green could not have been at the foot of the bed when Hale
shot him, as Hale maintained, because a circular spot of blood found on the headboard indicated
Green was no more than three to four feet away, but the court did not acknowledge Rini’s
interpretation of the blood evidence. (Id. (citing Doc. No. 7-10 at 4 (Hale Statement); Doc. No. 75 at 219–23 (Rini Rpt.)).)
Two of Hale’s claims of factual error are unfounded. The court correctly noted that Rini’s
report does not include an analysis of the gunshot residue on Green’s hand. And the court’s
omission in its analysis of the expert’s opinion regarding the blood spatter was not a factual
finding, much less an error. Rini’s conclusion about the bloodstain evidence was based on his
hypothesis that Green’s head was faced down and to the left, which the court addressed and
rejected. (See Doc. No. 7-5 at 222 (Rini Rpt.).)
Hale is correct, however, that the state court mischaracterized his account of the shooting.
The court stated that after Hale shot Green twice, Green “got up from the bed” and was “moving
161

toward him,” when Hale only said that Green “attempted to stand.” (Doc. No. 7-10 at 4 (Hale
Statement).) But “it is not enough for the petitioner to show some unreasonable determination of
fact; rather, the petitioner must show that the resulting state court decision was ‘based on’ that
unreasonable determination.” Rice, 660 F.3d at 250. Rini wrote that the focus of his report was
“[w]hether the sequence of the gunshots, as described by Hale, can be supported by the physical
evidence, and if the bloodstain patterns found on the head board could be produced as the result
of Green being shot in the head while seated at the foot of the bed.” (See Doc. No. 7-5 at 222 (Rini
Rpt.).) Rini did not contest in his report the rest of the State’s forensic and autopsy evidence, which
was straightforward and damaging to the defense. As the Ohio Supreme Court summarized:
An autopsy disclosed that Green had been shot four times in the right side of the
head. Two shots went into Green’s right ear, one entered his skull directly behind
the ear, and one entered about two and one-half inches behind the ear. Three of the
four shots entered Green’s brain. Any one of these three wounds would have
immediately stopped any voluntary movement on Green’s part. Three of the
wounds were contact wounds, meaning that the shots were fired from no more than
an inch away.
Hale, 892 N.E.2d at 878. Thus, the court reasonably concluded that Rini did not effectively “refute
the state’s evidence” based on the entirety of the State’s forensic evidence, not just the State’s
evidence refuting certain details of Hale’s statement, such as Green’s position on the bed when he
was shot. And, therefore, there was no “reasonable probability that [if Hale’s trial counsel had
presented a crime-scene expert such as Rini,] the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
Prison-conditions expert. Hale also asserted in state post-conviction proceedings that his
attorneys should have hired a prison expert, such as Clemens Bartollas, for both the guilt and
sentencing phases of trial. In rejecting this claim, the state appellate court stated:

162

{¶ 16} A review of Dr. Bartollas’s affidavit shows that it mostly consists of general
statements regarding prison conditions in Ohio and around the country as related to
sexual assaults. He concluded, based on a one-hour telephone conversation with
Hale, that Hale suffered from post traumatic stress disorder from his time
previously spent in prison. Hale told him that during that time he was pressured for
sex, but was admittedly never sexually assaulted in prison. Because most of
Bartollas’s information deals with sexual assault in prison, it is not directly relevant
to Hale because Hale was not sexually assaulted in prison.
{¶ 17} A review of Dr. Fabian’s testimony at trial shows he interviewed Hale for
eight hours. Dr. Fabian acknowledged that prison life is violent and that during his
time in prison, Hale was confronted with “stressors.” The fact that Dr. Bartollas
provided more general information than Dr. Fabian regarding violence in prison
did not result in prejudice. Although Dr. Fabian did not discuss sexual assaults in
prison, Hale was not sexually assaulted in prison. Dr. Fabian, however, stressed
that the sexual abuse that Hale suffered as a child may have caused him to react
violently if Green did make sexual advances toward him.
Hale, 2016 WL 4978449, at *3. The court further stated that it rejected Hale’s arguments regarding
the value of Dr. Bartollas’ testimony for mitigation purposes for the same reasons, stressing that
trial counsel was not ineffective in not having him testify “regarding Hale’s prior sexual assaults
in prison” when there was no evidence that Hale was actually sexually assaulted in prison. Hale,
2016 WL 4978449, at *7.
Hale contends the state court’s decision also was based on several unreasonable
determinations of fact. (Doc. No. 31 at 264–66.) In essence, he argues the court did not fully
examine Dr. Bartollas’ affidavit, which explained how Hale’s “entire prison experience, including
numerous violent assault threats, and the witnessing of rapes, had given him [post-traumatic
syndrome]” and affected his state of mind at the time of the murder. (Id. at 264–65 (citing Doc.
No. 7-5 at 127–37 (Bartollas Aff.) (emphasis in original)).) The appellate court, however,
addressed many of these issues in its decision, and the court’s failure to address any particular
argument raised is not factual error.

163

As to counsel failing to presenting this type of expert at the guilt phase, “expert testimony
discussing [Hale’s] mental state, seeking to explain his behavior, or putting it in some favorable
context [may] have exposed [him] to [damaging rebuttal] evidence.” Wong v. Belmontes, 558 U.S.
15, 24, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009); see also Strickland, 466 U.S. at 699 (“Restricting
testimony on respondent’s character to what had come in at the plea colloquy ensured that contrary
character and psychological evidence and respondent’s criminal history, which counsel had
successfully moved to exclude, would not come in.”). This was sound trial strategy.
In regard to counsel’s failure to present this type of expert at the sentencing phase, the state
court reasonably found Dr. Bartollas’ testimony would have been cumulative to Dr. Fabian’s
testimony, as Bartollas’ affidavit contained more general information and less information relevant
to Hale. To demonstrate prejudice, a petitioner must show that any new evidence differs “in a
substantial way—in strength and subject matter—from the evidence actually presented at
sentencing.” Eley v. Bagley, 604 F.3d 958, 968 (6th Cir. 2010) (internal quotation marks and
citation omitted). And the “failure to present additional mitigating evidence that is merely
cumulative of that already presented does not rise to the level of a constitutional violation.” Id.
(internal quotation marks and citation omitted).
Steven Key. Hale also argued on post-conviction that his trial counsel should have
uncovered and presented the testimony of Steven Key, a corrections officer in the jail where Hale
was incarcerated during trial and who was friends with Hale as a child. (Doc. No. 31 at 393–94.)
The state appellate court rejected this claim, as follows:
{¶ 23} Hale also contends that the trial court erred by not granting an evidentiary
hearing based on the affidavit of Stephen Key that he attached to his petition. He
argued that Key’s testimony would have bolstered Hale’s statement to police that
the victim made sexual advances on him, which provoked Hale into shooting him.
Hale argued that Key’s position as a correction officer would have made him a
164

credible witness. In the affidavit, Key averred that the victim approached him
several times to come to his studio to audition to sing, which was odd because Key
did not sing. Key stated that every time he saw Green, Green “seemed to be hitting
on me” and that he thought he was “very aggressive.”
{¶ 24} . . . Hale’s contention that the victim provoked the murder was refuted by
the physical evidence, as we will discuss in more detail later. Moreover, the jury
was already aware that the victim had raped another man by forcefully performing
oral sex on him. Thus, the fact he “hit on Key” would not have added to his defense.
Also, although Key was a corrections officer, he also admitted that he and Hale
went to school together when they were children.
Hale, 2016 WL 4978449, at *4–5. The court further stated that it rejected Hale’s arguments
regarding the value of Key’s testimony for mitigation purposes for the same reasons. Id. at *7.
Hale argues this decision was unreasonable on several counts, including: his self-defense
claim was not refuted by the physical evidence; the facts of Green’s prior conviction were disputed;
and Key’s testimony was new corroborative evidence of how he met Green and refuted evidence
at trial that Green did not approach people in this manner. (Doc. No. 31 at 421–23.) This does not
satisfy Strickland’s burden. The state court reasonably concluded that due to the evidence of
Green’s conviction already before the jury and Key’s relationship with Hale, there is not a
reasonable probability that if defense counsel had presented Kay as a witness in either the guilt or
sentencing phases, the result of the trial would have been different.
b.

State post-conviction claims/sentencing phase

The Ohio Supreme Court provided this summary of the evidence Hale introduced at the
sentencing phase of his trial:
{¶ 250} In the penalty phase, Hale introduced testimony from his three sisters and
from Dr. John Fabian, a forensic and clinical psychologist. Hale also made an
unsworn statement.
{¶ 251} The defense witnesses testified extensively regarding Hale’s family and
childhood. Hale was born in 1968, the eldest of four children. His father, who
worked for LTV Steel for 30 years, was described by Hale’s sister Latisha as pretty
165

stable. Hale’s mother worked for 19 years for the Cleveland Catholic Diocese.
However, she had a drinking problem and was unfaithful to her husband. These
issues caused conflict in their marriage, sometimes leading to physical violence
between the spouses. According to Dr. Fabian, Hale’s father also had a drinking
problem.
{¶ 252} Hale had an unusually close relationship with his mother, who treated him
less as a child than as a “best friend” and confidant. According to Dr. Fabian, some
of her confidences involved things “that perhaps he was too young to understand
or to hear about.” Hale usually sided with his mother against his father, conflict that
sometimes led to physical confrontations between the two.
{¶ 253} When Hale was about seven, his mother left his father. She took Hale and
his sister Laquatia to California. Initially, they stayed with Mrs. Hale’s sister and
her husband in the Watts neighborhood of Los Angeles. According to Laquatia, an
older female cousin sexually molested Hale during this period.
{¶ 254} Hale was exposed to a violent environment during this period. There were
conflicts among the adults, with Mrs. Hale’s sister accusing her of sleeping with
her husband. Eventually, the Hales moved out and went to live in “the projects.”
According to Laquatia, Mrs. Hale “had * * * different men in and out” during this
time. According to Hale, his mother attempted suicide twice while in California.
{¶ 255} After about a year, Hale’s mother returned to Cleveland and to her husband.
Hale’s father forgave her and took her back into his household. Hale’s mother
stopped drinking, spent more time with her children and became “nurturing.”
During this period, Hale “calmed down,” became more outgoing, and did well in
school. Life was “basically decent” and “kind of peaceful.”
{¶ 256} Hale’s life changed for the worse when he was about 13. His mother
resumed drinking, fighting with her husband, and seeing other men. Hale began
associating with delinquent peers, cutting school, stealing, and rebelling.
{¶ 257} Hale’s sisters all testified that they love him. They credited him with
numerous good qualities: intelligence, creativity and artistic ability, the ability to
plan and to solve problems, a positive attitude, enthusiasm, willingness to work,
compassion, and “big dreams” about helping the homeless. They described him as
loving, gentle, pleasant, helpful, religious, a comforter, and a “defender” who
protected his sisters. They felt that after his release from prison, he had been trying
to “keep straight,” to “get * * * on the right track.” Laquatia testified that Hale
assisted her with a mentoring program at her church.
{¶ 258} Dr. Fabian, the defense psychologist, interviewed Hale four times and also
interviewed Hale’s sisters. Dr. Fabian’s opinion was that Hale’s personality and
background exhibit a number of risk factors associated with violent behavior.
166

{¶ 259} He divided these factors into four categories. “Individual factors”
were Hale’s aggressive personality and antisocial attitudes. “Family factors”
included the instability of Hale’s family, his early separation from a parent,
“caregiver disruption,” his parents’ substance abuse, family conflict, and exposure
to violence. “School factors” were Hale’s academic failure and lack of commitment
to school. “Peer-related factors” included Hale’s growing up in a poor
neighborhood where he was exposed to crime, weapons, and substance abuse.
{¶ 260} Dr. Fabian further opined that Hale has “very poor” coping skills. He has
poor judgment, difficulty tolerating stress, poor impulse control, and a tendency to
misperceive events. He uses substance abuse and violence to cope.
{¶ 261} However, Fabian also believed that Hale’s prison records showed adequate
or good adjustment to prison. Hale obtained a GED in prison, took college courses,
obtained counseling, and completed two programs for substance abuse. He became
a counselor himself and also tutored illiterate prisoners.
{¶ 262} Despite the stress of prison, Fabian testified that Hale had committed no
“violent infractions” during his 12–year incarceration. However, in his unsworn
statement, Hale said that he did “a lot of fighting” during his first two years,
resulting in “a lot of hole time.”
{¶ 263} Fabian also believed that Hale is unlikely to commit violent acts in prison.
Fabian testified that life-sentenced inmates have rates of prison violence similar to
the low rates of death-row inmates and “much lower” than those of “general
offenders.” He also noted the phenomenon of “age burn-out”: beginning between
the ages of 35 and 40, an inmate’s risk of violent behavior drops. (Hale was 37
when he was tried.)
{¶ 264} Hale has no history of mental illness, and Fabian did not diagnose him as
mentally ill. Fabian placed Hale’s intelligence in the low-average-to-average range,
making him “brighter than most capital offenders.” Hale was not intoxicated at the
time of the murder.
Hale, 892 N.E.2d at 909–10.
Mitigation experts. In addition to Bartollas and Kay, Hale proffered several additional
experts whom he claimed in post-conviction proceedings that trial counsel should have retained
for mitigation purposes, including a substance abuse expert, neurologist, and cultural expert. (Doc.
No. 31 at 417–21.)
167

The state appellate court addressed these claims, stating:
{¶ 18} We also conclude that the evidence submitted in support of Hale’s claim
that counsel was ineffective for failing to obtain a substance abuse expert was
cumulative. The Ohio Supreme Court has held that a defendant in a capital case is
not deprived of mitigating evidence in the form of a substance abuse expert, where
the defense presented “ ‘alternative devices that * * * fulfill[ed] the same functions
as the expert assistance sought [by the defendant].’” State v. Foust, 105 Ohio St.3d
137, 2004–Ohio–7006, 823 N.E.2d 836, ¶ 103, quoting State v. Jenkins, 15 Ohio
St.3d 164, 473 N.E.2d 264 (1984), paragraph four of the syllabus. Dr. Fabian
testified at length during the mitigation hearing regarding Hale’s and Hale’s
parent’s substance abuse. He testified that Hale abused alcohol and drugs since the
age of 12 and that substance abuse was one of the factors that contributed to the
cycle of violence that Hale experienced. Based on Dr. Fabian’s testimony, having
another expert testify regarding the affect of substance abuse on Hale would have
been cumulative.
{¶ 19} Hale also argues that a neurologist could have testified to any neurological
defect caused by the substance abuse. However, without any evidence that Hale in
fact suffered from a neurological disorder, such an allegation is speculative.
Although social worker Hall stated that counsel should have explored “potential
neurological impairment caused by his substance abuse,” the social worker was not
a doctor and had no interaction with Hale. Dr. Fabian, a forensic psychologist had
extensive interaction with Hale and found he did not suffer from a mental illness.
“Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003). Here, the retaining of a neurological expert to test Hale, or the
presentation of one at trial, when there was no evidence that Hale had a neurological
defect, did not constitute ineffective assistance of counsel.
{¶ 20} We also conclude the presentation of a cultural expert would have been
cumulative. Hale attached the affidavit of social worker Hall in which he stated that
Hale’s family history and culture and surrounding environment in which he was
raised influenced him as an adult. He stated that an expert should have been
obtained to facilitate how these factors influenced Hale in order to “humanize” Hale
to the jury.
{¶ 21} Again, we conclude such an expert would have been cumulative to the
testimony presented by Dr. Fabian, who testified to the unstable family
environment in which Hale was raised. Dr. Fabian also described the low income
neighborhood where gang violence and drugs existed and described in detail the
sexual abuse that Hale suffered as a child. Dr. Fabian concluded that all of these
factors caused Hale to be an aggressive, impulsive, and violent adult.
168

{¶ 22} Additionally, Hale’s sisters testified regarding Hale’s close relationships to
his mother and Father Lynch, the priest who was like a surrogate father to Hale,
and how the loss of those relationships affected him. Hale, himself, testified to his
childhood, his close relationship to his mother and Father Lynch, his attempts to
become closer to his sisters, and his difficult relationship with his father. These
concepts that would “humanize” Hale to the jury, were not so difficult or
complicated to understand that an expert would have been necessary to explain the
influences on Hale. Moreover, as the Ohio Supreme Court stated in Hale’s direct
appeal, “Hale’s history, character, and background have some mitigating weight.
* * * But we have seldom given decisive weight to this factor.” Hale, 119 Ohio
St.3d 118, 2008–Ohio–3426, 892 N.E.2d 864, at ¶ 265.
Hale, 2016 WL 4978449, at *3–4.
Hale primarily faults the state court’s conclusion that his proposed expert testimony was
cumulative to the trial testimony of Dr. Fabian and his sisters. (See Doc. No. 31 at 417–21.) He
lists dozens of points on which these experts could have testified that he contends were stronger
and different than what was presented at trial. (See, e.g., id. at 396–98.)
But this “‘more-evidence-is-better’ approach to mitigation” has been roundly rejected by
habeas courts, as it often is cumulative and would open the door to damaging evidence. See Wong,
558 U.S. at 24. It is true that counsel in a capital case have an “obligation to conduct a thorough
investigation of the defendant’s background” for mitigation purposes. T. Williams, 529 U.S. at
396. But that duty “does not force defense lawyers to scour the globe on the off chance something
will turn up; reasonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste.” Compare Wiggins v. Smith, 539 U.S. 510, 525, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2003) (counsel ineffective where petitioner had an “excruciating life
history,” yet counsel focused exclusively on his direct responsibility for murder), and Rompilla v.
Beard, 545 U.S. 374, 389–93, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (counsel ineffective
where he failed to examine court file of defendant’s prior conviction that contained a range of vital
mitigation leads regarding defendant’s childhood and mental health problems), and Frazier, 343
169

F.3d at 795–99 (counsel ineffective where he failed to introduce any mitigating evidence in either
guilt or penalty phases of trial and he was aware of petitioner’s brain injury), with Strickland, 466
U.S. at 699 (counsel could “reasonably surmise . . . that character and psychological evidence
would be of little help”), and Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638
(1987) (finding limited investigation reasonable because all witnesses brought to counsel’s
attention provided predominantly harmful information). As the Supreme Court has explained,
[T]here comes a point at which evidence from more distant relatives can reasonably
be expected to be only cumulative, and the search for it distractive from more
important duties. . . . This is not a case in which the defendant’s attorneys failed to
act while potentially powerful mitigating evidence stared them in the face, or would
have been apparent from documents any reasonable attorney would have obtained.
It is instead a case, like Strickland itself, in which defense counsel’s “decision not
to seek more” mitigating evidence from the defendant’s background “than was
already in hand” fell “well within the range of professionally reasonable
judgments.”
Bobby v. Van Hook, 558 U.S. 4, 11–12, 130 S. Ct. 13, 175, L. Ed. 2d 255 (2009) (internal citations
omitted).
This, too, is such a case. Hale points to a great deal of evidence that these experts could
have offered, but none that is so powerful and would have been so obvious to trial counsel that
there is a reasonable probability that it would have caused a different result in Hale’s sentence.
The state appellate court’s decision rejecting this claim, therefore, was not contrary to, or an
unreasonable application, of Strickland or other Supreme Court precedent.
c.

Habeas claims

This is also true of the mitigation ineffective-assistance claims Hale raises here for the first
time. Despite having raised numerous claims in state post-conviction proceedings regarding
counsel’s failure to hire experts and present additional witnesses for mitigation purposes, Hale
argues his post-conviction counsel should have raised several more—including a forensic
170

psychiatrist, forensic pathologist, bloodstain pattern expert, and sexual abuse and trauma expert
(Doc. No. 31 at 244–50; 377–84.) Hale also contends trial counsel should have discovered Green’s
alleged suicidal condition before his murder; sufficiently interviewed Hale’s sisters and family;
“discovered” Hale’s prison records and “favorable parole records”; discovered State witness
Ricardo Cuffari’s views on whether Green was bisexual and what police told him about that issue
so they could better cross-examine him; and obtained information about gunshot residue and
overdraft loan programs. (Id. at 312.) 22
These new experts provide similar or overlapping expertise and opinions to those presented
at trial and proffered at post-conviction proceedings, however, and the other evidence also provides
little additional information of any weight. 23 It is possible that Hale’s trial and post-conviction
counsel was aware of some or all of this evidence and chose not to pursue it, or investigated and
rejected it, for sound strategic reasons. Moreover, Hale has not demonstrated a reasonable
probability that trial counsel’s discovery and presentation of this evidence would have resulted in
an acquittal on any offense for which he was convicted or led to a different sentence.
4.

Objections (Sub-claims 17, 18, 19, 20, 21, 25, 26, 27, and 28)

Hale also asserts numerous claims that trial counsel were ineffective for failing to object.
These claims relate to his underlying claims of: right to presence (Ground Five); exclusion from

22

Hale has attached the following exhibits to his petition in support of these claims: expert report of Dr. Fradkin (Doc.
No. 13-1); expert report of Dr. Dudley (Doc. No. 13-2); Gardner Affidavit (sister) (Doc. No. 13-3); Chisholm Affidavit
(sister) (Doc. No. 13-4); expert report of Dr. Filkins (Doc. No. 13-5); expert report of T. Paulette Sutton (Doc. No.
13-6); FBI communication on gunshot residue (Doc. No. 13-7); Hale Declaration (Doc. No. 13-20); Police report
regarding Green voicemail (Doc. No. 13-21); Hale parole records (Doc. No. 13-22); Payday Loan and NSF fee
information (Doc. No. 13-23); Police notes of Cuffari interview (Doc. No. 13-24); and Hale prison records (Doc. No.
13-25). He has moved to have the record expanded to include these documents (see Doc. No. 37), which the Court
fully analyzes in Section XVII of this opinion.
23

The police records regarding Green’s voice mail and their interview of Cuffari and Hale’s prison and parole records
are discussed in greater detail in relation to Hale’s twenty-third ground for relief asserting the prosecution’s wrongful
suppression of material exculpatory and impeachment evidence.

171

reviewing witness statements (Ground Four); admission of gruesome photographs (Ground Nine);
admission of unqualified expert testimony (Ground Eight); prosecutorial misconduct (Ground
Twenty-One); admission of victim-impact evidence (Ground Fifteen); improper jury instructions
(Ground Twelve); non-capital sentencing (Ground Nineteen); and imposition of court costs
(Ground Twenty). (Doc. No. 13 at 214–17; 273–75.) Hale raised these claims on direct appeal to
the Ohio Supreme Court, which addressed their merits. It ruled:
{¶ 233}. . . Finally, Hale complains that his trial counsel failed to object to
numerous alleged errors. Each of Hale’s claims recasts one of his substantive
propositions of law into an ineffective-assistance claim. However, “[t]he failure to
object to error, alone, is not enough to sustain a claim of ineffective assistance of
counsel.” State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831. In
our view, none of Hale’s claims of error is so compelling that competent counsel
would have been obligated to object to them at trial, nor were they prejudicial.
Hale, 892 N.E.2d at 907.
Hale provides little argumentation supporting these claims. Regardless, they fail. The
Constitution “does not insure that defense counsel will recognize and raise every conceivable
constitutional claim.” Engle, 456 U.S. at 134. As the Sixth Circuit has observed:
[I]n a trial of any size, numerous potentially objectionable events occur . . . .
[E]xperienced trial counsel learn that objections to each potentially objectionable
event could actually act to their party’s detriment. Learned counsel therefore use
objections in a tactical manner. In light of this, any single failure to object usually
cannot be said to have been error unless the evidence sought is so prejudicial to a
client that failure to object essentially defaults the case to the state. Otherwise,
defense counsel must so consistently fail to use objections, despite numerous and
clear reasons for doing so, that counsel’s failure cannot reasonably have been said
to have been part of a trial strategy or tactical choice.

172

Lundgren, 440 F.3d at 774. This Court has found no constitutional error in the claims underlying
these ineffective-assistance claims. The Ohio Supreme Court reasonably decided that Hale was
not prejudiced by his trial counsel’s failure to object to those matters. 24
Accordingly, Hale’s third, eleventh, and eighteenth grounds for relief are denied.
X.

Twenty-Second Ground for Relief: Ineffective Assistance of Appellate Counsel
For his twenty-second ground for relief, Hale claims his appellate counsel provided

ineffective assistance. (Doc. No. 13 at 311–12.) Specifically, he argues that his appellate counsel
should have raised claims on direct appeal relating to his second, third, seventh, eleventh,
sixteenth, and eighteenth grounds for relief. (Id.) Respondent contends these claims are
procedurally defaulted and meritless. (Doc. No. 17 at 143–45.)
A. Procedural Posture
Respondent asserts that Hale waived all claims of ineffective assistance of appellate
counsel when his appointed counsel for the purpose of filing an application to reopen his direct
appeal notified the Ohio Supreme Court that he had reviewed the record and found no such claims
and did not file a reopening application. (See Doc. No. 17 at 143.) The Court agrees.
Soon after his direct appeal was denied, Hale asked the Ohio Supreme Court to appoint
counsel to assist him in filing a timely application for reopening his direct appeal pursuant to Ohio
Supreme Court Practice Rule XI, § 6. (Id. at 3, 707–13.) That rule permits defendants to request
to reopen the direct appeal from a judgment to present claims of ineffective assistance of appellate
counsel within ninety days from issuance of the court’s direct-appeal mandate, or later for “good
cause.” See Ohio S. Ct. Prac. R. 11.06(A) (the current version of Ohio S. Ct. Prac. R. XI, § 6); see

24

As this Court found no constitutional ineffective assistance on the part of Hale’s trial counsel, it also rejects Hale’s
claim of cumulative ineffective assistance. (See Doc. No. 31 at 310, 432–33.)

173

also State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The court granted the motion and appointed
Attorney Dennis Sipe. (Doc. No. 7-3 at 3.) Sipe then filed a notice with the Ohio Supreme Court
that he had “reviewed the record as it existed before this Court and determined that there exists no
irregularities that would raise a genuine issue as to whether appellant received ineffective
assistance of counsel.” (Id. at 714–15.) As the time limit in Ohio has long since passed to file such
an application, Hale no longer has the ability to seek relief in state court for his appellate counsel
ineffective-assistance claims, and they are procedurally defaulted.
Hale argues that he can establish cause for the default through Sipe’s ineffective assistance
under Martinez, 566 U.S. 1 and Trevino, 569 U.S. 413. But as explained above in relation to Hale’s
trial counsel ineffective-assistance claims, Martinez and Trevino’s equitable exception allowing
the ineffective assistance of post-conviction counsel to constitute cause for procedural default
applies only to claims of ineffective assistance of trial counsel; it does not apply to any other
claims, including ineffective assistance of appellate counsel. See Martinez, 566 U.S. at 9; Trevino,
569 U.S. at 423. Indeed, the Supreme Court recently reaffirmed the Martinez/Trevino exception’s
narrow application in Davila v. Davis, 137 S. Ct. 2058, 198 L. Ed. 2d 603 (2017), noting that the
exception applies to “a single claim—ineffective assistance of trial counsel—in a single context”
and expressly declining to extend it “to allow federal courts to consider a different kind of defaulted
claim—ineffective assistance of appellate counsel.” Id. at 2062–63. The Sixth Circuit has reached
the same conclusion. See, e.g., Porter v. Genovese, 676 F. App’x 428, 434 (6th Cir. 2017) (“[T]he
law of this circuit is that Martinez/Trevino’s limited exception does not extend to claims of
ineffective assistance of appellate counsel”) (citing Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.
2013)).

174

Furthermore, the Sixth Circuit repeatedly has held that because a reopening proceeding is
a separate collateral proceeding from the original appeal, petitioners have no constitutional right
to assistance of counsel in such proceedings. See, e.g., Lopez v. Wilson, 426 F.3d 339, 351 (6th
Cir. 2005). Thus, appellate counsel’s conduct in connection with a reopening application cannot
establish ineffective assistance of counsel or, of relevance here, cause to overcome a procedural
default. See, e.g., Carter v. Mitchell, 693 F.3d 555, 565 (6th Cir. 2012) (appellate counsel’s failure
to appeal denial of Rule 26(B) application to Ohio Supreme Court not sufficient cause); Scuba v.
Brigano, 527 F.3d 479, 489 (6th Cir. 2007) (appellate counsel’s failure to file a timely Rule 26(B)
application on petitioner’s behalf not sufficient cause). Hale’s claims of ineffective assistance of
appellate counsel, therefore, are procedurally defaulted. 25
B. Merits Analysis
Even if these claims were preserved for federal habeas review, they would fail.
A criminal defendant is entitled to effective assistance of counsel in his or her first appeal
as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).
The two-part test enunciated in Strickland v. Washington applies to claims of ineffective assistance
of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756
(2000). Hale, therefore, must demonstrate that appellate counsel’s performance was deficient, and
that the deficient performance so prejudiced the appeal that the appellate proceedings were unfair
and the result unreliable. Strickland, 466 U.S. at 687.

25

Accordingly, Hale cannot assert that appellate-counsel ineffective assistance constitutes cause to excuse the
default of other claims that should have been raised on direct appeal because they were based on the trial-court
record but were not. Edwards, 529 U.S. at 453 (claims of ineffective assistance of counsel cannot provide cause for
the procedural default of another claim if the ineffective-assistance claim itself is procedurally defaulted).

175

Appellants have no constitutional right, however, to have every non-frivolous issue raised
on appeal, Jones v. Barnes, 463 U.S. 745, 750–54, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983), and
tactical choices regarding issues to raise on appeal are properly left to the sound professional
judgment of counsel, United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “[O]nly when ignored
issues are clearly stronger than those presented, will the presumption of effective assistance of
[appellate] counsel be overcome.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (internal
quotation marks and citations omitted).
Here, this Court has found no merit in the claims underlying Hale’s ineffective-assistanceof-appellate-counsel claims. There is not prejudice, therefore, resulting from appellate counsel’s
failure to raise those claims on direct appeal in state court. Hale’s twenty-second ground for relief
is procedurally defaulted and meritless.
XI.

Twenty-First Ground for Relief: Prosecutorial Misconduct
Hale asserts in his twenty-first ground for relief that prosecutors rendered his trial

fundamentally unfair through the following improper conduct: (1) non-compliance with discovery
obligations; (2) voir dire questioning; (3) questioning Lashayla Hale; (4) questioning Detective
Baird; (5) questioning Detective Grida; (6) questioning Detective Pestak; eliciting hearsay
testimony; (7) leading witnesses; (8) eliciting victim-impact testimony; (9) impeaching Johnny
Smith; (10) improper statements in closing argument in the guilt phase; (11) questioning Dr.
Fabian; and (12) improper statements in closing argument in the sentencing phase. (Doc. No. 13
at 283-310.) Hale raised these claims on direct appeal to the Ohio Supreme Court. See Hale, 892
N.E.2d at 897–903.

176

A. Procedural Posture
Respondent argues that many of these claims are procedurally defaulted because the Ohio
Supreme Court found them waived as defense counsel did not object to the challenged conduct at
trial. (Doc. No. 17 at 134.) As previously explained, Ohio’s “firmly-established” contemporaneous
objection rule is “an independent and adequate state ground” upon which to find federal habeas
claims procedurally defaulted. See, e.g., Keith, 455 F.3d at 673. Those claims, therefore, are
procedurally defaulted. Moreover, Hale does not offer any argument regarding the cause for, or
prejudice resulting from, his procedural default of this claim. Nor does he contend that he is
actually innocent such that the default should be excused.
B. Merits Analysis
The Supreme Court established the test for claims of prosecutorial misconduct in Darden,
477 U.S. 168: “The relevant question is whether the prosecutors’ [conduct] ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’” Id. at 181 (quoting
Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983), and Donnelly v. DeChristoforo, 416
U.S. 637, 642, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)). The Court emphasized that “the
appropriate standard of review for such a claim on writ of habeas corpus is ‘the narrow one of due
process, and not the broad exercise of supervisory power.’” Id. (quoting Donnelly, 416 U.S. at
642); see also Byrd, 209 F.3d at 529 (“We do not possess supervisory powers over state court
trials.”); Cook v. Bordenkircher, 602 F.2d 117, 119 n.5 (6th Cir. 1979) (“[I]t is the responsibility
of the [state courts] to police their prosecutors; we have no such authority.”). “[T]he touchstone of
due process analysis in cases of alleged prosecutorial misconduct,” therefore, “is the fairness of
the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940,
71 L. Ed. 2d 78 (1982). The Darden standard “is a very general one, leaving courts ‘more leeway
177

. . . in reaching outcomes in case-by-case determinations’ . . . .” Parker v. Matthews, 567 U.S. 37,
48–49, 132 S. Ct. 2148, 183 L. Ed. 2d 32 (2012) (rejecting the Sixth Circuit’s multi-step test for
prosecutorial misconduct) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140,
158 L. Ed. 2d 938 (2004)).
The Ohio Supreme Court addressed Hale’s claims of prosecutorial misconduct on direct
appeal, as follows:
Discovery
{¶ 157} Hale contends that the state failed to afford timely discovery of the felony
records of certain prosecution witnesses. See Crim.R. 16(B)(1)(a). However, Hale
fails to explain how he was prejudiced. In each instance, the information was
disclosed before the defense cross-examined the witness.
{¶ 158} Hale also contends that the state failed to timely disclose evidence
regarding Hale's financial transactions. However, as Hale concedes, the trial court
imposed a sanction on the state for this lapse. The trial court limited the state's
financial evidence to that involving Hale's financial condition at the time of the
murder, while excluding evidence involving bounced checks and identity theft by
Hale—evidence holding greater potential for prejudice. Discovery sanctions are
within the trial court's discretion, Parson, 6 Ohio St.3d at 445, 6 OBR 485, 453
N.E.2d 689, and Hale does not show that the judge abused his discretion here.
{¶ 159} Hale’s other discovery-related claims duplicate claims made in Hale’s first
and eighth propositions of law, which we have overruled.
Voir Dire
{¶ 160} Hale accuses the prosecutors of “plant[ing] prejudicial information in the
jurors’ minds” during voir dire. During general voir dire, the prosecutor asked the
panel about familiarity with firearms, and when one juror mentioned owning a
derringer, the prosecutor asked how many bullets a derringer holds. He further
asked the panel members whether any of them had ever moved or carried a person
larger than themselves. Additionally, he asked the panel members to remember the
most traumatic event in their lives.
{¶ 161} Each of these questions related to issues raised at trial. The trial judge has
discretion as to the scope of voir dire, and Hale does not demonstrate that the judge
abused his discretion here.
178

Hearsay
{¶ 162} Hale points to four instances in which the prosecutor presented hearsay.
However, in three instances, the defense did not object, thereby waiving any issue.
In a fourth (the dollar value of Green’s jewelry), an objection was sustained, and
the jury never heard the testimony. An appellant cannot predicate error on
objections the trial court sustained. Viox v. Weinberg, 169 Ohio App.3d 79, 2006Ohio-5075, 861 N.E.2d 909, ¶ 36.
Leading Questions
{¶ 163} Hale lists 26 leading questions the prosecutor asked on direct examination.
In 23 instances, the defense did not make a timely objection, so any issue pertaining
to those questions is waived. In three instances, the defense did interpose timely
objections. However, it is within the trial court’s discretion to allow leading
questions on direct examination. State v. D’Ambrosio (1993), 67 Ohio St.3d 185,
190, 616 N.E.2d 909. Hale makes no attempt to explain how the trial court abused
its discretion in overruling his objections. Nor does he explain why it was
prosecutorial misconduct for the prosecutor to engage in conduct that the trial court
had discretion to allow and did allow.
Victim Impact
{¶ 164} Hale claims that the prosecutor introduced victim-impact evidence and
argument in the guilt phase. In one instance, the defense failed to object, waiving
the issue. In two instances, objections were sustained. As already noted, an
appellant cannot predicate error on objections that the trial court
sustained. Viox, 169 Ohio App.3d 79, 2006-Ohio-5075, 861 N.E.2d 909, ¶ 36. The
rest of this claim duplicates section (C) of Hale’s eighth proposition of law, which
we have rejected.
“Irrelevant” and “Inflammatory” Evidence
{¶ 165} Hale claims that the prosecutor introduced irrelevant and inflammatory
evidence.
{¶ 166} First, Lashayla Hale testified that Hale had once told her that he had a gun
and felt like shooting his mother’s ex-boyfriend. (The prosecutor did not
deliberately elicit the part about shooting the ex-boyfriend.) The trial court initially
overruled a defense objection. The next day, the defense moved for a mistrial. The
trial court offered to consider giving a curative instruction instead. However, for
tactical reasons, the defense declined to request an instruction. Thus, Hale “cannot
now complain that none was given.” State v. Davie (1997), 80 Ohio St.3d 311, 322,
686 N.E.2d 245.
179

{¶ 167} Second, the prosecutor asked Lashayla, over objection, whether Hale had
a drinking problem. This question was irrelevant to the guilt phase, but the error
was harmless in view of the overwhelming evidence of Hale’s guilt. In two other
instances in which Hale objected at trial to questions asked of Lashayla,
his objections were sustained. See Viox, 169 Ohio App.3d 79, 2006-Ohio-5075,
861 N.E.2d 909, at ¶ 36.
{¶ 168} Third, the prosecutor asked Sergeant Baird about Hale's admission that he
disposed of the gun, Green’s clothing, and Green’s shoulder bag. On objection, the
prosecutor withdrew the question.
{¶ 169} The prosecutor’s question violated the trial court’s order imposing
discovery sanctions. (See discussion of section (A) of Hale’s eighth proposition of
law.) However, the disposal of the shoulder bag was neither irrelevant nor
inflammatory. In any event, at trial, Hale did not cite the irrelevant and
inflammatory nature of the question as grounds for his objection, so this claim is
waived.
{¶ 170} Finally, Hale claims the prosecutor made inflammatory comments about
the evidence. The prosecutor referred to the items Hale had purchased to clean up
the murder scene as the “murder scene clean-up kit.” He also asked Sergeant Pestak
whether a hat found in Hale’s baggage had “three rough cut holes in it that would
approximate if someone tried to wear it as a mask, two eye holes and a mouth hole.”
However, the defense did not object to these questions, so this issue is waived.
{¶ 171} The prosecutor also referred to Hale’s confession as his “mea culpa” and
“his two-hour long considered statement.” Objections to these comments were
sustained; hence, there was no error. Viox, 169 Ohio App.3d 79, 2006-Ohio-5075,
861 N.E.2d 909, at ¶ 36. The defense did not request curative instructions in either
case, thus waiving any claim to such instructions. Davie, 80 Ohio St.3d at 322, 686
N.E.2d 245.
Speculative Testimony
{¶ 172} Hale claims that Detective Grida gave testimony that was speculative,
unreliable, and outside his personal knowledge. See Evid.R. 602 (witness may not
testify to matters outside his personal knowledge).
{¶ 173} Grida testified that police believed that Hale had help moving Green’s body
because, given the route taken and the body’s size, there would have been more
abrasions on the outer garbage bag if only one person had dragged it. Hale's
objection was overruled.
{¶ 174} This testimony may have been admissible as lay opinion under Evid.R.
701, as it was rationally based on Grida’s perceptions and helpful to a clear
180

understanding of a fact in issue. However, the state does not argue the point. In any
event, given the overwhelming evidence of Hale’s guilt, any error in admitting this
testimony was harmless.
{¶ 175} Grida also testified about how blood may have gotten onto the wall of
Room 231 and expressed an opinion that the lodge employees who found the
body could not have moved it. The defense did not object to this testimony, so any
issue is waived.
{¶ 176} Hale also claims that Sergeant Pestak testified about matters outside his
personal knowledge. Pestak testified that he “assume[d]” that Green’s family last
saw him on June 20 or 21, 2004. Pestak also identified a page in Green's receipt
book and testified, “[I]t's signed by, I'm guessing it's signed Douglas Green.” These
matters had little or no importance to the case, and any error was harmless in light
of the overwhelming evidence of guilt.
Improper Rebuttal
{¶ 177} Johnny Smith, testifying about his 1998 rape accusation against Green,
stated on direct examination that he had not been consulted about the plea bargain
that reduced the charge to misdemeanor assault. On cross-examination, Smith
admitted that the prosecutor's office had contacted him and that he had approved
the plea bargain.
{¶ 178} On rebuttal, the state called Michael Nolan, the assistant prosecutor who
had handled the 1998 case. Nolan confirmed that he had discussed the proposed
plea bargain with Smith and that Smith had consented to it. Hale contends that
Nolan’s testimony violated Evid.R. 616(C), which states: “If offered for the sole
purpose of impeaching a witness’s testimony, extrinsic evidence of contradiction is
inadmissible” unless permitted by Evid.R. 608(A), 609, 613, 616(A), or 616(B), or
by the hearsay exception regarding learned treatises.
{¶ 179} But Hale did not object to Nolan’s testimony at trial. Hence, this issue is
waived, absent plain error. Nolan’s testimony was not prejudicial in the least;
Johnny Smith had already admitted on cross-examination that he had agreed to the
plea bargain.
Victim’s Family
{¶ 180} At one point during trial, one of the prosecutors talked with Green’s
relatives in the courtroom. Hale claims that this conduct somehow constituted an
emotional appeal to the jury. But there is nothing improper in a prosecutor’s
speaking to the victim’s family, and Hale’s claim regarding the effect on the jury is
speculative.
181

Guilt–Phase Closing Arguments
{¶ 181} Hale claims that several comments in the prosecutor’s argument
misrepresented evidence, shifted the burden of proof, or were inflammatory.
{¶ 182} The prosecutor said that Hale had “set up the meeting place” with Green
on the day of the murder. This statement was not supported by evidence. However,
a defense objection was sustained, so the trial court did not err. Viox, 169 Ohio
App.3d 79, 2006-Ohio-5075, 861 N.E.2d 909, at ¶ 36. Moreover, the defense did
not request a curative instruction, so any error in the trial court’s failure to give one
is waived. Davie, 80 Ohio St.3d at 322, 686 N.E.2d 245.
{¶ 183} Hale claims that the prosecutor misrepresented evidence by stating that
Hale “had a gun in that room, Room 260 on June 21st, 2004.” A defense objection
was overruled. Hale argues that the evidence—i.e., Hale’s statement—showed that
Green owned the gun. But the prosecutor’s comment referred to
Hale’s possession of the gun, which was undisputed.
{¶ 184} The prosecutor also said that at the time Hale set up his meeting with Green,
he “knew he had to be out [of the lodge] by the 22nd.” That inference is a reasonable
one based on the evidence. Lodge records, authenticated and explained by the
lodge’s owner, showed that Hale checked into the lodge for seven days’ tenancy on
June 8, 2004, and renewed his tenancy for another seven days on June 15, to expire
on June 22.
{¶ 185} The prosecutor referred to certain facts as “undisputed”: that Green was a
47–year–old husband and father, that phone records showed that Hale had called
Green, that the Underground Railroad was closed on Mondays, and that Hale stole
and used Green’s credit card. Objections to these statements were overruled. These
references were not improper. They were directed not toward the defendant’s
silence, but toward the strength of the state’s case. State v. Ferguson (1983), 5 Ohio
St.3d 160, 5 OBR 380, 450 N.E.2d 265, paragraph one of the syllabus. See also
State v. Webb (1994), 70 Ohio St.3d 325, 328–329, 638 N.E.2d 1023.
{¶ 186} The prosecutor said that Hale’s “picking up the pen with his left hand
[when signing the Miranda waiver] was a lie.” A defense objection was sustained,
however, so no error occurred. Viox, 169 Ohio App.3d 79, 2006-Ohio-5075, 861
N.E.2d 909, at ¶ 36.
{¶ 187} The prosecutor asked “what became of” the gun that Hale told his sister
Lashayla he had. A defense objection was sustained. The prosecutor then asked,
“Where is it?” The trial court overruled a defense objection. Hale argues that the
prosecutor’s question improperly shifted the burden of proof onto him. We
disagree. “The prosecution is not prevented from commenting upon the failure of
182

the defense to offer evidence in support of its case.” State v. Williams (1986), 23
Ohio St.3d 16, 20, 23 OBR 13, 490 N.E.2d 906.
{¶ 188} Hale claims that the prosecutor misrepresented “[r]oom logs showing when
Hale came and went,” but Hale does not explain how the prosecutor misrepresented
the room logs.
{¶ 189} Finally, the prosecutor asked whether Hale’s acts showed him to be a
“person worthy of compassion” or “a person * * * [who] wasn’t capable of showing
concern for the person who was decomposing back in Room 231.” Defense
objections were sustained. No error occurred. Viox, 169 Ohio App.3d 79, 2006Ohio-5075, 861 N.E.2d 909, at ¶ 36. Hale complains that the trial court gave no
curative instruction, but Hale did not request one. Thus, his complaint about the
lack of an instruction is waived. Davie, 80 Ohio St.3d at 322, 686 N.E.2d 245.
Disparaging Defense Counsel
{¶ 190} Outside the jury’s presence, the prosecutor accused defense counsel of
acting in bad faith, trying to “create error” and to “set up” an ineffective-assistance
claim. Hale contends that these statements “improperly chilled the defense” and
“stifle[d] defense counsel’s arguments.” Nothing in the record supports Hale’s
speculation. If anything, the record suggests that the vigor of defense counsel’s
advocacy was unabated throughout the trial. Nor does Hale cite any authority for
the proposition that such remarks, made outside the jury’s presence, amount to
reversible error.
{¶ 191} While approaching the bench to argue a defense objection, the prosecutor
expressed the opinion that the objecting counsel was “out of [his] mind.” Such a
remark, made in front of the jury, would have been improper; an attorney may not
disparage opposing counsel for making an objection. See State v. Keenan (1993),
66 Ohio St.3d 402, 406, 613 N.E.2d 203. However, nothing in the record shows
that the jury could or did hear the prosecutor’s remark.
{¶ 192} During the penalty phase, the prosecutor asked Dr. Fabian, the defense
psychologist, whether he had ever worked for the county public defender’s office.
A motion for mistrial was denied. Hale fails to demonstrate that the trial court
abused its discretion in denying a mistrial. See generally State v. Sage (1987), 31
Ohio St.3d 173, 182, 31 OBR 375, 510 N.E.2d 343 (grant or denial of mistrial is
within trial court's discretion).
Penalty–Phase Cross–Examination
{¶ 193} The prosecutor asked Dr. Fabian whether it was true that mitigating factors
“can occur in individuals within the same family and they don't act out * * * in a
criminal sense.” This method was a proper way to highlight the fact that a bad
183

upbringing does not necessarily cause criminal behavior. See State v. Hanna, 95
Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 98; State v. Newton, 108 Ohio
St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 95.
{¶ 194} In cross-examining Dr. Fabian, the prosecutor raised the possibility that
Hale might escape from prison. A defense objection was sustained. The defense
specifically asked that no curative instruction be given at that time. The trial court
offered to give one later if asked to do so. However, the defense never made any
such request. Hence, no reversible error exists. Viox, 169 Ohio 79, 2006-Ohio5075, 861 N.E.2d 909, at ¶ 36; Davie, 80 Ohio St.3d at 322, 686 N.E.2d 245.
{¶ 195} In two other instances, defense objections were also sustained at trial. The
prosecutor asked Dr. Fabian whether he was “familiar with the Ohio prison riots
that resulted in guard fatalities” and asked: “So the mere presence or fact of a
mitigation evaluation or report does not in and of itself prove the existence of
mitigation in that person's background?” The trial court did not allow Fabian to
answer either question. Thus, no error was committed. Viox, 169 Ohio App.3d 79,
2006-Ohio-5075, 861 N.E.2d 909, at ¶ 36.
Penalty–Phase Closing Arguments
{¶ 196} First, Hale complains that the prosecutor stated in closing argument that
“the attention and the sympathy that rightly should flow to that victim sometimes
becomes perversely focused on the defendant.” This statement was improper,
because sympathy may play no role in the jury’s decision. However, the trial court
sustained a defense objection, and it had previously instructed the jury: “You must
not be influenced by any consideration of sympathy or prejudice.” Thus, the
prosecutor’s comment was not prejudicial.
{¶ 197} Second, Hale complains that the prosecutor displayed Green’s photo to the
jury during argument. As the photo was in evidence, however, it was not improper
to display it to the jury.
{¶ 198} Third, the prosecutor argued that Hale had “no remorse and has no
concern.” Hale claims this was improper because he did not present remorse as a
mitigating factor. See DePew, 38 Ohio St.3d at 289–290, 528 N.E.2d 542. But Hale
did raise remorse as an issue by expressing remorse in his unsworn statement.
{¶ 199} Fourth, the prosecutor argued that during the robbery, Hale “made a choice
to cock the gun, shoot him twice. * * * Reload that gun, and shoot him twice more
* * *.” Hale claims this narrative was improper because the circumstances of the
murder cannot be used as aggravating circumstances.
{¶ 200} However, the prosecutor did not state that the circumstances of the murder
were “aggravating circumstances.” See Wogenstahl, 75 Ohio St.3d at 355–356, 662
184

N.E.2d 311. The prosecutor’s argument dealt with prior calculation and design,
which were elements of the felony-murder specification and which were therefore
relevant to the sentencing. The existence of prior calculation and design had further
relevance to this case because it rebutted the defense claim that Green had provoked
his own murder.
{¶ 201} Fifth, the prosecutor stated that the issue was whether the mitigating
evidence lessened Hale’s “moral culpability.” This statement was erroneous.
See State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 115–
116. But cf. Penry v. Lynaugh (1989), 492 U.S. 302, 319, 109 S.Ct. 2934, 106
L.Ed.2d 256 (punishment “should be directly related to the personal culpability of
the criminal defendant”), overruled on other grounds, Atkins v. Virginia (2002),
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. However, Hale did not object, and
the comment was not plain error. See State v. Brinkley, 105 Ohio St.3d 231, 2005Ohio-1507, 824 N.E.2d 959, ¶ 138.
{¶ 202} Hale’s remaining claims of improper argument involve statements to which
he did not object at trial. Hale’s failure to object waived each of these claims.
Hale, 892 N.E.2d at 897–903.
Hale again argues that this decision is not an “adjudication on the merits” under AEDPA’s
§ 2254(d) because the state court did not address Hale’s constitutional claims. (Doc. No. 31 at
482.) As explained above, however, a state court need not cite any federal constitutional law for
its decision to constitute an “adjudication on the merits” for purposes of § 2254(d). See Early, 537
U.S. at 8 (a state-court decision need not refer to relevant Supreme Court cases or even demonstrate
an awareness of them; it is sufficient that the result and reasoning are consistent with Supreme
Court precedent); Harrington, 562 U.S. at 99 (“When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law procedural principles to the
contrary.”).
Hale alternatively claims the Ohio Supreme Court’s decision was unreasonable under §
2254(d) but specifically challenges only two of his many preserved prosecutorial-misconduct
185

claims. First, he asserts the state court erroneously concluded that he was not prejudiced by the
prosecution’s failure to timely produce evidence that he had bounced checks in discovery. (Doc.
No. 31 at 483.) “[T]here is no general constitutional right to discovery in a criminal case[,]”
however. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). The
Sixth Circuit has held, therefore, that a prosecutor’s violation of a state discovery order is not
cognizable on habeas review. See Warlick v. Romanowski, 367 F. App’x 634, 639 (6th Cir. 2010);
Colston v. Burke, 37 F. App’x 122, 125 (6th Cir. 2002). Hale’s second criticism of the Ohio court’s
decision is that it failed to address the issue of the cumulative effect of the misconduct (Doc. No.
31 at 483), which the Court will consider below.
As to the rest of his preserved claims, Hale does nothing more than reassert the arguments
he made to the Ohio Supreme Court, with absolutely no reference to AEDPA’s standards under
§ 2254(d)(1) or (d)(2). (Compare Doc. No. 31 at 458–82, with Doc. No. 7-3 at 273–98 (Ohio
Supreme Court merit brief).) Federal habeas corpus review, however, “is a guard against extreme
malfunctions in the state criminal justice systems” and does not function as a “substitute for
ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03. It is, after all, the
“habeas petitioner’s burden . . . [to] show[] there was no reasonable basis for the state court to
deny relief.” Id. at 98. This Court has reviewed the state court’s resolution of these claims and
finds that it is not in any regard contrary to, or an unreasonable application of, clearly established
Supreme Court precedent, or based on an unreasonable determination of the facts in light of the
evidence presented. 26 As the state court reasonably concluded, the claims were unsubstantial; for

26

In addition to the claims preserved for habeas review, the Court also considers Hale’s claim regarding the
prosecutor’s statement that the issue in sentencing was whether the mitigating evidence lessened Hale’s “moral
culpability,” which the state court found erroneous but reviewed for plain error, applying federal law, and found none.
See Stewart, 867 F.3d at 638.

186

many of the claims, the trial court sustained defense objections to the challenged conduct, the
underlying allegations of constitutional violations were meritless, or the errors were harmless. The
Court also has reviewed de novo those prosecutorial-misconduct claims Hale waived and therefore
procedurally defaulted, and finds they also lack merit for many of the same reasons.
Finally, in evaluating whether prosecutorial misconduct denied a defendant a fair trial, a
court may consider the “cumulative effect” of several instances of misconduct. See Berger v.
United States, 295 U.S. 78, 89, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). This Court has considered
the alleged misconduct as a whole and finds that no meaningful misconduct took place.
Accordingly, Hale has failed to demonstrate that any misconduct on the part of the prosecution
was “so pronounced and persistent that it permeate[d] the entire atmosphere of the trial,” and he is
not entitled to relief on his twenty-first ground for relief. See Darden, 477 U.S. at 181 (internal
quotation marks and citation omitted).
XII.

Twenty-Third Ground for Relief: Prosecutorial Misconduct/Suppression of Evidence
In his twenty-third ground for relief, Hale claims that the prosecution failed to disclose

material exculpatory and impeachment evidence, violating his due process rights under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). (Doc. No. 13 at 313–17.) He
argues that prosecutors should have produced to him before trial three categories of evidence he
recently has obtained: (1) parole and prison records showing Hale’s positive institutional
adjustment in prison, compliant behavior on parole, and that he informed his parole officer a week
before the murder the address of the lodge and room number where he was staying; (2) a police
report recounting an interview with Green’s niece, in which she described a voicemail Green left
for his daughter near the time of the murder that “almost sounded like a suicide call”; and (3) a
police report detailing an interview with Ricardo Cuffari, a friend of Green’s, in which an officer
187

told Cuffari that the police knew Green was bisexual and Cuffari replied that he did not know that.
(Id. (citing Doc. No. 13-21 (Police Rpt./Green Voicemail); Doc. No. 13-22 (Hale Parole Records);
Doc. No. 13-24 (Police Notes/Cuffari Interview); Doc. No. 13-25 (Hale Prison Records)).)
Respondent contends this claim is based upon documents that are not in the Court’s record and
therefore not reviewable and is also procedurally defaulted and meritless. (Doc. No. 31 at 39–40;
145–50.)
As Respondent asserts, Hale must overcome two procedural hurdles before this Court can
consider the merits of his Brady claim. First, Hale must demonstrate that the new evidence upon
which he bases his claim satisfies the requirements of 28 U.S.C. § 2254(e)(2), which generally
governs habeas courts’ ability to hold evidentiary hearings, but also applies to the introduction of
new evidence without an evidentiary hearing, such as when the petitioner seeks to introduce new
evidence based on a motion to expand the record. Holland v. Jackson, 542 U.S. 649, 653, 124 S.
Ct. 2736, 159 L. Ed. 2d 683 (2004). Hale has filed a motion to expand the record requesting the
admission of these documents, among others (Doc. No. 37), which Respondent opposes (Doc. No.
38). 27 Second, Respondent asserts that Hale’s Brady claims are procedurally defaulted because
Hale has never raised them in state court, and it would be futile for him to do so now. (Doc. No.
17 at 146–47.) Hale counters that he can establish cause through the State’s suppression of the
materials. (Doc. No. 31 at 500–501.) 28 As the requirements of § 2254(e)(2) and both Respondent’s

27

The Court will address Hale’s motion to expand the record (Doc. No. 37) in its entirety and his motion for discovery
(Doc. No. 34) in Section XVII of this opinion.
28

Hale argues in the alternative that the default can be excused by the ineffective assistance of his trial or postconviction counsel. (Doc. No. 31 at 490 n.81, 499 n.82.) As explained above, however, his related ineffectiveassistance-of-trial-counsel claim is itself procedurally defaulted and/or meritless. Additionally, the Martinez/Trevino
equitable exception allowing the ineffective assistance of post-conviction counsel to constitute cause for procedural
default does not apply in this case, and even if does, it would not assist Hale with these claims because it applies only
to claims of ineffective assistance of trial counsel. See Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013).

188

procedural-default defense and Hale’s cause-and-prejudice argument mirror the elements of a
Brady claim itself, the Court will examine them together.
For Hale to establish a Brady violation, he must demonstrate that: (1) the evidence at issue
is favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence was
suppressed by the state, either willfully or inadvertently; and (3) prejudice ensued. Strickler v.
Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Evidence is considered
favorable under Brady if it would have had “some value . . . [or] weight and its tendency would
have been favorable” to the defendant. Kyles v. Whitley, 514 U.S. 419, 450–51,115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995). To meet the suppression requirement, the petitioner must show that the
evidence was in the prosecution’s exclusive control. Coe, 161 F.3d at 344. There is no Brady
violation “where a defendant knew or should have known the essential facts permitting him to take
advantage of any exculpatory information, or where the evidence is available . . . from another
source, because in such cases there is really nothing for the government to disclose.” Id. (internal
quotation marks and citations omitted). Prejudice, or materiality, in the Brady context is a far more
difficult test to meet than the threshold questions of suppression and favorability. Jamison v.
Collins, 291 F.3d 380, 388 (6th Cir. 2002). Evidence is “material” when there is “a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would have been
different.” Cone v. Bell, 556 U.S. 449, 469–70, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009). Courts
examine each item of alleged Brady evidence individually for suppression and favorability, then
consider the cumulative impact of any Brady evidence for materiality. Kyles, 514 U.S. at 436–37
& n.10.
To satisfy § 2254(e)(2), Hale must show that he “failed to develop the factual basis of a
claim in state court proceedings” because: (1) “the factual predicate of the claim could not have
189

been previously discovered through the exercise of due diligence”; and (2) “the facts underlying
the claim establish, by clear and convincing evidence, that, but for the constitutional error, no
reasonable jury would have found him guilty.” 28 U.S.C. § 2254(e)(2)(A), (B). A prisoner is at
fault in failing to develop the evidence if there is a “lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.” M. Williams, 529 U.S. at 432. The required
diligence is “a reasonable attempt, in light of the information available at the time, to investigate
and pursue claims in state court.” Id. at 435.
The standards for both the procedural default of a Brady claim and cause and prejudice to
excuse that default require similar showings. Respondent argues, and Hale appears to concede,
that these Brady claims are procedurally defaulted rather than unexhausted. (Doc. No. 17 at 146–
47; Doc. No. 31 at 499–501.) The difference is that “[w]here state court remedies are no longer
available to a petitioner . . . , procedural default and not exhaustion bars federal court review.”
Williams, 460 F.3d at 806; see also Gray, 518 U.S. at 161–62 (“Because the exhaustion
requirement ‘refers only to remedies still available at the time of the federal petition,’ . . . it is
satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state]
law’”) (internal citations omitted). If Hale may return to state court and his Brady claims are
unexhausted, Hale’s petition would be a “mixed petition,” and, although a petitioner’s failure to
exhaust a claim does not deprive a district court of jurisdiction, the court may not grant a writ if
the petition contains both exhausted and unexhausted claims. 28 U.S.C. § 2254(b), (c); Rose, 455
U.S. at 522; Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009). 29 These claims are procedurally

29

Hale explains that “he could have brought this claim in state court because he did not discover the Brady material
until just a few days before his habeas petition was due[,]” and therefore had to raise the claim in his habeas petition
to preserve it under AEDPA’s one-year statute of limitations. (Doc. No. 31 at 501.) And he notes that “[i]f this Court
nonetheless finds that Hale failed to exhaust this claim, Hale will seek to stay this petition and hold it in abeyance so
that he can return to state court to attempt to present this claims.” (Id.) Respondent, for his part, stresses that he

190

defaulted, therefore, if Hale cannot satisfy Ohio’s requirements for a delayed motion for new trial
or a successive petition for post-conviction relief. Under Ohio Criminal Procedure Rule 33(B), a
defendant may be entitled to a new trial based on newly discovered evidence after the deadline for
filing such motions if he can show “by clear and convincing proof that [he] was unavoidably
prevented from the discovery of the evidence upon which he must rely . . . .” Ohio R. Crim. P.
33(B). Ohio law permits second, successive, or untimely post-conviction petitions if the petitioner
shows: (1) that he was “unavoidably prevented from discovery of the facts” of the claim; and (2)
but for constitutional error at trial, no reasonable factfinder would have found petitioner guilty of
the offense of which he was convicted or eligible for the death sentence. Ohio Rev. Code §
2953.23(A)(1).
If the Brady claims are procedurally defaulted, for Hale to establish cause and prejudice to
excuse the default, he must satisfy the first two requirements—suppression and favorability—of
the three-part Brady test. See Strickler, 527 U.S. at 282 (cause and prejudice to excuse procedural
default of a Brady claim “parallel[s] two of the three components of the alleged Brady violation
itself”).
Thus, this Court may examine the merits of Hale’s Brady claims only if the alleged Brady
material is reviewable and the claim is not procedurally defaulted. And it is neither. Hale has not
satisfied the preliminary requirements of each these procedural issues: (1) that he was diligent in
attempting to develop the new evidence in state court but unavoidably prevented from discovering

“expressly does not waive [an] exhaustion” defense to these claims. (See Doc. No. 17 at 146 n.18 (emphasis in
original).) Indeed, habeas courts my grant a petitioner’s motion to stay a federal habeas case for exhaustion only if
that court determines “there was good cause for the petitioner’s failure to exhaust his claims first in state court” and
“the unexhausted claims are not “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 161 L. Ed.
2d 440 (2005). Even in this scenario, however, as will be explained below, Hale could not satisfy the Rhines test and
show that his claims are not “plainly meritless.”

191

the material because the State suppressed it; and (2) the alleged Brady evidence would have been
favorable to his defense.
Hale states that he filed multiple discovery motions upon the State before his 2005 trial,
including demands for the disclosure of exculpatory and impeaching evidence. (See, e.g., Doc. No.
7-1 at 86–98.) But, according to Hale, he did not discover the documents at issue until October 2,
2018, in response to a public records request his federal habeas counsel made two months earlier.
(Doc. No. 31 at 490–92.) This does not constitute “diligence” under § 2254(e)(2). “Diligence will
require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court
in the manner prescribed by state law.” M. Williams, 529 U.S. at 437. Hale has not identified any
effort on his part or on his counsel’s part to develop the factual predicate of this Brady claim from
the time of his 2005 trial to 2018. Nor has he made any showing that he was “unavoidably
prevented” from obtaining this information or that the prosecution suppressed this material. Hale
quickly obtained these documents from the State through a simple public records request; it is
reasonable to assume that he could have discovered the records the same way many years earlier,
possibly even before he filed his state post-conviction petition. See State ex rel. Cincinnati
Enquirer v. Hamilton Cty., 662 N.E.2d 334, 336 (Ohio 1996) (Ohio’s Public Records Act “is
construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of
public records.”).
Moreover, none of this information was suppressed by the State. As Respondent points out,
even without his prison and parole records, Hale presumably knew the “favorable” information
within them that he now argues he would have presented at trial. He knew he behaved well in
prison, complied with his parole obligations, and that he reported to his parole officer where he
was living the week before the murder. This information was not in the State’s exclusive control
192

and therefore could not have been suppressed by the prosecution for purposes of Brady. Coe, 161
F.3d at 344.
The information in the police notes regarding the Cuffari interview also was not suppressed
by the State. Prosecutors informed defense counsel that Cuffari was going to testify and provided
his contact information; defense counsel could have interviewed him before trial. (See Doc. 8-4
(Trial Tr.) at 311.) Furthermore, Hale argues that the value of these police notes to the defense was
that they revealed the police “knew” that Green was bisexual. (Doc. No. 31 at 498 (citing Doc. No.
13-22 (Police Notes/Cuffari Interview)).) But Detective Baird told Hale that himself during Hale’s
first police interview, and he testified to it at trial; defense counsel could have investigated this
issue before trial and cross-examined Baird about it. (See Doc. No. 8-3 (Trial Tr.) at 494–95.) And
Cuffari’s testimony was consistent with his police interview in stating that he did not know Green
was bisexual. (See Doc. No. 8-4 (Trial Tr.) at 493.) The information in the notes, therefore, was
not suppressed.
The same is true of the police report concerning Green’s voicemail message for his
daughter. The prosecution had no obligation to produce to the defense a police report containing
double hearsay and speculative information about Green sounding suicidal, which had no apparent
value to the defense’s case or for impeachment purposes. Hale posits that without this information,
he “had no idea that it was important to interview Green’s family about his behavior in the days
leading up to his death . . . .” (Doc. No. 31 at 497.) But given Hale’s self-defense claim, it is
unreasonable to suggest that only this information would have prompted the defense to interview
persons who may have known about Green’s state of mind at the time of the murder. This
information was available from other sources and not suppressed by the prosecution. Coe, 161
F.3d at 344.
193

Hale, therefore, has failed to demonstrate the diligence in seeking to obtain this information
in state court necessary to satisfy § 2254(e)(2), and the record cannot be expanded to include these
documents. Nor has Hale shown that he was “unavoidably prevented” from discovering this until
2018 as required to seek additional post-conviction remedies at this point in Ohio. This claim is
procedurally defaulted. Moreover, Hale has not satisfied Brady’s threshold requirement of
suppression and therefore has not established cause and prejudice to excuse the default. Hale’s
twenty-third ground for relief is denied.
XIII. Twenty-Fourth Ground for Relief: Cumulative Error
Hale claims for his twenty-fourth ground for relief that cumulative error at his trial violated
his constitutional rights. (Doc. No. 13 at 229-31.) Respondent argues this claim is procedurally
defaulted, not cognizable on habeas, and/or meritless. (Doc. No. 17 at 150-53.) The Court need
not reach the issue of procedural default or the merits of this claim because it is unequivocally
non-cognizable on habeas review. The Sixth Circuit repeatedly has held that a claim of cumulative
trial error is not cognizable on federal habeas review. See, e.g., Williams, 460 F.3d at 816 (“[T]he
law of this Circuit is that cumulative error claims are not cognizable on habeas because the
Supreme Court has not spoken on this issue.”). This ground for relief is denied.
XIV. Twenty-Fifth Ground for Relief: Constitutionality of Ohio’s Death Penalty Scheme
Hale’s twenty-fifth ground for relief challenges Ohio’s death-penalty scheme as violating
the Fifth, Sixth, Eighth, and Fourteenth Amendments as well as international law. (Doc. No. 13 at
320–45.) Specifically, Hale argues that Ohio’s scheme: (1) imposes arbitrary and unequal
sentences; (2) provides unreliable sentencing procedures; (3) burdens the defendant’s right to a
jury; (4) requires submission of reports and evaluations; (5) contains a constitutionally invalid
statute when used to provide the aggravating circumstance for an aggravated-murder charge; (6)
194

contains two unconstitutionally vague provisions; (7) requires improper proportionality and
appropriateness review; (8) provides inadequate corrective process; and (9) violates international
law. (Id.)
Hale raised these claims to the Ohio Supreme Court on direct appeal, which summarily
denied them, see Hale, 892 N.E.2d at 907, and in post-conviction proceedings, see Hale, 2016 WL
4978449, at *8-9. The claims, therefore, are preserved for habeas review. Respondent asserts they
are meritless. (Doc. No. 17 at 153–54.)
The Supreme Court has “time and again reaffirmed that capital punishment is not per se
unconstitutional.” Glossip v. Gross, 576 U.S. 863, 881, 135 S. Ct. 2726, 192, L. Ed. 2d 761 (2015);
see also Gregg v. Georgia, 428 U.S. 153, 177, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Moreover,
the Sixth Circuit repeatedly has upheld the constitutionality of Ohio’s death-penalty scheme in
particular, rejecting many of the claims Hale asserts here. See Beuke, 537 F.3d at 652–53 (“Beuke
next challenges the constitutionality of Ohio’s death penalty scheme. His arguments are entirely
meritless and have been rejected by this court on numerous occasions. We therefore will afford
them minimal attention.”); Cooey v. Strickland, 604 F.3d 939, 944 (6th Cir. 2010); Cooey, 289
F.3d at 928; Buell v. Mitchell, 274 F.3d 337, 367–76 (6th Cir. 2001); Coleman v. Mitchell, 268
F.3d 417, 453 (6th Cir. 2001); Byrd, 209 F.3d at 539; Jamison v. Collins, 100 F. Supp. 2d 647,
759–67 (S.D. Ohio 2000).
Nevertheless, the Court will address each of Hale’s claims individually.
1. Imposes arbitrary and unequal punishment
Hale first claims that Ohio’s death-penalty scheme violates the Fourteenth Amendment’s
guarantee of equal protection and the Eighth Amendment’s protection against cruel and unusual
punishment, because it allows the death penalty to be imposed in an arbitrary and discriminatory
195

manner. (Doc. No. 13 at 320–21.) The Sixth Circuit repeatedly has rejected this argument. See,
e.g., Buell, 274 F.3d at 367; Byrd, 209 F.3d at 539. It has explained:
We note that the Ohio death penalty statute includes a number of capital sentencing
procedures that the United States Supreme Court held in Gregg v. Georgia, 428
U.S. 153, 188–95, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), specifically to reduce the
likelihood of arbitrary and capricious imposition of the death penalty. These
procedures include: (1) consideration of a pre-sentence report by the sentencing
authority; (2) jury sentencing where the jury is adequately informed and given
meaningful standards to guide its use of the information; (3) a bifurcated guilt
phase/sentencing phase trial; (4) weighing of aggravating circumstances and
mitigating factors; (5) a sentencing decision based on specific findings; and (6)
meaningful appellate review. In Gregg, the Court stated that the concerns expressed
in Furman could be met by “a carefully drafted statute that ensures that the
sentencing authority is given adequate information and guidance.” Gregg, 428 U.S.
at 195, 96 S. Ct. 2909. By complying with this requirement, the Ohio death penalty
statute significantly reduces the likelihood of arbitrary and capricious imposition of
the death penalty and does not run afoul of the Constitution.
Buell, 274 F.3d at 367. This claim fails.
2. Provides unreliable sentencing procedures
Hale next argues that Ohio’s death-penalty statute violates the Equal Protection and Due
Process Clauses by not requiring the state to prove the absence of any mitigating factors or that
death is the only appropriate penalty. (Doc. No. 13 at 322–23.) He also asserts that it is
unconstitutionally vague in defining the process of weighing aggravating and mitigating
circumstances. (Id.) The Sixth Circuit has rejected this argument as well, reasoning:
In Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the
Supreme Court upheld a statutory scheme for weighing aggravating circumstances
against mitigating factors that is similar to Ohio’s, which lays out specific
aggravating circumstances and mitigating factors that are to be considered at
sentencing. Ohio Rev. Code § 2929.04. The Court also has approved of a statute
that did not enunciate specific factors to consider or a specific method of balancing
the competing considerations. See Franklin v. Lynaugh, 487 U.S. 164, 172–73, 108
S.Ct. 2320, 101 L.Ed.2d 155 (1988); Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct.
2733, 77 L.Ed.2d 235 (1983). The Court has held that “it is constitutionally required
that the sentencing authority have information sufficient to enable it to consider the
character and individual circumstances of a defendant prior to imposition of a death
196

sentence.” Sumner v. Shuman, 483 U.S. 66, 72, 107 S. Ct. 2716, 97 L.Ed.2d 56
(1987) (quoting Gregg, 428 U.S. at 189–90 n. 38, 96 S. Ct. 2909). The sentence
imposed on Buell complies with Sumner as well as the Supreme Court’s holding in
Blystone, 494 U.S. at 305, 110 S. Ct. 1078, that a death penalty is constitutional if
it “is imposed only after a determination that the aggravating circumstances
outweigh the mitigating circumstances present in the particular crime committed
by the particular defendant, or that there are no such mitigating circumstances.” In
Buell’s case, both the jury at the penalty phase of trial and the reviewing courts
specifically considering the aggravating circumstances and mitigating factors
presented and determined that capital punishment was appropriate. By weighing
these specific considerations, it cannot be said that a mandatory death penalty was
imposed on Buell.
Buell, 274 F.3d at 368. This claim, therefore, also is unfounded.
3. Burdens defendants’ right to a jury
Hale further contends that Ohio’s statutory framework for the death penalty is
unconstitutional because it imposes an impermissible risk of death on capital defendants who
choose to exercise their right to a jury trial. (Doc. No. 13 at 324.) Hale, however, provides no
clearly established Supreme Court precedent supporting the argument. He cites dicta from Lockett,
438 U.S. at 617, but “clearly established Federal law” for purposes of § 2254(d)(1) includes “only
the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White, 572 U.S. at 419
(internal quotation marks and citations omitted). This claim lacks merit.
4. Requires submission of reports and evaluations
Hale also argues that Ohio’s death penalty statute Ohio Rev. Code § 2929.03(D)(1) is
unconstitutional because it requires the submission of the presentence investigation report and
mental evaluation to the jury or judge once requested by a capital defendant. (Doc. No. 13 at 324.)
He claims this mandatory submission prevents defense counsel from giving effective assistance
and prevents the defendant from effectively presenting his case in mitigation. (Id.) Again, as Hale

197

identifies no Supreme Court precedent clearly establishing that Ohio’s statute regarding these
reports and evaluations infringes on a capital defendant’s constitutional rights, this claim fails.
5. Fails to genuinely narrow the class of eligible individuals
Hale further contends that Ohio’s death-penalty scheme is unconstitutional because Ohio
Rev. Code § 2929.04(A)(7) fails to “‘genuinely narrow the class of persons eligible for the death
penalty and . . . reasonably justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.’” (Doc. No. 13 at 324 (quoting Zant v. Stephens, 462
U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983)).) Under that provision, he argues, if a
defendant commits murder during the commission of a felony, the felony can elevate a murder to
aggravated murder and serve as an aggravating circumstance, making the defendant eligible for
the death penalty without proof of an additional new factor. (Id. at 325.) The Sixth Circuit has
often rejected this argument as well. See, e.g., Beuke, 537 F.3d at 652–53; Buell, 274 F.3d at 369–
70; Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir. 2003).
6. “Nature and circumstances” language is unconstitutionally vague
Hale further argues that the phrase “nature and circumstances” is used both as a mitigating
factor in Ohio Rev. Code § 2929.04(B) and as a consideration in support of aggravating
circumstances in Ohio Rev. Code § 2929.03(D)(1), making Ohio’s death-penalty weighing
procedure unconstitutionally vague. (Doc. No. 13 at 326–28.) The Sixth Circuit renounced this
argument in Cooey v. Coyle, stating:
We find this argument meritless. The only conceivable way for a court properly to
weigh all the aggravating and mitigating circumstances is to take a hard look in
both instances at the “nature and circumstances of the offense.” We cannot
understand how the court’s analysis could possibly become “unconstitutionally
vague” by looking at the nature and circumstances of the offense in determining
both aggravating and mitigating circumstances. We cannot even imagine a
constitutional violation here.
198

Cooey, 289 F.3d at 927–28. This claim lacks merit.
7. Proportionality and appropriateness review
Hale next challenges the adequacy of Ohio’s statutorily-required appellate review of death
sentences to determine whether they were excessive or disproportionate compared to the penalty
imposed in other cases. (Doc. No. 13 at 328–30.) The Supreme Court has held, however, that
comparative review by an appellate court is not constitutionally required. Pulley v. Harris, 465
U.S. 37, 50–51, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984) (“There is . . . no basis in our cases for
holding that comparative proportionality review by an appellate court is required in every case in
which the death penalty is imposed and the defendant requests it.”); see also Bowling v. Parker,
344 F.3d 487, 521 (6th Cir. 2003) (“The Supreme Court has held that the Constitution does require
proportionality review, but that it only requires proportionality between the punishment and the
crime, not between the punishment in this case and that exacted in other cases.”) (citing Pulley,
465 U.S. at 50). And the Sixth Circuit repeatedly has upheld Ohio’s proportionality review system
as constitutional. See, e.g., Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 854 (6th
Cir. 2017) (collecting cases); Buell, 274 F.3d at 369 (noting that in “limiting proportionality review
to other cases already decided by the reviewing court in which the death penalty has been imposed,
Ohio has properly acted within the wide latitude it is allowed”). This claim fails.
8. Provides inadequate corrective process
Next, Hale contends that Ohio’s post-conviction relief scheme is unconstitutional. (Doc.
No. 13 at 330–32.) This claim also is not cognizable on federal habeas review. See, e.g., Cress v.
Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (“[E]rrors in post-conviction proceedings are outside
the scope of federal habeas corpus review.”); Leonard, 846 F.3d at 854–55 (declining to revisit
199

issue). As the Sixth Circuit has explained, “‘the essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure
release from illegal custody.’” Id. (quoting Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)).
Challenges to state post-conviction proceedings “address collateral matters and not the underlying
state conviction giving rise to the prisoner’s incarceration.” Kirby, 794 F.2d at 247. A due process
claim related to collateral post-conviction proceedings, therefore, even if resolved in a petitioner’s
favor, would not “result [in] . . . release or a reduction in . . . time to be served or in any other way
affect his detention because we would not be reviewing any matter directly pertaining to his
detention.” Id. Such claims, therefore, cannot be brought in federal habeas proceedings. Id. at 246.
This claim, too, fails.
9. Violates international law
Finally, Hale contends Ohio’s death-penalty scheme violates international law. (Doc. No.
13 at 332–35.) The Sixth Circuit examined this issue in great detail in Buell and rejected it. See
Buell, 274 F.3d at 370–76; see also Jamison, 100 F. Supp. 2d at 766 (“the Court finds no indication
that the international obligations of the United States compel elimination of capital punishment”).
As to the contention that the death penalty violates international agreements, the circuit court held:
We must conclude that Ohio’s imposition of the death penalty does not violate
any international agreements entered into by the United States. The agreements
upon which Buell relies do not specifically outlaw the death penalty. To the extent
that the agreements ban cruel and unusual punishment, the United States has
included
express
reservations
preserving
the
right
to
impose
the death penalty within the limits of the United States Constitution. Moreover,
neither agreement is binding on courts of the United States.
Buell, 274 F.3d at 372.
And the court rejected the argument that the death penalty violates customary international
law, stating that “[e]ven if [it] were to conclude that the abolition of the death penalty was a
200

customary norm of international law or rose to the higher level of being a peremptory norm or jus
cogens, we do not believe that this would be a sufficient basis for our court to invalidate
Ohio’s death penalty statute.” Id. at 373–74. This claim is meritless.
Accordingly, Hale’s twenty-fifth ground for relief is denied.
XV.

Twenty-Sixth Ground for Relief: Method of Execution
Hale’s twenty-sixth ground for relief asserts that Ohio’s lethal injection method of

execution violates the Eighth Amendment’s ban on cruel and unusual punishments. (Doc. No. 24
at 4–7.) Respondent argues this claim is not cognizable on habeas review and is procedurally
defaulted. (Doc. No. 33 at 76–81.)
Respondent contends Hale procedurally defaulted this claim by failing to present it to state
courts. (Id. at 155–56.) Hale counters that it is not defaulted because Ohio does not provide a forum
for method-of-execution challenges. (Doc. No. 31 at 543–44 (citing Scott v. Houk, 998 N.E.2d 835
(Ohio 2010)).) This Court need not address the procedural-default argument, however, because the
Court finds the claim is not cognizable on habeas corpus review.
The Supreme Court has affirmed the constitutionality of execution by lethal injection three
times in recent years: in Baze v. Rees, 553 U.S. 35,128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008);
Glossip v. Gross, 576 U.S. 863, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015); and Bucklew v.
Precythe, 139 S. Ct. 1112, 203 L. Ed. 2d 521 (2019). In Glossip, an action filed under 42 U.S.C.
§ 1983, the Supreme Court adopted the test for facial method-of-execution challenges established
by the controlling opinion in the fractured Baze decision: that prisoners must demonstrate that the

201

method presents a substantial risk of severe pain and there is a readily available alternative
procedure. Glossip, 576 U.S. at 877-78 (citing Baze, 553 U.S. at 50–52). 30
In so holding, the Supreme Court in Glossip indicated that Eighth Amendment method-ofexecution claims are not cognizable in habeas corpus. Generally speaking, habeas corpus petitions
challenge the validity of confinement or the particulars affecting its duration, while § 1983 actions
challenge the circumstances of confinement. See Nelson, 541 U.S. at 643. In Glossip, the Court
clarified that in an earlier decision, Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed.
2d 44 (2006), it “held that a method-of-execution claim must be brought under § 1983 because
such a claim does not attack the validity of the prisoner’s conviction or death sentence.” Glossip,
576 U.S. at 879. In Glossip, the Supreme Court explained that its line of method-of-execution
decisions “have been animated in part by the recognition that because it is settled that capital
punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means
of carrying it out.’” Id. at 869 (quoting Baze, 553 U.S. at 47). In other words, a habeas claim
challenging a method of execution is not likely to invalidate a death sentence and result in habeas
relief because there presumably will always be a feasible alternative method available. The Sixth
Circuit, in turn, held in In re Campbell, 874 F.3d 454 (6th Cir. 2015), that after Glossip, “[n]o
longer can a method-of-execution claim impair a death sentence itself. And since a method-ofexecution claim can no longer ‘attack the validity of the prisoner’s conviction or death sentence,’
a habeas court cannot act upon it.” Id. at 462 (citing Glossip, 576 U.S. at 879).

30

Notably, the Court further observed in Glossip that, “[w]hile methods of execution have changed over the years,
[the Supreme Court] has never invalidated a State’s chosen procedure for carrying out a sentence of death as the
infliction of cruel and unusual punishment.” Glossip, 576 U.S. at 869 (internal quotation marks and citation omitted).
Indeed, the Sixth Circuit repeatedly has upheld Ohio’s lethal-injection protocols as constitutional. See, e.g., In re Ohio
Execution Protocol Litigation (“IOEPL”), 881 F.3d 447, 454 (6th Cir. 2018) (October 2016 protocol), cert. denied,
139 S. Ct. 216 (2018); IOEPL, 860 F.3d 881, 884–85 (6th Cir. 2017) (October 2016 protocol); Cooey v. Strickland,
604 F.3d 939, 944 (6th Cir. 2010) (November 2009 protocol, “Plan B”).

202

Hale argues, however, that in the Supreme Court’s 2019 Bucklew decision, the Court
reversed course, making it “clear” that “habeas remains an appropriate forum for method-ofexecution litigation in certain circumstances.” (Doc. No. 31 at 542.) In Bucklew, a § 1983 action
challenging the constitutionality of Missouri’s lethal-injection method of execution, the Court held
that the Baze-Glossip test applies to both facial and as-applied Eighth Amendment challenges to a
method of execution. Bucklew, 139 S. Ct. at 1126–29. Hale derives his contention that Bucklew
establishes that habeas is after all a proper vehicle for method-of-execution claims from a single
explanatory parenthetical in the case. (Doc. No. 31 at 542.) In articulating its view that a petitioner
may look to another method that the state already has authorized or “a well-established protocol
in another State” to identify a readily available alternative procedure, the Supreme Court in
Bucklew noted a potential conflict might arise between a state’s current death penalty law and the
petitioner’s proposed Glossip alternative. Bucklew, 139 S. Ct. at 1128. The Court cited Hill, 547
U.S. at 582–83, for the proposition that “existing state law might be relevant to determining the
proper procedural vehicle for the inmate’s claim.” Bucklew, 139 S. Ct. at 1128. And it added a
parenthetical statement to the citation, quoting Hill: “if the relief sought in a 42 U.S.C. § 1983
action would ‘foreclose the State from implementing the [inmate’s] sentence under present law,’
then ‘recharacterizing a complaint as an action for habeas corpus might be proper’.” Id. (alteration
in original). Hale cites Bailey v. Wainwright, 951 F.3d 343 (6th Cir. 2020), a non-capital sentencing
case, as confirming his position that Bucklew abrogated Campbell.
But the Sixth Circuit explicitly rejected Hale’s argument in In re Smith, 806 F. App’x 462,
464–65 (6th Cir. 2020) (per curiam). It found the petitioner had “place[d] too much weight upon
the explanatory parenthetical in Bucklew” and declared, “Campbell is the law of this circuit and

203

remains binding law . . . .” The circuit court also was careful to distinguish its Bailey decision. See
id. at 465 n.3.
In light of In re Smith, Campbell remains controlling precedent. Hale’s method-ofexecution claim, therefore, is not cognizable on habeas corpus review, and his twenty-sixth ground
for relief is denied.
XVI. Twenty-Seventh Ground for Relief: Actual Innocence
In his twenty-seventh ground for relief, Hale claims that he is actually innocent of the
crimes for which he was convicted. (Doc. No. 13 at 350–56.) Respondent argues this claim is not
cognizable on habeas and meritless. (Doc. No. 17 at 156–63.)
In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Supreme
Court held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.” Id. at 404. The Court stated in dicta, however, that “in a capital
case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional” regardless of whether any constitutional violation
occurred during trial. Id. at 417. But the Court emphasized that “the threshold showing for such an
assumed right would necessarily be extraordinarily high.” Id.; see also House v. Bell, 547 U.S.
518, 520, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006).
Since Herrera, however, the Supreme Court has never applied a freestanding actual
innocence claim. McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S. Ct. 1924, 185 L. Ed. 2d 1019
(2013) (declining to resolve whether a freestanding actual innocence claim is cognizable on federal
habeas review). And the Sixth Circuit has held that such a claim is not a valid ground for habeas

204

relief. See, e.g., Smith v. Nagy, 962 F.3d 162, 207 (6th Cir. 2020); Cress v. Palmer, 484 F.3d 844,
854–55 (6th Cir. 2007).
Even if a “freestanding” claim of actual innocence were to apply here, Hale could not meet
its “extraordinarily high” standard. Hale supports this claim with new expert opinions. (Doc. No.
31 at 546–48.) But as discussed in relation to Hale’s eleventh ground for relief, this evidence is
neither new nor persuasive. It most certainly does not establish his factual innocence. This claim,
therefore, is both non-cognizable and unfounded.
XVII.

Motions for Discovery and to Expand the Record
Hale has filed a motion for discovery (Doc. No. 34) and motion to expand the record (Doc.

No. 37). Respondent opposes both motions. (Doc. Nos. 38, 39.)
A. Motion for Discovery
Hale seeks to conduct discovery on ten of his twenty-seven grounds for relief. (Doc. No.
34.) They are: ground one (jury selection); grounds three, eleven, and eighteen (ineffective
assistance of trial counsel); ground five (right to presence at trial); ground seven (invalid waiver
of right to testify); ground eight (trial-court error in permitting testimony of unqualified experts);
ground nineteen (adjudication of non-capital sentences); ground twenty-two (ineffective assistance
of appellate counsel); and ground twenty-three (prosecutorial misconduct/non-disclosure of
exculpatory evidence (Brady)). (Id. at 18–61.) He also seeks discovery of evidence that will assist
him in establishing cause and prejudice to excuse the procedural default of eleven of his grounds
for relief (grounds one, two (trial-court error/voir dire), three, five, seven, ten (miscellaneous trialcourt errors), eleven, fourteen (trial-court error/victim-impact evidence), eighteen, twenty-two,
and twenty-three) based on the ineffective assistance of trial, appellate, or post-conviction counsel.
(Id. at 61–68.)
205

A federal habeas petitioner, “unlike the usual civil litigant, is not entitled to discovery as a
matter of ordinary course.” Bracy, 520 U.S. at 904. Discovery in habeas cases is governed by Rule
6 of the Rules Governing Section 2254 Cases in the United States District Courts, which permits
petitioners to initiate discovery available under the federal civil rules “if, and to the extent that, the
judge in the exercise of his discretion and for good cause shown grants leave to do so, but not
otherwise.” Rules Governing § 2254 Cases, Rule 6(a). “Good cause” for discovery under Rule 6
exists only “‘where specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . .’”
Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082, 22 L. Ed.
2d 281 (1969)).
The burden is on the petitioner to demonstrate the materiality of the information requested.
See Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Habeas Rule 6 does not “sanction
fishing expeditions based on a petitioner’s conclusory allegations,” but requires “specific
allegations of fact.” Id. (internal quotation marks and citations omitted). When a habeas petitioner
“offers nothing more than vague musings on how [the desired discovery] might . . . unfold[,]” a
district court may correctly determine that he or she has “fail[ed] to satisfy the ‘good cause’
standard required to obtain habeas corpus discovery.” Stojetz, 892 F.3d at 207.
The Supreme Court’s decision in Pinholster, 563 U.S. 170, has further circumscribed the
availability of discovery in federal habeas proceedings. There, the Court held that “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
the merits.” Pinholster, 563 U.S. at 181. 31 Noting that § 2254(d)(1) review “focuses on what a

31

Review under § 2254(d)(2) is limited to evidence presented in the state-court proceedings by its express terms. See
28 U.S.C. § 2254(d)(2).

206

state court knew and did,” the Court reasoned that “[i]t would be strange to ask federal courts to
analyze whether a state court’s adjudication resulted in a decision that unreasonably applied federal
law to facts not before the state court.” Id. at 182. “‘Federal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in
state proceedings.’” Id. at 186 (quoting M. Williams, 529 U.S. at 427–29).
Under Pinholster, “district courts are precluded from conducting evidentiary hearings to
supplement existing state court records when a state court has issued a decision on the merits with
respect to the claim at issue.” Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013); see also
Bourne v. Curtin, 666 F.3d 411, 415 (6th Cir. 2012) (finding petitioner was not entitled to an
evidentiary hearing because the state courts had adjudicated his claim on the merits and, under
Pinholster, petitioner was “stuck with ‘the record that was before the state court’”). And the Sixth
Circuit consistently has held that Pinholster bars consideration of new evidence developed in
federal habeas proceedings that relates to claims adjudicated on the merits in state courts. See, e.g.,
Loza v. Mitchell, 766 F.3d 466, 494 (6th Cir. 2014) (“Loza’s selective prosecution claim was
adjudicated on the merits in state court, and, therefore, Pinholster requires us to consider only the
evidence that was before the state court when reviewing Loza’s claim.”); Moore v. Mitchell, 708
F.3d 760, 780–84 (6th Cir. 2013) (holding federal habeas court may not consider additional
evidence not presented to state courts even where parties jointly moved to expand the record to
include that evidence before Pinholster was decided); Sheppard v. Bagley, 657 F.3d 338, 344 (6th
Cir. 2011) (refusing to consider evidence adduced at federal evidentiary hearing in light of
Pinholster).
The Supreme Court did not address the availability of discovery in federal habeas
proceedings in Pinholster, however, and neither it nor the Sixth Circuit has directly addressed the
207

issue since Pinholster was decided. See, e.g., Davis v. Bobby, 2017 WL 2544083, at *3 (S.D. Ohio
June 13, 2017). Recently, however, the Sixth Circuit appeared to recognize Pinholster’s limitation
on discovery when finding a district court had properly denied a habeas petitioner’s motion for
discovery in part because the claim to which it applied “was adjudicated on the merits in state
court, [and the court’s] review [was] limited to the record that was before the state court.”
Guysinger v. Buchanan, No. 20-3285, 2020 WL 5405892, at *2 (6th Cir. July 16, 2020). And the
clear trend among district courts in this circuit is to apply Pinholster to limit discovery in habeas
proceedings and deny petitioners’ requests for discovery of evidence that Pinholster would bar
from their review. See, e.g., Broom v. Bobby, No. 1:10-cv-2058, 2018 WL 1621083, at *3–5 (N.D.
Ohio Apr. 4, 2018) (Boyko, J.); Lang v. Bobby, No. 5:12-cv-2923, 2014 WL 5393574, at *8 (N.D.
Ohio Oct. 23, 2014) (Zouhary, J.); Davis, 2017 WL 2544083, at *2–3 (collecting cases). As one
district court has observed: “It would defy logic to preclude a petitioner from developing factual
information in an evidentiary hearing [under Pinholster], but allow her to introduce the same
factual information via discovery and expansion of the record.” Caudill v. Conover, 871 F. Supp.
2d 639, 646 (E.D. Ky. 2012).
Federal habeas courts may consider new evidence, however, when deciding whether there
is cause and prejudice or actual innocence to excuse a procedurally defaulted claim. House, 547
U.S. at 537–38. But habeas courts have denied discovery requests related to procedurally defaulted
claims where the petitioner did not show that the discovery could produce evidence excusing the
default. See Williams v. Bagley, 380 F.3d at 975–76 (holding district court properly denied a habeas
petitioner’s discovery requests relating to procedurally defaulted ineffective-assistance claims
because the petitioner had not shown that the requested discovery could “resolve any factual
disputes that could entitle him to relief”); Owens v. Guida, No. 00-cv-2765, 2002 WL 1398544, at
208

*2 (W.D. Tenn. Jan. 9, 2002) (“Petitioner has not shown that she is entitled to conduct discovery
because the information sought would not have established cause and prejudice for the asserted
procedural default of her ineffective assistance of counsel claim.”).
In this case, Hale’s requests are extremely broad, seeking, for example: depositions of
every attorney (totaling eleven), investigator, mitigation specialist, and expert who has worked on
his case, as well as each of the prosecutors, his parole officers, and certain prison officials; the
prosecutors’ files on the case and the files of every agency involved in the investigation of Green’s
murder; and voluminous records relating to his jury-composition claims, including county voter
registration, drivers’ license, and jury and jury venire lists between 2000 and 2010, and an ODRC
list of all persons with felony convictions in Ohio during that time period. (See, e.g., Doc. No. 34
at 21–26.)
Respondent argues Hale has not shown good cause for any of the discovery he seeks,
because his requests are either precluded under Pinholster as the claims to which they relate were
adjudicated on the merits in state court, would not yield relevant evidence where the claims are
procedurally defaulted, or would be futile because the claims either are not cognizable on habeas
corpus review or plainly meritless. (See Doc. No. 35 at 3–4.) Moreover, he contends, many of the
requests are overbroad, extremely onerous, and unsupported by specific factual allegations. (See,
e.g., id. at 9–14.) This Court agrees.
First, as explained below, discovery on many sub-claims of the following claims are
precluded under Pinholster because Hale raised them in state court, where they were adjudicated
on the merits, specifically, grounds three, eleven, eighteen, and nineteen. (See id. at 17, 19, 20.)
Second, discovery is not warranted on claims that are clearly procedurally defaulted or on
the ineffective assistance of various counsel that he asserts as cause to excuse such defaults. As
209

explained below, Hale’s claims of ineffective assistance of trial counsel are either procedurally
defaulted themselves or meritless; any ineffective assistance of appellate counsel claims are
procedurally defaulted and cannot constitute cause for the default of other claims; and ineffective
assistance of post-conviction counsel does not constitute cause for the default of ineffectiveassistance-of-counsel claims as applied in this case. Accordingly, there is not good cause for
discovery on Hale’s unequivocally procedurally defaulted claims (all or portions of grounds one,
seven, fourteen, and twenty-two); or on the ineffective assistance of counsel asserted as cause for
other defaulted claims. Moreover, the discovery Hale seeks relating to ineffective assistance is
overly broad and onerous.
Third, Hale has not shown good cause for his request for discovery of his first ground (juryselection process), as it is unlikely to succeed and also is extremely onerous.
Hale’s motion for discovery is denied.
B. Motion to Expand the Record
Hale also asks the Court to expand the record to include twenty-five exhibits. (Doc. No.
37.) They are: expert reports of a forensic psychiatrist, forensic pathologist, bloodstain pattern
expert, and sexual abuse and trauma expert (Doc. Nos. 13-1, 13-2, 13-5, 13-6); affidavits of Hale’s
sisters regarding testimony they could have provided for mitigation purposes at the sentencing
phase of trial (Doc. Nos. 13-3, 13-4); general information about gunshot residue (Doc. No. 13-7);
various documents relating to Cuyahoga County’s jury-selection process (Doc. Nos. 13-8 – 13-15);
juror questionnaires from his trial (Doc. Nos. 13-16 – 13-19); Hale’s declaration relating to his
decision whether to testify at trial (Doc. No. 20); a police report about a voicemail Green left on
his daughter’s phone shortly before the murder that Green’s niece said “almost sounded like a
suicide call” (Doc. No. 13-21); Hale’s parole records (Doc. No. 13-22); general information about
210

overdraft loan programs (Doc. No. 13-23); police notes regarding an interview with State witness
Ricardo Cuffari (Doc. No. 13-24); and Hale’s prison records (Doc. No.13-25). This evidence, Hale
asserts, supports his habeas claims relating to: (1) unconstitutional jury-selection procedures; (2)
trial-court errors in voir dire; (3) ineffective assistance of counsel; (4) his right to testify; (5)
prosecutorial misconduct in suppressing material exculpatory or impeachment evidence; and (6)
actual innocence. (See Doc. No. 39 at 10–25.) He further contends the evidence supports his
assertions of cause and prejudice through the ineffective assistance of trial, appellate, and postconviction counsel. (See, e.g., id. at 7.) Respondent does not oppose Hale’s request regarding the
jury questionnaires (Doc. Nos. 13-13, 13-16 – 13-19) because they were part of the state-court
record, but otherwise opposes the motion. (Doc. No. 38 at 2.)
Rule 7 of the Rules Governing Section 2254 Cases confers on district courts the authority
to expand the record with “additional materials relating to the petition.” Rules Governing Section
2254 Cases, Rule 7(a). The decision whether to order an expansion of the record under Rule 7
generally falls within the sound discretion of the district court judge. Ford v. Seabold, 841 F.2d
677, 691 (6th Cir. 1988).
Motions to expand the record under Rule 7 must meet the standards of AEDPA’s
§ 2254(e)(2), although that provision is expressly directed only at evidentiary hearings. Holland,
542 U.S. at 653 (“Those same restrictions [of § 2254(e)(2)] apply a fortiori when a prisoner seeks
relief based on new evidence without an evidentiary hearing.”) (emphasis in original). Section
2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that –
(A)

the claim relies on –
211

(i)

a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or

(ii)

a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B)
the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2).
In M. Williams, 529 U.S. 420, the Supreme Court held that “[u]nder the opening clause
of § 2254(e)(2), the failure to develop the factual basis of a claim is not established unless there is
lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id.
at 432. The Court defined this diligence requirement, which is separate from the heightened
standard of § 2254(e)(2)(A)(ii), as “a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court.” Id. at 435. “Diligence will require in the
usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law.” Id. at 437. Thus, a habeas petitioner may introduce new evidence in
support of a claim “only if [the petitioner] was not at fault in failing to develop that evidence in
state court, or (if he was at fault) if the conditions prescribed in § 2254(e)(2) were met.” Holland,
542 U.S. at 652–53.
Respondent argues that Hale has not met the requirements of § 2254(e)(2), but has
“intentionally by-passed the state courts and raised claims for the first time in federal court, thus
defaulting his claims”—a practice AEPDA was enacted in part to prevent. (Doc. No. 38 at 4.) Hale
contends that he was diligent in 2007 in his state post-conviction proceedings in requesting an
212

evidentiary hearing and seeking funding to retain experts in legal representation, substance abuse,
cultural, grief/loss, and neurology—both of which were denied. (Doc. No. 39 at 7, 19 (citing Doc.
No. 7-4 at 36–59; Doc. No. 7-5 at 23–39).) He offers no evidence that he or his counsel made any
attempt to obtain the proffered evidence until eleven years later, when his federal habeas counsel
collected it while preparing his petition. (See, e.g., Doc. No. 37 at 8, Doc. No. 37-1.) But he
contends this apparent lack of diligence was the fault of his post-conviction counsel. (Doc. No. 39
at 19.) He notes that “‘a person is not at fault when his diligent efforts to perform an act are
thwarted, for example, by the conduct of another or by happenstance.’” (Id. (quoting M. Williams,
529 U.S. at 432).)
Hale’s motion is granted as to two groups of the submitted materials. First, Hale was not
at fault for failing to develop sooner his fair-cross-section and equal-protection claims relating to
Cuyahoga County’s jury-selection process (Doc. Nos. 13-8 – 13-15). The factual predicate of these
claims was not apparent or readily available to Hale or his counsel at trial or before his postconviction proceedings. See Ambrose, 684 F.3d at 645–46 (“to suggest that an effective defense
attorney must investigate the jury assembly process in every case conditioned upon his client’s
loss of the right is unnecessary and wasteful”) (internal citation and quotation marks omitted).
Second, Hale’s request to introduce the juror questionnaires (Doc. Nos. 13-13, 13-16 – 13-19), to
support his claim of trial-court error during voir dire and related ineffective-assistance claims, also
is granted, as the questionnaires were part of the state-court record.
Hale has not satisfied § 2254(e)(2)’s threshold diligence standard as to the remaining
proffered evidence, however, by showing that he made “a reasonable attempt, in light of the
information available at the time, to investigate and pursue the claims in state court.” M. Williams,
529 U.S. at 435. As Hale asserts, he requested and was denied an evidentiary hearing and funding
213

for experts in state post-conviction proceedings. See Hale, 2016 WL 4978449, at *1. But those
requests did not relate to the same claims or concern the same evidence at issue here. And, notably,
even without a hearing, the post-conviction state appellate court provided a thorough analysis of
the merits of Hale’s ineffective-assistance claims and considered the numerous supporting
exhibits. See id. at *2–7. Aside from one claim, 32 Hale concedes he never raised the claims in state
court that he now seeks to support with new evidence—namely, ineffective assistance of counsel
for failure to investigate and retain experts, wrongful suppression of evidence, right to testify, and
actual innocence. (See Doc. No. 31 at 312.) And he has not identified any efforts by counsel to
develop these claims in state court or any efforts of his own to pursue possible omissions by his
counsel relating to these matters during post-conviction proceedings. See M. Williams, 529 U.S. at
439.
Hale cannot blame his post-conviction counsel for this lack of diligence either. The
Supreme Court made it clear in M. Williams that the diligence required under the opening clause
of § 2254(e)(2) applies to both the petitioner and his counsel; if either are at fault for failing to
develop the evidence in state court, the stricter conditions of § 2254(e)(2)(A) and (B) will apply.
See, e.g., M. Williams, 529 U.S. at 425 (explaining diligence under § 2254(e)(2)’s opening clause
requires a showing of “some greater fault, attributable to the prisoner or the prisoner’s counsel”)
(emphasis added); 439–40 (“Counsel’s failure to investigate these references in anything but a

32

That claim is ineffective assistance of trial counsel for failing to present his testimony, which Hale raised on direct
appeal in state court and the Ohio Supreme Court adjudicated on the merits. See Hale, 892 N.E.2d at 905–06. Hale
now offers his own declaration (Doc. No. 13-20) in support of this claim as well as new claims asserting his right to
testify and ineffective assistance of trial counsel in coercing him not to testify. (See grounds for relief seven and
eleven.) Hale’s declaration also cannot be considered in reviewing the ineffective-assistance claim he raised in state
court under Pinholster, because, as explained above, the Sixth Circuit consistently has held that Pinholster bars
consideration of new evidence developed in federal habeas proceedings that relates to claims adjudicated on the merits
in state courts. See, e.g., Loza, 766 F.3d at 494; Moore v. Mitchell, 708 F.3d 760, 780–84 (6th Cir. 2013).

214

cursory manner triggers the opening clause of § 2254(e)(2).”). Counsel’s omissions, therefore, do
not excuse a lack of diligence under § 2254(e)(2), they constitute a lack of diligence under that
provision.
Hale argues that the remaining, non-jury-related exhibits support his claims of ineffective
assistance of counsel for failing to investigate and present evidence at trial. The record shows,
however, that he and his counsel were on notice of the information he claims should have been
developed and presented at trial, and it could have presented at his post-conviction proceeding.
First, Hale submitted numerous expert reports at his post-conviction petition, which the appellate
court considered. See Hale, 2016 WL 4978449, at *2–7. He could have pursued and acquired the
additional expert opinions he now proffers (Doc. Nos. 13-1, 13-2, 13-5, 13-6). Hale also either
knew the information his sisters now attest they could have presented for mitigation purposes at
trial, or at least was aware they were able to provide relevant and favorable mitigation evidence
(Doc. Nos. 13-3, 13-4). Hale and his counsel also were on notice that issues relating to gunshot
residue and Hale’s financial difficulties at the time of the murder were relevant to his defense, and
general information on these topics was readily available (Doc. Nos. 13-7, 13-23). Given Hale’s
self-defense claim, Green’s state of mind at the time of the offense also was an apparent avenue of
inquiry for Hale and defense counsel, and they could have investigated this matter before trial or
post-conviction proceedings (Doc. No. 13-21). Further, Cuffari was a disclosed State witness,
whom defense counsel could have interviewed before trial and did cross-examine (Doc. No.
13-24). Hale also clearly was aware of, and presumably knew, the favorable information regarding
his positive institutional adjustment and parole compliance contained in his prison and parole
records (Doc. Nos. 13-22, 13-25). And, finally, Hale obviously knew the contents of his
declaration about his desire to testify at trial and disagreement with counsel on that subject; by its
215

very nature, this evidence could have been presented to the state court had Hale been diligent (Doc.
13-20). “[I]f, as [Hale] contends, a reasonable investigation would have revealed the evidence
discussed above, then it should have been developed in relation to his ineffective assistance claims
during his first postconviction proceeding.” Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
Moreover, Hale’s arguments that this evidence also supports his claims regarding his right
to testify, the prosecution’s alleged suppression of evidence (as discussed in greater detail in
relation to Hale’s twenty-third ground for relief), actual innocence, and cause and prejudice for
procedural default do not alter the Court’s conclusion that Hale has failed to demonstrate that he
was diligent in his efforts to develop the factual bases of these claims.
Hale’s failure to satisfy the diligence requirement of § 2254(e)(2) triggers the strict
requirements of § 2254(e)(2)(A) & (B), which Hale does not claim to have satisfied and which, as
explained in relation to Hale’s grounds for relief three, seven, eleven, eighteen, twenty-three, and
twenty-seven, he cannot meet. Section 2254(e)(2), therefore, precludes admitting into the record
all of the submitted exhibits except the jury questionnaires and exhibits related to his jury-selection
claim. See, e.g., West v. Bell, 550 F.3d 542, 551 (6th Cir. 2008) (noting district court did not abuse
its discretion to deny expansion of the record with evidence not presented to the state courts when
inmate initially raised his claims).
Accordingly, Hale’s motion to expand the record is granted with respect to proposed
exhibits eight through nineteen (Doc. Nos. 13-8 through 13-19) and denied as to the remaining
exhibits (Doc. Nos. 13-1 through 13-7; 13-20 through 13-25). 33

33

Even though he attaches the documents necessary for the Court to address his claims (which the Court has
considered), Hale also requests that he be permitted to introduce into the record “the entirety of the juror questionnaires
for completeness of the record and to have a full picture of the voir dire in this case.” (Doc. No. 37 at 15.) The Court
grants this request because, as stated previously, the juror questionnaires are part of the state-court record, and, as Hale
argues, all of the questionnaires should be included in the record in the interest of having a complete state-court record

216

CERTIFICATE OF APPEALABILITY ANALYSIS
The Court must now determine whether to grant a Certificate of Appealability (“COA”)
for any of Hale’s claims for relief. The Sixth Circuit has held that neither a blanket grant nor a
blanket denial of a COA is an appropriate means by which to conclude a capital habeas case as it
“undermine[s] the gate keeping function of certificates of appealability, which ideally should
separate the constitutional claims that merit the close attention of counsel and this court from those
claims that have little or no viability.” Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see
also Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for certificate of
appealability for district court’s analysis of claims).
Habeas courts are guided in their consideration of whether to grant a COA by 28 U.S.C. §
2253, which provides in relevant part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from –
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA
statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole
difference between the pre- and post-AEDPA statutes is that the petitioner must now demonstrate

in these federal habeas proceedings. Accordingly, Hale is ordered to submit the remaining juror questionnaires from
his trial-court record within fourteen days of this Court’s judgment on his petition.

217

he was denied a constitutional, rather than federal, right. Slack v. McDaniel, 529 U.S. 473, 483–
84, 529 U.S. 1595, 146 L. Ed. 2d 542 (2000) (interpreting the significance of the revision between
the pre- and post-AEDPA versions of that statute).
Furthermore, if a habeas claim is not procedurally defaulted, then the court need only
determine whether reasonable jurists would find the district court’s decision “debatable or wrong.”
Id. at 484. A more complicated analysis is required, however, when assessing whether to grant a
COA for a claim the district court has determined is procedurally defaulted. In those instances, a
COA should only issue if “jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.
After taking the above standards into consideration, the Court finds as follows:
The Court will not issue a COA for grounds for relief: three, five, six, ten, eleven, twelve,
thirteen, fifteen, eighteen (except for the ineffective-assistance claim related to the Blakely claim),
twenty-one, twenty-three, and twenty-five. No jurist of reason would debate the Court’s
conclusions on these claims.
No COA will issue for grounds for relief: one, two, four, seven, eight, fourteen, eighteen,
twenty, twenty-two, because they are unequivocally procedurally defaulted.
In addition, no COA will issue for grounds for relief: nine, twenty-four, twenty-six, and
twenty-seven because they are not cognizable on federal habeas review.
The Court will issue a COA for Hale’s nineteenth ground for relief based on Blakely v.
Washington, 542 U.S. 296 (2004), and the related sub-claim of Hale’s eighteenth ground for relief
asserting trial counsel’s ineffective assistance in failing to object on grounds established in Blakely.
A reasonable jurist could debate the Court’s conclusions regarding these claims.
218

CONCLUSION
For the foregoing reasons, this Court denies Hale’s Petition for Writ of Habeas Corpus
(including the amended twenty-sixth ground for relief). (Doc. Nos. 13, 24-1). The Court further
certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could be taken in
good faith as to the nineteenth ground for relief and related sub-claim of the eighteenth ground for
relief, and the court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal
Rule of Appellate Procedure 22(b) as to those claims only. As to all remaining claims, the court
certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken
in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C.
§ 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.

Dated: March 31, 2021
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

219