Carter v. Bradshaw

Filing 231

Memorandum of Opinion and Order For the reasons set forth herein, the Court denies Petitioner Sean Carter's Amended Petition for Writ of Habeas Corpus. ECF No. 129 . 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 Carter's First ground for relief regarding his competency to stand trial, Second ground for relief relating to his trial counsel's ineffective assistance during the miti gation phase of trial, and Fifth ground for relief relating to his trial counsel's ineffective assistance regarding his competency to stand trial. The Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal R ule 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). Judge Benita Y. Pearson on 9/30/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SEAN CARTER,

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Petitioner,
v.
MARGARET BRADSHAW,
Respondent.

CASE NO. 3:02CV524

JUDGE BENITA Y. PEARSON

ORDER
[Resolving ECF No. 129]

Before the Court is Petitioner Sean Carter’s amended petition for writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254.1 Through this petition, Carter challenges the constitutionality
of his convictions and death sentence, rendered by an Ohio court. ECF No. 129. Respondent
Margaret Bradshaw2 (“the State”) filed an amended return of writ. ECF No. 138. Carter then
filed an amended traverse. ECF No. 226. For the following reasons, the Court denies Carter’s
amended petition for writ of habeas corpus.
FACTUAL HISTORY
On September 25, 1997, an Ohio county grand jury indicted Carter for the aggravated
murder and rape of his adoptive grandmother, Veader Prince. The Ohio Supreme Court set out

1

This case was transferred to the undersigned from United States District Court
Judge Peter C. Economus on June 1, 2011.
2

From the parties’ filings, it appears that Norm Robinson, not Margaret
Bradshaw, is the current Warden. For consistency with the docket, however, the Court
continues to list Margaret Bradshaw as the defendant.

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2

the following account of Carter’s crime upon considering Carter’s direct appeal of his conviction
and sentence:
Evely Prince Carter adopted Sean Carter when he was ten years old. Carter
had been taken from his birth mother in 1981, due to neglect and abuse. Evely
Carter lived in close proximity to her mother, Veader Prince (“Prince”), the victim
in this case. In February 1997, Carter had been thrown out of Evely Carter’s house
and began living with Prince, his adoptive grandmother. He stayed there until July
1997, when he was incarcerated at the Geauga County Jail for theft.
On Saturday, September 13, 1997, Vernon Prince, Prince’s son, stopped
by to see his mother and noticed Carter sleeping in her house. Prince was not
there. As Vernon Prince was leaving, Prince pulled in the driveway and upon
being questioned, told Vernon Prince that she did not know that Carter was there.
Prince and Vernon Prince went inside the house and Prince talked to Carter. When
she came out of the room where Carter had been sleeping, Prince asked Vernon
Prince to give Carter the keys and title to his car (blue 1984 Chevette) so that
Carter could leave. Vernon Prince complied with this request. Vernon Prince also
gave his mother some money ($250) before he left. At that time, Carter was still in
Prince’s house.
That same day, Evely Carter worked from 2:00 p.m. until 10:00 p.m.
During her shift, she received a telephone call from her husband, informing her
that Carter had been released from jail. She stopped at Prince’s house after she got
off work, arriving at 10:45 p.m. She tried to enter the door and found that it was
locked, something her mother had never done. She knocked on her mother’s
window and then her mother opened the door.
Prince explained to Evely Carter that the door was locked because she
“told that boy [Carter] that he wasn’t allowed to come back here.” When Evely
Carter saw her mother that night, Prince was wearing a white turban with a long
john top underneath a white T-shirt and long john bottoms.
Evely Carter went to work the next day, Sunday, September 14, and did
not get off work until 11:00 p.m. Her husband called her at work and told her that
she should check on her mother because no one could find her. Evely Carter went
to Prince’s house. She entered and called out for her mother. There was no
answer. She left Prince’s house to get her husband and returned with him to
Prince’s house. At that time it was midnight.
Also on Sunday, another of Prince’s sons, Travis Prince, had gone to
Prince’s house around 10:00 a.m. He had walked into her bedroom and heard

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water running in the bathroom. Though the door to the bathroom was closed, he
could tell the light was on. He went into the kitchen of the house and saw chicken
in a pot on the stove, simmering. Travis Prince left the house.
When he returned later in the day, he saw the same scene. This time, he
opened the bathroom door, and upon discovering that it was empty, he turned the
water off. He yelled for his mother and, getting no answer, became alarmed. He
returned to the kitchen to turn off the stove and then began going through each
room calling for his mother.
After searching the house and yard, he returned to the kitchen and noticed
a note on the table that said, “Took Sean to the hospital.” At that point he had not
noticed any blood in the house. He did not think it was Carter, because he
believed that Carter was still in the county jail. Since he could not find her, her
purse, or her keys, he decided that his mother must have given a ride to someone,
and ceased being concerned. Travis Prince left the house around 7:00 p.m., and
returned to his apartment.
When he arrived home, he called his brother-in-law, Jerry Carter (Evely
Carter’s husband), and asked if he had seen Prince, but he had not. Jerry Carter
went to Prince’s house and could not find Prince. He told Travis Prince that Evely
Carter would check again at 11:00 p.m., after she got off work. Travis Prince met
the Carters at his mother’s house around 11:15 p.m., and talked to neighbors to
see if they knew anything about Prince’s absence. Jerry and Evely Carter and their
nephew, James Shoper, began to search the area.
They searched the garage and the cars in the driveway. Evely Carter
noticed a garbage bag with clothes in one of the vans. They went back into the
house, and then down into the basement. Evely Carter noticed a chair that had
blood on it. As they continued searching the basement, they saw Prince’s feet
sticking out of a pile of clothes on the basement floor. They called the police
immediately.
Once the clothes were removed, Prince was found lying face down on the
basement floor. She was wearing only a white T-shirt, which was covered with
blood and had holes. Her glasses were pushed up on her head and one of the
lenses was missing, found later on the floor of the basement. Her dentures were
discovered in the master bedroom. Prince’s body appeared to have lacerations on
her hands and face. Police found significant bloodstains on the carpet in the
master bedroom, on a couch, and on the mattress. They also found droplets and
stains of blood on the stairs and the walls leading to the basement.

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An autopsy revealed that Prince had suffered eighteen stab wounds, a
subarachnoid hemorrhage caused by blunt trauma, abrasions, and contusions to
her right thigh. The left side of her face was swollen, indicating blunt trauma. One
stab wound nicked the aorta, which was the immediate cause of death. Other
forensic testing revealed the presence of sperm, located on a swab taken from the
rectum of the victim. The swabs taken of the mouth and vagina were negative.
DNA testing matched the rectal swab to Carter.
After talking to the family during the investigation, the police placed a
“pick-up and hold” order on Carter. They learned that another of Prince’s sons had
been in jail with Carter, and that Carter had made a remark to him about not
getting along with his grandmother.
On September 15, 1997, Daniel Hepler, a police officer with the Chippewa
Township Police in Beaver County, Pennsylvania, was on patrol when he noticed
a vehicle backed in among some small trees. The car had Ohio plates and he
called the dispatcher to run the plate number. Hepler approached the vehicle and
noticed a person (Carter) sleeping in the back seat. He knocked on the window
and asked Carter to get out of the car. Carter had no identification or registration
information for the vehicle. Carter told Hepler his name was “Bill Carl” and gave
him a date of birth; a computer search revealed that no such person existed. The
license plate information came back as registered to a Chrysler vehicle, even
though the vehicle was a Chevrolet. Because the name and date of birth provided
by Carter were false and the car’s registration was fraudulent, Hepler told Carter
that he was going to issue a citation and tow the car.
While waiting for the tow truck to arrive, Hepler did a plain view
inspection of the car for personal effects. Carter stated he did not want anything
from the car. Hepler found two sets of keys and some money, which he gave to
Carter. When the tow truck arrived, Hepler transported Carter to the police
department. Carter appeared confused and kept asking Hepler where he was.
When the vehicle registration came back as not matching the vehicle,
Hepler obtained the vehicle identification number (VIN) and ran it through the
computer. The car was registered to Vernon Prince. Hepler obtained a phone
number and telephoned the Prince residence. The woman who answered the
phone informed Hepler that the man he had in custody was wanted for murder.
Hepler contacted the Trumbull County Sheriff’s Department and verified
that Carter was wanted for questioning relating to a murder. Carter was placed in a
holding cell while detectives from the sheriff’s department traveled to
Pennsylvania.

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Major James Phillips, Sergeant Hyde, and Lieutenant Borger traveled to
Chippewa Township to question Carter. After giving Carter his Miranda warnings
and obtaining a waiver of his rights, Phillips and Hyde obtained an audio and
video confession to the murder of Veader Prince.
According to Carter’s confession, after he obtained the car keys from
Vernon Prince, he left Prince’s house and drove around for a while. He attempted
to stay at his aunt’s house, but could not. He returned to Prince’s house and, since
the door was locked, climbed through the bedroom window. He had called out to
Prince, hoping to convince her to allow him to stay there for a week. They got into
an argument and Prince told him to leave. He kept telling her that he had nowhere
to go.
She tried to push him out the door and he started to beat her. At some
point, he got a knife from the kitchen and started stabbing her. He described it as
just “going off” and could not provide exact details of what happened during the
assault, although he did remember hitting her in the face and stabbing her in the
neck.
The next thing Carter remembered was being in the kitchen and washing
his hands and the knife. He walked downstairs and saw Prince on the basement
floor and then started to cover things up. He covered her with some clothes,
moved the couch in her bedroom to cover up blood on the carpet, turned the water
on in her bathroom and closed the door, and put a chicken in a pot on the stove
and turned the stove on. He left a note on the kitchen table saying, “Took Sean to
the hospital” in case someone saw blood in the house. He changed his clothes,
since they were bloody. He then took about $150 from her purse and left.
He originally took her keys, thinking he would take one of her vans, and
actually put his bag of clothes in the van, but could not get the van started. He got
into Vernon Prince’s car and drove off. Since he did not have a license plate, he
stopped to steal a plate from a car in Garrettsville. To remove and transfer the
plates to his car, he used the knife that he had stabbed his grandmother with.
Upon direct questioning by the officers, Carter denied taking off his
grandmother’s clothes or raping her, but admitted she was wearing only a T-shirt
when he left her. After Carter signed a waiver allowing his car to be searched, the
knife was found in the car. He waived extradition and was brought back to Ohio
for prosecution.

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State v. Carter, 89 Ohio St. 3d 593, 593–97, 734 N.E.2d 345, 347–50 (Ohio 2000). These facts
are entitled to a presumption of correctness until rebutted by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010).
PROCEDURAL HISTORY
A.

State-Court Proceedings

The Trumbull County Grand Jury indicted Carter on four counts on September 25, 1997.
The first count was for aggravated murder in violation of Ohio Rev. Code § 2903.01(B). The
aggravated murder charge carried three capital specifications: that the murder was committed
while Carter was committing, attempting to commit, or fleeing immediately after committing or
attempting to commit aggravated burglary, aggravated robbery, and rape, all in violation of Ohio
Rev. Code § 2929.04(A)(7). Carter also was indicted for aggravated burglary in violation of
Ohio Rev. Code § 2911.11(A)(1); aggravated robbery in violation of Ohio Rev. Code §
2911.01(A)(1) and/or § 2911.01(A)(3); and rape in violation of Ohio Rev. Code § 2907.02(A)(2).
App. vol. I at 51–53.
Carter’s trial commenced on March 12, 1998. Trial Tr. vol. VIII at 2237. Attorneys
Anthony Consoldane and James Lewis represented him. On March 20, 1998, a jury found Carter
guilty of aggravated murder and two of the capital specifications, those relating to aggravated
robbery and rape. The jury also found Carter guilty of aggravated robbery, rape, and the
lesser-included offense of criminal trespass on the aggravated burglary charge. Trial Tr. vol. XV
at 3243–45. Following a mitigation hearing, on March 26, 1998, the jury rendered a verdict of
death for the aggravated murder of Prince. Trial Tr. vol. XVI at 3408. On April 2, 1998, the trial
court adopted the recommendation of the jury and sentenced Carter to death for aggravated

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murder. Id. at 3421–22. The court also sentenced Carter to a thirty-day term of imprisonment
for the criminal-trespass conviction, ten years for the aggravated-robbery conviction, and ten
years for the rape conviction. Id. at 3413-14.
Carter filed a timely appeal to the Trumbull County Court of Appeals on May 11, 1998.
App. vol. III at 4–5. He was represented by Thomas Zena and John Juhasz. See id. at 63. He
raised fourteen propositions of law, which he stated as follows:
1.

Failure to allege every element of a crime in the indictment results in a
void conviction; and, in a capital case where the death penalty
specification is based upon such offense, the death sentence is likewise
void. Ohio Const. art. I, §§ 1, 2, 9, 10, and 16.

2.

Failure of a trial court to instruct a jury on lesser[-]included offenses, when
warranted by the evidence, deprives a capital defendant of the ability to
remain free from cruel and unusual punishment, and deprives a capital
defendant of due process of law because the failure to instruct on
lesser[-]included offenses impermissibly restricts the jury’s choice to a
finding of guilty on capital murder or acquittal. Ohio Const. art. I, §§ 1, 2,
9, and 16; U.S. Const. amend. VIII and XIV.

3.

A criminal defendant is denied his right to a fair trial in violation of U.S.
Const. amend. VI and XIV, and Ohio Const.[] art. I, §§ 1, 2, 5, 10, and
16[,] when the prosecuting attorney impermissibly bolsters witness[’s]
testimony and engages in misconduct and improper argument.

4.

U.S. Const. amend. XIV and Ohio Const. art. I, §§ 1, 2, and 16, require
[the] trial court, when presented with bona fide evidence and good faith
claims that a criminal defendant is incompetent to stand trial, to examine
all reasonably available evidence.

5.

Ineffective assistance of counsel violates not only a capital defendant’s
rights to effective counsel under U.S. Const. amend. VI and XIV[,] and
Ohio Const. art. I, §§ 1 and 10; but also rights to a fair and impartial jury
trial and a reliably determined sentence, as guaranteed by [] U.S. Const.
amend.[] V, VI, VIII, and XIV and by Ohio Const.[] art. I, §§ 5, 9, 10, and
16.

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6.

A reviewing court may not compare death sentences only with other death
sentences and still follow the constitutional demands for a proportionality
review, nor may a reviewing court conduct a meaningful proportionality
review without sufficient data on jurors’ rationale for choosing a life
sentence over the death penalty, for to do so violates the guarantees of
U.S. Const. amend. VIII and XIV; Ohio Const. art. I, §§ 1 and 9.

7.

The Ohio capital laws, both as enacted and as interpreted, deny a capital
defendant meaningful appellate review, an indispensable ingredient in
imposing a death sentence consistent with U.S. Const. Amend. VIII and
XIV and Ohio Const. art. I, §§ 1, 2, 9, and 16.

8.

Ohio Const. art. IV, §§ 2(B)(2)(c) and 3(B)(2), as amended, deprive[] a
defendant sentenced to death [of] due process of law, equal protection of
the laws, Ohio Const. art. I, §§ 1, 2, and 16; and the exercise of a weight[-]
of[-]the[-]evidence review by the Supreme Court of Ohio is not authorized
by the Ohio Constitution.

9.

Ohio’s death penalty law, Ohio Rev. Code Ann. §§ 2903.01, 2929.02,
2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 violates
U.S. Const. amend. V, VI, VIII, and XIV and the immunities specified in
Ohio Const.[] art. I, §§ 1, 2, 5, 9, 10, and 16.

10.

The preclusion of a mercy instruction prohibits trial juries from
recommending life sentences where the aggravating circumstances
outweigh the mitigating factors, but the jurors nonetheless conclude that
the death sentence is not appropriate; therefore, Ohio’s death penalty, with
its mandatory death sentences[,] under certain circumstances violate[s] the
state and federal constitutions.

11.

The Ohio death penalty law involves an excessive and imprecise use of
government power so as to encroach upon the “inalienable” liberties
specified in the Ohio Constitution; Ohio Const. art. I, §§ 1, 2, 9, 10, 16,
and 20.

12.

Fundamental fairness and due process prohibits executions as a form of
punishment. U.S. Const. amend. XIV; Ohio Const. [a]rt. I, § 16.

13.

The death penalty violates U.S. Const. amend. VIII and XIV and Ohio
Const. art. I, §§ 1, 2, 9, and 16[,] since the methods of execution violate
evolving standards of human decency, an integral part of due process.

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Imposition of a sentence of death upon a youthful offender with a poor
family upbringing, inattention to psychological problems, and a resulting
psychosis or antisocial personality is cruel and unusual punishment. U.S.
Const. amend. VIII and XIV; Ohio Const. art. I, § 9.

App. vol. III at 65–76. The Ohio Supreme Court affirmed Carter’s conviction and death sentence
on September 13, 2000. Carter, 89 Ohio St. 3d at 611, 734 N.E.2d at 360.
Carter, still represented by Attorneys Juhasz and Zena, also appealed his conviction and
sentence through state post-conviction proceedings, pursuant to Ohio Rev. Code § 2953.21. On
April 13, 1999, he filed a petition to vacate or set aside his conviction in the Trumbull County
Court of Common Pleas, which raised the following six causes of action:
1.

The judgment against Petitioner is void or voidable because of the
ineffective assistance of counsel.

2.

Petitioner’s conviction and death sentence is void or voidable because
petitioner’s trial counsel failed to a) present all evidence of petitioner’s
incompetence, b) make a complete record on petitioner’s behalf so that
petitioner could defend his life and liberty on appeal if convicted; and c)
present, through direct or cross examination, all expert evidence of
petitioner’s incompetence to stand trial.

3.

Remarks made by the prosecutor prejudicially affected substantial rights of
the Petitioner to a fair trial, to effectively defend his life and liberty, to
equal protection and benefit of the laws, to be free from cruel and unusual
punishment, to have justice administered without denial and to due process
of the law.

4.

Petitioner was denied the effective assistance of trial counsel when his
counsel failed to object to the improper comments of the prosecutor
described in the previous cause of action.

5.

Petitioner’s conviction and death sentence are void or voidable because
petitioner’s trial counsel failed to investigate possible mitigating factors by
making a thorough review of the Petitioner’s background.

6.

In order to have meaningful access to the courts, Petitioner must be
afforded the opportunity to conduct discovery to develop the evidence

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which exists but which has not been made available to Petitioner, so that
he may establish in a court of law the constitutional violations herein
asserted, and the corresponding reasons why Petitioner’s convictions and
death sentences are void.

App. vol. IV at 2, 6, 15, 17, 18, 18–19, 19. The trial court dismissed Carter’s post-conviction
petition on August 30, 1999. Id. at 80–94.
Carter, represented by Attorney Juhasz, appealed the trial court’s dismissal of his postconviction petition on September 29, 1999. Id. at 95. He raised the following two assignments
of error:
1.

The trial court erred in denying Appellant an evidentiary hearing on his
petition for post-conviction relief, . . . thus depriving Appellant of liberties
secured by U.S. Const. amend. VI and XIV, and Ohio Const. art. I, §§ 1, 2,
10, and 16, including meaningful access to the courts of this State.

2.

The trial court erred in applying the principles of res judicata, . . . thus
depriving Appellant of liberties secured by U.S. Const. amend. VI and
XIV, and Ohio Const. art. I, §§ 1, 2, 10, and 16.

App. vol. V at 10–11. The Trumbull County Court of Appeals affirmed the trial court’s decision.
State v. Carter, 2000 Ohio App. LEXIS 5935 (Ohio App. Dec. 15, 2000); App. vol. V at 185–
200.
Carter, still represented by Attorney Juhasz, then appealed that judgment to the Ohio
Supreme Court on February 1, 2001. App. vol. V at 201–03. He set forth the following two
propositions of law:
1.

Denial of an evidentiary hearing where a petition for post conviction relief
states operative facts is a denial of meaningful access to the courts of this
State in contravention of Ohio Constitution, Article 1, §§ 1 and 16; U.S.
Constitution Amendment XIV.

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2.

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Res judicata may not be applied to defeat claims raised in a post
conviction petition where a direct appeal is still pending and the matter
raised in the petition has not been previously adjudicated.

App. vol. VI at 6. The court declined jurisdiction and dismissed the appeal on May 2, 2001.
State v. Carter, 91 Ohio St. 3d 1509, 746 N.E.2d 612 (2001); App. vol. VI at 62.
On January 15, 2003, Carter filed an application to reopen his direct appeal, or a
Murnahan application, in the Ohio Supreme Court, pursuant to Rule XI, § 5 of the Ohio Supreme
Court Rules of Practice. App. vol. III at 499–511. He was represented by Linda Prucha of the
Ohio Public Defender’s Office. In his application, he asserted that his appellate counsel failed to
raise before the Ohio Supreme Court all instances of prosecutorial misconduct and ineffective
assistance of counsel, and failed to ensure that he was competent to stand trial and to safeguard
his right to be present. Id. at 501–06. The court denied the application on March 19, 2003. State
v. Carter, 98 Ohio St. 3d 1486, 785 N.E.2d 470 (Ohio 2003); App. vol. III at 548.
B.

Federal Habeas Proceedings

On March 19, 2002, Carter’s counsel, Linda Prucha and Christa Hohmann from the Ohio
Public Defender’s Office, initiated habeas corpus proceedings by filing a suggestion of
incompetence, a motion to proceed in forma pauperis, an ex parte motion requesting the
appointment of a mental health expert to assist counsel in assessing Carter’s competency, and a
motion for appointment of counsel. ECF Nos. 1, 3, 6, 7. The Court granted the motion for
appointment of counsel, appointing Attorneys Prucha and Hohmann. ECF No. 8. Carter, who
was housed at the time at a prison psychiatric facility due to mental illness, had denied requests
to meet with representatives from the Public Defender’s Office and had indicated his desire to
waive his habeas review and volunteer for execution. The Court granted the motion for an expert

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evaluation, but Carter later withdrew the request after meeting with counsel and acknowledging
his wish to proceed with his habeas case. ECF Nos. 10, 26.
On April 11, 2002, Carter filed an ex parte motion for an order directing the Ohio
Department of Rehabilitation and Correction (“ODRC”) to provide a copy of Carter’s prison
records, which the Court granted on April 23, 2002. ECF Nos. 9, 11. Carter filed a petition for
writ of habeas corpus on May 1, 2002. ECF No. 13. He filed an amended petition on January 6,
2003. ECF No. 39.
Carter filed a motion to stay these proceedings and hold this case in abeyance pending
exhaustion of state-court remedies on January 6, 2003, which the State opposed. ECF Nos. 40,
41. The Court granted the motion on February 20, 2003. ECF No. 45. On April 17, 2003,
Carter notified the Court that he had completed his additional state-court proceedings. ECF No.
47. On May 1, 2003, Carter substituted Attorney Hohmann with Attorney Siobhan Clovis. ECF
No. 50. The State filed a return of writ on September 16, 2003. ECF No. 79.
Carter filed a motion for leave to conduct discovery on October 15, 2003, which the State
opposed. ECF Nos. 80, 92. The State filed a motion for leave to expand the record on October
16, 2003, which the Court granted that same day. ECF Nos. 81, 84. The Court granted Carter’s
request for discovery on December 17, 2003. ECF No. 94.
Carter filed a second amended habeas petition on April 12, 2004. ECF No. 99. On April
28, 2004, Carter substituted Attorney David Hanson for Attorney Clovis. ECF No. 103. The
State filed an amended return of writ on May 7, 2003. After twice requesting and receiving
additional time, Carter filed his traverse on July 12, 2004. ECF No. 109. The State replied to
Carter’s traverse on July 23, 2004. ECF No. 113.

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On July 12, 2004, Carter also filed a motion for evidentiary hearing. ECF No. 110. He
further requested expert assistance to review medical records and the appointment of a
neuropsychologist, which the Court granted. ECF Nos. 111, 116, 117. The State opposed
Carter’s motion. ECF No. 112. On May 9, 2005, Carter substituted Attorney Hanson with
Attorney Melissa Callais. ECF No. 120. Carter twice requested, on April 18, 2005, and June 13,
2005, additional time for expert testing and evaluation, which the Court granted. ECF Nos. 118,
119, 123, 127.
On October 3, 2005, Carter filed a third amended habeas petition. ECF No. 129. Also
that day, he filed a motion to expand the record and a motion for a competency determination
and to stay his habeas proceedings. ECF Nos. 130, 132. The State opposed Carter’s motion for a
competency determination and to stay, and opposed in part his motion to expand the record.
ECF Nos. 134, 135. On November 28, 2005, the State filed an amended return of writ. ECF No.
138.
On November 29, 2005, the Court granted in part and denied in part Carter’s motion to
expand the record and granted Carter’s motion for competency determination. It scheduled a
hearing on Carter’s mental competency and stayed the case until it issued a ruling on that matter.
ECF No. 139. On December 5, 2005, the State filed a motion to have Carter evaluated by the
State’s expert, which the Court granted on December 8, 2005. ECF No. 142, 143. On January
24, 2006, Carter filed a motion to expand the time for the evidentiary hearing, which was
granted. ECF Nos. 152, 153. On April 20, 2006, the State filed a motion for an order to convey
Carter to the Court for the hearing, which Carter opposed and the Court denied. ECF Nos. 155,

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156. The Court conducted a five-hour hearing regarding Carter’s competency to proceed in
federal habeas on May 1, 2006. ECF No. 172.
On May 2, 2006, the Court ordered Carter’s counsel to arrange for both parties’ experts to
observe Carter interacting with his counsel, and ordered the experts to file reports with the Court
regarding their observations. ECF No. 171. Carter objected on the ground of attorney-client
privilege on May 23, 2006, and the State replied. ECF No. 173. On October 5, 2006, the Court
ordered that the observation should proceed. ECF No. 178. Carter then moved to certify the
issue for appeal on October 27, 2006, which the State opposed. ECF Nos. 179, 182. The Court
denied the certificate of appeal on February 1, 2007, but granted Carter a stay during the
pendency of his pursuit of a writ of mandamus from the Sixth Circuit Court of Appeals. ECF
No. 184. On November 5, 2007, the Sixth Circuit granted Carter’s request for mandamus relief
and set aside the Court’s order requiring Carter to be observed by the State’s expert witness
while interacting with his habeas counsel. ECF No. 186.
On December 7, 2007, Carter filed a motion for an order directing the ODRC to provide
updated records, which the State did not oppose. ECF Nos. 187, 190. The Court granted the
motion on March 20, 2008. ECF No. 192. The parties also filed supplemental briefs regarding
Carter’s competency. ECF Nos. 194, 195, 196. On September 29, 2008, the Court dismissed
this case without prejudice and prospectively tolled the petition’s one-year statute of limitations
until Carter regained competency. ECF Nos. 197, 198.
The State appealed the Court’s order on October 20, 2008. ECF No. 199. On May 26,
2011, the Sixth Circuit amended the Court’s judgment to order that Carter’s petition be stayed
indefinitely with respect to any claims that require his assistance. Carter v. Bradshaw, 644 F.3d

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15

329, 337 (6th Cir. 2011). It concluded that although “[f]ederal habeas petitioners facing the
death penalty for State criminal convictions do not enjoy a constitutional right to competence,”
such a right can be found in 18 U.S.C. § 4241. Id. at 333–34.
On January 8, 2013, the United States Supreme Court unanimously vacated the Sixth
Circuit’s decision. Ryan v. Gonzales, 133 S. Ct. 696 (2013).3 It held that 18 U.S.C. § 4241 does
not confer upon incompetent federal habeas petitioners a statutory right to suspend their habeas
proceedings. Id. at 706–07. It found that three of the claims that the district court determined
might potentially benefit from Carter’s assistance were adjudicated on the merits in state postconviction proceedings. Id. at 709. Therefore, the Court concluded, these three claims were
subject to 28 U.S.C. § 2254(d)’s deferential review. Id. Because, under Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011), this type of review is confined to the record before the state court,
these claims do not allow for Carter’s extra-record assistance, and, consequently, a stay.
Gonzalez, 133 S. Ct. at 709. The Supreme Court remanded to this Court the issue of whether the
“fourth” claim, ineffective assistance of appellate counsel, warranted a stay. Id. The Court noted
that it was unclear from the record whether that claim was exhausted, but that if it was, its review
also would be record-based. Id. It further observed that even if the claim was unexhausted and
not procedurally defaulted, “an indefinite stay would be inappropriate.” Id. Thus, the Court
instructed:
If a district court concludes that the petitioner’s claim could substantially benefit
3

The Supreme Court consolidated Carter’s case with that of Ernest Gonzales. In
Gonzales’s case, the Ninth Circuit granted a writ of mandamus ordering the district court
to stay his habeas proceedings pending a competency determination. The Ninth Circuit
found a statutory right to competence during habeas proceedings in 18. U.S.C. §
3599(a)(2). Id. at 701.

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16

from the petitioner’s assistance, the district court should take into account the
likelihood that the petitioner will regain competence in the foreseeable future.
Where there is no reasonable hope of competence, a stay is inappropriate and
merely frustrates the State’s attempts to defend its presumptively valid judgment.
Id.
Carter, now represented by Rachel Troutman and Kelle Andrews of the Ohio Public
Defender’s Office, see ECF Nos. 204, 213, then filed a motion for an updated competency
evaluation on May 3, 2013. ECF No. 214. The State opposed the motion. ECF No. 216. On
March 31, 2014, the Court denied the motion without prejudice. ECF No. 221. It found that the
remaining claim at issue, ineffective assistance of appellate counsel, was raised to the Ohio
Supreme Court, which adjudicated it on the merits. The undersigned is therefore limited to the
state-court record under Pinholster, supra, and may not consider any new evidence, including an
updated competency evaluation. Id. at 10–11.
On July 29, 2014, Carter filed an amended traverse. ECF No. 226. The Court ordered
the State to file a sur-reply on October 10, 2014, which it did on November 7, 2014, after seeking
and receiving additional time. ECF Nos. 227, 228, 229. This case is now ripe for adjudication.
PETITIONER’S GROUNDS FOR RELIEF
Carter asserts nine grounds for relief. They are:
1.

Sean Carter was incompetent at both the culpability and penalty phases of his
trial. Therefore, his convictions and sentence of death are in violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution.

2.

Sean Carter’s right to effective assistance of counsel during the mitigation
phase was violated when counsel failed to investigate, prepare, and present
relevant mitigating evidence. U.S. Const. amend[]. VI, VIII, XIV.

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17

3.

Sean Carter’s rights to a fair trial and an impartial jury were violated by
prosecutor misconduct at the culpability phase of Mr. Carter’s trial. U.S.
Const. amend. VI and XIV.

4.

The trial court denied Sean Carter his rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution by failing to
instruct the jury properly at the conclusion of the culpability phase.

5.

Sean Carter was denied his right to the effective assistance of counsel under
the Sixth and Fourteenth Amendments to the United States Constitution when
his attorneys failed to object and properly preserve numerous errors that
occurred during the pre-trial proceedings and the culpability phase of the trial.

6.

Sean Carter was denied the effective assistance of counsel in his direct appeal
as of right, in violation of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.

7.

The death penalty as administered by lethal injection in the state of Ohio
violates Sean Carter’s rights to protection from cruel and unusual punishment
and to due process of law as guaranteed by the United States Constitution
amend[]. VIII and XIV.

8.

Sean Carter is seriously mentally ill. Therefore, his death sentence is in
violation of his rights under the Eighth and Fourteenth Amendments.

9.

Sean Carter will not be competent and sane to be executed. Sean’s execution
while he is incompetent and insane, violates the Eighth and Fourteenth
Amendments to the United States Constitution.

ECF No. 129 at 7, 21, 34, 36, 37, 40, 41, 43, 48.
STANDARD OF REVIEW
Carter’s petition for writ of habeas corpus is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), as it was filed after the Act’s 1996 effective date. Lindh
v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009).
AEDPA, which amended 28 U.S.C. § 2254, was enacted “to reduce delays in the execution of
state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of

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comity, finality, and federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting
(Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). As the United States Supreme Court
recently explained, the Act “recognizes a foundational principle of our federal system: State
courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 134 S. Ct. 10, 15
(2013). AEDPA, therefore, “erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Id.
One of AEDPA’s most significant limitations on the federal courts’ authority to issue
writs of habeas corpus is found in § 2254(d). That provision 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:
(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 (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 at all for its decision. Harrington v. Richter, 562 U.S.
86, 98 (2011) (“[D]etermining whether a state court’s decision resulted from an unreasonable
legal or factual conclusion does not require that there be an opinion from the state court
explaining the state court’s reasoning.”). “When a federal claim has been presented to a state

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19

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.” Id. at 99.
“Clearly established federal law” for purposes of the provision “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 (2003). It includes “only the holdings, as
opposed to the dicta, of Supreme Court decisions.” White v. Woodall, 134 S. Ct. 1697, 1702
(2014) (internal quotation marks and citations omitted). 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 (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 (2003) (per curiam).
A state-court decision is contrary to “clearly established [f]ederal 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.” (Michael) Williams, 529 U.S. at 412–13. “[R]eview
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Pinholster, 131 S. Ct. at 1398.
Ultimately, AEDPA’s highly deferential standard requires that federal district courts
sitting in habeas review give the state-court decision “the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam). “[A]n ‘unreasonable application of’ [Supreme

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20

Court] holdings must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not
suffice.” Woodall, 134 S. Ct. at 1702 (quoting Lockyer, 538 U.S. at 75–76). “The critical point
is that relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is
so obvious that a clearly established rule applies to a given set of facts that there could be no
‘fairminded disagreement’ on the question.” Id. at 1706–07 (quoting Harrington, 562 U.S. at
102).
A state-court decision is an “unreasonable determination of the facts” under § 2254(d)(2)
only if the court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003).
The petitioner bears the burden of rebutting the state court’s factual findings “by clear and
convincing evidence.” Burt, 134 S. Ct. at 15; 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 can only be overcome by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).4 The Supreme Court repeatedly has declined to define the “precise relationship”
between § 2254(d)(2) and (e)(1). Burt, 134 S. Ct. at 15; see also Wood v. Allen, 558 U.S. 290,
300 (2010). It has explained, however, that it is
incorrect . . ., when looking at the merits, to merge the independent requirements
of § 2254(d)(2) and (e)(1). AEDPA does not require a petitioner to prove that a
decision is objectively unreasonable by clear and convincing evidence. The clear
and convincing evidence standard is found in § 2254(e)(1), but that subsection
pertains only to state-court determinations of factual issues, rather than decisions.

4

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 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).

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21

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003). “[I]t 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. And, as
the Supreme Court has cautioned, “‘a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance.’” Burt, 134 S. Ct. at 15 (quoting Wood, 558 U.S. at 301).
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. In Harrington v. Richter, supra, the Supreme Court 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 (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). Thus, a petitioner “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 Supreme Court readily
acknowledges: “If this standard is difficult to meet, that is because it is meant to be.” Id. at 102.

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22

Nevertheless, the Supreme Court recognized in Harrington that 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 not imply
abandonment or abdication of judicial review. Deference does not by definition preclude relief.”
Miller-El, 537 U.S. at 340. 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.’” Baird v. Davis, 388 F.3d
1110, 1123 (7th Cir. 2004) (quoting Miller-El, 537 U.S. at 340) (Posner, J.).
Federal courts, therefore, retain statutory and constitutional authority, absent suspension
of the writ,5 to remedy detentions by state authorities that violate federal law, as long as
AEDPA’s limitations are observed. Rice, 660 F.3d at 251. And the deference AEDPA demands
is not required if those limitations do not apply. Federal habeas courts may, for example, review
de novo an exhausted federal claim when 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 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); Panetti v. Quarterman, 551 U.S. 930, 948 (2007)
(holding that the unreasonable application of Supreme Court precedent under § 2254(d)(1)
permitted a plenary review of the “underlying [] claim . . . unencumbered by the deference
5

See U.S. Const. art. I, § 9 cl. 2 (“The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it.”).

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23

AEDPA normally requires”); see also Rice, 660 F.3d at 252 (citing Henness v. Bagley, 644 F.3d
308 (6th Cir. 2011), and Smith v. Bradshaw, 591 F.3d 517, 522, 525 (6th Cir. 2010) (each
applying de novo review to federal habeas claims where none of the AEDPA limitations
applied)).
EXHAUSTION AND PROCEDURAL DEFAULT
In addition to § 2254(d)’s limitations, AEDPA precludes habeas review of some claims
that have not been properly exhausted before the state courts, or were procedurally barred by the
state courts.
A.

Exhaustion

Section 2254(b)(1) provides that a federal court may not award habeas relief to an
applicant in state custody “unless it appears that—the applicant has exhausted the remedies
available in the courts of the State; or there is an absence of available State corrective process; or
circumstances exist that render such process ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509 (1982). “[S]tate prisoners must give
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 (1999). “This 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 (1982). If under state law there remains
a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas
court cannot entertain the merits of the claim. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
When a habeas court finds a claim to be unexhausted, it can, for good cause, stay the
action and permit the petitioner to present his unexhausted claim to state court and then return to

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24

federal court for review of his perfected petition. Rhines v. Weber, 544 U.S. 269, 277 (2005).
The court need not wait for exhaustion, however, if it determines that a return to state court
would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). In addition, AEDPA’s §
2254(b)(2) permits courts to deny unexhausted habeas claims on the merits when appropriate.
28 U.S.C. § 2254(b)(2); see also Rhines v. Weber, 544 U.S. 269, 277 (2005) (a habeas court may
deny unexhausted claims that are “plainly meritless”); Hanna v. Ishee, 694 F.3d 596, 610 (6th
Cir. 2012) (denying petitioner’s claim on the merits “notwithstanding a failure to exhaust” the
claim).
The exhaustion doctrine is not a jurisdictional limitation on the federal courts. See, e.g.,
Pudelsky v. Wilson, 576 F.3d 595, 605–06 (6th Cir. 2009); Cain v. Redman, 947 F.2d 817, 820
(6th Cir. 1991). Thus, a state can waive the exhaustion requirement. See, e.g., Harris v. Lafler,
553 F.3d 1028, 1032 (6th Cir. 2009). However, “[a] State shall not be deemed to have waived
the exhaustion requirement or be estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3). The Sixth Circuit
has ruled that where a habeas respondent has taken contradictory positions regarding a
petitioner’s exhaustion of state remedies, courts will find an express waiver only where the
respondent has “manifested a clear and unambiguous intent to waive the requirement.”
D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir. 2008).
Here, the State represents in an introductory section of its return of writ that “all of
Carter’s claims are exhausted.” ECF No. 138 at 21. Nevertheless, it adds, “Respondent
expressly does not waive the exhaustion requirement.” Id. (emphasis in original). The State’s
general disclaimer of any waiver of the exhaustion defense is not sufficiently clear and

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25

unambiguous in light of its representation that “all of Carter’s claims are exhausted,” combined
with its failure to assert the defense or even mention the subject again. Accordingly, the Court
finds that the State has waived the exhaustion requirement as to each of Carter’s claims, and it
will not engage in a sua sponte analysis of exhaustion where the State has failed to raise it.
Moreover, as noted above, even if a claim is unexhausted, the Court may deny it on the merits.
28 U.S.C. § 2254(b)(2).
B.

Procedural Default

Even when a state prisoner exhausts available state-court remedies, a federal court may
not consider “contentions of general law which are not resolved on the merits in the state
proceeding due to petitioner’s failure to raise them as required by state procedure.” Wainwright
v. Sykes, 433 U.S. 72, 87 (1977). If a “state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(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 (2009). If a petitioner fails to fairly present any federal
habeas claims to the state courts but has no remaining state remedies, then the petitioner has
procedurally defaulted those claims. O’Sullivan, 526 U.S. at 848; Rust, 17 F.3d at 160.

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26

In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit outlined 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:
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 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) (citing Maupin, 785 F.2d at 138) (further
citations omitted).
In determining whether the Maupin factors are met, the federal court again looks to the
last explained state-court judgment. Ylst, 501 U.S. at 805; Combs v. Coyle, 205 F.3d 269, 275
(6th Cir. 2000). If the last state court rendering a reasoned opinion on a federal claim “clearly
and expressly states that its judgment rests on a state procedural bar,” then the claim is
procedurally defaulted and barred from consideration on federal habeas review.6 Harris v. Reed,
489 U.S. 255, 263 (1989). Conversely, if the last state court to be presented with a particular

6

An exception to this rule lies where “the later state decision rests upon a
prohibition against further state review,” in which case 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 (“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”).

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27

federal claim reaches the merits of that claim, then the procedural bar is removed and a federal
habeas court may consider the merits of the claim in its review. Ylst, 501 U.S. at 801.
As noted above, if a claim is procedurally defaulted, the federal court may excuse the
default and consider the claim on the merits if the petitioner demonstrates that (1) there was
cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged
constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on
federal habeas review. Coleman, 501 U.S. at 750.
A petitioner can establish cause in two ways. First, a petitioner may “show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments include
an unavailable claim, or interference by officials that made compliance impracticable. Id.
Second, constitutionally ineffective assistance of counsel constitutes cause. Id. at 488-89.
If a petitioner asserts ineffective assistance of counsel as cause for a default, that
ineffective-assistance claim must itself be presented to the state courts as an independent claim
before it may be used to establish cause. Id. If the ineffective-assistance claim is not presented
to the state courts in the manner that state law requires, that claim is itself procedurally defaulted
and only can be used as cause for the underlying defaulted claim if the petitioner demonstrates
cause and prejudice with respect to the ineffective-assistance claim. Edwards v. Carpenter, 529
U.S. 446, 452–53 (2000).
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 (1982)). “When a petitioner fails to

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28

establish cause to excuse a procedural default, a court does not need to address the issue of
prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000).
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the Supreme Court has recognized a narrow exception to the cause
requirement where a constitutional violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)
(citing Murray, 477 U.S. at 495–96). When the Court extended this exception to claims of
capital sentencing error, it limited the exception in the capital sentencing context to cases in
which the petitioner could show “‘by clear and convincing evidence that, but for constitutional
error, no reasonable juror would have found the petitioner eligible for the death penalty under the
applicable state law.’” Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).
The Court will address the procedural default issues presented in this case when it
reviews Carter’s individual claims.
ANALYSIS OF PETITIONER’S GROUNDS FOR RELIEF
I.

First and Fifth Grounds for Relief: Competency to Stand Trial
Carter claims in his first and fifth grounds for relief that both the trial court and his trial

counsel failed to protect his constitutional right to be competent to stand trial. He argues that the
trial court:
1.

Failed to consider relevant information;

2.

Relied too heavily on flawed expert testimony;

3.

Failed to raise the competency issue during the trial; and

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4.

29
Failed to obtain Carter’s waiver of presence at the sentencing phase of
trial.

ECF No. 129 at 8–19. Carter also complains that his trial counsel provided ineffective assistance
when they:
1.

Failed to prepare experts for, and present material evidence at, the
competency hearings;

2.

Failed to request a third competency hearing; and

3.

Failed to preserve an adequate record for appeal regarding Carter’s
incompetence during his trial.

Id. at 8–9, 13–17, 38–39.
A.

Procedural Posture

The State concedes that Carter raised his competency claims related to ineffective
assistance of counsel in state courts, both on direct appeal and post-conviction, where they were
adjudicated on the merits. ECF No. 138 at 32–33, 72. These claims, therefore, are preserved for
federal habeas review.
The State argues, however, that although “Carter raised the general claim of
incompetency on direct appeal,” he did not raise his competency claims relating to trial-court
error in state court, resulting in the claims’ procedural default. Id. at 29, 32–33. Carter responds
that “[a]ny procedural default of this claim is excused by the ineffectiveness of post-conviction
counsel.” ECF No. 226 at 16.
The Court finds that Carter raised his trial-court-error competency claims on direct appeal
to the Ohio Supreme Court and in state post-conviction proceedings, and they were adjudicated

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30

on the merits.7 See Carter, 89 Ohio St. 3d at 603–05, 734 N.E.2d at 355–56; Carter, 2000 Ohio
App. LEXIS 5935, at *5–13. Over time, Carter certainly changed the emphasis of his legal
arguments and marshaled new facts to support his claim. See App. vol. III at 126–36; App. vol.
IV at 14–15; id. at 86-88; App. vol. V at 129–31. But the overarching constitutional basis for his
claim—that the trial court and his trial counsel failed to protect his constitutional right to
competency to stand trial—remained constant. See Richey v. Bradshaw, 498 F.3d 344, 353–54
(6th Cir. 2007) (“Where the legal basis for Richey’s claim has remained constant, and where the
facts developed in the district court merely substantiate it, we cannot say that the claim has been
so ‘fundamentally alter[ed]’ from that presented to the state court as to preclude our review.”).
Thus, Carter’s competency claims relating to trial-court error also are preserved for federal
habeas review.8
B.

Merits

As the Supreme Court has noted, “[i]t has long been accepted that a person whose mental
condition is such that he lacks the capacity to understand the nature and object of the proceedings

7

The state post-conviction appellate court did not directly address Carter’s
trial-court-error competency claims, focusing instead on Carter’s ineffective-assistance
competency claims. Its decision dismissing the claims, however, is still considered an
“adjudication on the merits” for purposes of AEDPA. See Harrington 562 U.S. at 99.
8

The Supreme Court acknowledged as much in the Gonzales decision when it
stated that Carter’s competency claim, which it characterized as alleging that “Carter was
incompetent to stand trial and was unlawfully removed from the trial proceedings,” was
“adjudicated on the merits in state postconviction proceedings and, thus, [was] subject to
review under § 2254(d).” Gonzales, 133 S. Ct. at 709 n.15. See, e.g., Hanover Ins. Co. v.
Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997) (“It is clear that when a case has been
remanded by an appellate court, the trial court is bound to proceed in accordance with the
mandate and law of the case as established by the appellate court.”) (internal quotation
marks and citation omitted).

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31

against him, to consult with counsel, and to assist in preparing his defense may not be subjected
to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975); see also Dusky v. United States, 362
U.S. 402, 402 (1960). For this reason, the Court has held that a trial court’s failure to observe
procedures that will protect a defendant’s right to competency to stand trial deprives him of his
due process right to a fair trial. Pate v. Robinson, 383 U.S. 375, 385–86 (1966).
Carter’s competency has been at the forefront of his case from the very beginning. The
Ohio Supreme Court set forth the following factual account of how this issue was treated at trial:
In his fourth proposition of law, Carter argues that he was incompetent to
stand trial “because his paranoid personality did not permit him to trust his
lawyers.” The trial court appointed an expert to examine Carter, and a hearing on
competency was held, after which the trial court determined that Carter was
competent to stand trial.
The standard for competency is set out in R.C. 2945.37(G), which
provides: “A defendant is presumed competent to stand trial. If, after a hearing,
the court finds by a preponderance of the evidence that, because of the defendant’s
present mental condition, the defendant is incapable of understanding the nature
and objective of the proceedings against the defendant or of assisting in the
defendant’s defense, the court shall find the defendant incompetent to stand trial *
* *.”
Carter does not argue that he was incapable of understanding the nature of
the proceedings against him; instead, he focuses his argument on his inability to
assist his defense counsel. During the first competency hearing, Dr. Stanley
Palumbo opined, “With reasonable scientific certainty Mr. Carter is competent to
stand trial. Mr. Carter understands the nature of the proceedings against him and
does not suffer from any gross mental disorder that would interfere with his ability
to participate in his defense. He does not suffer from any mood disorder such as
depression, which would cause him to have trouble following a witness’s line of
statements or have the energy and interest in participating in his own defense in
his own best interest.”
When questioned about Carter’s relationship with his attorneys, and his
not wanting to listen to his attorneys’ advice, Dr. Palumbo commented, “It
certainly sounds like he doesn’t want to, but that’s different from being able to.”

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The trial court found Carter competent and denied a defense request for
further examination. In his findings of fact, the court stated, “Dr. Palumbo
testified that the Defendant does not trust his attorney, or any other attorney[;]
however, Defendant’s distrust of his attorney does not exhibit paranoid behavior
since he distrusts all attorneys and not specifically his attorney.”
After the trial court found that Carter was competent, Carter entered a plea
of not guilty by reason of insanity. The court appointed three experts to examine
Carter for sanity at the time of the offense—Dr. Steven A. King, Dr. Robert
Alcorn, and Dr. Stanley Palumbo.
During Dr. King’s interview with Carter, the doctor became concerned
that Carter was not competent to stand trial. This concern prompted an evaluation
on that issue by the other two doctors, and a second competency hearing. Carter
waived his presence at the hearing.
Dr. King testified that Carter exhibited bizarre behavior during his
interview and indicated that he wanted to kill Tony Consoldane, his attorney.
King further testified that Carter’s thoughts kept him from cooperating with
counsel. In Dr. King’s opinion, Carter was not able to assist in his own defense.
On cross-examination, King admitted that the question of competence was a close
call.
Dr. Palumbo did not change his prior opinion of competence after he
re-examined Carter. He acknowledged that Carter expressed anger and irritability
with his attorneys, but added that it was not unusual for defendants to be upset
with their attorneys.
Dr. Alcorn also examined Carter concerning Carter’s relationship with his
attorney. Alcorn testified that Carter did not think his attorney was doing a very
good job, and that that was not an uncommon reaction given the situation Carter
was in. He determined Carter to be competent to stand trial.
At the conclusion of the second hearing, the trial court again found Carter
competent to stand trial, stating, “I would indicate for the record that the distrust
and/or hostility that a defendant has with an attorney, his own attorney, does not
necessarily equate with competence.”
Carter, 89 Ohio St. 3d at 603–04, 734 N.E.2d at 355–56.

32

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The court went on to note that “Carter did not want to attend the court proceedings,
indicating that he just wanted to enter a plea and get it over.” Id. at 605, 734 N.E.2d at 356. It
explained in a footnote:
The record indicates that Carter was not happy about being shackled for court
proceedings. Defense counsel waived Carter’s presence for some preliminary
hearings, and Carter himself waived his right to be present at the second
competency hearing. Prior to the defense opening statement, Carter asked if he
had to go through trial, or could he just plead guilty. A hearing out of the jury’s
presence was held and Carter stated he did not want to attend the trial. The trial
court indicated some concerns about his waiving his presence at trial and Carter
lunged at the judge in order to be removed from the courtroom. Carter watched
the remainder of the trial from another room by remote video. Throughout the
remainder of the trial, defense counsel would report to the court each day that
Carter still did not want to attend trial. Carter wanted to be in court for the closing
arguments in the trial phase, but only if he could be unshackled, which one of his
attorneys refused to consent to. Carter also absented himself from the
penalty-phase proceedings.
Id. at 356 n.3, 734 N.E.2d at 605 n.3.
The Ohio Court of Appeals provided this account of Carter’s pre-trial competency
hearings:
On December 26, 1997, the trial court held a hearing to determine if
appellant was competent to stand trial. At that hearing, Dr. Stanley Palumbo was
called by the state. He testified that he met with appellant twice. He reviewed the
police records in the case, custody records, and administered an intelligence test.
The test revealed that appellant had an IQ between seventy and eighty, but Dr.
Palumbo believed appellant was not trying because he had taken a previous test
where he had scored ninety. Appellant would often answer “I don’t know” rather
than trying to answer questions correctly. He diagnosed appellant with an
antisocial personality disorder, but did not believe he had a mental illness. He
believed appellant was competent to stand trial because he understood the
proceedings, everybody’s role in the proceedings, and that he was facing the death
penalty. On cross-examination, appellant’s attorneys questioned Dr. Palumbo
extensively about appellant’s social and medical history, which included seizures,
hearing loss, and possible brain damage caused by a high fever.

33

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34

Appellant called Deputy Darby Vaughn who testified that appellant had
attempted suicide and attacked other prisoners while in jail, awaiting trial.
Appellant’s counsel requested funds for an MRI test and for a second expert,
which the trial court denied. The trial court ruled that appellant was competent to
stand trial and indicated that it did not believe that it was even a close question.
On February 26, 1998, during jury selection, the trial court held a second
hearing to determine whether appellant was competent to stand trial. At that
hearing, appellant called Dr. Stephen A. King who testified that, although
appellant understood the proceedings, he had some sort of paranoia that prevented
him from trusting and aiding his attorneys. Dr. Palumbo testified that he met with
appellant two more times and determined that he wanted to plead guilty and was
angry at his attorneys for insisting he go to trial. The state called Dr. Robert W.
Alcorn who testified that appellant suffered from an antisocial personality
disorder and had abused drugs in the past, but felt that he was “malingering” and
not really mentally ill. The trial court again ruled that appellant was competent to
stand trial.
Carter, 2000 Ohio App. LEXIS 5935, at **11–13.
1.

Trial-Court Error

Carter claims that the trial court failed to protect his constitutional right to competency in
several respects. The Ohio Supreme Court was the last state court to provide a reasoned opinion
on these claims. It found that “[s]ome evidence indicates that while awaiting trial, Carter
attempted suicide. Otherwise, his unwillingness to attend the court proceedings and sometimes
apparent disagreements with counsel were the only indications in the record that raised a question
of competence to stand trial.” Carter, 89 Ohio St. 3d at 605, 734 N.E.2d at 356. The court
concluded, “Carter asks this court to disregard the opinions of the experts. A review of the
proceedings does not warrant that action. . . . The trial court’s findings of fact fail to support
Carter’s claim that the court’s decision was unreasonable, arbitrary, or unconscionable.” Id.
Although Carter does not address the AEDPA standards of review governing these claims, his
claims challenge the Ohio court’s decision as both an unreasonable application of clearly

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35

established federal law under § 2254(d)(1), and an unreasonable determination of the facts under
§ 2254(d)(2).
a.

Failure to Consider Relevant Information

Carter first argues that the trial court failed to consider two pieces of evidence: a
psychosocial history written by psychiatric social worker Albert Linder and a letter written by
psychologist Dr. Douglas Darnall to defense counsel. ECF No. 129 at 8–9; ECF No. 226 at 18.
A state court’s competency determination is treated as a question of fact under AEDPA’s
§ 2254(d)(2). Thompson v. Keohane, 516 U.S. 99, 111 (1995); see also Filiaggi v. Bagley, 445
F.3d 851, 858-59 (6th Cir. 2006) (a determination of competence is a factual finding, to which
deference must be paid and a petitioner must rebut with clear and convincing evidence under
AEPDA §§ 2254(d)(2) and (e)(1)). The Supreme Court has explained that the competency issue
“encompass[es] more than ‘basic, primary, or historical facts,’ [its] resolution depends heavily on
the trial court’s appraisal of witness credibility and demeanor. . . . [A] trial court is better
positioned to make decisions of this genre, and [the Court] has therefore accorded the judgment
of the jurist-observer ‘presumptive weight.’” Thompson, 516 U.S. at 111 (citations omitted).
The State attacks the weight of the evidence Carter contends the trial court should have
reviewed, arguing that the trial court “considered all relevant information in considering Carter’s
competency.” ECF No. 138 at 36–38. But that is of no consequence. Carter acknowledges that
the report and letter “were never presented to the trial court and were not considered by the
experts who testified that Sean Carter was competent to stand trial.” ECF No. 129 at 9. A trial
court cannot commit constitutional error by not considering evidence it was never given.

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Moreover, as the State points out, the Court may not consider evidence outside the statecourt record. Pinholster, 131 S. Ct. at 1398. Indeed, the documents Carter identifies are not
even in the Court’s record. The Court denied Carter’s request to expand the record in this case to
include this evidence because Carter did not demonstrate that he was diligent in presenting it to
the state court as required by § 2254(e)(2). ECF No. 139 at 8-9. This claim is meritless.
b.

Reliance on Flawed Expert Testimony

Carter next claims that the trial court erred by relying on the “flawed” evaluations and
testimony of the court-appointed expert, Dr. Palumbo, and State expert, Dr. Alcorn, in finding
that Carter was competent to stand trial. ECF No. 129 at 9–13. Specifically, Carter complains
that Dr. Palumbo failed to further investigate statements Carter made about his inappropriate
laughing and suicidal thoughts; “question[ed] the legitimacy” of Carter’s reported hallucinations,
which were documented in multiple sources; failed to contact corrections officers to investigate
Carter’s “persecutory and paranoid complaints” about his lawyers; failed to discuss the severity
and nature of Carter’s mother’s schizophrenia; did not appear to know that an aunt and uncle of
Carter’s also had been diagnosed with schizophrenia; and discounted “strong” evidence of
clinical depression. ECF No. 129 at 9–10. As to Dr. Alcorn, Carter argues that he also failed to
consult with jail personnel; made inaccurate statements “reflective of his cursory and inaccurate
history and review of collateral records”; failed to make clear the relationship between Carter’s
mental illness and substance abuse; reported that he observed Carter to be actively hallucinating,
yet dismissed this potentially psychotic phenomenon as not being genuine; failed to inquire more
deeply into Carter’s disorganized and confusing speech and sequential reasoning abilities; and
mischaracterized Carter as an antisocial personality with substance abuse problems rather than

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having a “bona fide severe mental illness,” or psychosis, which “would have made more sense”
given Carter’s “signs and symptoms,” such as his remorse over the murder, “want[ing]” the death
penalty, and hostility toward his attorneys and others. Id. at 11–12. Carter supports his
allegations with an affidavit of an expert he retained in these federal habeas proceedings, which,
again, the Court may not consider.
Carter’s claim misses the mark. As the State argues, the issue here is not whether Drs.
Palumbo and Alcorn were adequately prepared or persuasive. The issue is whether the Ohio
Supreme Court decision affirming the trial court’s determination of Carter’s competency was
reasonable in light of the evidence presented. Carter faults the experts’ methodology and
conclusions, but he has not rebutted by clear and convincing evidence one factual finding
underlying the Ohio Supreme Court’s decision.
The Ohio high court acknowledged that there was some evidence calling into question
Carter’s competency to stand trial—namely, his suicide attempt, unwillingness to attend the court
proceedings, and apparent disagreements with counsel. Carter, 89 Ohio St. 3d at 605, 734
N.E.2d at 356. But it correctly concluded that, in light of the proceedings as a whole, it could not
“disregard the opinions of the experts.” Id.
As the state court explained, the trial court was sharply attentive to, and fully informed
about, Carter’s competency. It appointed its own expert, Dr. Palumbo, and authorized funding
for Carter’s expert, Dr. King. The State also retained an expert, Dr. Alcorn. These experts
evaluated Carter at length. The court then conducted two competency hearings, at which the

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experts testified and numerous exhibits were introduced.9 Two of the experts, Drs. Palumbo and
Alcorn, found Carter competent to stand trial. Carter’s counsel had every opportunity to expose
weaknesses in their investigation, evaluations and opinions through cross-examination and Dr.
King’s testimony. As the court further noted, even Dr. King admitted on cross-examination that
the question of Carter’s competency was “a close call, this is a subtle case.” Trial Tr. vol. VI at
591.
Given the careful and thorough nature of these proceedings, Carter “has not shown that
the trial court was clearly wrong in believing the State’s expert.” Franklin v. Bradshaw, 695
F.3d 439, 449 (6th Cir. 2012) (rejecting habeas petitioner’s competency claim); see also Hall v.
Florida, 134 S. Ct. 1986, 1993 (2014) (emphasizing the critical role the medical community and
its clinical standards play in defining and determining intellectual disability when considering
eligibility for the death penalty); O’Neal v. Bagley, 743 F.3d 1010, 1022–23 (6th Cir. 2013) (“For
better or worse, as a habeas court, we are not in a position to pick and choose which evidence we
think is best so long as the presumption of correctness remains unrebutted. . . . With expert
testimony split, as it often is, the state court chose to credit [the two experts] over [petitioner’s
expert], and we cannot say from this vantage that it was unreasonable to do so.”). Accordingly,

9

At the first hearing, the State introduced Dr. Palumbo’s competency evaluation
as an exhibit. Trial Tr. vol. I at 18. At the second hearing, the State introduced the
following exhibits: a 1995 Portage County Department of Youth Services evaluation and
social history; and Dr. Alcorn’s resume and two letters to the prosecutor stating his
findings and opinion regarding Carter’s competency. Trial Tr. vol. VI at 589, 606, 781,
783, 789. And the defense introduced the following exhibits: Dr. King’s competency
report and curriculum vitae; and two letters written in1984 from the Trumbull County
Mental Health Center regarding Carter’s mother’s and uncle’s schizophrenia. Id. at 556,
562.

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the judgment of the Ohio Supreme Court in affirming the trial court’s determination of Carter’s
competency was not unreasonable, or “beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
c.

Failure to Raise the Competency and Presence Issues
during the Trial

Carter further argues that the trial court erred by failing to “inquire” further into Carter’s
competency or “ability to be present” once the trial began. ECF No. 129 at 13–17. In affirming
the trial court’s determination of Carter’s competency, the Ohio Supreme Court did not directly
address the fact that the trial court did not revisit the issue of Carter’s competency after the
second competency hearing. Carter, 89 Ohio St. 3d at 605, 734 N.E.2d at 356. And, although
the state court found that Carter’s refusal to attend his trial was a possible indication of
incompetency, it expressed no disapproval of the trial court’s handling of the matter. See id. at
356 n.3, 734 N.E.2d at 605 n.3. Nevertheless, the court’s summary disposition of this claim
constitutes an adjudication on the merits for AEDPA purposes, Harrington, 562 U.S. at 99, and,
as an issue of law, must be reviewed under AEDPA’s unreasonable-application prong, §
2254(d)(1). See, e.g., Lewis v. Robinson, 67 F. App’x 914, 921–22 (6th Cir. 2003).
The Supreme Court has advised that “[e]ven when a defendant is competent at the
commencement of his trial, a trial court must always be alert to circumstances suggesting a
change that would render the accused unable to meet the standards of competence to stand trial.”
Drope, 420 U.S. at 181. The Court has never “prescribe[d] a general standard with respect to the
nature or quantum of evidence necessary to require resort to an adequate procedure” for
determining competency. Id. at 172. Nevertheless, it has explained,

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evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required, but that even one of these factors standing
alone may, in some circumstances, be sufficient. There are, of course, no fixed or
immutable signs which invariably indicate the need for further inquiry to
determine fitness to proceed; the question is often a difficult one in which a wide
range of manifestations and subtle nuances are implicated. That they are difficult
to evaluate is suggested by the varying opinions trained psychiatrists can entertain
on the same facts.
Id. at 180; see also Robinson, 383 U.S. at 385 (“Where the evidence raises a ‘bona fide doubt’ as
to a defendant’s competence to stand trial,” a trial judge has the duty to order a hearing sua
sponte).
Carter identifies only one factor that should have prompted the trial court to inquire
further into the issue of his competency once the trial began: Carter’s absence from trial. Carter
claims that the trial court had an obligation to “bring [him] back into the courtroom to question
him as to his desire to be present, or to put on the record Sean’s understanding of the
proceedings.” ECF No. 129 at 14 (emphasis omitted).
The Supreme Court long has recognized that “[o]ne of the most basic of the rights
guaranteed by the Confrontation Clause [of the Sixth Amendment] is the accused’s right to be
present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970)
(citing Lewis v. United States, 146 U.S. 370 (1892)). The Court has held, however, that a
defendant may lose his right to be present at trial if, after a judge warns him that he will be
removed if he continues his disruptive behavior, he still acts in a manner “so disorderly,
disruptive, and disrespectful of the court” that the trial cannot continue with him in the
courtroom. Id. at 343. The right to be present can be reclaimed, however, if the defendant is

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willing to conduct himself “consistently with the decorum and respect inherent in the concept of
courts and judicial proceedings.” Id.
A defendant’s competency and presence at trial are related. The Court has explained,
Petitioner’s absence bears on the analysis in two ways: first, it was due to an act
which suggests a rather substantial degree of mental instability contemporaneous
with the trial . . . ; second, as a result of petitioner’s absence the trial judge and
defense counsel were no longer able to observe him in the context of the trial and
to gauge from his demeanor whether he was able to cooperate with his attorney
and to understand the nature and object of the proceedings against him.
Drope, 420 U.S. at 180–81 (citation omitted).
A review of the record demonstrates that the trial court took every reasonable and
appropriate step to protect Carter’s right to be present at his trial. The judge was careful to
ensure that any waiver of that right was intelligent and voluntary in a lengthy colloquy in his
chambers. He informed Carter of the importance of being present at trial, telling him, “I want to
inform you that you have an absolute right to be at the trial. It’s a very important thing that’s
being done and the [C]onstitution guarantees you the right to be here . . . .” Trial Tr. vol. XII at
2274. The judge also repeatedly pressed Carter to state affirmatively his desire to be absent from
the courtroom during his trial. He said, for example, “So if I do decide to grant your request to
not be here while you’re being tried, . . . you’re going to have to tell me on the record that that’s
what you want to do even though it would most likely hurt your case; do you understand that?”
Id. at 2275.
The judge tried to put off making a decision regarding Carter’s request until he had had
time to research the issue. Id. But Carter repeatedly and emphatically told the judge he would
not return to the courtroom. See id. (“That’s what I want to do.”); id. at 2276 (“I don’t want to be
here at the trial. . . . I don’t want to. . . . I still don’t want to, though. . . . I still don’t want to.”).

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42

Eventually, Carter left the judge no choice but to remove him from the courtroom. The
following dialogue took place:
The Defendant:

. . . But I, I don’t know. I don’t want to be here, don’t want to be
over in the court. Like, if I act up in here or something, like get
restrained, they take me over there if I did that?

The Court:

Again, I’m going to tell you, don’t act up in court because then I
would have to give you penalties for that, and I don’t want to have
to do that.

The Defendant:

Because I have more time or something? Is that more time or
something?

The Court:

Yes.

The Defendant:

More time, that ain’t nothing.

The Court:

It could –

The Defendant:

That ain’t nothing.

The Court:

The point is, I’m going to take your request that you have given to
me seriously.

The Defendant:

I ain’t going over there, though.

The Court:

Hold on. I’m going to take your request seriously, to decide
whether or not you can be tried without your presence, but I’m not
going to get that until tomorrow. So I want you now to sit here in
from of this jury and not act up. Can you do that for me?

The Defendant:

Yeah. But I, I don’t want to.

The Court:

But will you do that for me today?

The Defendant:

No.

The Court:

No? You’re going to act up, is that what you’re telling me?

The Defendant:

Uh-huh.

The Court:

Okay. Why don’t you have a seat outside.

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43

The Defendant:

Who?

The Court:

You.

The Defendant:

Over there?

The Court:

Take him back in the courtroom for now.

The Defendant:

I ain’t going over there.

Id. at 2279–81
At that point, as the judge described it on the record,
What happened is basically the Defendant lost complete control, indicated to the
Court that he would act up and, in fact, proceeded to jump around, went crazy[,]
causing the deputies, four deputies[,] to restrain him and put him in leg irons.
And he struggled very violently with them. And he has promised to the Court that
he intends to continue that type of activity throughout the trial if he’s required to
be here.
Id. at 2281–82.
The judge then took appropriate measures to ensure that Carter could watch the trial on a
television monitor from a separate jury room and contact his attorneys if necessary. Id. at 2283.
He also asked defense counsel to inform him if Carter would like to return to the courtroom and
agree not to disrupt the proceedings. Id. at 2284. Finally, he gave the jury a cautionary
instruction to disregard Carter’s absence from the courtroom. Id. at 2290. Carter’s counsel
apprised the court throughout the trial of Carter’s continued wish to remain outside the
courtroom. Id. at 2535; Trial Tr. vol. XIII at 2573; Trial Tr. vol. XIV at 2691, 2808; Trial Tr.
vol. XV at 3000; Trial Tr. vol. XVI at 3251.
Near the end of the guilt phase of Carter’s trial, Carter’s counsel informed the court that
Carter now wished to be present in the courtroom and would promise not to be disruptive—but

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only on the condition that he be unshackled. The deputies did not think they could protect both
of Carter’s attorneys if Carter was unshackled, however, and one of the defense counsel, whom
Carter had threatened to kill, would not waive that protection. The judge decided he would have
to remain shackled. When advised of this, Carter chose to stay in the jury room. Trial Tr. vol.
XV at 3094–97. The prosecutor noted on the record that Carter’s “behavior has been very
impulsive and he has acted up. We’ve heard him. People have complained that he’s hollered in
the back . . . .” Id. at 3097. The judge summed up,
I have to balance [Carter’s] Constitutional [r]ights against the protection of
everyone that’s in the courtroom. . . .
. . . I think on balancing the whole situation I would allow him his
Constitutional [r]ight to be present, but with shackles.
Now having said that, it’s my understanding that he does not wish to
appear . . . .
Id. at 3098.
It is clear from this account that the trial court was patient, solicitous, and wholly
reasonable in its treatment of Carter’s presence in the courtroom. It also is clear that Carter
expressly, voluntarily and intelligently waived his right to be present, both through his oral
statements and his disruptive behavior, and continued to express that desire throughout the trial.
Carter’s conduct was not “beyond his rational control,” as Carter suggests, ECF No. 129 at 17,
but entirely rational. He clearly expressed his wish not to be present, thought of a way to make
that happen (by “acting up”), asked about possible consequences for that conduct, and, after
dismissing those consequences, lunged at the judge. He received that which he sought: removal
from the courtroom. Later, when he agreed to return to the courtroom, he unreasonably

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conditioned his acquiescence on being unshackled and withdrew his agreement when his request
was denied.
In sum, Carter’s claim that the trial court erred by not “inquir[ing]” further into his
absence is belied by the record. The trial court did indeed monitor the situation throughout
Carter’s trial, albeit through his counsel. And Carter points to nothing in the record that shows
the judge should have done something more, or that even if the judge had questioned Carter
directly, the result would have been any different. Accordingly, the Ohio Supreme Court neither
contravened nor misapplied clearly established Supreme Court precedent in concluding that the
trial court did not violate Carter’s due process rights by not inquiring further into his competency
and removing him from the courtroom during his trial.
d.

Failure to Obtain Carter’s Waiver of Presence at the
Sentencing Phase of Trial

Carter further maintains that the trial court should have obtained from Carter an express
waiver of his right to be present before the sentencing phase of the trial. ECF No. 129 at 17–19.
He relies on Supreme Court authority for the proposition that a constitutional right must be
“knowingly and voluntarily waived . . . .” Id. at 17–18 (citing Miranda v. Arizona, 384 U.S. 436,
444 (1966) and Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
This claim, too, is meritless. As noted above, just minutes into his trial, Carter
voluntarily and unequivocally waived his right to be present in the courtroom. Carter cites no
clearly established Supreme Court precedent requiring a second express waiver from a defendant
before the sentencing phase of trial begins under these circumstances. Additionally, Carter’s
behavior in the courtroom and outside, in the presence of the trial judge, along with his
communications to the trial judge certainly support a reasonably inferred continuation of that

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earlier made knowing and voluntary waiver of his right to be present in the courtroom during the
sentencing phase.
2.

Ineffective Assistance of Counsel

Carter also argues that his trial counsel provided ineffective assistance when they “failed
to vigorously pursue the issue of his competence throughout the proceedings.” ECF No. 129 at
38. The last state court to provide a reasoned decision on Carter’s competency ineffectiveassistance claims was the Ohio Court of Appeals. It stated,
Appellant asserts that his attorneys failed to develop a complete record to
show that he was incompetent to stand trial because his paranoid personality did
not permit him to trust, or therefore consult with and aid, his lawyers. As evidence
of that claim, appellant submits an affidavit from his trial attorney to attest to the
following facts: appellant would not cooperate with his attorneys; appellant would
not discuss any aspects of the case or his personal life with his attorneys; appellant
stood and told the jury not to waste their time with the trial because he was guilty;
appellant wanted to kill his attorney; both appellant’s mother and uncle were
paranoid schizophrenics; and appellant would only come out of the jury room
during trial if his attorneys bribed him with candy. The record also shows that
appellant told the court that he did not want to be present during the trial, just
wanted to plead guilty, and he attempted to attack the court.
Carter, 2000 Ohio App. LEXIS 5935, at **10–11. After describing the hearings, as quoted
above, the court concluded that Carter’s
inability or unwillingness to aid his attorneys in the defense of his case is
well-documented in the record. Neither his petition for postconviction relief nor
his brief raise new grounds or point to anything outside the record to demonstrate
that he is entitled to relief or a hearing.
Id. at *13.
The Supreme Court long has recognized that the Sixth Amendment right to the effective
assistance of counsel at trial “is a bedrock principle in our justice system.” Martinez v. Ryan,
132 S. Ct. 1309, 1317 (2012); see also Gideon v. Wainwright, 372 U.S. 335, 342–44 (1963). The

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47

Court announced a two-prong test for claims of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, the petitioner must demonstrate that counsel’s
errors were so egregious that “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 or she was prejudiced by counsel’s errors. To
do this, a petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “It is
not enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’” Id. at 693 (citation omitted). 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. Ineffective-assistance claims are mixed questions of law and fact. Id. at 698.
Habeas courts review such claims, therefore, under AEDPA’s “unreasonable application” prong,
§ 2254(d)(1). See, e.g., Mitchell v. Mason, 325 F.3d 732, 737–38 (6th Cir. 2003).
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
(2010)). It has explained,

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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 independence of counsel and . . . the wide latitude counsel must have
in making tactical decisions.’” Pinholster, 131 at 1406-07 (quoting Strickland, 466 U.S. at 689–
90).
The Court 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.
a.

Failure to Prepare Experts for, and Present Material Evidence
at, the Competency Hearings

Carter argues that the state court’s decision was contrary to, or an unreasonable
application of, Strickland given his trial counsel’s failure to provide to the experts, or present to

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the trial court, material evidence of his incompetency to stand trial. ECF No. 129 at 8–9, 38–39;
ECF No. 226 at 16–19, 71. The Court disagrees.
(1)

Additional Evidence of Incompetency

Carter most emphatically complains that his trial counsel did not present to his expert or
the trial court the following records: the psychosocial history written by Albert Linder and letter
Dr. Darnall wrote to defense counsel, discussed above; the affidavit of Ida Magee, Carter’s foster
mother; a 1994 chemical dependency assessment from the Portage County Juvenile Court
Substance Abuse Awareness Department; and 1995 evaluation of the Portage-Geauga County
Juvenile Detention Center. ECF No. 129 at 8–9; ECF No. 226 at 16–19.
The Court may not consider this evidence as it was not part of the state-court record.
Moreover, Carter offers nothing more than conclusory allegations about his counsel’s failure to
give these particular documents, and other, unspecified “records of Sean’s history,” to Dr. King.
There is nothing in the record to show what documents counsel actually possessed, or what
documents they, or Dr. King himself, may have decided for strategic reasons to use in
preparation of the competency evaluation or as evidence at the competency hearings. The record
does show, however, that Dr King—like Drs. Palumbo and Alcorn—reviewed numerous
informative documents in connection with his assessments of Carter’s competency, presumably
containing similar, if not identical, information to the documents to which Carter refers.10

10

Dr. King’s report includes as “sources of information”: Dr. Palumbo’s
competency evaluation, a social history prepared by a probations officer of the Portage
County Department of Youth Services; a 1995 report prepared by the Portage County
Juvenile Court Psychology Department; and an affidavit of an officer of the Trumbull
County Sheriff’s Department prepared in September1997; and Carter’s statement to the
police after he was detained. ECF No. 88 at 31–32 (the State did not include pre-trial and
(continued...)

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50
(2)

Attorneys’ Testimony at Hearings

Carter also argues that his trial counsel should have testified at the two competency
hearings about Carter’s hostility toward them and refusal to assist in preparing his defense. ECF
No. 129 at 38. Testifying, however, would have posed serious ethical concerns, possibly
resulting in the disclosure of confidential or privileged information or the attorneys’
disqualification from the case. See Ohio R. Prof. Conduct 1.6, 3.7. Moreover, Carter’s attorneys
did not need to testify themselves to make their difficulties in representing Carter clear to the
court; they could do so effectively through questioning witnesses and their expert’s testimony.
One example is this exchange between defense counsel and Dr. Palumbo at the first competency
hearing:
Q:

Now, he told you he doesn’t like lawyers. Isn’t that a form of paranoia?

A:

It may be, but I don’t believe it is in this case.

Q:

Why would this case be any different?

A:

Because I’ve evaluated many individuals that have had difficulty with the
law and I would say that most of them feel the same way, would not trust
attorneys. That’s a common statement.
...

10

(...continued)
trial exhibits in the appendix to the return of writ; instead, it later moved to expand the
record to include them, which the Court granted. See ECF Nos. 81, 84, 85–89.). Dr.
Palumbo, in turn, relied upon “a number of materials,” including school and “Children’s
Services Board” records, and statements of Carter and “other family members and . . .
individuals.” Trial Tr. vol. I at 10 (the Court could not find in the record Dr. Palumbo’s
report, which presumably contained a more comprehensive list of sources). Dr. Alcorn
reviewed similar documents, including Dr. Palumbo’s evaluation, Carter’s statements to
police, an Ohio Bureau of Criminal Investigation report, 34 pages of Carter’s letters and
drawings, statements of relatives of Veader Prince and other witnesses; and more than
200 pages of records from an Ohio county children services board. Trial Tr. vol. VI at
784–85; ECF No. 88 at 22–23.

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51

Q:

In this case already Mr. Carter has not listened to his attorneys’ advice.
We have asked to have the matter continued to prepare better for it.

A:

I don’t know. Is that the case? I don’t know.

Q:

Yeah, that’s the case. Does that not show indication that he doesn’t want
to listen to his attorneys’ advice?

A:

Excuse me. It certainly sounds like he doesn’t want to, but that’s different
from being able to.

Q:

You are mixing up what he is able to do and tendencies of paranoia. I’m
not asking what he is able to do, I’m saying does that not exhibit a sign of
paranoia when somebody gives you sound advice and you just don’t trust
them so you won’t listen to them.

A:

It may.

Q:

Do you feel that he is able to aid in his own defense?

A

Yes, sir.

Trial Tr. vol. I at 36–38. And Dr. King testified at the second competency hearing,
I’ve had conversations with his counsel as frequent as today and they have
indicated to me that he is uncooperative with them, he is not working with them,
that actually he is very hostile when put under any pressure, and that they are
actually not only apprehensive but even afraid of him.
Trial Tr. vol. VI at 568. The attorneys’ testimony, therefore, would have been merely cumulative
to what already was in the record.
(3)

Evidence of Mental Illness

Carter further argues that his counsel failed to present evidence of his “severe mental
illness” and “bizarre” behavior. ECF No. 129 at 8, 38. The record belies this claim. Carter’s
counsel thoroughly examined each of the experts about aspects of Carter’s social and medical
history that indicated mental illness, including seizures, hearing loss, learning disabilities, and

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52

possible brain damage and hallucinations. See, e.g., Trial Tr. vol. I at 27–29, 90–92; Trial Tr.
vol. VI at 564–69, 726. In particular, counsel presented Deputy Vaughn to testify at the first
competency hearing that Carter had attempted suicide and acted aggressively toward others.
Trial Tr. vol. I at 96–98. At the second hearing, they presented Dr. King, who testified that
Carter exhibited bizarre behavior during his evaluations, such as laughing about his case and
stating that he wanted to kill Attorney Consoldane. Trial Tr. vol. VI at 558–59. Carter’s counsel
also questioned the experts at both hearings about the significance of the fact that Carter’s mother
and maternal uncle were schizophrenic. Trial Tr. vol. I at 29–31; Trial Tr. vol. VI at 563–64,
731–34. And Attorney Lewis aggressively cross-examined Dr. Alcorn about the nature of
Carter’s hallucinations. Tr. vol. VI at 824–36.11
(4)

Neuropsychological Examination

Finally, Carter argues that counsel was ineffective because they “did not request a
neuropsychological examination.” ECF No. 129 at 39. At the end of the first competency
hearing, defense counsel requested funds for an MRI and expert to examine Carter for brain

11

Carter asserts that his trial counsel did not effectively cross-examine Drs.
Palumbo and Alcorn “to reveal the inconsistencies and inadequacies of their testimony,
for example the failure to review all records and to interview collateral sources.” ECF
No. 129 at 39. But he does not cite to one example in the trial transcript in which
counsel’s cross-examination was deficient. Nor does he show “a reasonable probability
that . . . the result of the proceeding would have been different” had counsel crossexamined the experts differently. Strickland, 466 U.S. at 694. The Court, therefore, will
not address this claim. See, e.g., United States v. Crosgrove, 637 F.3d 646, 663 (6th Cir.
2011) (“Because there is no developed argumentation in these claims, the panel declines
to address [the defendant’s] general assertions of misconduct in witness questioning and
closing statements.”); United States v. Hall, 549 F.3d 1033, 1042 (6th Cir. 2008)
(“‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.’”) (quoting United States v. Johnson, 440
F.3d 832, 846 (6th Cir. 2006)).

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defects, based on Dr. Palumbo’s testimony about Carter’s seizures, learning disability, and
hearing loss. Trial Tr. vol. I at 98–99. The trial court, having found Carter competent, denied
the motion for a second expert, but reserved ruling on the MRI in the event it became relevant
later for another purpose. Id. at 100–01. At the second competency hearing, Dr. King testified
that it would be “comprehensive” to conduct an MRI test. The trial court then directly
questioned Dr. King about the necessity for an MRI in this exchange:
The Court:
A:

No.

The Court:
A:

Well, then why do you suggest that he should?

Well, what I’m saying is that it would add to a comprehensive workup.
I’m not saying that it’s necessary for me to make the diagnosis or render
my opinion in this case.

The Court:

A:

Do you need [an MRI] for any of your opinions, doctor?

And I appreciate what you’re saying but—of course I would be
glad to order it if it would be helpful in some area, but if it’s not
going to be. You don’t need it for your opinions, correct?

No. No, I don’t.

The Court:

Then can you tell me why it would be necessary for this case or to
assist Mr. Consoldane?

A:

Well, Mr. Consoldane I think is implying that it would be helpful. I don’t
think he said it was necessary, so I think—

Q:

Well, let me ask it to you this way, would it be helpful to know this in
treating him to make him competent to be able to stand trial?

A:

No.

Q:

No.

A:

No, I don’t think so.

...

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54

The Court:

A:

But in your opinion an MRI would not assist us in this case to
render any psychological opinions involving either sanity or
competency or mental defect?

No.

Trial Tr. vol. VI at 564–66. At the end of the hearing, the judge stated that he would authorize an
MRI for purposes of the mitigation phase of trial, but defense counsel explained that he had
requested the test for competency alone and declined the court’s offer of an MRI “unless we can
find some other organic evidence that would substantiate that.” Trial Tr. vol. VII at 869–70.
Given the opinion of the defense’s own expert, Dr. King, that an MRI would be useful for
purposes of a comprehensive psychiatric evaluation, but was not necessary for his evaluation of
Carter’s competency, Carter has not “overcome the presumption that, under the circumstances,”
not pursuing neurological testing or an MRI “was sound trial strategy.” Strickland, 466 U.S. 689.
See also Morris v. Carpenter, Nos. 11-6322/6323, 2015 WL 5573671, at *15 (6th Cir. Sept. 23,
2015) (“Attorneys are entitled to rely on the opinions and conclusions of mental-health experts.”)
(citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 758 (6th Cir. 2013); Black v.
Bell, 664 F.3d 81, 104–05 (6th Cir. 2011)).
Accordingly, the Ohio appellate court reasonably applied Strickland in concluding that
his trial counsel did not perform deficiently in their preparation for, and presentation of evidence
at, Carter’s competency hearings.
b.

Failure to Request a Third Competency Hearing and Preserve
an Adequate Record for Appeal Regarding Carter’s
Incompetence

Carter also complains that the state court was unreasonable in finding no deficiencies in
his trial counsel’s treatment of the competency issue after the trial began. ECF No. 129 at 14–15;

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ECF No. 226 at 71. As with the trial court, however, Carter fails to point to evidence that should
have prompted defense counsel to request a third competency hearing. Furthermore, throughout
the trial, counsel ensured that the record documented Carter’s violent behavior in the courtroom,
his refusal to attend the proceedings, and his desire to kill Attorney Consoldane. See, e.g., Trial
Tr. vol. XI at 2281; Trial Tr. vol. XIII at 2573; Trial Tr. vol. XV at 3094–99. This claim also
fails.
II.

Second and Fifth Grounds for Relief: Ineffective Assistance of Counsel
For his second and fifth grounds for relief, Carter alleges additional instances in which his

trial counsel breached his Sixth Amendment right to effective assistance of counsel. He
complains that counsel:
1.

Failed to investigate, prepare, and present mitigating evidence;

2.

Failed to object to certain instances of prosecutorial misconduct;

3.

Failed “to present argument” concerning jury instructions on murder,
manslaughter, theft, and gross sexual imposition, and the need for instructions on
the lesser-included offenses of aggravated murder, aggravated robbery, and rape;
and

4.

“Negated” their own theory of the case during closing argument.12

ECF No. 129 at 21-34, 37-39.

12

Carter added a fifth ineffective-assistance sub-claim in his traverse, regarding
his trial counsel’s failure to “review” and “notice” the defective indictment. The Court
will not address this claim, however, as a district court may decline to review a claim that
a party raises for the first time in his or her traverse. Tyler v. Mitchell, 416 F.3d 500, 504
(6th Cir. 2005).

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A.

56
Procedural Posture

Carter raised the first sub-claim, as listed above, on post-conviction to the trial court and
court of appeals, which adjudicated it on the merits. See Carter, 2000 Ohio App. LEXIS 5935, at
**8–10. Carter also raised the claim on appeal to the Ohio Supreme Court, but the court
declined jurisdiction. State v. Carter, 91 Ohio St. 3d 1509, 746 N.E.2d 612 (Ohio 2001). This
claim, therefore, is preserved for federal habeas review.
The State argues that the second sub-claim, as listed above, is procedurally defaulted.
Carter did not raise it on direct appeal. He did raise the claim on post-conviction, but the court
denied it on the ground of res judicata, and Carter then failed to appeal that decision. ECF No.
138 at 71 (citing App. vol. IV at 18–19, 90–91). The Sixth Circuit consistently has recognized
Ohio’s doctrine of res judicata, barring courts from considering any issue that could have been,
but was not, raised on direct appeal, as an “independent and adequate state ground” upon which
to find a habeas claim procedurally defaulted. See, e.g., Jacobs v. Mohr, 265 F.3d 407, 417 (6th
Cir. 2001).
Carter responds that he raised an ineffective-assistance claim regarding “some instances
of prosecutorial misconduct” on direct appeal to the Ohio Supreme Court under his fifth
proposition of law. He also contends that he raised this claim in his application to reopen his
direct appeal, or Murnahan application, and, because the Ohio Supreme Court denied the petition
without asserting a procedural bar, the claims are not defaulted. ECF No. 226 at 72–73.
Murnahan applications allows capital defendants to present claims of ineffective assistance of
appellate counsel to the Ohio Supreme Court within a prescribed 90-day time period. Ohio S. Ct.

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57

Prac. R. 11.06(A) (this rule was designated as Ohio S. Ct. Prac. R. XI, § 5 when Carter filed his
application); see also State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (Ohio 1992).
This claim is procedurally defaulted. Carter did not raise this claim on direct appeal. See
App. vol. III at 137–42. Nor did he raise the claim in his Murnahan application. He mentioned
this ineffective-assistance-of-trial-counsel claim there only as the basis for his ineffectiveassistance-of-appellate-counsel claim; in other words, as a claim that his appellate counsel erred
for not having raised on direct appeal. The claim, therefore, remains procedurally defaulted
absent a showing of cause and prejudice, which Carter does not make. Lott v. Coyle, 261 F.3d
594, 611-12 (6th Cir. 2001).
Carter raised the third sub-claim on direct appeal to the Ohio Supreme Court, which
considered the claim on the merits. See Carter, 89 Ohio St. 3d at 606, 734 N.E.2d at 357. This
claim is ripe for federal habeas review.
The State argues that the fourth sub-claim also is procedurally defaulted because,
although the claim is based on the record, Carter failed to raise it on direct appeal. ECF No. 138
at 79. Carter neither acknowledges nor responds to this argument. The State is correct. In Ohio,
where a defendant’s ineffective-assistance claim “could [have been] fairly determined without
examining evidence outside the record,” and the defendant does not raise that claim on direct
appeal, the res judicata doctrine precludes post-conviction relief for that claim. State v. Cole, 2
Ohio St. 3d 112, 113–14, 443 N.E.2d 169, 171 (Ohio 1982). Carter, having failed to present this
record-based claim to state courts and having no remaining state-court remedies, has therefore
procedurally defaulted this claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).

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B.

58
Merits
1.

Failure to Prepare for, and Present Evidence at, the Mitigation Phase
of the Trial

Carter complains in his second ground for relief that his trial counsel failed to investigate,
prepare, and present mitigating evidence, including evidence regarding Carter’s childhood
trauma, neglect and developmental difficulties; his serious mental illness; his family history of
serious mental illness; his neurological dysfunction; his polysubstance abuse; and the impact the
structured environment of prison would have had on him. ECF No. 129 at 21–34.
The last state court to rule on this claim was the Ohio Court of Appeals on postconviction. Carter submitted as support for this claim an affidavit from an attorney, Gerald
Ingram, who averred that a mitigation specialist is “required” in capital cases, because criminal
trial lawyers “are inadequate and incompetent to discover” mitigating evidence without such
expert assistance. App. vol. IV at 26–27. The appellate court stated:
Appellant argues that he was denied effective assistance of counsel
because trial counsel did not properly prepare for the penalty phase of the trial. He
asserts that the trial court could only resolve this claim through a hearing and
reference to evidence outside the record. In his petition for postconviction relief,
appellant points to two specific reasons for the ineffectiveness of counsel:
(A) failing to fully investigate petitioner’s medical and social
history; and
(B) failing to hire a mitigation expert to assist in discovery of
relevant information.
The trial court ruled that appellant did not show substantive grounds for
relief or a hearing in his claim that his trial counsel failed to investigate his
medical and social history or hire a mitigation expert. The trial court found that
appellant’s trial counsel did hire a mitigation expert. On October 22, 1997, the
trial court allowed funds for the hiring of mitigation experts, Sandra and Donald
McPherson.

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59

At the sentencing hearing, appellant called Nancy Dorian, a psychologist
for the children’s services board who dealt with appellant’s placement in foster
care. She testified that appellant was emotionally flat, had little warmth and
nurturing as a small child, had difficulty adjusting, had an inability to get along
with people and was “schizoid-prone.” She testified about appellant’s situation
with his birth mother, who was diagnosed as a schizophrenic, who neglected him
and his sister and on at least one occasion tied appellant to the leg of a couch.
Appellant was placed with different families during his childhood.
Sandra McPherson testified at the penalty phase of trial and the record
shows that she had conducted a thorough review of appellant’s medical and social
history, about which she testified to the jury. She corroborated much of Nancy
Dorian’s testimony and presented the jury with greater detail about appellant’s
background. This background included a history of mental illness in his family,
developmental problems, trouble he had expressing himself, and that he never
learned the boundaries of acceptable behavior. She concluded that he was unable
to develop a “normal” capacity to think and feel.
It does not appear from reading the record that appellant’s counsel
performed inadequately at the mitigation phase of the trial. Appellant’s assertion
that his counsel failed to investigate his medical and social history or to hire a
mitigation specialist is not supported by the record. Furthermore, appellant did not
submit any evidentiary documents or point to any evidence outside of the record
that would indicate that he was entitled to relief or a hearing on this claim.
Carter, 2000 Ohio App. LEXIS 5935, at **8–10.
The Supreme Court repeatedly has held that counsel in capital cases have an “obligation
to conduct a thorough investigation of the defendant’s background” for mitigation purposes.
Williams v. Taylor, 529 U.S. 362, 396 (2000). In Strickland, the Court noted that a capital
sentencing proceeding “is sufficiently like a trial in its adversarial format and in the existence of
standards for decision” that counsel’s role in the two proceedings is comparable: “to ensure that
the adversarial testing process works to produce a just result under the standards governing
decision.” Strickland, 466 U.S. at 686.
Accordingly, the Supreme Court and Sixth Circuit have found ineffective assistance of
counsel in capital cases where trial counsel failed to adequately investigate or present mitigating

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evidence at sentencing. See, e.g., Rompilla v. Beard, 545 U.S. 374, 389–93 (2005) (counsel
ineffective for failing to examine court file of defendant’s prior conviction which contained a
range of vital mitigation leads regarding defendant’s childhood and mental health problems);
Wiggins v. Smith, 539 U.S. 510, 526, 534, 537 (2003) (counsel ineffective for failing to discover
and present “powerful” evidence of petitioner’s “excruciating life history” and instead “put on a
halfhearted mitigation case”); Frazier v. Huffman, 343 F.3d 780, 795–99 (6th Cir. 2003) (counsel
ineffective for failing to introduce any mitigating evidence in either guilt or penalty phases of
trial when he was aware of petitioner’s brain injury).
Nevertheless, “the duty to investigate 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.” Rompilla, 545 U.S. at 383.
See, e.g., Wiggins, 539 U.S. at 525 (further investigation excusable when counsel has evidence
suggesting it would be fruitless); Strickland, 466 U.S. at 699 (counsel could “reasonably surmise
. . . that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S.
776 (1987) (finding limited investigation reasonable because all witnesses brought to counsel’s
attention provided predominantly harmful information).
The Supreme Court has advised courts to “begin with the premise that ‘under the
circumstances, the challenged action[s] might be considered sound trial strategy.’” Pinholster,
131 S. Ct. at 1404 (quoting Strickland, 466 U.S. at 689). Indeed, “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually unchallengeable
. . . .” Strickland, 466 U.S. at 690. Thus, the Court repeatedly has held that counsel is not
ineffective for deciding to offer little or no mitigating evidence where that decision is based on

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61

sound professional judgment. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002); Strickland, 466
U.S. at 699–700; Burger, 483 U.S. at 793-75; Darden, 477 U.S. at 184.
Courts may infer from the record a trial attorney’s strategic basis for a challenged
decision. The Supreme Court has explained,
Although courts may not indulge “post hoc rationalization” for counsel’s
decisionmaking that contradicts the available evidence of counsel’s actions, . . .
neither may they insist counsel confirm every aspect of the strategic basis for his
or her actions. There is a “strong presumption” that counsel’s attention to certain
issues to the exclusion of others reflects trial tactics rather than “sheer neglect.”
Harrington, 562 U.S. at 109 (citations omitted).
a.

Investigation

Carter argues that the Ohio appellate court’s conclusion that his “assertion that his
counsel failed to investigate his medical and social history . . . [was] not supported by the record”
contravenes or unreasonably applies Supreme Court precedent. First, he generally complains that
his trial counsel “failed to investigate Mr. Carter’s background for mitigating evidence.” ECF
No. 226 at 48. But as the state court determined, the record contradicts this claim. Just twelve
days after Carter was indicted, his counsel sought and received funding for an independent
psychologist, investigator, and mitigation specialist. App. vol. I at 66–74; App. vol. II at 11–12.
Carter himself concedes that the experts gathered “crucial documents substantiating the facts of
[Carter’s] traumatic childhood,” including “a number of medical, legal, and social service
records” that were eventually admitted into evidence. ECF No. 226 at 22–23.
More specifically, Carter claims his counsel or the experts they retained failed to uncover
in their investigation the Linder report and Darnall letter, described above, which he contends

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62

document Carter’s serious mental illness. ECF No. 226 at 30–31. But, again, the Court may not
consider this evidence. Pinholster, 131 S. Ct. at 1398.
Carter also complains that his trial counsel “failed to investigate his history of drug
abuse,” and cites to records that report his drug use and related criminal charges but were not
presented to the jury during mitigation. ECF No. 226 at 43–44. Again, Carter obtained some of
these records in federal habeas proceedings, such as a chemical dependency assessment of Carter
conducted for the Portage County Juvenile Court in April 1994 and pre-trial evaluations, and the
Court may not consider this evidence. Another document to which he refers, “an evaluation”
conducted by the Portage County Department of Youth Services (“DYS”) dated June 16, 1995, is
similar, if not identical to, a “social history” prepared by that agency, also dated June 16, 1995,
that was introduced at Carter’s competency hearing and therefore clearly in his counsel’s
possession. See ECF No. 88 at 8–17. In addition, another Portage County DYS evaluation of
Carter, dated June 15, 1995, which contains information about Carter’s drug use, also was
introduced at the competency hearing. See id. at 1–7.
Carter’s more troubling complaint concerns counsel’s failure to obtain neurological
testing for mitigation purposes. ECF No. 226 at 34–43. He argues that such testing would have
uncovered evidence of organic brain damage based on evidence in the record from his childhood,
including Carter’s traumatic birth, drug use, withdrawn and anxious behavior, and history of
seizures.13 Id. at 34–35.

13

Carter also supports this argument with evidence obtained in discovery in these
habeas proceedings, which the Court may not consider. See ECF No. 226 at 35-37.

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As explained above, the trial court informed defense counsel after the first competency
hearing that he was inclined to authorize an MRI for mitigation purposes if they could “present
evidence of a particularized need.” Trial Tr. vol. I at 101. At the second competency hearing,
Dr. King, the defense’s expert, testified that an MRI would be “helpful” for a “comprehensive”
psychiatric evaluation of Carter. Trial Tr. vol. VI at 568. However, when the judge directly
asked Dr. King if “in [his] opinion an MRI would not assist us in this case to render any
psychological opinions involving either sanity or competency or mental defect[,]” Dr. King
replied, “No.” Id. at 566. At a later pretrial hearing, the judge again asked defense counsel if
they would like to renew their motion requesting funds for an MRI, stating:
The Court is mindful of the fact that mental defect and/or, just on a general
basis as a mitigating factor, a mental condition could become important in this
case should this case go to a second phase. That being the case, and your expert
saying he would like to see that, Dr. King, I will now allow you to do that. . . . Do
you wish to have that done?
Trial Tr. vol. VII at 870. Attorney Consoldone replied that he “wanted that done for the
competency,” but that he would decline the court’s offer of funding for an MRI for mitigation
purposes “unless we can find some other organic evidence that would substantiate that.” Id.
Given Dr. King’s express opinion that an MRI would not have advanced Carter’s case for
mitigation, it is possible that Carter’s trial counsel decided that, for sound strategic reasons, the
risk posed by an MRI was greater than its potential benefits: an MRI may have shown that Carter
had no brain defect at all and actually weakened Carter’s position. See Morris v. Carpenter, Nos.
11-6322/6323, 2015 WL 5573671, at *15 (6th Cir. Sept. 23, 2015) (“Attorneys are entitled to
rely on the opinions and conclusions of mental-health experts.”) (citing McGuire v. Warden,
Chillicothe Corr. Inst., 738 F.3d 741, 758 (6th Cir. 2013); Black v. Bell, 664 F.3d 81, 104–05

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(6th Cir. 2011)). Furthermore, the speculative nature of this claim precludes a showing of
prejudice; without knowing the results of an MRI test, Carter cannot demonstrate that his
counsel’s decision to forgo the testing affected the outcome of the jury’s sentencing.
The Ohio appellate court, therefore, reasonably determined that Carter’s trial counsel
were not constitutionally deficient in their efforts to prepare for the mitigation phase of trial.
b.

Presentation of Evidence

Carter also contends that the Ohio appellate court was unreasonable in deciding that his
trial counsel performed adequately during the mitigation phase of trial. He argues that counsel
were ineffective in their “incomplete and inaccurate” presentation of evidence, focusing on three
aspects of their performance: their cursory review of Carter’s background and character; their
incoherent and damaging theory of mitigation; and their failure to introduce compelling
evidence. See ECF No. 226 at 21–46.
(1)

Cursory Review of Carter’s Background and Character

Carter complains generally that his counsel presented a “piecemeal,” “haphazard,” and
“cursory” overview of Carter’s background and character to the jury. Id. at 22, 29. The record
clearly refutes this claim.
Defense counsel presented two witnesses, Dr. Sandra McPherson, a psychologist and
mitigation specialist, and Nancy Dorian, a psychologist who oversaw Carter’s family while
working for a social services agency, who together painted a detailed and balanced portrait of
Carter and his life. Dr. McPherson in particular provided a comprehensive review of Carter’s
family, academic, medical, psychological, and criminal history from his birth to the time of the

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trial, as well as her assessment of his present psychological functioning. See, e.g., Trial Tr. vol.
XVI at 3304–24.
Ms. Dorian’s and Dr. McPherson’s testimony was further supported by exhibits totaling
hundreds of pages. See ECF No. 89. The State introduced Carter’s Trumbull County Children
Services case file, as well as school, medical, and juvenile court records. Defense counsel
introduced three reports from Ms. Dorian regarding psychological evaluations she had conducted
of Carter in 1983, 1985, and 1986. See ECF No. 89 at 1–4, 196–97; Trial Tr. vol. XVI at 3254–
61. They also introduced Dr. McPherson’s report, which summarized the information contained
in the other exhibits, as well as the reports of Drs. Darnall, Palumbo and Alcorn, and presented
her psychological assessment of Carter and opinion of how his diagnostic status and functioning
related to the crime. See ECF No. 89 at 5–13; Trial Tr. vol. XVI at 3304, 3327.
(2)

Incoherent and Damaging Theory of Mitigation

Carter also argues that his trial counsel lacked a “comprehensive and coherent theory of
mitigation.” The jury, in his view, therefore “was unable to process, understand, or contextualize
any of the evidence of Sean’s traumatic background and mental illnesses . . . . Instead, they were
presented with an image of a mechanical killer who was unable to feel emotion, have empathy . .
., or express remorse.” ECF No. 226 at 20-21. He cites to Dr. McPherson’s diagnosis of Carter
as a “psychopathic character,” and her testimony that persons with this disorder
are so severely disrupted that they simply do not feel or see or comprehend the world in
the same way that we do, and he seems to fulfill many of those kinds of traits. . . . He
lacks an understanding of pain; he doesn’t have the ability to know what other people are
thinking, nor does he care; he’s always alone . . . .
Id. at 22 (quoting Trial Tr. vol. XVI at 3318). Carter further points to defense counsel’s
reference to him as a “piece of machinery” in his closing statement. Id. (quoting Trial Tr. vol.

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XVI at 3369). He suggests that his counsel should have focused instead on the impact a
structured prison environment could have had on him if he were given a life sentence. Id. at 20–
21.
The evidence and argument about which Carter complains, however, supported what was
a clear and well-developed theory of mitigation: that this young man committed a horrible crime
because he was severely psychologically damaged through no fault of his own and by
circumstances beyond his ability to control. It was, in essence, a plea for mercy, rather than
Carter’s proposed strategy of minimizing his psychopathy while stressing his potential for
adapting well to prison life.
Dr. McPherson’s diagnosis of Carter as psychopathic was preceded by her detailed
account of Carter’s traumatic first years of life, his early medical and mental illnesses, his
positive foster placement and later disruptive adoptions by the Smith and Carter families, his
troubled juvenile years, and his compromised intellectual functioning. Trial Tr. Vol. XVI at
3304–15. She stressed the negative impact his birth mother’s neglect and the unsuccessful
adoptions had on every aspect of his development, including delayed cognitive development, a
seizure disorder, and attachment disorder as a young child, id. at 3305–06; inappropriate sexual
behavior and aggression as a juvenile, id. at 3310–11; and ultimately, mental illness. She
testified, for example, that without proper nurturing children “don’t develop adequately the
cognitive structures that underlie a lot of our thinking process. In the same way, . . .[c]hildren
who are not loved don’t develop the capacity to love or care for anybody, including themselves.”
Id. at 3312–13. She also explained his genetic predisposition to schizophrenic-like illnesses. Id.
at 3316.

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Carter focuses on Dr. McPherson’s diagnosis and description of Carter’s psychopathic
features. But Dr. McPherson diagnosed Carter with several psychological disorders, including
adjustment disorder with depressed mood, multiple substance abuse, periodic psychotic episodes,
possible emergence of schizophrenia, antisocial personality disorder, and borderline personality
disorder. Id. at 3315–20. And defense counsel softened her testimony about Carter’s
psychopathic characteristics by eliciting Dr. McPherson’s explanation that Carter’s personality
disorders were influenced by environmental, genetic,
and physiological factors beyond his control. Id. at 3320–21.
Furthermore, defense counsel made their mitigation theory very clear to the jury. In
concluding Dr. McPherson’s direct examination, counsel elicited her opinion that given his
troubled childhood and developmental problems, Carter’s foster placement was his “only
chance” for a positive outcome, assuming he received substantial assistance such as
psychotherapy and special education; instead, he was placed with two adoptive families who
were not “reasonable placement[s]” and never received the help he needed. Id. at 3321. His
final question highlighted Dr. McPherson’s conclusion that Carter “was both born and made and
neither of these processes were under his control.” Id. at 3323–24.
Counsel also reinforced their mitigation theory in closing argument. For example, and to
put the statement that Carter challenges in context, counsel argued:
We come into this world, we can be anything, but that nurturing develops
the feeling for empathy, for remorse, for feelings for others that’s so important.. . .
If you do without that you will have purely a piece of machinery. You will have
something that doesn’t feel for other people, and that’s the way it started out.
That’s the way Sean Carter came into this world. . . . The question is what was
going to happen down the road to change, . . . to get him to develop his
relationships to care?

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Id. at 3369.
Carter may now object to his counsel’s mitigation theory and argue that another theory
would have been more successful, but, as the State asserts, that is precisely the type of secondguessing of counsel’s strategy that Strickland prohibits. See ECF No. 138 at 90. Keeping in
mind that in the mitigation phase of trial, “strategic choices made after thorough investigation . . .
are virtually unchallengeable,” Strickland, 466 U.S. at 690, it is enough that “counsel presented a
theory of mitigation and provided evidence to support that theory. The jury simply rejected [it] .
. . .” Williams v. Coyle, 260 F.3d 684, 705 (6th Cir. 2001).
(3)

Inaccurate and Incomplete Evidence

Carter argues more specifically that his trial counsel mischaracterized, failed to put into
context, and ignored “compelling” mitigating evidence. First, he complains that, although Dr.
McPherson testified that Carter was sexually abused, Trial Tr. vol. XVI at 3314, she conceded on
cross-examination that it is possible that Carter himself reported the abuse and may have been
lying, id. at 3328–29. Carter contends that trial counsel were deficient for not bringing to the
attention of the jury records that show that Carter’s half-uncle, who was diagnosed with
schizophrenia, was “preoccupied with sexual activities” and “openly masturbates.” ECF No. 89
at 200. Also, he notes, a social worker wrote in a 1984 letter that she was concerned about
children who lived with him in part because of his inappropriate sexual conduct. ECF No. 88 at
45–46. There is no evidence, however, that Carter had any contact with this man, and this
evidence would have had little, if any, mitigating value.
Carter next agues that his educational history was “erroneously characterized.” ECF No.
226 at 23. Dr. McPherson testified that Carter had “the capacity for normal to slightly below

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intellectual function,” but that he had a “complete lack or relative lack or indifference to school.”
Trial Tr. vol. XVI at 3310. On cross-examination, she conceded that Carter did well in
elementary school, earning A’s and B’s. Id. at 3340–41, 3354. Carter contends that trial counsel
should have offered evidence that Carter was enrolled in a learning disability program during
elementary school, and that his grades deteriorated once he was no longer in such a program. To
support this argument, Carter cites to an affidavit filed in these federal habeas proceedings,
which the Court may not consider and which does not cite to the record in any event. ECF No.
226 at 23-24.
In fact, records introduced at the mitigation phase of Carter’s trial do not support Carter’s
claim. The records show that while Carter received special education tutoring in certain subjects
in elementary school, he was placed in a regular classroom. ECF No. 89 at 33, 34, 40, 156, 168,
170. The Court also could not find any support in the record for Carter’s assertion that he lacked
special education services after elementary school and his grades declined as a result. There are
no school records past the elementary school level. Dr. McPherson referenced in her report a
“Psychological Report” from around 1995 that “indicated [Carter] was doing little work in
school, chronic lying and rule-breaking was in evidence.” ECF No. 89 at 9. She may have been
referring to the 1995 Portage County DYS evaluation, described above, which stated that
Carter’s “academic performance in elementary school [was] basically average” but that by ninth
grade “[h]is grades were consistently failing . . . .” ECF No. 88 at 2.
Carter next contends that his trial counsel did not offer sufficient evidence regarding his
experience with the Smith family. He refers to overlooked evidence that the Smiths “emotionally
abused” him by cursing and screaming at him and calling him names; did not understand his

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special needs; spanked him; did not initiate activities with him; and were overly critical of him.
ECF No. 226 at 24. Carter does not cite to the record to support this claim.
Ms. Dorian and Dr. McPherson testified about many of these problems. Ms. Dorian
testified about Mrs. Smith’s difficulties in understanding Carter’s intellectual and social
limitations; her cursing when reprimanding Carter and when frustrated; and her insufficient
interaction with Carter. Trial Tr. vol. XVI at 3290. Dr. McPherson testified that the Smiths
“[did] another job on [Carter]”; he “[could not] meet their expectations” and they were
“punitive.” Id. at 3322–23. More evidence on this issue would have been cumulative. See Eley
v. Bagley, 604 F.3d 958, 968 (6th Cir. 2010) (“‘[T]he failure to present additional mitigating
evidence that is merely cumulative of that already presented does not rise to the level of a
constitutional violation.’”) (quoting Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).
Carter also complains that his counsel should have presented evidence critical of the
Carters, including that they were financially unstable, could not provide or seek out for him the
psychological services he needed, and had accessible sexually explicit materials in the home.
ECF No. 226 at 25–26. Instead, he argues, Dr. McPherson conceded on cross-examination that
the Carters were “suitable persons to adopt children” and that they exhibited “heroic behavior” at
their first meeting with Carter. Id. at 25 (quoting Trial Tr. vol. XVI at 3344, 3354). Trial
counsel, he adds, called the Carters “a fine family” and Mrs. Carter a “nice woman, beautiful
woman” during his closing argument. Id. (quoting Trial Tr. vol. XVI at 3375).
But Dr. McPherson did testify that the Carters did not provide the right environment for
Carter to succeed. She noted, for example, that the Carters were unprepared for the adoption,
failed to give Carter the support services he needed, and had other children and responsibilities.

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Trial Tr. vol. XVI at 3308–09, 3323. She also testified that the Carter home was too sexually
charged for Carter, with several females living there and an unrelated eighteen-year-old male
who shared sexually explicit materials with him. Id. at 3309.
Moreover, Dr. McPherson’s testimony about the Carters led to damaging rebuttal
evidence and cross-examination, and more details about the family could have caused even more
harm. See Wong v. Belmontes, 558 U.S. 15, 25 (2009) (rejecting petitioner’s “‘more-evidence-isbetter’ approach to mitigation” where it would have opened door to evidence of past murders).
For example, the prosecutor vigorously cross-examined Dr. McPherson about her testimony that
the Carter household was not a good environment for Carter. He pointed out the Carters’ many
efforts to help Carter and their successes with him, and brought up Carter’s sexual misconduct
with his adoptive and birth sisters and other criminal behavior while he lived with them. Trial
Tr. vol. XVI at 3351–58. Finally, it would be reasonable trial strategy to avoid criticizing a
victim’s family.
Carter further claims that his counsel failed to “elicit[] any of the positive information
about Sean and his bond with Ms. Magee.” ECF No. 226 at 22. He claims they should have had
Ms. Magee testify to “humanize Sean and evoke images of him as a little boy who was trying
hard to please but suffered serious, debilitating setbacks in his young life.” Id. at 26-27. Carter
refers to an affidavit of Ms. Magee, which was filed in this habeas case and the Court may not
review. However, both Ms. Dorian and Dr. McPherson testified at length about Carter’s positive
relationship with Ms. Magee and the strides he made while in her care. See, e.g., Trial Tr. vol.
XVI at 3257, 3271–72, 3275, 3287–89, 3306–08, 3321–23. Ms. Dorian read to the jury from a
social services report that stated, “Lately Mrs. Magee and this worker have observed Sean

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‘coming out of his shell.’ He can now be described as ‘all boy’. He takes swimming lessons,
plays kickball and baseball. He loves cars, trucks, drawing and being read to.” Id. at 3275. Ms.
Dorian testified that she recommended that Carter remain with Ms. Magee permanently, id. at
3287–89, and Dr. McPherson agreed, as noted above, that Ms. Magee was Carter’s “only chance”
for a good outcome, id. at 3321. Ms. Magee’s testimony, therefore, would have been cumulative.
In addition, Carter maintains that his trial counsel “failed to present an accurate and
complete picture of his symptoms [of mental illness], their duration and severity, and the link
between his mental illness and the offense.” ECF No. 226 at 29. He claims, for example, that
his counsel did not introduce “any evidence” during mitigation that he “was suffering from a
serious mental illness at the time of the offense” or that he had a genetic predisposition to
schizophrenia. Id. at 30, 32. He relies heavily on the affidavit of an expert and the Linder report
and Darnall letter, as described above. These documents were produced in these proceedings,
and the Court may not consider them.
In any event, this claim is flatly contradicted by the record. As the Court already has
noted, Dr. McPherson testified in detail about Carter’s early medical problems, such as his
hearing loss and seizures, see, e.g., id. at 3305–07; his delayed cognitive development and
attachment disorder, see, e.g., id. at 3305–06; and his psychological functioning and diagnoses,
including his attachment disorder and genetic predisposition to, and possible emergence of,
schizophrenia, see, e.g., id. at 3315–21, 3359–60. Dr. Dorian also testified regarding Carter’s
various mental illnesses. See, e.g., id. at 3255–59. Any more evidence on this issue would have
been cumulative.

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Carter further asserts that his counsel introduced evidence of his drug and alcohol abuse
“without any regard for explaining or contextualizing this devastating problem, or its interaction
with his underlying illness.” ECF No. 226 at 43–44. He concedes, however, that Dr. McPherson
“noted” that Carter had abused drugs since age thirteen or fourteen. Id. at 43. And she testified
that Carter’s substance abuse interfered with her ability to predict whether he was becoming
schizophrenic, because the substances can cause the same “lapsed thinking process” that signal
the emergence of schizophrenia. Trial Tr. vol. XVI at 3316. Moreover, as noted above, Carter’s
counsel possessed much of the information to which Carter refers. They may have chosen not to
introduce it because it conflicted with his mitigation theme. As Carter also concedes, Dr.
McPherson was forced to admit on cross-examination that it was Carter’s choice to “take drugs
and inhale various things.” Id. at 3335.
Finally, Carter complains that his trial counsel did not present any evidence of the
positive impact a structured prison environment could have had on him. As discussed above,
however, defense counsel’s decision to present a different mitigation theme than Carter now
proposes, and to focus on evidence supportive of that theme and omit other evidence not
supportive, is a reasonable trial strategy.
Thus, Carter has not “overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689. As
the Supreme Court has explained,
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

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already in hand” fell “well within the range of professionally reasonable
judgments.”
Bobby v. Van Hook, 558 U.S. 4, 11-12 (2009) (internal citations omitted). Accordingly, the Ohio
appellate court also reasonably applied Strickland in determining that Carter’s trial counsel were
not constitutionally deficient in their presentation of mitigating evidence.
2.

Failing to Object to Prosecutorial Misconduct

For his next sub-claim, Carter argues that his counsel were ineffective for failing to object
to the numerous instances of prosecutorial misconduct described in his third ground for relief.
ECF No. 226 at 68-70. Even if this claim were ripe for habeas review, it would fail. As the
Court finds no merit in Carter’s underlying claims of prosecutorial misconduct, there is no merit
to his claim that his trial counsel was ineffective for failing to object to the challenged conduct.
See infra Section IV.B.
3.

Failing to Present Arguments Regarding Jury Instructions

Carter further argues that his trial counsel performed deficiently by failing to present
arguments regarding jury instructions on lesser-included offenses. ECF No. 129 at 39. The Ohio
Supreme Court was the last state court to provide a reasoned decision on this claim. It opined:
Carter’s last allegation is that counsel failed to present argument concerning jury
instructions on lesser-included offenses. However, counsel did make a request for
a lesser-included-offense instruction for all charges and presented argument as to
each. There is nothing in the record that would indicate that if counsel had
presented additional arguments they would have been successful. As set forth in
the discussion of the second proposition of law, even if a lesser-included-offense
instruction should have been given on aggravated murder (robbery), the remaining
felony of rape still would have supported the aggravated murder count.
Carter, 89 Ohio St. 3d at 606, 734 N.E.2d at 357.

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The Ohio Supreme Court’s decision is reasonable. Moreover, because the Court finds no
merit in Carter’s underlying claims regarding these jury instructions, there is no merit to his
claim that his trial counsel was ineffective for failing to present the jury instructions at issue. See
infra Section V.B.
4.

Negating Defense Theory of the Case During Closing Argument

Finally, Carter asserts that his trial counsel were ineffective when they “negated” his
principal defense by telling the jury during closing argument that they could find Carter guilty of
aggravated murder, aggravated robbery, and rape, even if they had reasonable doubt. This
statement, he argues, undermined their argument for instructions on lesser-included offenses, and
“[left] the jury with no choice but to find Carter guilty of the charges in the indictment.” ECF
No. 129 at 39; ECF No. 226 at 72 (citing Trial Tr. vol. XVI at 3185–86). Carter provides no
legal authority or factual analysis to support this argument.
Even if this claim were preserved for habeas review, it is meritless. Carter’s trial counsel
did not “negate” his defense. Counsel argued to the jury that it “wouldn’t bother [him]” if they
found enough evidence to convict Carter on the various independent counts, even if they had “a
little reasonable doubt” about those charges based on the evidence presented by the defense, but
that there was too much reasonable doubt for them to find against Carter on the death-penalty
specifications. Trial Tr. vol. XV at 3185–86. Any confusion caused by this brief and isolated
argument was not great enough to undermine Carter’s entire defense and would have been cured
by the court’s instructions on the correct burden of proof.

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Sixth Ground for Relief: Ineffective Assistance of Appellate Counsel
For his sixth ground for relief, Carter asserts that his appellate counsel provided

ineffective assistance of counsel on direct appeal by failing to raise the following claims:
1.

All instances of prosecutorial misconduct;

2.

All instances of ineffective assistance of trial counsel; and

3.

The trial court’s failure to ensure that Carter was competent throughout his trial
and to protect his right to be present.

ECF No. 129 at 40.
A.

Procedural Posture

The parties agree that this claim is preserved for federal habeas review, because Carter
raised it in his Murnahan petition, which the Ohio Supreme Court summarily denied. ECF No.
138 at 90; ECF No. 226 at 76; see also ECF No. 221 at 11 (finding that the Ohio Supreme
Court’s summary dismissal of Carter’s Murnahan petition was presumptively an adjudication on
the merits under). Harrington, 562 U.S. at 99–100.
B.

Merits

The Supreme Court has held that a defendant is entitled to effective assistance of counsel
in his first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The two-part
test enunciated in Strickland is applicable to claims of ineffective assistance of appellate counsel.
Smith v. Robbins, 528 U.S. 259, 285 (2000). Thus, Carter must demonstrate that his appellate
counsel’s performance was inadequate, 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.

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An appellant has no constitutional right, however, to have every non-frivolous issue
raised on appeal. See Jones v. Barnes, 463 U.S. 745, 750–54 (1983). Tactical choices regarding
issues to raise on appeal are properly left to the sound professional judgment of counsel. See
United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “[O]nly when 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, because the Court finds Carter’s claims for prosecutorial misconduct, ineffective
assistance of trial counsel, and trial-court error relating to his presence at trial all lack merit, it
follows that Carter cannot demonstrate that he was prejudiced by appellate counsel’s failure to
raise the claims on direct appeal. See infra Section IV; supra Sections I.B.1.c., II.B.
IV.

Third Ground for Relief: Prosecutorial Misconduct
For his third ground for relief, Carter claims that he was denied a fair trial in violation of

his due process rights by acts of prosecutorial misconduct. Specifically, he complains that the
prosecution:
1.

Stated personal beliefs about the strength of the State’s case and Carter’s
guilt during closing argument in the following comments:
a.

“I believe in my side. I believe the evidence that we have that this
defendant is guilty of all the charges. I wouldn’t be here.”

b.

Characterizing Carter’s explanation as to why he went to the
victim’s house on the night of the murder as “absolutely absurd.”

c.

Vouching for the State pathologist’s testimony regarding bleeding
in the victim’s brain by stating, “I think Dr. Cox’s explanation is
better than the other doctor’s.”

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2.

Implied during direct examination of witness Major James Phillips of the
Trumbull County Sheriff’s Department that the trial judge believed Carter
was guilty because he had signed the search warrants to obtain blood
samples from Carter.

3.

Used “pervasive” inflammatory language during closing argument,
including:
a.

b.

Repeatedly reminding the jury that this was done by a grandson to
his grandmother.

c.

Arguing that “it’s absolutely necessary . . . that people like Sean
Carter be put out of commission. His mission of terror, violence,
is incredible.”

d.

4.

Speaking of the victim’s constitutional rights, the “great indignity”
and “brutality” of the crime, the victim’s “unbelievable” death, and
the victim’s pain and suffering.

Telling the jury that it was Carter’s fault that they had to go
through nude photographs of the victim and see her stab wounds,
“blood all over the place,” and swabs of her anal cavity.

Argued facts not in evidence during closing argument, including:
a.

b.

Referring to Carter as “a machine, a supposed human being.”

c.

5.

The statement, “you’ll see him in the videotape. ‘I don’t have to
say I’m sorry.’”

Arguing that Michael and Shasta (other young relatives of the
victim with whom the victim argued) didn’t “come back and kill
and rape grandma.”

Mentioned prior calculation and design during rebuttal closing argument,
when Carter was not charged with that.

ECF No. 129 at 34–36.
A.

Procedural Posture

The State argues that sub-claims 1 and 2, as listed above, are procedurally defaulted,
because the Ohio Supreme Court found them barred due to defense counsel’s failure to object to

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the alleged misconduct at trial. ECF No. 138 at 47–49. Failure to adhere to Ohio’s wellestablished “contemporaneous objection rule” is an independent and adequate state ground upon
which to find habeas claims procedurally defaulted. See, e.g., Keith v. Mitchell, 455 F.3d 662,
673 (6th Cir. 2006).
In response, Carter concedes that the Ohio Supreme Court “announced an intention to
apply the plain error doctrine,” which ordinarily will not resurrect a defaulted issue. See, e.g., id.
However, he argues, the court failed to enforce the rule, and instead addressed the claims under
“the general standard of review,” rendering the claims ripe for habeas review. ECF No. 226 at
57-58 (citing Harris v. Reed, 489 U.S. 255, 263 (1989); Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986)). The State did not refute this argument; it “[a]ssum[ed] a lack of procedural default”
in its sur-reply. ECF No. 229 at 13.
The claims are procedurally defaulted. In addressing these claims, the Ohio Supreme
Court first noted that Carter’s trial counsel did not object to the alleged misconduct at issue. As
Carter acknowledges, the court then invoked the plain-error rule, quoting State v. Wade, 53 Ohio
St. 2d 182, 373 N.E.2d 1244, paragraph one of the syllabus (Ohio 1978), vac’d on other grounds,
Wade v. Ohio, 438 U.S. 911 (1978): “‘A claim of error in a criminal case cannot be predicated
upon the improper remarks of counsel during his argument at trial, which were not objected to,
unless such remarks serve to deny the defendant a fair trial.’” Carter, 89 Ohio St. 3d at 602, 734
N.E.2d at 345. Indeed, the Ohio Supreme Court repeatedly has cited Wade as support for that
doctrine. See, e.g., State v. McKnight, 107 Ohio St. 3d 101, 141, 837 N.E.2d 315, 357–58 (Ohio
2005); State v. Hanna, 95 Ohio St. 3d 285, 297, 767 N.E.2d 678, 695 (Ohio 2002). The court
proceeded to address the merits of the claims.

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In “exceptional circumstances,” Ohio courts may examine a claim that is otherwise
waived for “plain error,” when “but for the error, the outcome of the trial clearly would have
been otherwise.” State v. Long, 53 Ohio St. 2d 91, 96, 97, 372 N.E.2d 804, 807, 808 (Ohio
1978); 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.”). Under this rule, Ohio
courts first determine whether there is an error, and then whether that error affected the trial’s
outcome. Contrary to Carter’s argument, the Ohio Supreme Court did not forgo its plain-error
review of Carter’s prosecutorial-misconduct claims by examining whether an error was
committed under prevailing law; that is exactly what the plain-error doctrine requires. And,
finding no error, there was no need for the state court to undertake the next step in its plain-error
analysis. There is no basis for the Court, therefore, to conclude that the state court did not apply
the plain-error rule as it stated it would, and the claims’ procedural default stands.
As to Carter’s remaining prosecutorial-misconduct sub-claims, the State argues that
Carter did not properly raise them in state court, and they are therefore procedurally defaulted.
ECF No. 138 at 48. Carter counters that the sub-claims were raised in his Murnahan petition,
and as the Ohio Supreme Court denied the petition without asserting a procedural bar, the claims
are not defaulted. ECF No. 226 at 58. As explained above, a Murnahan petition does not
resurrect an otherwise defaulted claim merely by referencing the claim as one that appellate
counsel failed to raise on direct appeal. These claims also are procedurally defaulted.
B.

Merits

Even if this claim were ripe for review, it lacks merit. The Supreme Court has observed,
“Although the State is obliged to ‘prosecute with earnestness and vigor,’ it ‘is as much [its] duty

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to refrain from improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.’” Cone v. Bell, 556 U.S. 449, 469 (2009)
(quoting Berger v. United States, 295 U.S. 78, 88 (1935)). In particular, a prosecutor’s
“improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to
carry much weight against the accused when they should properly carry none.” Berger, 295 U.S.
at 88. Thus, the Court has made clear, “while [the prosecutor] may strike hard blows, he is not at
liberty to strike foul ones.” Id.
The Supreme Court set forth the standard for claims of prosecutorial misconduct in
habeas proceedings in Darden v. Wainwright, 477 U.S. 168 (1986). It held that to prevail on
such claims, “it ‘is not enough that the prosecutors’ remarks were undesirable or even universally
condemned.’” Id. at 181 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)).
Rather, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)); see also United States v. Young, 470 U.S. 1, 11
(1985) (“Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements or conduct must be viewed in context;
only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of
the trial.”).
The Court emphasized in Darden 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.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642; see also Byrd
v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) (“We do not possess supervisory powers over state

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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.”). Past
decisions of the Supreme Court demonstrate that “the touchstone of due process analysis in cases
of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The Darden standard “is a very
general one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-case
determinations . . . .’” Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting Yarlborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Indeed, federal habeas courts must adhere to Darden’s
“highly generalized standard for evaluating claims of prosecutorial misconduct” and not circuit
precedent. Id.
In Darden, the Supreme Court found that certain comments a prosecutor made during his
closing argument “undoubtedly were improper.” Darden, 477 U.S. at 180. Some remarks, it
explained, implied that the death penalty would be the only guarantee against a future similar act;
others incorporated the defense’s use of the word “animal”; and several were offensive, reflecting
an emotional reaction to the case. Id. But the Court concluded that in the broader context of the
trial, the prosecutorial statements complained of did not deprive the petitioner of a fair trial. Id.
at 181–83. It noted that the prosecutor’s closing argument “did not manipulate or misstate the
evidence, nor did it implicate other specific rights of the accused such as the right to counsel or
the right to remain silent.” Id. at 182. Also, “[m]uch of the objectionable content was invited by
or was responsive to the opening summation of the defense.” Id. The trial court also instructed
the jurors several times that their decision was to be made on the basis of the evidence alone, and
the arguments of counsel were not evidence. Id. The weight of the evidence against the

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petitioner was “heavy,” the Court observed, including “overwhelming eyewitness and
circumstantial evidence to support a finding of guilt on all charges,” which “reduced the
likelihood that the jury’s decision was influenced by argument.” Id. (internal quotation marks
and citations omitted). And finally, it noted, defense counsel’s tactical decision to present the
petitioner as the only witness permitted counsel to give their summation before the State’s
closing argument and the chance to make a final rebuttal argument. Id.
As the Supreme Court advised decades ago,
In reviewing criminal cases, it is particularly important for appellate courts to
relive the whole trial imaginatively and not to extract from episodes in isolation
abstract questions of evidence and procedure. To turn a criminal trial into a quest
for error no more promotes the ends of justice than to acquiesce in low standards
of criminal prosecution.
Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring).
Because Carter’s prosecutorial-misconduct claims were not adjudicated on the merits in
state court, the Court reviews them de novo. See, e.g., Hill v. Mitchell, 400 F.3d 308, 313 (6th
Cir. 2005). That is true even when, as with Carter’s first two sub-claims, as listed above, the
state court found the claims waived and reviewed them for plain error. The Sixth Circuit has
held that a state court’s review of a procedurally barred claim for plain error does not constitute
an “adjudication on the merits” under AEDPA. AEDPA deference does not apply to such
claims, therefore, and federal courts review them de novo. Lundgren v. Mitchell, 440 F.3d 754,
765 (6th Cir. 2006) (“Plain error analysis is more properly viewed as a court’s right to overlook

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procedural defects to prevent manifest injustice, but is not equivalent to a review of the
merits.”).14
1.

Improper Vouching

Carter first complains that the prosecutor impermissibly stated his personal beliefs about
the strength of the State’s case and Carter’s guilt during closing argument with the following
statement: “I believe in my side. I believe the evidence that we have that this defendant is guilty
of all the charges. I wouldn’t be here.” ECF No. 129 at 34 (quoting Trial Tr. vol. XV at 3116).

14

There appears to be an intra-circuit split on this issue. Prior to 2009,
the Sixth Circuit followed the holding of Lundgren, supra, that AEDPA deference is not
due where a state court reviews a petitioner’s habeas claim for plain error. See Fleming v.
Metrish, 556 F.3d 520, 539 (6th Cir. 2009) (Clay, J., concurring in part and dissenting in
part) (providing a “litany of cases” following the “controlling rule in this circuit” that
“[i]n the habeas context, this Court does not construe a state court’s plain-error review as
negating the determination that a claim has been procedurally defaulted”). However, in
the 2009 Fleming case, supra, the Sixth Circuit found “no authority squarely on point on
this key question” and rejected the principle that a “state court’s application of plain-error
review per se insulate[s] the claim from AEDPA deference.” Fleming, 556 F.3d at
531–32. Rather, it distinguished prior precedent on this point and held that a state court’s
plain-error review of a claim “can be considered ‘adjudicated on the merits’ for the
purpose of receiving deference under AEDPA” when the state court first determines the
merits of the claimed error before finding that the error was “plain” and affected
“substantial rights.” Id. at 532 (emphasis added). Then, last year, the Sixth Circuit
reasserted its prior, per se rule, declaring, “We have repeatedly held that plain-error
review is not equivalent to adjudication on the merits, which would trigger AEDPA
deference.” Frazier v. Jenkins, 770 F.3d 485, 496 n.5 (6th Cir. 2014), reh’g en banc
denied (Dec. 18, 2014). The Circuit has since acknowledged this split. See id. at 605-06
(Sutton, J., concurring in part and concurring in the judgment) (“We have been down this
road before, and Fleming [, supra,] tells us how to navigate it.”); Wade v. TimmermanCooper, 785 F.3d 1059, 1079 n.12 (6th Cir. 2015). When an intra-circuit split such as
this occurs, the earliest decision controls, which in this case would be Lundgren. See,
e.g., McMellon v. United States, 387 F.3d 329, 332-33 (4th Cir. 2004) (en banc); Hiller v.
Oklahoma, 327 F.3d 1247, 1251 (10th Cir. 2003); Walker v. Mortham, 158 F.3d 1177,
1188 (11th Cir. 1998); see also Michael Duvall, Resolving Intra-Circuit Splits in the
Federal Courts of Appeal, 3 Fed. Cts. L. Rev. 17, 20 (2009).

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A prosecutor cannot insert his “personal beliefs into the presentation of his case,” because his or
her opinion carries the “imprimatur of the government and may induce the jury to trust the
government’s judgment rather than its own view of the evidence.” Young, 470 U.S. at 8–9.
“[S]uch comments can convey the impression that evidence not presented to the jury, but known
to the prosecutor, supports charges against the defendant . . . .” Id. at 18-19. Nevertheless, “‘a
state’s attorney is free to argue that the jury should arrive at a particular conclusion based upon
the record evidence.’” Wogenstahl v. Mitchell, 668 F.3d 307, 331 (6th Cir. 2012) (quoting
Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999)). The statement of which Carter
complains is not improper, as it suggests that the prosecutor’s belief is based on the evidence
adduced at trial, not some special outside knowledge of the prosecutor.
Carter next argues that the prosecutor improperly characterized Carter’s explanation
about why he went to the victim’s house on the night of the murder as “absolutely absurd.” ECF
No. 129 at 35 (quoting Trial Tr. vol. XV at 3116). “‘[A] prosecutor may assert that a defendant
is lying during her closing argument when emphasizing discrepancies between the evidence and
that defendant’s testimony.’” Wogenstahl, 668 F.3d at 331 (quoting United States v. Francis,
170 F.3d 546, 551 (6th Cir. 1999)). Similarly, the prosecutor here was justified in commenting
on the implausibility of Carter’s account of the crime in light of the evidence.
Carter also claims that the prosecutor improperly vouched for the State pathologist’s
testimony regarding bleeding in the victim’s brain by stating, “I think Dr. Cox’s explanation is
better than the other doctor’s.” ECF No. 129 at 35 (quoting Trial Tr. vol. XV at 3130).
“‘Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating
a personal belief in the witness’s credibility thereby placing the prestige of the [government]

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behind the witness.’” Wogenstahl, 668 F.3d at 328 (quoting Johnson v. Bell, 525 F.3d 466, 482
(6th Cir. 2008)). “‘Generally, improper vouching involves either blunt comments or comments
that imply that the prosecutor has special knowledge of facts not in front of the jury or of the
credibility and truthfulness of witnesses and their testimony.’” Id. (quoting Francis, 170 F.3d at
550).
This particular statement is more problematic, because it is a deliberate statement of
personal belief in the witness’s credibility and suggests that the prosecutor may have special
knowledge of facts not in evidence, namely, the prosecutor’s experience with other expert
witnesses. Placed in context, however, the statement is not improper. The prosecutor was
discussing the two parties’ experts’ testimony and opinions based on the evidence, not the
experts’ credentials. Moreover, the challenged statement was one isolated comment made in the
context of an extensive trial record, and the evidence against Carter was strong.
2.

Implying Trial Court Believed in Carter’s Guilt

Carter claims that the prosecutor improperly implied that the trial-court judge believed
Carter was guilty during his direct examination of witness Major James Phillips of the Trumbull
County Sheriff’s Department, because the judge had signed the search warrants to obtain blood
samples from Carter. ECF No. 129 at 35 (quoting Trial Tr. vol. XII at 2340). The prosecutor’s
examination at issue consisted of two short questions, establishing first that the police officer
signed an affidavit supporting his request for a search warrant before the trial judge, and second
that the judge issued the warrant. Carter speculates that the jury inferred from this testimony that
the judge issued the warrant because he believed Carter was guilty, when, in fact, the testimony

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was limited to explaining the facts surrounding the issuance of a warrant for the collection of
Carter’s fluids, which were central to the State’s case. This questioning was not improper.
3.

Pervasive Use of Inflammatory Language

Carter accuses the prosecution of “pervasive” use of inflammatory language during
closing argument, including: (1) speaking of the victim’s constitutional rights, the “great
indignity” and “brutality” of the crime, her “unbelievable” death, and the victim’s pain and
suffering; (2) repeatedly reminding the jury that a grandson had killed his grandmother; (3)
arguing that “it’s absolutely necessary . . . that people like Sean Carter be put out of commission.
His mission of terror, violence, is incredible”; (4) telling the jury they had to go through nude
photographs of the victim and look at stab wounds, “blood all over the place,” and swabs of the
victim’s anal cavity because of Carter. ECF No. 129 at 35 (quoting Trial Tr. vol. XV at 3111,
3115).
“The prosecution necessarily has ‘wide latitude’ during closing argument to respond to
the defense’s strategies, evidence and arguments.” Wogenstahl, 668 F.3d at 329 (quoting
Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). “Generally, ‘a prosecutor cannot make
statements calculated to incite the passions and prejudices of the jurors.’” Id. (quoting Broom v.
Mitchell, 441 F.3d 392, 412 (6th Cir. 2006)). “At the same time, ‘[n]othing prevents the
government from appealing to the jurors’ sense of justice or from connecting the point to the
victims of the case.’” Id. (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). These
statements were within the bounds of dramatic, though permissible, argument. Moreover, all of
the complained-of statements are found on just two of twenty-five pages of transcript recording

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the prosecutor’s closing argument. They were brief and general, and several of the statements
were factually correct.
4.

Arguing Facts not in Evidence

Carter also complains that the prosecution argued facts not in evidence during closing
argument, including: (1) stating, “you’ll see him in the videotape. ‘I don’t have to say I’m
sorry.’”; (2) referring to Carter as “a machine, a supposed human being.”; (3) arguing Michael
and Shasta didn’t “come back and kill and rape grandma.” ECF No. 129 at 36 (quoting Trial Tr.
vol. XV at 3118, 3120).
“It is improper for a prosecutor, during closing arguments, to bring to the attention of the
jury any ‘purported facts that are not in evidence and are prejudicial.’” Byrd v. Collins, 209 F.3d
486, 535 (6th Cir. 2000) (quoting United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)).
“However, prosecutors ‘must be given leeway to argue reasonable inferences from the
evidence.’” Id. (quoting United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)). These
statements were not improper. The first was the prosecutor’s interpretation of Carter’s statement
to police, not a deliberate attempt to mislead the jury into thinking Carter actually so stated, and
the prosecutor repeatedly encouraged the jury to listen to the tapes for themselves. See, e.g.,
Trial Tr. vol. XV at 3118. The second comment was more hyperbole than factual assertion. And
the third comment did not introduce new facts. Evely Carter testified that her mother told her
that she was going to treat Carter “just like I do Shasta [and] Michael” by not allowing him to
return to her house, and explained on cross-examination that they were her niece and nephew.
Trial Tr. vol. XII at 2547, 2567.

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5.

Mentioning Prior Calculation and Design

Finally, Carter complains that during rebuttal closing argument, the prosecutor
improperly mentioned an element of a crime, prior calculation and design, with which Carter was
not charged. ECF No. 129 at 36 (citing Trial Tr. vol. XV at 3201). This statement is harmless in
context. The prosecutor stated after the challenged comment, “He’s not charged with that.
Sorry. I got carried away again.” Trial Tr. vol. XV at 3201.
6.

Cumulative Effect

Carter asserts that the cumulative effect of these acts of misconduct rendered his trial
unfair. The “cumulative effect” of multiple acts of misconduct may be considered. See Berger,
295 U.S. at 89. However, determinations as to the impropriety or effect of a prosecutor’s
conduct at trial should account for the broader context in which the prosecutor’s conduct took
place. Darden, 477 U.S. at 182; Young, 470 U.S. at 12.
Viewing all of Carter’s allegations of prosecutorial misconduct cumulatively and in the
context of the entire trial, Carter’s claims do not entitle him to habeas relief. There are few
instances of improper conduct among these claims, and even if they and those that verged on
improper were viewed cumulatively, Carter has failed to demonstrate that the misconduct was
“so pronounced and persistent that it permeate[d] the entire atmosphere of the trial.” See
Wogenstahl, 668 F.3d at 335. As the Supreme Court has noted, “[a litigant] is entitled to a fair
trial but not a perfect one, for there are no perfect trials.” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553 (1984) (internal quotation marks and citations omitted).

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V.

90

Fourth Ground for Relief: Trial-Court Error / Jury Instructions
Carter claims for his fourth ground for relief that the trial court violated his right to due

process by denying his request to instruct the jury on certain lesser-included offenses. ECF No.
129 at 36–37. He argues that the court should have instructed the jury on theft, in addition to
aggravated robbery, because, although he admitted that he took some money from Mrs. Prince’s
purse, he did so only after the murder took place, and therefore did not use a deadly weapon or
inflict serious physical harm while committing the act, as required for aggravated robbery under
Ohio law. ECF No. 226 at 63–64. He contends that the court should have instructed the jury on
gross sexual imposition, in addition to rape, because the defense presented evidence that the
“lack of trauma to the rectum made it equally as plausible that the semen . . . could have been
deposited outside the body and seeped into the rectum.” Id. at 64. Finally, Carter asserts that the
court should have instructed the jury on murder, in addition to aggravated murder, because the
jury may have found that he did not commit the murder “while committing or attempting to
commit” another felony, as required for aggravated murder under Ohio law; and manslaughter,
because the jury may have believed that “Mrs. Prince argued with and eventually pushed Carter.”
Id. at 65. Failure to give these instructions, he concludes, impermissibly resulted in the jury
being “‘forced into an all-or-nothing choice between capital murder and innocence.’” Id. at 6667 (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)).
A.

Procedural Posture

Carter raised this claim on direct appeal to the Ohio Supreme Court, which adjudicated
the claim on the merits. See Carter, 89 Ohio St. 3d at 599-602, 734 N.E.2d at 352–54. This
claim is therefore preserved for federal habeas review.

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B.

91
Merits

In considering this claim, the Ohio Supreme Court opined,
In his second proposition of law, Carter argues that the trial court erred by
failing to give the jury lesser-included-offense instructions on aggravated murder
(murder and manslaughter requested), aggravated robbery (theft requested), and
rape (gross sexual imposition requested). The trial court denied these
requests.FN1 In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294,
paragraph three of the syllabus, this court set out the test used to determine
whether one offense constitutes a lesser-included-offense of another:
FN1. The trial court did grant the defense request to instruct on criminal trespass
as a lesser-included-offense for aggravated burglary, and the jury did find Carter
guilty of the lesser offense.
“An offense may be a lesser included offense of another if (i) the offense
carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily
defined, ever be committed without the lesser offense, as statutorily defined, also
being committed; and (iii) some element of the greater offense is not required to
prove the commission of the lesser offense.”
An instruction on a lesser-included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the
crime charged and a conviction on the lesser-included offense. . . .
Aggravated Robbery. Carter argues that the jury should have received a
lesser-included-offense instruction because he did not take money until after
Prince was dead.FN2 Carter argues that he did not form the intent to take the
money until after his grandmother was dead, and even then, only when he realized
that he needed money. Carter supports his reasoning by noting that he took only
one hundred and fifty dollars from Prince’s purse, even though the purse
contained approximately four hundred and fifty dollars.
FN2. Carter did not raise any issue relating to the sufficiency or weight of the
evidence concerning the aggravated robbery count.
Carter was indicted for aggravated robbery under R.C. 2911.01(A)(1) and
2911.01(A)(3). Those sections provide as follows:
“(A) No person, in attempting or committing a theft offense, as defined in section
2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:

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“(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it;
“***
“(3) Inflict, or attempt to inflict, serious physical harm on another.”
A “theft offense” is defined in R.C. 2913.02 as follows:
“(A) No person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services in any of the
following ways:
“(1) Without the consent of the owner or person authorized to give consent;

“(2) Beyond the scope of the express or implied consent of the owner or person
authorized to give consent;
“(3) By deception;
“(4) By threat;
“(5) By intimidation.”
Theft carries a lesser penalty than aggravated robbery. Further, one
element of aggravated robbery, R.C. 2911.01(A)(1), having a deadly weapon on or
about the accused’s person or under his or her control, is not required to prove
theft. Thus, the first and third elements of the Deem test are clearly satisfied.
The issue becomes whether aggravated robbery, as statutorily defined
above, can ever be committed without theft, as statutorily defined above, also
being committed. We answer that question in the affirmative because aggravated
robbery can be committed in the course of an “attempted theft.” R.C. 2913.02;
2923.02. Theft requires the accused to actually obtain or exert control over the
property or services of another; attempted theft does not. Since theft is not a
lesser-included offense of aggravated robbery, the trial court did not err by not
providing a lesser-including-offense instruction.
Rape. Carter argues that there was no “sexual conduct,” i.e., penetration,
to the anus of the victim. Instead, Carter presented a theory at trial that the semen
was deposited on the outside of the body and seeped into the anus. The evidence
in the record strongly supported the state’s theory that Carter’s sperm, found in the

92

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victim’s anus and positively identified through DNA testing, was placed there
through the insertion of Carter's penis into the victim’s anus. The evidence did not
support an acquittal on the charge of rape.
Aggravated Murder. The distinguishing element of aggravated murder
and murder is the commission of a murder during a felony. The felonies charged
were rape and aggravated robbery. Here the evidence clearly supported the
commission of a rape; therefore, the trial court properly denied a
lesser-included-offense instruction on murder. . . .
Carter also argues that the theft of money from the victim did not occur
“while” the offender was committing, attempting to commit, or fleeing
immediately after committing or attempting to commit the aggravated murder.
Appellant suggests that implicit in the meaning of the word “while,” as it appears
in R.C. 2929.04(A)(7), is a requirement that there be evidence of some type of
motivational nexus between the aggravated murder and the underlying felony, in
this case the aggravated robbery.
This court has previously held that the robbery need not take place prior to
or simultaneously with the murder and that a defendant “cannot escape the effect
of the felony-murder rule by claiming that the aggravated robbery was simply an
afterthought.” . . . Accordingly, it was not error to fail to instruct on the
lesser-included offense of murder, as it related to the aggravated robbery offense.
Carter’s second proposition of law is overruled.
Carter, 89 Ohio St. 3d at 599–602, 734 N.E.2d at 352–54 (citations omitted).
Carter claims that this decision contravened or unreasonably applied clearly established
Supreme Court precedent. ECF No. 226 at 66. The Court disagrees.
The Supreme Court held in Beck v. Alabama, 447 U.S. 625, 627 (1980), that the death
penalty may not be imposed where the jury was “not permitted to consider a verdict of guilt of a
lesser included non-capital offense, and [where] the evidence would have supported such a
verdict,” leaving the jury with the stark choice of convicting the defendant and sentencing him to
death because a serious crime had been committed or finding him not guilty at all because the
crime does not warrant death. The Court explained, however, that the constitutional right to a

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jury instruction on a lesser-included offense arises only if “the evidence would permit a jury
rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” Id. at
635 (internal quotation marks and citations omitted). This is so because “when the evidence
unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves
some doubt with respect to an element that would justify conviction of a capital offense—the
failure to give the jury the ‘third option’ of convicting of a lesser included offense would seem
inevitably to enhance the risk of an unwarranted conviction.” Id. at 637.
Carter claims that the Ohio Supreme Court unreasonably applied Beck “[b]y focusing on
the sufficiency of the evidence supporting the capital charge, [and thereby] in effect convert[ing]
Carter’s Beck claim into a challenge to the sufficiency of the evidence under Jackson v. Virgina,
443 U.S. 307 (1979).” ECF No. 226 at 66. However, in Hopper v. Evans, 456 U.S. 605, 613
(1982), the Supreme Court made it clear that Beck held that “due process requires that a lesser
included offense instruction be given only when the evidence warrants such an instruction.” Id.
at 611 (emphasis original). And the Court found in that case that the evidence not only supported
the claim that the defendant intended to kill the victim, but his testimony and evidence that he
shot the victim in the back during an armed robbery “affirmatively negated any claim that he did
not intend to kill the victim.” Id. at 613.
Thus, “[i]t is well established that a lesser-included-offense instruction is not required
where the facts of a murder so strongly indicate intent to kill that the jury could not rationally
have a reasonable doubt as to the defendant’s intent.” Smith v. Bradshaw, 591 F.3d 517, 524 (6th
Cir. 2010). Indeed, “as a general matter, repeated violent conduct conclusively proves intent to
kill.” Id.; see also Slaughter v. Parker, 450 F.3d 224, 236–38 (6th Cir. 2006) (rejecting Beck

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claim since the “facts [that the victim was bludgeoned in the head and stabbed five times]
foreclose the conclusion that [the defendant] acted with any mental state other than intent”);
Abdus-Samad v. Bell, 420 F.3d 614, 629 (6th Cir. 2005) (rejecting Beck claim because “[t]he fact
that [the defendant] shot the victim with a pistol five to six times makes it virtually impossible to
find that the killing was accidental”); Campbell v. Coyle, 260 F.3d 531, 543–44 (6th Cir. 2001)
(rejecting Beck claim because the number and location of the victim’s five stab wounds
“compelled a reasonable jury to find that the [defendant] possessed the intent to kill,” despite
evidence of a struggle).
Here, the Ohio Supreme Court reasonably applied Beck and its progeny by focusing on
the evidence presented at Carter’s trial, and considering whether it supported the greater charges
of aggravated murder, aggravated robbery and rape, and negated the possibility of the lesser
charges of murder, manslaughter, theft and gross sexual imposition, making the lesser-included
instructions unnecessary. The state court reasonably found that the jury could not rationally have
had a reasonable doubt that Carter committed aggravated robbery, and was guilty only of theft,
because Carter stole the victim’s money after he murdered her. Nor could the jury have had a
reasonable doubt that the prosecution had proven each element of rape, despite Carter’s argument
that his semen “seeped” into the victim without any penetration. And finally, due to the severity
and location of the victim’s wounds, the jury could not rationally have had a reasonable doubt
regarding Carter’s intent to kill her, negating the need for the lesser-included murder and
manslaughter instructions.

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Seventh Ground for Relief: Method of Execution / Lethal Injection
Carter argues for his seventh ground for relief that Ohio’s method of execution by lethal

injection violates the Eighth Amendment prohibition on cruel and unusual punishment and the
Due Process Clause of the Fourteenth Amendment. ECF No. 129 at 41–43.
A.

Procedural Posture

Carter raised this claim on direct appeal to the Ohio Supreme Court, which adjudicated
the claim on the merits. See Carter, 89 Ohio St. 3d at 608, 734 N.E.2d at 358. This claim is
therefore ripe for federal habeas review.
B.

Merits

In addressing this claim, the Ohio Supreme Court stated,
In his thirteenth proposition of law, Carter argues that the death penalty is
unconstitutional under the federal and Ohio Constitutions because the methods
used to carry out the sentence, electrocution or lethal injection, are cruel and
unusual punishment. While Carter argues that electrocution is cruel, this court and
the United States Supreme Court have previously held that execution by
electrocution does not violate the federal and Ohio constitutions. In re Kemmler
(1890), 136 U.S. 436, 443–444, 10 S.Ct. 930, 932, 34 L.Ed. 519, 522–523; State
v. Coleman (1989), 45 Ohio St.3d 298, 308, 544 N.E.2d 622, 633. The United
States Supreme Court granted certiorari this term to a case that involved the issue
of whether execution by electrocution violates the Cruel and Unusual Punishment
Clause. Bryan v. Moore (1999), 528 U.S. 960, 120 S.Ct. 394, 145 L.Ed.2d 306.
The court subsequently dismissed Bryan as improvidently granted after the
Governor of Florida signed into law a bill allowing lethal injection as an option to
the electric chair. Bryan v. Moore, 528 U.S. 1133, 120 S.Ct. 1003, 145 L.Ed.2d
927. Carter fails to cite any case in which lethal injection has been found to be
cruel or unusual punishment. This proposition of law is overruled.
Carter, 89 Ohio St. 3d at 608, 734 N.E.2d at 358.
Carter’s assertion that the Ohio Supreme Court’s rejection of his lethal-injection methodof-execution claim was contrary to, or an unreasonable application of, Supreme Court precedent
must be examined in the context of Supreme Court jurisprudence at the time that the state court

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rendered its decision. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (“In other words,
‘clearly established Federal law’ under § 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.”). In 2000, when
the Ohio Supreme issued its ruling in Carter, there was no Supreme Court precedent holding that
lethal injection constitutes cruel and unusual punishment. The High Court did not even review a
challenge to lethal injection until 2008, when it decided Baze v. Rees, 553 U.S. 35 (2008).
Indeed, “[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 v. Gross, 135 S. Ct. 2726, 2732 (2014) (quoting
Baze, 553 U.S. at 48). Carter’s claim, therefore, is meritless.
VII.

Eighth Ground for Relief: Mental Illness
For his eighth ground for relief, Carter contends that due to his serious mental illness,

from which he suffered at the time of his offense and continues to suffer to this day, his
execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
He cites Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that, in
light of “our evolving standards of decency,” executing an intellectually disabled offender
violates the Eighth Amendment’s ban on cruel and unusual punishment, and Roper v. Simmons,
543 U.S. 551, 568 (2005), which similarly prohibits the execution of juvenile offenders. ECF
No. 226 at 80-84.
A.

Procedural Posture

The State argues that this claim is procedurally defaulted because Carter never raised it in
state court. ECF No. 138 at 96. Carter does not address the procedural posture of this claim.

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The State is correct; this claim is procedurally defaulted. See O’Sullivan, 526 U.S. at 848 (if a
petitioner fails to fairly present any federal habeas claims to the state courts and has no remaining
state remedies, then the petitioner has procedurally defaulted those claims); Jacobs v. Mohr, 265
F.3d 407, 417 (6th Cir. 2001) (Ohio’s doctrine of res judicata, barring courts from considering
any issue that could have been, but was not, raised on direct appeal, is an “independent and
adequate state ground” upon which to find habeas claim procedurally defaulted).
B.

Merits

Carter’s claim appears to be what has been called a “free-standing actual innocence”
claim, although Carter does not label it as such. In Herrera v. Collins, 506 U.S. 390 (1993), the
Supreme Court explained 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. “Actual innocence” encompasses not
just innocence of the underlying offense, but also the petitioner’s eligibility for the death penalty.
See, e.g., Dretke v. Haley, 541 U.S. 386, 387 (2004) (citing Sawyer v. Whitley, 505 U.S. 333
(1992)).
The Supreme Court has never applied such a claim, however, and recently declined to
resolve whether a “free-standing” actual innocence claim is cognizable on federal habeas review.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013). The Sixth Circuit has held that such a
claim is not a valid ground for habeas relief. See, e.g., Cress v. Palmer, 484 F.3d 844, 854–55

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(6th Cir. 2007); Thomas v. Perry, 553 F. App’x 485, 487 (6th Cir. 2014). Moreover, the Herrera
Court emphasized that “the threshold showing for such an assumed right would necessarily be
extraordinarily high.” Herrera, 506 U.S. at 417; see also House v. Bell, 547 U.S. 518, 520
(2006).
Because this claim has not yet been recognized by the Supreme Court or the Sixth
Circuit, relief on this claim is denied.
VIII. Ninth Ground for Relief: Ford Claim
Carter claims in his ninth ground for relief that his execution will violate the Eighth and
Fourteenth Amendments under Ford v. Wainwright, 477 U.S. 399 (1986), because he is
“currently severely mentally ill” and “too insane and incompetent to be executed.” ECF No. 129
at 48. Carter withdrew this claim in his traverse, however, because it is premature under Panetti
v. Quarterman, 551 U.S. 930, 947 (2007), which holds that an Eighth Amendment Ford claim
based on a petitioner’s incompetency to be executed due to mental illness does not become ripe
until the petitioner’s execution date is set. ECF No. 226 at 85.
CERTIFICATE OF APPEALABILITY ANALYSIS
The Court must now determine whether to grant a Certificate of Appealability (“COA”)
for any of Carter’s grounds for relief. The Sixth Circuit has determined 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

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(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 . . .
(2) A certificate of appealability may issue under paragraph (12) 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
he was denied a constitutional, rather than federal, right. Slack v. McDaniel, 529 U.S. 473, 483–
84 (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:

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The Court will not issue a COA for the Fourth, Fifth (as to sub-claim relating to failure to
present argument about jury instructions), Sixth, and Seventh grounds for relief, finding that no
reasonable jurist would debate the Court’s conclusions on these claims.
Also, the Court will not issue a COA for the Third, Fifth (as to sub-claims relating to
failure to object to prosecutorial misconduct and negating theory of the case); and Eighth grounds
for relief, because they are procedurally defaulted.15
The Court will issue a COA for Carter’s First ground for relief regarding his competency
to stand trial, Second ground for relief relating to his trial counsel’s ineffective assistance during
the mitigation phase of trial, and Fifth ground for relief relating to his trial counsel’s ineffective
assistance regarding his competency to stand trial, finding that a reasonable jurist could debate
the Court’s conclusions regarding these claims.

CONCLUSION
For the foregoing reasons, the Court denies Carter’s Petition for Writ of Habeas Corpus.
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 Carter’s First ground for relief regarding his competency to
stand trial, Second ground for relief relating to his trial counsel’s ineffective assistance during the
mitigation phase of trial, and Fifth ground for relief relating to his trial counsel’s ineffective
assistance regarding his competency to stand trial. 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

15

85.

As stated above, Carter withdrew his Ninth ground for relief. ECF No. 226 at

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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.

September 30, 2015
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge