Ahmed v. Houk

Filing 88

REPORT AND RECOMMENDATIONS - The Court has considered each of Ahmed's twenty-seven grounds for relief and found none of them, nor any combination of them, meritorious. Accordingly, it is recommended that Ahmed's petition for a writ of habea s corpus be DENIED. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 7/3/2014. Signed by Magistrate Judge Michael R Merz on 6/16/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
NAWAZ AHMED,
:
Petitioner,

Case No. 2:07-cv-658
:

District Judge Michael H. Watson
Magistrate Judge Michael R. Merz

-vs.MARC C. HOUK, Warden,
:
Respondent

REPORT AND RECOMMENDATIONS

Petitioner Nawaz Ahmed is before this Court on a Petition for a Writ of Habeas Corpus (Doc.
No. 35), in which he advances twenty-seven grounds for relief challenging his convictions and
sentences for the aggravated murders of his wife Lubaina Bhatti Ahmed, his father-in-law Abdul
Bhatti, his sister-in-law Ruhie Ahmed, and his two-year-old niece Nasira Ahmed. Respondent has
filed his Return of Writ (Doc. No. 61), Ahmed filed his Traverse (Doc. No. 71), and the matter is
now ripe for decision.
FACTS
The facts leading to Ahmed=s convictions and death sentences were found by the Ohio
Supreme Court to be as follows:
In October 1998, Lubaina hired an attorney to end her marriage with
[Ahmed] and to secure custody of their two children, Tariq and
Ahsan. According to Lubaina=s divorce attorney, [Ahmed] did not
want a divorce, and consequently, it was a hostile divorce
proceeding. In early February 1999, shortly after the complaint for
1

divorce had been filed, Lubaina was awarded temporary custody of
the children and exclusive use of the marital residence. Later that
month, the divorce court issued a restraining order to prevent
[Ahmed] from coming near Lubaina or making harassing phone calls
to her.
[Ahmed] had accused Lubaina, a physician, of having an affair with
another physician, and claimed that their oldest son, Tariq, was not
his. A subsequent paternity test showed that claim to be false.
According to Lubaina=s divorce attorney, Grace Hoffman, Lubaina
had been afraid of [Ahmed] and she had called Hoffman three or four
times a week, Ascared [and] frustrated * * *. It just kept escalating.@
Lubaina had also confided to Hoffman that [Ahmed] had forced her
to have sex with him during the marriage.
Tahira Kahn, one of Lubaina=s sisters, corroborated that Lubaina had
feared [Ahmed]. She also testified that Lubaina had told her that
[Ahmed] had raped her repeatedly.
The owner of the rental home where Lubaina resided testified that
Lubaina had called him in February 1999 and asked him to change
the locks on the house. He stated that Lubaina had been very upset
and had asked that he change them within the hour.
In March 1999, Lubaina complained to police that [Ahmed] was
harassing her by telephone, but after the officer explained that the
matter could be handled through criminal or civil proceedings, she
decided to handle it through the ongoing divorce proceedings. The
final divorce hearing was scheduled for Monday, September 13,
1999, and Lubaina had arranged for her sister Ruhie to fly in from
California the Friday before to testify at the hearing.
On Friday, September 10, 1999, [Ahmed] called Lubaina=s office
several times. But Lubaina had instructed the medical assistants at
her office to reject any phone calls from him. Then, at approximately
4:00 p.m. that day, Lubaina took [Ahmed=s] call. [Ahmed] who
worked and lived in Columbus, wanted Lubaina to bring the children
to him for the weekend two hours earlier than planned. [Ahmed]
claimed that he was planning a surprise birthday party for their
youngest son. Lubaina, however, refused to change her plans and
told [Ahmed] that he was using the birthday party as an excuse to
inconvenience her.

2

Rafi Ahmed, husband of Ruhie and father of two-year-old Nasira,
testified that Ruhie and Nasira had been scheduled to arrive in
Columbus from California at 10:34 p.m. on Friday, September 10.
Ruhie had planned to call Rafi that night when she arrived at
Lubaina=s home near St. Clairsville. However, since he had not heard
from Ruhie, Rafi began calling Lubaina=s home at 1:21 a.m.,
Saturday, September 11. Rafi called 20 to 25 times, but he got only
Lubaina=s answering machine. At approximately 3:00 a.m., he called
the Belmont County Sheriff=s Office.
A parking receipt found in Lubaina=s van indicated that the van had
entered a Columbus airport parking lot at 9:30 p.m. and exited at
11:14 p.m. on September 10, 1999.
Around 3:45 a.m. on September 11, in response to Rafi Ahmed=s call,
a sheriff=s detective went to Lubaina=s home and knocked on the
doors and rang the doorbell. She got no answer. The detective also
looked in the windows, but nothing at the home appeared to be
disturbed.
Later that day, Belmont County Sheriff=s Department Detective Steve
Forro was assigned to investigate the missing persons. He
recognized Lubaina=s name because he was the officer who had
talked to her regarding [Ahmed=s] harassing phone calls. Forro called
[Ahmed=s] home to see if he had any information. [Ahmed] did not
answer, so Forro called Columbus police to have them check
[Ahmed=s] apartment. They did and found that he was not home.
Forro went to Lubaina=s home at 2:18 p.m. As he walked around the
outside of the house, he noticed a flicker of a car taillight through a
garage window. Using a flashlight, he looked through the window
and saw a van with its hatch open and luggage inside. He then saw
the body of a man on the floor covered with blood.
Forro called for backup. Deputy Dan Showalter responded and
entered through a side door, which he had found unlocked. He
searched the house and found three more bodies on the basement
floor.
Detective Bart Giesey found [Ahmed=s] MCI WorldCom employee
badge on the basement floor near the bodies. Records from
[Ahmed=s] employer, MCI WorldCom in Hilliard, Ohio, revealed that
[Ahmed=s] badge was last used at 7:19 p.m. on September 10, 1999.

3

Through several inquiries, police learned that [Ahmed] was
scheduled to depart from JFK [International Airport in New York] for
Lahore, Pakistan, that evening. Earlier that day, [Ahmed], through a
travel agent, had booked a flight leaving for Pakistan that same
evening. [Ahmed] arrived at the agent=s home with both of his sons
and asked if he could leave them with the agent, saying that his wife
would pick them up soon. [Ahmed] wrote on the back of his and
Lubaina=s marriage certificate, which he gave to the agent, that he
was leaving his sons to be handed over to his wife. [Ahmed] also
signed his car over to the agent. The agent then drove [Ahmed] to
JFK to catch his flight to Pakistan.
At 8:10 p.m., Robert Nanni, a police officer stationed at JFK, learned
that [Ahmed] was a murder suspect and that he had checked in for a
flight scheduled to leave for Pakistan at 8:55 p.m. [Ahmed] was
located and arrested. Nanni noticed a large laceration on [Ahmed=s]
right thumb. Nanni read [Ahmed] his rights and called airport
paramedics to attend to [Ahmed=s] thumb. Among the items
confiscated from [Ahmed] was an attaché case containing 15
traveler=s checks totaling $7,500, his will, and $6,954.34 in cash.
...
At trial, Dr. Manuel Villaverde, the Belmont County Coroner,
testified that he had been called to the crime scene on September 11,
1999. All four victims appeared to have died from blood loss from
slashes on their necks. Based on the condition of the bodies, he
determined that the victims had been killed at approximately 3:00
a.m. that day, with two to four hours= variation either way.
A deputy coroner for Franklin County performed autopsies on all
four victims and concluded that each victim had died from skull
fractures and a large cut on the neck.
Diane Larson, a forensic scientist at the DNA-serology section of the
Bureau of Criminal Identification and Investigation (ABCI@),
concluded that the DNA of blood found in the kitchen of Lubaina=s
home matched [Ahmed=s] DNA profile. The probability of someone
else in the Caucasian population having that same DNA profile is 1 in
7.6 quadrillion, and in the African-American population, the
probability is 1 in 65 quadrillion.
State v. Ahmed, 103 Ohio St. 3d 27, 27-30, 2004-Ohio-4190 at && 2-20 (2004).

4

PROCEDURAL HISTORY1
Ahmed was found guilty of the aggravated murders of Lubaina Bhatti Ahmed, Abdul Bhatti,
Ruhie Ahmed, and Nasira Ahmed on January 25, 2001. (Appendix, Vol. 2 at 258-268.) Each count
also carried a multiple-murder specification, and the count concerning Nasira=s murder included the
additional specification of murder of a child under the age of thirteen. Id. Ahmed was found guilty
of those specifications as well. Id. Following a mitigation hearing, the jury recommended a
sentence of death on each of the four aggravated murder counts, id. at 320-27, and after
independently weighing the aggravating circumstances and mitigating factors, the trial court
imposed a sentence of death. (Appendix, Vol. 2 at 359-371; Vol. 3 at 14-16.)
On April 29, 2002, Ahmed pursued a direct appeal to the Ohio Supreme Court, advancing
nineteen propositions of law. (Appendix, Vol. 3 at 245-484.) The state supreme court denied each
of Ahmed=s propositions of law, State v. Ahmed, 103 Ohio St. 3d 27, 2004-Ohio-4190 (2004), and a
subsequent motion to reconsider was also denied (Appendix, Vol. 3 at 429-446). The United States
Supreme Court later denied Ahmed=s petition for a writ of certiorari. (Appendix, Vol. 5 at 170.)
On December 2, 2004, Ahmed filed an application to reopen his direct appeal alleging his
appellate counsel provided ineffective assistance when they failed to raise an additional ten
propositions of law. (Appendix, Vol. 5 at 72-81.) That application, along with a motion to amend
the application were denied by the Ohio Supreme Court on March 2, 2005, because Ahmed failed to

1

Although he was at all times represented by counsel, Ahmed filed voluminous pro se motions, etc.
throughout his state-court proceedings. Those motions will be discussed in the Court=s analysis of Ahmed=s grounds
for relief if and when they are relevant to the issue at hand.

5

comply with the 90-day filing deadline for applications to reopen set forth in Ohio S. Ct. Prac. R. XI,
Section 6(A). (Appendix, Vol. 5 at 113.)
At the same time, Ahmed was pursuing post-conviction relief in the state trial court alleging
fifteen claims for relief. (Appendix, Vol. 6 at 189-233.) Ahmed later amended his petition to
include a sixteenth claim for relief (Appendix, Vol. 8 at 68-71), and a seventeenth claim for relief,
id. at 114-18). His petition for post-conviction relief was denied (Appendix, Vol. 8 at 319-46), and
on March 24, 2006, Ahmed appealed that decision to the state court of appeals raising six
assignments of error (Appendix, Vol. 9 at 85-130). The court of appeals, however, affirmed the trial
court=s denial of Ahmed=s post-conviction petition. State v. Ahmed, No. 05-BE-15, 2006-Ohio-7069,
2006 WL 3849862 (Ohio App. 7th Dist. Dec. 28, 2006). The Supreme Court of Ohio declined to
exercise jurisdiction over a further appeal to the Ohio Supreme Court (Appendix, Vol. 10 at 3-39)
and dismissed the case as not involving any substantial constitutional question, id. at 121.2

ANALYSIS
Since Ahmed filed his Petition for a Writ of Habeas Corpus well after the effective date of
the Anti-Terrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, the amendments to 28
U.S.C. ' 2254 embodied in that Act are applicable to his petition. (See Petition, Doc. No. 35.)
The Sixth Circuit has summarized the standard of review under the AEDPA as follows:
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) . . . , a federal court

2

Although a document purporting to be an Entry dismissing Ahmed=s appeal from the denial of his postconviction petition does appear at the designated page, it has neither a signature of any Ohio Supreme Court justice
or clerk, nor does it possess a file stamp indicating that it was actually filed. The docket in the state supreme court
case, however, reveals that a ACopy of entry sent to clerk@ occurred on June 6, 2007. (Appendix, Vol. 10 at 2.)

6

may not grant a writ of habeas to a petitioner in state custody
with respect to any claim adjudicated on the merits in state court
unless (1) the state court's decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court” . . . or (2) the state court's
decision “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28
U.S.C. § 2254(d)).
This standard requires the federal courts to give considerable
deference to state-court decisions. Herbert v. Billy, 160 F.3d 1131,
1135 (6th Cir.1998) (“[the AEDPA] tells federal courts: Hands off,
unless the judgment in place is based on an error grave enough to be
called unreasonable.”) (citation and quotation marks omitted).
The first line of analysis under [the] AEDPA involves the consistency
of the state-court decision with existing federal law. A state-court
decision is considered “contrary to . . . clearly established Federal
law” if it is “diametrically different, opposite in character or nature,
or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405 [sic]
(2000) (emphasis and quotation marks omitted). Alternatively, to be
found an “unreasonable application of . . . clearly established Federal
law,” the state-court decision must be “objectively unreasonable” and
not simply erroneous or incorrect. Id. at 409-11.
The second line of analysis under [the] AEDPA concerns findings of
fact made by the state courts. [The] AEDPA requires federal courts
to accord a high degree of deference to such factual determinations.
“A federal court is to apply a presumption of correctness to state
court findings of fact for habeas corpus purposes unless clear and
convincing evidence is offered to rebut this presumption. The
[federal] court gives complete deference to the . . . state court's
findings of fact supported by the evidence.” McAdoo v. Elo, 365
F.3d 487, 493-94 (6th Cir.2004) (citations omitted).
Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir. 2007)(parallel citations omitted). Of course, the
Aclear and convincing evidence@ being offered to rebut the presumption of correctness due a state
court=s factual findings refers to evidence found within the state court record. Cullen v. Pinholster,

7

556 U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011); 28 U.S.C. ' 2254(d)(2). The Sixth Circuit has
agreed that pursuant to Pinholster, under 28 U.S.C. ' 2254(d)(1), when addressing a claim that was
adjudicated on the merits by the state court, the habeas court=s review is limited to the record that
was before the state court. Bray v. Andrews, 640 F.3d 731, 737 (6th Cir. 2011). In addition, federal
courts are explicitly limited by the statutory language itself to evidence that was before the state
court when 28 U.S.C. ' 2254(d)(2) is applicable.
As the court of appeals has stated, Afederal courts need not review every point of error raised
by a habeas petitioner.@ Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010). The court
explained:
When a Astate 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 . . . 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). In this circuit, to determine whether a federal claim
has been procedurally defaulted, we apply the three-prong test
initially laid out in Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986):
First, the court must determine that there is a state
procedural rule that is applicable to the petitioner=s claim
and that the petitioner failed to comply with the rule . . . .
Second, the court must decide whether the state courts
actually enforced the state procedural sanction . . . . Third,
the court must decide whether the state procedural forfeiture
is an Aadequate and independent@ state ground on which the
state can rely to foreclose review of a federal constitutional
claim . . . .
Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin,
785 F.2d at 138). If the state procedural rule was not complied with
and that rule was an Aadequate and independent@ ground for default,
we may still excuse the default if the petitioner can demonstrate Athat
there was >cause= for him not to follow the procedural rule and that he

8

was actually prejudiced by the alleged constitutional error.@ Maupin,
785 F.2d at 138.
Hoffner, 622 F.3d at 495 (parallel citations omitted). It is with these principles in mind that this
Court considers Ahmed=s twenty-seven grounds for relief.

First Ground for Relief
In his first ground for relief, Ahmed contends he was deprived of his Afundamental right to
his own funds to employ counsel of choice, plan his defense and employ experts of his choosing.@
(Petition, Doc. No. 35 at PageID 173.) Respondent argues the claim is both procedurally defaulted
and meritless. (Return of Writ, Doc. No. 61 at PageID 970-73.) Ahmed disputes that the claim is
procedurally defaulted, and contends that the state court addressed the merits of his claim on six
different occasions. (Traverse, Doc. No. 71 at PageID 1648-84.)
Procedural Issues
It is true, as Ahmed asserts, that Respondent filed a Motion to Dismiss Procedurally
Defaulted Claims (Doc. No. 39) approximately three months after Ahmed filed his Petition, seeking
dismissal of several of Ahmed=s habeas claims, but not the instant ground for relief. Shortly after
this case was transferred to the undersigned Magistrate Judge, this Court recommended that the
Motion to Dismiss itself be denied and instructed that Respondent should instead include the
procedural defense in his Return of Writ so that the case could be decided as a whole. (Doc. No.
57.) Neither party filed objections to the Report and Recommendations, and it was adopted by
District Judge Michael H. Watson on September 14, 2010. (Doc. No. 58.) Thereafter, Respondent
filed his Return of Writ which included his procedural defenses. (Doc. No. 61.)
1.

Ahmed=s Argument that Respondent Waived Procedural Default Defense
9

Ahmed=s argument that Respondent waived the procedural defense by excluding it from his
Motion to Dismiss fails. The Rules Governing Habeas Corpus Cases Under 28 U.S.C. ' 2254
specifically allow for procedural defenses to be raised in Respondent=s Return of Writ (also called
Athe answer@). Habeas Rule 5(b). In addition, Fed. R. Civ. P. 12(b)(6), upon which Respondent
relies in his Motion, states that a motion to dismiss on the basis that an opponent has failed to state a
claim upon which relief can be granted may be raised in Aany pleading allowed or ordered under
Rule 7(a).@ That rule includes pleadings such as complaints and answers, and nothing in the rules
mandates that a motion to dismiss on a ground such as that relied upon by Respondent must be
raised any earlier, although they certainly provide that avenue should a party wish to proceed in that
direction before filing his or her answer. Ahmed=s reliance on Granberry v. Greer, 481 U.S. 129,
134-35 (1987) is misplaced since in that case, the Supreme Court was discussing the State=s failure
to raise its procedural defense, the petitioner’s failure to exhaust his claim, at the district court level
and was attempting to do so in the appellate court, a set of circumstances not present here.
Accordingly, Respondent did not waive a procedural defense by neglecting to include his argument
that Ahmed=s first ground for relief is procedurally defaulted in his ultimately unsuccessful Motion
to Dismiss.
2.

Ahmed=s Argument that the Ohio Supreme Court Addressed the Merits of His Claim
Ahmed also argues that his claim is preserved for habeas corpus review because the Ohio

Supreme Court considered the merits of the claim on direct appeal. (Traverse, Doc. No. 71 at
PageID 1649-50.) He refers this Court to his thirteenth proposition of law in his appellate brief, but
that proposition relates Ahmed=s contention that the trial court erroneously refused to allow Ahmed
to represent himself as a pro se defendant, which is the subject of his third ground for relief, infra.

10

(Appendix, Vol. 3 at 426-28.) Raising that claim on direct appeal does not preserve the instant claim
for habeas corpus review.
3.

Ahmed=s Argument that He Raised his Claim in a State Court Motion to Reconsider
Next, Ahmed argues he preserved his claim by raising it in a pro se motion to reconsider the

Ohio Supreme Court=s denial of his direct appeal. (Traverse, Doc. No. 71 at PageID 1650-52.)
Ignoring, for the time being, that the Ohio Supreme Court has Auniformly held that criminal
defendants have no right to hybrid representation when they are already represented by counsel,@ as
Ahmed has been every step of the way, State v. Tenace, 109 Ohio St. 3d 451, 452-53, 2006-Ohio2987 at & 10 (2006), this Court observes that in Ohio, a motion for reconsideration of a direct appeal
in the supreme court is limited. Under the applicable rule, such a motion may only be filed with
respect to the following: (1) the Supreme Court=s refusal to grant jurisdiction to hear a discretionary
appeal, (2) the sua sponte dismissal of a case, (3) the granting of a motion to dismiss, or (4) a
decision on the merits of a case. Ohio Sup. Ct. Prac. R. XI, Section 2(A). A motion to reconsider,
therefore, is not an appropriate vehicle through which to introduce new propositions of law that were
not included in the initial appeal. This interpretation of the rule governing state supreme court
practice is consistent with the corresponding rule applicable to the courts of appeals in Ohio. That
rule expressly provides that an application for reconsideration is limited to Aany cause or motion
submitted on appeal,@ and has consistently been interpreted as providing an avenue through which an
appellant may Acall[] to the attention of the court an obvious error in its decision or raises an issue
for consideration that either was not considered at all or was not fully considered by [the court] when
it should have been.@ See, e.g., Matthews v. Matthews, 5 Ohio App. 3d 140 (Ohio App. 10th Dist.
1982) (paragraph two of the syllabus). It does not allow the presentation of new claims of error. In

11

other words, a motion for reconsideration is not a second bite at the apple, but rather is a second
chance to chew on and digest the first bite. Consequently, raising a new claim in a motion for
reconsideration does not satisfy the requirement that a claim must be fairly presented in a timely
manner to the state court before it can be raised in federal habeas corpus.
Ahmed argues that the state supreme court=s summary denial of his pro se motion for
reconsideration constituted a decision on the merits in this post-Harrington v. Richter world. 131
S.Ct. 770 (2011). But while Harrington does not require written opinions from the state courts, it
does hold that the presumption that state court summary dispositions are merits decisions may be
overcome Awhen there is reason to think some other explanation for the state court=s decision is more
likely.@ Id. at 785, citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). As has been discussed
above, there are at least two procedurally based explanations for the Ohio court=s denial of Ahmed=s
motion for reconsideration that are more likely than a merits decision: (1) it is unlikely the state
court would have addressed the merits of Ahmed=s pro se motion since he was at all times
represented by counsel and therefore not entitled to hybrid representation, and (2) the state
procedural rule allowing motions for reconsideration does not contemplate new claims being
presented to the state court in such filings. Therefore, this Court does not presume that the Ohio
Supreme Court denied Ahmed=s pro se motion for reconsideration on its merits, and instead
concludesit was denied on both of the procedural grounds discussed. It also appears that the rule
against hybrid representation is firmly established and regularly followed in the Ohio courts. See
State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio5471 (2004) (paragraph one of the syllabus); State v.
Ferguson, 108 Ohio St. 3d 451, 466, 2006-Ohio-1502 at & 97 (2006); State v. Tenace, 109 Ohio St.
3d 451, 452-53, 2006-Ohio-2987 at & 10 (2006); State v. Martin, 103 Ohio St. 3d 385, 391, 2004-

12

Ohio-5471 at & 32 (2004); State v. Taylor, 98 Ohio St. 3d 27, 34, 2002-Ohio-7017 at & 43 (2002);
State v. Cassano, 96 Ohio St. 3d 94, 100, 2002-Ohio-3751 at & 37 (2002); State v. Keenan, 81 Ohio
St. 3d 133, 138 (1998); State v. Landrum, 53 Ohio St. 3d 107, 119 (1990); State v. Thompson, 33
Ohio St. 3d 1, 6-7 (1987); State v. Packer, 188 Ohio App. 3d 162, 168-69, 2010-Ohio-2627 at & 20
(Ohio App. 6th Dist. 2010); State v. Pilgrim, 184 Ohio App. 3d 675, 2009-Ohio-5357 (Ohio App.
10th Dist. 2009) (paragraph five of the syllabus); State v. Litten, 174 Ohio App. 3d 743, 747, 2008Ohio-313 at & 19 (Ohio App. 8th Dist. 2008); State v. Beaver, 119 Ohio App. 3d 385, 401-2 (Ohio
App. 11th Dist. 1997); State v. Day, 72 Ohio App. 3d 82, 86 (Ohio App. 4th Dist. 1991); State v.
Carter, 53 Ohio App. 2d 125, 129 (Ohio App. 4th Dist. 1977).
Although there exists no explicit enforcement of the Ohio Supreme Court rule specifically
prohibiting the raising of new claims of error in motions for reconsideration in direct appeals in
death penalty cases, the lineage of the first procedural ground suffices to establish Ahmed=s
procedural default. Ahmed has made no attempt to demonstrate cause and prejudice for the
procedural default of his claim in this section of his argument, leaving it unexcused. Thus, Ahmed=s
first ground for relief has not been preserved for habeas corpus review by his having raised the issue
in his pro se motion for reconsideration of his direct appeal in the Ohio Supreme Court.
4.

Ahmed=s Argument that he Preserved his Claim in a Motion to Disqualify the Ohio
Public Defender=s Office
Ahmed also contends procedural default of his claim was prevented by his having raised it in

his most unwieldily titled pro se AMotion to Disqualify and Remove the Ohio Public Defender=s
Office From All Representation of Defendant-Appellant and Stay All Proceedings Until Counsel
Can Be Employed and Arranged by the Counsulate [sic] Officials of Pakistan Under the Provisions
of Vienna Convention and Request for Court Order That All Funds of Defendant Presently Held By
13

Sheriff, Auditor and Courts of Common Pleas of Belmont County Be Released to Counsulate [sic]
Officials.@ (Traverse, Doc. No. 71 at PageID 1652; Appendix, Vol. 3 at 223-36.) That motion
suffered the same fate in the state supreme court as did Ahmed=s motion for reconsideration just
discussed above, see id. at 244, and stands in the same procedural stance as does that prior motion,
which is to say that it did not preserve Ahmed=s first ground for habeas corpus review.
5.

Ahmed=s Argument that he Preserved his Claim in an Application to Reopen Direct
Appeal
Next, Ahmed argues that the Ohio Supreme Court addressed the merits of his first ground

when the court denied his application to reopen his direct appeal based on the ineffectiveness of his
appellate counsel, thereby preserving his claim for habeas review. (Traverse, Doc. No. 71 at PageID
1652-61.) Presumably, Ahmed means to say that including in his application to reopen the argument
that his appellate counsel were ineffective for failing to include in his direct appeal a claim that
A[t]he trial court . . . actively engaged in conduct to frustrate Mr. Ahmed=s efforts to retain counsel of
his choosing@ was tantamount to raising the underlying claim itself. (App. to Reopen, Appendix,
Vol. 5 at 74.) The application to reopen was summarily denied by the state court because Ahmed
failed to comply with the 90-day filing deadline in Ohio Sup. Ct. Prac. R. XI, Section 6(A).3 Id. at
113.

3

Nevertheless, nearly three years later, Ahmed filed a pro se application to reopen his direct appeal in
which he argued the ineffectiveness of his appellate counsel for their failure to raise the instant claim as error on
direct appeal. (Appendix, Vol. 5 at 225-34.) Ahmed does not discuss that application in his Traverse, nor does he
indicate what became of it in the state court. No entry disposing of the application is indicated in the index to the
Appendix, and the Court has searched the remainder of the fifth volume of the Appendix, some 175 pages or so,
without finding any ruling concerning Ahmed=s pro se application. The court is reluctant to search the remaining
volumes of the Appendix in search of the document, and since Ahmed ignores it in his Traverse, the Court will do so
here.

14

Ahmed offers three explanations as to why the state court=s denial on timeliness grounds was
incorrect. First, he contends that running of the time for filing was tolled until counsel was
appointed to represent him in litigating his application to reopen. (Traverse, Doc. No. 71 at PageID
1654.) Absence of counsel, however, has not been accepted by the Ohio Supreme Court as good
cause for an untimely filing of an application, even in capital cases. State v. Hoffner, 112 Ohio St.
3d 467, 467-68, 2007-Ohio-376 at && 3-6 (2007). The state court has also made it clear that an
appellant=s lack of legal knowledge does not establish good cause for failing to seek timely relief
either. Id. at & 7.
Second, Ahmed contends that the time for filing his application to reopen was tolled during
the pendency of his motions to reconsider issues raised in his direct appeal and that the state court=s
denial on timeliness grounds was erroneous. (Traverse, Doc. No. 71 at PageID 1654-55.) He cites
Ohio Sup. Ct. Prac. R. XI, Section 4(A)(1) for the proposition that a timely motion for
reconsideration stays the mandate until the motion is decided. Since just before the Ohio Supreme
Court entered judgment on Ahmed=s direct appeal, that rule has read as follows:
Section 4.
(A)

Issuance of mandate
After the Supreme Court has decided an appeal on the
merits, the Clerk shall issue the mandate. The
mandate shall be issued 10 days after entry of the
judgment, unless a motion for reconsideration is filed
within that time in accordance with Section 2 of this
rule.
(1)
If a motion for reconsideration is filed but
denied, the mandate shall be issued when the
Supreme Court reconsiders the case and when
the entry on reconsideration is filed with the
Clerk.

Pursuant to that rule, the mandate in Ahmed=s case issued on October 27, 2004, and that is the date
that Ahmed argues is the triggering event for the beginning of the 90-day time within which he had
15

to file his application to reopen his direct appeal. But the part of the rule that provides for
applications to reopen explicitly states the triggering event is the Ohio Supreme Court=s entry of
judgment, not entry of the mandate. Ohio Sup. Ct. Prac. R. XI, Section 6(A). In Ahmed=s case, that
triggering event, the filing of the judgment entry, occurred on August 25, 2004. Ninety days from
that date was November 23, 2004, but Ahmed did not file his application to reopen his direct appeal
until December 21, making it out of time. Ahmed provides no authority for his contention that the
filing of a motion for reconsideration tolls the 90-day period, and this court has found none in its
own research.
In addition, it makes sense that the two processes are independent of one another since they
exist to remedy distinctly different problems. As noted earlier, a motion for reconsideration
basically provides a way for an appellate court to correct errors in a decision, whereas an application
to reopen a direct appeal provides a process through which an appellant can assert an ineffective
assistance of appellate counsel claim. Those two purposes do not overlap in any way, so it would be
illogical to condition or link the allowable time for filing one on the other; both can be pursued
simultaneously without compromising an appellant=s position in either. Accordingly, Ahmed=s
argument that his motion for reconsideration tolled the time within which he had to have filed his
application to reopen fails to rescue his first ground for relief from procedural default.
Even if his application to reopen had been timely, however, the underlying claim that Ahmed
had been denied his right to retain counsel of his choice would not have been preserved for habeas
review. Because claims of ineffective assistance of appellate counsel are based on an analytically
distinct legal theory from the underlying claims, an application to reopen direct appeal does not save

16

the underlying claims from default. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008), citing
White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005).
Finally, Ahmed contends that the 90-day period for filing his application to reopen his direct
appeal was tolled during the time he sought and was denied a writ of certiorari in the United States
Supreme Court. (Traverse, Doc. No. 71 at PageID 1655.) He argues that as long as his petition was
pending in the Supreme Court, his direct appeal was not final, and therefore the time for filing an
application to reopen his direct appeal had not begun running, id., citing Morgan v. Eads, 104 Ohio
St. 3d 142, 145-46, 2004-Ohio-6110 at & 18 (2004). The cited paragraph explains one reason why
the Ohio Supreme Court has not treated applications to reopen as if they were part of the direct
appeal in criminal cases, stating that proceedings to reopen a direct appeal move forward on a
schedule different from that of the direct appeal, and identifying the journalization of the appellate
judgment as the end of direct appeal as of right. How this reasoning supports Ahmed=s argument is a
mystery to the Court, especially because, in the very same case, the Ohio Supreme Court held
applications to reopen to be a collateral post-conviction remedy, rather than part of the direct appeal
process. Id. at & 25-26. In spite of that holding, Ahmed maintains that an application to reopen is a
part of direct appeal. Missing from his argument is any assertion that the time for filing collateral
post-conviction proceedings is also tolled during the filing period for a petition for a writ of
certiorari in the United States Supreme Court. That is for good reason: in discussing Morgan v.
Eads, the Sixth Circuit Court of Appeals has observed that A[o]n direct review, the time for filing of
petitions of certiorari and proceedings in the United States Supreme Court do not count towards the
limitation period. On collateral review, they do.@ Lopez v. Wilson, 426 F.3d 339, 346 (6th Cir.
2005), quoting Lambert v. Warden, No. 01-3422, 2003 WL 22071466 at *3 (6th Cir. Sept. 2, 2003).

17

Accordingly, Ahmed=s first ground for relief is not saved from procedural default by tolling of the
90-day filing period for a petition for a writ of certiorari in the Supreme Court.
A.

Ahmed=s Argument that the 90-Day Filing Deadline for Applications to Reopen
a Direct Appeal is not an Independent and Adequate State Procedural Ground
Upon Which to Base a Procedural Default

The Court finds, below, that the timeliness requirement of Ohio’s rule concerning
applications to reopen direct appeals was not an independent and adequate state ground capable of
precluding federal habeas corpus review at the time the rule was applied in Ahmed’s case. See Fifth
Ground for Relief. That does not salvage Ahmed’s claim that he was deprived of his right to retain
counsel of his choice from procedural default, however. The Sixth Circuit Court of Appeals has
reaffirmed that that in the context of an application to reopen a direct appeal in the intermediate
court of appeals, the application “preserves for habeas review only the ineffective assistance of
appellate counsel arguments, not the underlying substantive arguments.” Wogenstahl v. Mitchell,
668 F.3d 307, 338 (6th Cir. 2012), citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001). There is no
reason to believe an application to reopen a direct appeal in the Ohio Supreme Court would or
should be treated any differently. Consequently, Ahmed’s claim that he was denied his right to hire
counsel of his choice was not preserved by his having raised it as a claim underlying his ineffective
assistance of appellate counsel proposed proposition of law in his application to reopen his direct
appeal.
B.

Ahmed=s Argument that He Can Establish Cause for Procedurally Defaulting
his Claim

Ahmed employs circular logic in arguing that the reason his claim that he was denied his
right to retain counsel of his choice was procedurally defaulted was because he was denied his right
to retain counsel of his choice who could have timely filed his application to reopen his direct
18

appeal. (Traverse, Doc. No. 71 at PageID 1658.) As a collateral proceeding not part of direct
appeal, however, Ahmed was not entitled to counsel to pursue his application to reopen. Lopez v.
Wilson, 426 F.3d 339 (2005). Rather than wait until counsel were retained or appointed, Ahmed
could have filed his application to reopen his direct appeal himself to avoid its dismissal by the state
court on timeliness grounds, and subsequent procedural default in this Court. Although the Supreme
Court has recognized a criminal defendant=s right to effective assistance of counsel at trial,
Strickland v. Washington, 466 U.S. 668 (1984), and on the first direct appeal of right, Evitts v.
Lucey, 469 U.S. 387, 396 (1985); Douglas v. California, 372 U.S. 353 (1963), it has not extended
that right into the collateral application-to-reopen-a-direct-appeal context. In other words, the
absence of counsel, whether retained or appointed, is no excuse for failing to file an application to
reopen a direct appeal in a timely manner. Consequently, Ahmed has not demonstrated cause for the
default.
6.

Ahmed=s Argument that he Preserved his Claim by Raising it in Pro Se Post-Conviction
Petitions
Finally, Ahmed appears to argue that by raising Aa number of post-conviction claims pro se,@

which the trial and appellate courts refused to consider because Ahmed was represented by counsel,
and over which the Ohio Supreme Court declined jurisdiction, he preserved this specific claim for
habeas review. (Traverse, Doc. No. 71 at PageID 1661-65.) The Court observes that the documents
to which Ahmed directs its attention appear to be incomplete, as both terminate mid-sentence
(Appendix, Vol 7 at 310-16; Vol. 8 at 6-9). The first of those documents was filed on October 3,
2002, id., and a docket entry on that date indicates that the pro se petition submitted by Ahmed
would be lodged in the official file but that the court would not act upon it because Ahmed was

19

represented by counsel and because the matter was before the Ohio Supreme Court. (Appendix, Vol.
8 at 1.) The second of the pro se post-conviction petitions was filed on October 11, 2002.
The pro se post-conviction documents themselves are a rambling inventory of statements
apparently made during Ahmed=s trial by witnesses and attorneys with which Ahmed takes issue.
With no better guidance from Ahmed as to where in either petition the Court might find argument
relevant to the instant claim, this Court is unable to conclude that Ahmed raised the claim in his pro
se petition. Ahmed=s argument that the Ohio Supreme Court addressed the claim by denying
jurisdiction over his pro-se petition is simply nonsensical.
A.

Ahmed=s Argument that Ohio Has No Rule Prohibiting Hybrid Representation

In an attempt to salvage his claim from procedural default, Ahmed argues that Ohio has no
procedural rule prohibiting hybrid representation, but that argument is disproved by this Court=s
discussion of that issue under Ahmed=s third argument, supra, that he preserved the instant claim.
The cases to which Ahmed cites to support his argument to the contrary are, for the most part, cases
that came after his in the Ohio appellate courts. The United States Supreme Court has indicated that
whether a state procedural rule is firmly established and regularly followed for procedural default
purposes is determined by looking at the rule as of the date it was applied to the petitioner=s case by
the state court. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). In addition, a Arule can be >firmly
established= and >regularly followed= . . . even if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not in others.@ Walker v. Martin, ___ U.S. ___,
___, 131 S.Ct. 1120, 1128 (2011), citing Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 618 (2009).
Ahmed concedes that if a rule against hybrid representation does exist in Ohio, it was actually

20

enforced against him by the trial court and the state court of appeals. (Traverse, Doc. No. 71 at
PageID 1662.)
B.

Ahmed=s Argument That the Rule Was Not an Independent and Adequate State
Procedural Ground

Ahmed cites eight cases from the Ohio Seventh District Court of Appeals in which he claims
the rule against hybrid representation was not enforced, contending that enforcement of the rule is, at
best, inconsistent. (Traverse, Doc. No. 71 at PageID 1663.) Only four of those cases predate the
state courts=4 application of the rule to Ahmed=s case; the rest are irrelevant to any determination as
to whether the rule was regularly enforced at the time it was applied in Ahmed=s case (Appendix,
Vol.8 at 319, 323). Ford, 498 U.S. at 423-24.
The four Seventh District Court of Appeals cases cited by Ahmed that predate his own case
are State v. Patel, No. 03-BE-41, 2004-Ohio-1553, 2004 WL 614986 (Ohio App. 7th Dist. March 24,
2004), State v. Gist, No. 03 CO 10, 2003-Ohio-7018, 2003 WL 22998486 (Ohio App. 7th Dist. Dec.
17, 2003), State v. Taravella, No. 02-HA-542, 2003-Ohio-4880, 2003 WL 22120272 (Ohio Ap. 7th
Dist. Sept. 8, 2003), and State v. Gist, No. 99-CO-34, 2002-Ohio-5241, 2002 WL 31170255 (Ohio
App. 7th Dist. Sept. 27, 2002). It is true that in those cases, the court of appeals addressed in some
fashion the appellants= pro se assignments of error even though the appellants were represented by
counsel. In many more cases, however, the rule against hybrid representation was enforced during
the years prior to its application in Ahmed=s case. State v. Tenace, 109 Ohio St. 3d 451, 452-53,
2006-Ohio-2626 at ¶ 10 (2006); State v. Ferguson, 108 Ohio St. 3d 451, 466, 2006-Ohio-1502 at ¶

4

The trial court applied the rule in its March 8, 2005, Findings of Fact and Conclusions of Law (Appendix,
Vol. 8 at 323), and the Seventh District Court of Appeals applied the rule to Ahmed=s case the following year in its
Opinion, State v. Ahmed, No. 05-BE-15, 2006-Ohio-7069, 2006 WL 3849862 (Ohio App. 7th Dist. Dec. 28, 2006).

21

97 (2006); State v. Martin, 103 Ohio St. 3d 385, 390, 2004-Ohio-5471 at & 31 (2004); State v.
Taylor, 98 Ohio St. 3d 27, 34, 2002-Ohio-7017 at ¶ 43 (2002); State v. Cassano, 96 Ohio St. 3d 94,
99-100, 2002-Ohio-3751 at ¶¶ 34-37 (2002); State v. Keenan, 81 Ohio St. 3d 133, 138 (1998); State
v. Landrum, 53 Ohio St. 3d 107, 119 (1990); State v. Thompson, 33 Ohio St. 3d 1, 6-7 (1987); State
v. West, No. 2-06-04, 2006-Ohio-5834 at && 30-31, 2006 WL 3159354 (Ohio App. 3rd Dist. Nov. 6,
2006); State v. Davis, No. 05-AP-193, 2006-Ohio-193 at && 10-12, 2006 WL 2780177 (Ohio App.
10th Dist. Sept. 28, 2006); State v. Greenleaf, No. 2005-P-0017, 2006-Ohio-4317 at && 70-71, 2006
WL 2390253 (Ohio App. 11th Dist. Aug. 18, 2006); State v. Haines, No. 05-AP-55, 2005-Ohio-5707
at && 34-35, 2005 WL 2789065 (Ohio App. 10th Dist. Oct. 27, 2005); State v. Lemke, No. 90-C-51,
1992 WL 150219 at *6 (Ohio App. 7th Dist. June 26, 1992); but cf. State v. Martin, No. 87339,
2006-Ohio-5012 at & 3 n.1, 2006 WL 2776522 (Ohio App. 8th Dist. Sept. 28, 2006) (suggesting that
pro se motions fall outside what is considered “hybrid representation”). At least one Ohio court has
noted that where a pro se defendant=s appointed standby counsel=s assistance goes beyond mere
consultation, such hybrid representation may constitute reversible error. State v. Bumphus, No. E03-043, 2005-Ohio-536 at && 14, 51, 2005-WL 327187 (Ohio App. 6th Dist. Feb. 11, 2005).
Although somewhat different from Ahmed=s situation, those cases illustrate the strength of the
prohibition against hybrid representation. Perhaps most succinctly and unequivocally, the Ohio
Supreme Court stated in Martin, AToday we reaffirm and hold that in Ohio, a criminal defendant has
the right to representation by counsel or to proceed pro se with the assistance of standby counsel.
However, these two rights are independent of each other and may not be asserted simultaneously.@
103 Ohio St. 3d at 390, 2004-Ohio-5471 at & 32.

22

That a particular trial court and court of appeals might have disregarded or, in their discretion
decided not to enforce the rule in a few cases does not negate its firm establishment or its regular
enforcement. A petitioner must show more than an occasional act of grace by a state court in
excusing or disregarding a state procedural rule for a federal court to conclude that the state
procedural rule is inadequate because it is inconsistently applied. Hutchison v. Bell, 303 F.3d 720,
737 (6th Cir. 2002), citing Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir. 2001). A procedural rule
need not be followed in every case; it is sufficient if it is applied in the vast majority of cases. Byrd
v. Collins, 209 F. 3d 486, 521 (6th Cir. 2000), citing Dugger v. Adams, 489 U.S. 401, 410 n. 6
(1989). Moreover, the Supreme Court has held that Aa discretionary state procedural rule can serve
as an adequate ground to bar federal habeas review.@ Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612,
618 (2009). Thus, Ahmed=s citation of four cases in which a state court of appeals did not enforce
the rule against hybrid representation fails to persuade this Court that the rule is neither firmly
established nor regularly followed.

C.

Ahmed=s Argument That He Can Demonstrate Cause and Prejudice Excusing
His Procedural Default

Finally, Ahmed contends that even if this Court determines that Ohio does have a procedural
rule against hybrid representation, and even if that rule was firmly established and regularly
followed at the time it was applied in his case, he can establish cause and prejudice excusing his
procedural default of his claim. (Traverse, Doc. No. 71 at PageID 1663-65.) He offers as cause his
appellate counsels=s and post-conviction counsel=s failures to include the instant claim in the
appellate brief and post-conviction petition, respectively. Id. Of course, Ahmed=s claim that he was
denied the right to retain counsel of his choice could only properly be brought in one or the other,

23

the direct appeal or the post-conviction proceedings. Errors apparent on the trial record are properly
brought on direct appeal, while errors that rely on evidence from outside the record, Brady claims,
for instance, must be brought in a petition for post-conviction relief. Ahmed does not distinguish
between the two in his argument, nor does he indicate what, if any, evidence from outside the record
would have been necessary for his claim to be considered in a post-conviction proceeding.
Taking his claim that his appellate counsel=s ineffectiveness provides cause for the default
first, it is recalled that the Supreme Court has held that an ineffective assistance of counsel claim
asserted as cause for the procedural default of another claim must itself have been preserved in the
state courts. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Ahmed did present a claim of
appellate counsel=s ineffectiveness for not having raised the instant claim as error on direct appeal.
(Application to Reopen Direct Appeal, Appendix, Vol. 5 at 74.) As noted above, however, that
application was denied as untimely, which this Court has determined was, at the time it was applied
in Ahmed=s case, an independent and adequate state procedural ground sufficient to preclude habeas
corpus review of the claims asserted in the application. Since Ahmed=s ineffective assistance of
appellate counsel claim is itself procedurally defaulted, it cannot constitute cause for his default of
the underlying claim that he was denied his right to counsel of his choice at his trial.
Ahmed advances the alternative argument that his post-conviction counsel were ineffective
for failing to raise the instant claim in his post-conviction proceedings. There is no constitutional
right to an attorney in those proceedings. Coleman v. Thompson, 501 U.S. 722, 736 (1991).
Therefore a habeas petitioner generally cannot claim ineffective assistance of counsel in such
proceedings. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 425 (6th Cir. 2003), citing Coleman
501 U.S. at 752-53 (1991). A narrow exception to the general statement in Coleman was recently

24

carved out by the Supreme Court. In Martinez v. Ryan, ___ U.S. ___, ___, 132 S.Ct. 1309, 1315
(2012), the Court held that A[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner=s procedural default of a claim of ineffective
assistance at trial.@ But here, Ahmed=s argument is that his post-conviction (or initial-review)
counsel should have raised the claim that Ahmed was denied his right to counsel of his choice, not
that they should have raised a claim of trial counsel=s ineffectiveness. Therefore, the exception
announced in Martinez does not provide an avenue through which Ahmed might establish cause for
the procedural default of his counsel-of-choice claim.
Aside from having failed to demonstrate cause for procedurally defaulting his claim, Ahmed
makes no effort to show how he was prejudiced by the alleged ineffectiveness of his appellate and
post-conviction counsel.
Ahmed has procedurally defaulted his first ground for relief and has not demonstrated cause
or prejudice for the default. Accordingly, his first ground should be denied as procedurally
defaulted.
Even if Ahmed had preserved the claim for habeas review, however, it would fail. In his
petition, Ahmed alleges that Athe criminal trial judge, domestic relations court judge and probate
judge of Belmont County, Ohio[,] coordinated their actions with the prosecutor=s office, sheriff=s
office, the Belmont County public defender and the appointed conservator . . . by intentionally
engaging in conduct designed to frustrate petitioner=s efforts to obtain counsel of choice.@ (Petition,
Doc. No. 35 at PageID 173; Traverse, Doc. No.71 at PageID 1648.)
In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court of the United States
expounded upon a defendant=s right to retain counsel of his or her choice as follows:

25

The Sixth Amendment to the Constitution guarantees that A[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have
the assistance of Counsel for his defence.@ In United States v.
Morrison, 449 U.S. 361, 364 (1981), we observed that this right was
designed to assure fairness in the adversary criminal process.
Realizing that an unaided layman may have little skill in arguing the
law or in coping with an intricate procedural system, Powell v.
Alabama, 287 U.S. 45, 69 (1932); United States v. Ash, 413 U.S. 300,
307 (1973), we have held that the Sixth Amendment secures the right
to the assistance of counsel, by appointment if necessary, in a trial for
any serious crime. Gideon v. Wainwright, 372 U.S. 335 (1963). We
have further recognized that the purpose of providing assistance of
counsel Ais simply to ensure that criminal defendants receive a fair
trial,@ Strickland v. Washington, 466 U.S. 668, 689 (1984), and that
in evaluating Sixth Amendment claims, Athe appropriate inquiry
focuses on the adversarial process, not on the accused=s relationship
with his lawyer as such.@ United States v. Cronic, 466 U.S. 648[, 657
n.21] (1984)[, overruled on other grounds by Sawyer v. Smith, 497
U.S. 227 (1990)]. Thus, while the right to select and be represented
by one=s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to guarantee an
effective advocate for each criminal defendant rather than to ensure
that a defendant will inexorably be represented by the lawyer whom
he prefers. See Morris v. Slappy, 461 U.S. 1, 13-14 (1983); Jones v.
Barnes, 463 U.S. 745 (1983).
The Sixth Amendment right to choose one=s own counsel is
circumscribed in several important respects. Regardless of his
persuasive powers, an advocate who is not a member of the bar may
not represent clients (other than himself) in court. Similarly, a
defendant may not insist on representation by an attorney he cannot
afford or who for other reasons declines to represent the defendant.
Nor may a defendant insist on the counsel of an attorney who has a
previous or ongoing relationship with an opposing party, even when
the opposing party is the Government.
Id. at 158-59 (parallel citations omitted).
Later, the Supreme Court elaborated on the right of a criminal defendant who can afford to
hire his own counsel to retain the attorney of his choice. In United States v. Gonzalez-Lopez, 548
U.S. 140 (2006), the Court distinguished the right to hire one=s attorney of choice from the right to a

26

fair trial by observing that while the latter requires a showing of prejudice to be Acomplete,@ the
former does not. Id. at 146. Instead, the erroneous denial of a non-indigent defendant=s right to hire
the counsel of his choice was held to be Astructural error@ entitling the defendant to a reversal of his
conviction without a showing of prejudice, and with no requirement that a reviewing court determine
whether the error was harmless. Id. at 150-52; United States v. Davila, 131 S.Ct. 2139 (2013).
Since Gonzalez-Lopez, however, several federal courts have concluded that the new rule announced
therein is neither a Awatershed@ rule nor substantive, and that it consequently is not retroactively
applicable. Rodriguez v. Montgomery, 594 F.3d 548 (7th Cir. 2010); Rodriguez v. Chandler, 492
F.3d 863 (7th Cir. 2007); Hoffenberg v. United States, No. 06-3208-pr, 2009 WL 1740050 at **3 n.1
(2nd Cir. June 19, 2009); Gonzalez v. Wynder, No. 2006-cv-04842, 2010 WL 962882 (E.D. Pa. Mar.
11, 2010) (adopting Report and Recommendations, Gonzalez v. Wynder, No. 06-4842, 2007 WL
7079557 at *3 n.4 (E.D. Pa. Nov. 15, 2007)); King v. Tamez, No. 3:09-cv-0564-D, 2009 WL
4884148 at *2 (N.D. Tex, Dec. 17, 2009); Wright v. United States, Nos. 3:98CV355-MU,
3:94CR95-5-V, 2008 WL 943371 at *2 n.2 (W.D.N.C. April 7, 2008); Peters v. Bell, No. 1:06-cv880, 2007 WL 3348011 at *1 (W.D. Mich. Nov. 8, 2007) (Memorandum Order); Harris v.
Diguglielmo, No. 07-213, 2007 WL 3120065 at *11 (W.D. Pa. Oct. 22, 2007). Ahmed=s convictions
became final in 2005, see Ahmed v. Ohio, 544 U.S. 952 (2005)(denying certiorari), and Ahmed v.
Ohio, 545 U.S. 1124 (2005) (denying reconsideration of the denial of certiorari), so the rule
announced in Gonzalez-Lopez the following year does not apply in his case. Thus, to succeed on his
claim, Ahmed would to demonstrate both that he was denied the right to hire counsel of choice, and
that the fairness of his trial was compromised as a result. See Wheat, supra.

27

Ahmed contends his claim is governed by Faretta v. California, 422 U.S. 806 (1975), and
Chandler v. Fretag, 348 U.S. 3 (1954), but those cases are inapposite. In Faretta, a criminal
defendant=s right to represent himself was at issue, not his right to hire counsel of choice. In
Chandler, a criminal defendant charged with breaking and entering a business and stealing items
with a value of three dollars waived his right to counsel, was immediately charged with a
substantially more serious offense, and was then denied a continuance to obtain counsel to represent
him on the more serious charge. Thus, the issues and circumstances in Faretta and Chandler are
distinguishable from those here.
Ahmed provides a lengthy chronology of his attempts to hire counsel, but fails to expose any
collaboration, nefarious or otherwise, between the various courts he names, the prosecutor=s office,
the public defender, or conservator intended to deny him his right to counsel of his choice. On
October 13, 1999, the trial court appointed two attorneys, James Nichelson and Eric Costine, to
represent Ahmed at his arraignment. (October 13, 1999, Hearing, Trial Tr. Vol. 3 at 3.) At that
time, Ahmed informed the court that he had talked to about three attorneys and was intending to
retain private counsel. Id. at 4. Following that hearing, the court filed an entry indicating that
Ahmed did not appear to have the means to hire private counsel, and that public defenders had been
appointed. (Appendix, Vol. 1 at 99.) By November 24, 1999, Ahmed had neither retained counsel
nor submitted a financial affidavit to the court from which the court could determine whether he was
indigent and entitled to appointed counsel who had already been working on his behalf for over a
month. The trial court filed an entry on that date ordering Ahmed to submit a financial affidavit to
the court no later than December 1, 1999, and prohibiting Ahmed from using any of his assets before
his indigency status was determined. (Appendix, Vol. 1 at 141.)

28

Under threat of being held in contempt of court (Appendix, Vol. 1 at 206), Ahmed filed a
financial affidavit on February 14, 2000, that does not appear to be in the record, id. at 201. About
three weeks later, the trial court ordered Ahmed to deposit $10,000 with the clerk of courts, money
intended to be set aside to repay the Public Defender=s Office for representing Ahmed for
approximately five months. Id. at 222. The court also granted Ahmed twenty days to retain counsel
and for counsel to file a notice of appearance. Id. Soon thereafter, Ahmed protested that depositing
$10,000 with the clerk of courts as ordered would leave him with under $1,000 with which to retain
counsel to represent him in his capital trial.5 (Appendix, Vol. 1 at 249.) On March 28, the trial court
again ordered that Ahmed deposit $10,000 with the clerk of courts, and encouraged him to use his
remaining funds to retain private counsel. (Appendix, Vol. 1 at 254.)
Two weeks later, Ahmed complained in writing to the trial judge that her orders were
prohibiting him from obtaining adequate defense counsel, and stressing that his private attorneys
would not enter their notice of appearance until they received payment. Id. at 275-78. Ahmed also
stated A[t]here is no money to Public Defender, who did not do any work and imposed on me due to
your illegal orders and not my choice.@ Id. at 278. Ahmed informed the court that when it lifted the
order that he deposit $10,000 with the clerk of courts, his attorneys would take over the case,
A[o]therwise you can keep [it] the way it is. There is [sic] never going to be all funds deposited with

5

On January 26, 2000, a voluntary and limited conservatorship over Ahmed=s assets was created in the
probate court in Belmont County, Ohio. In the matter of the Conservatorship of Ahmed, Nos. 01-BA-13, 01-BA-48,
2003-Ohio-3272 at && 2-4, 2003 WL 21442314 at *1 (Ohio App. 7th Dist. June 16, 2003). In 2003, the court of
appeals summarized the condition of the conservatorship as of April 2000 as follows:
On April 3, 2000, the conservator filed an inventory listing the eleven accounts originally included
in the application and their values . . . . The total inventory of the potential conservatorship estate
was $57,234.25. The conservator then filed a partial account listing receipts from various financial
institutions for a total of $18,481.50. The conservator noted that Ahmed denied him access to four
accounts that contain: $13,000; $4,000; $20,000; and $4-7,000.
Id. at & 6.

29

the court . . . .@ Id. The court responded with an entry informing Ahmed that it has placed no
restrictions on Ahmed=s use of the funds in the conservatorship for the purpose of hiring counsel to
defend him in his capital trial. Id. at 280.
On August 22, 2000, the trial court clarified its orders respecting the conservatorship funds in
response to Ahmed=s request. The court stated that Ahmed was free to terminate the conservatorship
as long as the probate court approved the termination, and that whatever funds were left after the
fees of the conservator were paid should be deposited in an escrow account with the clerk of courts.
(Appendix, Vol. 1 at 324.) Those funds would be held in the escrow account until Ahmed retained
private counsel, but Ahmed would have also have to pay appointed counsel from those funds for the
many months they had worked on his case. Id. at 325. Upon verification that counsel had been
retained, the court would release the remaining funds directly to those counsel, not to Ahmed. Id. at
325-26. The following month, the trial court filed an entry indicating it had been advised that the
current balance in the conservatorship was $18,491.50, but that there were three accounts totaling
between $46,000 and $49,000 that Ahmed had never permitted the conservator to deposit into the
conservatorship. (Appendix, Vol. 1 at 366.) The court surmised that the amount of money available
to Ahmed was more than enough to hire private counsel to represent him at trial, and set down
priorities for how the money should be disbursed. Id. The court stated that after Ahmed pays any
private attorney or attorneys he might retain, appointed counsel or other court-appointed experts or
assistants should be paid, and anything left would be Ahmed=s exclusive property. Id. at 367. By
November 9, 2000, however, no attorney had entered an appearance in Ahmed=s case and the trial
court reinstated the order prohibiting Ahmed from depleting his assets. Id. at 387-88. The court also
informed Ahmed that the funds would remain under court supervision until an attorney entered his

30

appearance. Id. On January 2, 2001, the court stressed to Ahmed in court that his funds were
reserved for Ahmed=s use in hiring private counsel. (Hearing of January 2, 2001, Trial Tr., Vol. 3 at
7.)
Even as voir dire in Ahmed=s case began on January 16, 2001, he had not retained private
counsel. (Trial Tr., Vol. 5 at 219.) The trial court stated in an entry that Ahmed could still hire
private counsel, but that any motion for a continuance would not be decided until retained counsel
made a motion requesting more time to prepare. (Appendix, Vol. 2 at 250.) Ahmed continued to
argue that he had been denied his right to hire private counsel throughout his trial. (Trial Tr., Vol. 9
at 34; Vol. 10 at 15, 24, 27-28; Appendix, Vol. 2 at 249.) No attorney ever filed a notice of
appearance in Ahmed=s case and he was at all times represented by appointed counsel.
It is true, however, that Ahmed unsuccessfully attempted to retain private counsel. On
December 13, 1999, attorney Dennis McNamara informed Ahmed that he would not represent him at
trial because release of the funds to pay him would be time consuming, and Ahmed refused to waive
his right to a speedy trial. (Appendix, Vol. 2 at 157.) Noting that Ahmed=s trial was scheduled for
the next month, McNamara stated he was going to be out of the state for a week over the holidays
and had a case he was working on in federal court, so would not have the time to prepare for
Ahmed=s January trial. Id.
There is in the record an undated transcript of a telephone call between the trial court and
attorney Sam Shamansky to discuss how much money was available to pay retained counsel should
Shamansky agree to take the case. (Trial Tr., Vol. 3 at 1-4 (located after the transcript of the hearing
of December 6, 1999).) There is some indication in the record that attorneys R. William Meeks,
Samuel Shamansky, and Dave Thomas considered representing Ahmed in the first half of 2000

31

(Appendix, Vol. 2 at 154-55), but they never entered their appearances which was a prerequisite to
the release of Ahmed=s funds.
On April 27, 2000, attorney Harry Reinhart discussed with the trial court the possibility of
his representing Ahmed at trial. Reinhart explained that from what Ahmed had told him, Ahmed did
not have sufficient funds to pay for the defense in a capital trial. (Transcript of April 27, 2000,
Hearing, Trial Tr., Vol. 3 at 3.) The trial judge stated that if there came a time when Ahmed=s assets
were exhausted and that was verified by the conservator, the county would pay for reasonably
necessary defense services. Id. at 4. She further told Reinhart that if he took the case and needed the
$10,000 she had earmarked to pay for appointed counsel, she would vacate her order respecting the
$10,000 and Reinhart could use that money, as well. Id. at 5. The judge stated that Ahmed has
sworn to the fact that he only had $15,000. Id. at 6. She indicated she would have no problem with
funds being disbursed to Reinhart should he take the case. Id. Reinhart expressed concern over the
fast-approaching trial date, but the judge told him she knew he could not try the case in July, and
that if he decided to take the case, she, Reinhart, and the prosecutor would have to schedule it for a
date everyone could honor. Id. at 7. Reinhart said he would let the court know the next week
whether he was going to take the case. Id. at 8.
Apparently things did not work out with Reinhart, because on May 24, 2000, attorneys Brian
Rigg and Donald Schumacher participated in a telephone conference with, among others, Judge
Sargus, the trial judge in Ahmed=s case. Judge Sargus explained that she had set aside $10,000 to
pay appointed counsel, but that if Rigg and Schumacher entered their appearance, she would release
that money to them. (Transcript of Telephone Conference of May 24, 2000, Trial Tr., Vol. 3 at 3.)
Although the trial had been scheduled for July, that date was cancelled because Ahmed named his

32

appointed counsel as witnesses in his case, necessitating the appointment of new counsel. Id. at 12.
Schumacher stated that he had made it clear to Ahmed that if he and Rigg took his case, they would
need until the beginning of 2001 to prepare and that they expected Ahmed to waive his speedy trial
right. Id. at 13-14. In a June 2, 2000, hearing Judge Sargus told Ahmed and his appointed counsel
that Rigg and Schumacher had decided not to take Ahmed=s case. (Transcript of June 2, 2000,
Hearing, Trial Tr., Vol. 3 at 6.) The reason given in their June 1, 2000, letter to Ahmed was Athe
financial restrictions present at this time.@ (Appendix, Vol. 2 at 150.) Two months later,
Schumacher wrote Ahmed telling him that the financial circumstances of his situation were not an
issue he and Rigg wished to become involved with, and so they were declining to represent him.
(Appendix, Vol. 2 at 151.)
On October 23, 2000, however, Ahmed=s appointed counsel notified the trial court that Rigg
was willing to undertake representation of Ahmed. (Transcript of October 23, 2000, Hearing, Trial
Tr., Vol. 3 at 3.) Judge Sargus stated all that was necessary for her to release the funds to Rigg was
for Rigg himself to appear in court and express his intention to enter an appearance in Ahmed=s case.
Id. at 4. A couple of weeks later, in another hearing, appointed counsel Adrian Hershey responded
to Ahmed=s complaint that Hershey and co-counsel Peter Olivito never allowed Ahmed to meet with
Rigg and Schumacher out of Hershey and Olivito=s presence. (Transcript of November 9, 2000,
Hearing, Trial Tr., Vol. 3 at 46.) Hershey stated that Ahmed never requested to do so, and that in the
course of the meeting with the other attorneys and Ahmed, Rigg and Schumacher told Ahmed that if
they were to take his case, he would have to sign a waiver of his right to a speedy trial. Id. Ahmed
argued with Rigg and Schumacher about the law, stated he would not sign a waiver, and returned
their retainer agreement to them unsigned. Id. The next day, Hershey received a call from Rigg

33

informing him that Rigg and Schumacher were not interested in taking Ahmed=s case. Id. at 47. In
their letter to Judge Sargus informing her of their decision, Rigg and Schumacher merely stated that
Aafter meeting with Mr. Ahmed and his counsel and reviewing all aspects of the situation, we feel we
will not be able to undertake this representation.@ (Appendix, Vol. 1 at 389.)
There also appears in the record a retainer agreement dated June 8, 2000, from attorneys
Terry Sherman and Debra Gorrell, which set out the scope of their representation of Ahmed.
(Appendix, Vol. 2 at 152.) The agreement was not signed by Ahmed. Id.
Later in November 2000, yet another attorney, Robert Suhr, contacted the court about
representing Ahmed. Ahmed had indicated to Suhr that he would pay the attorney his fee, but that
the court would provide funding for the usual support services in capital cases. (Transcript of
November 27, 2000, Hearing, Trial Tr., Vol. 3 at 3.) Judge Sargus reassured Suhr that Ahmed was
not indigent, and that he probably had $50,000 to $60,000 in assets, but that Ahmed=s appointed
counsel would have to be paid something out of that money since they had been representing him for
some time. Id. at 4. When Suhr realized that appointed counsel were still on the case, he stated it
would be premature for him to talk to anybody, presumably Ahmed. The record of that hearing ends
at that point. Id. at 5.
It appears from the record that attorneys Richard Cline and David Young also contemplated
representing Ahmed in his criminal case. A single page of what might have been a multi-page
agreement spells out the scope of the representation and the associated fees. (Appendix, Vol. 2 at
159.) The document is altered in handwriting that is strikingly similar to that observed in Ahmed=s
pro se submissions to the trial court. One such alteration is as follows: AAny legal fees incurred in
connection with the work performed by such attorney or attorneys will be approved by and be the

34

responsibility of Mr. Ahmed. Attorneys@ Id. In addition, the agreement was further modified in the
section entitled AScope of Work@ as follows:
It does not include any appeal of the decisions of the trial court, the
jury or the sentence, nor does it and also include any retrial if a mistrial
is declared during trial. Should an appeal become necessary or a
mistrial be declared, Attorneys and Mr. Ahmed will reach a new fee
agreement at that time.
Id. The modifications to the agreement are probably not terms that would be acceptable to any
attorney, but there is no other information in the record that sheds any light on how the proposed
agreement came into being or what its ultimate fate was. In any case, Cline and Young never filed a
notice of their appearance and did not represent Ahmed at any time during his trial.
Finally, in December 2000, attorney Joseph Carpino met with Judge Sargus in her chambers
to discuss representing Ahmed. (Transcript of December 8, 2000. Hearing, Trial Tr., Vol. 3 at 1-6.)
In a January 2, 2001, hearing, Ahmed informed the trial court that he had retained Carpino as of
December 22. (Transcript of January 2, 2001, Hearing, Trial Tr., Vol. 3 at 9.) At that same hearing,
appointed counsel Olivito revealed to the court that Carpino had come to his home uninvited on
Christmas Day to request that Olivito ask Hershey to withdraw from Ahmed=s case so Carpino could
represent Ahmed with Olivito. Id. at 13. In a January 8, 2001, hearing, Deputy Sheriff Randall
Alderman from the Belmont County Sheriff=s Office testified that on January 4, Carpino visited
Ahmed in the Belmont County Jail. (Trial Tr. Vol. 4 at 92.) From outside the interview room, he
could hear voices being raised, although he could not understand what was being said. Id. at 93.
Alderman stated that within a short period of time, Carpino was up against the door wanting out of
the interview room with his hand on the doorknob, and Ahmed standing within one foot of Carpino.
Id. at 93-94. Carpino was let out of the interview room and left the jail. Id.
35

Also during that hearing, the trial court found Carpino in contempt of court for the
contemptuous language found in pleadings he had filed, as follows:
You have filed numerous pleadings with me, and they constitute
direct contempt.
The pleading of December 12th talks about, AStop the travesty of
justice. The trial judge is doubtful or mistaken.@ You have
demanded written decisions. You have stated that the court=s rulings
shepparding [sic] the defendant=s funds for his defense are earmarked
for wrongful payment. And you have repeated that the proceeding is
a travesty of justice. You have accused the judge of prejudice. All of
this is done as an officer of the court. And it fits the classic definition
of contempt. It tends to demean the court in the eyes of the public,
and it obstructs justice. And you are hereby found to be in contempt.
(Transcript of January 8, 2001, Motion Hearing, Trial Tr., Vol. 4 at 115; see also Appendix, Vol. 1
at 416, 440, 443-45, 457-73, 481-82.) In a letter to Judge Sargus dated December 18, 2000, Ahmed
himself expressed concern about Carpino=s mental stability, financial situation, and ethical purity.
(Appendix, Vol. 2 at 29-30.) Ahmed=s concern was not unfounded, and was apparently shared by
the Belmont County Court of Appeals throughout the time that Carpino was seeking to represent
Ahmed. See In re Beck, No. 00 BA 52, 2002-Ohio-3460 (7th Dist. Ct. App., June 27, 2002)
(detailing flagrant violations of the Ohio Rules of Appellate Procedure and bizarre behavior on the
part of Carpino in his representation of a client). In Beck, the court of appeals noted that it had
recently discussed Carpino=s similar disregard of the rules in Carpino v. Wheeling VolkswagenSubaru, No. 00 JE 45, 2001-Ohio-3357 (7th Dist. Ct. App. Sept. 21, 2001), in which Carpino
proceeded pro se. The court of appeals also observed that Carpino=s defense of his client in State v.
Christian, No. 96-JE-42, 2000 WL 126609 (7th Dist. Ct. App. Jan. 13, 2000) was so outrageously
unintelligible and strange that it recommended Carpino not be appointed to any capital cases in the
future. Id. at *7. These cases, particularly Christian, overlap the period Carpino was seeking to
36

represent Ahmed in his capital case, so it would appear that Ahmed=s assessment of Carpino=s
competence was fairly accurate. Carpino was later suspended from the practice of law because he
was found to be suffering from a serious mental illness. http://www.supremecourt.ohio.gov/Clerk/
ecms/resultsbycasenumber.asp?type=3&year=2005&number=0748&myPage=searchbycasenumber.
asp; http://www.supremecourt.ohio.gov/AttySvcs/AttyReg/Public_AttorneyDetails.asp?ID=0019474
(both websites last visited April 30, 2013).
Ahmed has not demonstrated that any of these attorneys declined to represent him because
the trial court refused to release his funds to them, and he has utterly failed to produce any evidence
of a conspiracy between the trial judge, the domestic relations judge, the probate judge, the
conservator, the Belmont County Sheriff=s Office, appointed counsel, and the prosecutors to deny
him his right to hire counsel of his choice.
Although attorney McNamara mentioned that it would take time for Ahmed=s funds to be
released, he also stated that he could not take Ahmed=s case because he did not have time to prepare
for Ahmed=s trial, and Ahmed refused to waive his speedy trial right. Attorneys Shamansky, Meeks,
and Thomas were apparently willing to take Ahmed=s case and sent him forms to complete that
would give them access to Ahmed=s account with T. Rowe Price, apparently one of the accounts not
in the control of the conservator. The record does not indicate what became of those forms, whether
Ahmed executed them or not, but because Ahmed had not provided the court with a financial
statement from which the court could determine his indigency status, Ahmed was prohibited by a
court order from using any of his money for any purpose. Thus, it was Ahmed=s failure to cooperate
with the court=s assessment of his ability to pay for his own counsel that prevented Shamansky, et.
al. from receiving payment from Ahmed=s funds. When attorney Reinhart discussed taking Ahmed=s

37

case with Judge Sargus, she assured him there was no barrier to his receiving payment from
Ahmed=s funds, and this Court has not found within the record any explanation as to why Reinhart
ultimately decided not to take Ahmed=s case. Although attorneys Rigg and Schumacher initially
declined to represent Ahmed in part because of the financial restrictions, they later expressed an
interest in taking his case. When they informed Ahmed that he would need to waive his right to a
speedy trial if they decided to represent him, he refused to sign either a waiver or the retainer
agreement they had presented to him. Ahmed, then, was the one to reject representation by Rigg and
Schumacher.
The only evidence that attorneys Sherman and Gorrell were interested in representing Ahmed
is their retainer agreement, signed by both of them, but not by Ahmed. The Court cannot presume
anything from that document other than that an agreement was not reached. The reasons for that
outcome are unknown. Attorney Suhr was apparently under the impression that Ahmed did not have
counsel at the time he expressed an interest in representing him, and when he found out otherwise,
he determined that having a conversation with Ahmed, who was represented by appointed counsel,
would be Apremature.@ That does not establish that Suhr was worried about the availability of
Ahmed=s funds to pay him should he become Ahmed=s lawyer. If this Court were to assume
anything about the failure of attorneys Cline and Young to represent Ahmed, it would be that Ahmed
altered the AScope of Work@ portion of the retainer agreement to terms that would be unacceptable to
most, if not all, attorneys. There is nothing in the record suggesting that they were afraid they would
not be paid if they took Ahmed=s case. And as for Carpino, it is evident that Ahmed himself had
doubts about Carpino=s ability to competently represent him, and those doubts were warranted, as
evidenced by Carpino=s filings and conduct in Ahmed=s case, by Carpino=s conduct in other cases

38

around that same time, and by his mental illness suspension from the practice of law a couple of
years later. None of these attorneys ever filed a notice of appearance in Ahmed=s case, which the
trial court had repeatedly stated was necessary before Ahmed=s funds would be released. Under the
circumstances present in Ahmed=s case, it was not unreasonable for Judge Sargus to require such a
filing before disbursing Ahmed=s funds to any attorney.
As for Ahmed’s argument that he was denied his right to counsel of his choice on appeal,
there is nothing to that claim. (See Petition, Doc. No. 35 at PageID 197-98.) At his sentencing
hearing on February 2, 2001, Judge Sargus appointed the Ohio Public Defender’s office to represent
Ahmed so that it would be assured that a timely motion for a new trial and a notice of appeal would
be filed. (Trial Tr., Vol. 10 at 27.) Ahmed protested that he had the right to secure his own attorney
before the court had any reason to appoint counsel for him. Id. at 27-28. The attorney he claimed
represented him, none other than Carpino, was not present in the courtroom at the sentencing
hearing. Id. at 28. Judge Sargus explained that the public defenders would help him secure counsel
of his choice, and when said counsel entered a notice of appearance, the public defenders would “be
delighted to withdraw” from Ahmed’s case. Id. The court informed Ahmed that it was fine that he
had chosen Carpino to represent him, but that Carpino had to enter a notice of appearance so that he
could be made attorney of record. Id. Aside from that conversation, which does not implicate
Ahmed’s right to retain his counsel of choice for his appeal, he points to nothing in the record to
support his claim of a denial of that right. Unless, that is, the argument that “Ahmed claims that the
trial judge made a secret order with the prosecutor, appointing OPD for appeal, on January 8, 2001,
constructively removing attorney Carpino from [the] appeal and never ruled on [the] motion to
release funds to selected counsel for appeal” counts. (Petition, Doc. No. 35 at PageID 197

39

(emphasis added).) What Ahmed thinks, or suspects, or claims is not evidence upon which this
Court may rely in evaluating his counsel-of-choice ground for relief. It is true, as Ahmed alleges,
that Carpino filed a “Motion in Arrest of Judgment,” a document entitled “Motion for New Trial,
Motion for Judgment of acquittal, Motion for Discovery,” all filed on February 2, 2001, and a
“Motion for Judgment of Acquittal” which is also captioned “Motion for Mistrial” in Carpino’s
hand, filed on February 5, 2001. (Appendix, Vol. 2 at 304, 305, and 331-33, respectively.) But
nowhere in the record is Carpino’s notice of appearance as counsel for Ahmed in his direct appeal.
There are, however, indications that Ahmed had privately retained attorney Paul Mancino to
represent him on direct appeal. In the Ohio Public Defender’s motion to withdraw from the case, it
is noted that Ahmed had retained Mancino. (Appendix, Vol. 2 at 464.) Mancino filed a notice of
appeal on Ahmed’s behalf, id. at 467, and the trial court recognized Mancino as Ahmed’s counsel
when granting the public defender’s motion to withdraw, id. at 471. The court also acknowledged
that Ahmed had secured private counsel in two docket entries disposing of pro se motions Ahmed
had filed. Id. at 474, 475. Although it does appear that the Ohio Public Defender’s Office was again
appointed to represent Ahmed on appeal about six months after Mancino took the case, there is no
explanation or indication as to what caused that reappointment. Id. at 476. Ahmed’s complaint
here, however, is that he was deprived of Carpino’s representation, not Mancino’s.
Neither the trial court nor the appellate court stood in the way of Ahmed’s retaining the
attorney of his choice for his direct appeal. The trial court made it clear to Ahmed that Carpino
would have to file a notice of appearance to represent Ahmed, but he never did so. Ahmed
ultimately retained Mancino, but for whatever reason that relationship did not endure and the Ohio
Public Defender’s Office was once again appointed to represent Ahmed. Thus, even if Ahmed had

40

preserved the instant ground for relief insofar as he alleges he was deprived of counsel of his choice
on direct appeal, the claim would be unavailing.
Ahmed=s first ground for relief is procedurally defaulted without excuse, and should be
denied on that ground. Even if he had properly preserved the claim for habeas corpus review,
however, it would fail as he has not demonstrated that he was denied his right to hire counsel of his
choice in his criminal trial.

Second Ground for Relief
In his second ground for relief, Ahmed contends he was forced to go to trial with counsel
who labored under a conflict of interest. (Petition, Doc. No. 35 at PageID 199.) Respondent
acknowledges that the claim is properly preserved for habeas review, but argues it is nevertheless
meritless. (ROW, Doc. No. 61 at PageID 974-77.) In his traverse, Ahmed basically repeats the
same arguments made in his petition with very little additional argument. (Traverse, Doc. No. 71 at
PageID 1684-95.)
Although lengthy, it is necessary to include here the Ohio Supreme Court’s decision on direct
appeal on the claim Ahmed presented there and now presents here to facilitate this Court’s analysis
of the state court’s decision under the AEDPA. It reads as follows:
In his second proposition of law, appellant asserts that the trial court
erred in failing to remove defense counsel, since a conflict of interest
occurred when he filed a lawsuit against counsel in federal court.
Alternatively, appellant contends that there was a total breakdown of
the attorney-client relationship that required counsel’s removal.
Appellant submits that the trial court’s inquiry into the difficulties
between him and counsel was insufficient.
Appellant complained about his counsel on numerous occasions.
Appellant was first represented by appointed public defenders at his
41

arraignment. Appellant claimed that counsel had not met with him or
answered his questions, but counsel disputed appellant’s allegations.
Due to conflicts with appellant, both attorneys later withdrew, and by
June 2000, the trial court had appointed attorneys Peter Olivito and
Adrian Hershey to represent appellant. Although appellant sought to
hire attorneys of his own choosing, he was never able to do so.
Soon after Olivito and Hershey were appointed, appellant began
complaining that their representation was ineffective. At a
September 6, 2000 hearing, appellant claimed that counsel had
neither met nor consulted with him prior to seeking a continuance.
At a November 9, 2000 hearing, appellant complained that Hershey
had laughed at and humiliated him in front of a detective, had made
racial slurs, and had been hostile toward him. Hershey disputed
appellant’s complaints, and the court advised appellant to let his
counsel help him.
At a January 2, 2001 hearing, appellant told the court that he had
hired attorney Joseph Carpino to represent him and that he had filed a
civil rights lawsuit against Olivito and Hershey in federal court and
wanted to discharge them.
On January 8, 2001, the trial court held a hearing on appellant’s
motion to discharge counsel. Appellant indicated again that he was
suing counsel in federal court. He also claimed that he had given his
attorneys a list of witnesses, but that in 16 months, neither his first
attorneys nor his new attorneys had contacted them and that his new
attorneys had “refused to contact them.” Olivito explained that many
of the witnesses that appellant had named were in Pakistan and that
appellant had not provided phone numbers to contact them. Both
attorneys told the trial court of their efforts to obtain witnesses and
comply with requests by appellant. The trial court concluded that
counsel was [sic] representing appellant diligently and therefore
overruled appellant’s motion to discharge them.
Also at the January 8, 2001 hearing, the court found that Carpino
could not serve as appellant’s counsel because he was not certified to
act as counsel in capital cases. The court overruled Carpino’s motion
to become appellant’s trial counsel.
Appellant reiterated his dissatisfaction with counsel at a January 11,
2001 suppression hearing. He also complained about counsel at the
outset of voir dire, as well as at the mitigation and sentencing
hearings.
42

Appellant relies on Smith v. Lockhart (C.A. 8, 1991), 923 F.2d 1314,
1321, citing Douglas v. United States (D.C. App. 1985), 488 A.2d
121, 136, in claiming that his federal lawsuit against appointed
counsel reflected a conflict between his interests and counsel’s.
Appellant contends that once he raised the issue of a conflict of
interest, the trial court was required to allow him to demonstrate that
the conflict “impermissibly imperil[ed] his right to a fair trial.” See
Cuyler v. Sullivan (1980), 446 U.S. 335, 348.
There are strong indications that appellant filed his federal lawsuit
simply to get his court-appointed attorneys discharged. Prior to trial,
the trial court held hearings regarding appellant’s complaints about
counsel on November 9, 2000, and January 8, 2001. Upon
considering the statements of appellant and counsel, the trial court
found no reason to replace counsel. At the conclusion of the
November 9 hearing, the trial court urged appellant to let his counsel
help him. At the conclusion of the January 8, hearing, the court
stated: “The court is comfortable that counsel has represented Mr.
Ahmed * * * diligently; that the difficulties which have arisen in this
case stem from what Mr. Ahmed himself pinpointed when he said
that he does not understand. And the allegations do not have firm
footing in law or in fact. The motion to discharge is overruled.” Nor
did the trial court find any conflict of interest that adversely affected
counsel’s performance. See Mickens v. Taylor (2002), 535 U.S. 162,
171-172. Under these circumstances, we will defer to the trial judge,
“who see[s] and hear[s] what goes on in the courtroom.” State v.
Cowans (1999), 87 Ohio St. 3d 68, 84.
We further note that courts “must be wary of defendants who employ
complaints about counsel as dilatory tactics or for another invidious
motive.” Smith v. Lockhart, 923 F.2d at 1321, fn.11, citing United
States v. Welty (C.A. 3 1982), 674 F.2d 185, 193-194.
Appellant continually complained about counsel. The trial court took
appellant’s complaints seriously and listened to all sides before it
determined that his complaints were not valid and that counsel should
remain as appellant’s attorneys. The federal lawsuit appears to have
been filed in an attempt to create a conflict so that his counsel would
be removed from the case, not a genuine grievance causing a true
conflict of interest. Moreover, after the trial court conducted
thorough inquiries into the difficulties between appellant and counsel,
it found that appellant’s complaints against counsel were not

43

substantiated. Nothing offered by appellant compels us to disturb
that ruling. See State v. Deal (1969), 17 Ohio St. 2d 17.
Appellant argues alternatively that even if there was no conflict of
interest, there was at least a total breakdown in the attorney-client
relationship that necessitated counsel’s removal. The trial court,
however, addressed appellant’s complaints concerning counsel’s
representation of him at two hearings as stated above. Upon
considering appellant’s motion for a new trial and his complaints
about counsel and claims of counsel’s ineffectiveness throughout
trial, the trial court held that “[h]ours of testimony [concerning
appellant’s disagreements with counsel] established that the grounds
alleged were not cogent or reliable.” In addition, the record reflects
many instances where appellant continued to confer with counsel
throughout the proceedings, thus belying his claim that there was a
total breakdown in the attorney-client relationship.
Since appellant did not substantiate his claims of a conflict of interest
and of a total breakdown of the attorney-client relationship, we
overrule his second proposition.
State v. Ahmed, 103 Ohio St. 3d 27, 30-33, 2004-Ohio-4190 at ¶¶ 24-36 (2004).
Ahmed’s task under the AEDPA is to demonstrate that the Ohio Supreme Court’s decision
above was contrary to or an unreasonable application of federal law as determined by the United
States Supreme Court, or based on an unreasonable determination of the facts in light of the
evidence before the court. 28 U.S.C. § 2254(d)(1) and (2). Instead of attempting that in any serious
manner, however, Ahmed has simply repeated nearly verbatim the arguments he presented in the
state court. That practice, disturbingly common in capital habeas corpus cases that come before this
Court, reveals a fundamental misunderstanding of the statutory limitations on federal habeas corpus.
The issue before the habeas court is not the same as the issue presented to the state court. The
question before the state court was whether there was a conflict of interest or a total breakdown of
communication between Ahmed and his trial counsel requiring reversal of his convictions. Here, the
question is whether the state court’s decision that there was not a conflict is either contrary to or an
44

unreasonable application of federal law as determined by the United States Supreme Court, or
whether the state court’s decision was based upon an unreasonable determination of the facts, given
the evidence before that court at the time of Ahmed’s trial, starkly different inquiries than the one
before the state court in the first instance. Basically cutting and pasting the claim as it was presented
to the state court into a habeas petition is consequently ill advised as it does not address the question
this Court must consider in habeas review. Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770,
785 (2011). That is true even in cases where the argument in the state court fairly presents the
federal constitutional claim. See Lamar v. Ishee, No. 1:04-cv-541, 2010 WL 5574467 at *23 (S.D.
Ohio, July 30, 2010) (Report and Recommendations, adopted in its entirety in Lamar v. Ishee, No.
1:04-cv-541, 2011 WL 110561 (S.D. Ohio Jan. 13, 2011)).
As the Sixth Circuit Court of Appeals has recognized, a claim that counsel labored under a
conflict of interest is at base a claim of ineffective assistance of counsel governed by Strickland v.
Washington, 466 U.S. 668 (1984). See Brooks v. Bobby, 660 F.3d 959, 963-64 (6th Cir. 2011).
There are some ineffective assistance of counsel contexts in which the United States Supreme Court
has directed that prejudice be presumed, one of which is that the attorney labored under an actual
conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980); Holloway v. Arkansas, 435 U.S.
475, 487-91 (1978). As that Court has also observed, however, the Holloway/Cuyler exception is
only clearly established in relation to a conflict of interest that arises from an attorney’s
representation of multiple concurrent or co-defendants in the same or separate proceedings. Mickens
v. Taylor, 535 U.S. 162, 174-76 (2002); Satterwhite v. Texas, 486 U.S. 249, 256-58 (1988); see also
Jalowiec v. Bradshaw, 657 F.3d 293, 314-15 (6th Cir. 2011), McElrath v. Simpson, 595 F.3d 624,
630-31 (6th Cir. 2010); Stewart v. Wolfenbarger, 468 F.3d 338, 350-54 (6th Cir. 2006); Gillard v.

45

Mitchell, 445 F.3d 883, 890-91 (6th Cir. 2006); Whiting v. Burt, 395 F.3d 602, 617-20 (6th Cir.
2005); McFarland v. Yukins, 356 F.3d 688, 705-09 (6th Cir. 2004); Moss v. United States, 323 F.3d
445, 460-61 (6th Cir. 2003); Smith v. Hofbauer, 312 F.3d 809, 814-16 (6th Cir. 2002); but see
Fautenberry v. Mitchell, 515 F.3d 614, 627-28 (6th Cir. 2008) (applying Cuyler where petitioner
claimed trial counsel labored under a conflict because he was a trustee for township where victim’s
body was found). Consequently, this Court must consider Ahmed’s claim that his trial counsel were
laboring under a conflict of interest, and that there was a total breakdown of the attorney-client
relationship under the standard set forth in Strickland, supra. Stewart, 468 F.3d at 351.
Success on a claim of counsel’s ineffectiveness depends upon the claimant’s ability to show
that counsel’s performance was objectively unreasonable, and that absent counsel’s deficient
performance, there is a “reasonable probability that . . . the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In the habeas context, the Supreme
Court has elaborated on the fit between Strickland and the AEDPA as follows:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s
standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim
on direct review of a criminal conviction in a United States district
court. Under [the] AEDPA, though, it is a necessary premise that the
two questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an incorrect
application of federal law.” Williams [v.Taylor, 529 U.S. 362,] . . .
410 [(2000)]. A state court must be granted a deference and latitude
that are not in operation when the case involves review under the
Strickland standard itself.
Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 785 (2011) (parallel citations omitted).

46

In his traverse, Ahmed devotes only one original paragraph to the argument that is actually
relevant to the question before this Court. It reads:
In this case, the Ohio Supreme Court found that Ahmed “did not
substantiate his claims of conflict of interest and of a total breakdown
of the attorney-client relationship.” Ahmed established that his
counsel were subject to a conflict of interest due to: (1) the depth and
breadth of the accusations lodged against them and (2) the filing of
the lawsuit. Ahmed further established that the conflict adversely
affected counsels’ [sic] performance in that, Counsel refused to meet
their client alone; Ahmed, to his detriment, refused to take the advice
of counsel; both counsel and Ahmed failed to provide each other with
much[-]needed information; and counsel failed to follow up on
important investigative leads supplied by Ahmed that were relevant
to putting on a case for mitigation.
(Traverse, Doc. No. 71 at PageID 1695.) That brief paragraph falls short of demonstrating that the
state court’s thorough decision was contrary to federal law or based upon an unreasonable
determination of the facts. Ahmed’s claim as it was presented in the state court and in this Court is
filled with statements that begin with “Ahmed accused . . .,” “Ahmed claimed . . .,” “Ahmed asserted
. . .,” “Ahmed believed . . .,” and the like (Appendix, Vol. 3 at 287-97; Petition, Doc. No. 35 at
PageID 199-207), but the Court notes that Ahmed’s belief or claim or assertion of something does
not establish it as fact upon which the state court may act, or this Court rely.
That Ahmed lodged numerous and far-fetched accusations against his trial counsel reflects
more on his own inability to cooperate with counsel than on counsel’s ability to represent him
adequately. Ahmed’s filing of the lawsuit against his trial counsel in federal court was determined
by the state court to likely have been for the very purpose of creating a conflict of interest in hopes
of having them removed from his case, and Ahmed does not explain how that determination was
unreasonable under federal law or based upon an unreasonable determination of the facts as they
existed at the time of the state court’s decision.
47

As for prejudice, Ahmed deceptively states that his “Counsel refused to meet their client
alone,” implying that he was, after that point, never alone with his two trial counsel. In reality, it
was only attorney Hershey who refused to meet with Ahmed without co-counsel Olivito present.
(Trial Tr., Vol. 3 at 42-54.) Hershey explained to the trial court that he had decided not to meet with
Ahmed alone again because Ahmed took things he said out of context and made unfounded
accusations against him. Id. at 54. There is nothing in the record indicating whether Hershey stuck
by his decision to meet with Ahmed only if Olivito could also be present for the remainder of their
representation of Ahmed. Even assuming Hershey did follow through, however, Ahmed does not
address how Hershey’s decision demonstrates a conflict of interest, a total breakdown of the
attorney-client relationship, or, indeed, any error of a constitutional dimension. Nor can counsel be
faulted for Ahmed’s decision not to follow their advice.
Ahmed also claims he and his counsel failed to provide each other with information vital to
the defense. Counsel had no control over what information Ahmed chose to share with them, and
Ahmed does not identify with any specificity what other documents or information was withheld
from him by his counsel. Ahmed directs the Court to the transcript of a January 8, 2001, hearing in
which Ahmed appears to be arguing to the trial court that his counsel kept a search warrant from him
and that “there were some other documents, also. It was not only the warrant which was given to
them.” (Transcript of January 8, 2001, Hearing, Trial Tr., Vol. 4 at 29.) The significance of the
warrant is not explained, and the “other documents” are not even identified, nor is it indicated where
in the record any of those documents might be found. Ahmed also claims that his trial counsel failed
to contact individuals whose names he had provided to them as possible witnesses. After listening to
trial counsel detail the steps they had taken to obtain witnesses and comply with Ahmed’s requests,

48

the trial court concluded that counsel’s performance was not deficient. State v. Ahmed, 103 Ohio St.
3d 27, 31, 2004-Ohio-4190 at ¶ 28 (2004). Ahmed merely repeats the arguments he made on direct
appeal in the state court and makes the conclusory statement that counsel failed to “follow up on
important investigative leads” he supplied, attempting to establish that the alleged conflict adversely
affected counsel’s performance. (Traverse, Doc. No. 71 at PageID 1695.) This he has failed to
accomplish. He has not overcome the deference and latitude due the state court’s decision in habeas
corpus review, considerations that are not part of a straight application of the Strickland standard.
Harrington, 131 S.Ct. at 785.
To sum up, Ahmed has not demonstrated that the Ohio Supreme Court’s decision on his
conflict-of-interest/breakdown-of-attorney-client-relationship claim was contrary to federal law as
determined by the United States Supreme Court, or that the state court’s decision was based upon an
unreasonable determination of the facts in light of the evidence presented to the court. Accordingly,
his claim that he was deprived of effective representation due to his trial counsel’s conflict of
interest and a total breakdown of the attorney-client relationship should be denied.

Third Ground for Relief
In his third ground for relief, Ahmed contends that he was denied his right to represent
himself at trial.6 (Petition, Doc. No. 35 at PageID 214-220.) Respondent acknowledges the claim
has been properly preserved for habeas corpus review, but argues it is nevertheless meritless.
(ROW, Doc. No. 61 at PageID 977-980.) In his traverse, Ahmed repeats the arguments made in his

49

petition, which to a large extent are the same arguments made in the state court on direct appeal
(Appendix, Vol. 3 at 426-28), then asserts that the Ohio Supreme Court’s decision rejecting the
claim was contrary to federal law. (Traverse, Doc. No. 71 at PageID 1696-1701.)
Respondent is only partially correct in stating that Ahmed raised the instant claim on direct
appeal in the state court. There, Ahmed’s claim that he was denied his right to proceed pro se was
explicitly limited to the mitigation phase of his trial (Appendix, Vol. 3 at 426-28), whereas here, the
claim has expanded to include both phases of the trial (Petition, Doc. No. 35 at PageID 214-17).
Although a colorable argument could be made that Ahmed procedurally defaulted the part of the
instant claim relating to the guilt phase of his trial, Respondent has not suggested that any part of
Ahmed’s claim has been defaulted.
Generally, procedural default is an affirmative defense that must be asserted by a respondent
at the earliest opportunity or it will be waived. Trest v. Cain, 522 U.S. 87, 89 (1997). While a
federal court is not required to sua sponte invoke procedural default when a respondent has failed to
do so, there is no prohibition against doing so, either. Id. at 89-90; Sowell v. Bradshaw, 372 F.3d
821, 830 (6th Cir. 2004); Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000). This Court has
been reluctant to raise the defense sua sponte except in cases where an expressly defederalized claim
was presented to the state courts. See Sheppard v. Bagley, 604 F.Supp.2d 1003, 1008-1013 (S.D.
Ohio 2009). That is not the situation here, and because of the seriousness of the penalty Ahmed
faces, the Court will exercise its discretion not to raise the procedural defense sua sponte.

6

Elsewhere in his Petition, Ahmed claims he was incompetent even to stand trial, an argument that seems
particularly at odds with his claim here that he was capable of acting as his own attorney at his capital trial,
especially since Ahmed argued his incompetence just eight days prior to the start of the mitigation phase of his trial.
The significance of the timing of Ahmed’s initial claim of incompetence will become apparent in the Court’s
discussion of the instant ground for relief.

50

Where a respondent does not advance a procedural default defense respecting a habeas claim
never presented to the state court, a federal court has an opportunity to address the claim de novo.
“If deference to the state court is inapplicable . . ., we ‘exercise our independent judgment’ and
review the claim de novo.” McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), quoting Hain v.
Gibson, 287 F.3d 1224, 1229 (10th Cir. 2002). Accordingly, to the extent Ahmed argues that he was
denied his right to represent himself in the guilt phase of his capital trial, this Court will address his
claim de novo. That part of his claim relating to the mitigation phase of his trial, of course, will be
considered under the familiar standard set forth in the AEDPA.
Ahmed states that he repeatedly attempted to waive his right to counsel in the pre-trial stage
of his trial, but that the trial court consistently denied his request. (Petition, Doc. No. 35 at PageID
214.) He cites to pages eight through eighteen of the transcript of a January 2, 2001, hearing as
supporting his claim, but those pages reveal that what Ahmed was actually seeking is discharge of
his appointed counsel, Hershey and Olivito, because he had retained private counsel, Carpino. (Trial
Tr., Vol. 3 at 8-18.) Carpino incongruously stated he wanted to be appointed as a third counsel in
addition to Hershey and Olivito and that he wanted to be appointed as a friend of the court. Id. at 8.
Ahmed suggested that he could represent himself pro se as well as having Carpino retained as his
counsel, in other words, he requested hybrid representation, which the court denied. Id. at 11-12.
Requesting hybrid representation is not the same as requesting to represent one’s self, and Ahmed’s
argument that he requested pro se status within the pages of the transcript he cited is disingenuous.
Next, Ahmed claims he asserted his right to proceed pro se in a September 6, 2000, hearing.
(Petition, Doc. No. 35 at PageID 215.) The particular quotation Ahmed cites for support of his
argument, however, was not in response to Ahmed’s request to proceed pro se, but rather in response

51

to Ahmed’s handing to his attorneys a “Motion to permit use of objections not timely filed under
Criminal Rule 12(G).” (September 6, 2000, Hearing,Trial Tr., Vol. 3 at 18-20.) Other motions
addressed in that hearing involved Ahmed’s requests for individual voir dire, the exclusion of certain
photographs, to view the crime scene prior to its being cleaned up, to obtain an investigator, to
compel discovery, to use a particular interview room at the jail when meeting with his attorneys, and
to have his handcuffs removed during meetings with his attorneys. Id. at 1-20. Conspicuously
absent, given Ahmed’s argument, is any motion to proceed pro se. Once again, the record reveals
the falsity of Ahmed’s assertions that he requested that he be permitted to represent himself in his
capital trial.
Ahmed claims he also attempted to assert his right to self-representation in a January 8, 2001,
hearing. (Petition, Doc. No. 35 at PageID 215.) The page of the hearing transcript cited by Ahmed
instead shows that at that time Ahmed requested that his appointed counsel be discharged because he
was unhappy with their representation for various reasons. (January 8, 2001, Hearing, Trial Tr., Vol.
4 at 4.) Ahmed states that when he “attempted to explain his situation to the court, the Judge refused
to listen to his statements,” citing page twenty-seven of the same hearing transcript. (Petition, Doc.
No. 35 at PageID 215.) Again, Ahmed quotes the trial court completely out of context. The trial
court did instruct Ahmed to “be quiet now,” but it was in response to Ahmed’s interruption after the
court asked Ahmed’s counsel a question about how many photographs had been turned over to the
defense by the prosecutor in discovery, something that has nothing whatsoever to do with any desire
Ahmed may have had to represent himself.

52

Ahmed also states that he filed a motion to proceed pro se on January 19, 2001, but provides
this Court no citation to the record where the motion might be found. This Court is not required to
search the record in order to find support for a habeas petitioner’s claims.
Given that Ahmed has misrepresented the record to this Court as noted above, and has failed
to indicate where in the record his January 19, 2001, motion to proceed pro se might be found, there
is no support for his contention that he requested self representation prior to or during the guilt phase
of his trial. The only pretrial or guilt-phase request this Court finds that even mentions pro se
representation is Ahmed’s misuse of the term “pro se” when he was really requesting hybrid
representation. (January 2, 2001, Hearing, Trial Tr., Vol. 3 at 11.) Thus, Ahmed’s claim that he was
denied his right to represent himself during the guilt phase of his trial rests on facts that are not facts
at all, and are instead figments at best, and outright untruths at worst. Consequently, he has not
demonstrated entitlement to habeas corpus relief with regard to that part of his third ground for
relief.
At the outset of the mitigation phase of Ahmed’s trial, he repeatedly requested to waive his
right to appointed counsel and to represent himself for the remainder of his trial. (Trial Tr., Vol. 9 at
10, 33, 34, 35.) The trial judge advised him that he would be required to follow the same procedural
rules as attorneys, that she would not grant a continuance, and that he would not have a lot of time to
talk with the mitigation witnesses. Id. at 11. She also warned Ahmed that he does not possess the
same knowledge as do his attorneys respecting the available penalties, the mitigating factors, the
aggravating circumstances, or the weighing process. Id. at 12. She reminded Ahmed that he had
already been found in contempt of court several times during his trial, and she cautioned that if he
engaged in disorderly or contemptuous conduct, she would remove him from his own case. Id. at

53

11. As the judge reviewed the proposed jury instructions with Ahmed, he rustled papers, and
interrupted the judge to question whether the court composed the proposed instructions or if the
prosecutor had done so. Id. at 23-25. The trial court advised him that he cannot question the court
and that if it was his intent to represent himself and thwart the rules of procedure, she would not
permit him to proceed pro se. Id. at 25. Ahmed then asked about the author of the jury instructions
again, to which the court responded that if Ahmed were to ask another question contrary to the rules,
she would hold him in contempt of court. Id. Ahmed continued to interrupt the judge and objected
to Hershey and Olivito’s continued presence in the courtroom since he had decided to represent
himself. Id. at 29, 33. The judge asked Ahmed again if he wanted his appointed counsel discharged
and to represent himself, to which Ahmed responded by repeating his persistent complaint of having
been denied his right to hire counsel of his choice. Id. at 34. The court then overruled Ahmed’s
motion, stating it was false and that the issue of Ahmed’s dissatisfaction with his appointed counsel
had been dealt with previously. Id. at 35. The court continued to explain self-representation to
Ahmed, however, and responded to his complaint about Hershey and Olivito remaining in the
courtroom by saying that they would be there for Ahmed to consult should he wish to do so. Id. at
33, 36-37. Finally, the trial court indicated to Ahmed that if he wanted to proceed pro se, he had to
sign a form acknowledging his rights by a time certain that day. Id. at 37. That time came and went
without Ahmed’s signing the form acknowledging his rights. Id. at 38. Instead, Ahmed composed a
written addendum to the form contending he was denied his constitutional rights to a continuance
and to self-representation without the presence of his previously appointed counsel. Id. at 38, 41.
When the trial court questioned Ahmed as to whether he agreed that he was advised of his rights to
self-representation, Ahmed argued that advisement means nothing when the rights are not given. Id.

54

The court found that Ahmed had not effectively signed the acknowledgement of rights form and
overruled his motion to proceed pro se. Id. at 43.7
As acknowledged by Respondent, Ahmed did present this part of his claim to the state
supreme court on direct appeal. (ROW, Doc. No. 61 at PageID 977-80; Appendix, Vol. 3 at 42628.) The Ohio Supreme Court rejected the claim, reasoning as follows:
[A]ppellant submits that the trial court deprived him of due process
and the right to conduct his own defense when the court declined to
accept his waiver of counsel at the beginning of the penalty phase.
Appellant contends that Faretta v. California (1975), 422 U.S. 806,
guarantees him the right to waive assistance of counsel and proceed
pro se.
If a trial court denies the right of self-representation, when properly
invoked, the denial is per se reversible error. State v. Reed (1996), 74
Ohio St.3d 534, 535, 660 N.E.2d 456, citing McKaskle v. Wiggins
(1984), 465 U.S. 168, 177. However, in this case, the right of selfrepresentation was not properly invoked. See State v. Vrabel, 99
Ohio St. 3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 49-53.
At the beginning of the penalty phase, appellant gave the trial court a
pro se motion “to exercise his right to self representation under the
circumstances and thus hereby discharge the appointed counsels.”
The court explained to appellant the right that he was waiving and
what representing himself would entail. The court then gave
appellant a docket entry to sign that stated: “Being fully advised of
my rights, I hereby elect to represent myself.” Appellant signed the
form but also wrote on the docket entry: “I have not been allowed
the rights under Constitution and as given in Constitution and
Crim.R. 10 and 44 to continuance and representation by selection
7

In his petition and traverse, Ahmed asserts that he signed the acknowledgment of rights form, contrary to the
trial court’s in-court findings, and he refers the Court to Volume 9, Page 38, of the trial transcript and to “Judge’s Ex. 1.”
(Petition, Doc. No. 35 at PageID 217, 218; Traverse, Doc. No. 71 at PageID 1698, 1699.) The cited page of the
transcript, however, indicates that Ahmed did not sign the form, and no additional information about the “Judge’s Ex. 1,”
such as where it might be found in the record before this Court, is provided. Taking a guess, the Court has nevertheless
reviewed that part of the Appendix that covers the time period from the rendering of the guilt-phase verdicts through
judgment, imposition of the death sentence, and Ahmed’s notice of appeal to the state court of appeals (Appendix, Vol. 9
at 254-478) and found no document marked as “Judge’s Ex. 1,” nor did it find any document purporting to be the
acknowledgment of rights form at issue.

55

counsel and even to represent myself alone without the presence of
court appointed counsels to whom I have sued in the civil case C2001-0013 in Federal Court. There has been no defense, no defense
witnesses and almost no investigation to justify 16 months of delay or
period before trial and --.”
The trial court then addressed appellant and repeatedly asked him
whether he understood his rights and wanted to waive them.
Appellant did not give a clear answer. The court then held: “When I
read the comments that you have written on the docket entry, I find
that you have failed to effectively sign the entry that was prepared by
the court; that the soliloquy [sic] has failed and that you have not, in
fact, elected to undertake self representation. We will proceed.
Counsel will represent you.”
The trial court correctly found that appellant did not unequivocally
and explicitly invoke his right to self-representation. See State v.
Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, 722 N.E.2d 81, ¶ 3738. “The constitutional right of self-representation is waived if it is
not timely and unequivocally asserted.” Jackson v. Ylst (C.A.9,
1990), 921 F.2d 882, 888; see, also, United States v. Frazier-El
(C.A.4, 2000), 204 F.3d 553, 558 (assertion of the right of selfrepresentation “must be * * * clear and unequivocal”).
Given these circumstances, appellant’s . . . proposition of law is not
well taken.
State v. Ahmed, 103 Ohio St. 3d 27, 44-45, 2004-Ohio-4190 ¶¶ 102-108 (2004) (some parallel
citations omitted).
The United States Supreme Court has recognized a criminal defendant’s right to represent
himself in a state trial, so long as that election is made voluntarily and intelligently. Faretta v.
California, 422 U.S. 806 (1975). The right to represent one’s self is not absolute, however,
Criminal defendants may not use the courtroom to engage in “deliberate disruption . . . [or] serious
and obstructionist misconduct,” id. at 834 n.46, and must be “able and willing abide by the rules of
procedure and courtroom protocol,” McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). “[T]he
government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the
56

defendant’s interest in acting as his own lawyer.” Martinez v. Court of Appeal of California, Fourth
Appellate Dist., 528 U.S. 152, 162 (2000), see also Sell v. United States, 539 U.S. 166, 180 (2003)
(observing that “the Government has a concomitant, constitutionally essential interest in assuring
that the defendant’s trial is a fair one”). Furthermore, any waiver of the right to counsel, for that is
what the decision to represent one’s self is, must be knowing, intelligent, and unequivocal. Faretta,
422 U.S. at 835. When the right to proceed pro se is properly invoked and a trial court denies the
request, the denial is per se reversible error. McKaskle, 465 U.S. at 177 n.6.
Ahmed has once again merely cut and pasted the arguments made to the Ohio Supreme Court
on direct appeal into his habeas petition and traverse, and devotes only two additional paragraphs to
the question relevant to this Court’s task. There, he argues that the Ohio Supreme Court’s finding
that Ahmed did not unequivocally and explicitly invoke his right to represent himself was an
unreasonable application of North Carolina v. Butler, 441 U.S. 369, 375-76 (1979) (stating that an
“explicit statement of waiver is not invariably necessary to support a finding that the defendant
waived the right . . . to counsel”). In Butler, however, the issue was whether the defendant had
waived his Fifth Amendment Miranda right to the presence of a lawyer during his interrogation, id.
at 374, a situation distinguishable from Ahmed’s, and Ahmed does not assert a violation of his Fifth
Amendment right in the instant ground for relief. Ahmed also argues that the trial court improperly
required his waiver to be in writing. (Traverse, Doc. No. 71 at PageID 1701.) But what the trial
court did is not the primary focus of this Court. Instead, it is how the Ohio Supreme Court decided
the constitutional propriety of the trial court’s handling of the matter that is at issue. Harrington v.
Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 785 (2011). That court merely concluded that that the

57

trial court correctly found Ahmed had not equivocally and explicitly8 invoked his right to represent
himself in the mitigation phase of his trial. Ahmed, 103 Ohio St. 3d at 45, 2004-Ohio-4190 at ¶ 107.
Significantly, the state supreme court acknowledged that Ahmed actually signed the written request
to proceed pro se, Ahmed, 103 Ohio St. 3d at 44, 2004-Ohio-4190 at ¶ 105, contrary to the trial
court’s statement on the record that he had not (Trial Tr., Vol. 9 at 38).
In habeas corpus, the petitioner’s burden “must be met by showing there was no reasonable
basis for the state court to deny relief.” Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770,
784 (2011). Both the trial court and the Ohio Supreme Court concluded that Ahmed had not
effectively invoked his right to self representation, presumably because of his handwritten addendum
to the form provided to Ahmed by the trial court. This Court need not agree with the state court on
that question to deny Ahmed’s claim for habeas corpus relief, however. “[A]n unreasonable
application of federal law is different from an incorrect application of federal law.” Williams v.
Taylor, 529 U.S. 362, 410 (2000). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington, 131 S.Ct. at 786, quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004). This Court does not disagree with the state court’s decision, but even if it were to do so,
Ahmed has not demonstrated that only an unreasonable jurist would agree with the decision. In
addition, another basis for denying Ahmed’s request to proceed pro se, perhaps even stronger than
the first, is apparent in the record.
As noted above, a defendant wishing to represent himself may not use the right for the
purpose of disrupting the proceedings, and must be willing to follow courtroom procedure and

8

An explicit waiver need not be in writing, although that is the form the trial court preferred in Ahmed’s case.

58

protocol. Faretta, 422 U.S. at 834 n.46; United States v. Lopez-Osuna, 232 F.3d 657, 665 (9th Cir.
2000) (holding defendant’s request to represent himself may be denied when he is unable or
unwilling to adhere to rules of procedure and courtroom protocol); United States v. Frazier-El, 204
F.3d 553, 559 (4th Cir. 2000) (stating that “the Faretta right to self-representation is not absolute,
and the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs
the defendant’s interest in acting as his own lawyer”); United States v. Brock, 159 F.3d 1077, 1079
(7th Cir. 1998) (finding that “when a defendant’s obstreperous behavior is so disruptive that the trial
cannot move forward, it is within the trial judge’s discretion to require the defendant to be
represented by counsel”). Ahmed had already been cited for contempt of court before he requested
to proceed pro se in the mitigation phase of his trial. In numerous hearings, Ahmed repeatedly
interrupted the trial judge, answered questions directed to others, refused to move on in his argument
when instructed to do so by the court, and used contemptuous language directed at his attorneys and
the court (Hearing of January 2, 2001, Trial Tr., Vol. 3 at 18, 19; Hearing of January 8, 2001, Trial
Tr., Vol. 4 at 11, 20, 27, 30-31, 33, 37, 42, 43, 45, 46, 48, 49, 52, 54, 57, 59, 73-74; Hearing of
January 11, 2001, id. at 86, 87; Hearing of February 1, 2001, Trial Tr., Vol. 9 at 11), demonstrating a
persistent inability or unwillingness to adhere to the rules of procedure and courtroom protocol. As
the trial judge observed, she had been “heroically patient” with Ahmed and his numerous and
repeated complaints about them, providing him with multiple opportunities at hearings to air his
grievances about his appointed attorneys, his treatment at the jail, and the trial judge herself.
(Hearing of January 11, 2001, Trial Tr., Vol. 4 at 85.) Still, she found it necessary to hold Ahmed in
contempt of court. (Hearing of February 1, 2001, Trial Tr., Vol. 9 at 11.) In addition, in presenting
his request to proceed pro se, Ahmed again breached protocol by arguing about the judge’s decision

59

that appointed counsel would become stand-by counsel should Ahmed represent himself,
challenging the judge on the origin of the proposed jury instructions to the point of being threatened
with being held in contempt of court again, interrupting the judge, and arguing with the judge about
the difference between being advised of his rights and being given his rights. (Hearing of February
1, 2001, Trial Tr., Vol. 9 at 12, 25, 33, 36, 38-39.) Thus, even if the state court’s finding that Ahmed
had not effectively invoked his right to self representation were objectively unreasonable, Ahmed’s
demonstrated unwillingness to adhere to the rules of court and to conduct himself within the
parameters of courtroom protocol would provide a solid ground upon which to deny his right to
represent himself in the mitigation phase of his trial.
Ahmed has not demonstrated that the Ohio Supreme Court’s decision that he had not
unequivocally invoked his right to self-representation was contrary to or an unreasonable application
of clearly established federal law as determined by the United States Supreme Court. Consequently,
his third ground for relief should be denied.

Fourth Ground for Relief
In his fourth ground for relief, Ahmed contends he was denied the effective assistance of
counsel in all phases of his capital trial. (Petition, Doc. No. 35 at PageID 220-46.) Respondent does
not advance the procedural default defense, and instead argues that the Ohio Supreme Court’s
decision was neither unreasonable nor contrary to federal law. (ROW, Doc. No. 61 at PageID 98093.) In his traverse, Ahmed reproduces twenty pages from his petition (which in turn is almost
entirely cut and pasted from his appellate brief on direct appeal to the Ohio Supreme Court), and
devotes slightly more than one page of argument to the issue before this Court. (Traverse, Doc. No.

60

71 at PageID 1702-24.) There, he contends that the Ohio Supreme Court’s decision is contrary to
the federal law set forth in Strickland v. Washington, 466 U.S. 668 (1984), because the court failed
to consider the allegations of attorney ineffectiveness cumulatively in determining whether Ahmed
had suffered prejudice due to his counsel’s substandard performance. (Traverse, Doc. No. 71 at
PageID 1723.)
Ineffective assistance of counsel claims are governed by the law set forth in Strickland v.
Washington, 466 U.S. 668, 693 (1984), which holds that to warrant reversal of a conviction or death
sentence, a defendant must show deficient performance on the part of his counsel, and prejudice
therefrom. As previously noted in somewhat abbreviated fashion (see Second Ground for Relief,
supra), the United States Supreme Court has recently summarized the interplay between Strickland
and federal habeas corpus (and pointed out why cutting and pasting from a state court appellate brief
is ill advised in habeas corpus) as follows:
Federal habeas relief may not be granted for claims subject to [28
U.S.C.] § 2254(d) unless it is shown that the earlier state court’s
decision “was contrary to” federal law then clearly established in the
holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S.
362, 412 [(2000)]; or that it “involved an unreasonable application
of” such law, § 2254(d)(1); or that it “was based on an unreasonable
determination of the facts” in light of the record before the state
court, § 2254(d)(2).
...
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s
standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim
on direct review of a criminal conviction in a United States district
court. Under [the] AEDPA, though, it is a necessary premise that the
two questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an incorrect
61

application of federal law.” Williams, supra, at 410. A state court
must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.
...
If this standard is difficult to meet, that is because it was meant to be.
As amended by [the] AEDPA, § 2254(d) stops short of imposing a
complete bar on federal court relitigation of claims already rejected in
state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664 (1996)
(discussing [the] AEDPA’s “modified res judicata rule under § 2244).
It preserves authority to issue the writ in cases where there is no
possibility fair-minded jurists could disagree that the state court’s
decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard
against extreme malfunctions in the state criminal justice systems,”
not a substitute for ordinary error correction through appeal. Jackson
v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in
judgment). As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing
law beyond any possibility for fair-minded disagreement.
Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 785-87 (2011) (parallel citations omitted).
In his petition, Ahmed makes no mention of the Ohio Supreme Court’s decision relating to
his sixth proposition of law on direct appeal where he presented his ineffective assistance of trial
counsel claim. (Doc. No. 35 at PageID 220-46.) He does not allege that the state court’s application
of federal law to his claim was unreasonable, or that the court’s determination of the facts in
rejecting his claim was unreasonable. Instead, Ahmed saved such allegations for his traverse. (Doc.
No. 71 at PageID 1722-23.) Technically, then, Ahmed has not stated a claim upon which habeas
corpus relief can be granted. See Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the
United States District Courts. Nevertheless, because the claim is readily decided, this Court will

62

consider the sparse but relevant arguments Ahmed makes in his traverse as if they were presented in
his petition.
Ahmed alleges that the Ohio Supreme Court failed to consider the cumulative effect of the
instances of his counsel’s ineffectiveness as required by Strickland. (Traverse, Doc. No. 71 at
PageID 1723.) After considering each allegation of ineffective assistance made by Ahmed,
however, a discussion comprising some twenty-four paragraphs, the Ohio Supreme Court concluded
with the following paragraph:
Last, appellant asserts that the cumulative effect of errors and
omissions by trial counsel infringed his Sixth Amendment right to
effective assistance of counsel. However, appellant received a fair
trial, and any error was nonprejudicial. “Such errors cannot become
prejudicial by sheer weight of numbers.” State v. Hill, 75 Ohio St. 3d
[195,] . . . 212, 661 N.E.2d 1068 [(1996)]; State v. Braden, 98 Ohio
St. 3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 123 [(2003)]. For all
the foregoing reasons, we reject appellant’s sixth proposition.
Ahmed, 103 Ohio St. 3d 27, 55, 2004-Ohio-4190 at ¶ 165. Ahmed contends that the court only
cumulatively evaluated the performance prong of Strickland and ignored the prejudice prong in the
quoted paragraph (Traverse, Doc. No. 71 at PageID 1723), but that claim is contradicted by court’s
specific language therein. What is the “effect of errors and omissions” referred to in the first
sentence of the paragraph if not prejudice? Thus, when the court addressed the cumulative “effect of
errors and omissions,” it was determining whether the errors and omissions alleged by Ahmed
prejudiced him. His claim that the state court failed to consider the cumulative prejudicial effect of
the many alleged instances of ineffective assistance of his trial counsel is factually incorrect.
Ahmed also suggests that “[e]ven if the Ohio Supreme Court did consider the errors of
counsel collectively,” the court applied the wrong standard in assessing any prejudice from trial
counsel’s errors. (Traverse, Doc. No. 71 at PageID 1723.) Ahmed argues that “the test to be
63

employed is whether the result or outcome was worthy of confidence – not whether ‘any error
[singular]9 was prejudicial,” citing the paragraph quoted above from the Ohio Supreme Court’s
decision. Id. Ahmed goes into no more detail than that.
Strickland held that “[t]he defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S.
at 694. While the Ohio Supreme Court did not use Strickland’s language verbatim when considering
whether the cumulative effect of the alleged ineffectiveness warranted relief, it did conclude that
Ahmed’s trial was a fair one. Ahmed does not challenge that conclusion, nor does he explain how it
conflicts with the standard set forth in Strickland, and this Court finds that it does not.
Ahmed has failed to show that his trial counsel provided him ineffective assistance at any
time prior to or during his trial. Accordingly, his fourth ground for relief should be denied.

Fifth Ground for Relief
Next, Ahmed contends his appellate counsel provided ineffective assistance during his direct
appeal to the Ohio Supreme Court. (Petition, Doc. No. 35 at PageID 246-55.) Respondent argues
the claim is both procedurally defaulted and meritless. (ROW, Doc. No. 61 at PageID 993-95.)
Ahmed’s reply to Respondent’s procedural default defense is perplexing. First, he states that
prior to his trial he had asked the trial court to allow him to appeal his appointed counsel’s waiver of
his speedy trial right. (Traverse, Doc. No. 71 at PageID 1724.) The connection between that pretrial

9

The Court notes that Ahmed inappropriately inserted the bracketed word into the state court’s statement,
substantially changing the meaning of the court’s words.

64

request and Ahmed’s claim here that his appellate counsel were ineffective is a complete mystery to
this Court.
Next, he contends he twice raised “this claim” pro se in post-conviction, and again
references a violation of his right to a speedy trial. Id. There are a couple of problems with that
argument. First, “this claim” concerns a claim of ineffective assistance of appellate counsel, not
speedy trial rights, and second, ineffective assistance of appellate counsel claims can only be
brought in Ohio by filing an application to reopen a direct appeal, and cannot be brought in a postconviction petition. State v. Murnahan, 63 Ohio St. 3d 60 (1992).
Ahmed also contends he sought removal of his appellate counsel for failing to raise valid
arguments on direct appeal, but that his request was denied by the Ohio Supreme Court. (Traverse,
Doc. No. 71 at PageID 1725.) He directs the Court’s attention to a procedural default argument
made in his first ground for relief in these proceedings, but the argument to which he refers, in its
entirety, reads as follows:
(1)(B)(4)

The Ohio Supreme Court addressed this claim on its
merits when it denied the ‘motion to disqualify and
remove public defender’s office representation of
Appellant.”
Ahmed filed a motion in the Ohio Supreme Court to
remove the public defender. (Apx. Vol. 3, pp. 223243). Throughout that motion Ahmed detailed the
efforts of Belmont County Courts to deny him his
right to counsel of choice. The motion was denied on
its merits. (Apx. Vol. 3, pp. 244). As a consequence,
this claim is exhausted and not procedurally
defaulted.

(Traverse, Doc. No. 71 at PageID 1652.) Again, this argument is unrelated to the procedural posture
of the instant ground for relief in which he argues the ineffectiveness of his appellate counsel.

65

Equally confounding is Ahmed’s assertion that he raised “this ground” in his application to reopen
his direct appeal as his second proposed proposition of law. Id. at PageID 1725. Turning to that
document, the Court finds that it, too, concerns the alleged deprivation of Ahmed’s right to a speedy
trial. (Appendix, Vol. 5 at 74-75.)
Ahmed acknowledges that his application to reopen his direct appeal was denied by the state
court on timeliness grounds, and directs the Court to another section of his procedural argument in
his first ground for relief. (Traverse, Doc. No. 71 at PageID 1725.) There, Ahmed argues that the
state court’s denial of his application on timeliness grounds was not a procedural default of the
claims contained in the application. Id. at PageID 1652-65. In disputing Respondent’s assertion of
the procedural default defense, Ahmed argues that because the Ohio Supreme Court dismissed his
application to reopen his direct appeal on a procedural ground, specifically timeliness, it did not
adjudicate the merits of his ineffective assistance of appellate counsel claim, hence the claim is
amenable to de novo review by this Court. (Traverse, Doc, No. 71 at 1730.) Ahmed’s ultimate
conclusion, that the claim is subject to de novo review, is correct, but the path he takes to arrive at it
is impossible to follow. Perhaps the Court can clarify the course.
The procedural default defense in habeas corpus is described by the United States Supreme
Court as follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent 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.

66

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th
Cir. 2000). That is, a petitioner may not raise in federal habeas a federal constitutional claim he
could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 110
(1982); Wainwright v. Sykes, 433 U.S. 72, 80 (1977). “[A]bsent a showing of cause and prejudice,
‘a federal habeas corpus petitioner who fails to comply with a state’s rules of procedure waives his
right to federal habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000) quoting
Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986);
Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Most of Ahmed’s argument, then, appears to support rather than defeat Respondent’s
assertion of the procedural default defense. He acknowledges that there is a procedural rule
applicable to his application to reopen his direct appeal and that the state court enforced the rule
against him, conceding the first and second prongs of Maupin, respectively. See Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986). If the rule is an “independent and adequate” state ground it meets
the requirement of Maupin’s third prong, and if Ahmed has failed to demonstrate cause and
prejudice the fourth Maupin prong is satisfied, which will result in foreclosure of federal habeas
corpus review on the instant ground for relief. Id.
The Supreme Court has observed that if the state court decision indicates clearly and
expressly that it is based upon a ground that is separate and independent of federal law, a federal
habeas court is not to address the merits of the claim. Florida v. Powell, 559 U.S. 50, ___, 130 S.Ct.
1195, ___ (2009), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). To be adequate, the state
procedural rule must be “firmly established and regularly followed” by the state court at the time it

67

was applied. Beard v. Kindler, 558 U.S. 53, ___, 130 S.Ct. 612, 617-18 (2009), quoting Lee v.
Kemna, 534 U.S. 362, 376 (2002).
This Court finds only two capital cases in which the Ohio Supreme Court enforced the
timeliness requirement contained in the rule governing applications to reopen direct appeals prior to
the state court’s enforcement of the provision in Ahmed’s case. See State v. Bryan, 103 Ohio St. 3d
1490, 2004-Ohio-5605 (Oct. 27, 2004)(table); State v. Cassano, 103 Ohio St. 3d 1475, 2004-Ohio5405 (Oct. 13, 2004)(table). Although the applications in both of those cases were denied expressly
on timeliness grounds, they were denied just two months before Ahmed filed his application to
reopen his direct appeal, and the state court applied the rule in Ahmed’s case less than five months
after Bryan and Cassano. (Appendix, Vol. 5 at 72, Application to Reopen filed December 20, 2004;
344, Entry Denying Application to Reopen filed March 2, 2005.) Two cases so close in time to
Ahmed’s application to reopen do not suffice to establish the state rule on timeliness as one that was
firmly established and regularly followed in capital cases at the time the rule was applied in
Ahmed’s case. That is not to say that two or three cases might not signal a “reversal of practice”
with regard to the timeliness requirement, Franklin v. Anderson, 434 F.3d 412, 421 (6th Cir. 2006),
but the critical period of time to consider when determining whether a state has a firmly established
and regularly followed procedural rule is at the time it was applied. So even if the state supreme
court consistently enforced the timeliness rule ever after Ahmed’s case, it would not establish that
the rule was firmly established and regularly followed when it was applied to Ahmed’s application
to reopen. In answering that question, this Court has only Bryan and Cassano to consider.
Accordingly, the rule relied upon by the state court in dismissing Ahmed’s application to reopen his
direct appeal was not independent and adequate as required to effect a procedural default in federal

68

habeas corpus proceedings. That conclusion means this Court must address the merits of Ahmed’s
ineffective assistance of appellate counsel claim de novo.10 McKenzie v. Smith, 326 F.3d 721, 727
(6th Cir. (2003).
Ohio law provides that an individual convicted of a capital offense has an appeal as a matter
of right to the Ohio Supreme Court. Ohio Rev. Code § 2929.05(A); see also Ohio Const. Art. IV, §
2. “A first appeal as of right . . . is not adjudicated in accord with due process of law if the appellant
does not have the effective assistance of an attorney.” Evitts v. Lucey, 469 U.S. 387, 396 (1985).
Ineffective assistance of appellate counsel claims are governed by the same Strickland standard as
claims of ineffective assistance of trial counsel. Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir.
2010), citing Smith v. Robbins, 528 U.S. 259, 285 (2000).
Ahmed identifies thirteen propositions of law that he contends his appellate counsel should
have presented to the Ohio Supreme Court on direct appeal, but did not. (Petition, Doc, No. 35 at
PageID 247-55; Traverse, Doc. No. 71 at PageID 1725-29.) Summarized, Ahmed alleges his
attorneys failed to raise the following issues on direct appeal:
1.

He was denied his right to counsel of his choice;

2.

He was denied his right to a speedy trial;

3.

He was denied his right to self representation;

4.

The trial judge was biased against Ahmed;

5.

He was denied his right to a public trial;

10

Ahmed correctly argues that the rule was not firmly established and regularly followed, but his circuitous and
unsupported assertions making up his argument leave gaps large enough to risk a contrary outcome. Also, having
concluded the third Maupin prong (independent and adequate state procedural rule) saves Ahmed’s ineffective
assistance of appellate counsel claim from procedural default, there is no cause for the Court to labor over Maupin’s
fourth prong (cause and prejudice).

69

6.

He was denied his right to confront the witnesses against him
by the admission of hearsay evidence;

7.

He was denied his right to be free of unreasonable searches
and seizures;

8.

Prosecutorial misconduct infected his trial;

9.

He was saddled with ineffective counsel at trial;

10.

Trial counsel failed to request instructions on voluntary
manslaughter;

11.

A police officer lied on the witness stand;

12.

A “death qualified” jury denied him a fair trial;

13.

There was excessive police presence in the courtroom during
the trial.

Id. The Court will address Ahmed’s ineffective assistance of appellate counsel claim by considering
each proposed proposition of law argued to illustrate counsel’s ineffectiveness, but first it is
worthwhile to review the standard applicable to ineffective assistance of appellate counsel claims.
“[Appellate c]ounsel's failure to raise an issue on appeal amounts to ineffective assistance
only if a reasonable probability exists that inclusion of the issue would have changed the result of
the appeal.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d
682, 707 (6th Cir. 2008). “If a reasonable probability exists that the defendant would have prevailed
had the claim been raised on appeal, the court still must consider whether the claim's merit was so
compelling that the failure to raise it amounted to ineffective assistance of appellate counsel.” Id.
citing Wilson. The attorney need not advance every argument, regardless of merit, urged by the
appellant. Jones v. Barnes, 463 U.S. 745, 751-752 (1983)(noting that "experienced advocates since
time beyond memory have emphasized the importance of winnowing out weaker arguments on

70

appeal and focusing on one central issue if possible, or at most on a few key issues”). Effective
appellate advocacy is rarely characterized by presenting every non-frivolous argument which can be
made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003); Williams v. Bagley, 380 F.3d 932, 971
(6th Cir. 2004); see Smith v. Murray, 477 U.S. 527, 535-36 (1986). Failure to raise an issue can,
however, amount to constitutionally ineffective assistance. McFarland v. Yukins, 356 F.3d 688, 710
(6th Cir. 2004), citing Joshua v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); Lucas v. O’Dea, 179 F.3d
412, 419 (6th Cir. 1999); and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999).
“In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner
must show errors so serious that counsel was scarcely functioning as counsel at all and that those
errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d 674,
682 (6th Cir. 2000), citing Strickland v. Washington, 466 U.S. 668, 687 (1984), and Rust v. Zent, 17
F.3d 155, 161-62 (6th Cir. 1994). “Counsel’s failure to raise an issue on appeal could only be
ineffective assistance if there is a reasonable probability that inclusion of the issue would have
changed the result of the appeal.” McFarland, 356 F.3d at 699, citing Greer v. Mitchell, 264 F.3d
663, 676 (6th Cir. 2001). “‘Counsel’s performance is strongly presumed to be effective.’”
McFarland, 356 F.3d at 710, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000), citing
Strickland, 466 U.S. at 690. To prevail on a claim of ineffective assistance of appellate counsel, a
petitioner must show that counsel ignored issues that were “clearly stronger” than those presented on
appeal. Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009); Smith v. Robbins, 528 U.S. 259, 288
(2000), quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). With these precepts in mind, the
Court will consider each of Ahmed’s alleged instances of ineffective assistance of counsel. The
Court also notes that the last four of the allegations, numbers ten through thirteen, were not included

71

as issues Ahmed believed his appellate attorneys should have raised as error on direct appeal in his
application to reopen his direct appeal in the state court. (See Appendix, Vol. 5 at 72-81.) They are,
therefore, procedurally defaulted. Had they been properly preserved by presentation to the state
court in Ahmed’s application, however, they would not have changed the outcome of his appeal, as
discussed, infra.
1.

Denied counsel of choice

The first of the proposed propositions of law that Ahmed claims his appellate counsel should
have raised on direct appeal corresponds with his first ground for relief in his habeas petition.
Although Ahmed’s first ground for relief has been found by the Court to be procedurally defaulted
without excuse, the Court also noted in its discussion of that ground that even if it had been
preserved, the claim would fail. It follows that Ahmed’s appellate counsel cannot have been
ineffective for failing to raise a losing claim on direct appeal.
2.

Denied right to speedy trial

Ahmed’s second proposed proposition of law corresponds to his nineteenth ground for relief
in his habeas petition, where he claims to have been deprived of his right to a speedy trial. He
argues his appellate attorney should have raised that claim on direct appeal in the state court.
In doing so, Ahmed refers the Court to his nineteenth ground for relief where he goes into
great detail describing the various continuances that were requested, agreed to, rescinded, or granted.
(Petition, Doc. No. 35 at PageID 247, 371-78.) He acknowledges that the United States Supreme
Court has articulated a non-exhaustive list of four factors to be considered in determining whether a
particular defendant has been deprived of his right to a speedy trial. Id. at 372. Those factors are the
“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to

72

the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). “The length of delay is to some extent
a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.” Id. at 530. A delay of one year
is presumptively prejudicial and triggers consideration of the remaining Barker factors. United
States v. Ferreira, 665 F.3d 701, 705 (6th Cir. 2011), citing United States v. Robinson, 455 F.3d 602,
607 (6th Cir. 2006); United States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006). Presumptive prejudice,
however, cannot carry a Sixth Amendment claim without regard to the other Barker criteria.
Doggett v. United States, 505 U.S. 647, 655-56 (1992). In Barker, the Supreme Court noted that the
more-than-five-year delay between the defendant’s arrest and trial was “extraordinary,” and that of
the various reasons for the delay, only a relatively small portion of it could be attributed to a “strong
excuse,” that being the illness of the person in charge of the investigation of the offenses. Id. at 53334.
Ahmed was arrested on September 11, 1999, and voir dire began in his trial on January 16,
2001, a little over sixteen months after his arrest. On November 29, 1999, a motion for a
continuance was made by Ahmed’s counsel, but Ahmed refused to sign the entry. (Appendix, Vol. 1
at 148-49.) Nevertheless, upon defense counsel’s statement that trial on the original date of
December 7 would be impracticable, the court granted a continuance until January 3, 2000. Id. at
149. Defense counsel received upwards of 560 pages of discovery material approximately ten days
before the trial was to begin, and requested another continuance on December 23, 1999. Id. at 166.
In addition, counsel indicated they needed more time to conduct DNA testing. Id. The trial was
then reset to February 15, 2000. Id. at 179. In a pro se filing, Ahmed urged the trial court not to
grant any further continuances “with out [sic] the accountability of past performance of 5 months

73

and setting reasonable accountability and monitoring standards.” Id. at 194. The defense’s DNA
testing was not completed by February 14, and on that date another continuance until July 10 was
granted at defense counsel’s request and after the court had determined that counsel were
competently and effectively representing Ahmed. Id. at 201-2, 204. By June 14, 2000, however the
defense’s DNA testing was still not completed, and upon counsel’s request, another continuance was
granted and the trial was reset for January 15, 2001.11 Id. at 297. In September 2000, Ahmed filed a
pro se document alleging he had not been advised of how to preserve his right to a speedy trial,
citing Ohio R. Crim. P. 12(G).12 Id. at 353. The trial court construed the document as a motion to
dismiss his case under the state speedy trial statute, and it was overruled. Id. at 357. On January 2,
2001, Defense counsel once again requested a continuance. (Appendix, Vol. 2 at 2-3.) The State
opposed further delay in bringing Ahmed to trial, id. at 13-14, as did Ahmed in several pro se
filings, id. at 16-25. The trial court denied defense counsel’s request for another continuance. Id. at
34. Ahmed’s trial began on January 16, 2001, as scheduled.
The delay between Ahmed’s arrest and the start of his trial was approximately sixteen
months, giving rise to presumptive prejudice and triggering examination of the remaining Barker
factors. The second Barker factor looks to the reason for the delay. “Governmental delays
motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily against
the government, while neutral reasons such as negligence are weighted less heavily, and valid

11

January 15, 2001, was a federal holiday, Dr. Martin Luther King, Jr.’s Birthday, so the trial date was at some
point corrected to reflect a January 16 start date.
12

At the time the document was filed, that rule read as follows:
(G)

Effect of failure to raise defenses or objections
Failure by the defendant to raise defenses or objections or to make requests that
must be made prior to trial, at the time set by the court . . ., or prior to any extension

74

reasons for a delay weigh in favor of the government.” Robinson, 455 F.3d at 607. “In contrast,
delay caused by the defense weighs against the defendant.” Vermont v. Brillion, 556 U.S. 81, 89
(2009). As is noted above, none of the continuances was requested by the prosecution, so the delays
were not attributable to the prosecutor. Instead, each continuance was requested by defense counsel,
although Ahmed himself sometimes indicated he was opposed to them. However, because “the
attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,”
delay caused by the defendant’s counsel is also charged against the defendant, whether counsel is
retained or appointed. Coleman v. Thompson, 501 U.S. 722, 753 (1991). “Once a lawyer has
undertaken the representation of an accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk County
v. Dodson, 454 U.S. 312, 318 (1981), citing ABA Standards for Criminal Justice 4-3.9 (2d ed. 1980).
Furthermore, the Supreme Court has rejected the notion that an attorney appointed to represent a
defendant should be considered a state actor for purposes of determining who bears responsibility
for a delay when a violation of the Speedy Trial Clause has been alleged. Vermont, 556 U.S. at 8990..
None of defense counsel’s requests for continuances was unreasonable. Approximately one
month of delay was requested and granted because defense counsel stated it was impracticable to
defend a defendant charged with four aggravated murders and facing the death penalty three months
after the crimes. That is indubitably an accurate assessment and implies conscientiousness rather
than needless delay. One year of the delays can be attributed to the time necessary for the defense to
complete DNA testing. One day of the delay was attributable to the federal holiday marking the

of time made by the court, shall constitute waiver of the defenses or objections, but

75

birth of Dr. Martin Luther King, Jr. Although Ahmed at times expressed opposition to the
continuances, none of counsel’s requests were unreasonable and nothing in the record suggests that
counsel had any nefarious or ulterior motive in requesting them. Even if the reasons given by
counsel had not fully explained why any particular continuance was required, Ahmed himself caused
his attorneys to expend significant pre-trial time on collateral matters, such as Ahmed’s repeated
attempts to substitute counsel, which were sometimes effective; his lawsuits naming everyone
involved in his legal matters (including those whose connection was solely tangential) as either
defendants or witnesses; his seeking to have the trial judge removed from his case; his constant
complaining about having been deprived of access to his own money; and his insistence that
extraordinary measures be taken to assure the confidentiality of his conversations with counsel at the
jail. “Just as a State’s ‘deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the [State],’ so too should a defendant’s deliberate attempt to disrupt
proceedings be weighted heavily against the defendant.” Vermont, 556 U.S. at 93, quoting Barker,
407 U.S. at 531. Thus, any delay unaccounted for by counsel’s need to adequately prepare for trial
would be taxed to Ahmed’s contumacy and his attempts to derail his trial. The second Barker factor
weighs heavily against Ahmed.
As noted above, Ahmed did object to his attorneys’ request for continuances at times. Thus,
that Barker factor weighs in his favor.
In Barker, the Supreme Court recognized the difficulty of demonstrating prejudice from
delay between the time of arrest or indictment and trial as follows:
Prejudice, of course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect. This
the court for good cause shown may grant relief from the waiver.

76

Court has identified three such interests: (i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be
impaired. Of these, the most serious is the last, because the inability
of a defendant adequately to prepare his case skews the fairness of
the entire system. If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice if defense witnesses are
unable to recall accurately events of the distant past. Loss of
memory, however, is not always reflected in the record because what
has been forgotten can rarely be shown.
We have discussed previously the societal disadvantages of lengthy
pretrial incarceration, but obviously the disadvantages for the accused
who cannot obtain his release are even more serious. The time spent
in jail awaiting trial has a detrimental impact on the individual. It
often means loss of a job; it disrupts family life; and it enforces
idleness. Most jails offer little or no recreational or rehabilitative
programs. The time spent in jail is simply dead time. Moreover, if a
defendant is locked up, he is hindered in his ability to gather
evidence, contact witnesses, or otherwise prepare his defense.
Imposing those consequences on anyone who has not yet been
convicted is serious. It is especially unfortunate to impose them on
those persons who are ultimately found to be innocent.
Barker, 407 U.S. at 532-33.
Ahmed makes the following argument respecting the prejudice he suffered as a result of the
sixteen-month delay between his arrest and the start of his trial:
Ahmed was prejudiced by the delays because:
If the trial had proceeded on 12/7/1999 as scheduled[,] the
outcome of the trial would clearly have been in favor of this
defendant. In fact[,] proper action by defense counsel should
have been to ask for dismissal for failure to provide discovery as
almost nothing was provided/discovered by prosecution before
12/7/1999. Now it is clear that continuances have clearly
benefitted to state [sic] at the detrement [sic] of defense. (Apx.
Vol. 2, p. 248).
(Traverse, Doc. No. 71 at PageID 1846.) When the Court turns to the referenced page in the
Appendix, however, no such language appears on that page or any page near it. The cited page in
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the Appendix consists of a single-page pro se filing in which Ahmed sought to have his attorneys
removed “for fabricated defense and not for truth as contained in discovery.” (Appendix, Vol. 2 at
248.) It contains no discussion of Ahmed’s speedy trial right or an alleged violation thereof, nor
does it address the supposed consequences of the delay between his arrest and the beginning of his
trial. In any case, the excerpt above appears to be nothing more than Ahmed’s own supposition that
his trial would have resulted in an acquittal if it had proceeded on the original trial date of December
7, 1999. Such unsupported conjecture from a petitioner carries no weight in habeas corpus.
To sum up, the delay between Ahmed’s arrest and the start of his trial, the first of the Barker
factors, gives rise to presumptive prejudice warranting an examination of the remaining three Barker
factors. The delays were requested by defense counsel so that they could prepare for trial and to
allow time for DNA analysis to be completed, both legitimate and non-dilatory reasons for seeking
continuances. Even if that were not the case, Ahmed’s obstructionist conduct during the sixteenmonth delay would likely result in the second Barker factor weighing against Ahmed. The third
Barker factor weighs lightly in Ahmed’s favor as he did express opposition to some of the requests
for continuances. Finally, Ahmed failed to demonstrate, as opposed to alleging, prejudice from the
delays.
On the whole, then, Ahmed has not shown that he was denied his Sixth Amendment right to
a speedy trial. Consequently, his appellate counsel cannot have been ineffective for failing to raise
that claim as error on direct appeal in the Ohio Supreme Court. Accordingly, his second sub-claim
in his fifth ground for relief should be denied.
3.

He was denied his right to self representation

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Ahmed has presented this sub-claim as a claim itself in his third ground for relief, supra.
The Court recommended denial of Ahmed’s third ground for relief in its entirety after addressing de
novo that part of the claim which concerned the guilt phase of the trial, and finding meritless that
part relating to the mitigation phase of the trial. Again, Ahmed’s appellate counsel were not
ineffective for failing to raise claims error on direct appeal claims that were sure to fail.
4.

The trial judge was biased against Ahmed

Ahmed raised this sub-claim as a claim itself in his eighth ground for relief. In order to
determine whether Ahmed’s appellate counsel were ineffective for failing to raise as error on direct
appeal his claim that the trial judge was biased against him, it is necessary for this Court to
determine whether there was a reasonable probability that the claim would have succeeded had it
been raised. See Goff v. Bagley, 601 F.3d 445, 466 (6th Cir. 2010). The answer to that question is
“no.”
Ahmed alleges the trial judge’s bias was evident from the fact that she consistently attempted
to silence him and prevent him from making arguments in pretrial hearings, and that she was named
a witness in his divorce case and so should have recused herself from his criminal trial. The fact of
the matter is Ahmed continuously attempted to argue as if he were a pro se defendant in the pretrial
hearings, and Judge Sargus was exceptionally generous in allowing Ahmed time to make his points.
(Hearing of Nov. 9, 2000, Trial Tr., Vol. 3 at 3-53; Hearing of Jan. 2, 2001, Trial Tr., Vol. 3 at 3-19;
Hearing of Jan. 8, 2001, Trial Tr., Vol. 3 at 4-74.) Ahmed acknowledges that Judge Sargus stated
she had never been declared a witness in his divorce case by his counsel, only by Ahmed himself,
but he does not point to anything in the record suggesting that was not a true statement or that it was
an inadequate response to his argument that she was indeed a witness in the divorce proceeding. In

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addition, what Ahmed characterizes as his “polite” attempt to explain his dissatisfaction with his
appointed counsel which drew Judge Sargus’ allegedly uncalled-for ire included :
1.

His accusations that his attorneys would only do certain work
on his case to “eat up” all Ahmed’s money (Hearing of Nov.
9, 1999, Trial Tr. Vol. 3 at 17);

2.

His own opinion that attorney Hershey did not have a clue
how to conduct an investigation, id. at 24;

3.

Calling an explanation his counsel provided to him regarding
DNA analysis “bullshit,” id. at 33;

4.

Allegations that the judge was biased against him because
there were, in his estimation, excess security officers present
at the view of the scene of the murders (Hearing of Jan. 8,
2001, Trial Tr., Vol. 4 at 20);

5.

Personal attacks on trial counsel’s intelligence, id. at 22;

6.

Accusations that his counsel had a blatant disregard for
professional responsibility and that they were in collusion
with the prosecutors and police to hide evidence, id.;

7.

An accusation that the judge was hiding motions in a bid to
deprive him of his constitutional rights with full knowledge
and cooperation of his counsel, id. at 23;

8.

Acknowledgement that he told one of his trial counsel he was
the “stupid most guy who I ever seen representing any
defendant,” id at 30;

9.

Calling the proceedings “a travesty,” id. at 36;

10.

Calling attorney Hershey a liar, id. at 37;

11.

Accusing the trial judge of foisting appointed counsel on him
to serve the interests of the court and prosecution rather than
himself, id. at 39;

12.

Impugning the goodness of attorney Hershey’s heart, id. at
42;

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13.

Alleging that his counsel conspired with the prosecution to
suppress evidence, id. at 43;

14.

Accusing attorney Hershey of relaying whatever Ahmed told
him to the prosecution, id. at 44-45;

15.

Accusing his counsel of violating his civil rights and their
own professional ethics; id. at 46; and

16.

Accusing his counsel of “covering up” the fact that they had
not worked on his case, id. at 47.

Judge Sargus’ refusal to permit Ahmed limitless opportunities to complain about his attorneys, his
treatment at the jail, and the bias he perceived on the judge’s part toward him was understandable
and completely appropriate to maintain some semblance of order in the court in the face of Ahmed’s
obstreperous behavior. That being the case, Ahmed’s appellate counsel were not derelict in failing
to raise a losing judicial bias claim as error on direct appeal.
5.

He was denied a right to a public trial

Ahmed alleges his appellate counsel were ineffective for failing to raise as error on appeal a
claim that he was denied his right to a public trial. The basis for Ahmed’s claim is the trial court’s
closure of the courtroom for a pretrial hearing on “several missives describing difficulties he has in
his dealings with his own attorneys.” (Hearing of November 9, 2000, Trial Tr., Vol. 3 at 3.) Ahmed
also speculates that hearings held on January 8 and 11, 2001, and February 2, 2001, were either held
in the jail and not accessible by the public, or that unnamed attorneys were kept from attending.
(Petition, Doc. No. 35 at PageID 379.) Nothing on the pages of the transcripts of those hearings,
however, indicates that those hearings took place away from the courthouse or that any person who
was interested in the proceedings was kept from attending any of those hearings, and they will not be
discussed further.

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The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” U.S. CONST. amend. VI; see also In re Oliver, 333 U.S. 257,
278 (1948) (holding the right to a public trial binds the states through the Due Process Clause of the
Fourteenth Amendment). The right extends beyond the offering of actual proof at trial, although it
“may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial
or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia,
467 U.S. 39, 45-46 (1984), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S.
501, 511-12 (1984).
The Supreme Court has summarized the benefits flowing from the guarantee as being to (1)
ensure a fair trial, (2) ensure that the judge and prosecutor carry out their duties responsibly, (3)
encourage witnesses to come forward, and (4) discourage perjury. Waller, 467 U.S. at 46. To close
a courtroom, a party must “advance an overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect that interest, the trial court must consider reasonable
alternatives to closing the proceeding, and it must make findings adequate to support the closure.”
Waller, 467 U.S. at 48.
Here, the record does not reveal any request by either party for closure of the courtroom, and
the trial court made none of the findings required by Waller. In fact, there was no discussion at all
about any interest likely to be prejudiced, the breadth of the closure, or alternatives to complete
closure of the courtroom. Instead, the trial judge simply stated, “Because this is a private hearing,
I’m going to ask that all spectators leave.” (Trial Tr., Vol. 3, Hearing of November 9, 2000, at 4.)
Neither party objected. Initially, then, it would appear that the trial court failed to take the necessary
steps prior to closing the courtroom.

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That is not the end of this Court’s evaluation of Ahmed’s claim, however. Ahmed argues
that the denial of his right to a public trial is a structural defect, for which no prejudice need be
shown and to which harmless error analysis does not apply. For support he cites footnote 9 in
Waller in which the Court cites various circuit courts of appeals’ opinions, and another footnote in a
dissent by Brennan, J. in an earlier Supreme Court case. 467 U.S. at 49. Of course, the term
“structural error” did not become part of the legal parlance until after Arizona v. Fulminante, 499
U.S. 279, 309 (1991) (holding some constitutional errors defy analysis by “harmless-error”
standards), and Sullivan v. Louisiana, 508 U.S. 275, 282 (1993) (coining the term “structural error”).
In Waller, the Court observed that “[t]he parties do not question the consistent view of the lower
federal courts that the defendant should not be required to prove specific prejudice in order to obtain
relief for a violation of the public-trial guarantee,” expressing agreement with that view, but
rejecting the notion that Waller was therefore entitled to a new trial. 467 U.S. at 49-50. Although
this Court does not read the quoted portion of Waller as an actual holding, the Supreme Court has
since characterized it as the case in which it found denial of a public trial to be structural error
subject to automatic reversal. United States v. Marcus, 560 U.S. 258, 263 (2010); Neder v.United
States, 527 U.S. 1, 8 (1999); Johnson v. United States, 520 U.S. 461, 468-69 (1997).
The subject of the hearing that was closed to the public was Ahmed’s numerous complaints
about his appointed counsel, his allegations of their incompetence, his feelings of religious
persecution by his attorneys and the jail staff, his suspicion about the investigator hired by his
counsel, his disappointment that his trial was continued allegedly without his knowledge, his
frustration at not having been successful at retaining private counsel, and his counsel’s defenses to
Ahmed’s allegations against them, all of which either have no basis in fact or are tangential or

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collateral to a fair trial. (Trial Tr., Vol. 3, Hearing of November 9, 2000, at 1-56.) No witnesses
were called, and neither Ahmed nor his counsel were under oath. Why the trial judge felt it
necessary to close the courtroom is anyone’s guess. Whatever the reason, closure of the courtroom
during the November 9 hearing, even if inappropriate, does not require a reversal of Ahmed’s
convictions or death sentence.
Waller itself demonstrates that point. The hearing at issue in Waller was one on a motion to
suppress evidence. The Supreme Court observed that “the remedy should be appropriate to the
violation. If, after a new suppression hearing, essentially the same evidence is suppressed, a new
trial presumably would be a windfall for the defendant and not in the public interest.” Waller, 467
U.S. at 49. The Waller Court ordered the case remanded to the state court for a determination of
what portions of a new suppression hearing had to be closed and what portions must be open to the
public, concluding that a “new trial need be held only if a new, public suppression hearing results in
the suppression of material evidence not suppressed at the first trial, or in some other material
change in the positions of the parties.” Id.
Let us not forget that Ahmed’s claim here is not that he was denied a public trial. That is the
subject of his twentieth ground for relief. Here, his claim is that his appellate attorneys were
ineffective for failing to raise as error on direct appeal the closing of the courtroom to the public.
Recall, too, that counsel’s failure to raise an issue on appeal could only be ineffective assistance if
there is a reasonable probability that inclusion of the issue would have changed the result of the
appeal. McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d
663, 676 (6th Cir. 2001). Even assuming that appellate counsel should have raised the public trial
claim on direct appeal, a new hearing on Ahmed’s complaints about his attorneys and his general

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situation could not possibly change the position of the parties in any material way, so there would be
no need for either a new hearing or a new trial. “A new hearing would be an empty formality; a new
trial would be a ‘windfall.’” State v. Bethel, 110 Ohio St. 3d 416, 429 (2006), quoting Waller, 467
U.S. at 49. Even if Ahmed’s appellate counsel had included the instant sub-claim in his appellate
brief, therefore, the result of the appeal would not have been different. Accordingly, Ahmed’s claim
of appellate counsel ineffectiveness based upon their failure to raise the public trial claim on direct
appeal should be denied.
6.

He was denied his right to confront the witnesses against him by the admission
of hearsay evidence.

In his sixth proposed proposition of law Ahmed alleges that an MCI WorldCom employee
inappropriately testified about a business record, namely a report tracking the use of Ahmed’s
company-issued identification badge, even though she allegedly was not qualified to authenticate the
document, and that allowing her testimony amounted to the admission of hearsay and violated his
right to confront the witnesses against him. (Petition, Doc. No. 35 at PageID 248; Traverse, Doc.
No. 71 at PageID 1726-27.13) “Counsel’s failure to raise an issue on appeal could only be
ineffective assistance if there is a reasonable probability that inclusion of the issue would have
changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Had appellate counsel raised the confrontation
clause/hearsay issue on direct appeal in the Ohio Supreme Court, the court likely would have
overruled Ahmed’s proposition of law as waived.

13

Nowhere does Ahmed give the slightest hint as to where in the ten-volume transcript of his trial the Court might
find the employee’s offending testimony.

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In Ohio parties must preserve errors for appeal by calling them to the attention of the trial
court at a time when the error could have been avoided or corrected, as set forth in State v. Glaros,
170 Ohio St. 471 (1960), paragraph one of the syllabus. Ahmed does not allege that he lodged any
objections during the MCI WorldCom employee’s testimony, and this Court finds he did not. The
only objection raised during her testimony at all was one raised by the defense based on the
relevance of the information sought (Trial Tr., Vol. 7 at 382), not the Confrontation Clause or
hearsay as he alleged in his application to reopen his direct appeal (Appendix, Vol. 5 at 76-77).
Thus, the state supreme court undoubtedly would have found against Ahmed had his appellate
counsel raised the confrontation clause/hearsay issue on direct appeal. In addition, even if Ahmed
were able to surmount that obstacle, Ahmed failed to identify, much less demonstrate, any prejudice
suffered as a result of the admission of the MCI WorldCom employee’s testimony. Indeed, his own
counsel believed it to be irrelevant. He does not allege that her testimony about the identification
badge or the report tracking its use was in any way inaccurate or false, or that either the
identification badge or tracking report was inauthentic. In addition, defense counsel highlighted in
cross-examination the possibility of someone other than Ahmed using the identification card and
weaknesses in MCI’s security procedures relating to identification badges and their tracking of the
badges. (Trial Tr., Vol 7 at 376-71.) Because Ahmed has not shown that there is even a slight
probability that inclusion of the confrontation clause/hearsay issue would have changed the result of
his direct appeal, the instant sub-claim should be denied.
7.

Ahmed was denied his right to be free of unreasonable searches and seizures.

Ahmed alleges his appellate counsel provided ineffective assistance when they failed to raise
as error on direct appeal a claim that the warrantless search of the crime scene violated his right to

86

be free from unreasonable searches and seizures. (Petition, Doc. No. 35 at PageID 249.) For
counsel’s representation to be found deficient, Ahmed must demonstrate that “there is a reasonable
probability that the inclusion of the issue would have changed the result of the appeal.” McFarland
v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001). Ahmed has done no such thing.
The Sixth Circuit has summarized the relevant law as follows:
The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and [that]
no Warrants shall issue, but upon probable cause . . . .” U.S. Const.
amend. IV (emphasis added). The Fourth Amendment’s protections
hinge on the occurrence of a “search,” a legal term of art whose
history is riddled with complexity. See Kyllo v. United States, 533
U.S. 27, 32 (2001) (discussing “when a search is not a search”). A
search is defined in terms of a person’s “reasonable expectation of
privacy” and is analyzed under a two-part test first penned in Katz v.
United States, 389 U.S. 347[, 361] (1967) [(Harlan, J., concurring)]:
(1) ‘has the individual manifested a subjective expectation of privacy
in the object of the challenged search?” and (2) “is society willing to
recognize that expectation as reasonable?” California v. Ciraolo, 476
U.S. 207, 211 (1986).
The second prong of the Katz test generally addresses two
considerations. The first focuses on “what a person had an
expectation of privacy in, for example, a home, office, phone booth
or airplane.” Dow Chemical Co. v. United States, 749 F.2d 307, 312
(6th Cir. 1984), aff’d, 476 U.S. 227 (1986) (emphasis in original); see
also Oliver v. United States, 466 U.S. 170, 178 (1984) (noting “our
societal understanding that certain areas deserve the most scrupulous
protection from government invasion”); United States v. White, 401
U.S. 745[, 786] (1971) (Harlan, J., dissenting) (assessing “the
individual’s sense of security”); Wayne R. LaFave, 1 Search and
Seizure: A Treatise on the Fourth Amendment § 2.1(d) (4th ed.2004).
This inquiry centers on “whether the human relationships that
normally exist at the place inspected are based on intimacy,
confidentiality, trust or solitude and hence give rise to a ‘reasonable’
expectation of privacy.” Dow Chemical Co., 749 F.2d at 312.

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...
Other relevant factors to apply in Katz’s [sic] second prong include . .
. “the uses to which the individual has put a location.” Oliver, 466
U.S. at 178.
Widgren v. Maple Grove Twp., 429 F.3d 575, 578-80 (6th Cir. 2005) (parallel citations omitted).
Ahmed’s argument, both here and in his Twenty-second Ground for Relief where he argues
the failure to obtain a search warrant as a free-standing claim, is sufficiently nebulous that the Court
cannot discern the basis upon which he claims to have had a reasonable expectation of privacy in
Lubaina’s residence. He refers to Lubaina’s residence as “the home/crime scene” (Petition, Doc.
No. 35 at PageID 249-50) but it was not his home because he moved from that house and had taken
an apartment in Columbus.14 (Trial Tr., Vol. 7 at 58-59.) Furthermore, the court hearing the divorce
case between Ahmed and Lubaina had awarded Lubaina exclusive use of the home and its contents
months before the murders. Id. at 166. Lubaina also had had her landlord install new locks on the
doors of the residence and change the code on the electric garage door opener. Id. at 164-67. These
facts do not square with Ahmed’s implicit argument that he had a reasonable expectation of privacy
in Lubaina’s residence. Accordingly, any motion to suppress the evidence collected at Lubaina’s
home would have had an infinitesimal chance of succeeding, and no ineffectiveness on Ahmed’s
appellate counsel’s part results from their failure to raise the issue as error on direct appeal.
Ahmed’s seventh sub-claim should be denied.
8.

Prosecutorial misconduct infected Ahmed’s trial.

Here, Ahmed alleges that his appellate counsel should have presented his prosecutorial
misconduct claim to the Ohio Supreme Court on direct appeal. (Petition, Doc. No. 35 at PageID

88

250.) He refers the Court to his ninth ground for relief, infra, in support of his claim. The Court has
considered each of his arguments under that ground for relief and found that none is meritorious.
Consequently, Ahmed’s appellate counsel cannot have been ineffective for failing to raise doomed
propositions of law on direct appeal. His eighth ineffective assistance of appellate counsel sub-claim
should be denied.
9.

Ahmed was saddled with ineffective assistance of counsel at trial.

Ahmed refers the Court to his fourth ground for relief, supra, rather than argue the
ineffectiveness of his trial counsel anew here in order to demonstrate his appellate counsel’s
deficient performance. (Petition, Doc. No. 35 at PageID 250.) The Court determined that Ahmed’s
fourth ground for relief was meritless, and it follows that his appellate counsel cannot have been
ineffective for failing to raise losing propositions of law on direct appeal in the Ohio Supreme Court.
Ahmed’s ninth ineffective assistance of appellate counsel sub-claim should therefore be denied.
10.

Trial counsel failed to request instructions on voluntary manslaughter.

Ahmed argues his appellate counsel provided ineffective assistance by failing to raise trial
counsel’s ineffectiveness on direct appeal, alleging that trial counsel should have requested that the
jury be instructed on the offense of voluntary manslaughter as an alternative to the aggravated
murder offenses charged in the indictment. (Petition, Doc. No. 35 at PageID 250-252.) As has been
noted above, Ahmed never presented this claim to the state court as an example of his appellate
counsel’s ineffectiveness in his application to reopen his direct appeal. To the extent Ahmed argues
his appellate counsel’s ineffectiveness for failing to raise as error trial counsel’s failure to request
voluntary manslaughter instructions, therefore, the instant claim is procedurally defaulted.

14

A warrant was obtained prior to the search of Ahmed’s apartment in Columbus. (Trial Tr., Vol. 4 at 110-13;

89

Even if he had preserved that part of his ineffective assistance of appellate counsel claim,
however, it would fail. Ahmed raised the underlying lesser-included offense claim as trial court
error in his sixteenth ground for relief, infra. For all of the reasons discussed there, had appellate
counsel raised the claim as error on direct appeal, the Ohio Supreme Court would have found it to be
unavailing. Consequently, Ahmed’s appellate counsel were not ineffective when they omitted the
lesser-included offense claim from the appellate brief on direct appeal.
11.

A police officer lied on the witness stand.

Here, Ahmed contends his appellate counsel were ineffective when they failed to raise as
error on direct appeal a claim alleging that police officer Nanni testified falsely that Ahmed, while in
New York, told the officer that he had come from St. Clairsville and had asked for an attorney.
(Petition, Doc. No. 35 at PageID 252-53.) This sub-claim is in the same procedural posture as the
one just preceding it, and is also procedurally defaulted.
Had he properly preserved the instant sub-claim for habeas review, however, it would have
been unavailing. Ahmed argues as follows:
Nanni further testified that after Miranda [sic] warnings were given
by him, questioning stopped. However, Nanni’s signed contradicts
his assertion that “questioning stopped.” [Sic.] Ahmed protested to h
is [sic] counsel when he heard this false testimony. Attorney Olivitto
[sic] questioned Nanni about his own signed statements and Nanni
disowned his own signed statement. Olivitto [sic] said to the Trial
Judge “we/should [sic] settle this outside the jury.” According to
Ahmed, the transcript is cleaned out [sic] as it only says that Hershey
cross-examined Nanni.
Id. at PageID 253. There are no citations to the record where the Court might find the statements
and events to which Ahmed refers. It is not the Court’s duty to search the record to find support for

Vol. 7 at 221-22; Vol. 8 at 503.)

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a habeas petitioner’s allegations. Ahmed has failed to make out a coherent claim to which this Court
can respond. Consequently, Ahmed’s appellate counsel’s representation cannot be found to have
been deficient.
12.

A “death qualified” jury denied Ahmed a fair trial.

Next, Ahmed purports to claim that his appellate counsel were ineffective for failing to raise
as error on direct appeal a claim that a “death qualified” jury is an anathema to a fair trial, a familiar
claim in death penalty cases. (Petition, Doc. No. 35 at PageID 253.) His argument, however,
contends that one prospective juror, Rosemary Busack, whose attitude toward the death penalty
Ahmed does not reveal, was excused from the jury by the prosecutor’s peremptory challenge, and
that the jury was consequently not representative of the community and biased toward a death
sentence. Id. Ahmed provides a reference to the trial transcript, but that page contains defense
counsel Olivito’s oral motion that the court dismiss the entire jury panel because the venire did not
represent a fair racial cross-section of the community. (Trial Tr., Vol. 6 at 482.) No mention of
prospective juror Busack is made on that page or the several pages preceding it, nor is there any
mention of a “death qualified” jury impinging on Ahmed’s right to a fair trial. Thus, Ahmed
purports to raise one claim, argues another, and directs the Court to a page in the transcript that has
nothing to do with either. Furthermore, none of the claims were presented to the state court as
instances of trial counsel’s ineffectiveness that should have been brought to the state court’s
attention on direct appeal. (See Application to Reopen Direct Appeal, Appendix, Vol. 5 at 72-81.)
Had he done so, however, the claim would have been rejected.
Assuming Ahmed means what he says when he claims that death qualifying the jury deprived
him of a constitutionally guaranteed fair trial, that proposition, had appellate counsel raised the issue

91

on direct appeal, would have been denied on the authority of Lockhart v. McCree, 476 U.S. 162
(1986), where the Supreme Court held that “the Constitution does not prohibit the States from ‘death
qualifying’ juries in capital cases.” Id. at 173. As for Ahmed’s argument that the excusal of
prospective juror Busack resulted in a jury that was “unrepresentative of community, and biased
toward death” (Petition, Doc. No. 35 at PageID 253), he has provided no indication of how or why
that result follows from Busack’s excusal. What was Busack’s attitude toward the death penalty? Is
Ahmed arguing that the jury was constitutionally required to be representative of the community’s
attitude toward the death penalty, assuming a “community’s attitude” can even be determined? Was
Busack African-American? Is Ahmed arguing that she was challenged and excused on the basis of
her race? Her gender? After she was excused, what was the composition of the jury with regard to
whatever characteristic or attitude Busack possessed that Ahmed appears to argue was
underrepresented in the other jurors? The Court simply cannot fill in all the blanks missing from
Ahmed’s argument. Accordingly, if Ahmed is contending that the excusal of prospective juror
Busack skewed the jury toward death in some manner or rendered the jury unrepresentative of the
community, and had his appellate counsel presented the claim in the cursory manner in which it was
presented here, the state court would unquestionably have denied it as lacking in any foundation.
Finally, piecing together what it can from Ahmed’s reference to a page in the trial transcript in his
argument, it appears to this Court that defense counsel objected to the jury venire as being
unrepresentative of a proper cross-section of the population of Belmont County. (Trial Tr., Vol. 6 at
482.) Defense counsel did not elaborate on how that was so, identify upon what basis he made that
claim, or cite any law from which this Court could better determine the nature of the objection. Id.
Ahmed provides no clarification in his argument. Thus, it cannot be determined whether appellate

92

counsel was or was not ineffective for omitting any argument having to do with defense counsel’s
overruled objection on the referenced page in the trial transcript.
Ahmed’s contention consists of mere fragments of an argument and an unsupported ones at
that. Accordingly, his twelfth ineffective assistance of appellate counsel sub-claim should be
denied.
13.

There was excessive police presence in the courtroom during the trial.

In his final sub-claim of his fifth ground for relief, Ahmed alleges his appellate counsel were
ineffective when they failed to raise as error on direct appeal the excessive police presence in the
courtroom during his trial. (Petition, Doc. No. 35 at PageID 254-55.) Again, this sub-claim was not
included in Ahmed’s application to reopen his direct appeal as an example of appellate counsel’s
ineffectiveness, and is consequently procedurally defaulted, nor would it have succeeded had Ahmed
properly preserved the claim in the state court.
Ahmed argues that the excessive law enforcement presence in the courtroom and at the jury
view violated his rights under Holbrook v. Flynn, 475 U.S. 560 (1986). In that case, the United
States Supreme Court held that the “conspicuous, or at least noticeable,” presence of guards in the
courtroom during trial was not an inherently prejudicial practice that was only permissible if it was
justified by an essential state interest specific to the particular defendant. Id. at 568-69. The Court
stated:
All a . . . court may do . . . is look at the scene presented to jurors and
determine whether what they saw was so inherently prejudicial as to
pose an unacceptable threat to defendant’s right to a fair trial; if the
challenged practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is over.
Id. at 572.

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Ahmed alleges there were five uniformed law enforcement officers in the courtroom during
his trial. (Petition, Doc. No. 35 at PageID 254.) He further alleges there were guards outside the
courtroom dressed and armed as “special duty task force” members, that the courthouse parking lot
was closed and the jurors were made to park a mile distant from the courthouse then taken to the
court by Sheriff’s Office employees. Id. Along the one-mile route to the courthouse, Ahmed claims
there were concrete barriers with access to the road only to “approved vehicles.” Id. at 255. He
alleges those measures were unilaterally put in place by the Sheriff’s Office, and that they served no
purpose other than to inspire prejudice in the jurors and demolish the presumption of innocence to
which he was entitled. Id. He also claims that there were approximately thirty members of the
Belmont County Sheriff’s Office at the jury view “outfitted in tactical gear and carrying automatic
weapons.” Id. at 254.
There is not one citation to the record in Ahmed’s argument on this issue in his petition or
traverse. Ahmed refers to his twenty-first ground for relief as additional support for his claim of
appellate counsel ineffectiveness, but there he makes no record references in his petition, and only
one reference to the record in his traverse. (Doc. No. 71 at PageID 1853.) In the pages referenced,
the only discussion even fancifully relevant to the instant claim is defense counsel’s objection that
Ahmed was forced to have a large heavy coat that did not belong to him draped over his upper body
while at the jury view. (Trial Tr., Vol. 8 at 615.) Defense counsel objected, stating that if Ahmed
had stayed in the presence of the jurors, they would have seen that he was handcuffed because
Ahmed did not have his arms in the arms of the coat. Id. The shackling issue is not mentioned in
Ahmed’s argument here, where he instead contends his appellate counsel were ineffective for failing
to raise as error on direct appeal the allegedly excessive law enforcement presence at his trial.

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Ahmed has failed to point to evidence in the record supporting his allegations that there was
an excessive police presence in the courtroom, that the entrance to the courtroom was guarded by
“special task force” members, that the courthouse parking lot was closed or the reason for that
closure, that the jurors were forced to park a mile away from the courthouse, that they were
transported to the courthouse by Sheriff’s Office personnel, or that there were approximately thirty
officers in “tactical gear” at the jury view. There is no evidence in the record that the road between
the courthouse was blocked to all but “authorized vehicles,” or that even if the road had been
blocked, that it had anything to do with Ahmed’s trial.
Aside from the discussion about the heavy coat and Ahmed’s having been handcuffed at the
jury view of the crime scene, which is not at issue in the instant ground for relief, as noted above,
Ahmed has not directed this Court’s attention to any objections trial counsel made to any of the
allegedly excessive security measures he describes. Thus, had appellate counsel raised the issue as
error on direct appeal, it is beyond doubtful that the Ohio Supreme Court would have found any part
of the claim preserved for appeal. Instead, the state court would most likely have denied the
proposition of law as waived due to the absence of a contemporaneous objection. Accordingly,
Ahmed’s appellate counsel were not ineffective for omitting the excessive law enforcement presence
claim on direct appeal.
This Court has considered de novo each alleged error Ahmed contends effective appellate
counsel should have raised as error on direct appeal to the Ohio Supreme Court. Had they been
presented, none would have resulted in a change in the outcome of Ahmed’s direct appeal. Most of
the proposed propositions of law have been found to be losing claims, and no ineffectiveness can be
found where appellate counsel fails to present a losing claim to an appellate court. Four of the sub-

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claims are procedurally defaulted as they were not included as proposed propositions of law in his
application to reopen his direct appeal. Ahmed also failed to support two of those proposed
propositions of law, the eleventh and thirteenth, by providing citations to the record or any other
evidence tending to prove those alleged errors.
To sum up, then, the Court has found that Ahmed’s first, second, third, fourth, fifth, sixth,
seventh, eighth, and ninth ineffective assistance of appellate counsel sub-claims be denied at
meritless because the claims underlying those sub-claims are themselves without merit, and
appellate counsel cannot be ineffective for failing to raise losing claims. The remaining four subclaims, the tenth, eleventh, twelfth, and thirteenth, are procedurally defaulted as having never been
presented to the state court. Accordingly, Ahmed’s fifth ground for relief should be denied.

Sixth Ground for Relief
In his sixth ground for relief, Ahmed contends the trial court failed to hold a competency
hearing, thereby violating his ambiguously referenced “rights under the federal constitution.”
(Petition, Doc. No. 35 at PageID 255-64.) He does not mention the Ohio Supreme Court’s decision
on the claim in his petition, calling into question whether he has even stated a claim cognizable in
habeas corpus. Respondent concedes that Ahmed preserved his claim for habeas review and argues
there is nothing unreasonable about the Ohio Supreme Court’s merits decision overruling Ahmed’s
proposition of law. (ROW, Doc. No. 61 at PageID 995-99.) In his traverse Ahmed argues that that
state supreme court rejected his claim on its merits (Traverse, Doc. No. 71 at PageID 1731), and
also, contradictorily, that the state court “never considered whether the claim violated the United

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States Constitution,”15 id. at PageID 1738. Therefore, he argues, the “unreasonable application”
prong of 28 U.S.C. § 2254(d)(1) does not apply and this Court need only determine whether the state
court’s decision was “contrary to . . . clearly established Federal law, as determined by the Supreme
Court of the United States.” Id. at PageID 1738-39.
The Supreme Court’s observation that § 2254(d), in its entirety, expressly “applies only to
claims ‘adjudicated on the merits in State court proceedings,’” Cullen v. Pinholster, ___ U.S. ___,
___, 131 S.Ct. 1388, 1401 (2011), renders Ahmed’s argument nonsensical. If the state court did not
address the claim on the merits, as Ahmed argues in one part of his traverse (Doc. No. 71 at PageID
1738), then no part of § 2254(d) applies to the claim here. Conversely, if the state court did address
the merits, as Ahmed concedes on a different page of his traverse, id at PageID 1731, then this Court
must consider his claim under § 2254(d) as a whole.
Since the parties agree that Ahmed did present his claim to the state court, the first question
this Court must resolve is whether that court addressed the merits of Ahmed’s federal claim. A
factual background will facilitate a discussion of that question.
Between the prosecution’s guilt phase case-in-chief and the defense’s, Ahmed filed a pro se
motion for an evaluation of his competence to stand trial. (Appendix, Vol. 2 at 272; Trial Tr., Vol. 8
at 669.) Ahmed complained that he was experiencing extreme pain in his brain and head, frequent
blackouts, and episodes of vertigo. (Appendix, Vol. 2 at 272.) He attributed those symptoms to
“some neurological or organic defect in the brain and other systems,” and claimed that he could not
concentrate, hold his head steady, or maintain his balance. Id. Ahmed stated that he was

15

It has not been made clear to this Court how a claim itself can violate the United States Constitution. Certainly
a claim typically alleges a violation of the constitution, but it is not the claim doing the actual violating, rather it
merely describes the alleged violation.

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experiencing extreme emotional stress and depression, and finally stated that he could not
understand or help his attorneys in his defense. Id. The trial court noted that Ahmed had drafted
motions and documents throughout his trial that were worthy of any attorney’s hand, and that they
were well drafted and in compliance with the relevant rules. (Trial Tr., Vol. 8 at 669.) Although
Ahmed had refused medical treatment in the jail previously, id., the trial judge determined that he
should be examined to make sure he was “doing okay” prior to moving him to the medical wing of
the jail. Id. at 671. Ahmed refused to allow any doctor but his own private physician, whose
practice was two hours distant from the jail, to examine him. Id. at 673-79. Even so, the court
permitted Ahmed to testify, out of the jury’s presence, in order to demonstrate his entitlement to a
competency hearing. Id. at 682-90. In addition, three jail personnel testified as to their observations
of Ahmed’s demeanor and appearance since his incarceration, none of whom corroborated Ahmed’s
account of his symptoms. Id. at 692-715. The trial court found Ahmed had not demonstrated
entitlement to a competency hearing, giving several reasons, among them that Ahmed had prepared
his motion for a hearing that morning, and it contained correct legal terms and reflected service. Id.
at 715. During his testimony, Ahmed was able to distinguish between a psychologist retained for the
purpose of mitigation, and one retained for the purpose of determining a defendant’s competence to
stand trial, id, a distinction requiring some degree of sophistication and competence to discern.
Throughout his trial, the court observed, Ahmed has delivered numerous soliloquies on his rights
and drafted many documents phrased as an attorney would phrase them. Id. at 716. Ahmed
demonstrated an impressive knowledge of the rules of criminal procedure, and had never complained
of inadequate medical care or unprofessional medical personnel in the jail prior to the day he
submitted his motion for a hearing. Id. As the court explained its reasons for denying Ahmed a

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competency hearing, Ahmed stated that he prepared the motion submitted that morning just “as he
began to succumb to the pain and the emotional distress” he described in the motion. Id. at 716-17.
The court concluded the discussion. Id. at 717.
Ahmed argues that the Ohio Supreme Court’s decision on direct appeal was limited to a
determination of his claim under state law even though he presented his federal claim as well.
(Traverse, Doc. No. 71 at PageID 1738.) The first indication that the state court addressed Ahmed’s
federal claim alleging he was denied a competency hearing, however, is that the state court cited one
of its own cases that in turn cited both Drope v. Missouri, 420 U.S. 162 (1975), and Pate v.
Robinson, 383 U.S. 375 (1966). State v. Ahmed, 103 Ohio St. 3d 27, 2004-Ohio-4190 at ¶ 64
(2004), citing State v. Berry, 72 Ohio St. 3d 354, 359 (1995). The court also applied the standard
entitling a defendant to a competency hearing that was set forth in those Supreme Court cases,
stating that “[t]he right to a hearing ‘rises to the level of a constitutional guarantee where the record
contains ‘sufficient indicia of incompetence,’ such that an inquiry into the defendant’s competency
is necessary to ensure the defendant’s right to a fair trial.” Ahmed, 103 Ohio St. 3d at 37, 2004Ohio-4190 at ¶ 64, quoting Berry, 72 Ohio St. 3d at 359, citing Drope, 420 U.S. 162, and Pate, 383
U.S. 375. The Ohio Supreme Court observed that over the course of the trial, neither of Ahmed’s
attorneys suggested he was incompetent to stand trial, Ahmed, 103 Ohio St. 3d at 38, 2004-Ohio4190 at ¶ 67, a factor that is one the Supreme Court has stated should “unquestionably . . . be
considered” in determining entitlement to a competency hearing, Drope, 420 U.S. at 906 and n.13.
The state supreme court also concluded that “[n]either [Ahmed’s] behavior at trial nor any testimony
presented on his behalf provided ‘good cause’ to hold a hearing on his competency or ‘sufficient
indicia of incompetence,’” and acknowledged that “deference on such issues should be granted to

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those ‘who see and hear what goes on in the courtroom.” Ahmed, 103 Ohio St. 3d at 38, 2004-Ohio4190 at ¶ 68. The state court concluded that “[n]either appellant’s behavior at trial nor any
testimony presented on his behalf provided . . . ‘sufficient indicia of incompetence’” to warrant a
hearing. Id.
The Sixth Circuit Court of Appeals has summarized the law governing habeas corpus claims
such as the instant claim as follows:
The due-process right to a fair trial is violated by a court’s failure to
hold a proper competency hearing where there is substantial evidence
that a defendant is incompetent. Pate v. Robinson, 383 U.S. 375,
385-86 (1966). To be adjudged competent, a defendant must have
“sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” Dusky v. U[nited]
S[tates], 362 U.S. 402 (1960)(per curiam). Finally, as we noted long
ago in Williams v. Bordenkircher, 696 F.2d 464, 466 (6th Cir. 1983),
“the [Pate] Court did not prescribe a general standard for determining
whether the trial court should resort to evidentiary proceedings.” We
stated the test as requiring us to determine “whether a reasonable
judge, situated as was the trial court judge whose failure to conduct
an evidentiary hearing is being reviewed, should have experienced
doubt with respect to competency to stand trial.” Id. at 467.
Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006).
A mere allegation of incompetence is not enough to require a full-blown hearing on the issue,
however. In a footnote in Drope, the Supreme Court recognized that motions for a competence
hearing have often been made for the purpose of delay, and that the vast majority of such hearings
result in a finding of competence, not incompetence. 420 U.S. at 177 n.13. In addition, in Drope,
which was in the Court on direct appeal, the Court relied on “hindsight” and “later events” in
concluding that the defendant should have been provided a competency hearing, something this
Court may not do in habeas corpus. Id. at 177; Pinholster, 131 S. Ct. 1388; 28 U.S.C. § 2254(d).

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Ahmed now characterizes his participation in his trial as “irrational interference with his
appointed counsel’s efforts” (Traverse, Doc. No. 71 at PageID 1739). The Ohio Supreme Court
noted, as did the trial court, that Ahmed prepared his motion for a competency evaluation himself
using correct legal terms. Ahmed, 103 Ohio St. 3d at 38, 2004-Ohio-4190 at ¶ 66. Ahmed also
points to his frequent “accusations against everyone involved in the case” and Dr. Smalldon’s
diagnosis of a delusional disorder, persecutory type as indicia of his incompetence (Traverse, Doc.
No. 71 at PageID 1739), but does not explain how the Ohio Supreme Court’s finding that “mental
illness” does not equate to legal incompetency is unreasonable.
In short, Ahmed restates the arguments he made in the state court, and devotes little
argument to the real task at hand, which is to demonstrate how the Ohio Supreme Court’s decision
rejecting his claim is contrary to federal law as determined by the United States Supreme Court.
Recall that to be “contrary to” federal law, a decision must be more than erroneous or incorrect, it
must be objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 410 (2000). In addition, the
AEDPA imposes a “highly deferential standard for evaluating state-court rulings.” Lindh v. Murphy,
521 U.S. 320, 333 n.7 (1997). The Ohio Supreme Court’s decision rejecting Ahmed’s claim does
not come close to being objectively unreasonable. Accordingly, Ahmed’s sixth ground for relief
should be denied.

Seventh Ground for Relief
In his seventh ground for relief, Ahmed contends the trial court’s denial of his counsel’s
request for a continuance on the eve of trial was an abuse of discretion, and induced counsel’s
ineffectiveness. (Petition, Doc. No. 35 at PageID 265.) As in the sixth ground for relief, Ahmed

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does not even mention the Ohio Supreme Court’s decision on the claim, let alone allege it is contrary
to federal law or based upon an unreasonable determination of the facts. Instead, he copies the claim
virtually verbatim as it was presented to the state court16 as if this court were considering the claim
on direct appeal, which it is not. Consequently, he has failed to make out a claim cognizable in
habeas corpus. Respondent overlooks Ahmed’s failure, acknowledges that the claim is preserved for
habeas corpus review, and argues that the Ohio Supreme Court’s decision is neither contrary to nor
an unreasonable application of federal law. (Return of Writ, Doc. No. 61 at PageID 999-1004.)
Ahmed again argues that parts of 28 U.S.C. § 2254(d)(1) do apply to his claim and other parts do
not, and contends that he has established the denial of a continuance resulted in state-induced
ineffective assistance of trial counsel as well as deprived him of his right to present a defense.
(Traverse, Doc, No. 71 at PageID 1746-47.)
The Ohio Supreme Court thoroughly considered the claim Ahmed presented there and
rejected it, reasoning as follows:
On the day before voir dire began, appellant provided defense
counsel a list of approximately 60 potential witnesses that he wanted
contacted and interviewed to aid in his defense. The list of names
provided no addresses or phone numbers, but only a general
description of the area where the potential witnesses might be
located, i.e., Pakistan, Washington D.C., Pittsburgh, New York.
Defense counsel requested a continuance in order to find and
interview these potential witnesses. The state objected, and the trial
court denied the continuance, stating: “I believe that if we were to
work with this list, we might never have a trial. And so balancing the
need to have an efficient administration of justice and the tardy

16

The Court notes that most, not all, of the references to the standard of review applicable to an Ohio state court
direct appeal have been cut from the argument presented in the petition, and that typographical errors are different in
each version of the claim, but that substantively there is no difference between the claim as it was presented in the
state court and as it has been presented here. This short-cut and off-point practice of law (if it can be called that) is
especially troubling in a capital case.

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presentation of the list, the court overrules the motion for a
continuance.”
We have recognized that ‘“[t]he grant or denial of a continuance is a
matter [that] is entrusted to the broad, sound discretion of the trial
judge. An appellate court must not reverse the denial of a
continuance unless there has been an abuse of discretion.’” State v.
Jones (2001), 91 Ohio St. 3d 335, 342, 744 N.E.2d 1163, quoting
State v. Unger (1981), 67 Ohio St. 2d 65, 67, 21 O.O.3d 41, 43, 423
N.E.2d 1078, 1080. In evaluating a motion for a continuance,
“[s]everal factors can be considered: the length of delay requested,
prior continuances, inconvenience, the reasons for the delay, whether
the defendant contributed to the delay, and other relevant factors.”
State v. Landrum, 53 Ohio St. 3d at 115, 559 N.E.2d 710.
Appellant asserts that the denial of the continuance resulted in
ineffective assistance of counsel. However, the trial court’s denial of
a continuance did not result in ineffective assistance or reflect an
abuse of discretion. The motion was made at the beginning of voir
dire, and the list of names of potential witnesses was just that, a list of
names. No phone number s or addresses were provided, only general
locations. Moreover, defense counsel Olivito noted when requesting
the continuance that when he and Hershey were appointed, more than
six months earlier, “we began making inquiry of the defendant as to
witnesses that could assist us in either phase of this case.”
At a January 8, 2001[,] hearing, approximately one week before voir
dire began, appellant claimed that he had given names of potential
witnesses to counsel but that counsel had never contacted them.
Olivito responded that the list that appellant had given him did not
include telephone numbers and was largely made up of people in
Pakistan who did not speak English. Appellant then asserted that no
one had contacted other potential witnesses who live in the United
States and Canada and that “most of that information is available with
the sheriff’s office, because they confiscated all my phone books * *
*.” But nothing in the record, beyond appellant’s assertions,
indicates that appellant had previously relayed that information to
counsel. Furthermore, defense counsel noted that none of the
witnesses that appellant had named lived in Belmont County.
Hershey stated that he had contacted appellant’s brother in Toronto,
Canada, but [that the brother] had been uncooperative and had hung
up on him. Moreover, appellant’s own failure to communicate
specific information about potential witnesses to his attorneys
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contributed to the last-minute request for a continuance at the outset
of voir dire. Appellant could have easily told counsel earlier that
contact information for potential witnesses was in his address books
that were in the custody of the sheriff’s office. Also militating
against the requested continuance was the fact that no time period
was specified as to the proposed length of the continuance. In
addition, the list of potential witnesses contained people who lived in
Pakistan, whose testimony could be secured only with difficulty,
which suggests that the delay would be significant. Nor did appellant
proffer any summary of what the testimony of these witnesses would
have been, and thus there is no basis for us to judge the importance of
obtaining the continuance. By failing to proffer a description of the
testimony, appellant has not preserved the issue. See, e.g., State v.
Davie (1997), 80 Ohio St. 3d 311, 327, 686 N.E.2d 245; State v.
Twyford (2002), 94 Ohio St. 3d 340, 353, 763 N.E.2d 122.
The inconvenience that would have resulted if a continuance had
been granted also supports the trial court’s denial of appellant’s
requested continuance. The venire had been summoned, and an
open-ended continuance could have delayed the beginning of trial in
the hope that some witnesses could be located, to the inconvenience
of all involved with the trial.
Since the trial court’s denial of the requested continuance did not
amount to an abuse of discretion, we reject appellant’s tenth
proposition.
Ahmed, 103 Ohio St. 3d at 34-35, 2004-Ohio-4190 at ¶¶ 43-50.
The Sixth Circuit Court of Appeals has summarized the law governing Ahmed’s claim as
follows:
A trial court’s denial of a continuance rises to the level of a
constitutional violation only where there is “an unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a justifiable
request for delay.”’ Morris v. Slappy, 461 U.S., 11-12 (1983)
(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)); United States
v. Moreno, 933 F.2d 362, 371 (6th Cir. 1991). “There are no
mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.” Ungar,
376 U.S. at 589. To obtain habeas relief, it is not sufficient for the
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petitioner to show that the trial court arbitrarily denied the
continuance request; he “must also show that the denial of a
continuance actually prejudiced his . . . defense.” Burton v. Renico,
391 F.3d 764, 772 (6th Cir. 2004). “Actual prejudice may be
demonstrated by showing that additional time would have made
relevant witnesses available or otherwise [would have benefited] the
defense.” Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003).
Beuke v. Houk, 537 F.3d 618, 641 (6th Cir. 2008) (parallel citations omitted).
Aside from Ahmed’s failure to state a claim cognizable in habeas corpus, there was no
evidence before the trial court or the Ohio Supreme Court, nor is there evidence before this Court,
that demonstrates he was actually prejudiced by the trial court’s denial of his motion for a
continuance on the first morning of his trial. The Ohio Supreme Court brought that to Ahmed’s
attention in stating its observation that he failed to proffer a summary of what any of the sixty
belatedly provided witnesses would have testified to had they been located and called to testify at
trial.17 Ahmed, 103 Ohio St. 3d at 35, 2004-Ohio-4190 at ¶ 48. In fact, that court found that by
failing to do so, Ahmed had not preserved the issue for appellate review, which implies procedural
default of the claim although Respondent does not so argue.
Ahmed does not direct this Court’s attention to anywhere in the record where it might find
the names of any witnesses who would have been available at trial and willing to testify, nor has he
indicated what testimony they could have given that would have been beneficial to the defense. See
Powell, supra. Even ignoring the Ohio Supreme Court’s finding that Ahmed had not preserved his

17

The state court’s observation might be read as a hint that the claim should properly have been raised in postconviction since it is the type that of necessity would require resort to evidence outside the trial record, but that
course of action was not pursued by Ahmed’s post-conviction counsel. Even if Ahmed now argued that under
Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), any procedural default is excused, his claim would fail since
there is no “substantial claim of ineffective assistance at trial.” Id. at 1320. Although Ahmed argues that the trial
court’s denial of his motion for a continuance amounted to state-induced ineffective assistance, in reality if there was
any ineffectiveness, it was induced by Ahmed himself since he was at all times possessed of the list of potential
witnesses but did not provide it to his attorneys until the morning of the first day of his trial.

105

claim by proffering the testimonies of some or all of the sixty persons in the list of potential
witnesses, it remains that Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011),
limits the evidence this Court may consider when reviewing a state court’s merits decision in habeas
corpus to what was before the state court, which in Ahmed’s case does not include evidence
necessary to demonstrate prejudice from the denial of the motion for a continuance.
Ahmed has not shown that the Ohio Supreme Court’s decision was contrary to or an
unreasonable application of federal law as determined by the United States Supreme Court or based
on an unreasonable determination of the facts in light of the evidence before the state court at the
time the court rendered its decision overruling his proposition of law. Accordingly, he has not
demonstrated entitlement to habeas corpus relief, and his seventh ground for relief should be denied.

Eighth Ground for Relief
In his eighth ground for relief, Ahmed contends the trial judge was biased against him
throughout his trial. (Petition, Doc. No. 35 at PageID 273-77.) Respondent argues the claim is both
procedurally defaulted and meritless. (ROW, Doc. No. 61 at PageID 1004-6.) Ahmed refers the
Court to a memorandum in opposition to Respondent’s motion to dismiss procedurally defaulted
claims wherein he argues that he preserved the instant claim by (1) raising it in his affidavit of
prejudice in the Ohio Supreme Court, (2) raising it as error in his pro se post-conviction petition
which the state trial court refused to consider, and (3) identifying it as a proposition of law his
appellate counsel should have raised on direct appeal, in other words, a claim underlying his
application to reopen his direct appeal. (Traverse, Doc. No. 71 at PageID 1750; Memorandum, Doc.
No. 44 at PageID 666-67.) Ahmed does not contend that he raised the claim on direct appeal.

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As for Ahmed’s first allegation, that he preserved his claim by presenting it to the Ohio
Supreme Court in an affidavit of prejudice in case “01-AP-01” (Memorandum, Doc. No. 44 at
PageID 667), he provides no record reference where this Court might locate that document, and
searches of the Ohio Supreme Court’s website and an electronic database for an Ohio Supreme
Court case possessing that number returned no results. Even assuming the process suggested by
Ahmed were a valid method of preserving his claim for federal habeas corpus review, with no way
to verify that the claim was included in the document Ahmed references, and no way to determine
whether and how the Ohio Supreme Court ruled on the issue, this Court cannot assume it was
presented to the state court and adjudicated on its merits there. Thus, Ahmed’s claim that he
preserved his claim of judicial bias by filing an affidavit of prejudice with the Ohio Supreme Court
is unavailing.
Next, Ahmed argues he preserved the claim by including it in a pro se post-conviction
petition filed in the state court. (Memorandum, Doc. No. 44 at PageID 667.) Ahmed references
“02/20/03, Petitioner’s Additional Post Conviction Petition Grounds for Relief, Filed Pro Se, pp.
198-200” in his memorandum. That reference does not communicate to this Court where the
document can be found in the Appendix in these habeas proceedings. Although the Court is not
required to search the record for support for any party’s allegations, the Court did notice that Ahmed
filed a pro se post-conviction petition on October 3, 2002 (if the Court reads the file stamp
correctly), but no claim of judicial bias appears in that document. (Appendix, Vol. 7 at 310-316.)
The document is incomplete, however, ending in mid-sentence. Id. On October 11, 2002, it appears
that Ahmed amended his pro se post-conviction petition, but no claim of judicial bias appears
therein, either. (Appendix, Vol. 8 at 6-9.) Curiously, that document, too, is incomplete, ending as

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did the initial pro se petition in mid-sentence. Id. The Court has gone beyond the call of duty in
attempting to find in the record the document in which Ahmed claims to have preserved the instant
ground for relief, to no avail. Consequently, there is no indication that Ahmed presented his claim
of judicial bias to the state courts in post-conviction.
Finally, Ahmed argues that he preserved his claim of judicial bias by presenting it as a claim
underlying his ineffective assistance of appellate counsel claim in his application to reopen his direct
appeal in the Ohio Supreme Court. (Memorandum, Doc. No. 44 at PageID 667.) That argument has
been rejected in this Court’s discussion of Ahmed’s fifth argument against the procedural default of
his first ground for relief, supra. There is no reason to repeat the discussion here. An ineffective
assistance of appellate counsel claim does not preserve the underlying claims Ahmed argued
competent appellate counsel would have raised on direct appeal. Accordingly, whether or not
Ahmed included the judicial bias claim as one his appellate counsel should have presented in direct
appeal, it is not preserved for habeas corpus review.
To summarize the procedural arguments Ahmed has made, none of the three mechanisms
through which Ahmed claims to have preserved the instant ground for relief actually accomplished
that task. The claim is consequently procedurally defaulted. Were the Court to construe Ahmed’s
argument that he preserved his claim by raising it as a claim underlying his ineffective assistance of
appellate counsel claim as one alleging cause and prejudice sufficient to excuse the procedural
default (an argument Ahmed has not made), his claim of judicial bias would still fail because
appellate counsel were not ineffective, see Fifth Ground for Relief, Fourth Sub-Claim, supra.
Ahmed’s eighth ground for relief is procedurally defaulted without excuse and should be
denied for that reason.

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Ninth Ground for Relief
In his ninth ground for relief, Ahmed contends prosecutorial misconduct throughout his trial
rendered the trial unfair and his sentence unreliable. (Petition, Doc. No. 35 at PageID 277-98.)
Respondent argues that “a number” of the sub-claims were found by the Ohio Supreme Court to
have been waived for lack of a contemporaneous objection at trial, and that those sub-claims are
consequently procedurally defaulted. (ROW, Doc. No. 61 at PageID 1007.) Respondent goes on to
argue that none of the instances misled the jury or prejudiced Ahmed and that the ground for relief is
therefore meritless. Id. at 1011-18.
Ahmed’s entire response to Respondent’s procedural default defense is, “This claim of
prosecutorial misconduct was raised in the Ohio Supreme court in State v. Ahmed, 103 Ohio St. 3d
27; [sic] 2004-Ohio-4190; [sic] 813 N.E.2d 637.”18 (Traverse, Doc. No. 71 at PageID 1754-55.)
But finding that a petitioner presented a claim in the state court does not end this Court’s analysis of
a procedural default question: it matters what the state court did with the claim. As noted above, if
the state court relied upon an independent and adequate state procedural ground to deny the claim, it
is procedurally defaulted in a subsequent federal habeas corpus proceeding unless the petitioner can
show cause for the default and resulting prejudice. See Maupin, 785 F.2d at 138. Ahmed does not
address that part of the question. As far as arguing the issue actually before this Court, Ahmed
merely states, “This claim is a constitutional violation of Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974).” (Traverse, Doc. No. 71 at PageID 1772.) No further elaboration is provided.

18

No reference to the specific proposition of law in Ahmed’s appellate brief, or page number in the Ohio Supreme
Court’s decision where its discussion of the issue might be found has been provided.

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The page in Donnelly to which Ahmed refers in his traverse contains a discussion of the
differing standards applicable to a claim of denial of a specific provision of the Bill of Rights, and a
claim in which it is argued that the alleged error or errors “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. This Court finds
no holding in the cited page at all, much less one to which the Ohio Supreme Court’s decision on the
matter might be contrary. Ahmed’s practice of copying his state court appellate brief arguments into
his petition and then into his traverse misses the point of these proceedings. Federal habeas corpus
is not a “do over” of state appellate processes. The only questions before this Court are whether the
claims have been preserved for habeas review; whether unpreserved claims are excused from
procedural default; and whether the last state court to address the issues raised made a decision or
decisions contrary to federal law as determined by the holdings of the United States Supreme Court,
or that were based upon an unreasonable determination of the facts given the evidence before that
court. It is a rare set of circumstances that provides this Court with the opportunity to address a
petitioner’s claims de novo, in which case it would make sense to make the arguments that Ahmed
has made in his petition and traverse. But making arguments in habeas corpus that are identical to
those made in the state court is almost always a losing strategy since the issue here is different than
the one there.
Ahmed does not explain how the Ohio Supreme Court’s decision rejecting his claim of
prosecutorial misconduct is contrary to or an unreasonable application of federal law, or how it is
based on an unreasonable determination of the facts based on the evidence before the state court. He
merely states that “this claim” is a constitutional violation of Donnelly, supra, which does not even
make sense, for how can “this claim,” crafted by Ahmed, violate his federal constitutional right to a

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fair trial? In spite of these weaknesses in Ahmed’s presentation of his claim, this Court will address
them as best it can, and will address each sub-claim in order.
First, Ahmed claims the prosecutors engaged in misconduct when they mentioned the death
sentence in the guilt phase of his trial, thereby denying him his right to a fair trial. (Petition, Doc.
No. 35 at PageID 277-80.) The Ohio Supreme Court concluded that Ahmed had waived all but plain
error because he did not contemporaneously object to the prosecutor’s statements, then found that
the remarks did not amount to plain error. Ahmed, 103 Ohio St. 3d at 47, 2004-Ohio-4190 at ¶120.
Ahmed does not dispute the state court’s findings, and offers no excuse for or resulting prejudice
from the default. Ohio’s contemporaneous objection rule is an adequate and independent state
ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012), citing Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir.
2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854,
867 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982); see also, Seymour v. Walker,
224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010). Consequently, Ahmed’s first prosecutorial misconduct
sub-claim is procedurally defaulted and should be denied for that reason.19
Second, Ahmed argues that the prosecutor improperly referred to evidence in his opening
statement that he never produced during the trial, denying Ahmed his right to a fair trial. (Petition,
Doc. No. 31 at PageID 280-82.) Respondent does not contend the sub-claim is procedurally
19

The state court also briefly mentioned that the trial court had instructed the jurors that the opening statements
and closing arguments of the attorneys in the case were not evidence, insinuating that it would not have found the
prosecutor’s comments to have been reversible error even if Ahmed had preserved the claim with a
contemporaneous objection.

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defaulted, and it is not. When the claim was presented to the Ohio Supreme Court, it was rejected as
follows:
Appellant next complains that the prosecutor referred to evidence not
presented at trial. Before trial, the prosecutor informed the court that
it would not call a police officer who had taken a domestic-violence
report from Lubaina in 1994. But then in his opening statement, the
prosecutor stated: “Like many women in her situation, she filed
reports with the authorities, but never followed through.” Appellant
claims that the prosecutor promised one thing to the parties and the
court but then submitted evidence through the “back door” by
vouching to the jury that it existed.
Appellant is incorrect. The prosecution never stated that it would not
present any evidence of domestic-violence reports, only that it would
not present the 1994 report. The prosecution did present evidence
that Lubaina had complained of telephone harassment when Deputy
Steve Forro testified that he had responded to a March 1999
complaint by Lubaina. He also testified that Lubaina had decided to
handle the problem through her divorce proceedings.
Ahmed, 103 Ohio St. 3d at 47-48. Ahmed does not contend that the state court’s factual
determination is objectively unreasonable in light of the evidence presented in the state court
proceedings, and this Court is obligated to presume the state court’s factual findings are correct in
the absence of clear and convincing evidence to the contrary. Miller-El v. Cockrell, 537 U.S. 322,
330, 340 (2003); 28 U.S.C. § 2254(e)(1). Accordingly, Ahmed has not demonstrated entitlement
habeas relief on the instant sub-claim, and it should be denied.
In his third prosecutorial misconduct sub-claim, Ahmed argues that the prosecutor violated
Ohio R. Crim. P. 16(B) when he failed to disclose Ahmed’s own statement to police that he had
come to New York from St. Clairsville, Ohio, on the night he was arrested. (Petition, Doc. No. 35 at
PageID 282-83.) Federal habeas corpus is available only to correct federal constitutional violations.
Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); 28 U.S.C. § 2254(a). "[I]t is not

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the province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Thus, Ahmed has not stated a claim cognizable in habeas corpus and his third sub-claim should be
denied on that basis.
Moreover, although the instant sub-claim was presented to the state supreme court on appeal,
that court found that Ahmed had waived the claim because he had failed to lodge a contemporaneous
objection at trial. Ahmed, 103 Ohio St. 3d at 48, 2004-Ohio-4190 at ¶¶ 123-24. The state supreme
court also mentioned in the alternative, that even if Ahmed had objected in a timely manner to the
alleged misconduct, the outcome of his trial would not have been impacted. Id. Ahmed does not
dispute either of the state court’s conclusions in his petition or traverse, preferring instead to stick
with the same arguments he made in the state court.
Tellingly, Ahmed does not deny having made the statement in question to the police officer.
He merely argues that having knowledge of his own statement “would have been of benefit to
Ahmed, and Ahmed was thereby prejudiced” by the prosecutor’s having failed to disclose to him a
statement he does not deny making. Presumably, Ahmed is aware of the things he says, and this
Court is unwilling to follow him down the rabbit hole of illogic into which he appears to be
descending. Ahmed also attempts to demonstrate prejudice from the alleged misconduct by stating
that his comment to the officer “placed him at the locale of the murders.” But “[v]irtually all
evidence is prejudicial or it isn’t material.” Old Chief v. United States, 519 U.S. 172, 193 (1997)
(O’Connor, J., dissenting), quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir.
1977). Weak and unsupported allegations that certain material would have been beneficial to

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Ahmed and that his own comment prejudiced him would fall short of the standard set by the AEDPA
for demonstrating constitutional error, even if the instant sub-claim presented a preserved issue
cognizable in habeas corpus.
Ahmed’s third prosecutorial misconduct sub-claim should be denied because it is not
cognizable in habeas corpus and it is also procedurally defaulted. Even if the claim were presented
as a federal constitutional violation and properly preserved, however, it would still fail since Ahmed
has not demonstrated actual prejudice from the alleged misconduct sufficient to warrant habeas
corpus relief.
In his fourth and fifth prosecutorial sub-claims, Ahmed contends that “[d]uring its case-inchief, the prosecution improperly elicited testimony regarding Dr. Bhatti’s fear of Ahmed and the
reasons for that fear,” and that “[d]uring its case-in-chief, the prosecution improperly elicited
evidence of other bad acts, including the highly inflammatory accusation that Ahmed previously
raped Dr. Bhatti.” (Petition, Doc. No. 35 at PageID 283.) Those two sentences are the sum total of
Ahmed’s arguments in both his petition and his traverse. (Petition, Doc. No. 35 at PageID 283;
Traverse, Doc. No. 71 at PageID 1759.)
Respondent does not advance a procedural default defense, and simply states that the subclaims are meritless as discussed “in other [unidentified] sections” of the return of writ (ROW, Doc.
No. 61 at PageID 1015), which is over one hundred pages in length. Fortunately, the state court’s
decision provided this Court with a clue as to which “other sections” Respondent might be referring
when it held as follows: “Appellant also claims that the prosecutor improperly elicited testimony
that Lubaina had feared appellant and that appellant had raped her. However, as discussed earlier
regarding appellant’s third and fourth propositions of law, that testimony was either proper or did

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not affect the outcome of appellant’s trial.” Ahmed, 103 Ohio St. 3d at 48, 2004-Ohio-4190 at ¶ 125.
In those propositions of law, where Ahmed claimed the challenged evidence was inadmissible
hearsay and other acts evidence, the state supreme court found that testimony as to Lubaina’s “then
existing state of mind, emotion, sensation, or physical condition” was properly admissible under a
hearsay exception. Id. at 39 ¶ 74. Testimony regarding Ahmed’s rape of Lubaina was found by the
state court to have been first elicited by defense counsel and was invited error. Id. at ¶ 75. In
addition, the court observed that no objection to the testimony alleged to have been hearsay and
inadmissible other acts evidence had been raised, so all but plain error, of which it found none, was
waived. Id. at 39-40 ¶ 76.
Respondent could have, but has not, made a colorable claim of procedural default concerning
Ahmed’s fourth and fifth prosecutorial misconduct sub-claims. As it happens, Ahmed presented
claims to this court that evidence of Lubaina’s fear and his rape of her was admitted at his trial in
violation of the hearsay and other acts evidentiary rules in his eleventh and twelfth grounds for
relief, infra, and those claims are found to be both procedurally defaulted and meritless.
Accordingly, to the extent the complained-of testimony was elicited by the prosecutor, no
misconduct occurred. Thus, Ahmed’s fourth and fifth prosecutorial misconduct sub-claims should
be denied as meritless.
Sixth, Ahmed alleges the prosecutors engaged in misconduct during the guilt-phase closing
argument by vouching for their witnesses, making derogatory comments about defense counsel, and
speculating about the evidence. (Petition, Doc. No. 35 at PageID 283-87.) Although Respondent
does not mention this sub-claim under his sub-heading “Procedural Posture” (ROW, Doc. No. 61 at
PageID 1007), he does argue that it is “waived” for lack of contemporaneous objections to the

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comments in his discussion of the merits of the sub-claim, id. at PageID 1015. The Court construes
that argument as an argument that the claim is procedurally defaulted for habeas corpus purposes. In
typical fashion, Ahmed does not specifically address Respondent’s argument that his sub-claim is
procedurally defaulted other than to state that his overarching claim of prosecutorial misconduct was
presented to the state court. (Traverse, Doc. No. 71 at PageID 1754-55.)
Ahmed is correct, however, when he states that he presented the instant sub-claim to the
Ohio Supreme Court on direct appeal. (Appendix, Vol. 3 at 325-28.) What he fails to acknowledge
is that the state supreme court denied the claim because he did not lodge a contemporaneous
objection to the comments about which he complained.20 Ahmed, 103 Ohio St. 3d at 48, 2004-Ohio4190 at ¶ 126. Ahmed offers no argument suggesting the state court’s decision was in any way
erroneous, nor does he argue cause for the default or prejudice therefrom. Since the state court
relied on an independent and adequate state procedural ground in disposing of Ahmed’s claim, see
Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662,
673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir. 2007); Biros v. Bagley, 422 F.3d
379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003), citing Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854, 867 (6th Cir. 2000), citing
Engle v. Isaac, 456 U.S. 107, 124-29 (1982), and Ahmed has offered no excuse for the default, this
Court is precluded from addressing the merits of the sub-claim. Coleman v. Thompson, 501 U.S.
722, 729-30 (1991), citing Wainwright v. Sykes, 433 U.S. 72, 81 (1977); Ulster County Court v.
Allen, 442 U.S. 140, 148 (1979). Consequently, Ahmed’s sixth prosecutorial misconduct sub-claim
should be denied as procedurally defaulted.

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In his seventh prosecutorial misconduct sub-claim, Ahmed contends that the prosecutor who
cross-examined Ahmed’s psychological expert, Dr. Smalldon, during the penalty phase of his trial
exceeded the bounds of permissible cross-examination. (Petition, Doc. No. 35 at PageID 287.) In
particular, he argues that the prosecutor’s questioning Dr. Smalldon as to whether Ahmed had
expressed remorse for the murders, his referring to Dr. Smalldon as a magician, his attempt to
discredit Dr. Smalldon by insinuating that Dr. Smalldon advertised his services exclusively to
defense lawyers, and his criticism of Dr. Smalldon’s failure to submit a written report were
improper. Id. at 287-89. Respondent does not advance a procedural default defense and instead
argues that the claim was appropriately found to be meritless by the Ohio Supreme Court. (ROW,
Doc. No. 61 at PageID 1015.) The Ohio Supreme Court found the prosecutor’s tactics to be proper
cross-examination “designed to detect bias in Smalldon and thereby discredit his findings of
mitigating evidence in favor of [Ahmed].” Ahmed, 103 Ohio St. 3d at 48, 2004-Ohio-4190 at ¶ 127.
Ahmed does not explain how that decision by the state court is contrary to or an unreasonable
application of federal law as determined by the United States Supreme Court or is based upon an
unreasonable determination of the facts in light of the evidence before the court, other than to simply
assert that it is so. (Traverse, Doc. No. 71 at PageID 1772.) That being the case, he has not
demonstrated entitlement to habeas corpus relief and his seventh prosecutorial misconduct sub-claim
should be denied.
In his eighth sub-claim, Ahmed contends the prosecutor denigrated defense counsel in his
penalty-phase closing argument. (Petition, Doc. No. 35 at PageID 290.) Respondent does not argue

20

In the alternative, the state court found that the prosecutor’s challenged statements did not determine the outcome of
Ahmed’s trial. Ahmed does not explain how that alternative finding contradicts the federal constitution.

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that the sub-claim is procedurally defaulted, but instead that it is without merit. (ROW, Doc. No. 61
at PageID 1007, 1016.)
The challenged comments imply that defense counsel had fewer or less rigid rules to follow
during trial than the prosecution. The prosecutor also stated that if he had invoked the Bible in his
argument, the trial judge would have put a stop to it at once. He urged the jurors not to abandon
their common sense just because defense counsel had quoted from the Bible in his closing argument.
The Ohio Supreme Court found as follows:
These comments were made in reply to the defense’s closing
argument employing biblical references such as God did not sentence
Cain to death for killing Abel, Christ pronounced that “we should
turn the other cheek,” and Christ sought mercy for his killers. While
the prosecutor’s remarks were theatrical, they were provoked by
defense counsel’s argument. In any event, none of these comments
affected appellant’s substantial rights.
Ahmed, 103 Ohio St. 3d at 49, 2004-Ohio-4190 at ¶ 133. Ahmed does not address the Ohio Supreme
Court’s findings, and instead presents exactly the same arguments to this Court that he presented to
the Ohio Supreme Court on direct appeal. As such, he has failed to demonstrate that the state
supreme court’s decision was contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court or that it was based on an unreasonable
determination of the facts in light of the evidence before the court and is not entitled to habeas
corpus relief. Ahmed’s eighth prosecutorial misconduct sub-claim should be denied.
In his ninth sub-claim, Ahmed contends the prosecutor’s argument concerning the relative
weight in pounds to be given the aggravating circumstances and mitigating factors constituted
misconduct. (Petition, Doc. No. 35 at PageID 290-93.) Respondent acknowledges the claim is

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preserved for habeas review and relies heavily on the Ohio Supreme Court’s decision on the claim.21
(ROW, Doc. No. 61 at PageID 1017.)
The Ohio Supreme Court rejected Ahmed’s claim, reasoning as follows:
Appellant next complains about the prosecutor’s speculating on how
many “pounds” of weight should be accorded to the aggravating
circumstances and the mitigating factors. Appellant’s objection on
this point was correctly overruled by the trial court, as we have noted
that “[a] prosecutor can freely argue the weight to be given to
potentially mitigating factors.” State v. Loza (1994), 71 Ohio St. 3d
61, 82, 641 N.E.2d 1082. In addition, the question “What’s the
weight you give to four innocent lives taken the way they were
taken?” does not necessarily suggest, as appellant submits, that the
prosecutor was inviting the jury to weigh the nature and
circumstances of the offenses as aggravating circumstances, which
would violate our holding in State v. Wogenstahl (1996), 75 Ohio St.
3d 344, 662 N.E.2d 311, paragraph two of the syllabus, “Isolated
comments by a prosecutor are not to be taken out of context and
given their most damaging meaning.” State v. Hill (1996), 75 Ohio
St. 3d 195, 204, 661 N.E.2d 1068, citing Donnelly v. DeChristoforo
(1974), 416 U.S. 637, 647.
Ahmed, 103 Ohio St. 3d at 49, 2004-Ohio-4190 at ¶ 134. Ahmed’s argument that this “claim”
violates the federal law established in Donnelly v. Christoforo, 416 U.S. 637 (1974), does not
explain how that is so, and after rereading Donnelly, this Court is unable to fill in the blanks of
Ahmed’s argument, even if it were proper to do so.
Ahmed has not demonstrated that the Ohio Supreme Court’s decision is either contrary to or
an unreasonable application of federal law as determined by the United States Supreme Court, or
based upon an unreasonable determination of the facts in light of the evidence before the state court.
Accordingly, his ninth prosecutorial misconduct sub-claim should be denied.

21

Indeed, Respondent has copied parts of the Ohio Supreme Court’s decision into his argument without bothering
to cite the court’s opinion.

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In his tenth sub-claim, Ahmed contends the prosecutor improperly indicated that if he were
given a death sentence, it would be highly unlikely that he would ever be executed, thereby
lessening the jury’s responsibility for imposing the death sentence. (Petition, Doc. No. 35 at PageID
293-94.) Respondent has not advanced a procedural default defense, and again copies the Ohio
Supreme Court’s decision without quotation or citation, adding no original argument. (ROW, Doc.
No. 61 at PageID 1017.) The state supreme court held that “the defense objected, and the trial court
sustained the objection and instructed the jury to disregard the comment,” Ahmed, 103 Ohio St. 3d
at 50, 2004-Ohio-4190 at ¶ 135. Ahmed does not challenge the state court’s reasoning, preferring
instead to simply repeat the arguments he put before the state court as if this Court were answering
the same question. He does contend that the situation called for more than an instruction to the jury
to disregard the comment, but provides no authority for that proposition. (Traverse, Doc. No. 71 at
PageID 1771.) As before, Ahmed’s stating that “the claim” violates Donnelly does not come close
to meeting his burden of demonstrating that the Ohio Supreme Court’s decision is contrary to federal
law or based on an unreasonable determination of the facts. Consequently, this sub-claim, too,
should be denied.
In his eleventh prosecutorial misconduct sub-claim, Ahmed contends that the prosecutor
engaged in misconduct by attacking Ahmed’s character in his penalty-phase closing argument.
(Petition, Doc. No. 35 at PageID 294.) Respondent concedes the claim is preserved for habeas
corpus review, but argues it is nonetheless meritless. (ROW, Doc. No. 61 at PageID 1017.) The
Ohio Supreme Court denied Ahmed’s claim on direct appeal, characterizing the prosecutor’s
argument that Ahmed might be “just a bad person who does bad, evil things” as fair argument
against the psychological evidence Ahmed presented in the penalty hearing. Ahmed, 103 Ohio St.

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3d at 50, 2004-Ohio-4190 at ¶ 136. Ahmed does not address the state supreme court’s decision and
instead argues here what he argued in that court, tacking on the statement that “[T]his claim is a
constitutional violation of Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).” (Traverse, Doc.
No. 71 at PageID 1772.) Ahmed’s burden of demonstrating that the state court’s decision is contrary
to federal law or based upon an unreasonable determination of the facts is not met by that single
sentence, and his eleventh sub-claim should also be denied.
In his twelfth sub-claim, Ahmed contends that the prosecutor’s comments about Dr.
Smalldon’s mitigation testimony went beyond appropriate argument. (Petition, Doc. No. 35 at
PageID 294-97.) Respondent counters that the sub-claim is procedurally defaulted. (ROW, Doc.
No. 61 at PageID 1007.)
Ahmed presented the instant sub-claim to the Ohio Supreme Court on direct appeal as part of
his fifth proposition of law. (Appendix, Vol. 3 at 336-38.) The state court found all but plain error
waived, as Ahmed did not object to the prosecutor’s comments on Dr. Smalldon’s testimony during
closing argument. Ahmed, 103 Ohio St. 3d at 50, 2004-Ohio-4190 at ¶ 138. The court found no
plain error, and distinguished the case Ahmed relied on there (and upon which he continues to rely
here), Gall v. Parker, 231 F.3d 265 (6th Cir. 2000),22 stating that:
In Gall, the court found the comments by the prosecutor to be an
attack on the legitimacy of the defense of insanity, a defense that had
been enacted by the legislature. In this case, the prosecutor merely
questioned Smalldon’s expert opinion and did not attack the
legitimacy of a mental disease or defect as a mitigating factor.

22

See Parker v. Matthews, 132 S.Ct. 2148, 2155-56 (2012), however, in which the Supreme Court strongly
criticizes the Sixth Circuit’s continuing reliance on Gall since it was decided under pre-AEDPA law and relied on its
own circuit precedent rather than “firmly established federal law as determined by the United States Supreme
Court,” as required by the AEDPA.

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Ahmed, 103 Ohio St. 3d at 50, 2004-Ohio-4190 at ¶ 138. Ahmed does not contend that the state
court’s distinguishing Gall from his case, or the court’s finding that there was no plain error is
contrary to federal law or based upon an unreasonable determination of the facts. His statement that
“this claim” is a constitutional violation of Donnelly, supra, fails to meet his burden under the
AEDPA. Consequently, Ahmed’s twelfth prosecutorial misconduct sub-claim should be denied.
Finally, Ahmed contends that the cumulative effect of the instances of prosecutorial
misconduct that were preserved at trial by objections amounts to a constitutional violation of his
Eighth and Fourteenth Amendment rights. (Petition, Doc. No. 35 at 297-98.) Respondent does not
address this sub-claim in his return of writ. The Ohio Supreme Court examined all the instances of
alleged prosecutorial misconduct and concluded that any effect they had, individually or
cumulatively, did not warrant a reversal of Ahmed’s convictions or death sentence. Ahmed, 103
Ohio St. 3d at 50, 2004-Ohio-4190 at ¶ 139. In both his petition and his traverse, Ahmed merely
copied his arguments from his appellate brief to the state supreme court without even bothering to
correct the terminology (he refers to “this proposition of law” rather than the correct term “ground
for relief” (Appendix, Vol. 3 at 338; Petition, Doc. No. 35 at PageID 297; Traverse, Doc. No. 71 at
PageID 1770)) or typographical errors (he states that “[m]ore definition guidance” beyond curative
instructions was required when his objections were sustained (Appendix, Vol. 3 at 338; Petition,
Doc. No. 35 at PageID 29823)). He does not argue that the state supreme court’s decision was
contrary to federal law or based upon an unreasonable determination of the facts, but of course, he
states “this claim is a constitutional violation of Donnelly,” as before.

23

In his traverse, Ahmed changed the term to “definitional guidance.” (Doc. No. 71 at PageID 1771.)

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Ahmed has failed to demonstrate entitlement to the writ of habeas corpus on prosecutorial
misconduct grounds. His arguments on each sub-claim can be summarized as a repetition of the
same arguments he made to the Ohio Supreme Court on direct appeal, which widely misses the issue
before this Court, which is whether the state court’s decision was contrary to or an unreasonable
application of federal law as determined by the holdings of the United States Supreme Court, or was
based upon an unreasonable determination of the facts in light of the evidence before the state court.
Individually and cumulatively, his alleged instances of misconduct did not so infect his whole trial
so as to deprive him of due process of law.
In summary, Ahmed’s first, sixth, and twelfth prosecutorial misconduct sub-claims should be
denied as procedurally defaulted. His third sub-claim should be denied on the ground that it does
not state a claim cognizable in federal habeas corpus. His second, fourth, fifth, seventh, eighth,
ninth, tenth, and eleventh sub-claims are meritless individually and collectively, so they, too, should
be denied. Accordingly, the entirety of Ahmed’s ninth ground for relief should be denied for the
reasons stated.

Tenth Ground for Relief
In his tenth ground for relief, Ahmed contends New York Port Authority officer Robert
Nanni’s testimony that Ahmed had requested an attorney upon being apprehended at John F.
Kennedy airport in New York was erroneously admitted, and that it violated his right to due process.
(Petition, Doc. No. 35 at PageID 298-304.) Respondent argues that the trial court’s instruction to
the jurors to disregard that part of Nanni’s testimony cured any resulting prejudicial error. (ROW,

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Doc. No. 61 at PageID 1018-20.) Ahmed claims the instruction was “hopelessly inadequate, since
the jury had already heard the constitutional violation.” (Traverse, Doc. No. 71 at PageID 1773.)
During Ahmed’s trial, Nanni testified twice to Ahmed’s having requested his attorney upon
his arrest. (Trial Tr., Vol. 8 at 470, 476.) At the conclusion of Nanni’s direct examination, and at
the prosecutor’s request, a break was taken. During that break, the prosecutor acknowledged having
inadvertently elicited Nanni’s testimony that Ahmed had requested an attorney. Id. at 492. Defense
counsel indicated that a corrective instruction was in order. Id. at 493. The prosecutor and defense
counsel both had input into the instruction that was to be given. Id. When the jury returned, the trial
court gave the following instruction, which encompasses the suggestions made by the prosecutor and
defense counsel:
A few moments ago, the witness stated that during police
interrogation, the defendant requested the right to counsel. You are
instructed to disregard the defendant’s request to speak to counsel.
Each of us has an absolute right to have counsel present during any
police interrogation. You are to infer nothing from his having
requested the right to speak to counsel.
(Trial Tr., Vol. 8 at 494.)
Ahmed presented the issue to the state supreme court on direct appeal as his eighth
proposition of law. (Appendix, Vol. 3 at 380-86.) That court rejected Ahmed’s claim, finding that
although Nanni’s testimony was clearly improper, Ahmed never objected to it; any prejudice was
cured by the trial court’s instruction to disregard the testimony, which the jury was presumed to have
followed; and the trial court did not err in failing to sua sponte order a mistrial. Ahmed, 103 Ohio St.
3d at 41-42, 2004-Ohio-4190 at ¶¶ 89-93.
Although the state court first noted that Ahmed had not objected to the improper testimony, it
was essentially an aside made as part of the court’s description of how the error was presented to the
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court by the prosecutor and the agreement by the parties that a curative instruction should be given.
Thus, the court’s comment does not affect reliance on an independent and adequate state procedural
rule, that there be a contemporaneous objection when error occurs, so as to raise the specter of
procedural default, and Respondent wisely does not claim that it does.
Ahmed argues that the instruction given was woefully inadequate to vindicate his
constitutional right to due process, in essence, a “you can’t unring the bell” argument. (Petition,
Doc. No. 35 at PageID 301, 303.) As appealing as that argument might be, it is not the law. The
United States Supreme Court has recognized the value of curative instructions as described in
Richardson v. Marsh, 481 U.S. 200 (1987), which reads as follows:
[There is an] almost invariable assumption of the law that jurors
follow their instructions, Francis v. Franklin, 471 U.S. 307, 325 [sic],
n.9 (1985), which we have applied in many varying contexts. For
example, in Harris v. New York, 401 U.S. 222 (1971), we held that
statements elicited from a defendant in violation of Miranda v.
Arizona, 384 U.S. 436 (1966), can be introduced to impeach that
defendant’s credibility, even though they are inadmissible as
evidence of his guilt, so long as the jury is instructed accordingly.
Similarly, in Spencer v. Texas, 385 U.S. 554 (1967), we held that
evidence of the defendant’s prior criminal convictions could be
introduced for the purpose of sentence enhancement, so long as the
jury was instructed it could not be used for purposes of determining
guilt. Accord, Marshall v. Lonberger, 459 U.S. 422, 438-439, n. 6
(1983). See also Tennessee v. Street, 471 U.S. 409, 414-416 (1985)
(instruction to consider accomplice’s incriminating confession only
for purpose of assessing truthfulness of defendant’s claim that his
own confession was coerced); Watkins v. Sowders, 449 U.S. 341, 347
(1981) (instruction not to consider erroneously admitted eyewitness
identification evidence); Walder v. United States, 347 U.S. 62 (1954)
(instruction to consider unlawfully seized physical evidence only in
assessing defendant’s credibility). . . .
Richardson, 481 U.S. at 206-7 (parallel citations omitted). The Court acknowledged that there are
some contexts in which the jury either will not or cannot follow an instruction, and gave the example

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of a case where a “facially incriminating confession of a nontestifying codefendant is introduced at
[a] joint trial.” Id. at 207, citing Bruton v. United States, 391 U.S. 123, 135-36 (1968). The Court
distinguished Bruton in Richardson, however, explaining that in Bruton the codefendant’s
confession expressly implicated the defendant, whereas in Richardson, the codefendant’s confession
was not facially incriminating and only became so when viewed in context with evidence introduced
later in the trial. Richardson, 418 U.S. at 208. The Court put it succinctly when it wrote:
[W]ith regard to . . . an explicit statement the only issue is, plain and
simply, whether the jury can possibly be expected to forget it in
assessing the defendant’s guilt; whereas with regard to inferential
incrimination the judge’s instruction may well be successful in
dissuading the jury from entering onto the path of inference in the
first place, so that there is no incrimination to forget.
Id. In Ahmed’s case, the testimony at issue did not expressly implicate him, and it would require the
jury to infer that he would not have asked for his lawyer unless he was guilty for it to become
incriminatory, thus making it more likely that the jury obeyed the instructions to disregard the
inadvertently elicited testimony.
In a case even more analogous to Ahmed’s, the Court observed that:
We normally presume that a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it, unless
there is an “overwhelming probability” that the jury will be unable to
follow the court’s instructions, Richardson,v. Marsh, 481 U.S. 200,
208 (1987), and a strong likelihood that the effect of the evidence
would be “devastating” to the defendant, Bruton v. United States, 391
U.S. 123, 136 (1968). We have no reason to believe that the jury in
this case was incapable of obeying the curative instructions. And far
from being “devastating,” the fact of Miller’s postarrest silence was
at most “insolubly ambiguous.” Doyle v. Ohio, 426 U.S. 610, 617
(1976). Miller argues that the curative instructions should have been
more specific. But Miller’s trial counsel bore primary responsibility
for ensuring that the error was cured in the manner most
advantageous to his client. Once it became apparent that the judge

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was not going to grant a mistrial, it was the duty of counsel to
determine what strategy was in his client’s best interest.
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (parallel citations omitted). In Ahmed’s trial, his
attorneys never moved for a mistrial, but they did agree that a curative instruction was warranted and
they participated in formulating the instruction given after the prosecutor raised the issue. As the
Supreme Court indicated, the manner in which such errors are handled is a matter of trial strategy.
Although at the end of his argument on the instant ground for relief, Ahmed alleges that his
trial counsel were ineffective for failing to move for a mistrial after Nanni’s testimony, he never
challenged his attorneys’ decision to forego a motion for a mistrial in the state court, nor did he file a
timely application to reopen his direct appeal on the ground that his appellate counsel were
ineffective for not raising as error trial counsel’s decision to forego a motion for mistrial in favor of
the curative instruction given. In addition, in his fourth ground for relief in these proceedings, where
he alleged many instances of his trial counsel’s ineffectiveness, this particular allegation is absent.
It is unclear for what purpose Ahmed includes the allegation about his trial counsel. If there
were an argument or suspicion on his part that the claim were procedurally defaulted, this Court
could interpret the argument as one attempting to show cause and prejudice for the default, but that
is not the case here. If Ahmed is attempting instead to raise his counsel’s alleged ineffectiveness for
any other reason, it would be found to be procedurally defaulted for his having failed to raise it at all
in the state courts.
Ahmed also alleges that the trial court should have realized that the admission of Ahmed’s
statement as testified to by Nanni so damaged his defense that a mistrial should have been declared
sua sponte. That defense counsel never requested such relief and were unabashedly in favor of a

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cautionary instruction instead militates against that argument. Finally, Ahmed contends that the
prosecutor’s elicitation of the improper testimony from Nanni constituted prosecutorial misconduct.
Ahmed did not raise that argument as a sub-claim in his ninth ground for relief which is devoted to
prosecutorial misconduct, and the prosecutor repeatedly characterized the elicitation of the testimony
as inadvertent and unintentional. (Trial Tr., Vol. 8 at 492-93.) Should any doubt remain about the
prosecutor’s lack of intent in bringing out the testimony regarding Ahmed’s request for a lawyer, it
is resolved by the prosecutor’s having brought the issue to the court’s attention in the first place.
With no objection or request from defense counsel following the testimony, the prosecutor could
quite easily have let the matter go and the curative instruction might never have been given to the
jury. Instead, he drew the court’s and defense counsel’s focused attention to the matter and left the
remedy up to defense counsel. Id. Rather than misconduct, the prosecutor honored his role as an
officer of the court by bringing the improper testimony up and assisting the court, with defense
counsel, in composing a curative instruction.
In summary, Ahmed as not demonstrated that the Ohio Supreme Court’s resolution of his
claim that Officer Nanni’s improper testimony warranted a mistrial was in any way contrary to or an
unreasonable application of federal law as determined by the United States Supreme Court.
Accordingly, he is not entitled to habeas corpus relief, and his tenth ground for relief should be
denied for that reason.

Eleventh Ground for Relief

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In his eleventh ground for relief, Ahmed contends that the admission of hearsay evidence
concerning Lubaina’s fear of Ahmed and the reasons for that fear denied him a fair trial, due
process, and a reliable determination of his guilt and appropriate sentence. (Petition, Doc. No. 35 at
PageID 304-09.) Respondent asserts that the claim is procedurally defaulted, and that it alleges a
violation of state evidentiary law and is therefore not cognizable in habeas corpus. (ROW, Doc. No.
61 at PageID 1201.) In his traverse, Ahmed refers the Court to his previously filed memorandum in
opposition to Respondent’s motion to dismiss procedurally defaulted claims. (Doc. No. 71 at
PageID 1779.) There, Ahmed argues that some of the hearsay statements were determined by the
state supreme court to have been properly admitted, and he argues to the extent the state court
addressed the merits of his claim, it is not procedurally defaulted. (Memorandum, Doc. No. 44 at
PageID 678-79.) Other hearsay statements were admitted but any error was deemed waived for lack
of a contemporaneous objection. Id. Ahmed also argues that any procedural default of any part of
his eleventh ground for relief is excused by his trial counsel’s ineffectiveness. Id.
When presented with the claim, the Ohio Supreme Court found as follows:
In his third proposition of law, appellant argues that the admission of
hearsay evidence regarding Lubaina’s fear of appellant and the
reasons for her fear deprived him of a fair trial.
Grace Hoffman, Lubaina’s divorce attorney, testified that Lubaina
had been afraid of appellant. On cross-examination, defense counsel
elicited from Hoffman that Lubaina had described appellant as
controlling and manipulative and that Lubaina had told her that
appellant had been violent during the marriage, including “forced
sex” and “some striking.” On redirect, Hoffman again stated that
Lubaina had been afraid of appellant during the divorce proceedings.

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Tahira Khan, Lubaina’s sister, also testified that Lubaina had been
afraid of appellant. The second time this was elicited from Khan, the
defense objected and the court essentially advised the prosecutor to
limit his questions to adducing testimony that Lubaina had feared
appellant and not the reasons behind the fear.
Khan also testified that when she had asked Lubaina why, with all the
problems in the marriage, she and appellant had had a second child,
Lubaina had told her, “He raped me.” The defense did not object to
this testimony.
In State v. Apanovich (1987), 33 Ohio St. 3d 19, 21-22, this court
held that evidence that a victim had a fearful state of mind was
admissible as a hearsay exception under Evid.R. 803(3), as a
statement of “then existing state of mind, emotion, sensation, or
physical condition.” However, the reasons or basis behind the
victim’s fearful state of mind would not be admissible under this
exception. This court has followed the reasoning in Apanovich in
subsequent cases. . . . With regard to testimony of fear elicited in this
case, the trial court properly allowed the testimony. No testimony
was admitted over objection as to the basis of the victim’s fear.
With regard to the testimony that appellant had “forced sex” on
Lubaina, defense counsel elicited this statement on crossexamination. Any error in admitting this testimony and Khan’s
subsequent testimony that appellant had raped Lubaina was invited
error, since the defense first elicited the testimony. . . . The defense
opened the door to Khan’s remark about rape based on its crossexamination of Hoffman. . . .
Moreover, since no objection was raised, appellant has waived all but
plain error. State v. Slagle (1992), 65 Ohio St. 3d 597, 604, 605
N.E.2d 916. In view of the strong and compelling evidence of
appellant’s guilt, any error was not plain error affecting the outcome
of his trial. . . . Accordingly, we overrule appellant’s third
proposition.
Ahmed, 103 Ohio St. 3d at 38-40, 2004-Ohio-4190 at ¶¶ 70-76 (some citations omitted).

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The Court agrees with Respondent that the claim presented by Ahmed concerns a matter of
state evidentiary law and does not implicate the federal constitution. When Ahmed presented his
hearsay claim to the Ohio Supreme Court, he never once mentioned the Confrontation Clause, and
only indirectly referenced it in the heading of his third proposition of law in his appellate brief by
stating he was denied his rights “AS GUARANTEED BY U.S. CONST. AMENDS. V, VI, VIII
AND XIV” as well as the Ohio Constitution. (Appendix, Vol. 3 at 298.) In his argument, he relied
upon state law and evidentiary rules, acknowledging that the testimony presented on Lubaina’s fear
of Ahmed was admissible under the state evidentiary rules, but arguing that admission of the
testimony about the reasons for her fear (abuse, rape) constituted prejudicial other acts evidence and
was therefore inadmissible under Ohio R. Evid. 803(3). Id. at 302. He cited no federal authority. In
his conclusion, he referenced the Due Process Clause of the Fourteenth Amendment, but no other
provision of the federal constitution. Id. at 305. The Ohio Supreme Court apparently read the
claimed error as implicating only state law as well, since it relied exclusively on its own cases and
the state evidentiary rules in rejecting Ahmed’s claim. Ahmed, 103 Ohio St. 3d at 38-40, 2004Ohio-4190 at ¶¶ 70-76, citing State v. Apanovitch, 33 Ohio St. 3d 19, 21-22 (1987); State v. Simko,
71 Ohio St. 3d 483, 491 (1994); State v. Frazier, 73 Ohio St. 3d 323, 338 (1995); State v. Awkal, 76
Ohio St. 3d 324, 331 (1996), State v. Reynolds, 80 Ohio St. 3d 670, 677-78 (1998); State v. LaMar,
95 Ohio St. 3d 181, 2002-Ohio-2128 at ¶ 102 (2002); State v. Davie, 80 Ohio St. 3d 311, 322 (1997);
State v. Slagle, 65 Ohio St. 3d 597, 604 (1992); State v. Long, 53 Ohio St. 2d 91 (1978); Ohio R.
Evid. 803(3).
Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does
not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir.

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2006). “A lawyer need not develop a constitutional argument at length, but he must make one; the
words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).
Thus, Ahmed failed to present his federal claim to the state court for adjudication.
Since Ahmed merely cut and pasted the arguments made in that court into his petition in
these proceedings, he has not presented an issue arising out of the federal constitution here, either.
The United States Supreme Court has “stated many times that ‘federal habeas corpus relief does not
lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991), quoting Lewis v. Jeffers,
497 U.S. 764, 780 (1990); Landrum v. Mitchell, 625 F.3d 905, 913 (2010). Even if his current claim
were to be generously read as raising a federal claim in these proceedings, the federal claim was not
presented to the state court, and it would be procedurally defaulted for habeas corpus purposes. For
these reasons, Ahmed’s eleventh ground for relief should be denied.
Perhaps taking a clue from Respondent’s argument against an imagined Confrontation
Clause claim, Ahmed contends in his traverse that “[t]his claim is contra Ohio v. Roberts, 448 U.S.
56, 66 (1980). Once again, the Court is puzzled by Ahmed’s statement that a claim violates federal
law (Traverse, Doc. No. 61 at PageID 1784), because his burden under the AEDPA is to demonstrate
that the Ohio Supreme Court’s decision on the matter is contrary to or an unreasonable application
of federal law as determined by the United States Supreme Court, or is based on an unreasonable
determination of the facts in light of the evidence before the state court at the time the decision was
rendered. Ahmed makes no allegations that the Ohio Supreme Court’s decision is in any way
defective. That makes two reasons why Ahmed’s eleventh ground for relief fails to state a claim
cognizable in habeas corpus.

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Finally, even if the Court were to indulge Ahmed to the point of assuming he raised a
Confrontation Clause claim by simply stating his claim was contrary to the holding of Roberts, it
would be meritless. “‘Trial court errors in state procedure and/or evidentiary law do not rise to the
level of federal constitutional claims warranting relief in a habeas action unless the error renders the
proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.’” Broom v. Mitchell, 441 F.3d 392, 406 (6th Cir. 2006), quoting McAdoo v. Elo, 365
F.3d 487, 494 (6th Cir. 2004), citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “Generally,
state court evidentiary rulings cannot rise to the level of due process violations unless they offend[]
some principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental.” Broom, 441 F.3d at 406 (internal quotation marks omitted), citing Seymour v.
Walker, 224 F.3d 542, 552 (6th Cir.2000), quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996).
In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court identified two separate
restrictions imposed by the Confrontation Clause on the range of admissible hearsay: (1) “the Sixth
Amendment establishes a rule of necessity,” which means that “the prosecution must either produce,
or demonstrate the unavailability of the declarant whose statement it wishes to use against the
defendant”; and (2) once the witness’ unavailability has been demonstrated, the out-of-court
statements must possess “indicia of reliability.” Id. at 65-66. Because of the similar values intended
to be protected by the hearsay rules and the Confrontation Clause, reliability may be found where the
evidence falls within a “firmly rooted hearsay exception.” Id. at 66. In other cases, the evidence
may be admitted if it possesses “particularized guarantees of trustworthiness.” Id.
Although Roberts has been overruled by Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court has since held that while Crawford announced a new procedural rule, it was not a
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“‘watershed rule of criminal procedure’ implicating the fundamental fairness and accuracy of the
criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007), quoting Saffle v. Parks, 494
U.S. 484, 495 (1990), citing Teague v. Lane, 489 U.S. 288, 311 (1989). Consequently, Crawford
may not be applied retroactively in a collateral proceeding, and Roberts would govern a
Confrontation Clause claim in Ahmed’s case, had he made such a claim. This Court need not delve
too deeply into analysis of the testimonies Ahmed might have challenged on Confrontation Clause
grounds, however, because had he done so, each part of his claim would have been found to be
procedurally defaulted.
Turning to the particulars of Ahmed’s case, as the Ohio court noted, some of the complainedof testimony was brought out by the defense in cross-examination of the State’s witnesses. For
instance, Grace Hoffman testified during cross-examination that Lubaina had complained to her
about violence in the marriage, that Ahmed had dragged her by her hair and forced sex on her.
(Trial Tr., Vol. 7 at 93.) In Ohio, a party cannot take advantage of an error he invited or induced and
the Ohio Supreme Court enforced the rule in Ahmed’s case. Ahmed, 103 Ohio St. 3d at 39, 2004Ohio-4190 at ¶ 75. The Court’s research reveals that the doctrine of invited error is, and was at the
time of Ahmed’s trial and direct appeal, firmly established and regularly followed, even in death
penalty cases. State v. Cassano, 96 Ohio St. 3d 94, 105, 2002-Ohio-3751 at ¶64 (2002); State v.
Murphy, 91 Ohio St. 3d 516, 535 (2001); State v. Bey, 85 Ohio St. 3d 487, 492-93 (1999); State v.
Keenan, 81 Ohio St. 3d 133, 144 (1998); State v. Seiber, 56 Ohio St. 3d 4, 17 (1990) (all death
penalty cases); see also, State ex rel. Beaver v. Konteh, 83 Ohio St. 3d 519, 520-21 (1998); State ex
rel. Fowler v. Smith, 68 Ohio St. 3d 357, 359 (1994); Lester v. Leuck, 142 Ohio St. 91 (1943)
(paragraph one of the syllabus). As the state doctrine amounts to an independent and adequate state

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procedural rule upon which the state court relied in rejecting Ahmed’s claim, his habeas claim here
(had it been pled) would be procedurally defaulted for that reason. See Maupin, supra.
Ahmed offers his trial counsel’s ineffectiveness in an effort to excuse the default
(Memorandum, Doc. No. 44 at PageID 678-79), but the state supreme court determined that
Hoffman’s testimony did not affect the outcome of his trial or deprive him of a fair trial. Ahmed,
103 Ohio St. 3d at 53, 2004-Ohio-4190 at ¶ 154. “[C]onstitutional error is cause for federal habeas
relief only if it has ‘a substantial and injurious effect or influence in determining the jury’s verdict.’”
Hill v. Hofbauer, 337 F.3d 706, 718 (2003) quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993). The state court’s finding that Ahmed suffered no significant prejudice from Hoffman’s
cross-examination testimony eviscerates his statement that his counsel were ineffective for eliciting
the challenged testimony. In addition, ineffective assistance of counsel cannot serve as cause for a
procedural default unless the ineffectiveness claim itself has been preserved for habeas review as
well. Edwards v.Carpenter, 529 U.S. 446, 453-54 (2000). Ahmed did not preserve that claim of
attorney ineffectiveness. Thus, to the extent Ahmed might have contended Grace Hoffman’s
testimony elicited on cross-examination by defense counsel violated the Confrontation Clause, his
eleventh ground for relief would be procedurally defaulted without excuse.
Furthermore, the Sixth Circuit Court of Appeals has held that “[w]hen a petitioner invites an
error in the trial court, he is precluded from seeking habeas corpus relief for that error.” Fields v.
Bagley, 275 F.3d 478, 486 (6th Cir. 2001). The Sixth Circuit has also indicated that when a party
elicits unfavorable evidence against himself during cross-examination of an opponent’s witness, it is
only the evidence from any subsequent redirect examination that would be subject to Confrontation
Clause analysis, as the cross-examination testimony is invited error. United States v. Cromer, 389
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F.3d 662, 678-79 and n.11 (6th Cir. 2004), citing Harvis v. Roadway Exp., Inc., 923 F.2d 59, 60 (6th
Cir. 1991). The most damaging testimony Hoffman gave on redirect examination was that Lubaina
called her three or four times a week expressing frustration and fright. (Trial Tr., Vol. 7 at 107.)
As for Lubaina’s sister Tahira Kahn’s testimony that Lubaina had told her Ahmed had raped
her repeatedly (Trial Tr., Vol. 7 at 147-48), defense counsel did not object to that testimony, as the
Ohio Supreme Court observed. Ahmed, 103 Ohio St. 3d at 39-40, 2004-Ohio-4190 at ¶ 76. As has
been noted above, Ohio’s rule requiring a contemporaneous objection has been found to be an
independent and adequate state procedural ground which, if relied upon by the state court, precludes
federal habeas corpus review of the merits of a claim. Ahmed has offered his trial counsel’s
ineffectiveness as cause for the procedural default of this part of his claim. For the same reasons
discussed in relation to Grace Hoffman’s testimony above, Ahmed’s argument that his trial
counsel’s ineffectiveness excuses his procedural default in this instance fails. Consequently, to the
extent Ahmed might have argued Tahira’s testimony violated his right to confront the witnesses
against him, this Court would recommend that his eleventh ground for relief be denied as
procedurally defaulted.
Likewise, Ahmed never objected to any part of Lubaina’s psychotherapist Ronni
Rittenhouse’s testimony regarding Lubaina’s depression and its source, which she testified was
Ahmed’s abusive and controlling manner. (Trial Tr., Vol. 7 at 112-121.) The Ohio Supreme Court
did not explicitly rule on Rittenhouse’s testimony, although it did note that after having opened the
door to further testimony on Ahmed’s abuse and rape of Lubaina by bringing it out in Hoffman’s
cross-examination, additional testimony from later witnesses was invited error. Ahmed, 103 Ohio St.
3d at 39, 2004-Ohio-4190 at ¶ 75.

Consequently, that part of Ahmed’s claim relating to
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Rittenhouse’s testimony is also procedurally defaulted for the reasons given in this Court’s
discussion of Hoffman’s testimony, supra. Furthermore, after Hoffman’s testimony that Lubaina
had confided in her that Ahmed had forced sex on her, Rittenhouse’s testimony that Lubaina was
depressed because she was in an abusive marriage was merely cumulative of Hoffman’s testimony.
In addition, on cross-examination Rittenhouse testified that as Lubaina’s counselor, it would have
been inappropriate for her to investigate the accuracy of Lubaina’s allegations of abuse and
manipulation, mitigating much of any prejudice that might have flowed from her direct testimony.
(Trial Tr., vol. 7 at 114, 116, 121.) Moreover, defense counsel never objected to any part of
Rittenhouse’s testimony. For all of these reasons, had Ahmed contended that Rittenhouse’s
testimony violated his right to confront the witnesses against him, this Court’s recommendation
would be that the claim be denied as procedurally defaulted.
In summary, Ahmed does not state a claim cognizable in habeas corpus in his eleventh
ground for relief. Instead, his claim relates to state case and evidentiary law. In addition, Ahmed
does not argue that the Ohio Supreme Court’s decision denying his claim is contrary to or an
unreasonable application of federal law as determined by the United States Supreme Court, or that it
is based upon an unreasonable determination of the facts in light of the evidence before the state
court. Even if his claim were construed as one raising an issue of federal constitutional law,
however, he has procedurally defaulted the claim by not presenting the federal claim first to the state
court. (Recall that in rote fashion Ahmed referred to the Sixth Amendment in the heading of his
hearsay claim in the state court, but never mentioned the Confrontation Clause, never cited any
federal cases discussing the Confrontation Clause, and never made any Confrontation Clause-like
arguments there.) Finally, had Ahmed argued the Confrontation Clause in his eleventh ground for

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relief, his claim would be procedurally defaulted without excuse on the basis that it was invited
error, or because he failed to lodge a contemporaneous objection to the complained-of testimony.
For these reasons, Ahmed’s eleventh ground for relief should be denied as procedurally defaulted.

Twelfth Ground for Relief
In his twelfth ground for relief, Ahmed contends that prejudicial and irrelevant other acts
evidence was admitted at trial, and that the trial court’s failure to give limiting instructions deprived
him of a fair trial and due process of law. (Petition, Doc. No. 35 at PageID 311.) Respondent argues
the claim is procedurally defaulted due to the state supreme court’s direct appeal denial of the claim
on procedural grounds, specifically because defense counsel did not object to the evidence. (ROW,
Doc. No. 61 at PageID 1025.) Respondent also states that the claim concerns solely a matter of state
law not cognizable in federal habeas corpus, and that the state court’s plain error review of Ahmed’s
allegations is neither contrary to nor an unreasonable application of federal law. Id. at 1026-30.
Rather than include his arguments against procedural default in his traverse, Ahmed refers
the Court to his memorandum in opposition to Respondent’s motion to dismiss procedurally
defaulted claims. (Doc. No. 44.) There, he acknowledges that the Ohio Supreme Court denied his
other acts claim on procedural grounds, but argues that his having raised his trial counsel’s
ineffectiveness based on their failure to object to the other acts evidence excuses the default.
(Memorandum, Doc. No. 44 at 35-36.) Ahmed also acknowledges that the Ohio Supreme Court
concluded that trial counsel’s performance was not deficient and that Ahmed was not prejudiced by
his counsel’s failure to object. Id. Here, he does not contend that that decision is contrary to federal

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law or based upon an unreasonable determination of the facts in light of the evidence before the state
court, nor is trial counsel’s failure to object to the other acts evidence discussed in Ahmed’s fourth
ground for relief, where he contends counsel were ineffective for numerous reasons. Since the state
court’s decision finding no attorney ineffectiveness is unchallenged, this Court may not evaluate that
decision under the AEDPA, and consequently cannot accept Ahmed’s suggestion in his
memorandum that trial counsel’s ineffectiveness serve as cause for the default of his twelfth ground
for relief. The claim is therefore procedurally defaulted without excuse and should be denied on that
ground.
There are other reasons that Ahmed’s claim could be denied even if it had been preserved for
habeas corpus review. Ahmed has failed to state a claim cognizable in habeas corpus because, once
again, he has merely cut and pasted the arguments he made in his state court appellate brief into his
petition and traverse. The arguments there, as has been noted, relate to some impropriety Ahmed
perceived relating to the Ohio evidence rule on “other acts” evidence, an issue wholly within the
state court’s purview, and wholly outside this Court’s. Such allegations are “no part of a federal
court’s habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). “Federal
habeas corpus relief does not lie for errors of state law.” Id., quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990), and Pulley v. Harris, 465 U.S. 37, 41 (1984) (internal quotation marks omitted). Rather
than examining the state court’s decision on a matter of state law, this Court must answer the
question whether the admission of the challenged evidence violated Ahmed’s federal constitutional
rights. Estelle, 502 U.S. at 68. And as for that question, Ahmed makes one statement: “This claim
is contra Huddleston v. United States, 485 U.S. 681 (1988).” (Traverse, Doc. No. 71 at PageID
1794.) That case, however, is fundamentally and quite obviously distinguishable from Ahmed’s

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case in the following ways: (1) Huddleston was a case that came to the Supreme Court on direct
appeal, not an action brought under 28 U.S.C. § 2254, so the stringent standard set forth in that
statute and applicable to Ahmed’s case was not applicable in Huddleston; (2) in Huddleston, the
Supreme Court did not mention the constitution or due process even one time, and decided the case
based entirely on Fed. R. Evid. 404, and; (3)the holding of Huddleston, that a district court does not
have to make a preliminary finding that the government has proved the “other act” by a
preponderance of the evidence before it submits the evidence to the jury under Fed. R. Evid. 404,
has no relevance to Ahmed’s case at all.
Ahmed’s twelfth ground for relief is procedurally defaulted without excuse and should be
denied for that reason. Even if he had properly preserved the claim, however, it would fail as it does
not present an issue cognizable in federal habeas corpus.

Thirteenth Ground for Relief
In his thirteenth ground for relief, Ahmed contends that a videotape and numerous crime
scene and autopsy photographs admitted at trial created an unacceptable risk of prejudice to him and
violated his right to a fair trial, citing the Fourteenth Amendment. (Petition, Doc. No. 35 at PageID
323-24.) Respondent argues the claim is not cognizable in habeas corpus as it concerns only a
matter of state law. (ROW, Doc. No. 61 at PageID 1030-31.) In the alternative, Respondent relies
heavily on the Ohio Supreme Court’s decision,24 stating it is neither contrary to nor an unreasonable
application of federal law. Id. at PageID 1034. After himself repeating roughly twelve pages of
24

Respondent goes so far as to recite verbatim five paragraphs of the state court’s seven-paragraph discussion of
the claim not once, but TWICE in his five-page argument! Such repetition is unnecessary.

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argument from his state court appellate brief and habeas petition, Ahmed asserts that the admission
of the photographs violated Darden v. Wainwright, 477 U.S. 168 (1986), and Payne v. Tennessee,
501 U.S. 808 (1991).
There is no question that Ahmed presented the instant claim to the Ohio Supreme Court on
direct appeal since the claim asserted here was cut and pasted from his state appellate brief into his
petition and then into his traverse. The state supreme court addressed the merits of Ahmed’s claim.
Ahmed, 103 Ohio St. 3d at 42-43, 2004-Ohio-4190 at ¶¶ 94-100. Thus, the claim is preserved for
habeas corpus review.
In presenting his claim to the state supreme court, Ahmed relied primarily on two of that
court’s decisions in which the court decided claims involving the admission of allegedly gruesome
photographs under Ohio R. Evid. 403; see State v. Morales, 32 Ohio St. 3d 252, 257-59 (1987); State
v. Maurer, 15 Ohio St. 3d 239, 264-66 (1984). (Appendix, Vol. 3 at 413-14.) He also argued to the
state court, however, that “the prosecution’s use of ‘unduly prejudicial’ [photographic] evidence in a
capital case violates the defendant’s right to due process,” citing Payne v. Tennessee, 501 U.S. 808,
825 (1991). Payne in turn cites Darden v. Wainwright 477 U.S. 168, 179-83 (1986), where the Court
noted that the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief
should evidence that is so “unduly prejudicial that it renders the trial fundamentally unfair” be
introduced at trial, and no specific provision of the Bill of Rights is implicated. (Appendix, Vol. 3 at
414, 423, 425.) Contrary to Respondent’s assertion, therefore, Ahmed did present his federal claim
to the state court on direct appeal.
The Ohio Supreme Court, on the other hand, did not acknowledge that Ahmed had included
his federal claim in his proposition of law before that court, nor did it rely on any federal law or use
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any language in its opinion that might suggest it had considered Ahmed’s due process arguments.
The court found most of the photographs and slides and the crime-scene videotape admitted were
relevant to prove the killer’s intent, illustrate witnesses’ testimonies, or give the jury an
“appreciation of the nature and circumstances of the crimes.” Ahmed, 103 Ohio St. 3d at 42-43,
2004-Ohio-4190 at ¶¶ 94-100. The court relied exclusively on state law, and couched its decision in
terminology nearly identical to that found in Ohio R. Evid. 403. Id. Furthermore, all the state court
cases upon which the Ohio Supreme Court relied in Ahmed’s case applied state law to the claims
there as well. Given these circumstances, this Court concludes that the Ohio Supreme Court did not
address the federal claim Ahmed presented in his direct appeal.
If a state court does not rule on a federal claim before it, federal review of that claim is de
novo rather than deferential. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008), citing Vasquez v.
Jones, 496 F.3d 564, 569 (6th Cir. 2007), citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001);
McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003) (stating that when “there are no results, let
alone reasoning, to which this court can defer . . ., any attempt to determine whether the state court
decision was contrary to, or involved an unreasonable application of clearly established federal law .
. . would be futile”); Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003), citing Wiggins v. Smith,
539 U.S. 510 (2003). Thus, this Court addresses Ahmed’s federal due process claim relating to the
photographs, etc., de novo.
Before proceeding to do so, however, the Court acknowledges that the Supreme Court has
held that a state court’s decision on a claim unaccompanied by an explanation or reasoning is still an
adjudication on the merits subject to 28 U.S.C. § 2254(d)(1). Harrington v. Richter, 562 U.S. ___,
___, 131 S.Ct. 770, 784 (2011). It is not only an explanation or reasoning that is missing from the
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state court’s discussion of Ahmed’s claim, but the decision on the federal claim itself. Thus,
Harrington does not constrict this Court’s de novo consideration of Ahmed’s claim.
Ahmed contends that because there were multiple crime-scene photographs and autopsy
slides and one videotape, the sheer quantity and graphic nature of the images of the victims
introduced at his trial denied him due process of law under Payne v. Tennessee, 501 U.S. 808
(1991). That case, however, was decided under the Eighth Amendment, and Ahmed makes no
Eighth Amendment claim in his thirteenth ground for relief.
The Ohio Supreme Court concisely described the materials Ahmed argues were so unduly
prejudicial that their admission rendered his trial fundamentally unfair as follows:
Eight crime scene photos were admitted over appellant’s objections,
and they are gruesome. State’s Exhibit 6 depicts the body of Abdul
Bhatti on the garage floor. State’s Exhibit 15 shows the doorway
area between the basement and garage where the bodies of Ruhie and
Abdul can partially be seen. State’s Exhibit 16 depicts the bodies of
Lubaina, Ruhie, and Nasira on the basement floor . . . . State’s
Exhibits 17, 18, 19, and 20 are individual close-up photos of the
heads of the four murder victims. State’s Exhibit 21 is a crime-scene
videotape, and portions of it are repetitive of the crime-scene photos.
...
Appellant also claims that he was prejudiced by the admission of the
autopsy slides of the four victims. . . .
Many of the autopsy slides are gruesome.
Ahmed, 103 Ohio St. 3d at 42-43. Ahmed does not challenge the Ohio Supreme Court’s description
of the content of the photographs, slides, and videotape.
The Supreme Court has held that “the Due Process Clause guarantees the fundamental
elements of fairness in a criminal trial . . ., [b]ut it has never been thought that such cases establish

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this Court as a rulemaking organ for the promulgation of state rules of criminal procedure.” Estelle
v. McGuire, 502 U.S. 62, 70 (1991), quoting Spencer v. Texas, 385 U.S. 554, 563-64 (1967) (internal
quotation marks omitted). The Court has repeatedly stated that “federal habeas corpus relief does
not lie for errors of state law.” Estelle, 502 U.S. at 67, citing Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Pulley v. Harris, 465 U.S. 37, 41 (1984). In Estelle, the Court also reemphasized “that it is
not the province of a federal habeas court to reexamine state-court determinations on state law
questions.” 502 U.S. at 67-68. “[A]bsent a specific constitutional violation, federal habeas review
of [state] trial error is limited to whether the error ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’” Lewis v. Jeffers, 497 U.S. 764, 780 (1990),
quoting Donnelly v. DeChristforo, 416 U.S. 637, 643 (1974). The Estelle Court also acknowledged
that the Court has “defined the category of infractions that violate ‘fundamental fairness’ very
narrowly.” 502 U.S. at 73, quoting Dowling v. United States, 493 U.S. 342, 352 (1990). In addition,
the Court has repeatedly observed that “[b]eyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.” Medina v. California, 505 U.S. 437, 443
(1992); Estelle, 502 U.S. at 73; Dowling, 493 U.S. at 352. In the context of an allegedly erroneous
jury instruction, the Court has stated:
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the constitutional
validity of a state court’s judgment is even greater than the showing
required to establish plain error on direct appeal. The question in
such a collateral proceeding is “whether the ailing instruction by
itself so infected the entire trial that the resulting conviction violates
due process”, Cupp v. Naughten, 414 U.S. [141,] . . .147 [(1973)], not
merely whether “the instruction is undesirable, erroneous, or even
‘universally condemned,’” id., at 146.
Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

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The Sixth Circuit Court of Appeals has rejected claims that the admission of gruesome or
repetitive evidence is a violation of a defendant’s right to due process on numerous occasions.
Franklin v. Bradshaw, 695 F.3d 439, 456-57 (6th Cir. 2012) (rejecting claim that autopsy
photographs of charred, disfigured, and gory remains of victims denied petitioner the fundamental
right to a fair trial); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (holding admittedly gruesome
photographs of victim’s severed head, severed breast, and torso depicting pre- and post-mortem
injuries demonstrated defendant’s intent to kill and mutilate, and that court’s limiting instruction was
sufficient to guarantee fundamentally fair trial); Cooey v. Coyle, 289 F.3d 882, 893-94 (6th Cir.
2002) (finding gruesome and duplicative photographs were highly probative and did not “raise the
spectre of fundamental fairness such as to violate federal due process of law”). Many other circuit
courts of appeals have done so as well. Lyons v. Brady, 666 F.3d 51, 54-56 (1st Cir. 2012); Wilson v.
Sirmons, 536 F.3d 1064, 1114-16 (10th Cir. 2008); Rousan v. Roper, 436 F.3d 951, 958-59 (8th Cir.
2006); Woods v. Johnson, 75 F.3d 1017, 1038-39 (5th Cir. 1996); Gomez v. Ahitow, 29 F.3d 1128,
1139-40 (7th Cir. 1994); Batchelor v. Cupp, 693 F.2d 859, 865 (9th Cir. 1982).
Ahmed contends that the admission of State’s Exhibits 6, 15-20, 25 (crime scene
photographs); 21 (crime scene videotape), and 163-66 (autopsy slides) deprived him of a
fundamentally fair trial. Although the crime scene photographs and videotape are gruesome, State’s
Exhibits 6 (depicting Ahmed Bhatti’s body), State’s Exhibit 15 (depicting Ruhie’s body), State’s
Exhibits 16 and 25 (depicting Lubaina’s, Ruhie’s, and Nasira’s bodies) (Appendix, Vol. 12 at 114,
137-38, 147) are no more gruesome than photographs introduced by the defense, which also portray
all three bodies, and in fact appear to be if not identical, then nearly so to some of the challenged
photographs (Defense Exhibits 10, 18, Appendix, Vol. 13 at 11, 19). The close-up photographs of

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the heads of the four victims are quite gruesome (State’s Exhibits 17-20; Appendix, Vol. 12 at 13942). All of the photographs Ahmed argues denied him a fundamentally fair trial were used at trial to
identify the victims and to establish the state of the crime scene at the time it was discovered. (Trial
Tr., Vol. 7 at 218-20, 239-47.) In addition, the photographs show the positions of the victims’
bodies relative to each other, and establish the nature and extent of the injuries to them. Id.
As for the crime scene videotape, it too is gruesome in parts. (State’s Exhibit 21, Appendix,
Vol. 12, following index, immediately before page 1.) It was offered by the State for the purpose of
more fully illustrating the bodies’ spatial relationship to each other and various other objects of
evidentiary value, such as Ahmed Bhatti’s eyeglasses on the garage floor, blood droplets throughout
the scene and in the kitchen of the house, and bloody footprints found at the scene and their location
relative to the bodies and other evidence. Id. The videotape does not linger unnecessarily over the
bodies, the copious quantities of the victims’ blood, or the slashed throats of the four victims. Id.
The videotape, too, was used in conjunction with testimony from the detective who was one of the
first to enter the crime scene. (Trial Tr., Vol. 7 at 247-52.)
When presented with a claim that photographs of the victims were unduly prejudicial and
violated the defendant’s right to due process in Gonzalez v. DeTella, 127 F.3d 619 (7th Cir. 1997),
the Seventh Circuit Court of Appeals stated as follows:
Evidence wrongly admitted does not support a writ of habeas corpus
unless[,] all things considered[,] the trial posed an unacceptably great
risk of convicting an innocent person, and the judicial process
therefore denied the accused due process of law. . . . [T]he admission
of “gruesome” photos of the decedent in a murder case does not
justify collateral relief, even when the evidence is cumulative and
likely designed more to inflame the jury than to supply an essential
underpinning of the prosecution’s case.

146

Photographs of the decedent’s body are relevant. They tend to show
that the crime charged by the indictment took place. Graphic
depictions of multiple bullet wounds also may be relevant: they can
(and here did) support the prosecution’s other evidence about how the
crime occurred. Cruz testified that Gonzalez emptied a clip of
ammunition into the drug dealers; the photographs corroborated this
testimony by showing multiple bullet wounds in the victims’ bodies.
Although these facts were adduced in a more sedate fashion through
the testimony of a pathologist, no rule of law, and certainly no rule of
constitutional law, limits the prosecutor to one piece of evidence in
support of each element of the offense. This is so even when the
element is uncontested – indeed, even when the defendant offers to
admit the element (as Gonzalez did not). See Old Chief v. United
States, 519 U.S. 172, [186-89] (1997). The Court recognized in Old
Chief that limiting the proofs to clinically abstract propositions may
prevent the jurors from acquiring an accurate picture of events, and
that disappointing their expectations about what evidence would
normally be available to establish a proposition may lead them to
draw inaccurate inferences about what actually happened (based on
conjectures about why evidence is being hidden from their view.)
Gonzalez, 127 F.3d at 621 (parallel citation omitted). In Ahmed’s case, the prosecution showed
admirable restraint in presenting only eight crime scene photographs that show the victims’ bodies,
especially since there were four victims. The videotape, a little more than five minutes in length
altogether, did not dwell on the gruesome features of the crime scene, and included substantial
footage of other, less gruesome evidence, as well. The outcome of Ahmed’s trial and mitigation
hearing were not likely to have been different had the photographs and videotape been excluded.
Finally, Ahmed also claims the autopsy photographs were so gruesome as to deprive him of a
fundamentally fair trial. The exhibits to which Ahmed directs the Court are photographs of
photographic slide carousels apparently containing the slides of the autopsies. The Court cannot see
the content of the slides themselves, and no photographic reproductions of their images has been
submitted in these proceedings. Therefore, the Court is unable to determine whether the slide
images are so gruesome that they denied Ahmed’s right to due process of law. It is noted, however,
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that contrary to Ahmed’s assertion that Dr. Keith Norton, the forensic pathologist who conducted all
four autopsies, testified without the aid of photographic assistance (Petition, Doc. No. 35 at PageID
327-30), Dr. Norton relied extensively on the autopsy slides during his testimony to aid the jurors’
understanding of his description of the victims’ wounds and cause of death. (Trial Tr., Vol. 8 at
617-656.) That fact alone is sufficient to defeat Ahmed’s claim that he was denied a fundamentally
fair trial due to the autopsy slides having been admitted into evidence.
Ahmed has not demonstrated that the admission of the several photographs, the crime scene
videotape, and the autopsy slides were so egregiously gruesome, repetitive, or cumulative that the
fairness of his trial was compromised. His thirteenth ground for relief should accordingly be denied.

Fourteenth Ground for Relief
In his fourteenth ground for relief, Ahmed alleges that the instructions given to the jury on
“reasonable doubt” in both phases of his trial were flawed and had the effect of allowing him to be
convicted on a standard of proof below “beyond a reasonable doubt” and sentenced to death in
violation of the Due Process Clause. (Petition, Doc. No. 35 at PageID 340.) Respondent
acknowledges the claim is preserved for habeas corpus review, but argues that Ohio’s “reasonable
doubt” instruction has long passed constitutional muster, and that the Ohio Supreme Court’s
decision rejecting Ahmed’s claim is neither contrary to nor an unreasonable application of federal
law. (ROW, Doc. No. 61 at PageID 1034-35.) In his traverse, Ahmed states that “[t]his claim is
contra Cage v. Louisiana, 498 U.S. 39, 41 (1990), which the Court takes to mean that Ahmed

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believes the Ohio Supreme Court’s decision on his claim contradicts the cited case. (Traverse, Doc.
No. 71 at PageID 1815.)
The Ohio Supreme Court summarily rejected Ahmed’s claim stating as follows:
In his 18th proposition of law, appellant contends that the trial court
erred in instruction the jury on reasonable doubt based on the
statutory definition in R.C. 2901.05. We have repeatedly rejected the
same argument, and do so again for the same reasons. See State v.
Jenkins (1984), 15 Ohio St.3d 164, paragraph eight of the syllabus;
State v. Jones (2000), 90 Ohio St.3d 403, 417.
Ahmed, 103 Ohio St. 3d at 43, 2004-Ohio-4190 at ¶ 101 (parallel citations omitted). In Jenkins, the
Ohio Supreme Court found Ohio’s statutory instruction on reasonable doubt was substantially
similar to the instruction upheld by the United States Supreme Court in Holland v. United States,
348 U.S. 121, 140 (1954). Jenkins, 15 Ohio St. 3d at 211.
Ahmed’s claim is a familiar one in capital habeas corpus cases. It has been repeatedly
rejected by the Sixth Circuit Court of Appeals. White v. Mitchell, 431 F.3d 517, 533-34 (6th Cir.
2005); Buell v. Mitchell, 274 F.3d 337, 366 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417, 43637 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854, 883-84 (6th Cir. 2000); Byrd v. Collins, 209 F.3d
486, 527 (6th Cir. 2000); Thomas v. Arn, 704 F.2d 865, 867-69 (6th Cir. 1983).
Ahmed argues that his conviction and death sentence must be reversed “where the instruction
on reasonable doubt could have led jurors to find guilt ‘based on a degree of proof below that
required by the Due Process Clause.’ Cage v. Louisiana, 498 U.S. 39, 41 (1990).” (Traverse, Doc.
No. 71 at PageID 1809. He fails to acknowledge, however, that the Supreme Court backed away
from that language the very next term stating
We acknowledge that language in the later cases of Cage v.
Louisiana, 498 U.S. 39 (1990), and Yates v. Evatt, 500 U.S. 391
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(1991), might be read as endorsing a different standard of review for
jury instructions. See Cage, supra, 498 U.S., at 41 (“In construing
the instruction, we consider how reasonable jurors could have
understood the charge as a whole”); Yates, supra, 500 U.S., at 401
(“We think a reasonable juror would have understood the
[instruction] to mean . . . “). In Boyde [v. California, 494 U.S. 370
(1990)], however, we made it a point to settle on a single standard of
review for jury instructions – the “reasonable likelihood” standard –
after considering the many different phrasings that had previously
been used by this Court. 494 U.S., at 379-380 (considering and
rejecting standards that required examination of either what a
reasonable juror “could” have done or “would” have done). So that
we may once again speak with one voice on this issue, we now
disapprove the standard of review language in Cage and Yates, and
reaffirm the standard set out in Boyde.
Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991) (parallel citations omitted). Thus, the standard under
which Ahmed has encouraged this Court to consider his claim has been explicitly disavowed by the
Supreme Court. The proper inquiry is whether there is a reasonable likelihood that the jury
understood the instructions to allow conviction or a sentence of death based upon proof insufficient
to meet the beyond a reasonable doubt standard. United States v. West, 28 F.3d 748, 750 (8th Cir.
1994). Furthermore, that inquiry must be conducted with regard to the overall charge and the entire
trial record. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) (observing that “a single
instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the
overall charge); Victor v. Nebraska, 511 U.S. 1, 16 (1994) (stating that “the [challenged] language
cannot be sequestered from its surroundings.”).
The Supreme Court has stated that
The beyond a reasonable doubt standard is a requirement of due
process, but the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter of
course. Indeed, so long as the court instructs the jury on the necessity
that the defendant’s guilt be proved beyond a reasonable doubt, the
Constitution does not require that any particular form of words be
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used in advising the jury of the government’s burden of proof.
Rather, “taken as a whole, the instructions [must] correctly conve[y]
the concept of reasonable doubt to the jury.”
Victor, 511 U.S. at 5 (citations omitted), quoting Holland v. United States, 348 U.S. 121, 140 (1954)
The Court in Victor recognized that the only case in which it had ever found a definition of
reasonable doubt violated the Due Process Clause was Cage, supra, and reiterated that that case was
decided using an improper standard. 511 U.S. at 5-6.
The instructions Ahmed claims violated his right to due process were given at trial as
follows:
The Defendant is presumed innocent until his guilt is established
beyond a reasonable doubt. Defendant must be acquitted of an
offense unless the State produces evidence that convinces you beyond
a reasonable doubt of every essential element of the offense.
Reasonable doubt is present when, after you have carefully
considered and compared all the evidence, you cannot say you are
firmly convinced of the truth of the charge. Reasonable doubt is a
doubt based on reason and common sense. Reasonable doubt is not
mere possible doubt because everything relating to human affairs or
depending on moral evidence is open to some possible or imaginary
doubt. Proof beyond a reasonable doubt is proof of such character
that an ordinary person would be willing to rely and act upon it in the
most important of his own affairs.
If after a full and impartial consideration of all the evidence, you are
firmly convinced of the truth of the charge, the State has proved its
case beyond a reasonable doubt. If you are not firmly convinced of
the truth of the charge, you must find the Defendant not guilty.
(Trial Tr., Vol. 8, Appendix at 1-2.)
In order for you to decide that the sentence of death shall be imposed
upon the Defendant, the State of Ohio has the burden to prove, to
each member of this jury, beyond a reasonable doubt that the
aggravating circumstance or circumstances of which Defendant was
found guilty is sufficient to outweigh the factors in mitigation of
imposing the death sentence. . . .
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Reasonable doubt is present when, after carefully considering and
comparing all of the evidence, you cannot say that you are firmly
convinced the aggravating circumstance or circumstances outweighs
the factors in mitigation. Reasonable doubt is present when you are
not firmly convinced that death is the appropriate punishment.
Reasonable doubt is a doubt based on reason and common sense.
Reasonable doubt is not mere possible doubt, because everything
relating to human affairs or depending upon moral evidence is open
to some possible or imaginary doubt. Proof beyond a reasonable
doubt is proof of such character that an ordinary person would be
willing to rely upon it and act upon it in the most important of his or
her own affairs.
(Trial Tr., Vol. 9, Appendix at 2.) Ahmed contends three phrases in the instructions deprived him of
due process: (1) “firmly convinced”; (2) “moral evidence”; and (3) “willing to act.” (Petition, Doc.
No. 35 at PageID 341-42.)
Ahmed argues that the “firmly convinced” language is derived from the “clear and
convincing” standard of proof rather than the “reasonable doubt” standard. Id. at PageID 344. That
argument has been rejected by the Sixth Circuit Court of Appeals. Coleman v. Mitchell, 268 F.3d
417, 437 (6th Cir. 2001).
Next, he argues that the phrasing of the “moral evidence” language in the alternative rather
than in the conjunctive denied him his right to due process. (Petition, Doc. No. 35 at PageID 34446.) As he acknowledges, the Supreme Court has rejected a due process challenge to an instruction
that defined “reasonable doubt” in part by stating, “It is not a mere possible doubt because
everything relating to human affairs, and depending on moral evidence, is open to some possible or
imaginary doubt.” Victor v. Nebraska, 511 U.S. 1, 7-8 (1994). Nevertheless, Ahmed contends that
the substitution of the word “or” in place of the word “and” in that sentence freed the jury to convict
him “based on considerations of subjective morality, rather than evidentiary proof required by [the]
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Due Process Clause.” (Petition, Doc. No. 35 at PageID 346.) In Victor, however, the court noted
that “[m]oral evidence, in this sentence, can only mean empirical evidence offered to prove such
matters – the proof introduced at trial.” Victor, 511 U.S. at 13. It is doubtful that changing “and” to
“or” in the sentence would wreak such a fundamental change in the meaning of the phrase. After all,
the definition of the term is not determined by the preceding conjunction. Thus, the instruction in
Ahmed’s case may be read as, “Reasonable doubt is not mere possible doubt because everything
relating to human affairs or depending on ‘empirical evidence offered to prove such matters’ is open
to some possible or imaginary doubt.” That substitution does not transform the instruction into a
signal that “subjective morality” is a proper guide for the jury to determine a defendant’s guilt or
sentence, as Ahmed argues is so.
Finally, Ahmed contends that the “willing to act” language in the jury instructions deprived
him of his right to due process. (Petition, Doc. No. 35 at PageID 342-44.) He cites several federal
circuit court opinions and one Supreme Court case in which the phrase “willing to act” was
disapproved. Id. In the Supreme Court case, however, it was determined that the jury instructions as
a whole were “not of the type that could mislead the jury into finding no reasonable doubt when in
fact there was some.” Holland v. United States, 348 U.S. 121, 140 (1954). The Court concluded
that, “taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the
jury.” Id. As has been pointed out by the Fourth Circuit Court of Appeals,
[S]ome sixty-seven years prior to Holland, in Hopt v. Utah, 120 U.S.
430 (1887), the Supreme Court unequivocally upheld the following
jury instruction, which is materially indistinguishable from the
“willing to act” language challenged by Waine: “[I]f, after such
impartial comparison and consideration of all the evidence, you can
truthfully say that you have an abiding conviction of the defendant’s
guilt, such as you would be willing to act upon in the more weighty

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and important matters relating to your own affairs, you have no
reasonable doubt.” Id. at 439.
Waine v. Sacchet, 356 F.3d 510, 516 (4th Cir. 2004).
In sum, Ahmed has pointed to no clearly established federal law with which the Ohio
Supreme Court’s decision conflicts. Rather, the state court’s decision is in line with the Supreme
Court decisions addressing similar arguments about “reasonable doubt” jury instructions, and circuit
court interpretations of those precedents. Accordingly, he has not demonstrated entitlement to
habeas corpus relief, and his fourteenth ground for relief should be denied.

Fifteenth Ground for Relief
Next, Ahmed contends that the trial court’s sentencing-phase instruction to consider only as
much evidence as was relevant to the aggravating circumstances from the guilt phase of the trial
when determining the appropriate sentence for Ahmed violated his Eighth and Fourteenth
Amendment rights. (Petition, Doc. No. 35 at PageID 347-353.) Respondent argues that the claim is
procedurally defaulted and concerns only state evidentiary law and is therefore not cognizable in
federal habeas corpus. (ROW, Doc. No. 61 at PageID 1036.) Ahmed disputes that the claim is
procedurally defaulted, referring the Court to his memorandum opposing Respondent’s motion to
dismiss procedurally defaulted claims (Doc. No. 44), repeats the arguments made in his petition,
then makes brief argument addressing the issues raised by Respondent in his return of writ.
(Traverse, Doc. No. 71 at PageID 1815-22.)

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The claim was presented to the Ohio Supreme Court on direct appeal.25 In response, the state
court observed that Ahmed had not raised the issue before the trial court, so all but plain error was
waived. Ahmed, 103 Ohio St. 3d at 45. The court went on to determine that no plain error occurred,
and it overruled his proposition of law.26 Id. As has been noted above, Ohio’s contemporaneous
objection rule is an adequate and independent state ground which, if enforced by the state court as it
was in Ahmed’s case, is sufficient to preclude federal habeas corpus review.
Ahmed asserts that his claim is saved from procedural default because he identified it as an
example of his trial counsel’s ineffectiveness on direct appeal, an assertion that is borne out by his
appellate brief. (Appendix, Vol. 3 at 365-66.) Since his ineffective assistance of trial counsel claim
presented in these habeas proceedings fails, however (see Fourth Ground for Relief, supra),
Ahmed’s counsel’s performance cannot serve as cause to excuse a procedural default.
Consequently, Ahmed’s fifteenth ground for relief is procedurally defaulted without excuse and
should be denied for that reason.
Even if that were not the case, the same argument Ahmed makes has been rejected by the
Sixth Circuit Court of Appeals. Buell v. Mitchell, 274 F.3d 337, 354 (6th Cir. 2001). In addition, the
evidence of which Ahmed complains was relevant to the aggravating circumstances. For instance,
although the homicides themselves are not aggravating circumstances, the fact that there were four
victims is an aggravating circumstance that Ahmed was charged with and convicted of. See Ohio

25

Indeed, much of what was argued in Ahmed’s appellate brief there is (unsurprisingly) imported into his petition and
traverse here.
26

Ahmed characterizes the Ohio Supreme Court’s plain-error review as a holding on the merits (Memorandum
Contra Warden’s Motion to Dismiss Procedurally Defaulted Claims, Doc. No. 44 at PageID 680). A state appellate
court’s review for plain error has long been recognized as enforcement, not waiver, of a procedural default.
Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008);

155

Rev. Code § 2929.04(A)(5). The crime scene photographs and coroner’s slides were relevant to that
same aggravating circumstance and also to one relating to Nasira’s murder, that being the killing of a
person under thirteen years of age. See Ohio Rev. Code § 2929.04(A)(9). The prosecution is also
permitted to demonstrate that there is no mitigatory value in the “nature and circumstances of the
offenses,” and the challenged evidence is also relevant to that argument.
Moreover, the opinion of a state court on plain error review is still entitled to AEDPA
deference if the federal court reaches the merits of a claim despite the unexcused procedural default.
Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009). The state court’s plain error review
concluded that “evidence of the nature and circumstances of the aggravating circumstances is also
relevant at the penalty phase[, and m]ost of the evidence admitted in the guilt phase was also
admissible during the penalty phase.” Ahmed, 103 Ohio St. 3d at 45, 2004-Ohio-4190 at ¶ 111.
Ahmed argues that the admission of the guilt phase evidence into the penalty phase was tantamount
to permitting the jury to consider non-statutory aggravating circumstances in violation of Stringer v.
Black, 503 U.S. 222, 237 (1992), and Sochor v. Florida, 504 U.S. 527, 532 (1992). Even assuming
that some of the evidence admitted in the mitigation phase was irrelevant, and assuming the jury
considered that evidence, and assuming that Ahmed was prejudiced by that, he still fails to
acknowledge the curative effect of the state court’s independent weighing of the aggravating
circumstances and mitigating factors which it did without mentioning the evidence about which
Ahmed complains. Clemons v. Mississippi, 494 U.S. 738, 745 (1990); Ahmed, 103 Ohio St. 3d at
55-58, 2004-Ohio-4190 at ¶¶ 167-86. Thus, even if Ahmed had preserved his claim for habeas
corpus review, it would fail.

Lundgren v. Mitchell, 440 F.3d 574, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005; Hinkle

156

Ahmed’s fifteenth ground for relief is procedurally defaulted without excuse and should be
denied for that reason.

Sixteenth Ground for Relief
In his sixteenth ground for relief, Ahmed makes the following disjointed and artless
argument:
The prosecutor claimed that the facts showed that Ahmed committed
“honor killings” which by its [sic] nature involve provocation
occurring due to perceived infidelity and an “enraged” relative, who
was dishonored. Before the final jury instructions in the trial phase,
Attorney Olivito went to the prosecutor and the trial judge to request
such jury instructions. Thereafter, Olivito told Ahmed: “They say
that voluntary manslaughter is not the lesser included offense to
aggravated murder and that only murder is the lesser included offense
of aggravated murder, so the jury instructions will only include
murder as the lesser included offense.” [Citation to record absent.]
This is not an accurate statement of Ohio law. As such, the defense
attorneys themselves failed to ensure that correct law was being used
and applied and failed to make a proper record insisting that correct
jury instructions be given. Moreover, the trial judge had an
independent duty to instruct the jury on the voluntary manslaughter
[sic].
Here, prosecution witnesses testified that the divorce was contested
and the situation kept escalating. That Dr. Bhatti was adamant that
she have full custody of the children [sic]. There was an accusation
that Dr. Bhatti had an affair. There was evidence that both Ahmed
and his wife were taking major depression and extreme stress
medications during the pendency of [the] divorce.
The Coroner testified and wrote on the death certificates that there
was a marital dispute leading to [the] deaths of four people. The
Prosecutor claimed “her family members came to her aid” (Tr.779) so
he killed her and any representative of the family that he could get his
hands on. Petitioner’s blood found in the kitchen, swollen hands[,]
scratch on his forearm and injured thumb are consistent with
v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).

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defensive wounds from family members who came to her aid.
Petitioner was prejudiced by trial counsel’s failure to understand the
law and argue the available evidence already presented by the
Prosecution which supported a charge on voluntary manslaughter.
(Petition, Doc. No. 35 at PageID 355-56.)
Respondent argues the claim is procedurally defaulted since it was not presented to the state
supreme court on direct appeal, and that it is also meritless. (ROW, Doc. No. 61 at PageID 1039.)
In his traverse, Ahmed refers the Court to his memorandum opposing Respondent’s motion to
dismiss procedurally defaulted claims. (Doc. No. 71 at PageID 1822.) There, he contends that
including the instant claim as one underlying his ineffective assistance of appellate counsel claim
preserved it for habeas corpus review (Doc. No. 44 at PageID 681), an assertion that has been
repeatedly rejected, supra.
It is difficult to know where to begin. First, Ahmed’s claim purports to challenge the trial
court’s refusal to give an instruction on voluntary manslaughter as an inferior offense to the charged
offenses of aggravated murder, but the last sentence of his argument sounds more like a claim of
counsel’s ineffectiveness. Whichever theory he intended to pursue in the instant claim, neither was
first presented to the state court on direct appeal. Failure to raise a constitutional issue at all on
direct appeal is procedurally defaulted for habeas corpus purposes and subject to the cause and
prejudice standard of Wainwright v. Murray, 477 U.S. 478, 485 (1986). Mapes v. Coyle, 171 F.3d
408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d
94, 97 (6th Cir. 1985).

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Second, Ahmed has not even suggested that the failure of the court to give the desired
instruction amounted to a violation of any of his constitutional rights.27 He merely states in
conclusory fashion that the information given to him by Olivito “is not an accurate statement of
Ohio law,” without any indication of how Olivito’s remarks differed from Ohio law, or even what
the law is in Ohio regarding instruction on inferior offenses. Ahmed, however, mentions no federal
law at all, not even the talismanic phrase “due process,” as is evident from the quotation from his
petition, above. Thus, he has failed to allege a violation of his federal constitutional rights which
short circuits this Court’s ability to address his claim.
Third, Ahmed’s claim is so poorly constructed that it would be difficult for the Court to make
the (il)logical leaps Ahmed attempts in his argument with any grace at all. He rattles off a laundry
list of evidentiary facts and unfounded accusations, apparently expecting the Court to connect the
far-flung, widely disbursed, dots of his argument. He has fallen far short of his burden to
demonstrate entitlement to habeas corpus relief, even if he had preserved his claim.
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that a death sentence may
not be constitutionally imposed when the jury was not permitted to consider a lesser-included noncapital offense and when the evidence would have supported acquittal on the capital offense and
conviction on the lesser-included offense. Id. at 627, 638. The Beck Court reasoned that
[W]hen 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
on a lesser included offense would seem inevitably to enhance the
risk of an unwarranted conviction.
27

Ahmed takes a hint from Respondent’s supposition in the Return of Writ, suggesting that Ahmed might be
attempting to make a claim under Beck v. Alabama, 447 U.S. 625 (1980), and cites federal law relevant to the instant
claim (Beck) for the first time in his traverse. (Doc. No. 71 at PageID 1824.)

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Id. at 637. Ahmed’s jury, however, was provided with the “third option” of convicting him of three
non-capital offenses of murder rather than the charged offenses of aggravated murder. (Guilt Phase
Jury Instructions, appended to Trial Tr., Vol. 8 at 7, 10, and 13.) On Count Four, however, the jury
was not instructed on any lesser-included offense. That count related to the murder of the child,
Nasira, and will be addressed momentarily.
In a case presenting a claim not dissimilar to Ahmed’s here, the Supreme Court expounded
upon the requirement set forth in Beck. In Schad v. Arizona, 501 U.S. 624 (1991), the Court
considered a petitioner’s claim that “he was entitled to a jury instruction on the offense of robbery,
which he characterizes as a lesser included offense of robbery[-]murder.” Id. at 645. Schad was
charged with a capital offense, and his jury was instructed on the non-capital offense of seconddegree murder as well. Id. at 629. Essentially Schad argued for an expansion of Beck’s holding,
contending that “the jury in a capital case be instructed on every lesser included noncapital offense
supported by the evidence, and that robbery was such an offense in this case.” Id. at 646 (emphasis
added). The Court rejected Schad’s argument, explaining that
The argument is unavailing, because the fact that the jury’s “third
option” was second-degree murder rather than robbery does not
diminish the reliability of the jury’s capital murder verdict. To accept
the contention advanced by petitioner . . ., we would have to assume
that a jury unconvinced that petitioner was guilty of either capital or
second-degree murder, but loath to acquit him completely (because it
was convinced he was guilty of robbery), might choose capital
murder rather than second-degree murder as its means of keeping him
off the streets. Because we can see no basis to assume such
irrationality, we are satisfied that the second-degree murder
instruction in this case sufficed to ensure the verdict’s reliability.

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Id. at 647-48. Thus, Ahmed’s argument that his jury should have been instructed on voluntary
manslaughter in addition to murder and aggravated murder on Counts One, Two, and Three of the
indictment is in flat contradiction to well-established federal law as determined by the United States
Supreme Court.
Turning to his claim as it relates to Count Four of the indictment, the Sixth Circuit Court of
Appeals has recognized that “a claim regarding the failure to instruct on a lesser-included offense
might be cognizable in habeas where ‘a fundamental miscarriage of justice is found to have resulted
from the arbitrary and unsupportable denial of a lesser included offense instruction in clear defiance
of state law,’” and the district court in Hendrickson suggests the same is true when the omitted
instruction is one on an inferior offense rather than a lesser-included offense. Hendrickson v.
Warden, No. 2:10-cv-1084, 2012 WL 113435 at *7-8 (S.D.Ohio Jan. 13, 2012), quoting Bagby v.
Sowders, 894 F.2d 792, 795 (6th Cir. 1990); State v. Shane, 63 Ohio St. 3d 630, 632 (1992). Such an
occurrence would be most unusual and would include a situation in which “the failure to give such
an instruction likely resulted in the conviction of an innocent person.” Hendrickson, 2012 WL
113435 at *8, quoting Mason v. Brunsman, No. 1:07-cv-1020, 2009 WL 2169035 at *22 (S.D. Ohio
July 16, 2009), citing Bagby, 894 F.2d at 795.
Ohio’s statute setting out the offense of voluntary manslaughter reads as follows:
No person, while under the influence of sudden passion or in a
sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient to
incite the person into using deadly force, shall knowingly cause the
death of another or the unlawful termination of another’s pregnancy.
Ohio Rev. Code § 2903.03(A) (emphasis added). It is true, as Ahmed argues, that his divorce was
not amicable. It may be true that Lubaina desired full custody of the two children of the marriage.

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There is no proof that Lubaina was having an affair, as Ahmed claimed. Both Ahmed and Lubaina
may have been taking medication for their respective psychological problems. There is no doubt
that divorce is a stressful event in anyone’s life. Ahmed also provides a contorted reading of the
coroner’s notation on the death certificates that there was a marital dispute that led to the deaths of
four people into what seems to be a claim that Ahmed committed the murders as a result of
Lubaina’s family members coming to her aid during a marital argument. He audaciously suggests
that his own minor injuries suffered while murdering four people were defensive wounds inflicted
upon him when he tried to defend himself against an elderly man, a woman, and a two-year-old child
“coming to the aid” of Lubaina. He utterly fails to show that there was any evidence that any of the
victims, much less Nasira, provoked him into such a sudden passion or fit of rage that was
reasonably sufficient to incite him into using deadly force against a two-year-old child. He does not
contend that the failure of the court to include the instruction on voluntary manslaughter effected a
fundamental miscarriage of justice.
The Court has exceeded its duty in parsing Ahmed’s convoluted argument in his sixteenth
ground for relief. Having found that his jury was instructed on a lesser-included offense on three of
the four counts of aggravated murder, and that the evidence produced at trial did not establish his
entitlement to an instruction on any lesser-included offense on the fourth count of aggravated
murder, even if the claim were preserved, Ahmed would not have been entitled to habeas corpus
relief on the instant ground for relief.
Ahmed’s sixteenth ground for relief is procedurally defaulted without excuse, and should be
denied for that reason. For all of the reasons discussed above, Ahmed’s claim would still fail even if
he had properly preserved it for habeas corpus review.

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Seventeenth Ground for Relief
In his seventeenth ground for relief, Ahmed contends that neither the jurors nor the trial
judge followed the applicable law when determining his sentence. (Petition, Doc. No. 35 at PageID
356-64.) Respondent argues the claim is both procedurally defaulted and without merit. (ROW,
Doc. No. 61 at PageID 1040-41.)
Ahmed counters that he presented the matter to the state trial court as his sixth claim for
relief in his post-conviction petition. (Traverse, Doc. No. 71 at PageID 1826.) That claim for relief,
however, addresses only that part of Ahmed’s habeas claim that relates to the alleged juror
misconduct, and says nothing about the alleged impropriety of the trial court’s sentencing opinion.
(Appendix, Vol. 6 at 207-8.) Thus, to the extent Ahmed challenges the constitutionality of the trial
court’s sentencing opinion, his claim is procedurally defaulted. He offers no cause for the default
nor prejudice therefrom so habeas review of that part of Ahmed’s seventeenth ground for relief is
precluded.
When the claim of juror misconduct was presented to the state court, Ahmed supported his
claim with an affidavit from Kathryn Sandford, an attorney on the staff of the Ohio Public
Defender’s Office. (Appendix, Vol. 6 at 207-8; Vol. 7 at 34-35.) Sandford’s affidavit purports to
recount conversations she had with three individuals who served as jurors in Ahmed’s trial. Each of
the jurors refused to sign affidavits. (Appendix, Vol. 7 at 34-35.) Thus, the post-conviction trial
court was left with an advocate’s affidavit containing nothing but hearsay from three jurors who
explained their deliberative process when deciding Ahmed’s sentence. The state court rejected
Ahmed’s claim on the ground that inquiry into the deliberative process is prohibited by Ohio R.

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Evid. 606(B), (Appendix, Vol. 8 at 331) commonly referred to as the aliunde rule, which reads as
follows:
Inquiry into validity of verdict or indictment
Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon his
or any other juror’s mind or emotions as influencing him to assent to
or dissent from the verdict or indictment or concerning his mental
processes in connection therewith. A juror may testify on the
question whether extraneous prejudicial information was improperly
brought to the jury’s attention or whether any outside influence was
improperly brought to bear on any juror, only after some outside
evidence of that act or event has been presented. However a juror
may testify without the presentation of any outside evidence
concerning any threat, any bribe, any attempted threat or bribe, or any
improprieties of any officer of the court. His affidavit or evidence of
any statement by him concerning a matter about which he would be
precluded from testifying will not be received for these purposes.
The trial court also rejected the claim because it was based solely on the hearsay contained in
Sandford’s affidavit. (Appendix, Vol. 8 at 331.) The state court of appeals affirmed on both
grounds. State v. Ahmed, No. 05-BE-15, 2006-Ohio-7069 at ¶¶ 138-44, 2006 WL 3849862 (Ohio
Ct. App. 7th Dist. Dec. 28, 2006).
Neither Ahmed’s claim nor Sandford’s post-conviction affidavit allege that the jury was
influenced by any extraneous information. Instead, they credit the jurors with statements explaining
how they weighed the evidence relating to the aggravating circumstances, what evidence caused the
jurors to come to their decision that death was the appropriate sentence for Ahmed, what impact the
evidence had on the jurors in the mitigation deliberations, and other conclusions one or more jurors
came to in considering all the evidence before them in the penalty-phase deliberations. (Petition,
Doc. No. 35 at PageID 356-58; Appendix, Vol. 7 at 34-35.)

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The Sixth Circuit Court of Appeals has noted that a state court’s enforcement of the aliunde
rule was not an unreasonable application of constitutional law, especially when the supporting
affidavit is “weak evidence of prejudice.” Hoffner v. Bradshaw, 622 F.3d 487, 501 (2010). The
court reasoned as follows:
The affidavit does not allege that the jury was influenced by any
“extraneous” information, and therefore the juror’s testimony was
properly excluded from consideration by the Ohio courts. This court
has previously held that there is no “constitutional impediment to
enforcing” Ohio’s aliunde rule, and Hoffner has cited no authority to
the contrary. See Brown v. Bradshaw, 531 F.3d 433, 438 (6th Cir.
2008); see also Tanner v. United States, 483 U.S. 107, 117-27 (1987)
(chronicling the legal history of and policy underlying Federal Rule
of Evidence 606(b)).
Hoffner, 622 F.3d at 501. Ahmed is in the same evidentiary boat as was Hoffner: weak evidence of
the juror(s) deliberative process lacking any allegation that the jury was influenced by any
extraneous information. Thus, the result should be the same in both cases.
Although Ahmed declares that his ground for relief “does not involve the Clemons [v.
Mississippi, 494 U.S. 738 (1990)] doctrine,” he does not explain why be believes that to be so, and
this Court imagines no reason why it should be so. Clemons held that errors by the sentencing court
in weighing aggravating circumstances and mitigating factors can be cured by independent
reweighing in the state appellate court. Id. at 745-50. The Ohio Supreme Court performed a
thorough review and reweighing of the valid aggravating circumstances and mitigating factors for
each victim and determined that the death sentence was appropriate for each of Ahmed’s four
aggravated murder convictions. Ahmed, 103 Ohio St. 3d at 55-58, 2004-Ohio-4190 at ¶¶ 167-86.
Pursuant to Clemons, even if this Court agreed that error occurred at the trial court level in Ahmed’s
sentencing procedure, the Ohio Supreme Court’s reweighing cured the error.

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That part of Ahmed’s claim in which he alleges the trial court’s sentencing opinion was
fatally flawed under the federal constitution has been procedurally defaulted without excuse and it
should consequently be denied. In addition, he has failed to demonstrate that the state court’s denial
of his claim that the jurors in his case engaged in misconduct is contrary to or an unreasonable
application of federal law or based upon an unreasonable determination of the facts. Therefore, he is
not entitled to habeas corpus relief, and his seventeenth ground for relief should be denied.

Eighteenth Ground for Relief
In his eighteenth ground for relief, Ahmed contends that the trial court’s allowance of the
alternate jurors to be present in the deliberation room without participating in the actual
deliberations violated an Ohio Rule of Criminal Procedure, and his rights to a fair trial, a reliable
sentence, a jury trial, equal protection, due process, and to be free from cruel and unusual
punishment. (Petition, Doc. No. 35 at PageID 364-71.) Respondent argues that the claim is
procedurally defaulted because, although Ahmed properly raised it on direct appeal, the Ohio
Supreme Court rejected the claim due to Ahmed’s failure to object to the alternates’ presence in the
jury room at the time, and its finding that no plain error occurred. (ROW, Doc. No. 61 at PageID
1041-44.)

In his traverse, Ahmed refers the Court to his memorandum in opposition to

Respondent’s motion to dismiss procedurally defaulted claims, where he argues that his having
raised trial counsel’s ineffectiveness for failing to object to the alternate jurors’ presence in the
deliberations preserved the instant claim for habeas review. (Traverse, Doc. No. 71 at PageID 1833;
Doc No. 44 at PageID 681-82.)

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Ahmed correctly states that he raised the instant ground for relief on direct appeal to the Ohio
Supreme Court as his sixteenth proposition of law. (Appendix, Vol. 3 at 442-48.) Respondent is
correct in arguing that the state supreme court found Ahmed had failed to object to the alternates’
presence in deliberations, thereby waiving all but plain error. Ahmed, 103 Ohio St. 3d at 46-47,
2004-Ohio-4190 at ¶¶ 115-18. Since Ahmed’s ineffective assistance of trial counsel claim fails here
as it did in the state supreme court, it cannot serve as cause to excuse Ahmed’s procedural default of
his alternate jurors ground for relief. See Fourth Ground for Relief, supra; Ahmed, 103 Ohio St. 3d
at 54-55, 2004-Ohio-4190 at ¶ 164.
Furthermore, the state court concluded that Ahmed had suffered no prejudice from the
alternates’ presence in deliberations or from his trial counsel’s failure to object to that arrangement.
Id. at 46-47, 54-55, 2004-Ohio-4190 at ¶¶ 115-18, 164. Ahmed acknowledges that his burden with
regard to any prejudice from the alleged error is to show that it had “‘a substantial and injurious
effect or influence in determining the jury’s verdict,’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993), quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946), but the only “argument” he
makes, if it can be called that, is his bare assertion that “[t]he mere fact that alternate jurors remained
in the room, upon the Trial Court’s instruction, in both phases, cannot but have a substantial and
injurious effect on influencing the 12 jurors in their decision.” (Traverse, Doc. No. 71 at PageID
1840.) Such a declaration does not satisfy Ahmed’s burden to show that he was prejudiced by the
alternates’ presence in the jury room during deliberations, or from his trial counsel’s failure to object
to their presence in deliberations.
As noted above, Ohio’s rule that contemporaneous objections are required to preserve a
claim of error for appeal is a firmly established and regularly followed rule. It was applicable in

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Ahmed’s case, and the Ohio Supreme Court enforced the rule. Ahmed has not demonstrated cause
for the default or prejudice therefrom, so his eighteenth ground for relief is not preserved for habeas
corpus review, and it should be denied for that reason.
Were it preserved, however, it would still fail. In his traverse, Ahmed asserts that the Ohio
Supreme Court’s decision is contrary to United States v. Olano, 507 U.S. 725 (1993).28 (Traverse,
Doc. No. 71 at PageID 1840.) Olano, however, is a case that went to the United States Supreme
Court on direct appeal from a federal conviction in which the Court considered whether the presence
of non-participating alternate jurors in deliberations was plain error under Fed. R. Crim. P. 24(c) and
52(b). 507 U.S. at 727, 737. (The Court concluded it was not. Id.) The Court noted that the
question before it was not whether the alternates’ presence in the deliberations violated the Sixth
Amendment or Due Process Clause, and instead concerned the federal rules cited. Id. at 739.
Therefore, Olano does little to further Ahmed’s claim of constitutional error from the alternates’
presence in deliberations. Moreover, the Sixth Circuit has observed that even though Olano was not
a habeas corpus case, the Court “clearly held that the mere presence of alternate jurors in jury
deliberations does not affect a defendant’s substantial rights” in the context of plain error analysis.
Roberts v. Carter, 337 F.3d 609, 616 (6th Cir. 2003). It is highly unlikely that analysis under the
more stringent standard of the AEDPA would result in a Supreme Court ruling more favorable to
Ahmed.
Aside from the state procedural rule and cases from the Ohio state courts, Ahmed relies quite
heavily on a Fourth Circuit Court of Appeals case, United States v. Virginia Erection Corp., 335
F.2d 868, 870 (4th Cir. 1964), citing Patton v. United States, 281 U.S. 276 (1930), abrogated by

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Williams v. Florida, 399 U.S. 78 (1970); a case from the Tenth Circuit Court of Appeals, United
States v. Beasley, 464 F.2d 468 (10th Cir. 1972); a case from the Superior Court of Pennsylvania,
Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (Pa. 1949); a case from the Supreme Court
of North Carolina, State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (N.C. 1975); a case from the
Supreme Judicial Court of Massachusetts, Commonwealth v. Smith, 403 Mass. 489, 531 N.E.2d 556
(Mass. 1988); and a case from the Supreme Court of Washington, State v. Cuzick, 85 Wash.2d 146,
530 P.2d 288 (Wash. 1975). (Petition, Doc. No. 35 at PageID 366-370.)
In at least three of those cases, the courts were interpreting state statutes or constitutions,
which have no relevance to Ahmed’s habeas corpus claim about the alternate jurors. See Smith, 403
Mass. at 491-97; Bindyke, 288 N.C. at 621-27; Krick, Pa.Super. at 520-21. In Beasley, the court
relied upon a federal rule of criminal procedure in granting a mistrial because of an alternate’s
presence in deliberations. 464 F.2d at 469. Although that court cited Duncan v. Louisiana, 391 U.S.
145 (1968), and Williams v. Florida, 399 U.S. 78 (1970), in its analysis, it did so for the purpose of
directing the reader’s attention to the Supreme Court’s discussion of the history and nature of jury
trials, and not for any specific holding relevant to the alternate juror issue. In addition, the Beasley
court was guided by two cases interpreting federal rules and statutes respecting alternate jurors, and
Virginia Erection Corp., which this Court addresses in the next paragraph. In Cuzick, the state court
first addressed the relevant state statute, but then appears to recognize that, at least as far as the
privacy of the jury’s deliberations goes, it is a matter of “constitutional statute,” 85 Wash.2d at 149,
which this Court reads as a typographical error most probably meant to state that the issue is one of
constitutional stature.

28

Curiously, Ahmed never mentions the Olano case in his discussion of his eighteenth ground for relief in his

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Ahmed also relies on Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964). He cites that
case for the proposition that “[c]riminal defendants are entitled to a jury of twelve persons, no more
and no less.” The case does include that statement, and it cites Patton v. United States, 281 U.S. 276
(1930) as support for that proposition, as Ahmed acknowledges. What apparently escaped Ahmed’s
notice, however, is that the Fourth Circuit Court of Appeals has overruled that specific holding in
Virginia Erection Corp. in United States v. Curbelo, 343 F.3d 273, 279 (4th Cir. 2003), following the
Supreme Court’s abrogation of Patton in Williams v. Florida, 399 U.S. 78, 86 (1970). This is
another risk habeas petitioner’s counsel takes in simply cutting and pasting another lawyer’s work
from the state appellate brief into the federal habeas petition without checking the accuracy of
previous counsel’s work or the validity of the cases upon which that lawyer relied. Not only does
the bulk of the argument miss the point relevant in habeas corpus, the law upon which the appellate
counsel relied may be, as here, overruled or abrogated.
Furthermore, none of the cases cited by Ahmed are ones that came to the respective courts by
way of a petition for a writ of habeas corpus. Therefore, none of those appellants faced the
strenuous hurdles Ahmed faces under the AEDPA. Citing state and federal appellate court rulings
on direct appeal in a habeas corpus petition benefits the habeas petitioner little since the question is
whether the state court holdings in the petitioner’s case are contrary to or an unreasonable
application of clearly established federal law as determined by the United States Supreme Court, or
based upon an unreasonable determination of the facts in light of the evidence before the state court
at the time it rendered its opinion. As the Supreme Court has repeatedly stated, “a federal habeas
court making the ‘unreasonable application’ inquiry should ask whether the state court’s application

petition.

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of clearly established federal law was objectively unreasonable” rather than simply erroneous or
incorrect. Williams v. Taylor, 529 U.S. 362 at 410-11. Citing state cases interpreting state rules and
statutes, or citing federal cases in which the federal rules or statutes are discussed is not helpful to a
petitioner bringing suit under 28 U.S.C. § 2254. The closest Ahmed comes to making a cogent
argument in his eighteenth ground for relief is to note that Virginia Erection Corp. cites Patton, the
proposition for which it was cited having been abrogated by Williams v. Florida some forty years
ago!
Finally, although Ahmed does not cite any Sixth Circuit law in his argument, this Court
observes that in Manning v. Huffman, 269 F.3d 720 (6th Cir. 2001), the court of appeals determined
that the habeas petitioner’s evidence that an alternate juror had actually participated in the
deliberations was sufficient to demonstrate prejudice. Id. at 726. Recall, however, that the court
noted in Roberts that the Supreme Court had found no diminution of a defendant’s substantial rights
when the alternate jurors were merely present but did not take part in the deliberations. 337 F.3d at
615, citing Olano, 507 U.S. 725. Thus, nothing in the Sixth Circuit’s consideration of alternate juror
claims alleging error of a constitutional dimension would have helped Ahmed meet his burden under
the AEDPA even if his eighteenth ground for relief had been preserved.29

29

The record in Ahmed’s case is completely devoid of any evidence that the alternate jurors participated in any
way in the deliberations during either phase of his trial. Since he vigorously asserts that alternates are extraneous to
the jury during deliberations (Petition, Doc. No. 35 at PageID 366-69), he could have, but did not, raise the instant
claim in his post-conviction proceedings, supporting the claim with affidavits from the alternates and/or jurors
indicating what part, if any, the alternates took in the deliberations. On this record, however, no evidence exists
suggesting the alternates participated in the deliberations at all, and they were explicitly instructed not to do so.
(Trial Tr., Vol. 8 at 841; Vol. 9 at 188.) The jury is presumed to have followed the instructions. Weeks v. Angelone,
528 U.S. 225, 234 (2000), citing Richardson v. Marsh, 481 U.S. 200, 211 (1987).

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Ahmed’s eighteenth ground for relief is procedurally defaulted and should be denied for that
reason. Even if he had preserved the claim, however, it would be unavailing, and his request for
habeas corpus relief would be denied.

Nineteenth Ground for Relief
In his nineteenth ground for relief, Ahmed contends that the prosecutor, his trial counsel, and
the trial court all violated his right to a speedy trial. (Petition, Doc. No. 35 at PageID 371-78.)
Respondent argues the claim is procedurally defaulted and that the applicable four-factored test
articulated by the Supreme Court militates against relief on the claim. (ROW, Doc. No. 61 at
PageID 1044-46.) Ahmed essentially admits that the claim is procedurally defaulted, but directs the
Court to his fifth ground for relief where he argued that his appellate counsel’s ineffectiveness serves
as cause for his default of the instant claim. (Traverse, Doc. No. 71 at PageID 1840.) In addressing
that ground for relief, this Court concluded that the state court’s denial of Ahmed’s application to
reopen his direct appeal because it was untimely did not result in a procedural default of Ahmed’s
ineffective assistance of appellate counsel claim asserted in the application. When the state court
applied the timeliness rule in Ahmed’s case, it was not an independent and adequate state procedural
ground upon which this Court may base a procedural default since it was not firmly established and
regularly followed in the state courts at that time.
In addressing the fifth ground for relief, this Court considered the merits of Ahmed’s speedy
trial claim to the extent necessary to determine whether appellate counsel were ineffective for failing
to raise the matter as error on direct appeal. The Court concluded that the claim, had it been
presented to the state court, would have been rejected as meritless, which in turn means Ahmed’s

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appellate counsel were not ineffective for omitting the speedy trial claim from the direct appeal.
Since appellate counsel were not ineffective, their performance cannot serve as cause to excuse
Ahmed’s procedural default of the instant ground for relief. Consequently, Ahmed’s speedy trial
claim is procedurally defaulted without excuse and should be denied for that reason.

Twentieth Ground for Relief
In his twentieth ground for relief, Ahmed contends he was deprived of his right to a public
trial when the trial court ordered spectators out of the courtroom prior to a hearing on November 9,
2000. (Petition, Doc. No. 35 at PageID 378-80.) Ahmed also speculates that hearings held on
January 8 and 11, 2001, and February 2, 2001, were either held in the jail and not accessible by the
public, or that unidentified “attorneys interested in the case” were kept from attending one of those
hearings. Id. at PageID 389. With the exception of the November 9 hearing, none of the pages of
transcript from those hearings indicates they took place away from the courthouse or that any person
who was interested in the proceedings was kept from attending, and they will not be discussed
further.
Respondent argues that the claim is procedurally defaulted because it was never raised as
error on direct appeal in the state court, and because Ahmed’s application to reopen his direct appeal
was dismissed because it was untimely, resulting in the procedural default here. (ROW, Doc. No. 61
at PageID 1046-48.) No default results, however, if the procedural rule relied on by the state court
was not firmly established and regularly followed at the time it was applied to the petitioner’s case,
however.

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Ahmed responds that “NONE OF PETITIONERS [sic] CLAIMS RAISED IN AN
APPLICATION TO REOPEN UNDER OHIO S. CT. PRAC. R. XI, § 6 ARE DEFAULTED” in his
memorandum opposing Respondent’s motion to dismiss procedurally defaulted claims. (Doc. No.
44 at PageID 655.) The only claim capable of being raised in an application to reopen under the rule
Ahmed cites, however, is an ineffective assistance of appellate counsel claim. The underlying
claims identified in the application are not saved from procedural default simply by being mentioned
as errors that should have been raised by appellate counsel. Therefore, the fact that Ahmed included
his public trial claim as a proposition of law his appellate counsel should have raised on direct
appeal does not preserve the public trial claim for habeas corpus purposes.
Recall, however, that this Court has concluded that the timeliness rule pertaining to
applications to reopen direct appeals, on which the state court relied in dismissing Ahmed’s
application, was not a rule that was firmly established and regularly followed at the time it was
applied in Ahmed’s case. (See Fifth Ground for Relief, supra.) Consequently, this Court has
addressed Ahmed’s ineffective assistance of appellate counsel claim de novo, and determined that no
ineffectiveness resulted from appellate counsel’s failure to include the public trial claim as a
proposition of law in Ahmed’s direct appeal because the outcome of Ahmed’s appeal would not
have been different had the claim been presented. Id. In other words, Ahmed’s public trial claim
would not have been a successful claim even if it had been presented to the state court on direct
appeal. For the reasons stated in the Court’s discussion of Ahmed’s fifth sub-claim of his fifth
ground for relief, supra, and because there was no ineffectiveness on the part of Ahmed’s appellate
counsel to excuse the default of his public trial claim, Ahmed’s twentieth ground for relief should be
denied as procedurally defaulted.

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Twenty-First Ground for Relief
In his twenty-first ground for relief, Ahmed contends he was denied a fair trial due to “the
government[-]sponsored practice of excessive courtroom security.” (Petition, Doc. No. 35 at
PageID 381-383.) He also alleges, as he did in his fifth ground for relief, thirteenth sub-claim,
supra, that streets were blocked and jurors were transported by law enforcement vehicles to and
from the courthouse during his trial, that there were police posted outside the courtroom door attired
in “full armed special duty” gear, and that photographs of him in shackles and a jail uniform were
frequently published on television, in newspapers, and on the internet. Id. The last of those
allegations has no relevance to Ahmed’s claim that there was excessive police presence during his
trial, so it will not be considered further.
Respondent argues the claim is procedurally defaulted (ROW, Doc. No. 61 at PageID 104849), to which Ahmed counters that he preserved the claim by including it as one underlying his
ineffective assistance of appellate counsel claim in a pro se application to reopen his direct appeal
filed in the Ohio Supreme Court (Traverse, Doc. No. 71 at PageID 1851-52). As has been noted
above numerous times, even if the Ohio Supreme Court had considered the merits of Ahmed’s pro
se application, that would not preserve for habeas corpus review the claims identified as ones
Ahmed believed his appellate counsel should have but did not raise on direct appeal in the state
court. Although Ahmed argues in his fifth ground for relief that his appellate counsel were
ineffective for failing to raise as error on direct appeal the excessive police presence claim, he does
not contend here that his appellate counsel’s ineffectiveness is cause for the procedural default of
this ground. Regardless, this Court recommends denial of Ahmed’s ineffective assistance of

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appellate counsel claim, supra, having found no ineffectiveness on counsel’s part in the omission of
the excessive police presence proposition of law on direct appeal. Consequently, appellate counsel’s
performance cannot serve as cause to excuse Ahmed’s procedural default of the claim here.
Furthermore, Ahmed supposes prejudice without demonstrating any such result from the police
presence in the courtroom.
Ahmed’s twenty-first ground for relief is procedurally defaulted without excuse, and should
be denied for that reason. Even if it had been properly preserved for habeas corpus review, however,
it would fail, as discussed in Ahmed’s thirteenth sub-claim of his fifth ground for relief, supra.

Twenty-Second Ground for Relief
In his twenty-second ground for relief, Ahmed contends the police were constitutionally
required to obtain a search warrant prior to searching the “home/crime scene.” (Petition, Doc. No.
35 at PageID 383-84.) Respondent argues the claim is both procedurally defaulted as having never
been presented to the state courts, and meritless since Ahmed has utterly failed to specify precisely
what evidence he believes was seized without a warrant. (ROW, Doc. No. 61 at PageID 1050-51.)
Ahmed again suggests that this claim was preserved by his including it as a claim underlying his
ineffective assistance of appellate counsel claim presented to the state court through his pro se
application to reopen his direct appeal. And once again, the Court notes that claims underlying an
ineffective assistance of appellate counsel claim in an application to reopen a direct appeal are not
preserved for habeas corpus review. Only the ineffective assistance claim itself can be preserved via
an application to reopen. Ahmed offers no cause nor does he demonstrate prejudice therefrom to
excuse his procedural default of his claim. Assuming Ahmed intended to offer his appellate

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counsel’s ineffectiveness as cause for the default by raising counsel’s ineffectiveness in his fifth
ground for relief, supra, he has still omitted a demonstration of prejudice. Accordingly, his twentysecond ground for relief should be denied as procedurally defaulted without excuse.
Even if it had been preserved, however, his claim would be unavailing, as discussed in the
Court’s analysis of Ahmed’s seventh sub-claim in his fifth ground for relief, supra.

Twenty-Third Ground for Relief
In his twenty-third ground for relief, Ahmed contends the venires from which the grand
jurors and petit jurors were drawn were not representative of a fair cross section of the community.
(Petition Doc, No. 35 at PageID 385-86.) Respondent counters that to the extent Ahmed challenges
the makeup of the petit jury venire, the claim is both procedurally defaulted and meritless. (ROW,
Doc. No. 61 at PageID 1051-53.) Respondent does not address the procedural posture of Ahmed’s
claim pertaining to the venire from which the grand jurors were drawn in the return of writ, but
argues in a motion to dismiss procedurally defaulted claims that that part of the instant claim was
never presented to the state court. (Motion to Dismiss, Doc. No. 39 at PageID 634-35.) Ahmed
directs the court to the procedural arguments he made in his first ground for relief and indicates that
the explanations as to why the petit jury venire portion of this ground is not procedurally defaulted
can be found there. (Traverse, Doc. No. 71 at PageID 1857.) He also suggests that his pro se postconviction petition included that part of the instant claim directed toward the venire from which the
grand jurors were drawn, and that it was thereby preserved for habeas corpus review. Id. at 1857-58.
Ahmed did not mention the grand jury venire when he presented his petit jury venire claim to
the state court through counsel. (Appendix, Vol. 8 at 114-18.) He claims to have raised the grand

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jury venire issue in a pro se petition for post-conviction relief, but provides no citation to the record
to aid this Court’s consideration of that part of the instant claim. (Traverse, Doc. No. 71 at PageID
1857-58.) In any event, Ohio does not permit hybrid representation where a defendant or petitioner
for post-conviction relief is represented by counsel. State v. Keenan, 81 Ohio St. 3d 133, 138
(1998), citing McKaskle v. Wiggins, 465 U.S. 168, 183 (1984), and State v. Thompson, 33 Ohio St.
3d 1, 6 (1987). Thus, Ahmed’s pro se petition was not properly filed in the state court as he was at
all times represented by counsel. Having never been properly presented to the state court, that
portion of the instant ground in which he contends the grand jury venire was not representative of
the community is procedurally defaulted and should be denied for that reason.
Ahmed did present the petit jury venire issue to the state court as his seventeenth claim for
relief in his post-conviction petition. (Appendix, Vol. 8 at 116-17.) The post-conviction trial court
denied the claim as barred by the doctrine of res judicata, id. at 343-46, and the state court of
appeals affirmed on the same ground, State v. Ahmed, No. 05-BE-15, 2006-Ohio-7069 at ¶¶156-61,
2006 WL 3849862 at *20-21 (Ohio App. 7th Dist. Dec. 28, 2006). The Ohio Supreme Court
declined further review. State v. Ahmed, 113 Ohio St. 3d 1513, 2007-Ohio-2208 (2007). As noted
above, Ahmed references the procedural arguments he made in his first ground for relief, supra, in
disputing that the instant claim is procedurally defaulted. Each of the several explanations Ahmed
offered there were rejected when considered in his first ground for relief, and they are no more
persuasive here. Ahmed offers no cause or prejudice that could excuse his procedural default of the
instant ground. That being the case, to the extent he alleges the venire from which his petit jury was
drawn did not represent the racial composition of the community, his claim is procedurally defaulted
and should be denied for that reason.

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In the state appellate court, Ahmed also argued that the claim was not barred by res judicata
because even though the makeup of the jury venire was known at the time of trial and direct appeal,
the statistical information regarding the racial composition of the community was not part of the
record and therefore the claim could not be considered by the trial court or the appellate court.
(Appendix, Vol. 9 at 128.) The state appellate court acknowledged Ahmed’s argument, but
summarily rejected it, simply stating that the claim could have been raised on direct appeal and that
since it was not, it was barred by the doctrine of res judicata in post-conviction. Ahmed, 2006-Ohio7069 at ¶¶157-58. In fact, nothing stood in the way of Ahmed’s trial counsel obtaining the statistical
data to support the objection defense counsel made to the trial court concerning the racial makeup of
the jury venire. (Trial Tr., Vol. 6 at 482.) Because that evidence was available for inclusion in the
trial record, Ahmed’s claim challenging the racial composition of the petit jury venire could have
been brought at trial or on direct appeal, and since it was not, it was barred from consideration in
post-conviction by the doctrine of res judicata. The Sixth Circuit has found the res judicata rule to
be an independent and adequate state procedural rule, application of and state court reliance on
which precludes federal habeas corpus review. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007);
Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003); Coleman v. Mitchell, 268 F.3d 417, 427 (6th
Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61
(6th Cir. 1994).
Rather than demonstrating to this Court how the state appellate court’s decision was contrary
to or an unreasonable application of federal law, Ahmed chooses to repeat the arguments he made to
the state court, as if this Court could simply come to its own conclusion about the issue without the

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constraints mandated by the AEDPA. But even if he had preserved the instant claim, however, it
would not bring him the relief he seeks in habeas corpus.
“Purposeful racial discrimination in selection of the venire violates a defendant’s right to
equal protection.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). “Those on the venire must be
‘indifferently chosen,’ to secure the defendant’s right under the Fourteenth Amendment to
‘protection of life and liberty against race or color prejudice.’” Id. at 86-87, quoting Strauder v.
West Virginia, 100 U.S. 303, 309 (1879), abrogated on other grounds by Taylor v. Louisiana, 419
U.S. 522, 536 n.19 (1975). “The burden is, of course, on the petitioner[] to prove the existence of
purposeful discrimination.” Whitus v. Georgia, 385 U.S. 545, 550 (1967), citing Tarrance v.
Florida, 188 U.S. 519 (1903). The Supreme Court has described a defendant’s burden as follows:
In order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be
excluded is a “distinctive” group in the community; (2) that the
representation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979). The following paragraphs are Ahmed’s attempt to
meet the burden he would have had he preserved his fair-cross section claim:
Petitioner did not receive his Fourteenth Amendment rights to Due
Process and Equal Protection because the venire from which his
capital grand jury and capital petit jury was [sic] chosen was not
representative of the community. Taylor v. Louisiana, 419 U.S. 522,
538 (1975). Petitioner’s jury was not.
Although the population of Belmont County is overwhelmingly
Caucasian, nonwhites comprise approximately five percent. In a
county of 69,451 residents, at least 3,472 persons are nonwhite.
Thus, approximately five percent of the venire should have been
nonwhite. For example, in a jury pool of approximately two hundred
persons from Belmont County, at least ten of the prospective jurors
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should be nonwhite. The under-representation of a cognizable group
in a jury venire can constitute a denial of due process. Peters v. Kiff,
470 [sic] U.S. 493, 501 (1972). In Petitioner’s case, only one person
in the array was nonwhite. (Voir Dire, Vol. 2, p. 482) [sic]. Upon,
information and belief, Petitioner asserts that all persons on the grand
jury were white.
Petitioner lodged a pro se objection to the make up and constitution
of the jury pool. This objection was based on the talk overheard by
Petitioner among police that they would ensure [a] 100% white jury
in this case. Petitioner was particularly concerned with the trial
court’s order (see Td# 128 dated 10-25-2000) “The Sheriff’s Office is
directed to serve jurors personally” because such an order gave the
sheriff and his deputies discretion to personally observe prospective
venire persons and simply do not serve those potential jurors who
were not white. The group excluded by “sheriff’s personal service”
from which the venire was drawn was a distinctive group of nonwhite persons. The trial court’s failure to ensure a fair cross-section
of the community and then using the Sheriff for personal service
upon prospective jurors when sufficient time for mail service was
available from 10-25-00 to 1-16-01, was “systematic exclusion of the
non-white group” in violation of Duren v. Missouri, 439 US [sic] 357
(1979).
(Petition, Doc. No. 35 at PageID 385-86.) As is apparent, Ahmed’s argument fails to establish even
one of the Duren requirements. “Non-whites” has never been recognized as a “distinctive group” in
the community. In addition, Ahmed alleges that there was only one non-white person in “the array,”
citing a page in the transcript of voir dire. There, Ahmed’s counsel moved to dismiss the jury panel
because “this particular array” included only one person of non-Caucasian origin and consequently
did not represent a proper cross-section of the community. (Trial Tr., Vol. 6 at 482.) The time for
making that objection, however, was when the “array” was initially brought into the courtroom, not
after counsel participated in choosing the jurors and alternates from the venire. Furthermore, Ahmed
points to no evidence in the record supporting his claim that 5% of the Belmont County population is
non-white, nor does he indicate how many individuals were in “the array” that contained only one

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non-white person, making it impossible for this Court to determine the significance of that alleged
fact. Consequently, Ahmed has not demonstrated that representation of non-whites in the venire
from which his jury was selected was not fair and reasonable in relation to the number of such
persons in the community. His allegations concerning his overhearing police discuss ensuring a jury
of all white individuals is completely unsupported in the record, as is his questionable claim that
police officers served only white individuals with jury summonses. Thus, Ahmed has not
demonstrated that the exclusion of non-whites from the jury venire was systematic.
As for the venire from which Ahmed’s grand jurors were drawn, he offers even less evidence
of any impropriety. Frankly, “upon information and belief” of a petitioner is nothing like the
evidence required to establish entitlement to a writ of habeas corpus on a fair cross section claim, but
that is what Ahmed offers instead of actual evidence. Since that is all Ahmed provides to the Court
about the racial makeup of the grand jury that returned an indictment against him or the venire from
which it was drawn, that claim, too, would fail had it been preserved for habeas corpus review.
In summary, Ahmed has procedurally defaulted his claim that the venires from which his
grand and petit juries were selected did not represent fair cross sections of the community, and his
twenty-third ground for relief should be denied for that reason. Had he preserved the claims in the
state court, however, they would fail anyway since Ahmed has offered no evidence to support the
claim.

Twenty-Fourth Ground for Relief
In his twenty-fourth ground for relief, Ahmed contends that extensive pretrial publicity
necessitated a change of venue which defense counsel requested but the trial court denied, and that

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he was consequently deprived of a fair trial. (Petition, Doc. No. 35 at PageID 386-91.) Respondent
acknowledges the matter is preserved for habeas corpus review, but argues that the Ohio Supreme
Court’s decision on the issue was neither contrary to nor an unreasonable application of federal law.
(ROW, Doc. No. 61 at PageID 1053-58.) As expected, in his traverse, Ahmed repeats verbatim the
arguments made in his petition which itself appears to be mostly copied from Ahmed’s appellate
brief on direct appeal in the state court. He contends that “the [t]rial [c]ourt erred” in denying the
motion for a change of venue due to pretrial publicity. (Traverse, Doc. No. 71 at PageID 1864.)
The question before this Court, however, is not whether the trial court erred, but whether the Ohio
Supreme Court’s decision rejecting Ahmed’s claim of error was contrary to or an unreasonable
application of federal law as determined by the Supreme Court. The closest Ahmed comes to even
approaching that burden is to state without elaboration that “[t]his issue is contra Irvin v. Dowd, 366
U.S. 717 (1961).” (Traverse, Doc. No. 71 at PageID 1864.) Such skeletal relevant argument does
not demonstrate entitlement to habeas corpus relief. Nevertheless, Ahmed’s claim is easily decided,
and this Court will do so as if Ahmed had actually addressed the question before this Court rather
than the one that was before the state court on direct appeal.
The Supreme Court has recognized that
“A fair trial in a fair tribunal is a basic requirement of due process.”
In re Murchison, 349 U.S. 133, 136 [(1955)]. In the ultimate
analysis, only the jury can strip a man of his liberty or his life. In the
language of Lord Coke, a juror must be as “indifferent as he stands
unsworne.” Co.Litt. 155b. His verdict must be based upon the
evidence developed at the trial. Cf. Thompson v. City of Louisville,
362 U.S. 199 [(1960)]. This is true, regardless of the heinousness of
the crime charged, the apparent guilt of the offender or the station in
life which he occupies. It was so written into our law as early as
1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). “The
theory of the law is that a juror who has formed an opinion cannot be
impartial.” Reynolds v. United States, 98 U.S. 145, 155 [(1878)].
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It is not required, however, that the jurors be totally ignorant of the
facts and issues involved. In these days of swift, widespread and
diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will not have
formed some impression or opinion as to the merits of the case. This
is particularly true in criminal cases. To hold that the mere existence
of any preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a prospective
juror’s impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court. Spies v.
People of State of Illinois, 123 U.S. 131 [(1887)]; Holt v. United
States, 218 U.S. 245 [(1910)]; Reynolds v. United States, supra.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961) (parallel citations omitted).
When considering whether Ahmed’s request for a change of venue was erroneously denied,
the Ohio Supreme Court acknowledged that “there was extensive pretrial publicity about the
murders in the local media.” Ahmed, 103 Ohio St. 3d at 33, 2004-Ohio-4190 at ¶ 39. The court
concluded, however, that “extensive, individual, sequestered voir dire of prospective jurors . . .
helped insulate against any negative effect of the pretrial publicity.” Id. In addition, the court noted
that every person empaneled as a juror in Ahmed’s case had confirmed during voir dire that they had
not formed an opinion about Ahmed’s guilt or innocence, and affirmed that they could put aside
anything they had read or heard about the case and render a fair and impartial verdict based solely on
the evidence presented in court. Id. at 33-34, ¶ 41. Finally, the court concluded that Ahmed had not
shown that any of his jurors were biased. Id. at 34, ¶ 41. Thus, even though there was extensive
pretrial publicity, Ahmed was unable to demonstrate any prejudice he suffered as a result of the
publicity or the trial court’s denial of his motion for a change of venue.

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As mentioned above, Ahmed does not explain how the state court’s decision is contrary to or
an unreasonable application of federal law, but he does suggest that prejudice should be presumed,
citing Irvin, supra, and Sheppard v. Maxwell, 384 U.S. 333 (1966). The publicity in Ahmed’s case
does not even come close in volume or duration to that in either of those cases. In Irvin’s case,
forty-six exhibits consisting of newspaper headlines, articles, cartoons, and pictures that had been
printed about him in the six or seven months before his trial accused him of other crimes, stated he
had confessed to twenty-four burglaries, characterized him as remorseless and without a conscience,
reported that he had confessed to six murders, and stated that he had offered to plead guilty to the
charged offense if he were promised a ninety-nine-year prison sentence. Irvin, 366 U.S. at 725-26.
In Sheppard, newspaper and television coverage of the murder of Sheppard’s wife and criticism of
Sheppard, his attorney, and his family was constant prior to trial, and it only got worse when the trial
commenced. Sheppard, 384 U.S. at 337-42. The small courtroom was set up to accommodate
twenty representatives of newspapers and wire services. Id. at 343. Additional seating was reserved
for television and radio stations, reporters from out-of-town newspapers, and reporters from
magazines. Id. Arrangements were made so that news could be broadcast from the courthouse
throughout the days during the trial. Id. Outside, news media were set up to take motion pictures of
the participants in the trial, including the jurors, judge, counsel, and witnesses, and Sheppard was
extensively photographed as he arrived at the courthouse. Id. at 344. The list of outrageous press
access and involvement in Sheppard’s case goes on and on, and the massive coverage of the trial and
accommodation of the news media by the court continued throughout Sheppard’s nine-week trial.
Id. The Supreme Court described the scene in and around the courthouse as “bedlam” and “a
carnival atmosphere.” Id. at 355, 358.

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Here, Ahmed offers that fourteen newspaper accounts30 described the murders and his return
to Ohio for prosecution, none of which appeared in print later than November 16, 1999, a mere two
months after the murders. (Petition, Doc. No. 35 at PageID 387-90.) Apparently, no other articles
appeared in the newspapers from November 17, 1999, until Ahmed’s trial began on January 16,
2001, a period of fourteen months. The Supreme Court has indicated that a lapse of time and a
diminishment of the “decibel level of media attention” lessens any prejudicial impact of news
reports critical of a defendant or his alleged offenses. Skilling v. United States, 561 U.S. 358, 383
(2010). Although Ahmed’s gap in news coverage was only one quarter of the four-year period of
decreased coverage in Skilling, the level of media attention in his case was far, far less as well.
Moreover, “pretrial publicity – even pervasive, adverse publicity – does not inevitably lead to an
unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976). Fourteen articles published
more than a year before Ahmed’s trial can hardly be described as “pervasive.” Ahmed has not
demonstrated that the articles gave rise to a presumption of prejudice as he claims.
The closest Ahmed comes to arguing that members of his jury were actually prejudiced by
the pretrial publicity his case received is to contend that mere exposure to the newspaper articles
compromised their impartiality, and that their subsequent assurances that they could render a fair
verdict are not enough, without more, to dispel any doubts about their ability to be impartial.
(Petition, Doc. No. 35 at PageID 390-91.) He correctly argues that in Irvin v. Dowd, supra, the
Supreme Court found actual prejudice despite jurors’ assurances that they could be impartial.
(Petition, Doc. No. 35 at PageID 391.) In that case, however, it was established that the newspapers
in which the prejudicial articles appeared were “‘delivered regularly to 95% of the dwellings’ in the

30

Ahmed does not indicate where in the multi-box Appendix those articles might be found.

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county where Irvin’s trial was held, and that ‘the pattern of deep and bitter prejudice’ in the
community ‘was clearly reflected in the sum total of the voir dire.’” Skilling, 130 S.Ct. at 2922,
quoting Irvin, 366 U.S. at 725-27. Furthermore, in Ahmed’s case, as in Skilling, individual voir dire
on the subject of pretrial publicity was granted, giving counsel and the judge a “face-to-face
opportunity to gauge demeanor and credibility, [which, when] coupled with information from the
questionnaires regarding jurors’ backgrounds, opinions, and sources of news, gave the court a sturdy
foundation to assess fitness for jury service.” Skilling, 130 S.Ct. at 2923. Thus, the trial court did
not simply take jurors at their word that they could be fair and impartial.
In short, this Court finds no constitutional infirmity in the Ohio Supreme Court’s affirmance
of the trial court’s denial of Ahmed’s motion for a change of venue based on what Ahmed
characterizes as extensive pretrial publicity. Accordingly, Ahmed’s twenty-fourth ground for relief
should be denied.

Twenty-Fifth Ground for Relief
In his twenty-fifth ground for relief, Ahmed contends he was denied his right to contact
Pakistan’s consulate pursuant to the Vienna Convention on Consular Relations. (Petition, Doc. No.
35 at PageID 391-95.) Respondent does not advance a procedural default defense, arguing that the
Ohio Supreme Court’s decision denying Ahmed’s claim on direct appeal was neither contrary to nor
an unreasonable application of federal law. (ROW, Doc. No. 61 at PageID 1058-60.) Ahmed argues
that since he was unaware of his rights under the Vienna Convention, he could not have waived
them, as the state supreme court found, and that the state court’s decision was therefore
unreasonable. (Traverse, Doc. No. 71 at PageID 1868.) He contends the failure to advise him of his

187

rights under the Vienna Convention constitutes structural error which relieves him of the duty to
show prejudice from the denial of his rights. Id.
When presented with the claim on direct appeal, the Ohio Supreme Court found as follows:
In his 17th proposition of law, appellant argues that law enforcement
officers’ failure to advise him, a foreign citizen, of his right to contact
his country’s consulate pursuant to the Vienna Convention on
Consular Relations (“VCCR”) deprived him of due process.
Appellant asserts that both New York and Belmont County law
enforcement personnel were aware that he was a Pakistani citizen,
since they had seized his Pakistani passport. Appellant contends that
even though police officers knew that he was a Pakistani citizen, they
failed to inform him of his absolute right to consular access under the
VCCR.
Appellant contends that he is a citizen of both Pakistan and the
United States. Under Section 1448, Title 8, U.S. Code, however, the
United States does not recognize the “other citizenship” of a person
claiming dual citizenship once the person takes the oath to become a
United States citizen. See United States v. Shahani-Jahromi (E.D.
Va 2003), 286 F.Supp.2d 723, 726 [sic], fn.1.
Moreover, as the court noted in United States v. Matheson (D.C.N.Y.
1975), 400 F.Supp. 1241, 1245: “[I]t is a recognized fact of
international law that a dual national is never entitled to invoke the
protection or assistance of one of the two countries while within the
other country. See Nishikawa v. [Dulles], 356 U.S. 129, 132 (1958);
Kawakita v. United States, 343 U.S. 717, 733 (1952).”
Additionally, we have decided that whatever individual rights the
treaty may confer are waivable. State v. Issa (2001), 93 Ohio St. 3d
49, 54-56. As in Issa, appellant failed to raise this issue before the
trial court and has therefore waived all but plain error. Plain error is
absent, since it cannot be said that but for the error, the outcome of
the trial clearly would have been otherwise. State v. Moreland
(1990), 50 Ohio St. 3d 58, 62. Appellant’s 17th proposition is not
well taken.
Ahmed, 103 Ohio St. 3d 27, 35-36, 2004-Ohio-4190 at ¶¶ 51-55.

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Curiously, although Respondent chose to forego a colorable procedural default defense based
on the state court’s finding that Ahmed had waived all but plain error, that is the precise point upon
which Ahmed focuses his argument in his traverse. He makes no argument at all pertaining to the
state court’s discussion of the merits of his Vienna Convention claim. Procedural default is an
affirmative defense and must be pled by a respondent in his responsive pleading. See Trest v. Cain,
522 U.S. 87, 89 (1997). Respondent here having failed to plead the defense, there is no reason for
Ahmed to defend against it, but that is exactly what he has done, even to the point of ignoring the
state court’s discussion of the merits of his claim. Ahmed takes no issue with the state court’s
decision that his Pakistani citizenship is given no purchase after his having taken the oath to become
a United States citizen. Nor does he dispute that even if dual citizenship is recognized, one holding
such citizenship can never “invoke the protection or assistance of one of the two countries while in
the other country.” Ahmed, 103 Ohio St. 3d at 36, 2004-Ohio-4190 at ¶ 54.
Furthermore, in this Court’s order denying Ahmed’s motion for an evidentiary hearing (Doc.
No. 73), it was observed that
[T]he Warden cites authority for the propositions that (1) the United
States does not recognize the other citizenship of a person claiming
dual citizenship once they have taken the oath of allegiance to the
United States required for naturalization, and (2) under international
law, a dual national cannot claim the protection of one of the two
countries while present in the other. Petitioner makes no response to
this argument; in neither the Petition nor his motion papers does he
offer any proof that he had any rights under the Vienna Convention.
(Doc. No. 77 at PageID 1977.) Nothing filed since the Court’s order has caused it to second guess
its earlier synopsis of the parties’ positions.
Finally, “[T]he Vienna Convention does not create a right for a detained foreign national to
consult with the diplomatic representatives of his nation that the federal courts can enforce.” United
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States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001), citing Federal Republic of Germany v.
United States, 526 U.S. 111, 111-12 (1999); Breard v. Greene, 523 U.S. 371, 377 (1998). “[T]he
‘only remedies for failures of consular notification under the Vienna Convention are diplomatic,
political, or exist between states under international law.’’ Emuegbunam, 268 F.3d at 392, citing
United States v. Page, 232 F.3d 536, 541 (2000), quoting United States v. Li, 206 F.3d 56, 63 (1st
Cir. 2000).
For all of the reasons stated above, Ahmed has failed to demonstrate entitlement to habeas
corpus relief due to the police officers’ failure to inform him of his right under the Vienna
Convention to contact the Pakistan Consulate upon his arrest. Accordingly, his twenty-fifth ground
for relief should be denied.

Twenty-Sixth Ground for Relief
In his twenty-sixth ground for relief, Ahmed contends the Ohio death penalty statutory
scheme is unconstitutional for a variety of reasons. (Petition, Doc. No. 35 at PageID 395-422.)
Respondent notes that Ahmed raised the instant claim as his nineteenth proposition of law on direct
appeal in the Ohio Supreme Court, and that that court summarily rejected Ahmed’s arguments.
(ROW, Doc. No. 61 at PageID 1061.) Respondent concedes the claim is preserved for habeas
corpus review. Id. In his traverse, Ahmed unnecessarily repeats twenty-and-one-half pages of the
argument from his petition, then alleges that Ohio’s death penalty statutes violate several
amendments to the United States Constitution as well as the Ohio Constitution and international law.
(Traverse, Doc. No. 71 at PageID 1870-91.) Of course, only violations of the federal constitution,
laws, or treaties of the United States are cognizable in habeas corpus, as Ahmed’s counsel should be

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well aware,31 so this Court will not consider his argument that the Ohio Constitution is violated by
the state’s statutory scheme.
Ahmed first alleges that Ohio’s death penalty scheme results in arbitrary and unequal
punishment. (Petition, Doc. No. 35 at PageID 1870.) He argues, without citation to evidence in the
record, that Ohio prosecutors possess “virtually uncontrolled indictment discretion” which “allows
arbitrary and discriminatory imposition of the death penalty.” Id. at PageID 396. Ahmed claims that
“[w]hile African-Americans are less than twenty percent of Ohio’s population, forty-nine percent . . .
of Ohio’s death row inmates are African-American.” Id. at PageID 397. The same claim was
advanced and rejected in Coleman v. Mitchell, 268 F.3d 417 (2001). There, the Sixth Circuit Court
of Appeals concluded as follows:
Although the racial imbalance in the State of Ohio’s capital
sentencing system is glaringly extreme, it is no more so than the
statistical disparities considered and rejected by the Supreme Court in
McCleskey [v. Kemp, 481 U.S. 279 (1987)] as insufficient to
“demonstrate a constitutionally significant risk of racial bias affecting
the . . . capital sentencing process.” McCleskey, 481 U.S. at 313.
And though the racial imbalance is, to say the least, extremely
troubling, we find that the prosecutorial discretion under the Ohio
death penalty scheme, and the disconcerting racial imbalances
accompanying such discretion, nevertheless fall, under current
Supreme Court law, within the “constitutionally permissible range of
discretion in imposing the death penalty.” Id. at 305.
Coleman, 268 F.3d at 441-42 (parallel citations omitted). Ahmed does not explain how the Ohio
Supreme Court’s denial of his proposition of law on direct appeal is contrary to or an unreasonable
application of the federal law as summarized by the Sixth Circuit in Coleman. In fact, he does not

31

Most likely, the inclusion of allegations that the Ohio death penalty statutes violate the Ohio Constitution
appear here as a consequence of habeas counsel’s devotion to copying Ahmed’s arguments from his appellate brief
in the state court into his habeas petition and traverse, a practice that has been repeatedly and unfavorably
commented upon, supra.

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cite or even acknowledge McCleskey as the law governing his claim. For the reasons stated in
Coleman, Ahmed’s first sub-claim of his twenty-sixth ground for relief should be denied.
Next, Ahmed argues that Ohio’s death penalty scheme consists of arbitrary and capricious
procedures because the statutes do not require the state to prove the absence of any mitigating
factors or that death is the only appropriate penalty. (Petition, Doc. No. 35 at PageID 398.) This
same argument was rejected in Buell v. Mitchell, 274 F.3d 337, 367-68 (2001), which cited Proffitt
v. Florida, 428 U.S. 242, 258 (1976), Franklin v. Lynaugh, 487 U.S. 164, 172-73 (1988), and Zant v.
Stephens, 462 U.S. 862, 875 (1983). For the reasons expressed in Buell, Ahmed’s second sub-claim
of his twenty-sixth ground for relief should be denied.
Ahmed next contends that a capital case defendant who chooses to exercise his right to a jury
trial faces an impermissibly greater risk of being sentenced to death than does a similarly situated
defendant who elects to plead guilty or no contest. (Petition, Doc. No. 35 at PageID 400.) That
argument, too, has been repeatedly rejected by the Sixth Circuit. See, e.g., Williams v. Bagley, 380
F.3d 932, 966 (6th Cir. 2004) (finding that Ohio’s scheme does not impermissibly encourage guilty
pleas); Cooey v. Coyle, 289 F.3d 882, 924-25 (6th Cir. 2002) (noting that petitioner offered no
constitutional authority to support his claim that Ohio’s statutory scheme impermissibly encouraged
guilty pleas in capital cases). Accordingly, Ahmed’s third sub-claim of his twenty-sixth ground for
relief should be denied.
Ahmed argues next that Ohio’s statutory requirement that the trier of fact be provided with
any presentence investigation report or mental health evaluation requested by defense counsel in the
penalty phase is unconstitutional. (Petition, Doc. No. 35 at PageID 401.) Although the provision of
Ohio law Ahmed complains of has been described as “troubling,” Jamison v. Collins, 100 F.Supp.2d

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647, 764 (S.D. Ohio 2000), rejection of the same claim has been affirmed by the Sixth Circuit Court
of Appeals in Byrd v. Collins, 209 F.3d 486, 539 (6th Cir. 2000). Ahmed’s fourth sub-claim of his
twenty-sixth ground for relief should be denied for the same reasons it was overruled in Byrd.
Next, Ahmed contends that Ohio’s death penalty statutes are unconstitutional because the
same underlying felony can elevate an offense from murder to aggravated murder, and also serves as
an aggravating circumstance making the accused eligible to be sentenced to death. (Petition, Doc.
No. 35 at PageID 401-4.) That argument was rejected in Buell v. Mitchell, 274 F.3d 337, 369-70
(2001), on the authority of Lowenfield v. Phelps, 484 U.S. 231, 241-46 (1988). Ahmed does not
explain why he should be entitled to a different result on the same claim, so his fifth sub-claim of his
twenty-sixth ground for relief should be denied.
Ahmed also alleges that certain language used in Ohio Rev. Code § 2929.03(D)(1) converts
the “nature and circumstances of the aggravating circumstance” into an aggravating circumstance in
the weighing process, and that it contradicts the language of Ohio Rev. Code § 2929.04(B), which
identifies the “nature and circumstances of the offense” as evidence capable of mitigation only.
(Petition, Doc. No. 35 at PageID 404-6.) When presented with the same argument in Cooey v.
Coyle, 289 F.3d 882 (2002), the Sixth Circuit not only rejected the claim, but stated that it “cannot
even imagine a constitutional violation here.” Id. at 928. For the reasons stated in Cooey, Ahmed’s
sixth sub-claim of his twenty-sixth ground for relief should be denied.
In his seventh sub-claim, Ahmed challenges the constitutionality of Ohio’s requirement that
death sentences be reviewed by the appellate court for proportionality and appropriateness of the
sentence. (Petition, Doc. No. 35 at PageID 406-08.) He contends that such review must compare
the death sentence before the appellate court with cases other than ones in which the defendant was

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sentenced to death. In other words, Ahmed argues that his death sentence should have been
compared to cases in which defendants were capitally charged but sentenced to one of the life
sentence options available in Ohio. As the Sixth Circuit stated in Cooey, supra,
The Supreme Court held in Pulley v. Harris, 465 U.S. 37 (1984) that
only one type of proportionality review is required – that in which the
court makes sure that the sentence is proportional to the nature of the
offense. Courts are not required to exercise another type of
proportionality review, i.e., comparing the sentence given in any
particular case to the sentences given in other cases.
Cooey, 289 F.3d at 928 (parallel citations omitted). Thus, as in Cooey, Ahmed “does not allege any
cognizable constitutional violation here.” Id. Accordingly, his seventh sub-claim of his twentysixth ground for relief should be denied.
Ahmed next contends that the method of execution used in Ohio, lethal injection, constitutes
cruel and unusual punishment contrary to the Eighth Amendment of the United States Constitution.
(Petition, Doc. No. 35 at PageID 408-10.) On the authority of Baze v. Rees, 553 U.S. 35 (2008), the
instant sub-claim should be denied.
Finally, Ahmed contends that Ohio’s death penalty scheme violates the United Nations
Charter, the Charter of the Organization of American States, the International Covenant on Civil and
Political Rights, the International Convention on the Elimination of All forms of Racial
Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
of Punishment, the Vienna Convention on the Law of Treaties, the Universal Declaration of Human
Rights, the American Convention on Human Rights, the American Declaration of the Rights and
Duties of Man, the Declaration on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, the Safeguards Guaranteeing
Protection of the Rights of Those Facing the Death Penalty, and the Second Optional Protocol to the
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International Covenant on Civil and Political Rights. (Petition, Doc. No. 35 at PageID 410-22.) The
Sixth Circuit has rejected similar claims by other death-sentenced individuals. Buell v. Mitchell, 274
F.3d 337, 370-76 (2001). Ahmed fares no better in the absence of a determination by the United
States Supreme Court that establishes as a constitutional right the ideas Ahmed has advanced
respecting international law and Ohio’s death penalty scheme. Consequently, Ahmed’s ninth subclaim of his twenty-sixth ground for relief should be denied.
Having found each of Ahmed’s claims that the Ohio death penalty scheme is unconstitutional
to be unavailing, his twenty-sixth ground for relief should be denied.

Twenty-Seventh Ground for Relief
In his final ground for relief, Ahmed argues that even if none of the preceding grounds
justifies habeas corpus relief individually, they cumulate to warrant such relief. (Petition, Doc, No.
35 at 422-23.) Respondent contends the claim is procedurally defaulted as well as meritless. (ROW,
Doc. No. 61 at PageID 1063-64.) Ahmed appears to contest Respondent’s procedural default
argument, at least to certain of his grounds for relief, but even if the claim were preserved for habeas
review, the Sixth Circuit has recently observed that “’post-AEDPA, not even constitutional errors
that would individually support habeas relief can be cumulated to support habeas relief.’” Moreland
v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), quoting Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th
Cir. 2010), and Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Thus, Ahmed’s claim to the
contrary fails, and his twenty-seventh ground for relief should be denied.

CONCLUSION

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The Court has considered each of Ahmed’s twenty-seven grounds for relief and found none
of them, nor any combination of them, meritorious. Accordingly, it is recommended that Ahmed’s
petition for a writ of habeas corpus be DENIED. Because reasonable jurists would not disagree with
this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous.
June 16, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations not later than seventeen days after Respondent refiles the
state court record in electronic format.
Such objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party=s objections
within seventeen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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