Davis v. Warden Ohio State Penitentiary

Filing 148

OPINION AND ORDER - Third Amended Petition 133 is DENIED and the action is DISMISSED WITH PREJUDICE. This Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Signed by Judge Sarah D. Morrison on 11/2/2022. (merc) Modified docket text on 11/3/2022 (sem). Modified document type on 11/4/2022 (sem).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROLAND DAVIS,
Petitioner,

:

Case No. 2:10-cv-107

- vs District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
RICHARD A. BOWEN, JR., Warden,
Ohio State Penitentiary,
:
Respondent.

OPINION AND ORDER AS TO PETITION FOR WRIT OF
HABEAS CORPUS

This capital habeas corpus case is before the Court for decision on the merits
on the Petitioner Roland Davis’s Third Amended Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2254 (“Petition,” ECF No. 133.)
In 2005, Petitioner was convicted of aggravated murder and sentenced to
death for the killing of Elizabeth Sheeler. State v. Davis, 110 Ohio St. 3d 408, 2008Ohio-2 (“Davis I”), ¶¶ 1-2. On appeal, the Supreme Court of Ohio rejected all
eighteen of Petitioner’s propositions of law and affirmed his conviction and death
sentence in 2008. Id. at ¶ 405. Petitioner’s conviction became final on October 6,
2008, when the United States Supreme Court denied his petition for certiorari.
Davis v. Ohio, 555 U.S. 861, 129 S.Ct. 137 (Mem.) (2008). On June 15, 2010,
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Petitioner filed his initial petition for writ of habeas corpus (ECF No. 15), and on
October 18, 2017, filed the instant Third Amended Petition (ECF No. 133.) For the
reasons set forth below, the Petition is DENIED and the action is DISMISSED
WITH PREJUDICE.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A.

Pretrial and Trial

The factual background has been extensively set forth in previous opinions by
this Court and elsewhere, most notably this Court’s September 29, 2015, Opinion
and Order dismissing the Substitute Second Amended Petition in part. (ECF No.
94, PageID 10624-30, quoting Davis I, 2008-Ohio-2, ¶¶ 1-41.) The Court
incorporates that discussion by reference, and the summary discussion below is
limited to those facts germane to the Claims for Relief in the instant Petition.
Elizabeth Sheeler, an elderly woman, was found dead in her apartment on
July 12, 2000. (Petition, ECF No. 133, PageID 11626, ¶ 41, citing Trial Tr., ECF No.
52-3, PageID 7174.) Petitioner’s ex-girlfriend testified that the next day, Petitioner
showed up at her house “in a new car with two envelopes full of cash” and told her
that he had been running drugs. (Id. at PageID 11626-27, ¶ 46, citing Trial Tr.,
ECF No. 52-3, PageID 7358-60.) Another ex-girlfriend stated that Petitioner always
carried a pocketknife and bought her son a $1200 drum set the same month as the
murder. (Id. at PageID 11627, ¶ 47, citing Trial Tr., ECF No. 52-3, PageID 7419,
7423, 7429-30.) Sheeler had asked for Petitioner to be her taxi driver in the past.
(Id., ¶ 48.) In 2003, Petitioner went to a restaurant called Annie’s Place and asked
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if there were any leads in the case. (Id., ¶ 49, citing Trial Tr., ECF No. 52-3, PageID
7459-60, 7485-88.) Detective Steven Vanoy eventually identified Petitioner as a
suspect, claiming that the DNA on the towel found in Sheeler’s apartment matched
that of Petitioner. (Id. at PageID 11628, ¶¶ 50-51, citing Trial Tr., ECF No. 52-3,
PageID 7519-20, 7531.) Vanoy interviewed Petitioner once pre-arrest and once
post-arrest. Petitioner did not confess either time. (Id., ¶¶ 52-54, citing State Court
Record, ECF No. 52-3, PageID 7533-63, 7580-81.)
Petitioner was indicted on one count of aggravated murder of Elizabeth
Sheeler, along with four statutory aggravating circumstances, and separate counts
of murder, kidnapping, aggravated robbery, and aggravated burglary (Petition, ECF
No. 133, PageID 11611, ¶ 5.) The trial began on June 27, 2005, in Licking County,
Ohio, Court of Common Pleas. (Id. at ¶ 6.) During the trial, Richard Hummel, in
Licking County Jail for a drunken driving offense, testified that Petitioner informed
him that Petitioner had stabbed Sheeler. (Id. at PageID 11629, ¶ 55, citing Trial
Tr., ECF No. 52-3, PageID 7593, 7598.) Detective Timothy Elliget testified that
none of the fingerprints was a match for Petitioner. (Id. at PageID 11629-30, ¶¶ 5657, citing Trial Tr., ECF No. 52-3, PageID 7633, 7635, 7651-53, 7702-03.) Meghan
Clement, “the technical director in the forensic identity testing department at
Laboratory Corporation of America Holdings, Incorporated[,]” testified that the
DNA found on the victim was male, and that neither Petitioner nor his male
relatives could be ruled out as the perpetrator. (Id. at PageID 11630, ¶ 59, citing
Trial Tr., ECF No. 52-3, PageID 7861, 7889-93.) The jury returned guilty verdicts

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on all counts and specifications on July 7, 2005. (Id. at PageID 11631, ¶ 61, citing
Trial Tr., ECF No. 52-3, PageID 8186-89.)
“The penalty phase began on Monday, July 11, 2005. The Court merged the
escaping detection specification with the remaining specifications but refused to
merge the kidnapping specification with the aggravated robbery specification.”
(Petition, ECF No. 133, PageID 11631, ¶ 62, citing Trial Tr., ECF No. 52-5, PageID
8210.) “The state moved to admit all evidence, testimony and exhibits from the trial
phase into evidence and then rested.” (Id., citing Trial Tr., ECF No 52-3, PageID
8239.) Petitioner presented the testimony of his aunt, Ruth Cummings, who
described the physical and emotional abuse of Petitioner’s father against his
mother. (Id. at ¶ 63, citing Trial Tr., ECF No. 52-5, PageID 8248, 8254-55.)
Cummings further testified that Petitioner was placed in an orphanage for a time
as a child. (Id. at PageID11632, ¶ 64, citing Trial Tr., ECF No. 52-5, PageID 826263.) Dana Davis, Petitioner’s younger brother, corroborated the stories of abuse
against their mother and recounted abuse against Petitioner by their father. (Id. at
PageID 11632-33, ¶ 67, citing Trial Tr., ECF No. 52-5, PageID 8296-97.)
Petitioner’s mother, Rose Weimer, testified that “after years of abuse and threats
she left for Florida. Roland helped with the younger kids and helped for a long time
to help pay bills. He would buy food and pay the rent and was always available if
she needed him.” (Id. at PageID 11635, ¶ 72.) Despite this evidence, the jury
returned a verdict of death on July 12, 2005 (id. at ¶ 74, citing Trial Tr., ECF No.
52-5, PageID 8524-25), and “[o]n July 15, 2005, the court sentenced Davis to death

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and ten years consecutive sentences on the other felonies.” (Id. at ¶ 75, citing Trial
Tr., ECF No. 52-5, PageID 8565-66.)
B.

Direct Appeal

Petitioner undertook a direct appeal to the Supreme Court of Ohio, raising
eighteen Propositions of Law. (Petition, ECF No. 133, PageID 11613-17.) The court
rejected all eighteen propositions and, after conducting an independent review of
Petitioner’s sentence, affirmed his conviction and death sentence. Davis I, 2008Ohio-2, at ¶ 405.
The court rejected subclaim one of Petitioner’s First Proposition, that he had
been denied a fair and impartial jury, concluding that the voir dire done by the trial
judge as to pretrial publicity was comprehensive. Id. at ¶¶ 42, 45. The court also
rejected Petitioner’s ineffective assistance of counsel claim contained therein. Id. at
¶ 46. The court agreed that trial counsel’s voir dire regarding pretrial publicity was
brief, but concluded that that did not constitute ineffective assistance, as counsel
was not required to repeat topics already covered by the trial judge. Id. at ¶ 47.
Due to the overall comprehensiveness of the voir dire, it was also not ineffective
assistance for counsel to fail to seek a change of venue or develop the record
regarding pretrial publicity. Id. at ¶¶ 49-50. Moreover, as Petitioner did not
identify the information that should have been obtained, it was not ineffective
assistance for failing to develop the record to support for cause and peremptory
challenges of venire members. Id. at ¶ 51. Finally, the court’s decision to continue
voir dire past regular court hours, even if improper, was not prejudicial, because
none of the venire members questioned during that time actually served on the jury.
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Id. at ¶ 54.
In subclaim two of Proposition I, Petitioner claimed that the trial court
applied the improper standard for excusing jurors who were reticent about capital
punishment; the trial court applied the standard set forth in Wainwright v. Witt,
469 U.S. 412 (1985), rather than that set forth in Ohio Rev. Code § 2945.25(C).
Davis I, 2008-Ohio-2, ¶ 55. The Supreme Court of Ohio rejected that argument,
concluding that “Witt enunciates the correct standard for determining when a
prospective juror may be excluded for cause based on his or her opposition to the
death penalty.” Id., citing State v. Rogers, 17 Ohio St.3d 174, 478 N.E.2d 984
(1985), paragraph three of the syllabus, vacated on other grounds in Rogers v. Ohio,
474 U.S. 1002 (1985). As the proper standard was applied, counsel could not have
been ineffective in failing to object. Id.
In subclaim three, Petitioner claimed that counsel was ineffective in failing to
question fully and rehabilitate five prospective jurors who expressed opposition to
capital punishment and indicated that they could not sign a death warrant. Davis
I, 2008-Ohio-2, ¶¶ 56-57. The court rejected this argument, noting that counsel had
attempted to rehabilitate each of the potential jurors and had objected to the
removal for cause of four of the five potential jurors. Id. at ¶ 58. In subclaim four,
the court rejected both of Petitioner’s arguments as to the extent of questioning
jurors as to their willingness to consider mitigation evidence, finding the voir dire
by counsel to be within the broad range of acceptable conduct. Id. at ¶¶ 59-67. In
subclaim five, the court rejected Petitioner’s claim that the prosecutor’s statements

6

during voir dire were misleading, or that counsel was ineffective in failing to object
to them. Id. at ¶¶ 68-72.
The Supreme Court of Ohio dismissed subclaim six, failure to excuse jurors
who knew too much about the case, as non-meritorious. Davis I, 2008-Ohio-2, ¶¶
73-74. The court similarly found no merit in subclaim seven, in either that the
prosecutor and trial court “improperly sought commitments from the prospective
jurors to sign a death verdict[,]” id. at ¶ 75, or that “his counsel were ineffective by
failing object to such remarks.” Id. at ¶¶ 75-77. Finally, as to subclaim eight,
Petitioner “argue[d] that he was denied a fair trial because the trial court and
counsel failed to question juror Wallace after learning that she had been fired from
her job for serving on the jury.” Id. at ¶ 78. The court disagreed, noting that the
trial court had broad discretion as to whether to remove a juror for lack of
impartiality, and concluding that the trial court was permitted to rely upon juror
Wallace’s testimony that her job situation would not impede her ability to be an
impartial juror. Id. at ¶ 81.
In Proposition of Law II, Petitioner claimed that the admission of audiotaped
interviews without being authenticated or identified violated his right to a fair trial,
and that counsel was ineffective in failing to object. Davis I, 2008-Ohio-2, ¶ 83. The
Court noted that the parties jointly agreed to admit the tape into evidence, thus
waiving all but plain error. Id. at ¶¶ 85-86. The court held that the joint
introduction of the tapes obviated the need for authentication, and that “[b]y
introducing the tapes, counsel had the benefit of presenting Davis’s proclamations

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of innocence to the jury, without the risk of having Davis take the stand.” Id. at ¶
88.
In Proposition III, Petitioner “argue[d] that the failure to play the tape
recordings in open court violated his right to be present at all stages of his criminal
trial and violated his right to a public trial.” Davis I, 2008-Ohio-2, ¶ 89. “He also
claims that the admission of the transcript of the tape recording violated the ‘best
evidence’ rule. In the alternative, Davis argues that his counsel were ineffective by
failing to object.” Id. The Supreme Court of Ohio rejected all three subclaims. The
court noted that Petitioner’s right to be present was not violated, as “[h]e was
present in court when the tape recording and transcript were offered and admitted
into evidence. He could review the verbatim transcript of the tapes when the tapes
were admitted.” Id. at ¶ 91. The court also concluded that the trial court
instruction that only the tapes, and not the transcript, were evidence, was proper.
Id. at ¶¶ 96-97. Further, the court held that the decision not to object was tactical
and within the broad range of acceptable representation. Id. at ¶ 99.
“In proposition of law IV, Davis argue[d] that the trial court erred in
admitting gruesome autopsy and crime-scene photographs during both phases of
the trial.” Davis I, 2008-Ohio-2, ¶ 100. As to subclaim one, Petitioner claimed that
the five crime scene photographs admitted were needlessly cumulative and
designed to inflame the jury. Id. at ¶ 102. The court instead concluded that the
pictures “were probative of Davis’s intent and the manner and circumstances of
Sheeler’s death.” Id. at ¶ 107. As to subclaim two, the admission of twelve autopsy

8

photographs, id. at ¶ 108, the court concluded that they “were limited in number,
noncumulative, and had substantial probative value. Each of these photographs
supported Dr. [Patrick] Fardal’s1 testimony and demonstrated Davis’s intent to
murder Sheeler.” Id. at ¶ 113. With respect to subclaim three, the re-admission of
photographs in the penalty phase, id. at ¶ 114, the court held that the trial court
did not abuse its discretion in merely re-admitting the evidence that had already
been admitted in the guilt phase. Id., citing Ohio Rev. Code § 2929.03(D)(1).
Proposition of Law V pertained to Detective Stephen Vanoy’s allegedly
improper testimony regarding his investigation and interviews of Petitioner. In
addition to the underlying claim, Petitioner also claimed that, to the extent that
there were no objections to Vanoy’s testimony, counsel was ineffective in failing to
object. Davis I, 2008-Ohio-2, ¶ 116. The Supreme Court of Ohio conceded that
Vanoy’s testimony that he thought Petitioner was “being very deceptive” in his
interviews was improper and should not have been allowed. Id. at ¶ 123. However,
the court found that there was no plain error (the only grounds for reversal, as
counsel failed to object): “There was overwhelming evidence of Davis’s guilt. His
DNA was found in bloodstains at the murder scene. This evidence was corroborated
by testimony that Davis had had frequent contact with Sheeler as a taxi driver and
that he went on a buying spree near the time of her murder.” Id. In light of that
evidence, the court also concluded that, even if counsel was ineffective in failing to

1Chief

forensic pathologist for Franklin County, Ohio. Davis I, 2008-Ohio-2,

¶ 18.
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object to Vanoy’s inappropriate testimony, Petitioner was not prejudiced. Id. at ¶
132.
In Proposition VI, Petitioner argued that Detective Elliget improperly
testified on expert matters without being qualified as an expert or having the basis
for his opinions established, and that counsel was ineffective in stipulating to
Elliget’s qualifications and failing to object. Davis I, 2008-Ohio-2, ¶ 134. The court
ruled that, in the absence of objections, it was not error for the trial court not to
conduct a hearing on fingerprints and blood splatter evidence, or on the method
used to detect unseen bloodstains. Id. at ¶¶ 140-42. The court also concluded that
counsel was not ineffective in not objecting, because the lack of inculpatory
fingerprint evidence presumably helped the defense. Id. at ¶ 145. As to expert
qualifications, the court found that: Elliget was qualified to offer the opinions he
did; counsel was not ineffective in stipulating, as contesting his qualifications could
have unintentionally bolstered his credibility; and that any failure by the
prosecution to tender Elliget as an expert was not plain error. Id. at ¶¶ 147-53.
The court also rejected Petitioner’s claims that the prosecutor improperly vouched
for Elliget and overruled the proposition. Id. at ¶¶ 154-64.
As to Proposition VII, Petitioner claimed that the court erred in refusing to
admit a report showing that Randy Davis, Petitioner’s brother, or another of Davis’s
male relatives may have been the source of the DNA in the blood found on Sheeler’s
bedsheet. Petitioner also argued that counsel was ineffective in failing to object
fully to the document’s exclusion as hearsay. Davis I, 2008-Ohio-2, ¶¶ 165-70. The

10

court rejected Petitioner’s claim that the document fell under the business records
exception, and concluded that any error of exclusion was harmless, as Clement was
authorized to testify as an expert on the report, and her testimony was compelling
evidence that it was Petitioner’s DNA found on the victim’s bedsheet. Id. at ¶¶ 17276.
In Proposition VIII, Petitioner claimed that he was deprived of a fair trial due
to erroneous jury instructions and that counsel was ineffective in failing to object.
Davis I, 2008-Ohio-2, ¶ 177. Specifically, Petitioner argued that the trial judge
erred in not giving an instruction that jurors were prohibited from stacking
inferences. Id. at ¶ 178. He also claimed that the jury’s ability to convict him of
aggravated murder based on kidnapping, aggravated robbery, or aggravated
burglary deprived him of a unanimous verdict. Id. at ¶¶ 187-88. The court
concluded that a “stacking” instruction was unnecessary and that the instruction
framing the aggravating offenses in the disjunctive was proper. Id. at ¶¶ 182, 18889. Finally, the court rejected Petitioner’s argument that the instructions misstated
reasonable doubt, as the instructions conformed to Ohio Rev. Code § 2901.05(D), the
constitutionality of which had been repeatedly upheld. Id. at ¶ 190, citing State v.
Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 76; State v. Stallings, 89 Ohio St.3d
280, 293-94 (2000). As the instructions were proper, counsel could not have been
ineffective in failing to object. Id. at ¶ 192.
Petitioner challenged the sufficiency of the evidence in the kidnapping
specification and underlying kidnapping charge in Proposition IX. Davis I, 2008-

11

Ohio-2, ¶ 194. Concluding that the State produced sufficient evidence of intent to
engage in sexual activity (kidnapping charge) and that Sheeler was moved against
her will (kidnapping specification), the court rejected Petitioner’s challenge. Id. at
¶¶ 197, 199-200. In Proposition X, Petitioner claimed that the trial court erred in
refusing to merge the kidnapping and aggravated robbery specifications at the
penalty phase. Id. at ¶ 202. The court concluded that there was separate animus
for each act, and thus, non-merger was proper. Id. at ¶ 206. In Proposition XI,
Petitioner argued that erroneous penalty-phase jury instructions deprived him of a
fair trial, and that counsel was ineffective in failing to object. Id. at ¶ 207. The
court accepted Petitioner’s contention that the trial court erred by instructing the
jury that it was to make relevancy determinations as to the State’s evidence
admitted in the penalty phase. Id. at ¶ 208. However, it concluded that the
instruction was not plain error, and that counsel was not ineffective in failing to
object to it, as so much of the evidence admitted was relevant to the aggravating
circumstances. Id. at ¶¶ 208-09. The court rejected the remainder of Petitioner’s
challenges as non-meritorious or not plain error. Id. at ¶¶ 210-21.
In Proposition XIV, Petitioner argued that victim-impact evidence and
argument were improperly admitted in both phases of the trial, and that counsel
was ineffective in failing to object. Davis I, 2008-Ohio-2, ¶ 222. The court found
that the only improper admission was the unnecessary mentioning of the victim’s
age during penalty phase closing argument, that Petitioner was not prejudiced by
its mention, and that the lack of prejudice meant that counsel was not ineffective in

12

failing to object. Id. at ¶¶ 227-28. As to Proposition XII, prosecutorial misconduct,
the court rejected Petitioner’s claims of the prosecutor improperly vouching for
witnesses, id. at ¶¶ 232-47, commenting on the lack of a defense expert, id. at ¶¶
251-52, eliciting improper testimony regarding the victim’s character, id. at ¶¶ 25455, and allegedly commenting on Petitioner’s silence. Id. at ¶¶ 256-304. The court
concluded that the prosecutor’s comment about the only two individuals potentially
liable for the crime being Petitioner or a “‘loose primate’ running around Newark”
improperly denigrated defense counsel to the jury. Id. at ¶ 307. Nonetheless, the
court concluded there was no plain error because the denigration did not pervade
closing argument, and there was no indication that the trial outcome would have
been different absent such a comment. Id. at ¶ 308. The court also rejected claims
of prosecutorial misconduct by the prosecutor calling for justice in closing argument,
id. at ¶¶ 311-12, alleged malfeasance during the penalty phase, id. at ¶¶ 313-34,
and failure to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83
(1963). Id. at ¶¶ 335-39.
Proposition XIII was Petitioner’s general ineffective assistance of counsel
claim. In addition to the instances alleged above, Petitioner alleged that counsel
was ineffective in: (1) failing to obtain adequate investigative and expert
assistance; (2) request a hearing over the propriety of Petitioner being shackled
during trial; (3) stipulating to the admissibility of DNA evidence; (4) entering into
ten stipulations with the State; and (5) failing to investigate and prepare fully for
the penalty phase. The court concluded that all claims were meritless. Davis I,

13

2008-Ohio-2, ¶¶ 341-57. In Proposition XVI, the court rejected as meritless
Petitioner’s claims that, in the sentencing opinion, the trial court: (1) failed to
explain why the aggravating circumstances outweighed the mitigating factors
beyond a reasonable doubt; (2) improperly evaluated mitigation evidence; and (3)
ignored other mitigation evidence. Id. at ¶¶ 360-63. Finally, the Supreme Court of
Ohio summarily dismissed Propositions XV (constitutionality of death penalty
proportionality review) and XVII (constitutionality of death penalty). Id. at ¶¶ 38183.2
Having rejected each proposition of law, the court turned to its statutorily
required independent sentencing evaluation. The court concluded that “[t]he
evidence at trial established beyond a reasonable doubt that Davis was properly
convicted of the aggravated murder of Elizabeth Sheeler while committing or
attempting to commit kidnapping, while committing or attempting to commit
aggravated robbery, and while committing or attempting to commit aggravated
burglary.” Davis I, 2008-Ohio-2, ¶ 384. The court weighed those aggravating
circumstances against the statutorily required mitigation factors and found “that
the aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt. Davis’s murder of Sheeler during the course of a burglary, robbery, and
kidnapping are grave circumstances. In contrast, Davis’s mitigating evidence has
little significance.” Id. at ¶ 404. “Finally, we hold that the death penalty is

2The

court also rejected Proposition XVIII, which addressed sentencing of
noncapital offenses. Davis I, 2008-Ohio-2, ¶¶ 365-80. As this proposition does not
relate to the instant Petition, the Court does not address it.
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proportionate to death sentences approved for other robbery-murder and burglarymurder cases. The death penalty is also proportionate to death sentences approved
for other cases involving a kidnapping specification.” Id. at ¶ 405 (citations
omitted). Consequently, Petitioner’s conviction and sentence were affirmed. Id.
Petitioner filed a motion for reconsideration, which the Supreme Court of
Ohio denied without opinion. State v. Davis, No. 2005-1656, 2008-Ohio-969, 882
N.E.2d 446 (TABLE) (Mar. 12, 2008). The United States Supreme Court denied
certiorari on October 6, 2008. Davis v. Ohio, 555 U.S. 861 (2008).
C.

Postconviction Petition

While his direct appeal was pending, Petitioner filed a timely postconviction
petition on June 23, 2006, as amended July 20, 2006, raising sixteen grounds for
relief (Petition, ECF No. 133, PageID 11618-21 ¶¶ 20-22.) “In Orders dated
November 14, 2007, and January 14, 2008, the Court of Common Pleas denied
Davis [sic] Petition for Post Conviction Relief and overruled all of Davis’ motions.”
(Id. at PageID 11622, ¶ 25.) Davis appealed this decision to the Fifth District Court
of Appeals. He incorporated his 16 grounds of relief into three assignments of error
on appeal:
First Assignment of Error:
Appellant’s right to due process and equal protection was violated
because the trial court dismissed his post conviction petition on
procedural grounds.
Second Assignment of Error:
Appellant’s due process and equal protection rights were violated
because the trial court denied motions that were necessary to fully and
fairly litigate his grounds for post conviction relief.
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Third Assignment of Error:
The trial court erred in dismissing Appellant’s Post Conviction Petition
when he presented sufficient operative facts to merit relief or, at
minimum, an evidentiary hearing.
(Id. at PageID 11622, ¶ 26; see also State v. Davis, 5th Dist. Licking No. 08CA 16,
2008-Ohio-6841, ¶¶ 9-11 (Dec. 23, 2008) (“Davis II”).)
The appellate court first addressed the second portion of Assignment I, “that
the trial court improperly denied his amended PCR petition based, in part, upon his
failure to comply with the provisions of R.C. 2969.25(A).” Davis II, 2008-Ohio-6841,
¶ 22. The Fifth District noted that the trial court’s findings of facts and conclusions
of law addressed the substantive merits of his petition, so that any error in referring
to Ohio Rev. Code § 2969.25(A) as grounds for denial was harmless. Id. at ¶ 25.
The appellate court also quickly dispensed with Assignment II, noting that
discovery is not authorized in postconviction in Ohio and concluding that Petitioner
had failed to demonstrate prejudice from the denial. Id. at ¶¶ 28-30.
In the first issue of his first assignment of error appellant contends that
the trial court erred in denying his amended PCR petition on the basis
of res judicata. In his third assignment of error, appellant argues that
the trial court erred in dismissing his amended PCR petition without
first conducting an evidentiary hearing. The assignments of error are
interrelated and will be addressed together.
For clarity this Court will address each ground raised in the amended
PCR petition in the order they were raised in the petition.
Davis II, 2008-Ohio-6841, ¶¶ 32-33.
In Grounds I and II of the amended postconviction petition in the trial court,
Petitioner claimed that his conviction and sentence were void or voidable because
he was forced to wear a stun belt during trial and that counsel was ineffective in
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failing to object or request a hearing on the issue, respectively. Id. at ¶¶ 34-35. The
appellate court found that there was no error in failing to conduct a hearing prior to
requiring the stun belt, as there was no evidence that Petitioner was prejudiced. Id.
at ¶ 44. The court further held that the lack of prejudice meant that Petitioner’s
ineffective assistance claim could not stand. Id. at ¶ 45, citing State v. Calhoun, 86
Ohio St. 3d 279, 289 (1999).
“In his third ground for relief, the appellant claimed that he was not provided
with impeachment evidence related to the testimony of the state’s jail house
informant witness Richard Hummel regarding a claim that he had violated the
terms of probation.” Davis II, 2008-Ohio-6841, ¶ 49. The court noted that, while
probation violations are generally permissible impeachment evidence, id. at ¶ 52,
citing State v. Greer, 39 Ohio St. 3d 236 (1988); Ohio R.Evid. 608(B), “[a] Brady
violation did not occur in the case at bar because the records concerning Hummel’s
charges and probation violation were publicly available and appellant could have
obtained access to them.” Id. at ¶ 57.
In Ground IV, Petitioner again argued that counsel was ineffective by
inadequately investigating and presenting mitigation evidence. Davis II, 2008Ohio-6841, ¶ 59. Noting that the claim had been raised previously, id. at ¶ 60,
citing Davis I, 2008-Ohio-2, ¶¶ 348-53, the court found that the new evidence
submitted by Petitioner was “merely cumulative [to] that which was presented at
trial[,]” id., and that “there is no reasonable probability that the testimony by
family members or other mitigating evidence set forth in appellant’s fourth claim

17

for relief would have swayed the jury to impose a life sentence.” Id. at ¶ 66. In
Ground VI3, Petitioner challenged the adequacy of Ohio’s postconviction statutes.
Id. at ¶ 80. The court concluded that the claim was barred by res judicata, since the
issue could have been fully and fairly litigated on direct appeal, and that Petitioner
failed to set forth sufficient facts to establish a claim for relief. Id. at ¶¶ 81, 84. The
court summarily dismissed Ground VII, cumulative error, as there were no errors to
cumulate. Id. at ¶¶ 86-88.
In Ground VIII, Petitioner “claimed that presenting the jury a tape of
appellant’s statements to police without first playing this tape in open court
violated his rights to be present at a critical stage of the proceedings.” Davis II,
2008-Ohio-6841, ¶ 89. The appellate court found this claim foreclosed by res
judicata, as the Supreme Court of Ohio had already ruled upon it, and that the
“self-serving affidavit” of Petitioner was not substantial evidence upon which relief
could be granted. Id. at ¶¶ 91-94, citing Davis I, 2008-Ohio-2, ¶¶ 89-92. The Fifth
District rejected Ground IX, absence of African Americans in the jury venire,
because it pertained to Petitioner’s specific venire, not the systematic exclusion of
African Americans. Id. at ¶ 100, citing State v. McNeill, 83 Ohio St. 3d 438, 444
(1998). Petitioner’s claim was also unfounded, the court concluded, because “[t]his
was not a case of a racially motivated crime. Race was simply never an issue in

3Ground

V, in which Petitioner argues that Ohio’s method of execution
violates the Eighth Amendment, pertains to the already dismissed Claims TwentyFour through Twenty-Seven in the instant Petition. Thus, this Court will not
review the appellate court’s discussion and rejection of that ground. See, Davis II,
2008-Ohio-6841, ¶¶ 68-79.
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appellant’s case.” Id. at ¶ 102. Ground X, failure to change venue, was denied on
res judicata grounds. Id. at ¶¶ 107-10, citing Davis I, 2008-Ohio-2, ¶¶ 42-51.
In Ground XI, Petitioner “alleged that trial counsel failed to investigate the
case and presented ‘no defense’ to the charges in this case.” Davis II, 2008-Ohio6841, ¶ 111. The court concluded that Petitioner “failed in his initial burden to
submit evidentiary material containing sufficient operative facts that demonstrate a
substantial violation of any of defense counsel’s essential duties to his client and
prejudice arising from counsel’s ineffectiveness.” Id. at ¶ 120. As to Ground XII,
failure to use a clinical or forensic psychologist as a witness, id. at ¶ 123, the Fifth
District noted that this claim had been raised and rejected by the Supreme Court of
Ohio on direct appeal, id. at ¶¶ 124-25, citing Davis I, 2008-Ohio-2, ¶¶ 348-56, and
concluded that Petitioner “failed to demonstrate a reasonable probability that, but
for his counsel’s failure to employ a different mitigation specialist, the mitigating
factors would have been assigned such weight as to compel the conclusion that the
aggravating factors did not outweigh the mitigating factors.” Id. at ¶ 134, citing
State v. Keith, 79 Ohio St. 3d 514, 530 (1997). In Ground XIII, Petitioner claimed he
was “actually innocent.” Id. at ¶ 136. The Fifth District rejected this claim as noncognizable in postconviction absent new DNA testing, id. at ¶ 138 (citations
omitted), concluded that the trial court was correct in giving the affidavits
supporting Petitioner’s innocence claim little or no weight, id. at ¶¶ 139-41, and
reiterated that the United States Supreme Court has not recognized actual
innocence as a constitutional claim. Id. at ¶ 142, quoting State v. Watson, 126 Ohio

19

App. 3d 316, 323 (12th Dist. 1998).
The Fifth District summarily rejected Ground XIV, in which Petitioner
claimed ineffective assistance of counsel as to the gravamen of Grounds VIII, IX,
and X, as the court did not find the underlying claims meritorious. Davis II, 2008Ohio-6841, ¶¶ 144-45. As to Ground XV, ineffective assistance of counsel in failing
to call Damien Turner as a defense witness, id. at ¶ 146, the court concluded that
the decision not to call Turner fell within the purview of sound trial strategy. Id. at
¶¶ 147-49, 151. Finally, as to Ground XVI, Petitioner “claimed that his convictions
and sentences are void or voidable because his trial counsel failed to adequately
address the state’s DNA evidence.” Id. at ¶ 153. The appellate court gave little or
no weight to the affidavit of attorney Gregory Meyers, as he merely set forth the
supposed prevailing norms of representation, not what a DNA expert would have
testified to. Id. at ¶¶ 156, 158. Concluding that Petitioner “did not proffer or
present anything of evidentiary quality to challenge the reliability of the FBI
database or the method of arriving at the statistical conclusion[,]” id. at ¶ 160, the
court rejected the principal claim. Id. Further, as nothing in the affidavit showed
that the DNA evidence either excluded Petitioner as a suspect or conclusively
showed that the DNA belonged to Petitioner’s brother, it was not ineffective
assistance for counsel not to challenge the DNA evidence more vigorously. Id. at ¶¶
165-66.
Petitioner appealed the judgment to the Supreme Court of Ohio, raising four
propositions of law. Without opinion, the court declined to accept jurisdiction

20

(Petition, ECF No. 133, PageID 11623, ¶¶ 28-29, citing State v. Davis, 122 Ohio St.
3d 1409, 2009-Ohio-2751.)
D.

Application to Reopen Direct Appeal

On April 2, 2008, Petitioner also filed in the Supreme Court of Ohio an
application to reopen his direct appeal under Ohio S.Ct.Prac.R. XI(6), raising three
propositions of law. (Petition, ECF No. 133, PageID 11623, ¶ 30.) Without opinion,
the Supreme Court of Ohio denied the application on September 10, 2008. State v.
Davis, 119 Ohio St. 3d 1439, 2008-Ohio-4487.
E.

Motion for New Trial

On October 31, 2008, Petitioner filed a Motion for New Trial based on trial
counsel’s failure to challenge DNA evidence, which, had a challenge been
undertaken, would have revealed that Petitioner was actually innocent of Sheeler’s
murder. The Licking County, Ohio, Court of Common Pleas denied his motion on
January 30, 2009 (Petition, ECF No. 133, PageID 11624, ¶¶ 32-33, citing State
Court Record, ECF No. 51-8, PageID 3656-60.) The Fifth District affirmed the
denial, State v. Davis, 5th Dist. Licking No. 09-CA-0019, 2009-Ohio-5175 (Sept. 24,
2009), but the Supreme Court of Ohio reversed and remanded for further
consideration (Petition, ECF No. 133, PageID 11624, ¶ 38, citing State v. Davis, 131
Ohio St. 3d 1, 2011-Ohio-5028.) On remand, and without permitting new briefing,
the Fifth District again affirmed the trial court’s denial of the motion. The Supreme
Court of Ohio declined to exercise jurisdiction. (Id. at PageID 11624-25, ¶¶ 39-40,
citing State v. Davis, 5th Dist. Licking No. 09-CA-0019, 2012-Ohio-32 (Jan. 4, 2012),
appeal not allowed at 135 Ohio St. 3d 1458, 2013-Ohio-2285, cert. denied at Davis v.
21

Ohio, 571 U.S. 1141, 134 S.Ct. 933 (Mem.) (2014).)
F.

Federal Practice

On June 15, 2010, Petitioner filed his initial Petition in this Court (ECF No.
15), on September 2, 2014, his First Amended Petition (ECF No. 61), and on May 1,
2015, his Substitute Second Amended Petition (ECF No. 85.4) On October 31, 2014,
the Respondent Warden moved to dismiss certain claims or subclaims based on
procedural default (Motion, ECF No. 65.) On September 29, 2015, this Court issued
an Opinion and Order recapitulating much of the case and dismissing the following
claims5:
o Claim Two: Change of venue components, paragraphs 89 and 90
(Opinion and Order, ECF No. 94, PageID 10674.)
o Claim Four: Subclaims (A)(1), (E), and (G), paragraphs 101-02, 13849, 155-63 (Opinion and Order, ECF No. 94, PageID 10675, 10684,
10686.)
o Claim Five: Entire claim (Opinion and Order, ECF No. 94, PageID
10693.)
o Claim Seven: Paragraphs 265 and 269 (Opinion and Order, ECF No.
94, PageID 10704.)
o Claim Nine: Subclaims (B), (C), and (D), paragraphs 341-366
(Opinion and Order, ECF No. 94, PageID 10713.)
o Claim Eleven: Entire claim (Opinion and Order, ECF No. 94, PageID
10716.)
o Claim Twelve: Entire claim (Opinion and Order, ECF No. 94, PageID
10721.)
o Claim Thirteen: Entire claim except for penalty-phase closing
argument reference to victim’s age (Opinion and Order, ECF No. 94,
PageID 10727.)
o Claim Fifteen: Entire claim (Opinion and Order, ECF No. 94,
PageID 10729.)

4The

claims have been maintained in the same order across all petitions.
so doing, the Court examined the issues of exhaustion and procedural
default (Opinion and Order, ECF No. 94, PageID 10664-67.)
5In

22

o Claim Sixteen: Entire claim except for paragraph 465 (Opinion and
Order, ECF No. 94, PageID 10736-37.)
o Claim Seventeen: Paragraphs 541 through 545 (Opinion and Order,
ECF No. 94, PageID 10739.)
o Claim Eighteen: Subclaims 18(b)(4), 18(c)(1)(C), 18(D), paragraphs
617 through 619, 624, 688-93, 732-93 (Opinion and Order, ECF No.
94, PageID 10749, 10750, 10759, 10769-70.)
o Claim Thirty-Four: Entire claim (Opinion and Order, ECF No. 94,
PageID 10775.)
On October 18, 2017, Petitioner filed the instant Petition, raising twenty-seven
claims. Claims One through Twenty-Three are identical to the claims in the
Substitute Second Amended Petition (ECF No. 133.) On October 26, 2017, the
Warden filed a Second Motion to Dismiss Claims Twenty-Four through TwentySeven—method-of-execution claims (ECF No. 134.) On September 28, 2018, the
Court granted the Warden’s Motion (Order, ECF No. 141), leaving Claims One
through Twenty-Three, subject to the previous order dismissing all or parts of those
claims and Petitioner’s withdrawal of Claim Twenty-Two (Petition, ECF No. 133,
PageID 11878, ¶ 841.)
II.

LEGAL STANDARDS
As Petitioner is imprisoned based on a state court judgment, he may petition

for a writ of habeas corpus “only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A
petition “shall not be granted with respect to any claim” that:
[W]as adjudicated on the merits in State court proceedings
unless the adjudication of the claim—(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
23

unreasonable determination of the facts in light of the
evidence presented[.]
28 U.S.C. § 2254(d). A habeas corpus petitioner must also satisfy additional
procedural requirements, including but not limited to exhaustion of State court
judicial remedies. 28 U.S.C. § 2254(b). Pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, the Court’s
review of a claim adjudicated on its merits in a State court proceeding is sharply
circumscribed; “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
A state court may be found to have acted “contrary to” federal law in two
ways: (1) if the state court’s decision is “substantially different from the relevant
precedent” of the U.S. Supreme Court; or (2) if “the state court confronts a set of
facts that are materially indistinguishable from a decision of [the U.S. Supreme]
Court and nevertheless arrives at a result different from [U.S. Supreme Court]
precedent.” Williams (Terry) v. Taylor, 529 U.S. 362, 405, 406 (2000). A state court
does not act contrary to federal law simply because its application of federal law
was incorrect. Rather, the decision must have been “mutually opposed[,]” id. at 406,
to “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C.
§ 2254(d)(1), which encompasses only the holdings of Supreme Court decisions, and
not their dicta. Williams (Terry), 529 U.S. at 412.
The “unreasonable application” standard is distinct from and more
24

deferential than that of “clear error.” “It is not enough that a federal habeas court,
in its independent review of the legal question, is left with a firm conviction that the
state court decision was erroneous. . . . Rather, that application must be objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 76 (2003) (internal quotation
marks omitted). “[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). However, this deferential
standard applies only when the state court has addressed the merits of a claim
raised on appeal; “[w]here a state court has not adjudicated a claim on the merits,
the issue is reviewed de novo by a federal court on collateral review.” Trimble v.
Bobby, 804 F.3d 767, 777 (6th Cir. 2015).
III.

ANALYSIS
A.

Pretrial Claims
1.

Claim One: Wearing Stun Belt During Trial Proceedings

Roland Davis was Deprived of His Right to a Fair Trial, to Counsel, to
Present a Defense and to Present Mitigation and Have that Mitigation
Evidence Considered and Given Effect by the Jury When the Trial Court
Ordered Him to Wear a Stun Belt Device on His Arm Without First
Holding a Hearing on the Necessity for Shackling.
(Petition, ECF No. 133, PageID 11636.)
Petitioner argues that his rights to a fair trial, to counsel, and to present a
defense and mitigation were violated by being forced to wear a “stun belt” under his
shirt during the trial without a court hearing determining that such restraint was
necessary. (Petition, ECF No. 133, PageID 11636.) As restraints interfere with a
25

defendant’s ability to communicate with counsel or participate in defense, they
should only be used as a last resort, as determined by the trial court after a hearing.
(Id. at ¶¶ 76-77, citing Deck v. Missouri, 544 U.S. 622, 631 (2005), abrogated on
other grounds by Fry v. Pliler, 551 U.S. 112 (2007)); Holbrook v. Flynn, 475 U.S.
560, 567, 569 (1986); Illinois v. Allen, 397 U.S. 337, 344 (1970); Earhart v. Konteh,
589 F. 3d 337, 349 (6th Cir. 2009); Kennedy v. Cardwell, 487 F.2d 101, 106, 111 (6th
Cir. 1973).) Petitioner was forced to wear a “Band-It” on his arm and had to wear a
sweater in the summer to cover it up, in turn supposedly drawing attention to it.
(Id. at PageID 11636-37, ¶ 78.) He claims that this violated his rights “under the
Fifth, Sixth, Eighth, and Fourteenth Amendments.” (Id. at PageID 11637-38, ¶ 81.)
The Warden notes that this issue was addressed by the Supreme Court of
Ohio on direct appeal and argues that that court “reasonably found Davis’ stun-belt
claim meritless because there was nothing in the record to indicate that ‘Davis was
tried in shackles, or that any restraint used was visible to the jury.’” (Return of
Writ, ECF No. 97, PageID 10811-12, quoting Davis I, 2008-Ohio-2, ¶ 343.) The trial
court similarly rejected this claim in postconviction, noting that Petitioner had
declined a hearing and had, in fact, suggested the stun belt as the restraint to be
used. (Id. at PageID 10812, citing State Court Record, ECF No. 51-7, PageID 3184.)
Finally, in the last reasoned state court decision, the Fifth District rejected the
claim that he was prejudiced by wearing the restraint, noting that “the only
evidence Davis presented to demonstrate jury knowledge and his alleged distraction
was his own self-serving affidavit.” (Id., citing Davis II, 2008-Ohio-6841, ¶ 40.)

26

For two reasons, the Warden argues, Petitioner’s claim fails:
First, there is no clearly established federal law, as determined by the
Supreme Court, concerning the use of non-visible restraints; therefore
there is nothing for the Ohio courts to have contravened or unreasonably
apply. Second, the state courts’ findings of fact were reasonable in light
of the evidence presented. Davis’ self-serving affidavit was insufficient
as a matter of law to establish he was prejudiced or that the result of his
trial was unreliable or fundamentally unfair. Not only that, but the type
of non-visible restraint used was that which Davis’ counsel suggested.
(Return of Writ, ECF No. 97, PageID 10812-13 (emphasis in original), citing State v.
Calhoun, 86 Ohio St. 3d 279, 281 (1999); State Court Record, ECF No. 51-1, PageID
1069.) Further, the cases cited by Petitioner are distinguishable. “Unlike the
security officers at issue in Flynn, the stun-belt worn by Davis was concealed under
his clothing, and thus, invisible to the jury. There is no evidence in the record to
indicate the jury had any knowledge Davis was wearing the stun-belt.” (Id. at
PageID 10813, citing Holbrook v. Flynn, 475 U.S. at 568-69; Allen, 397 U.S. at 344.)
Also, “[t]he Deck Court found the use of visible shackles without particularized
justification violated due process. It did not, as Davis suggests, address the type of
non-visible restraint worn by him.” (Id. at PageID 10814 (emphasis in original),
citing Deck, 544 U.S. at 629, 635.6) “Because the restraints used on Davis were not
visible to the jury, there exists no clearly established federal law which mandates
the relief Davis seeks. Thus, the decisions of the Ohio courts could not be contrary
to or an unreasonable application of any clearly established law.” (Id.)
Petitioner claims that the stun belt was visible (Traverse, ECF No. 104,

6Similarly,

the recent Supreme Court case of Brown v. Davenport concerned
the use of visible restraints. 142 S.Ct. 1510, 1518 (2022).
27

PageID 11010), and that “there is clearly a reasonable probability that Davis would
have received a more favorable result at trial if he had not been subjected to
physical restraints. Habeas corpus relief is therefore warranted.” (Id. at PageID
11013, citing Kyles v. Whitley, 514 U.S. 419, 435 (1995).)
The only evidence of visibility offered was Petitioner wearing a sweater
during summer. There is no evidence that any juror saw the stun-belt, or even its
outline; nor is there any evidence of a juror thinking it unusual or drawing a
negative inference from Petitioner wearing a sweater. Hence, contrary to the above
conclusory statement, there is no reasonable likelihood that Petitioner would have
received a more favorable outcome at trial had he not worn the stun belt. Further,
as the Warden points out, there is no clearly established law as to the use of nonvisible restraints. Thus, the failure by the trial court to hold an evidentiary
hearing, even if error under state law, may not form the basis for a federal
constitutional claim. As the state court adjudications were neither contrary to
Supreme Court precedent nor an unreasonable determination based on the facts,
Claim One is dismissed.
2.

Claim Two: Court Violated Petitioner’s Fifth, Sixth, and
Fourteenth Amendment Rights by Forcing Him to Stand
Trial in Licking County

Roland Davis was Deprived of His Rights to Due Process, a Fair Trial,
and an Impartial Jury Contrary to the Fifth, Sixth, and Fourteenth
Amendments When He Was Forced to Stand Trial in Licking County,
Ohio, Amidst Pervasive Pre-trial Publicity.
(Petition, ECF No. 133, PageID 11639.)
Petitioner argues that it is well established law that Defendants are entitled
28

to impartial jurors and a trial not overwhelmed by publicity (Petition, ECF No. 133,
PageID 11639, ¶¶ 84-85, quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961); citing
Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. State of Louisiana, 373 U.S.
723 (1963).) Yet, because of media coverage, many jurors knew about the case. (Id.
at ¶ 86, citing State Court Record, ECF No. 51-5, PageID 2646; Trial Tr., ECF No.
52-1, PageID 6394, 6406.) “[S]everal prospective jurors admitted that they had
formed opinions about Davis’ culpability from publicity they had seen or read.” (Id.
at PageID 11640, citing Trial Tr., ECF No. 52-1, PageID 6393, 6394, 6409, 6410,
6419, 6482, 6483.) “The trial court denied counsel’s motion for individual
sequestered voir dire, so voir dire on publicity was done in groups of six jurors.
Thus, other jurors were exposed to the viewpoints of jurors who had already formed
opinions based on publicity.” (Id. at ¶ 87, citing Trial Tr., ECF No. 52-2, PageID
6535-36.) Petitioner claims that the case generated so much publicity that by
denying a change of venue, he was deprived of the presumption of innocence,
because the Supreme Court of Ohio did not follow the requisite two-step process: (1)
Was there presumed prejudice, such that the trial court could not rely on venire
member assurances of impartiality?; and (2) What measures were taken to ensure
jury impartiality in the wake of pretrial publicity? (Id. at ¶¶ 88-90, PageID 1164041 citing Patton v. Yount, 467 U.S. 1025, 1031 (1984); Estes v. Texas, 381 U.S. 532,
542-44 (1965); State Court Record, ECF No. 51-5, PageID 2146.)
The Warden argues that “[t]he Ohio Supreme Court on direct appeal
reasonably found Davis’ pretrial publicity claim, raised as a part of his first

29

proposition of law, meritless.” (Return of Writ, ECF No. 97, PageID 10815, citing
Davis I, 2008-Ohio-2, ¶¶ 42-45.)
After the extensive general voir dire of the entire panel, the trial court
excused those prospective jurors who indicated they could not be fair
and impartial because of the pretrial publicity or were otherwise
unsuitable. Not only is this decision afforded deference under the
AEDPA, but the clearly established federal law of Mu’Min v. Virginia,
500 U.S. 415 (1991), establishes a deferential standard by which
appellate review of pretrial publicity voir dire must be conducted.
(Id. at PageID 10816, citing Davis I, 2008-Ohio-2, ¶ 45.) The Supreme Court of
Ohio’s deference to the trial court was proper, the Warden claims, because the trial
judge is in the best position to judge the effect of the publicity. (Id. at PageID
10816-17, quoting Skilling v. United States, 561 U.S. 358, 386 (2010); Mu’Min, 500
U.S. at 427.) “A trial court’s findings of juror impartiality ‘may be overturned only
for manifest error.’” (Id. at PageID 10817, quoting Skilling, 561 U.S. at 396 (citing
Mu’Min, 500 U.S. at 428).) While Petitioner complains of jurors knowing about the
case, the Warden claims that the constitution does not require total ignorance of the
underlying facts. “Rather, what is required is that the juror can lay aside his
opinions and render a verdict based only on the evidence presented in court.” (Id.,
citing Irvin v. Dowd, 366 U.S. 717, 722, 723 (1961).) Additionally, venire members
were not questioned on what specifically they knew about the case, and the Warden
argues that “the prospective jurors that had fixed opinions based upon the pretrial
publicity were questioned out of the hearing of the entire panel and were ultimately
excused.” (Id. at PageID 10817-18, citing Trial Tr., ECF No. 52-1, PageID 6393-94.)
Petitioner notes that this was one of only two recent capital cases to be tried
in Licking County, and that the years-long investigation generated considerable
30

interest in the community (Traverse, ECF No. 104, PageID 11020.) Indeed,
multiple venire members had already formed an opinion against Petitioner based on
the extensive media coverage. (Id. at PageID 11021, citing Trial Tr., ECF No. 52-1,
PageID 6393-95, 6397, 6409-10, 6419, 6482-83.) Had counsel been able to conduct
more extensive voir dire, Petitioner argues, he would have uncovered even more
bias among the panel members who did not volunteer their preconceptions. (Id. at
PageID 11023.) The refusal to allow this more extensive questioning deprived
Petitioner of the opportunity to develop the basis for challenges for cause and,
consequently, the opportunity to have a fair and impartial factfinder. (Id. at
PageID 11025-26, citing Morgan, 504 U.S. at 729-30, 733, 735-36.)
The Supreme Court of Ohio held as follows:
{¶ 42} Jury selection. In proposition of law I, Davis asserts that he was
denied a fair and impartial jury.
{¶ 43} 1. Denial of careful and searching voir dire. First, Davis
argues that he was denied a careful and searching voir dire about
pretrial publicity. Davis also claims that his counsel were ineffective by
failing to fully question jurors about pretrial publicity.
{¶ 44} “The manner in which voir dire is to be conducted lies within the
sound discretion of the trial judge.” State v. Lorraine (1993), 66 Ohio
St.3d 414, 418, 613 N.E.2d 212. A trial court has “ ‘great latitude in
deciding what questions should be asked on voir dire.’ ” State v. Wilson
(1996), 74 Ohio St.3d 381, 386, 659 N.E.2d 292, quoting Mu’Min v.
Virginia (1991), 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493.
Absent a clear abuse of discretion, prejudicial error cannot be assigned
to the examination of the venire. State v. Jackson, 107 Ohio St.3d 53,
2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28.
{¶ 45} The record shows that the voir dire on pretrial publicity was
comprehensive. The trial court asked the prospective jurors whether
any of them knew about the case through firsthand information or
media coverage. The trial court then asked prospective jurors who had
indicated some familiarity with the case whether they could lay aside
31

what they had heard and decide the case solely upon the evidence
presented at trial. Counsel were then given the opportunity to fully
question the prospective jurors about their exposure to pretrial
publicity. Following thorough questioning, the trial court excused
members of the venire who had formed fixed opinions due to pretrial
publicity or were otherwise unsuitable.
Davis I, 2008-Ohio-2.
The Supreme Court of Ohio accurately applied the binding United States
Supreme Court precedent, Mu’Min, in making the above specific factual findings.
Davis I, 2008-Ohio-2, ¶ 45. The cases cited by Petitioner are no longer good law—
Estes and Patton have been abrogated by Mu’Min. See Jackson v. Houk, 687 F.3d
723, 733-34 (6th Cir. 2012) (“The older standards articulated in the 1960’s and
repeated in the 1984 Patton v. Yount case no longer represent the current state of
the law, and we are constrained to apply the new standards of Mu’Min.”) Mu’Min
replaced the two-step Estes/Patton inquiry with an understanding of the wide
latitude trial courts have in conducting voir dire and preventing a biased jury from
being seated. 500 U.S. at 424. The standard for habeas relief is high: did the trial
court’s failure to inquire about pretrial publicity “render the defendant’s trial
fundamentally unfair”? Id. at 425-26.
Petitioner falls well short of that standard. This Court has reviewed the trial
transcript, and that transcript shows that Petitioner’s counsel, far from being
limited in ability to question the venire, had the opportunity to, and did, conduct
extensive voir dire. (Trial Tr., ECF No. 52-1, PageID 6475-88.) Therein, counsel
discussed at length pretrial publicity and media coverage of crimes, along with the
importance of the presumption of innocence. (Id. at PageID 6478-82.) Counsel also
32

successfully struck a venire member for cause whose sibling relationship with a law
enforcement member led counsel to conclude that the potential juror could not be
fair and impartial. (Id. at PageID 6492.) Petitioner’s argument that counsel lacked
a suitable basis to challenge for cause is specious, and the trial judge’s voir dire was
reasonable, falling well short of the “manifest error” and “fundamentally unfair
trial” required to find a constitutional violation. Based on the foregoing, the
Supreme Court of Ohio’s rejection of the claim was not an unreasonable application
of law and Claim Two is dismissed.
3.

Claim Three: Underrepresentation of African Americans
on Jury

Davis was Denied a Trial By Jury Drawn From a Fair Cross Section of
the Community and Equal Protection Under the Fifth, Sixth, Eighth,
and Fourteenth Amendments Because of the Under-Representation of
African Americans on His Jury.
(Petition, ECF No. 133, PageID 11642.)
Petitioner claims that he was deprived of equal protection and a fair crosssection of the community due to the racial composition of the jury, in violation of
Fifth, Sixth, Eighth, and Fourteenth Amendments (Petition, ECF No. 133, PageID
11642, ¶ 93, quoting Taylor v. Louisiana, 419 U.S. 522, 527 (1975).) He argues that
no African Americans served as jurors in Petitioner’s case or in the previous capital
case in Licking County, which is disproportionate to the number of African
Americans in Licking County. (Id. at PageID 11643, ¶ 95, citing State Court
Record, ECF No. 51-5, PageID 2637, 2639-40, 2643.) Petitioner brings both a jury
bias/“fair cross section” claim and an equal protection claim.
The Fifth District considered and rejected these claims in Petitioner’s
33

postconviction action:
{¶ 96} In the ninth ground for relief the petition claimed that his rights
were violated by the absence of African Americans on his jury. We
disagree.
{¶ 97} Appellant has not claimed that the state failed to follow Ohio’s
statutory procedure for selecting jurors under R.C. Chapter 2313, or that
said procedure itself intentionally or systematically excludes any
cognizable group. Instead, appellant argues only that counsel was
ineffective for not arguing that his venire did not represent a fair crosssection of the community because it did not include a sufficient number
of blacks or other minorities. State v. Elmore, supra, 2005-Ohio-5940 at
¶ 54.
{¶ 98} The Sixth Amendment guarantee to a jury trial “contemplates a
jury drawn from a fair cross section of the community.” Taylor v.
Louisiana (1975), 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690,
696. To establish a violation of this requirement, the “defendant must
prove: (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 the
representation is due to systematic exclusion of the group in the juryselection process.” State v. Fulton (1991), 57 Ohio St.3d 120, 566 N.E.2d
1195, paragraph two of the syllabus, citing Duren v. Missouri (1979), 439
U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586-587.
{¶ 99} A criminal defendant has no affirmative right to a jury of a
particular racial, gender or age composition. See United States v. Mack,
159 F.3d 208 (6th Cir.1998); see also Taylor v. Louisiana, 419 U.S. 522,
538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
{¶ 100} Moreover, appellant's systematic-exclusion claim is based solely
on alleged under representation on his venire. But under representation
on a single venire is not systematic exclusion. State v. McNeill (1998),
83 Ohio St.3d 438, 444, 700 N.E.2d 596. See, also Ford v. Seabold
(C.A.6, 1988), 841 F.2d 677, 685. Cf. Duren, 439 U.S. at 366, 99 S.Ct. at
669, 58 L.Ed.2d at 588 (discrepancy “not just occasionally, but in every
weekly venire for a period of nearly a year” showed systematic
exclusion). State v. McNeill (1998), 83 Ohio St.3d 438, 445, 1998-Ohio293, 700 N.E.2d 596, 604; State v. Elmore, supra at ¶ 57. Appellant’s
failure to point to any evidence supporting a prima facie violation of the
fair cross-section requirement defeats this claim. See, e.g., United
States v. Allen, 160 F.3d 1096, 1103-04 (6th Cir.1998) (finding no Sixth
34

Amendment fair cross-section violation where defendants failed to meet
second and third prongs of prima facie case).
{¶ 101} Appellant failed to present evidence outside of the record to make
the necessary showing under Fulton, Seabold, Duren, and the other
authorities mentioned to indicate deliberate exclusion of “distinctive
groups” of the jury venire or jury panel involved. The statistical data
does nothing to demonstrate intentional, systematic exclusion of
minorities in the jury-selection process. State v. Elmore, supra, at ¶ 61.
{¶ 102} This was not a case of a racially motivated crime. Race was
simply never an issue in appellant’s case. Moreover, each impaneled
juror confirmed that he or she had not formed an opinion about the guilt
or innocence of the accused, or could put aside any opinion, and that he
or she could render a fair and impartial verdict based on the law and
evidence. State v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749,
759.
{¶ 103} To establish an equal protection violation, the defendant must
“adduc[e] statistical evidence which shows a significant discrepancy
between the percentage of a certain class of people in the community
and the percentage of that class on the jury venires, which evidence
tends to show discriminatory purpose.” Id. This evidence is then subject
to rebuttal evidence suggesting that either no discriminatory purpose
was involved or that such purpose had no “determinative effect.” Id.;
Duren, 439 U.S. at 368, 99 S.Ct. at 670, 58 L.Ed.2d at 589, fn. 26. State
v. Jones (2001), 91 Ohio St.3d 335, 340-41, 2001-Ohio-57, 744 N.E.2d
1163, 1173.
Importantly, “[t]he challenger must show under
representation over a significant period of time [.]” State v. McNeill, 83
Ohio St.3d 438, 444, 700 N.E.2d 596.
{¶ 104} In the present matter, appellant did not attempt to demonstrate
under representation over a significant period of time; consequently,
this court concludes that the trial court did not err in determining that
appellant failed to set forth sufficient operative facts establishing
substantive grounds for relief on his equal protection claim.
{¶ 105} Appellant’s ninth ground for relief is denied.
Davis II, 2008-Ohio-6841.
The Warden argues that Petitioner failed to meet his burden because all he
showed was that two venires (his own and that of fellow capital defendant Philip
Elmore) lacked any African Americans. Petitioner did not show a systematic
35

underrepresentation, as is required for a jury bias claim. (Return of Writ, ECF No.
97, PageID 10821-22.) Nor did he show underrepresentation over a significant
amount of time, as is required for an equal protection claim. (Id. at PageID 1082223, citing Castaneda v. Partida, 430 U.S. 482, 494 (1977).) Thus, the Fifth District’s
rejection of the claim was proper. (Id. at PageID 10823.)
Petitioner counters that the complete exclusion of African Americans from
both juries is itself sufficient evidence that the exclusion was systematic. (Traverse,
ECF No. 104, PageID 11030-31, citing State Court Record, ECF No. 51-6, PageID
2886.) Further, he argues, the Fifth District’s mention that racial animus was not a
factor in the case was immaterial and improper in determining if the jury was
racially biased. (Id. at PageID 11031, citing Duren v. Missouri, 439 U.S. 357, 364
(1979); Castaneda, 430 U.S. 482; Davis II, 2008-Ohio-6841, ¶ 102.) As the state
court decision was contrary to established law, it should be accorded no deference.
(Id.)
A systematic bias/fair cross section claim has three elements: (1) the group
excluded is distinctive within community; (2) representation in venires is
disproportionate to representation in community; (3) under-representation is due to
systematic exclusion through selection process. Duren, 439 U.S. at 364. For an
equal protection claim, Petitioner concedes that he must show “a significant
discrepancy in the number of persons of a certain class in the community and the
number of those persons on the jury venires, which evidence suggests
discrimination.” (Petition, ECF No. 133, PageID 11642, ¶ 94, citing Washington v.

36

Davis, 426 U.S. 229, 239-41 (1976).)
Petitioner is correct that the issue of racial animus (or lack thereof) in the
facts of the case is immaterial as to either the systematic bias or equal protection
claim, and that he did not rely solely on his venire as the basis for his claim.
However, the balance of the appellate court’s opinion was proper application of
federal law on both the fair cross section and equal protection claims. The Supreme
Court held in Duren that an “undisputed demonstration that a large discrepancy
occurred not just occasionally but in every weekly venire for a period of nearly a year
manifestly indicates that the cause of the underrepresentation was systematic[.]”
439 U.S. 357, 366 (1979) (emphasis added). Putting forth two isolated venires falls
well short of either a systematic pattern of biased venires or a discrepancy between
the population of Licking County and the composition of venires over a significant
period of time. While it is true that these were the only two recent capital cases in
Licking County, Petitioner put forth no evidence that the venire or jury selection
process is any different for a capital versus non-capital case. Nor did he show either
that: (a) non-capital venires and juries also systemically lack African Americans; or
(b) the composition of non-capital venires and juries differed significantly from the
venires and juries for Elmore and Petitioner.
In the absence of such a showing, Petitioner cannot meet his prima facie
burden for either a systematic bias or equal protection claim. Thus, as the Fifth
District’s decision was not erroneous, much less unreasonable, Claim Three is still
unavailing and must be dismissed.

37

4.

Claim Four: Jury Selection Process Denied Petitioner a
Fair and Impartial Jury
a.

Inadequate Voir Dire to Develop Peremptory and
For-Cause Challenges Based on Pretrial Publicity or
Bias Regarding Guilt or Sentence

Davis was denied the thorough and adequate voir dire necessary to
develop the factual bases for challenges for cause and to exercise
peremptory challenges of jurors who were exposed to extensive pretrial
publicity or who were biased on questions of guilt, innocence, or
sentence.
(Petition, ECF No. 133, PageID 11644.)
Petitioner claims that, with more than forty venire members at least
somewhat aware of the facts surrounding the case, a thorough voir dire was
necessary as to the extent of their knowledge (Petition, ECF No. 133, PageID 11646,
¶ 105.) Yet, while six venire members claimed they could not be impartial, only two
were questioned about the extent of their knowledge. (Id. at PageID 11647, ¶ 106,
citing Trial Tr., ECF No. 52-1, PageID 6226-27, 6481-83.) Further, the final two
panels of venire members were not asked any questions by counsel, despite being
kept in the courtroom past 6:30 p.m. (Id. at PageID 11649, ¶ 114, citing Trial Tr.,
ECF No. 52-2, PageID 6960, 6998-7001.)
The voir dire examination here did not elicit adequate information so
that counsel could intelligently and knowingly develop challenges for
cause or exercise peremptory challenges or for the court to be able to
rule on them. The voir dire did not provide counsel or the court with
sufficient information with which to decide those challenges.
(Id. at ¶ 107.) “Because the voir dire was inadequate, Davis’ ability to exercise his
peremptory challenges in an informed manner as well as his ability to develop
challenges for cause was denied.” (Id. at PageID 11648, ¶ 110, citing J.E.B. v.

38

Alabama, 511 U.S. 127, 143-44 (1996).) Petitioner argues that there was no way to
tell via voir dire which jurors harbored prejudices against him, meaning he was
deprived of his right not to be tried by such persons. (Id. at ¶ 111, citing Morgan v,
Illinois, 504 U.S. 719, 733-35 (1992).) “Because of the trial court’s and counsel’s
own limitations on voir dire, it is impossible to determine whether the jury was free
from outside knowledge or free from bias.” (Id. at PageID 11659-60, ¶ 115.)
In the Return of Writ, the Warden concedes that the Sixth Amendment
guarantees the right to an impartial jury, and that voir dire to eliminate
unqualified jurors is part of that right. Nonetheless, the Warden argues, courts and
attorneys have wide discretion in conducting voir dire (Return of Writ, ECF No. 97,
PageID 10823-24, citing Morgan, 504 U.S.at 726-27, 729; Mu’Min, 500 U.S. at 422,
427; Wainwright v. Witt, 469 U.S. 412, 418 (1985); Jackson v. Houk, 687 F.3d 723,
733 (6th Cir. 2012); Miller v. Webb, 385 F.3d. 666, 672-73 (6th Cir. 2004); Hughes v.
United States, 258 F.3d 453, 457 (6th Cir. 2001).)
The critical question is whether the state court decision was “so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement. That federal judges might have “reached a different
conclusion had they been presiding over [the] voir dire” does not
overcome the deference owed to the state court decision.
(Id. at PageID 10824, quoting White v. Wheeler, 577 U.S. 73, 77, 80 (2015).)
Moreover, counsel’s performance in voir dire is entitled to deference under
Strickland v. Washington. (Id. at PageID 10824-25, citing 466 U.S. 668 (1984).)
The Warden argues that Petitioner omits important points that, taken
together, show a lack of prejudice from any deficiencies in voir dire. First, while
39

only two of the six venire members with fixed opinions were questioned as to the
extent of their knowledge of the case, all six of those venire members were excused
prior to the death qualification of the venire (Return of Writ, ECF No. 97, PageID
10826, citing Trial Tr., ECF No. 52-1, PageID 6491, 6493-94, 6496-99.) Second,
while Petitioner complains that voir dire went until 6:30 p.m. and the last two
panels were not even questioned specifically, none of the jurors in those two panels
was seated on the jury. (Id. at PageID 10829.) Third, the Supreme Court of Ohio
rejected the ineffective assistance claim and the underlying merits claim. (Id. at
PageID 10826-27, quoting Davis I, 2008-Ohio-2, ¶¶ 43-51.)
In rejecting the voir dire claim, the Supreme Court of Ohio held:
{¶ 43} 1. Denial of careful and searching voir dire. First, Davis
argues that he was denied a careful and searching voir dire about
pretrial publicity. Davis also claims that his counsel were ineffective by
failing to fully question jurors about pretrial publicity.
{¶ 44} “The manner in which voir dire is to be conducted lies within the
sound discretion of the trial judge.” State v. Lorraine (1993), 66 Ohio
St.3d 414, 418, 613 N.E.2d 212. A trial court has “‘great latitude in
deciding what questions should be asked on voir dire.’” State v. Wilson
(1996), 74 Ohio St.3d 381, 386, 659 N.E.2d 292, quoting Mu’Min v.
Virginia (1991), 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493.
Absent a clear abuse of discretion, prejudicial error cannot be assigned
to the examination of the venire. State v. Jackson, 107 Ohio St.3d 53,
2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28.
{¶ 45} The record shows that the voir dire on pretrial publicity was
comprehensive. The trial court asked the prospective jurors whether
any of them knew about the case through firsthand information or
media coverage. The trial court then asked prospective jurors who had
indicated some familiarity with the case whether they could lay aside
what they had heard and decide the case solely upon the evidence
presented at trial. Counsel were then given the opportunity to fully
question the prospective jurors about their exposure to pretrial
publicity. Following thorough questioning, the trial court excused
members of the venire who had formed fixed opinions due to pretrial
40

publicity or were otherwise unsuitable.
...
{¶ 50} We also reject Davis’s assertion that his counsel were ineffective
by failing to develop the record about the level of pretrial publicity in his
case. The trial court was well aware of the extent of pretrial publicity
because many prospective jurors acknowledged that they had heard
something about the case. Thus, Davis has failed to show how trial
counsel’s failure to submit newspaper clippings and other media stories
was prejudicial.
{¶ 51} Third, Davis argues that the trial court and counsel failed to
adequately question prospective jurors to develop challenges for cause
or exercise peremptory challenges. However, Davis fails to explain the
additional information that should have been obtained. Thus, this claim
lacks merit.
{¶ 52} Finally, Davis complains that the trial court required counsel to
conduct voir dire after regular court hours. Before concluding voir dire,
the trial court informed counsel, “I’m inclined to finish this group. * * *
We have two more sets of six. Generally get those done tonight and come
back in the morning and start.” The court completed voir dire and
recessed at 6:30 p.m.
{¶ 53} Davis argues that the voir dire examination conducted late in the
day became increasingly incoherent because counsel were tired. The
prosecutor remarked, “I'm getting punchy. * * * It’s 25 ‘til six.” Davis
also points out that his trial counsel's voir dire of the last group of jurors
comprised only three and one-half pages of the transcript.
{¶ 54} “The scope of voir dire is within the trial court’s discretion and
varies depending on the circumstances of each case.” State v. Bedford
(1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913. The trial court’s action
ensured the orderly flow of the case and did not constitute an abuse of
discretion. Moreover, Davis suffered no prejudice, because none of the
prospective jurors questioned after hours actually served on the jury.
Davis I, 2008-Ohio-2.
Nowhere, in the Traverse or anywhere else, does Petitioner identify how the
knowledge of venire members affected the impartiality of jurors actually seated.
Petitioner fails to state what information he needed to be obtained through voir dire
41

but did not get. He does not explain how he was prejudiced by the late and
perfunctory examining of the final two panels, as none of those panel members
actually sat on the jury. In Jackson, the United States Court of Appeals for the
Sixth Circuit upheld a voir dire in which:
Although all of the jurors knew something about the case, the trial judge
did not allow questions about the “content” of what they knew or the
source of their knowledge. All of the jurors who were accepted on the
jury by the trial court did state, however, that they could render a fair
and unbiased verdict without regard to their knowledge of the case
arising from the extensive pretrial publicity.
687 F.3d at 733. Similarly here, pretrial publicity was discussed, venire members
were expressly told not to state what they knew about the case, and the importance
of impartiality was stressed. (Trial Tr., ECF No. 52-1, PageID 6390, 6402, 6409.) In
the absence of any evidence that biased jurors were seated, the trial court’s voir dire
falls well short of the “manifest error” required for habeas relief. Mu’Min, 500 U.S.
at 428.
Moreover, it is well-established under Strickland that an ineffective
assistance claim will not lie unless a party is prejudiced. 466 U.S. at 687. For the
reasons set forth above, Petitioner’s claims of trial court error and of ineffective
assistance are speculative, a point the Supreme Court of Ohio made time and again
in its rejection of Petitioner’s claim. Davis I, 2008-Ohio-2, ¶¶ 50-51, 54. As the
state court’s decision was neither contrary to clearly established law nor an
unreasonable determination of the facts, the decision may not be disturbed, and this
subclaim is dismissed.

42

b.

Trial Court Improperly Excused Jurors who merely
had Reservations about Capital Punishment, but
never said they could not Impose a Sentence

The trial court applied an improper standard in excusing prospective
jurors who expressed objections to capital punishment but who were not
unequivocally opposed to capital punishment under all circumstances
and could fairly consider death as a sentence.
(Petition, ECF No. 133, PageID 11650.)
Petitioner argues that, under Ohio law, jurors with reservations about
imposing the death penalty may only be excused for cause if they say unequivocally
that they could not impose the death penalty (Petition, ECF No. 133, PageID 11650,
¶ 118, citing Ohio Rev. Code § 2945.25(C).) Ohio Rev. Code § 2945.25(C) was
adopted in light of the Supreme Court decision in Witherspoon v. Illinois, 391 U.S.
510, 521-22 (1968), which set forth the standard for removal of a juror—the panel
member must be unequivocally opposed to the imposition of the death penalty.
(Petition, ECF No. 133, PageID 11650, ¶ 118.) However, the standard was relaxed
in Wainwright v. Witt, which held that a general unwillingness to impose the death
penalty could constitute an impairment sufficient for removal for cause. (Id. at
PageID 11651, ¶ 119, citing Witt, 469 U.S. 412, 423-24 (1985).) Petitioner claims
that he “has a due process right in having the state of Ohio apply its own legislative
enactments even if those standards are more strict than those dictated by the
federal constitution.” (Id. at ¶ 120, citing Evitts v. Lucey, 469 U.S. 387, 401 (1985).)
Yet, “[t]he trial court consistently applied the less stringent Witt standard rather
than the more stringent Ohio Rev. Code § 2945.25(C) standard in excusing jurors
for cause based on their views on the death penalty.” (Id. at PageID 11651-52, ¶
43

120, citing Trial Tr., ECF No. 52-2, PageID 6767, 6830-31, 6928-30.) Petitioner
argues that this deprived him of a fair cross section of the community, in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments and Ohio Rev. Code §
2945.25(C). (Id. at PageID 11652, ¶¶ 121-22.)
The Warden counters that the Petition, as pleaded, is challenging the
decision of an Ohio court applying Ohio law, which is not cognizable in habeas.
(Return of Writ, ECF No. 97, PageID 10830.) Further, the Warden continues, the
claim is meritless, because, while a jury cannot be “uncommonly willing” to
condemn a man to death, the state must be able to obtain a verdict of death.
(Return of Writ, ECF No. 97, PageID 10831, quoting White v. Wheeler, 577 U.S. 73,
77 (2015) (per curiam).) To the extent Petitioner actually raised a federal
constitutional claim, the Warden reasons, Witt removed the requirement that bias
be proved with “unmistakable clarity.” Rather, the Warden claims, it is now enough
to remove a juror for cause if “the trial judge is left with the definite impression that
a prospective juror would be unable to faithfully and impartially apply the law.”
Witt, 469 U.S. at 425-26. The Supreme Court of Ohio properly applied the law, the
Warden argues, by applying Witt. (Return of Writ, ECF No. 97, PageID 10832,
quoting Davis I, 2008-Ohio-2, ¶ 55.) As the state court decision was not contrary to
clearly established federal law, the Warden argues that it must be affirmed.
In the Traverse, Petitioner reiterates his argument that he “has a due
process right in having the state of Ohio apply its own legislative enactments even
if those standards are more strict than those dictated by the federal constitution.”

44

(Traverse, ECF No. 104, PageID 11038, citing Lucey, 469 U.S. at 401.)
Petitioner misinterprets Lucey, which holds that, when a state implements a
discretionary process, “it must nonetheless act in accord with the dictates of the
Constitution-and, in particular, in accord with the Due Process Clause.” 469 U.S. at
401. Here, the dictates of the Constitution and the Due Process Clause are set out
not in Ohio Rev. Code § 2945.25, but in Witt, which the Supreme Court of Ohio
accurately applied:
{¶ 55} 2. Standard for excusing jurors. Davis argues that the trial
court erred in applying the standard set forth in Wainwright v. Witt
(1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, instead of the
standard in R.C. 2945.25(C), in excusing prospective jurors who
expressed reservations about capital punishment. However, Witt
enunciates the correct standard for determining when a prospective
juror may be excluded for cause based on his or her opposition to the
death penalty. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR
414, 478 N.E.2d 984, paragraph three of the syllabus. Moreover, Davis’s
claim that his counsel were ineffective by failing to object lacks merit,
because the Witt standard was properly applied.
Davis I, 2008-Ohio-2, ¶ 55. Petitioner does not argue, much less offer evidence, that
the trial court misapplied Witt in its removal of jurors for cause. To the extent that
Petitioner is claiming that the trial court satisfied Witt but ran afoul of Ohio Rev.
Code § 2945.25, that is a matter of state law that is not cognizable in federal
habeas. Lacking any basis for habeas relief, this subclaim must be dismissed.
c.

Counsel Failed to Examine Jurors Fully About
Whether They Could Impose the Death Penalty

Trial counsel failed to fully examine jurors about whether their opinions
on the death penalty would prevent them from following the court’s
instructions and fairly considering the imposition of the death penalty.
(Petition, ECF No. 133, PageID 11653.)
45

Petitioner argues that “[w]henever a juror indicated any hesitancy about
imposing the death penalty, counsel failed to make sufficient inquiry into the juror’s
feeling before the court granted the state’s challenge for cause. Counsel likewise
failed to object or fully object to these cause challenges.” (Petition, ECF No. 133,
PageID 11653, ¶ 125, citing Trial Tr., ECF No. 52-2, PageID 6766, 6767, 6812-29,
6830, 6922-26, 6927.)
The Warden rejoins that “Davis has not even attempted to meet his burden to
show the merits decision of the Ohio Supreme Court was contrary to or an
unreasonable application of clearly established federal law.” (Return of Writ, ECF
No. 97, PageID 10833.) The Warden notes that the Supreme Court of Ohio rejected
the claim, finding that counsel had done their best to rehabilitate the venire
members who stated that they could not sign a death verdict, and that Petitioner
had not stated what more his counsel should have done. (Id. at PageID 10833-34,
quoting Davis I, 2008-Ohio-2, ¶¶ 56-58.) The Warden also argues that the dismissal
of those jurors was proper under Witt, and thus, the Supreme Court of Ohio’s
decision was correct. (Id. at PageID 10834.)
The Supreme Court of Ohio considered and rejected this claim as follows:
{¶ 56} 3. Examination of death-penalty-opposed jurors. Davis
contends that trial counsel failed to fully question and rehabilitate
prospective jurors who said they opposed the death penalty and that
counsel failed to object to the state's challenge of these jurors.
{¶ 57} Davis cites five veniremen whom counsel should have
rehabilitated: Spearman, Smith, Barsky, Hanson, and Harden. During
voir dire, all of these jurors stated they were opposed to the death
penalty and could not sign a death verdict. Trial counsel did not object
to the challenge of Spearman but did object to the challenge of the other
four jurors. The trial court excused all five jurors.
46

{¶ 58} Trial counsel attempted to rehabilitate each of the jurors before
they were excused. We reject Davis’s claim that counsel should have
asked these jurors more questions, because counsel were in the best
position to determine whether the jurors could be rehabilitated. See
State v. Jones (2000), 90 Ohio St.3d 403, 410-411, 739 N.E.2d 300.
Moreover, trial counsel were not ineffective by failing to object to the
exclusion of Spearman, because she clearly stated her unwillingness to
sign a death verdict.
Davis I, 2008-Ohio-2.
This Court’s review of the transcript corroborates the analysis by the
Supreme Court of Ohio. Spearman unequivocally answered that she could not
impose the death penalty. (Trial Tr., ECF No. 52-2, PageID 6766.) In light of that
answer, it would not have been improper to strike her for cause under Ohio Rev.
Code § 2945.25(C), much less under Witt. Thus, any failure by Petitioner’s counsel
to rehabilitate Spearman or to object to the prosecution’s challenge for cause was
not prejudicial. The transcript shows Petitioner’s counsel repeatedly attempting to
qualify Barsky, Hanson, and Smith’s opposition to the death penalty, and
subsequently objected to their being struck for cause. (Id. at PageID 6826-29, 6830,
6920-22, 6928-30.) Moreover, counsel did successfully object to a juror Way being
struck for cause despite Way’s reservations about imposing the death penalty. (Id.
at PageID 6927-29.)
While Petitioner argues that there were “[i]mproper limitations on voir dire,”
(Traverse, ECF No. 104, PageID 11039), he fails to state what those limitations
actually were, and as discussed above, the voir dire by the trial court and counsel
was extensive. Moreover, while Petitioner makes conclusory statements about
counsel “[f]ailing to fully question and rehabilitate [death penalty-hesitant] jurors”
47

and “fail[ing] to object or fully object to . . . cause challenges” of those jurors (id.), he
fails to articulate what fully questioning or fully objecting would have looked like.
Given that counsel did object to the removal of death penalty-hesitant jurors, it is
speculative what else counsel could have reasonably done. Accordingly, the
Supreme Court of Ohio’s rejection of this subclaim was proper, and the subclaim is
dismissed.
d.

Counsel was not Allowed to and/or did not Examine
Jurors About Openness to Mitigating Evidence

The trial court refused to permit counsel to fully examine prospective
jurors about potential mitigating evidence, about whether they could
consider a life sentence for someone who had killed an elderly woman in
her home or whether they would automatically vote for death upon a
showing of guilt. The failure to fully examine on these subjects resulted
in jurors who would automatically vote for the death penalty and who
would not consider mitigating evidence.
(Petition, ECF No. 133, PageID 11654.)
Petitioner argues that the court and counsel failed to ask pro-death penalty
venire members if there were circumstances under which they would consider
imposing a life sentence (i.e., “life-qualifying” the jury). (Petition, ECF No. 133,
PageID 11654-55, ¶ 131, citing Trial Tr., ECF No. 52-2, PageID 6804, 6831-32.)
“This failure to uncover these biases was particularly critical here where the
prosecutor consistently and improperly attempted to exploit these facts in seeking a
conviction and a sentence of death.” (Petition, ECF No. 133, PageID 11655, ¶ 132).
Further, he claims that the court improperly denied challenges for cause of jurors
who indicated that they automatically favored the death penalty. (Id. at PageID
11655-56, ¶ 134.)
48

The Warden argues that the claim was reviewed and rejected by the Supreme
Court of Ohio in the First Proposition of Law on direct appeal, concluding that the
trial court gave counsel significant leeway in voir dire. The Warden claims that
“Davis points to nothing in the record to indicate the trial court posed any
restrictions on counsel’s voir dire. As such, Davis has failed to meet his burden[.]”
(Return of Writ, ECF No. 97, PageID 10835, quoting Davis I, 2008-Ohio-2, ¶ 59.) As
to counsel’s allegedly ineffective performance, “[a] review of the transcripts shows
that counsel did question the two prospective jurors who expressed an initial
willingness to favor a death sentence. As the Ohio Supreme Court reasonably
found, and the record supports, both ultimately agreed they could consider
mitigation evidence before making a decision.” (Return of Writ, ECF No. 97,
PageID 10836, quoting Davis I, 2008-Ohio-2, ¶¶ 60-64.)
Moreover, the record indicates that counsel did challenge for cause juror
Marston, but lost the challenge. Davis does not indicate any clearly
established federal law which states that counsel must win an objection
in order to provide constitutionally effective counsel. Davis does not
indicate what more he expected his trial counsel to do to “successfully
challenge” these two jurors. Furthermore, neither of these prospective
jurors served on Davis’ jury, so Davis was not prejudiced by the trial
court not excusing them.
(Id. at PageID 10837 (emphasis in original, citing Trial Tr., ECF No. 52-2, PageID
6831-32).) Finally, the Warden argues, there was no violation by the trial court
failing to life-qualify the jury, because no such duty exists, and counsel not lifequalifying a jury is not so deficient as to render the entire trial unfair, and thus
does not constitute ineffective assistance. (Id. at PageID 10837-38.)
In his Traverse and elsewhere, Petitioner again makes conclusory allegations
49

that the trial court and counsel did not “fully question jurors who expressed a
willingness to impose the death penalty for any murder.” (Traverse, ECF No. 104,
PageID 11040.) He also claims, without citation to record or other evidence, that
“[c]ounsel . . . failed to develop and exercise challenges for cause, and to exercise
peremptory challenges against these jurors who could not fairly consider mitigation
or a life sentence under the factors of this case.” (Id.)
As discussed above, the Supreme Court of Ohio rejected Petitioner’s
subclaim:
{¶ 59} 4. Failure to voir dire regarding mitigating evidence. First,
Davis argues that the trial court refused to permit counsel to fully
examine prospective jurors about mitigating evidence. Consequently,
the selected jurors would be likely to “automatically vote for the death
penalty and * * * would not consider mitigating evidence.” This claim
lacks merit because trial counsel were given extensive leeway to
examine prospective jurors regarding their willingness to consider
mitigating evidence.
{¶ 60} Second, Davis argues that jurors Marston and Cronin were not
fully questioned about whether they could fairly consider mitigating
evidence and impose a life sentence. Davis also claims that counsel’s
inadequate voir dire resulted in the failure to develop a successful
challenge for cause against them.
{¶ 61} “The conduct of voir dire by defense counsel does not have to take
a particular form, nor do specific questions have to be asked.” State v.
Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042. “[C]ounsel is in
the best position to determine whether any potential juror should be
questioned and to what extent.” State v. Murphy (2001), 91 Ohio St.3d
516, 539, 747 N.E.2d 765.
{¶ 62} During voir dire, juror Marston stated his belief that all people
convicted of intentionally killing another person should face the death
penalty. Trial counsel tested juror Marston’s willingness to consider
mitigating evidence by asking him whether the same crime committed
by two separate people with different backgrounds had mitigating
features. Juror Marston replied, “[S]ame crime, same penalty.” During
further questioning, juror Marston expressed his willingness to follow
50

the law, evaluate mitigating factors, and consider all four sentencing
options. Trial counsel challenged juror Marston for cause, but the trial
court denied the challenge.
{¶ 63} Trial counsel were not deficient in questioning juror Marston.
Counsel asked probing questions about fairly considering mitigating
evidence and all lesser sentencing options. Moreover, counsel had no
basis to challenge juror Marston for cause, because Marston expressed
his willingness to consider the mitigating evidence and all four
sentencing options. See Morgan v. Illinois (1992), 504 U.S. 719, 729,
112 S.Ct. 2222, 119 L.Ed.2d 492; State v. Braden, 98 Ohio St.3d 354,
2003-Ohio-1325, 785 N.E.2d 439, ¶ 37.
{¶ 64} We also reject Davis’s claim that counsel failed to fully question
juror Cronin and challenge her for cause. During voir dire, juror Cronin
expressed the view that identical crimes deserve identical punishment,
regardless of the social backgrounds of the perpetrators. However, trial
counsel questioned juror Cronin about her willingness to consider
various mitigating evidence. Juror Cronin stated that she would
consider the mitigating evidence and all potential sentencing options.
Thus, counsel had no basis to challenge juror Cronin for cause.
{¶ 65} Finally, Davis claims that the court and trial counsel failed to
question the jurors about whether they could consider mitigating
evidence and impose a life sentence even though the victim was an
elderly woman murdered in her own home.
{¶ 66} Davis invokes State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio5981, 836 N.E.2d 1173, ¶ 60–62, in making this argument. Jackson held
that a “trial court abused its discretion by refusing defense counsel’s
requests to advise prospective jurors that one of the murdered victims
was a three-year-old child and by refusing to allow voir dire on that fact.”
(Emphasis added.) Id. at ¶ 62. However, Jackson does not apply to this
case, because trial counsel never sought to question the jurors about
their views on imposing the death penalty when the victim was an
elderly woman. Counsel’s decision to forgo this line of questioning
constituted a legitimate tactical decision. See State v. Keith (1997), 79
Ohio St.3d 514, 521, 684 N.E.2d 47. Indeed, counsel could have decided
not to question the jurors about the victim’s elderly status to avoid
focusing the jury’s attention on this issue at the very beginning of its
case.
{¶ 67} We also hold that the trial court was not required to sua sponte
question the jurors about the victim’s elderly status because counsel
failed to do so. See Turner v. Murray (1986), 476 U.S. 28, 37, 106 S.Ct.
51

1683, 90 L.Ed.2d 27, fn. 10.
Davis, 2008-Ohio-2 (emphasis and alteration in original).
This Court’s review of the transcript reveals that the state court decision was
sound, and that Petitioner’s argument is dubious. Cronin was questioned
extensively by the prosecution regarding whether she would be able to consider
mitigating evidence and, under some circumstance, impose a sentence less than
death (Trial Tr., ECF No. 52-2, PageID 6804-07, 6819-20.) Similarly, Marston was
questioned by Petitioner’s counsel and, while he did say, “[s]ame crime, same
[death] penalty” as to all aggravated murders (id. at PageID 6822), he later
indicated that he would need to hear mitigating evidence before deciding on a
punishment. (Id. at PageID 6825.) In light of this extensive questioning, and the
wide latitude trial courts have in conducting voir dire, the trial court was under no
obligation to question those venire members further before deciding as to whether
they were to be seated. Moreover, counsel made a vociferous challenge for cause as
to Marston (id. at PageID 6831-32), and Petitioner does not indicate what more
counsel should have done.
Finally, the issue of life-qualification of a jury appears to be a matter of Ohio
state law, Davis I, 2008-Ohio-2, ¶¶ 65-66, and Petitioner cites no caselaw
suggesting that failing to life-qualify a jury would violate a federal constitutional
right. In light of the above, the Supreme Court of Ohio’s rejection of the claim,
Davis I, 2008-Ohio-2, ¶¶ 59-67, was proper, and this subclaim is dismissed.

52

e.

Failure to Excuse Jurors who Knew too Much About
the Crime, Victim, or Petitioner

The trial court failed to excuse jurors who knew too much about the
crime, the victim or Roland Davis.
(Petition, ECF No. 133, PageID 11662.)
Petitioner notes that several jurors expressed in voir dire that they knew a
lot about the case, but the trial court failed to examine these jurors further and
allowed them to be seated (Petition, ECF No. 133, PageID 11662-63, ¶¶ 150, 152.)
Consequently, Petitioner claims:
The jury was comprised of persons acquainted with the victim or her
family, persons who were intimately familiar with the facts of the case,
and persons who were familiar with the history of Roland Davis.
Because of this familiarity, the jury that tried Davis could not have been
fair and impartial.
(Id. at PageID 11663, ¶ 152.) The Warden argues that the claim is vague,
speculative, and meritless, as “Davis fails to indicate who seated on the jury should
have been removed for ‘knowing too much’ or being related to the victim or her
family.” (Return of Writ, ECF No. 97, PageID 10839.)
The Supreme Court of Ohio rejected the claim:
{¶ 73} 6. Failure to excuse jurors. Davis also complains that he was
denied a fair and impartial jury because many of the jurors knew too
much about the crime, the victim, or Davis and his family.
{¶ 74} Davis fails to mention any specific juror who should have been
excused. However, prospective jurors who indicated some familiarity
with the crime, the victim, or the witnesses were identified. Following
thorough questioning, the trial court excused members of the venire who
had formed a fixed opinion about the case or indicated an association
with the victim or the witnesses that made them unsuitable to serve on
the jury. This claim lacks merit.
Davis I, 2008-Ohio-2.
53

Indeed, Petitioner does not specify any juror who had specific knowledge of
the crime, the victim, or Petitioner and his family. The only reference Petitioner
makes to any jurors having knowledge is a statement that “[t]hroughout voir dire,
many potential jurors explained they had some knowledge that might render them
unfit to sit as jurors.” (Petition, ECF No. 133, PageID 11662, ¶ 150, citing Trial Tr.,
ECF No. 52-1, PageID 6061-62.) Yet, the pages cited by Petitioner detail jurors
seeking hardship exemptions; there is no mention of jurors having knowledge of the
case, and this Court is not required to scour the record to find what Petitioner is
referring to.
Thus, Petitioner is left with only a general argument that because “a majority
of the jurors are acquainted with or related to the family of the victim, there is not
even an appearance of impartiality[,]” and that “[g]eneral inquiries about whether
the juror ‘could be fair’ or ‘could they follow the law’ were not enough to uncover
bias.” (Traverse, ECF No. 104, PageID 11041-42.) As discussed above, the trial
court’s voir dire on publicity was sufficient under Mu’Min, and Petitioner offers no
support for his assertion that a majority of the venire was related to or familiar
with the victim. In sum, the claim is speculation. Accordingly, the Supreme Court
of Ohio’s well-reasoned decision may not be disturbed, and this subclaim is
dismissed.
f.

Court and Counsel Failed to Question Juror
Regarding Personal issues that might Distract, but
did not Disqualify Juror

The court and counsel failed to question a juror about personal problems
that would distract from performing duties as a juror and failed to
remove that juror.
54

(Petition, ECF No. 133, PageID 11666.)
During voir dire, Juror Wallace revealed that she had been harassed at and
temporarily fired from her job as a result of her being in the venire. Despite the
opportunity to voir dire, Petitioner’s counsel never asked her whether this would
have any effect on her ability to sit and judge impartially. Wallace stayed on and
acted as the foreperson. (Petition, ECF No. 133, PageID 11666-67, ¶¶ 164-66, citing
Trial Tr., ECF No. 52-3, PageID 7028, 7281-82, ECF No. 52-5, PageID 8524.)
Petitioner argues that:
[C]ounsel have an obligation in voir dire to determine if there are any
personal matters concerning the juror that would make it difficult or
impossible for the juror to fully concentrate on the job of the jury—to
give full attention to the matters being presented in the courtroom and
to be able to dispassionately decide the case based solely on the evidence
presented in the courtroom
(Id. at PageID 11667, ¶ 168.) He further claims that counsel were ineffective in
failing to voir dire Juror Wallace and that a “prospective juror who is being
harassed (and fired) from her job for serving on this jury will have some distractions
that could interfere with her ability to perform adequately as a juror.” (Traverse,
ECF No. 104, PageID 11043.)
The Warden counters that this subclaim is speculative:
Davis makes bald assertions that his rights were violated by the lack of
questioning of the affected juror. He cites to no clearly established
federal law to suggest that the decision of the Ohio Supreme Court was
unreasonable. Without citing any case law, Davis appears to claim his
attorneys were ineffective for not questioning the juror in light of the
representations that she gave to the trial court, through the court’s
bailiff, that her work situation only strengthened her desire to do her
civic duty of jury service. Nothing in the record even begins to suggest
that the juror was compromised. Moreover, nothing in the record
supports an assertion that Davis was prejudiced by having the juror
55

serve[.]
(Return of Writ, ECF No. 97, PageID 10841.)
The Supreme Court of Ohio held as follows:
{¶ 78} 8. Failure to question juror about an outside influence.
Davis argues that he was denied a fair trial because the trial court and
counsel failed to question juror Wallace after learning that she had been
fired from her job for serving on the jury.
{¶ 79} Following voir dire, juror Wallace told the bailiff that she had
received some pressure from her employer to get off the jury. The trial
court informed counsel that Wallace, a cook at Applebee’s, was told to
wear white-supremacist clothing or lie about certain answers to avoid
jury duty. Wallace told her employer that she was not going to lie or do
anything wrong. She also called the corporate office to report her boss.
The prosecutor asked whether the pressure would affect Wallace’s
behavior on the jury. The trial court said, “No. In fact, she indicated just
the opposite. She felt that she couldn’t do those things. She told us she’s
not a liar, she’s not going to take any steps like that. * * * [Y]ou saw her
yesterday, all the jurors * * * [take] their obligation seriously and I felt
were honest * * *.” Both counsel stated that further voir dire of Wallace
was unnecessary.
{¶ 80} On the next day, the trial court informed counsel that juror
Wallace reported that she had been fired after telling her boss that she
had been selected as a juror. Juror Wallace said she had “talked to the
boss’ boss who told her all the right things; you’re on the payroll; * * *
you’re going to get paid; do your duty, and after you’re done, come talk
to me and we’ll take care of it then.” Trial counsel said, “I was kind of
led to believe that she's okay with all of this.” The trial court said,
“That’s the impression I certainly received, too. In fact, I think the
owner’s position has been just what you would hope it would be, and he
seems to be supportive of her * * *. [T]hey seem to have that under
control and she seems to be in a fine state of mind, too.” Both counsel
declined to conduct any further voir dire of juror Wallace.
{¶ 81} In cases involving outside influences on jurors, trial courts are
granted broad discretion in dealing with the contact and determining
whether to declare a mistrial or to replace an affected juror. State v.
McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 191.
A trial court is permitted to rely on a juror’s testimony in determining
that juror’s impartiality. State v. Herring (2002), 94 Ohio St.3d 246, 259,
762 N.E.2d 940. Juror Wallace assured the court that her job situation
56

would not affect her ability to serve as a juror. Counsel were obviously
convinced that juror Wallace could remain a fair and impartial juror.
Thus, the trial court and counsel could allow juror Wallace to remain on
the jury without conducting further inquiry.
Davis I, 2008-Ohio-2 (alteration in original).
Petitioner raises this only as an ineffective assistance of counsel claim. Yet,
Petitioner does not explain how Juror Wallace was compromised or allowed the
admittedly bizarre surrounding circumstances to affect her performance. Thus,
even if counsel’s failure to voir dire Wallace fell below the norms of professional and
competent representation, he has failed to show the requisite prejudice under
Strickland. Accordingly, the subclaim is dismissed.
B.

Trial Phase Claims for Relief
1.

Claim Six: Refusal to Admit Reports Relied upon by
State’s DNA Expert Violated His Rights to Confrontation
and Due Process

The Trial Court’s Refusal to Grant Davis’ Request to Admit Reports
Prepared and Relied Upon by the Witness of a Party Opponent—The
State’s DNA Expert Witness—Denied Davis His Right to Confront
Witnesses Against Him, a Fair Trial, Due Process and a Reliable
Sentencing Determination In Violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments.
(Petition, ECF No. 133, PageID 11679.)
According to Petitioner, one of the State’s most important witnesses was
“Meghan Clement, the technical director of the forensic identity testing department
at Laboratory Corporation of America Holdings, Incorporated.” (Petition, ECF No.
133, PageID 11679, ¶ 196, citing Trial Tr., ECF No. 52-4, PageID 7861.) Clement
supervised the technologists and ensured quality control in the lab. She also
prepared a certificate of analysis for the testing she had performed. (Id. at ¶¶ 19757

98.) “Clement testified that there were three areas on the fitted sheet taken from
the victim’s bedroom that contained male DNA, based on Y-STR testing.” (Id. at ¶
199.) In her report, Clement stated that Petitioner and his male paternal relatives
could not be excluded as suspects. (Id. at PageID 11681, ¶ 205, quoting State Court
Record, ECF No. 58, PageID 8867.) At times, she testified that the testing could not
rule out Petitioner as a match, which Petitioner concedes is an accurate summation
of the results. (Id. at PageID 11680, ¶ 200.) “At other times, however, Clement
misleadingly individualized the test results by testifying that the tests ‘matched’
Roland Davis, using this improper individualizing language repeatedly throughout
her testimony.” (Id. at ¶ 201, citing Trial Tr., ECF No. 52-4, PageID 7892, 7894-96,
7898-99, 7901-02, 7971.) This distinction was vital to Petitioner’s defense that it
was Randy Davis, Petitioner’s brother, who killed Sheeler. (Id. at PageID 11685, ¶
223.) Petitioner’s counsel used the report on cross-examination without objection
from the State. (Id. at PageID 11683, ¶ 215.) However, when Petitioner’s counsel
attempted to admit the report into evidence, the State objected to it as hearsay, and
the trial court sustained the objection. (Id. at PageID 11683-84, ¶¶ 216-17, citing
Trial Tr., ECF No. 52-4, PageID 8001-04.) During deliberations, the jury requested
the document, but the trial judge refused, as the report was not in evidence. (Id. at
PageID 11684, ¶ 219, citing Trial Tr., ECF No. 52-4, PageID 8180-81.)
Petitioner argues that “[t]he trial court’s exclusion of this report was
prejudicial constitutional error and a denial of due process and a fair trial. It is not
entirely clear on what basis the court actually excluded the exhibit.” (Petition, ECF

58

No. 133, PageID 11684, ¶ 221, citing Trial Tr., ECF No. 52-4, PageID 8004.) He
claims that the transcript suggests two possibilities for the trial court’s decision to
exclude: (1) the information had already been testified to; or (2) the record was not
a business record and thus was hearsay. (Id. at PageID 11684-85.) Neither is
persuasive, Petitioner argues:
The fact that Clement testified regarding those facts—and was cross
examined on this document—does not substitute for the probative value
of the actual exhibit which contained the table demonstrating each of
those alleles in each of the persons and samples tested, and other
information critical to properly understanding and weighing Clement’s
testimony. The actual exhibit demonstrated the differences and
discrepancies raised on cross examination.
(Id. at PageID 11685, ¶ 224.) Also, “[b]ecause the report and its preparer were
subject to cross examination, the report was not hearsay.” (Id. at PageID 11686, ¶
228.)
The exclusion of the report was prejudicial, Petitioner argues, because “[t]he
fact that Clement testified to the information, or that the jury saw from a distance
the charts in the report during counsel’s closing argument does not mean that the
detailed and complex information contained in the report could be easily recalled by
the jury during deliberations.” (Petition, ECF No. 133, PageID 11687, ¶ 230.) He
claims that the report would have buttressed Petitioner’s third-party culpability
defense, the linchpin of his defense strategy. (Id. at PageID 11688, ¶ 232.) “The
actual data contained in the report raised significant and legitimate questions about
Clement’s conclusions which were the subject of cross examination by defense
counsel.” (Id. at ¶ 234.) Compounding the prejudice was that all of the State’s
evidence was re-introduced in the penalty phase, but the report could not be. (Id. at
59

¶ 233.) Taken together, Petitioner claims, “[t]he court’s exclusion of Defense
Exhibit L denied Davis his right to confront witnesses, to due process, to a fair trial,
and to a fair and reliable sentencing determination as well as the effective
assistance of counsel in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.” (Id. at PageID 11689, ¶ 237.)
The Warden rejoins that “[w]hile Davis attempts to cast this issue as a
constitutional violation, it is not. Davis cannot escape the fact that he is asking this
Court to correct what he alleges is a violation of state evidence rules; this is not the
purpose of federal habeas review.” (Return of Writ, ECF No. 97, PageID 10843.)
“Because Davis’ claim is based on an allegation of state evidentiary error, he may
only be granted relief if the state ruling was so egregious that it ‘so infected the
entire trial that the resulting conviction violates due process.’” (Id., quoting Estelle
v. McGuire, 502 U.S. 62, 72 (1991).) Further, according to the Warden, the Supreme
Court of Ohio concluded that the report was cumulative of Clement’s testimony.
(Id. at PageID 10844, quoting Davis I, 2008-Ohio-2, ¶ 174.) “As Davis cannot show
that the exclusion of Defense Exhibit L was such an egregious error that it so
infected his entire trial, he cannot show that his trial was fundamentally unfair,
and thus cannot show a violation of due process.” (Id. at PageID 10845.)
Petitioner argues in his Traverse that the state court misinterpreted his
claim, and thus, no deference should be accorded that decision: “Despite the fact
that Davis raised this claim as a Federal Constitutional issue on direct appeal to
the Supreme Court of Ohio, the Court addressed it only as a state evidentiary ruling

60

and did not address any of the federal constitutional claims raised by Davis[.]”
(Traverse, ECF No. 104, PageID 11051, citing Davis I, 2008-Ohio-2, ¶¶ 165-76.)
The Supreme Court of Ohio held that:
{¶ 165} Admissibility of DNA report. In proposition of law VII, Davis
argues that the trial court erred by failing to admit defense exhibit L,
the DNA lab report, into evidence. In the alternative, Davis argues that
trial counsel were ineffective by failing to fully object to exclusion of the
report.
{¶ 166} Meghan Clement, the Technical Director for Forensic Identity
Training at LabCorp, testified that Y-chromosome testing identified
Davis’s DNA on the bloodstained fitted sheet in Sheeler's bedroom.
Clement also testified that autosomal STR testing identified Davis's
DNA profile as a contributor to a mixture on two of the bloodstains.
{¶ 167} During cross-examination, trial counsel used defense exhibit L
in questioning Clement about the DNA results. Defense exhibit L
included two charts showing the results of DNA testing. Trial counsel’s
questions focused on the chart showing the results of autosomal DNA
testing. This chart compared the alleles found at the 13 loci showing
that Davis’s and Sheeler's DNA matched the DNA found on two of the
bloodstains. Trial counsel elicited Clement's explanation for scientific
data, footnotes, and other information included on the chart.
{¶ 168} Trial counsel offered defense exhibit L into evidence. Counsel
argued that this exhibit was “foundational evidence for [Clement] to get
to her conclusions and, therefore, the report should be admissible.” The
trial court did not admit defense exhibit L.
{¶ 169} Trial counsel used Clement’s chart as a demonstrative exhibit
during final argument. Trial counsel argued that the comparison of
Davis’s DNA profile with the DNA profile of the bloodstains suggested
that Davis’s deceased brother, Randy, might be the source of the DNA
attributed to Davis.
{¶ 170} During jury deliberations, the jury sent a note stating: “Can we
have the DNA statistics of 4.6, 4.7 of Ms. Clement? It was one of the
three charts used in Defense’s closing statements.” Trial counsel stated
that the jury should not be given the chart, because it was not admitted
at trial. However, trial counsel asked the trial court to reconsider its
ruling and admit defense exhibit L. The trial court refused, stating:
“[T]he DNA charts prepared by witnesses such as the ones here * * *
61

they’re hearsay, not admissible as business records or anything else.”
The trial court informed counsel that he would tell the jurors, “[Y]ou
must rely on your collective memories for the testimony.”
{¶ 171} Davis argues that defense exhibit L should have been admitted
because it was a business record under Evid.R. 803(6) and therefore an
exception to the hearsay rule. “To qualify for admission under Rule
803(6), a business record must manifest four essential elements: (i) the
record must be one regularly recorded in a regularly conducted activity;
(ii) it must have been entered by a person with knowledge of the act,
event or condition; (iii) it must have been recorded at or near the time of
the transaction; and (iv) a foundation must be laid by the ‘custodian’ of
the record or by some ‘other qualified witness.’ ” Weissenberger, Ohio
Evidence Treatise (2007) 600, Section 803.73. Even after these elements
are established, however, a business record may be excluded from
evidence if “the source of information or the method or circumstances of
preparation indicate lack of trustworthiness.” Evid.R. 803(6).
{¶ 172} “The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.” See State v. Sage (1987), 31 Ohio
St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.
Even relevant evidence may be excluded under Evid.R. 403(A) if its
“probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.”
{¶ 173} Trial counsel did not offer defense exhibit L into evidence as a
business record and did not lay the necessary foundation for doing so.
Defense exhibit L indicates that Clement independently reviewed the
DNA results. However, Clement offered no testimony showing that
defense exhibit L was “generated by a systematic entry kept in the
ordinary course of business.” State v. Lane (1995), 108 Ohio App.3d 477,
488, 671 N.E.2d 272.
{¶ 174} Even assuming the trial court erred, any error was harmless.
Clement’s testimony was compelling and credible evidence from which
the jury could conclude that Davis’s DNA was found on the bloodstained
sheet. Clement’s testimony, though based in part on the report, was
admissible expert opinion. The information and charts on defense
exhibit L were merely cumulative of her testimony. Moreover, the jury
saw the chart showing the autosomal DNA results during trial counsel’s
final argument.
{¶ 175} We also reject Davis’s ineffectiveness claim. The defense made
no proffer. Thus, it is speculative whether further questioning of
Clement would have established the necessary foundation for admitting
62

defense exhibit L as a business record.
Davis I, 2008-Ohio-2.
From the decision, it appears that the state court evaluated Petitioner’s claim
solely under state evidentiary rules. Thus, assuming Petitioner did raise a federal
constitutional claim, there is no state court decision to defer to, and de novo review
is appropriate. Nonetheless, his claim still fails. Petitioner does not dispute the
Warden’s accurate recitation of the standard for constitutional error: that the
exclusion of the report was so egregious as to render the trial fundamentally unfair
and a violation of due process. Estelle, 502 U.S. at 72-73. As the Warden correctly
argues, the report was used in cross-examination of Clement and as a
demonstrative aid during closing argument. Thus, Petitioner cannot reasonably
argue that he was denied his right to confrontation. (Return of Writ, ECF No. 97,
PageID 10844-45, citing Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam).)
Moreover, the extensive use of the report—and the clear consideration of its
contents by the jury during deliberations—meant that its exclusion as an actual
exhibit, even if error, did not render the trial fundamentally unfair. Accordingly,
Petitioner has no viable ground for relief, and the claim is dismissed.
2.

Claim Seven: Improper Expert Testimony

The Presentation of “Expert” Testimony Without First Establishing
Either the Scientific Basis or the Qualifications of the “Expert” Deprived
Davis of Due Process and a Fair Trial.
(Petition, ECF No. 133, PageID 11690.)
Petitioner argues that Detective Timothy Elliget, a self-proclaimed
criminalist, was improperly allowed to testify on matters normally reserved for
63

qualified experts, and that the state court failed in its gatekeeper role (Traverse,
ECF No. 104, PageID 11059, citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999); Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993).) “The
failure of defense counsel and the court to require the state to establish an
appropriate foundation for Detective Elliget’s ‘expert’ testimony denied Davis’ rights
to confront witnesses against him, due process, a fair trial and the effective
assistance of counsel under the Fifth, Sixth, Eighth, and Fourteenth Amendments.”
(Petition, ECF No. 133, PageID 11691-92, ¶ 244.)
Petitioner argues that Elliget’s testimony was concentrated in three main
categories and one residual category, and each category was problematic. First,
although Detective Elliget testified that he was trained by the Federal Bureau of
Investigation in fingerprint collection, identification, and verification, he “failed to
identify the extent, scope, nature, or duration of this training through the FBI, or
any assessment requirements associated with this training.” (Petition, ECF No.
133, PageID 11692, ¶ 245.) While Detective Elliget testified at length regarding
fingerprint and related evidence, “[a]t no time did Detective Elliget offer, nor did
defense counsel demand that he establish, the scientific basis or the scientific
validity for this ‘expert’ testimony[.]” (Id. at PageID 11692-93, ¶¶ 247-48.) Second,
Detective Elliget testified about the meaning of blood type patterns and his analysis
of them, but the prosecution had not established his qualifications to testify about
the subject matter. (Id. at, PageID 11693-94, ¶¶ 250-53.) “Detective Elliget gave
his unsupported ‘expert’ opinion that ‘the patterns here that are present appeared

64

to be consistent with a pattern of a hand being blood covered and the hand grabbing
the item and pulling off.’ No basis for such an opinion was ever offered.” (Id. at
PageID 11695, ¶ 256, quoting Trial Tr., ECF No. 52-4, Page ID 7680.) Third, as to
bodily fluids, “[d]espite establishing no scientific basis for this analysis, or that
Detective Elliget had any specific training in this technique, Detective Elliget was
permitted to give his ‘expert’ opinion on the meaning of this evidence.” (Petition,
ECF No. 133, PageID 11696, ¶ 260, citing Trial Tr., ECF No. 52-4, PageID 7654,
7656.) Finally, Detective Elliget offered opinion evidence on numerous other topics
despite not being an expert or having established his scientific or other basis for
testifying. (Petition, ECF No. 133, PageID 11696, ¶ 261.)
Throughout the direct examination, Detective Elliget repeatedly was
asked and answered questions that required either a scientific basis or
considerable training and education in order to form the basis for his
‘expert’ opinion. None was offered. None was requested by defense
counsel, despite the development in recent years of a wide body of
evidence and study demonstrating substantial and serious flaws with
the forensic “science” and its application that was the entire basis of
Detective Elliget’s testimony.
(Id. at PageID 11697, ¶ 266.)
Petitioner argues the four categories of testimony summarized above were
improper and prejudicial for several reasons. First, Detective Elliget was never
tendered as an expert, and there was no stipulation or any establishment of his
qualifications. (Petition, ECF No. 133, PageID 11699, ¶¶ 272-73.) Second, there
was no external validation of the validity of his methods, and his methods failed
Daubert’s reliability requirements. (Id. at PageID 11700-01, citing ¶¶ 275, 278.)
Third, the testimony was prejudicial, as Elliget’s testimony was vital to the State’s
65

theory that Petitioner, and Petitioner alone, was responsible for killing Sheeler.
(Id. at PageID 11701, ¶ 280.)7
The Warden argues that, for three reasons, Petitioner’s claim fails. First, the
claim is non-cognizable; “because Daubert involved the requirements of Federal
Rule of Evidence 702 and not any constitutional right, the Sixth Circuit has held
that Daubert does not apply to the states.” (Return of Writ, ECF No. 97, PageID
10847-48, citing Norris v. Schotten, 146 F.3d 314, 335 (6th Cir. 1998).) Second, the
claim was analyzed and rejected on its merits by the Supreme Court of Ohio as
“waived, alternatively meritless, and that he had constitutionally effective counsel.
The state court’s decisions were not unreasonable.” (Id. at PageID 10851, citing
Davis I, 2008-Ohio-2, ¶¶ 134-64.)
Davis does not show how his trial would have been different had he not
stipulated to Detective Elliget’s qualifications. In light of the training
Detective Elliget had already testified about, it is highly likely that the
trial court would have still found him to be qualified as an expert and
allowed the same testimony.
(Id. at PageID 10855 (emphasis in original).) The Warden claims that Petitioner
provides no support for his assertion that the stipulations were erroneous, and
“completely ignores the reasonable and legitimate tactical strategy of entering into
stipulations regarding Detective Elliget’s testimony.” (Id.) Further, the Warden
argues, Petitioner’s claim of prejudice is dubious—Detective Elliget testified that
Petitioner’s fingerprints were not found in the victim’s home, and it is difficult to

7Paragraphs

265, 269, and 283 through 320 have been procedurally defaulted
as not fairly presented to the state courts. (Return of Writ, ECF No. 97, PageID
10845, citing Opinion and Order, ECF No. 94, PageID 10699-10705.) The Court
does not consider those allegations.
66

understand how Petitioner was prejudiced by that information being admitted. (Id.
at PageID 10856.)
Third, the merits review by the state court means that this Court’s review is
limited to the state court record (Return of Writ, ECF No. 97, PageID 10857, citing
Cullen v. Pinholster, 563 U.S. 170, 182, 184 (2011).) The Warden reasons that much
of Petitioner’s attack on Detective Elliget’s testimony and the reliability of the
forensic evidence came from a report of the National Academy of Sciences from
2009, “nine years after Davis murdered Ms. Sheeler and four years after Davis’
trial.” (Return of Writ, ECF No. 97, PageID 10856 (emphasis in original).)
Petitioner “concedes he has never presented the report to the Ohio courts—even in
his most recent state court litigation regarding his motion for a new trial.
Therefore, the NAS report cannot be considered by this Court.” (Return of Writ,
ECF No. 97, PageID 10857, citing Response to Mtn. to Dismiss, ECF No.72, PageID
9477, 9479.) Without the NAS report, the Warden argues, there is no basis upon
which to attack Detective Elliget’s testimony. (Id. at PageID 10858.)
Petitioner claims that contrary to the Warden’s argument that this is a noncognizable Daubert claim, Petitioner raised this claim under his rights to due
process and a fair trial, which are cognizable in habeas. (Traverse, ECF No. 104,
PageID 11067, citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); Norris,
146 F.3d at 335 (6th Cir. 1998); State Court Record`, ECF No. 51-3, PageID 175461; Return of Writ, ECF No. 97, PageID 10847-48.) “The Supreme Court also has
suggested that due process concerns may be triggered in cases where erroneously

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admitted evidence ‘is almost entirely unreliable and . . . the factfinder and the
adversary system [would] not be competent to uncover, recognize, and take due
account of its shortcomings.’” (Traverse, ECF No. 104, PageID 11069 (alterations in
original), quoting Barefoot v. Estelle, 463 U.S. 880, 889 (1983), superseded on other
grounds by 28 U.S.C. § 2253).) Moreover, Petitioner argues, the Supreme Court of
Ohio only adjudicated the state court claim, meaning the federal constitutional
claim must be reviewed de novo. (Id. at PageID 11065-66.)
As with Claim Six, the state court did not review the federal constitutional
claim, rejecting the Ohio state law claim solely on state law grounds. Davis I, 2008Ohio-2, ¶¶ 134-64. Nonetheless, even when reviewed de novo, Petitioner’s claim is
unavailing. As the Warden correctly notes, Daubert does not apply against the
states. Thus, even if the trial court’s failure to ensure the reliability of Elliget’s
testimony would constitute a Daubert violation in federal court, that failure would
not by itself constitute a federal constitutional claim. Rather, to obtain relief, the
trial court errors, if any, must have been so egregious that they rose to the level of
an unfair trial or a denial of due process. Petitioner admits that he must show first
an error of “constitutional dimension”—that is, where “the admission of evidence
‘violated a bedrock principle of justice sufficient to deprive [him] of a fundamentally
fair trial’ under the Due Process Clause”; and “that ‘the state courts’ decision
finding no error in the state court evidentiary ruling contravened or unreasonably
applied clearly established Supreme Court precedent’ under the standard of review
set forth in 28 U.S.C. § 2254(d).” (Traverse, ECF No. 104, PageID 11069, quoting

68

Loza v. Mitchell, 705 F. Supp. 2d 773, 885 (S.D. Ohio 2010).) Second, the error must
have “had a substantial and injurious effect or influence in determining the jury’s
verdict.” (Id. (internal quotation marks omitted), quoting Calderon v. Coleman, 525
U.S. 141, 147 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).)
Petitioner has not met this exacting standard. Petitioner has not identified
valid evidence that would undermine Detective Elliget’s qualifications—as the
Warden correctly notes, consideration of the 2009 NAS Report is precluded by
Pinholster. Thus, this Court cannot conclude that the decision made by trial
counsel to stipulate to Detective Elliget’s qualifications fell outside the scope of
acceptable representation. Additionally, the waiver of any objection to his
qualifications did not deprive Petitioner of due process or a fair trial. Further,
Petitioner cites no caselaw supporting his argument that the admission of Detective
Elliget’s testimony contravened Supreme Court precedent. Petitioner’s argument
for prejudice is speculative—he fails to account for the fact that Detective Elliget’s
testimony on the lack of fingerprint evidence helped Petitioner’s defense. Petitioner
does not explain how this helpful evidence is so far outweighed by any inculpatory
evidence introduced by Detective Elliget’s testimony as to render his trial unfair.
The remainder of Claim Seven is dismissed.
3.

Claim Eight: Insufficient Evidence for Conviction on
Aggravating Circumstance of Kidnapping

Davis was Denied a Fair Trial, Due Process of Law and a Fair and
Reliable Sentencing Determination Because the State Offered
Insufficient Evidence to Support a Conviction on the Aggravating
Circumstance of Kidnapping or the Charge of Kidnapping.
(Petition, ECF No. 133, PageID 11713.)
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Petitioner argues that the evidence “was not sufficient to sustain Davis’
conviction on the separate count of kidnapping pursuant to Ohio Rev. Code §
2905.01 or the statutory aggravating circumstance that the murder occurred during
the course of a kidnapping, under Ohio Rev. Code § 2929.04(A)(7).” As the
Fourteenth Amendment requires every element of a crime to be proved beyond a
reasonable doubt, Petitioner claims that his conviction for kidnapping and death
sentence cannot stand. (Petition, ECF No. 133, PageID 11713, ¶ 323, citing Tibbs v.
Florida, 457 U.S. 31, 37-38 (1982); Jackson v. Virginia, 443 U.S. 307, 313-14 (1979);
In re Winship, 397 U.S. 358, 361-63 (1970).)
Petitioner argues that the state’s evidence was insufficient for two reasons.
First, there was insufficient evidence of Petitioner’s purpose to engage in sexual
activity with the victim. “The only evidence properly relied on by the state for this
element was the placement of the victim’s underwear which was rolled up around
her stomach. This is not sufficient evidence from which a reasonable juror could
find this separate animus to sustain the conviction for kidnapping.” (Petition, ECF
No. 133, PageID 11714, ¶ 326.) While there was presumptive evidence of semen on
the victim, Detective Elliget conceded “that there are other substances that may
cross-react with the chemicals.” (Id. at PageID 11715, ¶ 327.) Further, “testing on
the oral swab did not confirm the presumptive test. No DNA was found other than
the victim’s.” (Id., citing Trial Tr., ECF No. 52-4, PageID 7785-86.) Second, “[t]here
is no evidence in the record establishing by proof beyond a reasonable doubt that
the restraint or movement occurred for the purpose of engaging in sexual activity.”

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(Petition, ECF No. 133, PageID 11716, ¶ 330.) “Since it is unclear which of the
three felonies caused the jury to vote in favor of guilt in Count One (kidnapping,
burglary, aggravated robbery), Davis’ convictions and sentence of death must be
vacated.” (Id. at ¶ 331.)
The Warden notes that the Supreme Court of Ohio considered and rejected
this claim on its merits (Return of Writ, ECF No. 97, PageID 10859, citing Davis I,
2008-Ohio-2, ¶¶ 194-201), and that a sufficiency of the evidence challenge under
Jackson is subject to double deference—first, to the jury’s sufficiency determination,
and second, to the appellate court’s consideration of that verdict. (Id. at PageID
10859-60, citing Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).) The
Warden argues that because the Supreme Court of Ohio’s rejection of the claim was
not objectively unreasonable, this Court may not disturb it. (Id. at PageID 1086061.) Further, the Warden notes, this Court is bound by the state court’s
interpretation of state law on kidnapping. (Id. at PageID 10861-62, citing
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 67-68; Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975).)
In his Traverse, Petitioner argues that he “is entitled to relief under
AEDPA’s limitations because the state court decision was both based on an
unreasonable determination of the facts in the record and represented an
unreasonable application of the clearly established law of insufficient evidence.”
(Traverse, ECF No. 104, PageID 11076.) He claims that the Supreme Court of Ohio
improperly determined Petitioner’s purpose to engage in sexual activity through the

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following: (1) the victim’s body lying on the floor with her legs spread; (2) the
victim’s underwear being torn and cut in the crotch area; and (3) the presumptive
presence of semen from an oral swab of the victim, when in fact the first and third
determinations are belied by the evidence of record. (Traverse, ECF No. 104,
PageID 11076-77, citing Davis I, 2008-Ohio-2, ¶ 197.) Petitioner also takes issue
with the state court’s determination that there existed sufficient evidence of
significant movement or restraint, which it determined from: (1) Petitioner being
allowed in because the victim knew him, then moving the victim to the bedroom and
killing her; (2) the victim’s underwear being rolled up in such a way consistent with
assault; and (3) certain injuries of the victim being consistent with a knife being
placed against her throat. (Id. at PageID 11077, citing Davis I, 2008-Ohio-2, ¶199.)
He notes that three justices concluded that there was insufficient evidence of
movement or restraint to support the kidnapping charge. (Id. at PageID 11078,
citing Davis I, 2008-Ohio-2, ¶¶ 406-07 (Pfeiffer, J., dissenting in part).) Specifically,
Petitioner claims, there was no evidence of: (1) Petitioner moving the victim before
killing her; (2) the victim being tied up, by her underwear or anything else, before
she was killed; (3) rape or sexual assault prior to the murder; or (4) the marks on
the victim’s neck being made while she was alive. (Id., citing Davis I, 2008-Ohio-2,
¶¶ 407-08.)
In rejecting the claim, the Supreme Court of Ohio opined:
{¶ 194} Sufficiency of the evidence. In proposition of law IX, Davis
challenges the sufficiency of the evidence to support the kidnapping
specification, R.C. 2929.04(A)(7), and the underlying kidnapping charge,
R.C. 2905.01(A)(4).
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{¶ 195} In reviewing a claim of insufficient evidence, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two
of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 196} Count 3 charged Davis with kidnapping by removing or
restraining Sheeler “with purpose to engage in sexual activity.” Davis
argues that the state introduced insufficient evidence that he had this
purpose.
{¶ 197} “R.C. 2905.01(A)(4) requires only that the restraint or removal
occur for the purpose of non-consensual sexual activity—not that sexual
activity actually take place.” (Emphasis added.) State v. Powell (1990),
49 Ohio St.3d 255, 262, 552 N.E.2d 191. The state proved Davis’s
purpose to engage in sexual activity. Sheeler’s body was found lying on
the bedroom floor with her legs spread. Her panties were torn and cut
in the crotch area and rolled up underneath her breasts. Moreover,
presumptive testing of an oral swab obtained during the autopsy showed
the presence of semen. Thus, this claim lacks merit.
{¶ 198} We further determine that sufficient evidence of movement or
restraint was presented to support the kidnapping charge and
specification. For a kidnapping conviction to be upheld, “there must be
significant restraint or movement, not just that incident to the killing
itself.” State v. Cook (1992), 65 Ohio St.3d 516, 524, 605 N.E.2d 70. See
also State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d
547, ¶ 48–49.
{¶ 199} The evidence suggests that Sheeler allowed Davis to enter her
apartment because she knew him, and that at some point, she was
moved against her will from the front of the apartment to the bedroom,
where she was eventually killed. Additionally, the way Sheeler’s panties
were both torn and cut by a sharp instrument and then rolled up
underneath her breasts indicates that she was significantly restrained
for some period of time as Davis forcibly assaulted her. Finally, the state
presented evidence establishing that certain injuries on Sheeler’s neck
were consistent with a knife being held against her throat under her
chin. As the trial court noted in its sentencing opinion, these wounds
showed “[e]vidence of restraint.”
{¶ 200} The victim’s movement from the living room to the bedroom and
her subsequent restraint distinguishes this situation from State v.
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Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 93, in
which we found no evidence that the victim was moved to or from the
bedroom where she was killed, and also found no evidence of significant
restraint.
Davis I, 2008-Ohio-2. In partial dissent, Justice Pfeiffer, joined by Chief Justice
Moyer and Justice Cupp, opined:
{¶ 406} I dissent only from the portion of the majority opinion regarding
the sufficiency of the evidence of kidnapping in this case. In proposition
of law IX, Davis challenges the sufficiency of the evidence to support the
kidnapping specification, R.C. 2929.04(A)(7), and the underlying
kidnapping charge, R.C. 2905.01(A)(4).
{¶ 407} I would hold that the state failed to present sufficient evidence
of the “significant restraint or movement, not just that incident to the
killing itself” required to prove kidnapping. State v. Cook (1992), 65 Ohio
St.3d 516, 524, 605 N.E.2d 70. First, there is insufficient evidence of
movement to support kidnapping. The evidence suggests that Davis
gained entry into Sheeler’s apartment because she knew him. Sheeler’s
body was found inside her bedroom. However, there is no evidence that
Davis moved Sheeler to her bedroom before killing her.
{¶ 408} Second, there appears to be insufficient evidence of restraint
beyond that necessary to kill Sheeler. There is no evidence that Sheeler
was tied up before she was killed. Admittedly, the victim’s torn panties
above her breasts and the presence of semen on the oral swabs suggest
that Sheeler was orally raped or sexually assaulted. However, no
evidence shows whether Sheeler was orally raped or sexually assaulted
before she died.
{¶ 409} Based on the foregoing, proposition IX has merit. Thus, I would
reverse Davis’s convictions on the kidnapping charge and the separate
kidnapping specification because of insufficient evidence. Reversal of
Davis’s kidnapping specification does not require that his death
sentence be vacated.
Id.
Petitioner does not dispute that the Supreme Court of Ohio made findings of
fact with respect to the sufficiency of the evidence; nor does he dispute that those
findings must be presumed by this Court to be correct—a presumption that may
74

only be rebutted by clear and convincing evidence. (Traverse, ECF No. 104, PageID
11078-79, citing 28 U.S.C. § 2254(d)(2), (e)(1); Miller-El v. Dretke, 545 U.S. 231, 240
(2005); Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir. 2007).) Petitioner claims to
have met this burden by showing that the first and third determinations with
respect to sufficient movement or restraint were directly contradicted by the record.
Specifically, Petitioner argues that “[t]he photographic evidence from the crime
scene clearly demonstrates that the state court’s determination that the victim’s
legs were spread was false. Further, the record demonstrates conclusively that the
possibility of the presence of semen suggested by the presumptive test was negated
by a later conclusive test.” (Id. at PageID 11079.)
Even if the possibility of the presence of semen was negated by that later
conclusive test, that negation falls short of clear and convincing evidence in the
context of all the evidence considered by the Supreme Court of Ohio. At least one of
the two pictures cited by Petitioner (State Court Record, ECF No. 55, PageID 8659)
is sufficiently ambiguous that this Court cannot determine whether the victim’s legs
were spread apart; thus, this Court must defer to the state court’s finding. Further,
while the other picture (id. at PageID 8679) does show the victim’s legs pressed
together, it cannot be said that that position demonstrates clearly and convincingly
that there was no sexual purpose, as Petitioner argues (Traverse, ECF No. 104,
PageID 11078-79)—indeed, Sheeler’s crotch was exposed in the photo. In light of
this ambiguity, the Court must defer to the state court’s interpretation of the
evidence. Further, Petitioner does not dispute that the victim’s underwear was

75

torn. Thus, even if the Court were to disregard the presumptive presence of semen,
there exists enough evidence to conclude reasonably that Petitioner intended to
engage in sexual activity.
Petitioner’s reliance on the dissent in Davis I as to a lack of significant
movement or restraint ignores the majority’s opposite conclusion, stated above.
Davis I, 2008-Ohio-2, ¶¶ 199-200. Viewed in the light most favorable to the
prosecution, the evidence relied upon by the majority—the victim allowing Davis
into her apartment but then ending up in the bedroom on the floor and having been
partially undressed with a knife pressed to her neck—is sufficient to show restraint.
Thus, the state court’s decision upholding his convictions for kidnapping and the
kidnapping specification was supported by sufficient evidence, and thus was not an
unreasonable determination of the facts within the meaning of 28 U.S.C. §
2254(d)(2).
Alternatively, Petitioner argues that the Supreme Court of Ohio’s application
of Jackson was unreasonable (Traverse, ECF No. 104, PageID 11079, citing
Jackson, 443 U.S. 307; Davis I, 2008-Ohio-2, ¶¶ 195-96.) This Court disagrees. The
Supreme Court of Ohio’s decision, discussed above, set forth evidence which, taken
together, proves the elements of the kidnapping charge and specification beyond a
reasonable doubt Aside from the evidentiary issues discussed and resolved above,
Petitioner does not explain how the Supreme Court of Ohio’s adjudication ran afoul
of 28 U.S.C. § 2254(d)(1). Thus, Claim Eight is dismissed.

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4.

Claim Nine: Omitted Jury Instruction

The Trial Court’s Erroneous Jury Instructions During the Trial Phase
Deprived Davis of a Fair and Reliable Determination of His Guilt or
Innocence in Violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments.
(Petition, ECF No. 133, PageID 11719.)
Defense counsel requested an instruction cautioning the jury against drawing
inferences solely from inferences already drawn, i.e., “stacking inferences.” (Trial
Tr., ECF No. 52-4, PageID 8016.) The trial court denied that motion, concluding
that the Ohio Jury Instructions limited such an instruction to civil cases. (Id.)
Petitioner claims that this was an error so serious as to deprive him of due process
and a fair trial:
There is no rule or caselaw in Ohio prohibiting this instruction from
being given in a criminal case. There is no reason for such a prohibition
to only apply to civil cases. Given the burden of proof in a criminal case
this instruction is even more appropriate than in a civil case.
(Petition, ECF No. 133, PageID 11720, ¶ 337.) Such an instruction was appropriate
and necessary in this case, Petitioner argues, because the only way that he could
have been found guilty of the kidnapping charge and specification was by the jury
stacking inferences:
First, the jury would have had to infer that the presumptive test was
correct and actually indicated semen, then it must have inferred that it
was Davis’ semen, for which no evidence was presented. Finally, the
jury must have inferred that the presumed presence of semen from the
oral swab was from unwanted sexual activity that occurred during the
restraint.
(Id. at PageID 11720, ¶ 339.)
The Warden rejoins that this is not a federal constitutional claim, but rather

77

a non-cognizable state law claim. (Return of Writ, ECF No. 97, PageID 10862.) The
Warden further argues that, even if it were a constitutional claim, the state court
reasonably rejected the claim on its merits. (Id.) “The question on habeas review is
‘whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.’” (Return of Writ, ECF No. 97, PageID 10863,
quoting Estelle, 502 U.S. at 72.) That burden is greater than showing plain error on
direct appeal, and is greater still, the Warden argues, because a failure to give an
instruction is less likely to be seen as erroneous than an improperly given
instruction. (Id., citing Henderson v. Kibbe, 431 U.S. 145, 154, 155 (1977).) The
Warden claims that Petitioner has not attempted to meet this burden; rather, “[h]e
basically is asking this Court to substitute its judgment on a state law issue for that
of the Ohio courts. This is not the purpose of federal habeas review.” (Id. at PageID
10864, citing Harrington v. Richter, 562 U.S. 86, 102-03 (2011).)
Petitioner argues that despite raising the claim as a federal constitutional
one, the Supreme Court of Ohio considered it only as a matter of state law.
“Although the Supreme Court of Ohio is presumed to have adjudicated Davis’
federal claim on the merits even though it did not specifically address it, the
presumption is rebuttable.” Petitioner claims that the presumption should be
rebutted here, and de novo review be conducted, because there is no indication that
the Supreme Court of Ohio adjudicated the claim at all. (Traverse, ECF No. 104,
PageID 11085, citing Johnson v. Williams, 568 U.S. 289, 301-03 (2013); Davis I,
2008-Ohio-2, ¶¶ 177-93; State v. Palmer, 80 Ohio St. 3d 543 (1997); State Court

78

Record, ECF No. 51-3, PageID 1771.) Moreover, even if there was an adjudication,
Petitioner argues that it was objectively unreasonable: “The jury instruction that
was given at trial was confusing, and it failed to ensure that the jury would apply
the reasonable doubt standard correctly.” (Id. at PageID 11086, citing Williams
(Terry), 529 U.S. at 409-10 (2000); Davis I, 2008-Ohio-2, ¶¶ 177-81.)
In Davis I, the Supreme Court of Ohio held:
{¶ 177} Instructions. In proposition of law VIII, Davis argues that he
was deprived of a fair trial because of erroneous jury instructions.
However, except where noted, trial counsel failed to object and waived
all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13–14,
3 OBR 360, 444 N.E.2d 1332. Additionally, Davis argues that counsel’s
failure to object constituted ineffective assistance of counsel.
{¶ 178} First, Davis argues that the trial court erred by failing to give an
instruction prohibiting the jury from stacking inferences, i.e., drawing
one inference from another. The trial court refused to give this proposed
instruction, but did instruct the jury:
{¶ 179} “Circumstantial evidence is the proof of facts or circumstances
by direct evidence from which you may reasonably infer other related or
connected facts which naturally and logically follow according to the
common experience of mankind.
{¶ 180} “ * * *
{¶ 181} “To infer or to make an inference is to reach a reasonable
conclusion or deduction of fact which you may, but are not required to,
make from other facts which you find have been established by direct
evidence. Whether an inference is made rests entirely with you.”
{¶ 182} In State v. Palmer (1997), 80 Ohio St.3d 543, 561, 687 N.E.2d
685, we held that an instruction on stacking inferences was unnecessary
when the trial court had given an instruction on inferences similar to
the one given in this case. Thus, the trial court did not err by failing to
give the requested instruction.
{¶ 183} Second, Davis argues that the following instructions on Count 1
deprived him of a unanimous verdict:
{¶ 184} “While committing or attempting to commit, or while fleeing
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immediately after committing or attempting to commit means that the
death must occur as part of acts leading up to, or occurring during or
immediately after the commission of kidnapping, or aggravated robbery,
or aggravated burglary, and that the death was directly associated with
the commission * * * of kidnapping, or aggravated robbery, or
aggravated burglary.
{¶ 185} “ * * *
{¶ 186} “Before you can find the Defendant guilty of aggravated murder
as alleged in Count 1 of the indictment, the State must also prove beyond
a reasonable doubt that the Defendant committed or attempted to
commit kidnapping, aggravated robbery or aggravated burglary.”
(Emphasis added.)
{¶ 187} Davis argues that the instruction deprived him of his right to a
unanimous jury verdict because some of the jurors may have convicted
him of aggravated murder based on the underlying offense of
kidnapping and others on the basis of aggravated robbery or aggravated
burglary. However, the trial court's instructions did not result in error,
plain or otherwise.
{¶ 188} Jurors need not agree on a single means for committing an
offense. The United States Supreme Court has stated, “‘[D]ifferent
jurors may be persuaded by different pieces of evidence, even when they
agree upon the bottom line. Plainly there is no general requirement that
the jury reach agreement on the preliminary factual issues which
underlie the verdict.’” Schad v. Arizona (1991), 501 U.S. 624, 631–632,
111 S.Ct. 2491, 115 L.Ed.2d 555, quoting McKoy v. North Carolina
(1990), 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (Blackmun,
J., concurring); see State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio6046, 837 N.E.2d 315, ¶ 226–228 (applying Schad rationale in rejecting
unanimity claims).
{¶ 189} Davis invokes Apprendi v. New Jersey (2000), 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435, and Ring v. Arizona (2002), 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556, in arguing that the Sixth Amendment
requires any finding of fact that makes a defendant eligible for the death
penalty to be unanimously made by a jury. In Apprendi, the Supreme
Court held that the Sixth Amendment does not permit a defendant to be
“expose[d] * * * to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone.”
(Emphasis sic.) Id., 530 U.S. at 483, 120 S.Ct. 2348, 147 L.Ed.2d 435.
In Ring, a capital case, the Supreme Court held that a trial judge may
not make findings of fact on an aggravating circumstance necessary to
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impose the death penalty, as these findings are within the province of
the jury. Id., 536 U.S. at 609, 122 S.Ct. 2428, 153 L.Ed.2d 556. Davis’s
reliance on Apprendi and Ring is misplaced because the jury’s verdict,
and not the judge’s findings, made Davis eligible for the death penalty.
Thus, this argument lacks merit.
{¶ 190} Third, Davis claims that the trial court’s instructions
erroneously defined reasonable doubt. However, these instructions
conformed to R.C. 2901.05(D), whose constitutionality we have
repeatedly affirmed. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio160, 840 N.E.2d 1032, ¶ 76; State v. Stallings (2000), 89 Ohio St.3d 280,
293–294, 731 N.E.2d 159. No plain error was committed.
{¶ 191} Fourth, Davis contends that the trial court’s instructions on
“purpose” improperly made Davis responsible for any foreseeable result
that flowed from his unlawful acts, relieved the state of its burden of
proof on the mens rea element of aggravated murder, and created a
mandatory, rebuttable presumption of the mens rea element from the
mere use of a deadly weapon. The giving of this instruction was not
error. The instruction does not contain the foreseeability language
claimed by Davis. Cf. State v. Burchfield (1993), 66 Ohio St.3d 261, 263,
611 N.E.2d 819; State v. Goodwin (1999), 84 Ohio St.3d 331, 346, 703
N.E.2d 1251. As to his remaining claims attacking the “purpose”
instruction, we have previously rejected these claims. See State v.
Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 71–75; State
v. Loza (1994), 71 Ohio St.3d 61, 80–81, 641 N.E.2d 1082.
{¶ 192} Finally, we overrule Davis’s ineffectiveness claims. The jury was
properly instructed on the elements of the offense under Count 1,
reasonable doubt, and purpose. Thus, counsel were not deficient by
failing to object to these instructions. See Campbell, 69 Ohio St.3d at
49, 630 N.E.2d 339.
Davis I, 2008-Ohio-2.
From its mention of Petitioner’s fair trial claim, Davis I, 2008-Ohio-2, ¶ 177,
to its repeated consideration of Supreme Court precedent, id. at ¶¶ 188-89, the
Supreme Court of Ohio clearly evaluated and rejected Petitioner’s federal
constitutional claim. Thus, this Court’s review is sharply circumscribed. 28 U.S.C.
§ 2254(d)(1). Petitioner cites to no clearly established law that failure to instruct

81

against stacking inferences deprives a defendant of a fair trial, even if, as Petitioner
claims, drawing inferences was essential to finding him guilty. Petitioner’s
statement that the instructions caused the jury to fail to apply the reasonable doubt
standard correctly is speculative, and as the Supreme Court of Ohio pointed out, the
trial court properly instructed on circumstantial evidence and inferences. Davis I,
2008-Ohio-2, ¶¶ 179, 181. Because the Supreme Court of Ohio’s decision was not an
unreasonable application of clearly established federal law, it may not be disturbed,
and Claim Nine must be dismissed.
5.

Claim Ten: Gruesome and Cumulative Photos Deprived
Petitioner of Due Process, Fair Trial, and Fair and
Reliable Sentencing

The Cumulative and Gruesome Photographs Admitted at the Trial and
Penalty Phases Deprived Roland Davis of Due Process, a Fair Trial, and
a Fair and Reliable Sentencing Determination in Violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
(Petition, ECF No. 133, PageID 11731.)
Petitioner argues that “[t]he constitutional standard for determining whether
gruesome photographic evidence is admissible in a capital case is stricter than the
standard used in noncapital cases.” (Petition, ECF No. 133, PageID 11731, ¶ 370.)
Petitioner’s counsel filed a motion in limine to limit the number of photographs and
objected at trial, but numerous, allegedly gruesome, photographs were introduced
over counsel’s objections. (Id. at PageID 11732-34 (citations omitted); Traverse,
ECF No. 104, PageID 11087, citing State Court Record, ECF No. 51-1, PageID 99297; Trial Tr., ECF No. 52-3, PageID 7018, 7024, 7191-92, ECF No. 52-4, PageID
7988-90, ECF No. 52-5, PageID 8407-08.) Petitioner argues that “[w]hatever
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marginal probative value these photographs may have had was offset by the
prejudicial impact they undoubtedly had on the jurors and Davis’ right to a fair
trial.” (Petition, ECF No. 133, PageID 11736, ¶ 378.)
The Warden argues that the claim is meritless, asserting that Petitioner has
raised a question of state evidentiary, not federal constitutional, law, which is not
cognizable in habeas. (Return of Writ, ECF No. 97, PageID 10868, citing Franklin
v. Bradshaw, 695 F.3d 439, 456 (6th Cir. 2012); Cooey v. Coyle, 289 F.3d 882, 893-94
(6th Cir. 2002); Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997).)
According to the Warden, the only way the claim is cognizable is if the admissions
were so pernicious as to deprive Petitioner of a fair trial. (Id. at PageID 10868-69,
citing Franklin, 695 F.3d at 456.) This is not the case here, the Warden argues:
The Ohio Supreme Court reviewed the action taken by the trial court
and reasonably found the crime scene and autopsy photographs used
during the guilt phase, although gruesome, were limited in number,
noncumulative, and had substantial probative value of Davis’ intent to
murder Ms. Sheeler as well as the manner and circumstances of her
death.
(Id. at PageID 10869, citing Davis I, 2008-Ohio-2, ¶¶ 100-15.)
In the Traverse, Petitioner argues that the photographs were so gruesome
and repetitive that the jury could not judge the balance of the evidence fairly.
(Traverse, ECF No. 104, PageID 11092, citing Romano v. Oklahoma, 512 U.S. 1, 12
(1994); Spears v. Mullin, 343 F.3d 1215, 1226 (10th Cir. 2003).) “[W]hile the
autopsy photographs were not readmitted at the penalty phase, it is wholly
unrealistic to believe that the jurors could have simply disregarded them in
determining Davis’ sentence.” (Id. at PageID 11093, citing Spears, 343 F.3d at
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1226.) “While the showing required to obtain relief based on the introduction of
gruesome photographs is undoubtedly a ‘high standard,’ Davis satisfies it and his
claim is cognizable.” (Id. at PageID 11094, quoting Franklin, 695 F.3d at 457.)
Further, Petitioner argues that the Supreme Court of Ohio only examined the state
law claim, meaning that de novo review is appropriate. (Traverse, ECF No. 104,
PageID 11094-95, citing Davis I, 2008-Ohio-2, ¶¶ 100-15; State Court Record, ECF
No. 51-3, PageID 1736-37, 1742.)
In rejecting the claim, the Supreme Court of Ohio held:
{¶ 100} Gruesome photographs. In proposition of law IV, Davis argues
that the trial court erred in admitting gruesome autopsy and crimescene photographs during both phases of the trial.
{¶ 101} In capital cases, nonrepetitive photographs, even if gruesome,
are admissible as long as the probative value of each photograph
outweighs the danger of material prejudice to the accused. State v.
Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267; State v. Maurer
(1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven
of the syllabus. Decisions on the admissibility of photographs are “left
to the sound discretion of the trial court.” State v. Slagle (1992), 65 Ohio
St.3d 597, 601, 605 N.E.2d 916.
{¶ 102} 1. Crime-scene photographs. Davis complains about five
gruesome crime-scene photographs that the defense objected to at trial.
Davis claims that the photographs were cumulative and introduced to
inflame the jury.
{¶ 103} State’s exhibit 4–X shows Sheeler's body as she was found on the
bedroom floor after the sheets and bedspread were removed from her
body. State’s exhibit 4–X was relevant in showing the position of
Sheeler’s body at the crime scene. See State v. Gapen, 104 Ohio St.3d
358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 85.
{¶ 104} State’s exhibit 4–V shows that Sheeler’s panties had been
removed. This photo supported the state’s theory that Davis kidnapped
Sheeler for the purpose of engaging in sexual activity.
{¶ 105} State’s exhibit 4–Y is a photograph of Sheeler’s upper chest area
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showing numerous sharp instrument wounds on her neck and chest
area. This photograph also shows a blood trail leading from the victim’s
head and running down her chest. State’s exhibit 4–Y supported
Detective Elliget’s testimony that the blood trail showed that Sheeler
was standing when she was attacked and then later ended up on her
back.
{¶ 106} State’s exhibit 4–N shows bloodstained bedding covering the
victim’s foot and hand. State’s exhibit 4–O is a distant shot taken across
the bedroom showing some bloodstained bedding. State’s exhibits 4–N
and 4–O are not gruesome photographs but show that Sheeler’s bedroom
had been ransacked after she was killed.
{¶ 107} We hold that the trial court did not abuse its discretion in
admitting these few selected photographs. State’s exhibits 4–V, 4–X,
and 4–Y, although gruesome, were probative of Davis’s intent and the
manner and circumstances of Sheeler's death. See State v. Craig, 110
Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 92.
{¶ 108} 2. Autopsy photographs. Davis argues that the trial court
erred in admitting 12 autopsy photographs that the defense objected to
at trial. State’s exhibit 7–B depicts Sheeler’s body prior to the autopsy
and shows extensive wounds to her head and face. State’s exhibits 7–E
and 7–F are photographs showing that Sheeler received blunt-force
injuries to her face and a sharp-injury wound to the left side of her neck.
These photographs illustrated Dr. Fardal’s testimony and provided an
overall perspective of the victim’s wounds.
{¶ 109} State’s exhibit 7–C depicts marbling and skin slippage on
Sheeler’s face. This photograph supported Dr. Fardal’s conclusion that
Sheeler was killed two to three days before the autopsy was conducted.
State’s exhibit 7–D shows Sheeler’s bruised lips, bruised and lacerated
tongue, and toothlessness. This photograph supported Dr. Fardal’s
testimony that Sheeler could have lost her dentures as a result of her
attack.
{¶ 110} State’s exhibits 7–G and 7–J focus on different sharp-injury
wounds on Sheeler’s neck. Dr. Fardal testified that these wounds are
consistent with a knife being held underneath Sheeler’s chin. State’s
exhibits 7–H and 7–I depict different sharp-injury wounds to Sheeler’s
upper trunk. Each photograph has a ruler showing the length of the
separate injuries. These exhibits supported Dr. Fardal’s conclusion that
a single-edged knife caused these wounds.
{¶ 111} State's exhibit 7–L shows a hemorrhage in the temporalis muscle
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and an injury in the frontal scalp area caused by two points of impact.
State’s exhibit 7–M shows a hemorrhage to the back part of her head
caused by a separate impact. Using these photographs, Dr. Fardal
testified that Sheeler did not suffer a fatal brain injury but may have
received a concussion resulting in a loss of consciousness.
{¶ 112} Finally, state’s exhibit 7–K depicts the victim’s trachea and
esophagus and shows that blood was aspirated into her trachea. This
photograph supported Elliget’s testimony that blood spatter on the
bedroom wall shows that Sheeler was standing when hit in the head.
{¶ 113} We hold that the trial court did not abuse its discretion in
admitting the autopsy photographs. The autopsy photographs were
limited in number, noncumulative, and had substantial probative value.
Each of these photographs supported Dr. Fardal’s testimony and
demonstrated Davis’s intent to murder Sheeler. See Gapen, 104 Ohio
St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 90.
{¶ 114} 3. Gruesome photographs during the penalty phase.
During the penalty phase, no autopsy photographs were admitted into
evidence. The trial court admitted, over defense objection, state’s
exhibits 4–V, 4–X, and 4–Y. However, a trial court may properly allow
repetition of much or all that occurred in the guilt phase, pursuant to
R.C. 2929.03(D)(1). State v. DePew (1988), 38 Ohio St.3d 275, 282–283,
528 N.E.2d 542. The trial court did not abuse its discretion by admitting
these photographs. The trial court also committed no plain error in
admitting, without objection, two nongruesome photographs, state’s
exhibits 4–N and 4–O.
Davis I, 2008-Ohio-2.
As Petitioner concedes, even in the absence of an explicit evaluation of a
federal constitutional claim, this Court must presume that the claim was
adjudicated. (Traverse, ECF No. 104, PageID 11095, citing Williams, 568 U.S. at
300-01.) Petitioner argues that this presumption should be rebutted, as “there is no
indication that the Supreme Court of Ohio gave any consideration at all to the
federal aspect of Davis’ claim.” (Id.) The Court disagrees. In the above-cited
decision, the state court made specific factual findings which, taken together, reveal

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the court’s conclusion that the admission of the photographs did not create an
unfair trial or violate constitutional due process. Thus, the state court decision is
one to which deference is required under AEDPA.
However, even under a de novo standard, the claim is unavailing. As stated
above, the standard is whether the introduction was so prejudicial as to infect the
entire trial and render conviction and sentencing a denial of due process. Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974); Franklin, 695 F.3d at 456-57; Kelly v.
Withrow, 25 F.3d 363, 370 (6th Cir. 1994). In the cases cited by Petitioner
(Traverse, ECF No. 104, PageID 11092), the Tenth Circuit set forth the governing
law in that Circuit for the evaluation of photographs in habeas: “When, as here,
habeas petitioners challenge the admission of photographic evidence as violative of
the Constitution, this court considers ‘whether the admission of evidence . . . so
infected the sentencing proceeding with unfairness as to render the jury’s
imposition of the death penalty a denial of due process.’” Spears v. Mullin, 343 F.3d
1215, 1226 (10th Cir. 2003), quoting Romano, 512 U.S. at 12; see also Willingham v.
Mullin, 296 F.3d 917, 928 (10th Cir. 2002) (photographs must have been “so grossly
prejudicial that [their introduction] fatally infected the trial and denied the
fundamental fairness that is the essence of due process.”). The court must “consider
whether the jury could judge the evidence fairly in light of the admission of the
photographs.” Spears, 343 F.3d at 1226.
Petitioner claims that “[w]hatever marginal probative value these
photographs may have had was offset by the prejudicial impact they undoubtedly

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had on the jurors and Davis’ right to a fair trial.” (Petition, ECF No. 133, PageID
11736, ¶ 378.) This Court agrees with the Supreme Court of Ohio’s conclusions,
discussed above, that every one of the photos had independent, significant probative
value. Even if some of the photographs were, as Petitioner argues, different angles
of the same basic image, the mere introduction of repetitive images does not, by
itself, give rise to a constitutional violation. Further, as the Supreme Court of Ohio
discussed, the different angles were probative of different portions of the
prosecution’s case. Thus, they were not cumulative. Finally, the pictures were not
so numerous such that their prejudice more than offset their highly probative
nature. Accordingly, Claim Ten is meritless and is dismissed.
C.

Penalty Phase Grounds for Relief
1.

Claim Thirteen: Improper Reference to Victim’s Age

Roland Davis was Convicted and Sentenced To Death In A Trial
Conducted in an Emotional Atmosphere Where the Prosecutor Exploited
the Emotional Impact of Evidence About the Victim in Violation of the
Fifth, Sixth, Eighth And Fourteenth Amendments.
(Petition, ECF No. 133, PageID 11751.)
As discussed above, the entire claim except for the reference to Sheeler’s age
in the penalty-phase closing argument has been procedurally defaulted. During
closing argument of the penalty phase, the prosecutor mentioned that the victim
was 86 years old at the time of her murder. (Traverse, ECF No. 104, PageID 1109911100.) Petitioner argues that the mention of Sheeler’s age was unduly prejudicial,
as it had no probative value and served only to inflame the passions of the jury. (Id.
at PageID 11100-01.) “This emphasis on the victim’s age resulted in a death

88

sentence obtained in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments.” (Id. at PageID 11101, 11102, citing Payne v. Tennessee, 501 U.S.
808, 825 (1991).) Specifically, Petitioner claims that the jury improperly considered
Sheeler’s age as a non-enumerated aggravating factor:
The indictment did not include a specification of an aggravating
circumstance addressing the advanced age of the victim, and the jury
did not find such a statutory aggravating circumstance proven beyond a
reasonable doubt at the trial phase. Nevertheless, the prosecutor during
penalty phase closing argument argued this factor as a non-statutory
aggravating circumstance[.]
(Id. at PageID 11103.) Under Ohio law, aggravating circumstances may only be
considered if they are statutorily prescribed and proven beyond a reasonable doubt.
(Traverse, ECF No. 104, PageID 11102, citing Ohio Rev. Code §§ 2929.03(D),
2929.04(A); State v. Wogenstahl, 75 Ohio St. 3d 344, paragraph one of the syllabus
(1996); State v. Johnson, 24 Ohio St. 3d 87, syllabus (1986).) As the jury relied on
an improper aggravating circumstance, Petitioner argues, his death sentence is
invalid. Petitioner further argues that the AEDPA is not a bar to granting relief
“because there was no adjudication on the merits of Davis [sic] federal
constitutional claim. The Supreme Court of Ohio resolved this claim solely on the
Ohio Rules of Evidence and its own state law precedent without mentioning due
process or a fair trial or the Federal Constitution.” (Traverse, ECF No. 104, PageID
11103, citing Davis I, 2008-Ohio-2, ¶ 227.)
The Warden notes that the Petitioner raised this as his twelfth proposition of
law on direct appeal and that the Supreme Court of Ohio ruled that Petitioner was
not prejudiced by mention of the victim’s age (Return of Writ, ECF No. 97, PageID
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10872, citing Davis I, 2008-Ohio-2, ¶ 227.) The Warden argues that this was the
correct decision, as the misconduct, if any, was not so egregious and flagrant as to
infect the entire trial with unfairness. (Id., citing Darden v. Wainwright, 477 U.S.
168, 181 (1986); Goff v. Bagley, 601 F.3d 445, 480 (6th Cir. 2010).)
The jury was already aware of Ms. Sheeler’s age, and overwhelming
evidence was properly admitted during the penalty phase to support the
sentence of death. Therefore, there was nothing unreasonable in the
Ohio Supreme Court’s decision that, while the prosecutor did not need
to mention the victim’s age in making the argument that there was no
connection between his abusive childhood and the murder which
occurred 30 years later, doing so did not prejudice Davis.
(Id. at PageID 10873.)
In rejecting the claim, the Supreme Court of Ohio held:
{¶ 227} During the penalty-phase closing argument, the prosecutor
noted Sheeler’s age in arguing that there was nothing mitigating in the
nature and circumstances of the offense. This was a valid argument.
See State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433,
¶ 179. Over defense objection, the prosecutor also discussed Sheeler’s
age in arguing that there was no connection between Davis’s abusive
childhood and his murder of an 86–year–old woman 30 years later. The
prosecutor did not need to mention the victim’s age in making this
argument. However, Davis suffered no prejudice from the mention of
Sheeler’s age.
Davis I, 2008-Ohio-2. The state court decision appears to rest solely on state law.
Thus, the presumption of adjudication could reasonably be rebutted.
However, even if the AEDPA does not circumscribe this Court’s review of this
claim, the claim still fails. The prosecutor mentioned Sheeler’s age six times in the
context of the actual, statutorily prescribed aggravating circumstances (Trial Tr.,
ECF No. 52-5, PageID 8436-47, 8491.) While mentioning Sheeler’s age may not
have been necessary to prove the aggravating circumstances, it was not a
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predominant focus of the prosecutor’s closing argument, such that the jury would
have focused on it at the expense of the proper aggravating circumstances and
mitigating factors. Petitioner offers no evidence that any juror was improperly
swayed by the victim’s age. As there was no apparent prejudice resulting from any
impropriety, Petitioner was not denied due process or a fair trial. Claim Thirteen is
dismissed.
2.

Claim Fourteen:
Failure to Merge Kidnapping and
Aggravated Robbery Aggravating Circumstances

The Failure to Merge the Kidnapping and Aggravated Robbery
Specifications of Statutory Aggravating Circumstances Resulted in the
Jury Weighing Duplicative and Cumulative Aggravating Circumstances
Thereby Denying Davis Due Process and a Fair and Reliable Sentencing
Phase as Guaranteed By The Fifth, Sixth, Eighth and Fourteenth
Amendments.
(Petition, ECF No. 133, PageID 11754.)
“Roland Davis was charged with four statutory aggravating circumstances
pursuant to Ohio Rev. Code § 2929.04(A):
1) escaping detection, apprehension, trial, or punishment for one or more
of the offenses of a) kidnapping; b) aggravated robbery; c) aggravated
burglary d) felonious assault; e) theft; in violation of R.C. 2929.04(A)(3);
2) committing or attempting to commit, or fleeing immediately after
committing or attempting to commit kidnapping and being the principal
offender in the commission of the aggravated murder in violation of R.C.
2929.04(A)(7);
3) committing or attempting to commit, or fleeing immediately after
committing or attempting to commit aggravated robbery and being the
principal offender in the commission of the aggravated murder in
violation of R.C. 2929.04(A)(7);
4) committing or attempting to commit, or fleeing immediately after
committing or attempting to commit aggravated burglary and being the
principal offender in the commission of the aggravated murder in
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violation of R.C. 2929.04(A)(7).”
(Petition, ECF No. 133, PageID 11754, ¶ 424.) He was found guilty of all four. (Id.
at ¶ 425.) “Prior to the beginning of the penalty phase, counsel requested merger of
the four statutory aggravating circumstances. . . . However, the state argued that
the second specification should not merge and the trial court refused to merge the
kidnapping specification with the aggravated robbery specification.” (Id. at PageID
11754-55, citing Trial Tr., ECF No. 52-5, PageID 8208, 8210.)
Petitioner argues that the second and third specifications were duplicative
and cumulative; consequently, the court “artificially inflate[d] the weight and
number of the aggravating circumstances which the sentencer must weigh.”
(Petition, ECF No. 133, PageID 11755, ¶ 426.) “Here the state established no
separate animus for the kidnapping or the aggravated robbery. This was all one
indivisible course of conduct that resulted in the death of the victim.” (Petition,
ECF No. 133, PageID 11755, ¶ 427.) Petitioner reasons that the trial court’s
“failure to merge those duplicative specifications prior to the penalty phase
permitted the state to cumulate them in a manner that made it impossible for the
jury to fairly balance the aggravating circumstances and mitigating factors. As such
Davis’ death sentences lack the reliability required in a capital case[.]” (Id. at
PageID 11756, ¶ 428.) Specifically, the court and State “forc[ed] the jury to consider
duplicative statutory aggravating circumstances in a manner that made it
impossible for the jury to fairly balance the aggravating circumstances against the
mitigating factors.” (Traverse, ECF No. 104, PageID 11108.)
The Warden counters that, for two reasons, Petitioner’s claim must fail.
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First, it is non-cognizable in habeas. “Davis’ claim is entirely a state law issue, as
evidenced by the fact that he cites to no federal cases supporting his allegations;
Davis only makes a conclusory assertion that the failure to merge the aggravating
circumstances violated his constitutional rights.” (Return of Writ, ECF No. 97,
PageID 10874.) Second, the Supreme Court of Ohio considered and rejected this
claim in the tenth proposition of law on direct appeal. (Id. at PageID 10874-75,
quoting Davis I, 2008-Ohio-2, ¶¶ 202-06.) The Warden argues that this decision
was not an unreasonable application of clearly established federal law: “There is no
clearly established federal law which mandates merger of allegedly duplicative
specifications.” (Id. at PageID 10875, citing Jones v. United States, 527 U.S. 373,
398 (1999).)
Petitioner argues that he did raise the claim as both a state law and federal
constitutional claim, but that the Supreme Court of Ohio only analyzed it as a state
law claim. (Traverse, ECF No. 104, PageID 11109, citing Davis I, 2008-Ohio-2, ¶¶
202-06.) He further claims that he “has explained why the cumulation of
duplicative statutory aggravating circumstances arising out of one course of conduct
upsets the critical weighing process the jury must perform to authorize a sentence
of death under Ohio law and the Federal Constitution.” (Id. at PageID 11110, citing
Hurst v. Florida, 577 U.S. 92, 102 (2016).)
The state court adjudicated the claim as follows:
{¶ 202} Merger. In proposition of law X, Davis contends that the
kidnapping specification should have been merged with the aggravatedrobbery specification.
{¶ 203} Before the penalty phase, trial counsel requested merger of
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Specification 1 (escaping detection) and Specification 2 (kidnapping)
with Specification 3 (aggravated robbery) and Specification 4
(aggravated burglary). The trial court merged the escaping-detection
specification with the three other specifications. The trial court declined
to merge the kidnapping offense because the “kidnapping charge
contained a separate animus or intent than that of the aggravated
robbery or aggravated burglary.”
{¶ 204} This court has held that a kidnapping is implicit within every
aggravated robbery. State v. Jenkins (1984), 15 Ohio St.3d 164, 198, 15
OBR 311, 473 N.E.2d 264, fn. 29. Hence, the kidnapping and
aggravated-robbery specifications must merge unless a separate animus
exists as to each specification. State v. Fears (1999), 86 Ohio St.3d 329,
343–344, 715 N.E.2d 136.
{¶ 205} Davis invokes State v. Logan (1979), 60 Ohio St.2d 126, 14
O.O.3d 373, 397 N.E.2d 1345, in arguing that there was no separate
animus for the kidnapping and aggravated-robbery specifications.
Logan established guidelines to determine whether kidnapping and
another offense are committed with a separate animus to permit
separate punishment under R.C. 2941.25(B). Id. at syllabus. The test
to determine whether the kidnapping was committed with a separate
animus is whether the “restraint or movement of the victim is merely
incidental to a separate underlying crime” or whether instead, it has a
“significance independent of the other offense.” Id.
{¶ 206} Davis was charged with and convicted of kidnapping Sheeler for
the purpose of engaging in sexual activity. The facts indicate that Davis
had an animus to sexually assault or rape Sheeler that was separate
from his animus to commit aggravated robbery, a theft-related offense.
Thus, we reject Davis’s argument that Logan requires merger of the
kidnapping and aggravated-robbery specifications.
Accordingly,
proposition X lacks merit.
Davis I, 2008-Ohio-2.
Even assuming that the federal constitutional claim was fairly presented to
but ignored by the state court, it is still meritless. As with so many other claims in
this Petition, the gravamen is an alleged violation of state law. The only way such a
claim is cognizable in habeas is if the violation of law was so egregious as to deny
Petitioner a fair trial or due process. Petitioner has not met that standard here.
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There is no federal constitutional right to have certain specifications merged, and
the cases cited by Petitioner (Traverse, ECF No. 104, PageID 11109-10), have
nothing to do with the issue at hand. Hurst dealt with whether “a sentencing judge
[may] find an aggravating circumstance, independent of a jury’s factfinding, that is
necessary for imposition of the death penalty.” 577 U.S. at 102. There is nothing in
the record suggesting that the trial judge engaged in such independent analysis.
Brown v. Sanders dealt with whether “the invalid sentencing factor allowed the
sentencer to consider evidence that would not otherwise have been before it[.]” 546
U.S. 212, 220-21 (2006). There is no indication that the failure to merge the
specifications caused any evidence to be improperly considered by Petitioner’s jury.
Finally, Stringer v. Black concerned an aggravating circumstance that was not
defined for the jury. 503 U.S. 222, 226 (1992). Petitioner does not argue that any
aggravating circumstance was inadequately defined. Because Petitioner has failed
to set forth a viable constitutional claim, Claim Fourteen is dismissed.
3.

Claims Sixteen and Seventeen: Prosecutorial Misconduct
and Brady

Claim Sixteen: The Prosecutor Violated Davis’ Rights Under the Fifth,
Sixth, Eighth and Fourteenth Amendments by Failing to Meet His
Obligation to Seek Justice and to Refrain from Unfairly Seeking a
Conviction or Sentence of Death Based on Improper Evidence, Improper
Argument and Other Misconduct.
(Petition, ECF No. 133, PageID 11768.)
Claim Seventeen: Davis was Denied his Right to Due Process and to
a Fair Trial When the State Failed to Disclose Material, Favorable
Evidence.
(Id. at PageID 11796.)

95

As stated above, all but paragraphs 465, 474, 524 through 529, and the last
sentence in paragraph 473 from Claim Sixteen have been procedurally defaulted.
In Claim Seventeen, paragraphs 541 through 545 have been procedurally defaulted
(Opinion and Order, ECF No. 94, PageID 10729-39.)
a.

Prosecutorial Misconduct

Petitioner argues that the prosecutor improperly vouched for the State’s
witnesses’ credibility (Petition, ECF No. 133, PageID 11769, ¶ 465), planted an
improper inference as to Petitioner not presenting his own DNA expert (id. at
PageID 11773-74, ¶¶ 473-74), and improperly withheld exculpatory material in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). (Id. at PageID 11792-94, ¶¶
524-29.) He claims that:
The prosecuting attorney crossed far over the line of permissible conduct
with arguments and [used] tactics long condemned for their capacity to
mislead and unfairly prejudice the jury. The misconduct was so
pronounced and persistent that it can only be understood as deliberate
and calculated to unfairly influence the jury.
(Traverse, ECF No. 104, PageID 11112.)
The Warden responds by stating the high standard the Petitioner must meet:
“In habeas corpus, a claim that prosecutorial misconduct at trial violated the Due
Process Clause requires a petitioner to prove the prosecutor’s alleged misconduct
was so egregious that the petitioner was deprived of fundamental due process.”
(Return of Writ, ECF No. 97, PageID 10876, citing Darden v. Wainwright, 477 U.S.
168, 181 (1986); Donnelly, 416 U.S. at 643.) “A prosecutor’s improper comments will
be held to violate due process only if they so infected the trial with unfairness as to
make the resulting conviction fundamentally unfair.” (Id. at PageID 10876-77,
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citing Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam).) The test for
prosecutorial misconduct is highly generalized, and the more general the issue, the
greater leeway state courts have in making case-by-case determinations. (Id. at
PageID 10877, citing Renico v. Lett, 559 U.S. 766, 776 (2010).)
“In paragraph 465, Davis argues his constitutional rights were violated
because the prosecutor expressed his opinions about the credibility of experts
[Susan] Fowls and [Tarianne] Pax[s]on who testified in Davis’ trial. Davis raised
the allegations in paragraph 465 in his direct appeal as part of his twelfth
proposition of law.” (Return of Writ, ECF No. 97, PageID 10879, citing Davis I,
2008-Ohio-2, ¶¶ 232-35.)
The Supreme Court addressed the claim as follows:
{¶ 232} 1. Vouching. Davis argues that the prosecutor improperly
vouched for several of the state’s witnesses. An attorney may not
express a personal belief or opinion as to the credibility of a witness.
State v. Williams (1997), 79 Ohio St.3d 1, 12, 679 N.E.2d 646. Vouching
occurs when the prosecutor implies knowledge of facts outside the record
or places his or her personal credibility in issue. See State v. Jackson,
107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117.
{¶ 233} First, Davis claims that the prosecutor improperly vouched for
the credibility of Tarianne Paxson and Susan Fowls. During closing
argument, defense counsel questioned the truthfulness of Paxson’s and
Fowls’s testimony. During rebuttal, the prosecutor argued: “These folks
are not the type of people that would come in here and identify somebody
in this kind of case unless they were absolutely, positively certain.”
{¶ 234} Trial counsel objected to this argument as vouching, and the
trial court sustained the objection. Without further objection, the
prosecutor argued: “Do these people appear to you to be people that
would come in here and identify the person as a murderer unless they
were certain? You answer that.”
{¶ 235} In rephrasing his comments, the prosecutor did not express an
opinion about the witnesses’ credibility because he asked the jurors to
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decide for themselves whether these witnesses were being truthful.
State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047,
¶ 95. No improper vouching occurred.
Davis I, 2008-Ohio-2.
As the Supreme Court of Ohio noted, when the prosecutor actually vouched
for Fowls and Paxson, counsel objected to the vouching, and the trial court
sustained the objection. After the objection was sustained, the prosecutor
rephrased his argument properly, emphasizing that it was up to the jury to
determine whether Fowls and Paxson were being truthful. Davis I, 2008-Ohio-2, ¶
234. An isolated incident of vouching, properly objected to and promptly corrected,
falls well short of the prosecutor’s behavior creating an unfair trial, and this portion
of Claim Sixteen is dismissed.
Also, Petitioner argues that:
[H]is constitutional rights were violated by the prosecution for eliciting
testimony from expert Meghan Clement that she had given Davis access
to her notes and DNA reports. Davis raised the allegations in the last
sentence of paragraph 473 and paragraph 474 in his direct appeal as
part of his twelfth proposition of law.
(Return of Writ, ECF No. 97, PageID 10881, citing Davis I, 2008-Ohio-2, ¶¶ 248-52.)
The Supreme Court of Ohio rejected Petitioner’s claim:
{¶ 248} 2. Defense access to lab results. Davis argues that the
prosecutor improperly commented on the absence of a defense DNA
expert witness. To the extent that counsel failed to object, Davis argues
that his counsel provided ineffective assistance. These claims lack
merit.
{¶ 249} During direct examination, Ramen Tejwani testified that she
had provided the defense with all the notes and results from the DNA
testing.
{¶ 250} During redirect examination, Meghan Clement was asked by the
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prosecution whether she had provided “documentation regarding [her]
laboratory, about [her] processes and [her] specific testing in this case
for access to a defense expert.” Trial counsel objected and requested a
mistrial, which the trial court overruled. Clement then testified that all
material related to this case was provided to the defense through the
discovery process.
{¶ 251} Testimony that the DNA material and test results were provided
to the defense for independent evaluation helped establish the
credibility of the state's experts. Moreover, to the extent the testimony
highlighted the absence of a defense expert, no error was committed.
The prosecutor may comment upon the failure of the defense to offer
evidence in support of its case. State v. Clemons (1998), 82 Ohio St.3d
438, 452, 696 N.E.2d 1009; State v. D’Ambrosio (1993), 67 Ohio St.3d
185, 193, 616 N.E.2d 909.
{¶ 252} We also reject Davis’s ineffectiveness claim because trial counsel
did object to Clement’s testimony. Moreover, counsel were not deficient
by failing to object to Tejwani’s testimony, because her testimony was
admissible.
Davis I, 2008-Ohio-2.
The Supreme Court of Ohio’s rejection was not unreasonable. Petitioner does
not argue that there was any further alleged misconduct with respect to the
vouching or to the above particular line of questioning. This isolated question and
the single instance of vouching did not deprive Petitioner of a fair trial, meaning
that declaring a mistrial would have been a disproportionate remedy to any
misconduct that took place. Accordingly, this portion of Claim Sixteen is also
dismissed.
b.

Brady Material

Petitioner argues that the State improperly withheld information that
jailhouse witness Richard Hummel had violated his probation, in violation of Brady.
(Petition, ECF No. 133, PageID 11796, ¶ 536.) The Warden notes that this issue

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was raised and denied on both direct appeal and in postconviction. (Id. at PageID
10882-83, citing Davis I, 2008-Ohio-2, ¶¶ 335-40; Davis II, 2008-Ohio-6841, ¶¶ 4958.) The Warden argues that the courts’ decisions were not unreasonable
applications of clearly established federal law. The Warden claims that because
Hummel’s misdemeanor probation for driving under the influence was a matter of
public record, the information regarding Hummel’s violation of probation was not in
the sole possession of the prosecution, and Brady does not apply. (Id. at PageID
10885-86, citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998).) Moreover, the
Warden argues that “it is only speculation that the jury would have given less
credibility to Hummel’s testimony if they had known Hummel’s probation status in
light of the overwhelming evidence of Davis’ guilt.” (Id. at PageID 10886; see also
Davis I, 2008-Ohio-2, ¶ 339 (“Information about a probation violation might have
impeached Hummel’s credibility. However, impeachment evidence would not have
been significant in the outcome of the case because DNA evidence established
Davis’s guilt.”).)
A Brady violation has three elements: (1) The evidence must be favorable; (2)
the evidence must have been willfully or inadvertently suppressed by the state; and
(3) the suppression resulted in prejudice; i.e., the evidence must be material.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Petitioner argues that:
There was no evidence or argument presented in either the trial court
or the Court of Appeals that Davis or anyone else could access Richard
Hummel’s probation violation through a public records request or
through access to the public records of the courts. Nor was there any
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evidence presented to demonstrate that Richard Hummel’s probation
violation appeared on the public records of any of the courts in Licking
County, Ohio, or elsewhere.
(Traverse, ECF No. 104, PageID 11126.)
There is considerable uncertainty as to whether the probation violation, even
if a public record, was ever accessible to Petitioner, and thus, whether that
information was wholly in control of the State as defined by Coe. 161 F.3d at 344.
The Court need not reach that issue, however, because the Warden is correct that
the information about Hummel’s probation violation, even if suppressed, was not
material under Brady. For information to be material, Petitioner must convince
this Court “that ‘there is a reasonable probability’ that the result of the trial would
have been different if the suppressed documents had been disclosed to the defense.”
Strickler, 527 U.S. at 289, quoting Kyles, 514 U.S. at 433. “The question is not
whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.
Petitioner has not met this standard. While Petitioner argues that “the
evidence here was far from overwhelming[,]” (Traverse, ECF No. 104, PageID
11124), there was, in fact, substantial evidence supporting Petitioner’s guilt.
Petitioner was familiar with the victim and had gone on a buying spree around the
time of murder. Davis I, 2008-Ohio-2, ¶ 123. The DNA evidence did not exclude
Petitioner as a suspect. (Petition, ECF No. 133, PageID 11680, ¶ 200.) While the
probation violation may have impeached Hummel’s credibility for truthfulness,
Hummel’s testimony was not the linchpin of the state’s case. The Court is not
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persuaded that the lack of such evidence undermined confidence in a fair trial.
As Petitioner has failed to meet the materiality element, he has not made a
sufficient Brady claim. Consequently, the remaining portions of Claims Sixteen
and Seventeen are dismissed.
D.

Claim Eighteen: Ineffective Assistance of Counsel

Roland Davis was Denied the Effective Assistance of Counsel Under the
Fifth, Sixth, Eighth and Fourteenth Amendments.
(Petition, ECF No. 133, PageID 11800.)
Petitioner raises numerous subclaims of ineffective assistance of trial
counsel. The Court examines them in turn, noting that when the issue is ineffective
assistance of counsel, the federal habeas court is required to be doubly deferential.
Harrington, 562 U.S. at 105.
The law on ineffective assistance of counsel was established in Strickland:
A convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, “[t]o establish ineffective assistance of counsel, a
defendant ‘must show both deficient performance by counsel and prejudice.’”
Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), quoting Knowles v. Mirzayance,
556 U.S. 111, 122 (2009).
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With respect to the first prong of the Strickland test, the Supreme Court has
commanded that :
Judicial scrutiny of counsel’s performance must be highly deferential. .
. . A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”
466 U.S. at 689 (citation omitted). As to the second prong, the Supreme Court 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 overcome confidence
in the outcome.” Id. at 694.
1.

Subclaim 18(A)(1): Counsel Failed to Recognize, Request,
or Show the Need for Expert and Investigative Assistance.

Petitioner alleges that:
Trial counsel failed to recognize or request or demonstrate the need for
the investigative and expert assistance reasonably necessary for counsel
to fully and thoroughly investigate the state’s case, Davis’ life history
and background and to fully present that life history and background,
and explain the effect of that history on his development at the penalty
phase of the trial.
...
To the extent Davis’ trial counsel failed to request or to make a
particularized demonstration of the need for expert and investigative
assistance, such failure fell below the prevailing professional norms for
counsel representing indigent capital defendants in 2005, and as such
was unreasonable thereby denying Davis the effective assistance of
counsel.
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(Petition, ECF No. 133, PageID 11802, ¶¶ 556-57, citing Ake v. Oklahoma, 470 U.S.
68, 78-79 (1985); State v. Broom, 40 Ohio St. 3d 277, 283-84 (1988).) Petitioner
argues that failure of counsel to request investigators and experts ex parte fell below
the objective reasonableness standard and prejudiced Davis by denying him a fair
trial. (Id. at PageID 11803, ¶¶ 559, 561.)
The Warden counters that this argument is internally inconsistent, as within
the subclaim, Petitioner concedes that counsel asked for funding for experts,
although counsel did not do so ex parte. (Return of Writ, ECF No. 97, PageID 1089192, citing Petition, ECF No. 133, PageID 11803, ¶ 558.) Further, “[a]s the Ohio
Supreme Court noted in reasonably rejecting the merits of Davis’ thirteenth
proposition of law on direct appeal, Davis’ attorneys did request experts, were
granted funds for experts, and had experts appointed.” (Id. at PageID 10892
(emphasis in original), citing Davis I, 2008-Ohio-2, ¶ 342.)
The Supreme Court of Ohio, in rejecting Petitioner’s claim, held:
{¶ 342} 1. Expert and Investigative Assistance. Davis contends that
his counsel were ineffective for failing to request or demonstrate the
need for expert or investigative assistance to fully investigate the case
and present an effective penalty-phase defense. However, defense
counsel did request funds for a private investigator, a mitigation
specialist, a DNA expert, and a defense psychologist. The trial court
granted each of these requests. Thus, this claim lacks merit.
Davis I, 2008-Ohio-2.
Petitioner does not claim that counsel failed to request funds, and the
Supreme Court of Ohio’s adjudication was not contrary to clearly established law.
Thus, to the extent that subclaim 18(A)(1) seeks relief on the issue of seeking
funding for and retaining experts, it is unavailing, and the only issue before the
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Court is whether the failure to make requests ex parte constituted prejudicial
ineffective assistance.
Petitioner argues that “[c]ounsel alone is responsible for determining what
resources are needed and demonstrating to the court the necessity of authorizing
funds for those resources and should not disclose privileged communications or
strategy in order to secure these resources.” (Traverse, ECF No. 104, PageID
11129, citing Am. Bar Ass’n, Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (“ABA Guidelines”), Commentary to
Guideline 10.4.) Yet, Petitioner does not argue, and there is no evidence, that
counsel disclosed privileged communications or strategy or attorney work-product in
the requests. Thus, even if a failure to submit ex parte the requests for experts falls
outside the wide range of reasonable professional assistance—and this Court is not
holding that it does—there is no indication that Petitioner was prejudiced by such
error. Subclaim 18(A)(1) is dismissed.
2.

Subclaim 18(A)(2): Counsel Failed to Sufficiently Object
to the Restraints on Davis During Trial, and Failed to
Request a Hearing on the Need for Restraints on Davis
During Trial

Counsel filed a motion for Petitioner to appear without restraints, which the
trial court denied. Yet, counsel failed to object to court’s decision or the court’s
failure to hold a hearing on the issue. (Petition, ECF No. 133, PageID 11804-05, ¶¶
562, 566, citing Deck, 544 U.S. at 624, Holbrook, 475 U.S. at 568-69; Allen, 397 U.S.
at 343-44; State Court Record, ECF No. 51-1, PageID 1185.) Petitioner argues that
“[c]ounsel should have objected to the court’s order, demanded that the court comply
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with the controlling law, and insisted on a hearing to determine whether it was
necessary to use these excessive security measures throughout Davis’ trial.”
(Petition, ECF No. 133, PageID 11805, ¶ 568.) Petitioner claims that counsel’s
failure to do so was prejudicial: Petitioner was forced to wear a “Band-It”
underneath a sweater during the hot summer months, which drew attention to
himself and his attire, making conviction more likely. (Id. at PageID 11805-06, ¶
570.)
The Warden notes that both the Supreme Court of Ohio and Fifth District
considered and rejected this argument (Return of Writ, ECF No. 97, PageID 10904,
citing Davis I, 2008-Ohio-2, ¶ 343; Davis II, 2008-Ohio-6841, ¶¶ 35-42.) In Davis I,
the Supreme Court of Ohio simply rejected the claim on the ground that there were
no restraints visible to the jury. 2008-Ohio-2, ¶ 343. In Davis II, as discussed
above, the Fifth District noted with regret that the trial court failed to hold a
hearing, 2008-Ohio-6841, ¶ 42, but held that it did not amount to plain error
because “[t]he evidence against appellant was overwhelming.” Id. at ¶ 43. The
Warden argues that the decisions were proper, as “there is no clearly established
federal law, as determined by the Supreme Court, concerning the use of non-visible
restraints; therefore there is nothing for the Ohio courts to have contravened or
unreasonably appl[ied].” (Return of Writ, ECF No. 97, PageID 10904 (emphasis in
original).)
While Petitioner argues that the right to be free from restraint was
established prior to Deck (Traverse, ECF No. 104, PageID 11134, quoting Adams v.

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Bradshaw, 817 F.3d 284, 294-95 (6th Cir. 2016), amended and superseded on other
grounds at 826 F.3d 306 (6th Cir. 2016)), an analysis of the caselaw, as discussed
above, shows that the law is clearly established only as to visible restraints.
Adams, 826 F.3d at 314-15. Petitioner’s argument that the jury drew negative
inferences from him wearing a sweater during summer is speculative. As there is
no clearly established right to be free from non-visible restraints, counsel’s failure to
request a hearing as to the propriety of Petitioner wearing such a restraint did not
constitute ineffective assistance, and subclaim 18(A)(2) is dismissed.
3.

Subclaim 18(A)(3): Counsel Failed to Investigate, Prepare,
and Litigate Their Motion in Limine Regarding the
Admissibility of DNA Evidence and Instead Prejudiced
Davis by Stipulating to the Admission of the Evidence

Petitioner’s counsel initially filed a motion in limine contesting the
admissibility of DNA evidence offered by the State. (Petition, ECF No. 133, PageID
11806, ¶ 573.) However, counsel abandoned that motion and instead stipulated to
the admission of ten exhibits as to the validation studies done with respect to the
State’s DNA evidence. (Id., citing State Court Record, ECF No. 51-1, PageID 124647.) Petitioner argues that “[c]ounsel had an obligation to prepare for, and present
evidence to support their contention that the DNA evidence in this case was not
admissible. Instead, counsel stipulated every fact necessary for the Court to
overrule the Motion without an evidentiary hearing.” (Id. at PageID 11807, ¶ 574)
Because counsel did not challenge the qualifications of the State’s DNA experts or
the reliability of their methods, it was all the more important to attack the evidence
itself, especially since “DNA obtained from Y-STR testing is a recent
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development[.]” (Id. at PageID 11807-08, ¶¶ 575-76.) Petitioner argues that, but
for the stipulations, the evidence would have been excluded or at least one juror
would have had reasonable doubt as to guilt or punishment. (Id. at PageID 11808,
¶ 577.)
This subclaim was adjudicated by the Supreme Court of Ohio:
{¶ 344} 3. Stipulating to Admissibility of DNA Evidence. Davis
argues that his counsel were ineffective by stipulating to evidence
establishing the admissibility of DNA evidence. Before trial, the
prosecution and defense stipulated to the chain of custody, the
qualifications of the DNA experts, and the accreditation of the DNA
testing labs, and that DNA testing was conducted under generally
accepted means within the scientific community. The trial court
admitted the stipulation and ten validation studies to support the DNA
testing. The trial court then ruled that the DNA evidence was
admissible.
{¶ 345} Davis fails to specify any evidence that his counsel should have
presented in lieu of the stipulation that would have undermined the
chain of custody, the expert’s qualifications, or the admissibility of the
DNA test results. In State v. Pierce (1992), 64 Ohio St.3d 490, 497, 597
N.E.2d 107, we held that “the theory and procedures used in DNA typing
are generally accepted within the scientific community.” Moreover, “[n]o
pretrial evidentiary hearing is necessary to determine the reliability of
the DNA evidence.” Id. at 501, 597 N.E.2d 107. Thus, trial counsel’s
use of stipulations was a legitimate tactical decision that does not
constitute ineffective assistance of counsel. State v. Nicholas (1993), 66
Ohio St.3d 431, 437, 613 N.E.2d 225 (“the failure to challenge the
admissibility of [DNA] evidence cannot be considered ineffective
assistance of counsel”).
Davis I, 2008-Ohio-2.
While the state court decision was based on Ohio law, there is a presumption
that the federal constitutional claim was adjudicated on its merits. Further, the
Supreme Court of Ohio’s decision provided detailed reasoning as to why counsel’s
decisions about the DNA evidence fell within the wide range of professional conduct
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under prong one of Strickland. Thus, the presumption that Petitioner’s federal
claim was adjudicated cannot be rebutted. Yet, Petitioner does not address that
decision in his Traverse or anywhere else. As Petitioner has failed to explain why
the state court decision was contrary to clearly established federal law or an
unreasonable factual determination, that decision must be upheld, and subclaim
18(A)(3) is dismissed.
4.

Subclaim 18(A)(4): Counsel Failed to Move for a Change of
Venue

Petitioner argues that counsel should reasonably have known that Petitioner
could not get a fair trial in Licking County and moved for change of venue. (Petition,
ECF No. 133, PageID 11808-09, ¶¶ 579-82). According to the Warden:
Davis raised this claim in his direct appeal to the Ohio Supreme Court
as a part of his first proposition of law, and again as a part of his
fourteenth ground for relief in postconviction. Both the Ohio Supreme
Court and the Ohio Court of Appeals reasonably concluded counsel was
not ineffective in not seeking a change of venue.
(Return of Writ, ECF No. 97, PageID 10907-08, citing Davis I, 2008-Ohio-2, ¶ 49;
Davis II, 2008-Ohio-6841, ¶ 144.) Moreover, the Warden notes, this Court has
already found that not seeking change of venue was reasonable trial strategy
(Return of Writ, ECF No. 97, PageID 10908, quoting Opinion and Order, ECF No.
94, PageID 10673-74.) “Because this Court has already concluded that Davis failed
to satisfy Strickland and that the Ohio Supreme Court’s decision was reasonable,
Davis’ ineffective assistance of counsel subclaim regarding not seeking a change of
venue lacks merit and must be denied.” (Id.)
As this Court has already agreed that the underlying change of venue claim
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is not meritorious, it could not have been ineffective assistance to fail to move for
such a change. Accordingly, subclaim 18(A)(4) must be dismissed.
5.

Subclaims 18(A)(5-6): Counsel Failed to Challenge the
Venire to Ensure a Fair Cross-Section of the Community,
and Counsel’s Performance Fell Below the Prevailing
Professional Norms for Counsel in a Capital Case During
the Jury Selection Process

Petitioner argues that “[c]ounsel unreasonably failed to investigate or
challenge the venire to ensure a fair cross-section of the community . . . to Davis’
prejudice.” (Petition, ECF No. 133, PageID 11809, ¶ 584.) Because the Court ruled
supra that Petitioner’s fair cross-section claim was not meritorious, it could not
have been ineffective assistance to fail to challenge the venire. Thus, subclaim
18(A)(5) must be dismissed.
In addition to the foregoing, Petitioner claims that:
Counsel did not zealously demand the right to fully examine jurors on
their ability to fully consider a sentence of death, on their ability to
consider theories of defense and/or mitigation, or their ability to fully
consider a life sentence. Counsel failed to fully inquire into the
knowledge the prospective jurors had of the facts of the case. Counsel
failed to rehabilitate prospective jurors with scruples against the death
penalty.
(Petition, ECF No. 133, PageID 11810, ¶ 588.) Specifically, Petitioner asserts that
counsel not questioning “automatic death penalty” venire members about their
willingness to impose life sentence was unreasonable. (Id. at PageID 11810-11, ¶
589.) Absent such questioning, counsel could not reasonably make challenges for
cause or peremptory challenges. (Id. at PageID 11811, ¶ 591.)
Again, this Court ruled supra that the underlying claim as to improper jury
selection was not meritorious, and aside from conclusory statements, Petitioner
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does not articulate what more counsel should have done during jury selection.
Thus, Petitioner’s ineffective assistance claim is speculative, and Subclaim 18(A)(6)
must be dismissed.
6.

Subclaim 18(B)(1):
Counsel Entered into Excessive
Stipulations to Witnesses’ Qualifications, Evidence, and
Facts

Petitioner claims that counsel entered into inappropriate stipulations that
harmed his case, including Detective Elliget’s qualifications and facts that
supported the state’s theory of the case, specifically that Petitioner was employed by
Yellow Cab and that the victim was alive on the night in question. “Counsel
conducted no adversarial testing of any of this stipulated evidence, all of which was
critical to the state’s case.” (Petition, ECF No. 133, PageID 11812-13, ¶¶ 594-96.)
The Warden argues that, for three reasons, the claim is meritless. First, the
Supreme Court of Ohio rejected the claim, holding that none of the stipulated
testimony would have been different had witnesses been called at trial to testify to
those matters. (Return of Writ, ECF No. 97, PageID 10910-11, quoting Davis I,
2008-Ohio-2, ¶ 347.) Second, this is a state evidentiary issue, which is rarely
cognizable in habeas. (Id., PageID 10911, citing Estelle, 502 U.S. at 67.) Third, the
claim fails on its merits: “Davis does not articulate any support for his claim; rather
he implies that because counsel entered into stipulations counsel must have been
deficient and that he must have been prejudiced.” (Id.) The Warden argues that
the Yellow Cab records are consistent with witness testimony; as to the testimony
that the victim was alive on the night in question, there is no reason to think that
fact would have been in dispute. (Id. at PageID 10912, citing Trial Tr., ECF No. 52111

3, PageID 7340-42, 7363.) Further, as the Supreme Court of Ohio concluded,
entering into stipulations can be a reasonable trial strategy, “portray[ing] an air of
candor before the jury.” (Id., quoting Davis I, 2008-Ohio-2, ¶ 347.)
Petitioner argues that “[t]he Warden’s arguments miss the point of this
claim. . . . [C]ounsel enter[ed] into excessive stipulations without first thoroughly
investigating the subject of the stipulation.” (Traverse, ECF No. 104, PageID
11146.)
While the underlying question of whether a stipulation is appropriate
may involve state evidentiary rulings, the question of whether counsel’s
performance was deficient and whether that deficient performance
prejudiced Davis, thus denying him the effective assistance of counsel
guaranteed by the U.S. Constitution, is clearly a question of federal
constitutional law that is cognizable in habeas.
(Id.)
Rejecting this claim, the Supreme Court of Ohio and applied Strickland:
{¶ 346} 4. Stipulations. Davis also complains that his counsel were
ineffective by entering into ten joint stipulations. Davis claims that this
number of stipulations suggested to the jury that the defense agreed
with the state's theory of the case and that the verdict was a foregone
conclusion.
{¶ 347} Trial counsel’s decision to enter into these stipulations was a
“tactical decision” that falls “‘within the wide range of reasonable
professional assistance.’” State v. Green (1993), 66 Ohio St.3d 141, 148,
609 N.E.2d 1253, quoting Strickland v. Washington, 466 U.S. at 689,
104 S.Ct. 2052, 80 L.Ed.2d 674. Nothing in the record suggests that any
of the stipulated testimony would have been different had the witnesses
been called to the stand. Trial counsel’s stipulations allowed the defense
to portray an air of candor before the jury. They also prevented a stream
of additional prosecution witnesses from testifying in court. This claim
lacks merit.
Davis I, 2008-Ohio-2.
The Supreme Court of Ohio correctly explained the advantages that
112

Petitioner gained by counsel agreeing to stipulations, as the subject matter of the
stipulations would have been identical had they been introduced via live testimony
instead. Thus, any failure by counsel to sufficiently investigate the subject matter
of the stipulations before agreeing to them did not prejudice Petitioner. As
Petitioner does not cite any clearly established law that would suggest that the
state court’s application of Strickland was unreasonable, this Court may not disturb
the state court’s rejection of this subclaim, and it must be dismissed.
7.

Subclaim 18(B)(2):
Counsel permitted the state to
introduce an unidentified tape recording that was never
played in open court but was given to the jury during
deliberations

Petitioner claims that counsel acquiesced to the transcript and tapes of
interviews between officers and Petitioner being admitted for the jury’s
consideration in deliberations, even though they were never played in court, or even
identified or authenticated. (Petition, ECF No. 133, PageID 11813, ¶ 599.)
Petitioner argues this acquiescence amounted to a complete absence of counsel
during a critical stage of the capital trial, for which prejudice may be presumed.
(Id. at PageID 11814, ¶ 600, citing United States v. Cronic, 466 U.S. 648, 658-59
(1984).) Moreover, prejudice was apparent because the tapes, as unauthenticated
hearsay, were inadmissible. (Id. at PageID 11814-15, ¶¶ 601-02.)
The Warden argues that “[t]his Court, in determining that the underlying
claims contained in habeas grounds eleven and twelve were procedurally defaulted,
already found that counsel were not ineffective for stipulating to the admission of
the tape and transcript.” (Return of Writ, ECF No. 97, PageID 10913, citing
113

Opinion and Order, ECF No. 94, PageID 10713-21.) The Warden further asserts
that “[b]ecause this Court has already concluded that Davis failed to satisfy
Strickland and that the Ohio Supreme Court’s decision was reasonable, Davis’
ineffective assistance of counsel subclaim regarding the admission of the tape and
transcript into evidence lacks merit and must be denied.” (Return of Writ, ECF No.
97, PageID 10914, quoting Opinion and Order, ECF No. 94, PageID 10719-20.)
Because this Court already determined that “counsel’s decision to stipulate to
the admission of the tape and transcript was a tactical one borne of sufficient
investigation[,]” (Opinion and Order, ECF No. 94, PageID 10719), and Petitioner
has presented no evidence or argument that would cause the Court to depart from
its previous Opinion, this subclaim is dismissed.
8.

Subclaim 18(B)(3): Counsel Failed to Effectively Object to
the Exclusion of State’s Witness Meghan Clement’s
Written Analysis

As discussed supra, “[t]he trial court refused to admit Defense Exhibit L, an
Amended Certificate of Analysis prepared by the state’s expert Meghan Clement.
The court continued to refuse to admit the exhibit even after the jury requested it
during deliberations.” (Petition, ECF No. 133, PageID 11815, ¶ 607.) Petitioner
argues that “[t]o the extent that trial counsel had not researched the admissibility
of this exhibit, prepared argument to rebut the trial court’s reasoning, and more
zealously objected to its exclusion, counsel’s performance fell below the prevailing
professional norms for counsel representing capital defendants in 2005.” (Id. at
PageID 11816, ¶ 608.)
The Supreme Court of Ohio considered and rejected this claim, concluding
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that: “[t]he defense made no proffer. Thus, it is speculative whether further
questioning of Clement would have established the necessary foundation for
admitting defense exhibit L as a business record.” Davis I, 2008-Ohio-2, ¶ 175.
Indeed, Petitioner’s entire claim is speculative. Beyond conclusory
statements that counsel failed to research the claim of admissibility and a recitation
of ABA Guidelines as to the need to forcefully present claims (Traverse, ECF No.
104, PageID 11151, citing ABA Guidelines, 10.8.B.1, C.2), Petitioner fails to explain
what counsel should have done to attempt to get the report admitted. As the
Warden points out, counsel vigorously questioned Clement, used her report as
demonstrative evidence, and referenced it extensively in closing argument. (Return
of Writ, ECF No. 97, PageID 10914-15.) Given that counsel attempted to use
Exhibit L in every permissible way, counsel’s performance did not fall below the
objective reasonableness standard in Strickland. Thus, even if, as Petitioner
claims, the state court only adjudicated the state law claim (Traverse, ECF No. 104,
PageID 11150), the federal constitutional claim is unsuccessful and must be
dismissed.
9.

Subclaim 18(B)(4): Counsel Failed to Investigate, to
Present Evidence to Challenge the State’s Case, to Present
a Viable Defense, and to Defend the Case as Related to the
State’s DNA and Other Forensic Evidence and Witnesses

Petitioner argues that counsel failed to reasonably investigate the DNA and
forensic evidence, present evidence in support of the third-party culpability theory,
and rebut the DNA and forensic evidence presented by the State. Petitioner lists
fifteen areas in which counsel allegedly failed. They can be broadly grouped in two
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categories: failure to investigate and counter DNA and forensic evidence (areas one
through six); and failure to counter and undermine the prosecution’s evidence and
expert witnesses (areas seven through fifteen) (Petition, ECF No. 133, PageID
11817-19, ¶ 614 (citations omitted).)
As to areas one through six, Petitioner argues that counsel’s failure to
investigate and prepare left them unable to counter the false narrative that
Petitioner had to be guilty based on DNA evidence. (Traverse, ECF No. 104, PageID
11152, citing Wiggins v. Smith, 539 U.S. 510, 525 (2003); Strickland, 466 U.S. at
690-91; ABA Guidelines10.8, 10.11.) The State’s witness, Meghan Clement,
testified that Petitioner “matched” the DNA evidence, when in reality, he simply
could not be excluded as a match; counsel’s inadequate preparation meant that they
could not adequately counter the State’s framing of the case. (Traverse, ECF No.
104, PageID 11152-53.) Further, Petitioner claims that, contrary to the Warden’s
assertion and the Supreme Court of Ohio’s conclusion, the attorney and expert
timesheets show little, if any, preparation with respect to DNA strategy. (Id. at
PageID 11153-54, citing Davis I, 2008-Ohio-2, ¶ 342; State Court Record, ECF No.
51-2, PageID 1535-40, 1544, ECF No. 51-3, PageID 1559-60.)
As to the sufficiency of evidence that Petitioner offered in support of his
claim, Petitioner argues that he raised this claim in postconviction with substantial
evidence dehors the record, but the trial court denied discovery and an evidentiary
hearing, a decision the Fifth District affirmed. (Traverse, ECF No. 104, PageID
11155, citing Davis II, 2008-Ohio-6841, ¶¶ 153-67; State Court Record, ECF No. 51-

116

6, PageID 2895-96, ECF No. 51-7, PageID 3069-95, 3169-75, 3188-90.) In sum,
Petitioner claims:
Counsel failed to thoroughly investigate and present any defense to the
State’s DNA evidence, thereby prejudicing Davis by permitting the
State to inaccurately describe a “match” between DNA evidence found
at the scene and Roland Davis. Absent the presentation of this
misleading “match” evidence, there is a reasonable probability that,
whether the errors are considered individually or cumulatively, at least
one juror would have entertained a reasonable doubt as to Davis’ guilt
or the appropriateness of a sentence of death.
(Id. at PageID 11156.)
The Warden rejoins that Petitioner’s subclaim is meritless. Specifically, the
Warden asserts that Petitioner’s allegation that counsel failed to reasonably
investigate the case before deciding on a trial strategy was belied by the record,
which “reflects that trial counsel conducted a reasonable investigation; they
retained a DNA expert and vigorously contested the state’s evidence by way of
cross-examination.” (Return of Writ, ECF No. 97, PageID 10893.) Counsel’s “billing
records filed with the trial court following Davis’ jury trial reveal numerous entries
indicating investigation and preparation with regards to the DNA evidence far in
advance of the beginning of trial which commenced on June 27, 2005.” (Id at
PageID 10894.) As the Supreme Court of Ohio noted, a DNA expert was requested
and appointed. (Id. at PageID 10894-95, citing Davis I, 2008-Ohio-2, ¶ 342.)
Further, the Warden argues, reliance on cross-examination to rebut state expert
testimony was a reasonable tactical decision because a DNA examination may not
have been favorable. (Id. at PageID 10895, citing Davis II, 2008-Ohio-6841, ¶ 155.)
Finally, the only evidence presented by Petitioner to the state court was a hearsay
117

affidavit by his attorney during postconviction proceedings, which the Fifth District
reasonably discounted because the attorney was neither a biochemist nor a
statistician. (Id., citing Davis II, 2008-Ohio-6841, ¶¶ 155-66.)
As a preliminary matter, the Court finds that the Warden overstates the
scope of the Supreme Court of Ohio’s decision with respect to alleged omissions one
through six, failure to investigate DNA evidence and consult with an expert.
(Return of Writ, ECF No. 97, PageID 10894-95.) Far from being a comprehensive
refutation of the claim, the opinion was limited to one paragraph merely stating
that “defense counsel did request funds for a private investigator, a mitigation
specialist, a DNA expert, and a defense psychologist. The trial court granted each
of these requests.” Davis I, 2008-Ohio-2, ¶ 342. Yet, even under a de novo
standard, Petitioner’s claim fails. The record does reflect counsel requesting and
retaining an expert and investigating and preparing a defense for the DNA and
other evidence in the case. (State Court Record, ECF No. 51-1, PageID 1152-56;
ECF No. 51-2, PageID 1543-44.) Petitioner does not state what additional actions
counsel should have taken to prepare and defend the case adequately, aside from a
barebones allegation that the record shows evidence of inadequate preparation. Nor
does he cite any caselaw suggesting that counsel’s preparations fell below prevailing
norms. Accordingly, this portion of the subclaim must be dismissed.
As to alleged omissions seven through fifteen, failure to address expert
evidence and testimony, the Fifth District adjudicated the merits, including of
Petitioner’s federal constitutional claim, in an extensively reasoned decision:

118

{¶ 153} In his sixteenth, and final, ground for relief, the appellant
claimed that his convictions and sentences are void or voidable because
his trial counsel failed to adequately address the state’s DNA evidence.
{¶ 154} In addressing this conflicting testimony from the post-conviction
relief proceeding, it is well-established that “the weight to be given the
evidence and the credibility of the witnesses are primarily for the trier
of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212,
39 Ohio Op.2d 366, paragraph one of the syllabus. As this court has
recognized, “[a]n appellate court abuses its discretion when it
substitutes its judgment for that of the trier of fact as to the credibility
of witnesses.” State v. Kerr (Nov. 1, 1996), Montgomery App. No. 15648,
unreported, citing State v. Walker (1978), 55 Ohio St.2d 208, 378 N.E.2d
1049, 9 Ohio Op.3d 152. Thus, in the instant case, the trial court had
the ultimate responsibility of determining the weight of the evidence
and the credibility of the affidavits.
{¶ 155} In his direct appeal, the Ohio Supreme Court noted, “defense
counsel did request funds for a private investigator, a mitigation
specialist, a DNA expert, and a defense psychologist. The trial court
granted each of these requests.” 2008-Ohio-2 at ¶ 342, 116 Ohio St.3d
404, 880 N.E.2d 31. “Thus, the defense counsel's decision to rely on
cross-examination should be viewed as a legitimate ‘tactical decision’
particularly since the results of a DNA examination may not necessarily
have proven favorable for the defense. See State v. Watson (1991), 61
Ohio St.3d 1, 13, 572 N.E.2d 97, 108.” State v. Hartman, 93 Ohio St.3d
274, 299, 754 N.E.2d 1150, 1177, 2001-Ohio-1580.
{¶ 156} The affidavit submitted is that of Gregory W. Meyers, an
attorney with the Ohio Public Defender Office. The Ohio Public
Defender Office is representing appellant on the instant appeal.
Attorney Meyers is neither a biochemist nor a statistician. Indeed,
Attorney Meyers notes that he “consulted” with three such experts in
preparation for rendering his opinion, however, the opinions expressed
in the affidavit are not those of the expert witnesses. (Exhibit X at ¶ 9).
Appellant presented no affidavit from an expert in the field of DNA to
support any of the various theories or “opinions” in Attorney Meyers’
affidavit.
{¶ 157} To the extent that the trial court could find that this affidavit
contains or relies upon hearsay, the trial court could give it little or no
weight. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d
905; State v. Elmore, 5th Dist. No.2005-CA32, 2005-Ohio-5740 at ¶ 109.
{¶ 158} As the affidavit does not present evidence demonstrating the
119

probable testimony of any expert in the field of DNA testing, it is entitled
to little or no weight. Nothing in the affidavit suggests that the experts
for the state would have answered any question in a different manner if
cross-examined in the method suggest by Attorney Meyers. In fact the
witness was quite unequivocal in her testimony that based on her
training and experience only identical twins have the exact same DNA.
(7T. at 1712-1715; 1757; 1762-1763).
{¶ 159} In the case at bar Ramen Tejwani who conducted the DNA
analysis for the Columbus Police crime lab has a Master degree in
biochemistry and a Ph. D. in physiological chemistry. (6T. at 1659). He
has been qualified as an expert witness in 35 to 40 cases. (Id. at 1660).
Meghan Clement the technical director for forensic identity testing at
Laboratory Corporation of America Holdings, Inc. (“LabCorp”) has
testified in approximately 285 cases in at least 28 states concerning
DNA analysis. (7T. at 1700). Attorney Meyers, on the other hand, does
not hold any degrees in science, or mathematics nor has he ever been
qualified as an expert witness in the field of DNA analysis. As Attorney
Meyers himself notes “To be qualified to render an expert opinion in the
field of DNA, courts uniformly require the witness to have credentials
in the area of science involving biochemistry.” (Exhibit X at ¶ 15).
{¶ 160} Appellant did not proffer or present anything of evidentiary
quality to challenge the reliability of the FBI database or the method of
arriving at the statistical conclusion. See, e.g. State v. Isley (1997), 262
Kan. 281, 936 P.2d 275; Watts v. State (Miss.1999), 733 So.2d 214 at ¶
28-31. Nothing in his affidavit provides any foundation or basis for the
premises advanced. In light of the qualifications of the state’s expert
witnesses and the lack of any DNA expert supporting or testifying to
support the hypotheses set forth by Attorney Meyers, the trial court
could give the affidavit little or no weight.
{¶ 161} Additionally, some courts have found that, “Attorney’s affidavits
explaining prevailing norms do not constitute evidence dehors the record
and are akin to a notarized legal argument.” State v. Hill (Nov. 21,
1997), Hamilton App. No. C961052.
{¶ 162} It would seem that in most cases a more objective standard than
simply a countervailing opinion of another attorney is a more
appropriate standard by which to determine whether counsel’s
performance fell “below an objective standard of reasonableness,”
“under prevailing professional norms.” Strickland v. Washington, 466
U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 163} The United States Supreme Court has suggested that the ABA
120

Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases provide the “guiding rules and standards to be used in
defining the ‘prevailing professional norms’ in ineffective assistance
cases.” Rompilla v. Beard (2005), 545 U.S. 374, 387, 125 S.Ct. 2456, 162
L.Ed.2d 360; Wiggins v. Smith (2003), 539 U.S. 510, 524-525, 123 S.Ct.
2527, 2536-2537, 156 L.Ed.2d 471; Van Hook v. Anderson (6th Cir.2008),
535 F.3d 458, 462.
{¶ 164} Nothing in Attorney Meyers’ affidavit suggests appellant’s trial
counsel violated any objectively established standards or guidelines,
such as the ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases.
{¶ 165} Further, nothing in the affidavit suggests that Roland Davis can
be conclusively excluded as a possible source of the DNA found inside
the victim’s apartment. In the same vein nothing within the affidavit
submitted by Attorney Meyers suggests that it can be conclusively
established that the DNA found inside the victim’s apartment matches
the DNA of appellant’s deceased brother and no one else.
{¶ 166} Accordingly, we find that the petition, the supporting affidavits,
the documentary evidence, the files, and the records do not demonstrate
that appellant set forth sufficient operative facts to establish
substantive grounds for relief. Calhoun, 86 Ohio St.3d at paragraph two
of the syllabus; see R.C. 2953.21(C).
Davis II, 2008-Ohio-6841.
The only evidence put forth in support by Petitioner was the affidavit of
postconviction counsel Gregory Meyers, to which the state courts reasonably
accorded little weight. Davis II, 2008-Ohio-6841, ¶ 160. Further, to the extent that
the ABA Guidelines constitute professional norms, the Fifth District reasonably
found that trial counsel’s performance was not in violation of those Guidelines. Id.
at ¶¶ 163-64 (citations omitted). Petitioner has cited no caselaw as to why the Fifth
District’s decision was an unreasonable application of clearly established law.
Thus, it will not be disturbed, and the subclaim must be dismissed in its entirety.
10.

Subclaim 18(B)(5):

Counsel Failed to Investigate and

121

Failed to Present a Viable Defense to the Charges Davis
Faced
Petitioner claims that “[c]ounsel failed to offer viable defenses to the charges
Davis faced, including a defense to the state’s circumstantial evidence, or an alibi
defense.” (Petition, ECF No. 133, PageID 11822, ¶ 623, citing State Court Record,
ECF No. 51-6, PageID 2907, 2909, 2951, 2955, 2978, ECF No. 51-7, PageID 3020,
3066.) Specifically, Petitioner argues that counsel failed to challenge witness
identifications of Petitioner that, if disproven, would have provided Petitioner with
an alibi. (Id. at PageID 11822-23, ¶¶ 625-27.) “Counsel also failed to thoroughly
and reasonably investigate DNA or other forensic evidence and any forensic expert
witnesses, before advancing third-party-culpability as a defense even though they
had not consulted or employed an independent DNA or other forensic expert to
overcome the state’s evidence.” (Id. at PageID 11823, ¶ 631.) Finally, “[c]ounsel
failed to investigate and consult forensic experts who could assist during trial in
such matters as effectively cross examining the state’s forensic evidence witnesses,
including regarding contextual bias, or countering the state’s forensic expert
testimony with their own expert testimony.” (Id. at PageID 11824, ¶ 635.)
The Fifth District rejected this claim:
{¶ 111} In the eleventh ground for relief the petition alleged that trial
counsel failed to investigate the case and presented “no defense” to the
charges in this case. We disagree.
{¶ 112} Appellant first contends that his trial counsel were ineffective
for failing to present evidence that he was a “drug mule” to explain how
he came into a large sum of money in July 2000.
{¶ 113} This evidence was already before the jury as part of his
statement to Newark Police Detectives. (See, State’s Exhibits Nos. 12122

A.1, 12-A.2 and the transcript thereof, Exhibit 12-B, at 73-75.) See, also,
State v. Davis, supra, at ¶ 24; 29. Accordingly, we find this matter is res
judicata. State v. Johnson, supra, 112 Ohio St.3d at 229, 2006-Ohio6404 at ¶ 136-138, 858 N.E.2d at 1167-78.
{¶ 114} Appellant next argues that there was some form of evidence that
would support a conclusion that Teri Pax[s]on and Susan Fowls were
mistaken as to the appellant being the person in their restaurant
engaging them in conversation about a reward poster regarding Mrs.
Sheeler’s murder. See, Davis, supra, 116 Ohio St.3d 404, 880 N.E.2d 31,
2008-Ohio-2 at ¶ 32-33.
{¶ 115} The only “evidence” presented is the appellant’s unsupported
claim that had Ms. Pax[s]on been asked to obtain the repair bill for an
air conditioner service call, it would have placed this conversation at a
time when the appellant claims he was in Florida. Further, appellant
contends that neither witness mentioned his significant speech
impediment.
{¶ 116} As a “self-serving” affidavit the trial court could give it little or
no weight. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d
905; State v. Kapper (1983), 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (letter
or affidavit from the court, prosecutors, or defense counsel alleging a
defect in the plea process might be sufficient to warrant a hearing,
although defendant's own affidavit alleging same defect would not,
because the former are not self-serving declarations).
{¶ 117} Even if we were to consider the affidavit we would find that it is
only marginally significant. “[E]vidence presented outside the record
must meet some threshold standard of cogency; otherwise it would be
too easy to defeat the holding of Perry by simply attaching as exhibits
evidence which is only marginally significant and does not advance the
petitioner's claim beyond mere hypothesis and a desire for further
discovery.” State v. Coleman (March 17, 1993), 1st Dist. No. C-900811,
at 7; State v. Combs (1994), 100 Ohio App.3d 90, 98, 653 N.E.2d 205,
209.
{¶ 118} Nothing prevented appellant from presenting any alibi evidence
during his trial. It does not appear that appellant’s speech pattern was
inquired into by the parties of Ms. Pax[s]on or Ms. Fowls, or any other
non-mitigation related witness. This may very well have been a tactical
decision by appellant’s trial counsel. Had the witnesses testified to the
speech impediment it would [have] strengthened the witnesses’
identification of appellant. “When counsel focuses on some issues to the
exclusion of others, there is a strong presumption that he did so for
123

tactical reasons rather than through sheer neglect. See Strickland, 466
U.S., at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (counsel is ‘strongly
presumed’ to make decisions in the exercise of professional judgment).
Moreover, even if an omission is inadvertent, relief is not automatic.
The Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight. See Bell, supra, at 702,
535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914; Kimmelman v. Morrison,
477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland,
supra, at 689, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; United
States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984)”. Yarborough v. Gentry (2003), 540 U.S. 1, 8, 124 S.Ct. 1, 6, 157
L.Ed.2d 1. The Ohio Supreme Court has stated “[w]e will ordinarily
refrain from second-guessing strategic decisions counsel make at trial,
even where counsel’s trial strategy was questionable. State v. Clayton
(1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 402 N.E.2d 1189.” State v.
Myers (2002), 97 Ohio St.3d 335, 362, 780 N.E.2d 186, 217.
{¶ 119} Appellant has not presented any evidence that such a repair bill
exits; nor does he support his claim with an affidavit from Ms. Pax[s]on,
Ms. Fowls or the person who repaired the air conditioner. No business
records were presented to verify said repair. Appellant does not indicate
on which dates he claims to have been in Florida, and why this
information was not presented at trial.
{¶ 120} Accordingly, appellant failed in his initial burden to submit
evidentiary material containing sufficient operative facts that
demonstrate a substantial violation of any of defense counsel’s essential
duties to his client and prejudice arising from counsel’s ineffectiveness.
Calhoun, 86 Ohio St.3d at 289, 714 N.E.2d 905; State v. Jackson (1980),
64 Ohio St.2d 107, 413 N.E.2d 819, syllabus; see, also Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,
693; State v. Phillips, supra.
{¶ 121} Appellant has further failed to demonstrate that there exists a
reasonable probability that, were it not for counsel’s errors, the result of
the trial would have been different.
Davis II, 2008-Ohio-6841.
Despite this extensive rejection of his federal constitutional claim, in his
Traverse, Petitioner does little more than reiterate the arguments made in his
Petition:

124

Counsel failed to thoroughly investigate and present several available
witnesses and defenses. Whether the errors of counsel are considered
individually or cumulatively, it is clear that had counsel presented the
several witnesses and defenses at trial, there is a reasonable probability
that at least one juror would have entertained a reasonable doubt as to
Davis’ guilt or to death being the appropriate sentence.
(ECF No. 104, PageID 11160.) These conclusory statements do not explain why the
Fifth District’s decision was wrong, much less why it was an unreasonable
application of clearly established law. Consequently, that decision may not be
disturbed, and the subclaim must be dismissed.
11.

Subclaim 18(B)(6): Counsel Failed to Investigate and
Subsequently Call Damien Turner to Testify

Counsel did not call as a witness Damien Turner, who Petitioner argues
would have testified that Detective Vanoy offered to make a charge against Richard
Hummel “go away” if Hummel, the State’s key witness, testified against Petitioner.
Petitioner claims that this would have undercut Hummel’s credibility and
reputation for truthfulness, as Hummel had testified that he had received no
consideration in exchange for his testimony. (Petition, ECF No. 133, PageID 11825,
¶¶ 641-44.) “Davis was prejudiced by trial counsel’s unreasonable failure to
investigate thoroughly and to call Turner as a witness because counsel’s failures
deprived Davis of the opportunity to challenge Hummel’s character for
truthfulness.” (Id. at PageID 11826, ¶ 647.)
The Fifth District rejected this claim, concluding that the decision not to call
Turner was within the purview of sound trial strategy:
{¶ 146} In his fifteenth ground for relief, the appellant claimed that his
convictions and sentences are void or voidable because trial counsel
failed to call Damien Turner as a defense witness.
125

{¶ 147} An attorney’s selection of witnesses to call at trial falls within
the purview of trial tactics and generally will not constitute ineffective
assistance of counsel. See, e.g., State v. Coulter (1992), 75 Ohio App.3d
219, 598 N.E.2d 1324.
{¶ 148} “When counsel focuses on some issues to the exclusion of others,
there is a strong presumption that he did so for tactical reasons rather
than through sheer neglect. See Strickland, 466 U.S., at 690, 104 S.Ct.
2052, 80 L.Ed.2d 674 (counsel is ‘strongly presumed’ to make decisions
in the exercise of professional judgment). Moreover, even if an omission
is inadvertent, relief is not automatic.
The Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged with the
benefit of hindsight. See Bell, supra, at 702, 535 U.S. 685, 122 S.Ct.
1843, 152 L.Ed.2d 914; Kimmelman v. Morrison, 477 U.S. 365, 382, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, supra, at 689, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674; United States v. Cronic, 466 U.S.
648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)”. Yarborough v. Gentry
(2003), 540 U.S. 1, 8, 124 S.Ct. 1, 6, 157 L.Ed.2d 1.
{¶ 149} The Ohio Supreme Court has stated “[w]e will ordinarily refrain
from second-guessing strategic decisions counsel make at trial, even
where counsel’s trial strategy was questionable. State v. Clayton (1980),
62 Ohio St.2d 45, 49, 16 O.O.3d 35, 402 N.E.2d 1189.” State v. Myers
(2002), 97 Ohio St.3d 335, 362, 780 N.E.2d 186, 217.
{¶ 150} Only appellant’s self-serving affidavit purporting to relate a
conversation he had with Mr. Turner while in the Licking County jail
was submitted in support of this claim for relief. As this affidavit
contains or relies upon hearsay, the trial court could give it little or no
weight. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d
905; State v. Elmore, 5th Dist. No.2005-CA-32, 2005-Ohio-5740 at ¶ 109.
Further, the evidence against appellant was overwhelming. See, State
v. Davis, supra, 116 Ohio St.3d 404, 880 N.E.2d 31, 2008-Ohio-2 at ¶
123.
{¶ 151} The petition, the supporting affidavits, the documentary
evidence, the files, and the records do not demonstrate that appellant
set forth sufficient operative facts to establish substantive grounds for
relief.
Davis II, 2008-Ohio-6841.
The Warden argues that by “[r]efusing to second-guess counsel’s decision,
especially based only on Davis’ self-serving affidavit which amounted to hearsay,
126

the state court reasonably applied Strickland. Davis does not contend or prove
otherwise.” (Return of Writ, ECF No. 97, PageID 10918, citing Davis II, 2008-Ohio6841, ¶ 150.)
Indeed, Petitioner’s Traverse contains only a conclusory recitation of the
allegations in his Petition and a request for an evidentiary hearing (Traverse, ECF
No. 104, PageID 11162-63), the latter of which is precluded under Pinholster. He
has failed to rebut the presumption that not calling Turner as a witness was a
sound, tactical decision. Further, he has failed to show prejudice from Turner not
testifying. Petitioner has fallen well short of showing why the appellate court’s
well-reasoned opinion was contrary to clearly established federal law or an
unreasonable factual determination. Consequently, the subclaim must be
dismissed.
12.

Subclaim 18(B)(7): Counsel Failed to Object to Numerous
Instances of Prosecutorial Misconduct at Both the Trial
and Penalty Phases

Petitioner argues that “[t]he prosecutor here engaged in what can only be
described as deliberate and repeated misconduct. To the extent that counsel failed
to object and failed to request curative instructions, counsel’s performance fell far
below prevailing professional norms.” (Petition, ECF No. 133, PageID 11827, ¶
651.) Petitioner’s claims arise from the instances of prosecutorial misconduct
outlined in Claims Thirteen and Sixteen. Petitioner argues that “[t]o the extent
that counsel failed to object or request curative instructions for this prosecutorial
misconduct as outlined in the Thirteenth and Nineteenth [sic] Grounds for Relief[,]
Davis was deprived of the effective assistance of counsel.” (Id. at PageID 11826-27
127

n.1.)
The Warden notes that virtually the entire Thirteenth and Sixteenth Claims
were found to be procedurally defaulted, except for instances in which counsel
objected. “Within the analysis for those defaults, the Court examined Davis’
allegations of ineffective assistance of counsel and found them lacking.” (Return of
Writ, ECF No. 97, PageID 10919, quoting Opinion and Order, ECF No. 94, PageID
10726, 10733-34.) Indeed, this Court has already “note[d] as a preliminary matter
that the Ohio Supreme Court reasonably concluded that many of the challenged
instances were not improper. Defense counsel’s failure to object to those challenged
instances was neither unreasonabl[y] deficient nor prejudicial.” (Opinion and
Order, ECF No. 94, PageID 10734, citing Davis I, 2008-Ohio-2, ¶¶ 227-337.)
In the Traverse, Petitioner concedes that:
This Court previously addressed whether counsel was ineffective in
failing to object to the numerous instances of prosecutorial misconduct
in its cause and prejudice analysis on the underlying claims and did
conclude that counsel’s performance was not deficient and was not
prejudicial to Davis. Based on this Court’s prior conclusion, Davis will
not address this subclaim any further in this pleading.
(ECF No. 104, PageID 11165, citing Opinion and Order, ECF No. 94, PageID 1073337.) In light of this concession, and the Court seeing no reason to depart from its
earlier ruling, this subclaim is dismissed.
13.

Subclaim 18(B)(8): Counsel Failed to Object to Detective
Vanoy’s Commentary About his Interrogation and his
Opinion Testimony

Petitioner claims that counsel failed to object to the improper opinion
testimony of Detective Vanoy (Petition, ECF No. 133, PageID 11828, ¶ 654.) In the
128

Traverse, Petitioner concedes that:
[T]his Court previously concluded in a cause and prejudice analysis that
the state court’s conclusions that counsel’s performance in failing to
object had not been deficient and that Davis had not been prejudiced
thereby were not unreasonable. Based on the previous conclusion of this
Court, Davis shall not address this subclaim further in this pleading.
(Traverse, ECF No. 104, PageID 11165, citing Opinion and Order, ECF No. 94,
PageID 10692.) In light of this concession, Subclaim 18(B)(8) must be dismissed.
14.

Subclaim 18(B)(9): Counsel Failed to Object to Improper
Jury Instructions

Petitioner argues that:
The trial court in its trial phase instructions failed to give an instruction
forbidding the jury from stacking inferences; failed to instruct the jurors
to find unanimously that Davis either committed kidnapping,
aggravated robbery or aggravated burglary; gave incorrect purpose and
causation instructions; and gave an instruction of “beyond a reasonable
doubt” that relieved the state of its burden of proof. . . . Counsel failed
to object to these faulty instructions.
(Petition, ECF No. 133, PageID 11829, ¶¶ 658-59.)
In the Traverse, Petitioner withdraws the “stacking inferences” claim, and
concedes that the rest of the claim has been dismissed by this Court. (ECF No. 104,
PageID 11166, citing Opinion and Order, ECF No. 94, PageID 10711-13.) In light of
the withdrawal and concession, the Court dismisses this subclaim.
15.

Subclaims 18(C)(1-2):
Counsel Failed to Investigate,
Develop, Present, and Explain Compelling Mitigating
Evidence at the Penalty Phase, and Counsel Failed to
Investigate and Present Compelling Mitigation Evidence
from a Mental Health Expert

Petitioner claims that counsel failed to investigate and develop mitigation
evidence or a mitigation phase theory and strategy. (Petition, ECF No. 133, PageID

129

11830, ¶¶ 664-66.) He argues that counsel had a duty to humanize Davis and try to
explain individual psychological and mental factors that may have impacted his
involvement. (Id. at ¶¶ 667-68, citing Lockett v. Ohio, 438 U.S. 586, 602-05 (1978);
Woodson v. North Carolina, 428 U.S. 280, 304 (1976); Johnson v. Bagley, 544 F.3d
592, 600-01 (6th Cir. 2008).)
Petitioner argues that, had counsel bothered to investigate, there were a
number of witnesses who could have presented compelling mitigation evidence
regarding his history, dating back to childhood, of abuse, head trauma, and speech
and hearing difficulties. (Petition, ECF No. 133, PageID 11831-32, ¶ 671.) Yet, he
claims, counsel failed to investigate any of these “red flags,” falling below the
standard of competent representation. (Id. at PageID 11832, ¶ 674, citing Porter v.
McCollum, 558 U.S. 30, 39-40 (2009); Wiggins v. Smith, 539 U.S. 510, 524-26; 53436 (2003).)
The Warden contends that this subclaim—that counsel should have
developed and presented evidence on the above topics in the penalty phase—is
directly at odds with Petitioner’s claim of innocence and would have required
Petitioner to pivot from “he did not kill Sheeler” in the guilt phase to “he is sorry he
killed Sheeler” in the penalty phase. Such a strategy is not likely to be successful,
so Petitioner was not prejudiced by any failure to develop and present such evidence
(Return of Writ, ECF No. 97, PageID 10898, citing Florida v. Nixon, 543 U.S. 175,
191-92 (2004).)
Petitioner further claims that counsel was ineffective in failing to retain a

130

mental health expert, despite having funds authorized for one. (Petition, ECF No.
133, PageID 11833, ¶ 679.) “Testimony from a competent forensic psychologist or
other mental health expert . . . would have provided powerful mitigating evidence
contrary to the prosecutor’s repeated assertions that Davis’ background had no
mitigation value to this offense because it did not explain or excuse the crime.” (Id.
at PageID 11834, ¶¶ 682-83.)
Given the importance of Davis’ mental health and psychosocial
background to understanding the crime and to accurately painting a
compelling mitigation picture, which counsel failed to investigate and
present for lack of employing a mental health expert, there is a
reasonable probability that a competent attorney aware of the evidence
would have introduced it at sentencing.
(Id. at PageID 11843, ¶ 723.)
Relatedly, Petitioner argues that counsel failed to develop and present
evidence that would have humanized Petitioner; rather, he merely stipulated to
past records showing his troubled past and borderline intellectual functioning. (Id.
at PageID 11836-37, ¶¶ 694, 696-97, citing State Court Record, ECF No. 51-13,
PageID 5942, 5956, 5960-61; Trial Tr., ECF No. 52-5, PageID 8431-34.) Petitioner
alleges that counsel failed to “explain the content or meaning of these records in
closing argument. Without a mental health expert or counsel explaining the
contents of these records as well as the significance of the record, or the events
documented in the records, this critical evidence was meaningless to the jury.” (Id.
at PageID 11838, ¶ 700, citing Johnson, 544 F.3d at 600-01.) Consequently, the
jury was unable to fully consider and comprehend the evidence that would have led
at least one member to impose a sentence less than death. (Id. at PageID 11838-39,
131

¶¶ 705-06, 709.)
The Supreme Court of Ohio examined and rejected the ineffective assistance
claims as to investigation, development, and presentation of mitigation evidence:
{¶ 348} 5. Failure to investigate and prepare for mitigation. Davis
argues that his counsel were ineffective during the penalty phase by
failing to fully investigate, prepare, and present mitigating evidence.
{¶ 349} The presentation of mitigating evidence is a matter of trial
strategy. State v. Keith, 79 Ohio St.3d at 530, 684 N.E.2d 47. “Moreover,
‘strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.’” State v.
Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189,
quoting Wiggins v. Smith (2003), 539 U.S. 510, 521, 123 S.Ct. 2527, 156
L.Ed.2d 471.
{¶ 350} First, Davis argues that his counsel were ineffective by failing to
thoroughly investigate his “psychosocial history” and failing to present
the testimony of a psychologist during mitigation. The defense hired Dr.
Dennis Eshbaugh, a psychologist, several weeks before the penalty
phase to assist in preparing mitigation. The record does not show why
Dr. Eshbaugh was not called to testify or what testimony he would have
provided. Thus, nothing in the record establishes that counsel were
deficient by not calling Dr. Eshbaugh or that, if called, he would have
provided relevant mitigating evidence. See State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 118.
{¶ 351} Second, Davis contends that his counsel were ineffective by
failing to present a mitigation theme or strategy. Trial counsel’s
strategy was to convince the jury that Davis should receive a life
sentence by showing that he was raised in an abusive home, suffered
hearing problems while growing up that hindered his development, and
had a low intelligence.
{¶ 352} In support of this strategy, trial counsel presented the testimony
of Davis’s mother, brother, aunt, and two lifelong family friends. The
witnesses testified that Davis had an alcoholic father who frequently
beat his mother and abused other family members. Davis's mother and
brother testified about his ear problems, and his school records showed
that he was a poor student with a low IQ. The defense theory, although
unsuccessful, was coherent and fit into the testimony. Counsel made a
strategic trial decision in presenting the defense mitigation theory and
were not ineffective. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio132

18, 840 N.E.2d 151, ¶ 233.
{¶ 353} Third, Davis argues that his counsel were deficient by failing to
present testimony about the significance of evidence that he was
abandoned at a children's home and suffered from hearing problems
when he was young.
{¶ 354} “The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of
counsel.” State v. Keith, 79 Ohio St.3d at 536, 684 N.E.2d 47. “‘Attorneys
need not pursue every conceivable avenue; they are entitled to be
selective.’” State v. Murphy, 91 Ohio St.3d at 542, 747 N.E.2d 765,
quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047, 1049.
{¶ 355} Rose Weimer, the defendant's mother, testified that she left
home for three months to escape her husband's abuse. Weimer returned
home after learning that her husband had placed their children in a
children’s home. Weimer then “got all of them back.” She also testified
about Davis’s hearing problems, which his father ignored. Thus, the
jury heard testimony that Davis spent time at a children's home and
suffered from hearing problems when he was young. It is highly
speculative whether additional noncumulative testimony could have
been provided about these matters.
{¶ 356} Finally, Davis asserts that counsel were deficient by failing to
stipulate to records without calling a witness to explain their
significance to the jury. Counsel presented records during the penalty
phase including: (1) Davis's medical records from Children's Hospital,
(2) a statement that Davis had not been disciplined while in pretrial
confinement, and (3) his education records. Counsel made a legitimate
tactical choice in introducing Davis’s records without highlighting
specific information for the jury's consideration. These records were not
voluminous, and the jury could readily review this information during
their deliberations. See State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio2221, 767 N.E.2d 678, ¶ 136.
Davis I, 2008-Ohio-2.
Petitioner’s claims fared no better in the Fifth District:
{¶ 59} In his fourth ground for relief the appellant claimed that his
convictions and sentences were void or voidable because he was denied
the effective assistance of counsel at the mitigation phase of the trial by
his trial attorneys not adequately investigating and presenting
mitigation evidence.
133

{¶ 60} A claim which attacked trial counsels’ decisions regarding
mitigation witnesses was actually presented on direct appeal. Davis,
116 Ohio St.3d 404 at ¶ 348-353, 880 N.E.2d 31. The material presented
with the petition, although perhaps from new sources, and therefore not
in the original trial record, was merely cumulative that which was
presented at trial. Evidence that is merely cumulative to that which
was presented at trial does not overcome res judicata. Elmore, at ¶ 36.
Although the trial court did not appear to directly deny this ground on
the basis of res judicata, in light of the decision in Davis, it certainly
could have. As noted below, the materials presented with the petition
were largely cumulative to what was offered at trial.
{¶ 61} The Supreme Court of Ohio noted, “trial counsel presented the
testimony of Davis’s mother, brother, aunt, and two lifelong family
friends. The witnesses testified that Davis had an alcoholic father who
frequently beat his mother and abused other family members. Davis's
mother and brother testified about his ear problems, and his school
records showed that he was a poor student with a low IQ ... Rose
Weimer, the defendant’s mother, testified that she left home for three
months to escape her husband's abuse. Weimer returned home after
learning that her husband had placed their children in a children's
home. Weimer then “got all of them back.” She also testified about
Davis’s hearing problems, which his father ignored. Thus, the jury
heard testimony that Davis spent time at a children's home and suffered
from hearing problems when he was young. It is highly speculative
whether additional noncumulative testimony could have been provided
about these matters.” Davis, supra at ¶ 352; 355.
{¶ 62} “The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of
counsel.” State v. Keith, 79 Ohio St.3d at 536, 684 N.E.2d 47.
“‘Attorneys need not pursue every conceivable avenue; they are entitled
to be selective.’” State v. Murphy, 91 Ohio St.3d at 542, 747 N.E.2d 765,
quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047, 1049.
Davis, supra at ¶ 354.
{¶ 63} Further, decisions regarding what witnesses to call fall within
trial strategy and, absent prejudice, generally will not constitute
ineffective assistance of counsel. State v. Hessler, Franklin App. No.
01AP-1011, 2002-Ohio-3321. To demonstrate prejudice, a petitioner
must show not only that there was mitigating evidence counsel failed to
present, but, also, “there is a reasonable probability that the evidence
would have swayed the jury to impose a life sentence.” Keith at 536, 684
N.E.2d 47. We find no such evidence here.
134

{¶ 64} In support of his amended PCR petition appellant presented
affidavits of an aunt, his mother, his sister and his wife. Appellant’s
mother and aunt both testified during the mitigation phase of
appellant's jury trial. Accordingly, their affidavits are cumulative to the
testimony presented at trial. The remaining affidavits simply reiterate
the evidence concerning appellant's upbringing, hearing problems and
low IQ.
{¶ 65} We conclude that the evidence outside the record is only
cumulative of the evidence that was presented to the jury. State v.
Madrigal (Nov. 17, 2000), 6th Dist. No. L-00-1006 at 7. The petition, the
supporting affidavits, the documentary evidence, the files, and the
records do not demonstrate that appellant set forth sufficient operative
facts to establish substantive grounds for relief. Calhoun, 86 Ohio St.3d
at paragraph two of the syllabus; see R.C. 2953.21(C).
{¶ 66} We find there is no reasonable probability that the testimony by
family members or other mitigating evidence set forth in appellant’s
fourth claim for relief would have swayed the jury to impose a life
sentence.
{¶ 67} Appellant's fourth ground for relief is denied.
...
{¶ 123} In the twelfth ground for relief the appellant claimed that his
counsel was ineffective for not using a clinical or forensic psychologist
as a witness. We disagree.
{¶ 124} Appellant has in fact raised this issue in his direct appeal in the
Ohio Supreme Court…
{¶ 134} In the case at bar, appellant failed to demonstrate a reasonable
probability that, but for his counsel’s failure to employ a different
mitigation specialist, the mitigating factors would have been assigned
such weight as to compel the conclusion that the aggravating factors did
not outweigh the mitigating factors. State v. Keith (1997), 79 Ohio St.3d
514, 530, 684 N.E.2d 47, certiorari denied (1998), 523 U.S. 1063, 118
S.Ct. 1393, 140 L.Ed.2d 652.
{¶ 135} Appellant's twelfth ground for relief is denied.
Davis II, 2008-Ohio-6841.
The Warden argues that “[a]t every opportunity, Davis asks this Court to
135

engage in the hindsight review which the Strickland Court warned against. And
nowhere does he attempt to establish the state courts’ merits determinations
contravened or unreasonably applied the clearly established law of Strickland.”
(Return of Writ, ECF No. 97, PageID 10903.) Further, the Warden claims that
despite Petitioner’s allegations to the contrary, a mental health expert testifying
was not without risk:
Had a mental health expert such as Dr. [Monique] Coleman testified,
Davis’ past conviction for burglary, his propensity for violence against
women, and his pending sexual assault charges, would all have been
proper avenues of inquiry. This information can hardly be seen as
helpful to a mitigation theory, especially in light of his guilt phase theory
that it was his deceased brother that committed this horrific murder.
Highlighting Davis’ priors would seem to indicate that his violence
toward women escalated to the point of murder. Therefore, it seems to
be sound strategy to not put that information to the jury.
(Id. at PageID 10897-98 (emphasis in original).)
In his Traverse, Petitioner argues that the mere introduction of negative
evidence from the mental health expert is not reason to exclude such evidence
altogether, because competent counsel can put that negative evidence in proper
perspective. (ECF No. 104, PageID 11176, quoting Sears v. Upton, 561 U.S. 945,
951 (2010).)
Petitioner’s reliance on Sears is misplaced, since Sears did not appear to
address the scenario here, in which Petitioner maintained his innocence in the guilt
phase. Thus, the concern about whipsawing from “I did not kill Sheeler,” to “I killed
Sheeler, but these are the mitigating factors,” simply did not apply in Sears.
Beyond that, Petitioner has failed to explain why the state courts’ extensive, wellreasoned decisions as to counsel’s effectiveness were contrary to clearly established
136

law. Indeed, the Warden is correct that Petitioner is asking this court to engage in
second-guessing based on the efficacy of counsel’s strategy. That is neither the role
of habeas review nor proper Strickland analysis. Consequently, these subclaims
must be dismissed.
16.

Subclaim 18(C)(3): Counsel Failed to Object to Improper
Jury Instructions

Petitioner argues that the “court in its penalty phase instructions failed to
limit consideration of the trial phase evidence in the penalty phase; failed to
properly allocate the burden of proof; failed to properly define the burden of proof;
refused to instruct on residual doubt and mercy; and gave incorrect parole
instructions.” Petitioner’s counsel did not object to these instructions (Petition, ECF
No. 133, PageID 11844, ¶¶ 727-28.) The Warden notes that “[t]his Court found
procedurally defaulted, in its entirety, the underlying [jury instruction] claim
contained in habeas ground fifteen[,]” (Return of Writ, ECF No. 97, PageID 10922,
citing Opinion and Order, ECF No. 94, PageID 10727-29), and that the Supreme
Court of Ohio rejected the instant ineffective assistance claim on the merits (Id. at
PageID 10922-23, citing Davis I, 2008-Ohio-2, ¶¶ 209-14, 219-20.) Petitioner
rejoins that the Supreme Court of Ohio “summarily and without analysis of any
kind concluded that counsel were not ineffective for failing to [object] to the
instructions at either phase of the trial.” (Traverse, ECF No. 104, PageID 11181,
citing Davis I, 2008-Ohio-2, ¶ 357.)
Petitioner and the Warden are analyzing different portions of the opinion.
Petitioner is correct that the Supreme Court of Ohio did summarily overrule
137

counsel’s failure to object to instructions as part of the ineffective assistance claim.
Davis I, 2008-Ohio-2, ¶ 357. However, in so doing, the Supreme Court of Ohio
refers to its previous discussion of counsel’s performance as to the substantive
claims of the instructions themselves. Id. Thus, the portion cited by the Warden
(and recited below) is correct and forms the basis of this Court’s analysis.
With respect to each purportedly objectionable instruction, the state court
provided a reason why counsel’s performance was not ineffective—the required
analysis of the federal constitutional issue:
{¶ 208} First, Davis contends that the trial court erred by admitting
trial-phase evidence during the penalty phase and then advising the
jury that “only that evidence admitted in the trial phase that is relevant
to the aggravating circumstances and to any of the mitigating factors is
to be considered by you.” To the extent that the jury may have
interpreted the instructions as allowing them to determine relevancy,
the trial court erred. “It is the trial court’s responsibility to determine
the admissibility of evidence.” State v. Getsy (1998), 84 Ohio St.3d 180,
201, 702 N.E.2d 866. However, much of the trial-phase evidence was
relevant to the aggravating circumstances, the nature and
circumstances of the offense, and the mitigating factors. Thus, the trial
court’s misstatement did not result in plain error. See State v.
McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 261.
{¶ 209} Davis’s ineffective-assistance claim also lacks merit. Davis was
not prejudiced by his counsel’s failure to object, because overwhelming
evidence was properly admitted during the penalty phase that
supported the jury’s sentencing recommendation.
...
{¶ 213} Third, Davis claims that the instructions on reasonable doubt
are constitutionally defective. However, this claim has no merit. See
State v. Goff (1998), 82 Ohio St.3d 123, 132, 694 N.E.2d 916. We also
reject Davis’s claim that the burden of proof in capital cases must be
proof beyond all doubt. State v. Jenkins, 15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph eight of the syllabus. Moreover, trial counsel
were not ineffective, because “it was reasonable not to object.” State v.
Campbell, 69 Ohio St.3d at 53, 630 N.E.2d 339.
138

{¶ 214} Fourth, Davis argues that the trial court erred by failing to
instruct on residual doubt. We overrule this claim. See State v.
McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus. Moreover, trial
counsel were not ineffective by failing to request such instructions,
because no evidence supported a finding of residual doubt.
{¶ 215} Fifth, Davis contends that the trial court erred in failing to
instruct on the true meaning of parole eligibility. The trial court
instructed the jury that if the state failed to prove beyond a reasonable
doubt that the aggravating circumstances outweighed the mitigating
factors, then the jurors must decide which of the life sentences should
be imposed:
{¶ 216} “1) Life imprisonment without the possibility of parole until the
Defendant has served 25 full years in prison;
{¶ 217} “2) Life imprisonment without the possibility of parole until the
Defendant has served 30 full years in prison;
{¶ 218} “3) Life imprisonment without the possibility of parole.”
(Emphasis added.)
{¶ 219} These instructions adequately conveyed to the jurors when Davis
would be eligible for parole if they chose one of the life-sentence options.
See State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d
1173, ¶ 102–103; State v. Carter (1995), 72 Ohio St.3d 545, 559, 651
N.E.2d 965. Thus, there was no plain error. Davis’s ineffectiveness
claim also lacks merit because counsel could reasonably conclude that
the trial court's instructions adequately explained the actual length of
time Davis must serve in prison before becoming parole eligible.
{¶ 220} Finally, Davis argues that the trial court erred by not instructing
on mercy. However, the trial court did not commit plain error by failing
to give such instructions. State v. Lorraine, 66 Ohio St.3d at 417, 613
N.E.2d 212. Davis’s ineffectiveness claims also lacks merit because the
defense was not entitled to such an instruction.
Davis I, 2008-Ohio-2.
The above is a merits adjudication to which deference is required. The
Supreme Court of Ohio evaluates each of Petitioner’s ineffective assistance claims
and persuasively explains why counsel’s performance was not objectively
unreasonable.
139

Despite this comprehensive adjudication, Petitioner offers only a conclusory
argument as to why the state court’s decision was contrary to established law:
Clearly where long-standing state law requires a contemporaneous
objection to proposed jury instructions, the failure to lodge an objection
to those instructions fell far below prevailing professional norms for
counsel in a capital case. The failure to object to the instructions
prejudiced Davis in that no court has reviewed the propriety of the
instructions or any prejudice arising therefrom. The arguments of the
Warden to the contrary lack merit.
(Traverse, ECF No. 104, PageID 11183.) Yet, as the state court held, there were
good reasons to decide not to object to each of the disputed instructions. Petitioner
offers no caselaw as to why counsel’s decision not to object violated Strickland.
Further, merely improper jury instructions are generally a matter of state law that
do not support habeas relief, and Petitioner does not offer a cogent argument that
there was a reasonable probability of a different outcome had the instructions been
objected to. Lacking any basis for relief, this subclaim is dismissed.
E.

Systemic Claims
1.

Claim Nineteen: Sentence is Disproportionate

The Death Sentence Imposed on Roland Davis is Disproportionate in
Violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.
(Petition, ECF No. 133, PageID 11861.)
Petitioner argues that the Fifth, Sixth, Eighth, and Fourteenth Amendments
require that sentences “be proportional and not disparate, a requirement that is
most stringently imposed in capital cases.” (Petition, ECF No. 133, PageID 11861,
¶ 798, citing Harmeling v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J.,
concurring); Gregg v. Georgia, 428 U.S. 153, 187 (1976).) He claims that the

140

Supreme Court of Ohio’s repeated refusal to consider life sentences in
proportionality review renders any death sentence grossly disproportionate. (Id. at
PageID 11862, ¶ 801, citing Davis I, 2008-Ohio-2, ¶ 405; State v. Eley, 77 Ohio St.
3d 174, 185-86 (1996), abrogated on other grounds by State v. Wesson, 137 Ohio St.
3d 309, 2013-Ohio-4575; State v. Steffen, 31 Ohio St. 3d 111, 123-24 (1987).)
Petitioner asserts that “[w]hile state court proportionality review is not
constitutionally required, Ohio has required proportionality review as part of the
appellate review process. The state thereby created a liberty interest that cannot be
ignored or administered in an arbitrary manner.” (Petition, ECF No. 133, PageID
11863, ¶ 803, citing Lucey, 469 U.S. at 395-96 ; Pulley v. Harris, 465 U.S. 37, 42-43
(1984); Ohio Rev. Code § 2929.05(A).) “Therefore, all required components of the
appellate review system for death penalty cases—including this statutorily
mandated proportionality review—must be enforced within the requirements of due
process and equal protection.” (Id., citing Evitts, 469 U.S. at 403-04.) Petitioner
argues that, despite this requirement:
The Supreme Court of Ohio did not conduct any comparison to “similar”
cases where death was not imposed. Instead, it merely listed cases
where similar aggravating circumstances were found, ignoring whether
those so-called “similar” cases also had additional aggravating
circumstances, or whether some or substantial mitigating evidence had
been presented, or whether there was in fact any similarity between the
cases.
(Id. at ¶ 804.) This failure to weigh non-death cases meant that the sentence was
imposed arbitrarily and irrationally. (Id. at PageID 11864, ¶ 805, citing Parker v.
Dugger, 498 U.S. 308, 321 (1991).)
Further, Petitioner argues, proportionality review is essential to ensuring
141

death sentences are not imposed capriciously, and such review is premised on nondeath cases being part of the comparison. (Traverse, ECF No. 104, PageID 1118789, citing Walker v. Georgia, 555 U.S. 979, 980 (2008) (statement of Stevens, J.,
respecting the denial of writ of certiorari); Gregg v. Georgia, 428 U.S. 153, 198, 205
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408
U.S. 238 (1972).) Yet, “[h]ere, the Supreme Court of Ohio simply asserted that the
case before it did not present a disproportionate sentence, citing cases presenting
the same aggravating circumstances in which the death sentence was imposed,
without acknowledging whether other aggravating factors, mitigating
circumstances or factual differences existed in the other cases.” (Id. at PageID
11190, citing Davis I, 2008-Ohio-2, ¶ 405.) Petitioner argues that this purportedly
inadequate review meant that the death sentence imposed was unconstitutional.
(Id. at PageID 11190-92.)
This claim was raised and rejected on direct appeal:
{¶ 381} We summarily reject Davis’s challenges in proposition of law XV
to the constitutionality of Ohio's death-penalty proportionality review
based on our precedents. See State v. LaMar, 95 Ohio St.3d 181, 2002Ohio-2128, 767 N.E.2d 166, ¶ 23; State v. Steffen, 31 Ohio St.3d 111, 31
OBR 273, 509 N.E.2d 383, paragraph one of the syllabus.
...
{¶ 405} Finally, we hold that the death penalty is proportionate to death
sentences approved for other robbery-murder and burglary-murder
cases. See State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 168; State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624,
779 N.E.2d 1017, ¶ 124; and State v. Stallings, 89 Ohio St.3d at 301, 731
N.E.2d 159. The death penalty is also proportionate to death sentences
approved for other cases involving a kidnapping specification. State v.
Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 204; State
v. Hartman, 93 Ohio St.3d at 306, 754 N.E.2d 1150; and State v. Ballew
142

(1996), 76 Ohio St.3d 244, 258, 667 N.E.2d 369.
Davis I, 2008-Ohio-2.
The Warden argues that the claim is non-cognizable in habeas, as there is no
federal constitutional right to proportionality review, except when the review is
“patently unjust” or “shocks the conscience.” (Return of Writ, ECF No. 97, PageID
10925, quoting Scott v. Houk, No. 4:07-cv-0753, 2011 WL 5838195, at *44 (N.D.
Ohio Nov. 18, 2011), aff’d, 760 F.3d 497 (6th Cir. 2014).) According to the Warden,
this occurs only when the sentence is grossly disproportionate to the crime for which
the person has been convicted, not disproportionate to the sentences received by
others for the same crime. (Id. at PageID 10926, quoting Getsy v. Mitchell, 495 F.3d
295, 305 (6th Cir. 2007); citing Beuke v. Houk, 537 F.3d 618, 652 (6th Cir. 2008).)
Showing that similarly situated defendants did not receive the death penalty does
not, by itself, state a constitutional violation. (Id. at PageID 10926-27, citing
McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987).) Thus, the Warden argues,
Petitioner’s claim is meritless even if cognizable.
Petitioner concedes that the Supreme Court of Ohio summarily rejected the
challenge to the constitutionality of Ohio’s proportionality review. (Traverse, ECF
No. 104, PageID 11193, citing Davis I, 2008-Ohio-2, ¶ 381.) Yet, he argues that “no
deference is warranted under AEDPA because there is no reasonable basis for
concluding that Ohio’s proportionality framework is constitutional. No fair-minded
jurist could believe that deliberately excluding all of the cases that resulted in a life
sentence from a state’s proportionality review is constitutional.” (Id. at PageID
11194, citing State v. Murphy, 91 Ohio St. 3d 516, 562 (2001) (Pfeifer, J.,
143

dissenting).)
Petitioner’s statement is belied by the Sixth Circuit repeatedly holding that
Ohio’s proportionality review does not violate due process or equal protection. (See
Return of Writ, ECF No. 97, PageID 10926 (collecting cases).) Petitioner concedes
that the Sixth Circuit has upheld Ohio’s review scheme but claims that “the
decisions are incorrect statements of law that must be reversed.” (Traverse, ECF
No. 104, PageID 11194, citing Getsy, 495 F.3d at 305-06.) Yet, a district court may
not depart from, much less reverse, a published decision by its controlling circuit
court. Petitioner does not claim that Ohio misapplied its well-established
proportionality review. Thus, there has been no constitutional violation, and Claim
Nineteen must be dismissed.
2.

Claim Twenty:
Ohio Sentencing Review Process
Subjected Davis to Arbitrary and Capricious Imposition of
Death Penalty

The Ohio Sentencing Review Process as Implemented Denied Roland
Davis an Adequate Safeguard Against the Arbitrary and Capricious
Imposition of the Death Penalty. the Death Penalty in this Case is
Inappropriate Under the Fifth, Sixth, Eighth and Fourteenth
Amendments.
(Petition, ECF No. 133, PageID 11866.)
Under Ohio’s death penalty law, there are two procedural safeguards to
protect against the death penalty being imposed arbitrarily or capriciously. First,
the trial court must find that the aggravating circumstances outweigh the
mitigating factors. Ohio Rev. Code § 2929.03(F). Second, the Supreme Court of
Ohio must conduct an independent weighing of the aggravating circumstances and
mitigating factors, ensuring the former outweigh the latter beyond a reasonable
144

doubt and that the sentence was proportional to the crime. Ohio Rev. Code §
2929.05. Petitioner argues that “[t]he trial court failed to explain why the
aggravating circumstances outweighed the mitigating factors beyond a reasonable
doubt.” (Petition, ECF No. 133, PageID 11867, ¶ 813.) “The trial court simply
stated that it was affording ‘great weight’ to the aggravating circumstances. It then
proceeded to state, in great detail, facts that do not constitute statutory aggravating
circumstances[.]” (Id.) Further, “[t]he trial court did not explain why very little or
no weight was given to any particular piece of mitigation (other than that Davis was
47 years old) or why the mitigation as a whole was outweighed by the statutory
aggravating circumstances.” (Petition, ECF No. 133, PageID 11867, ¶ 814.) He
claims that “[t]he cumulative weight of these [mitigating] factors outweighs the
statutory aggravating circumstances in this case. The sentence of death is thus
inappropriate.” (Id. at PageID 11868, ¶ 817, citing Rompilla v. Beard, 545 U.S. 374,
390-91 (2005); Wiggins v. Smith, 539 U.S. 510, 534-35 (2003).)
Petitioner also argues that “[t]he review of Davis’ death sentence by the
Supreme Court of Ohio pursuant to Ohio Rev. Code § 2929.05 was no more thorough
or complete.” (Petition, ECF No. 133, PageID 11869, ¶ 819.) The Supreme Court of
Ohio “reviewed the aggravating factors and the evidence presented in mitigation,
but then concluded that his was a ‘horrific crime’ before rejecting summarily the
significance of all of the mitigating evidence presented.” (Id.) He claims that the
court erred in failing to give significant weight to his abusive childhood and limited
intellectual capacity. (Id. at ¶ 820.) Had appropriate weight been given to these

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mitigating factors, Petitioner argues, the appropriate sentence would not have been
death. (Id. at PageID 11870, ¶ 822.)
The trial court’s weighing of the evidence was raised by Petitioner in the
Sixteenth Proposition of Law, and that weighing was affirmed by the Supreme
Court of Ohio:
{¶ 359} In proposition of law XVI, Davis asserts that there are numerous
flaws in the trial court's sentencing opinion.
{¶ 360} First, Davis argues that the trial court failed to explain why the
aggravating circumstances outweighed the mitigating factors beyond a
reasonable doubt. This claim lacks merit because the opinion contains
extensive discussion of the aggravating circumstances and the
mitigating factors. Furthermore, our independent reassessment of the
sentence will eliminate any deficiencies in the trial court’s sentencing
opinion. State v. Fox (1994), 69 Ohio St.3d 183, 191, 631 N.E.2d 124.
{¶ 361} Second, Davis argues that the trial court improperly evaluated
evidence of his abusive childhood and limited intellectual abilities.
However, the “assessment and weight to be given mitigating evidence
are matters for the trial court's determination.” State v. Lott (1990), 51
Ohio St.3d 160, 171, 555 N.E.2d 293. Moreover, the fact that mitigation
evidence is admissible “does not automatically mean that it must be
given any weight.” State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR
273, 509 N.E.2d 383, paragraph two of the syllabus. Here, the
sentencing opinion fully reviewed testimony about Davis’s abusive
childhood and evidence about his limited intellectual abilities. The trial
court could reasonably assign any or no weight to such evidence. See
State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶
103. Thus, no error was committed.
{¶ 362} Finally, Davis asserts that the trial court ignored mitigating
evidence of Davis’s abandonment as a child, bullying by other children
because he stuttered, his father's verbal abuse in calling him a “retard,”
and his low IQ indicating borderline intellectual functioning.
{¶ 363} “While a sentencing court must consider all evidence of
mitigation, it need not discuss each factor individually.” State v. Phillips
(1995), 74 Ohio St.3d 72, 102, 656 N.E.2d 643, citing Parker v. Dugger
(1991), 498 U.S. 308, 314–315, 111 S.Ct. 731, 112 L.Ed.2d 812. The trial
court discussed Davis’s speech problems, including stuttering, his
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abandonment at the local children's home, and his limited intellectual
ability as shown in his school records. The trial court also stated that it
“has considered all the mitigating factors raised at any stage of the trial
that are relevant to the issue of whether the defendant should be
sentenced to death.” Therefore, this claim also lacks merit.
Davis I, 2008-Ohio-2.
As to the Supreme Court of Ohio’s independent weighing of the aggravating
circumstances and mitigating factors, Davis I, 2008-Ohio-2, ¶¶ 384-404, the Warden
argues that this is a matter of a state court’s interpretation of state law, which is
generally not cognizable in habeas (Return of Writ, ECF No. 97, PageID 10928,
citing Richter, 562 U.S. at 102-03.) In reality, the Warden claims, Petitioner is not
attempting to show that the state court’s reweighing was contrary to established
law but is asking this Court to stand in the shoes of the Supreme Court of Ohio and
independently reweigh the aggravating circumstances and mitigating factors. (Id.)
Petitioner counters that the Supreme Court of Ohio’s decision is incomplete.
The state court examined only the trial court’s weighing and could not evaluate its
own weighing of the aggravating circumstances and mitigating factors. As the
claim was raised cumulatively—that the combined failure by the trial court and
Supreme Court of Ohio deprived Petitioner of his constitutional safeguards—there
is no merits decision to defer to. (Traverse, ECF No. 104, PageID 11198-99.)
Alternatively, he argues, the Supreme Court of Ohio’s decision, even if on the
merits, was an unreasonable application of clearly established law. (Id. at PageID
11199, citing Davis I, 2008-Ohio-2, ¶¶ 359-64.) Moreover, to the extent “that the
Supreme Court of Ohio did make a factual finding that the trial court had not
considered non-statutory aggravating factors, the finding was objectively
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unreasonable under § 2254(d)(2), and as a result no deference is warranted.”
(Traverse, ECF No. 104, PageID 11199-11200, quoting State Court Record, ECF No.
51-3, PageID 1888; citing Brumfield v. Cain, 576 U.S. 305, 307 (2015); State Court
Record, ECF No. 51-2, PageID 1521-22.)
Petitioner does not argue that there is a federal constitutional right to a
weighing of aggravating and mitigating circumstances; nor could he reasonably do
so. See, e.g., Buell v. Mitchell, 274 F.3d 337, 368 (6th Cir. 2001) , citing Franklin v.
Lynaugh, 487 U.S. 164, 172-73 (1988); Zant v. Stephens, 462 U.S. 862, 875 (1983)
(“The [Supreme] Court also has approved of a statute that did not enunciate specific
factors to consider or a specific method of balancing the competing considerations.”)
Thus, the question is whether the weighing by the trial court and Supreme Court of
Ohio was so egregious as to violate due process. Lucey, 469 U.S. at 396.
Petitioner falls well short of meeting that exacting standard. While he claims
that the trial court considered non-statutory aggravating circumstances (Petition,
ECF No. 133, PageID 11867, ¶ 813), there is no indication from the trial court’s
opinion that those non-statutory circumstances were dispositive or were anything
more than reasons for why the trial court found that the statutory aggravating
circumstances outweighed the mitigating factors beyond a reasonable doubt. (State
Court Record, ECF No. 51-2, PageID 1517, 1521-22.) Meanwhile, the trial court
discussed in-depth the statutory aggravating circumstances and the evidence
presented in mitigation prior to assigning them great and little weight, respectively.
(Id. at PageID 1521-23.) Much of the remainder of Petitioner’s claim is that the

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trial court and Supreme Court of Ohio weighed the mitigation factors incorrectly.
(Petition, ECF No. 133, PageID 11869, ¶ 817.) As stated above, however, there is no
constitutional right to any particular weighing process, and this Court may not step
into the shoes of the state court and conduct an independent weighing. As there is
no viable ground for relief, Claim Twenty must be dismissed.
3.

Claim Twenty-One: Ohio’s Postconviction Scheme is
Inadequate to Address Constitutional Claims in State
Courts

The Ohio Sentencing Review Process as Implemented Denied Roland
Davis an Adequate Safeguard Against the Arbitrary and Capricious
Imposition of the Death Penalty. The Death Penalty in this Case is
Inappropriate Under the Fifth, Sixth, Eighth and Fourteenth
Amendments.
(Petition, ECF No. 133, PageID 11871.)
Petitioner concedes that there is no requirement for a state to implement a
postconviction regime, but notes that if a state chooses to do so, it must conform to
constitutional due process. (Petition, ECF No. 133, PageID 11871, ¶ 825, quoting
Lucey, 469 U.S. at 401; Case v. Nebraska, 381 U.S. 336, 346-47 (1965) (Brennan, J.,
concurring).) He argues that Ohio’s postconviction regime fails to do so, as “every
aspect of post conviction relief is discretionary. . . . The trial court can deny a
petition without even holding an evidentiary hearing if the trial court does not find
grounds for granting relief.” (Id. at PageID 11871-72, ¶ 827, citing Ohio Rev. Code §
2953.21(F); State v. Calhoun, 86 Ohio St. 3d 279, 289-90 (1999).) “Indigent inmates
face the insurmountable burden of collecting evidence in support of valid claims
prior to the filing of a petition without the means to collect information critical to
their claims.” (Id. at PageID 11872, ¶ 828.)
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Petitioner claims that he attempted to develop and present evidence but was
thwarted at every turn. (Petition, ECF No. 133, PageID 11873-74, ¶¶ 829-31.)
“Discovery was necessary to develop the factual bases for Davis’ claims.
Nevertheless, the trial court denied all of his discovery requests and ultimately
denied Davis’ petition, criticizing the lack of evidence submitted by Davis.” (Id. at
PageID 11875, ¶ 835, citing State Court Record, ECF No. 51-7, PageID 3187-88.)
Moreover, Petitioner argues that he was denied redress even though he “at a
minimum, pleaded sufficient operative facts supported by credible evidence dehors
the record to entitle him to a hearing.” (Id. at PageID 11876, ¶ 837.) “As a result,
Davis was denied equal protection, due process, and a full and fair opportunity to
present and litigate his federal constitutional claims in state post conviction
proceedings, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments[.]”
(Id. at PageID 11875, ¶ 836.)
The Warden claims that, for several reasons, Petitioner’s claim is unavailing.
First, “[i]t is well-established that Davis’ attack on Ohio’s postconviction procedures
cannot sustain relief in federal habeas corpus.” (Return of Writ, ECF No. 97,
PageID 10929, citing Pennsylvania v. Finley, 481 U.S. 551, 557-58 (1987); Cornwell
v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009); Greer v. Mitchell, 264 F.3d 663, 681
(6th Cir. 2001); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).) Second, it is
barred by Teague v. Lane, because Petitioner’s “request for relief on the ground that
he is constitutionally entitled to adequate procedures for state postconviction review
necessarily implicate new rules of constitutional law.” (Id. at PageID 10930, citing

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489 U.S. 288 (1988).) Finally, the Fifth District denied the claim, holding that
“[t]he petition, the supporting affidavits, the documentary evidence, the files, an[d]
the records do not demonstrate that appellant set forth sufficient operative facts to
establish substantive grounds for relief.” (Id. at PageID 10930-31, quoting Davis II,
2008-Ohio-6841, ¶ 84.) The Warden asserts that “[t]he state court’s rejection of
Davis’ claim was objectively reasonable in light of there being no constitutional
right to postconviction review. As such, Davis’ challenge to Ohio’s postconviction
process is without merit and must be denied.” (Id. at PageID 10931.)
Petitioner argues that, for two reasons, the Warden’s non-cognizability
argument lacks merit. First, “Ohio can provide whatever kind of corrective process
it prefers, but whatever process Ohio chooses must still be adequate”; and second,
collateral review, if it is the chosen corrective process, must comply with federal
constitutional guarantees. (Traverse, ECF No. 104, PageID 11207, citing Carter v.
People of State of Illinois, 329 U.S. 173, 175-76 (2011); Yates v. Aiken, 484 U.S. 211,
217-18 (1988); Return of Writ, ECF No. 97, PageID 10929.)
Petitioner does not address the fact that claims challenging the adequacy
Ohio’s postconviction regime have been found to be non-cognizable by the Sixth
Circuit so his arguments are unavailing. Cornwell, 559 F.3d at 411; Kirby, 794 F.2d
at 247. Kirby is still good law as to alleged errors arising solely out of
postconviction procedures. Claim Twenty-One is dismissed.
4.

Claim Twenty-Three:
Unconstitutional

Ohio Death Penalty Statute is

Ohio’s Death Penalty Law is Unconstitutional. Ohio Rev. Code Ann. §§
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04,
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2929.05, and 2929.06 are Unconstitutional on Their Face and as Applied
to Roland Davis under the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution. Further, Ohio’s Death
Penalty Statute Violates the United States’ Obligations under
International Law.
(Petition, ECF No. 133, PageID 11879.)
Petitioner raises several arguments as to why Ohio’s capital sentencing
scheme is unconstitutional. First, “Ohio’s scheme allows the death penalty to be
imposed in an arbitrary and discriminatory manner because prosecutors have
virtually uncontrolled charging discretion which has resulted in the discriminatory
imposition of death throughout the state.” (Petition, ECF No. 133, PageID 11880, ¶
844.) Second, “[t]he weight to be assigned to a given mitigating factor is within the
individual decision-maker’s discretion. Permitting so much discretion inevitably
leads to arbitrary and capricious judgments. The scheme further permits juries to
ignore constitutionally relevant mitigating factors[.]” (Id. at PageID 11882, ¶ 852
(citation omitted).)
Third:
A defendant who pleads guilty or no contest benefits from a trial judge’s
discretion to dismiss the specifications “in the interest of justice.”
Accordingly, a capital indictment may be dismissed regardless of
aggravating circumstances. There is no corresponding provision for a
capital defendant who elects to proceed to trial before a jury. This
disparity needlessly burdens the defendant’s exercise of his right to a
trial by jury.
(Id. at PageID 11883, ¶ 853, quoting Ohio R.Crim.P. 11(C)(3); citing Lockett v. Ohio,
438 U.S. 586, 617 (1978) (Blackmun, J., concurring).) Fourth, “Ohio Rev. Code §
2929.03(D)(1) makes Ohio’s death penalty weighing scheme unconstitutionally
vague because it gives the sentencer unfettered discretion to weigh a statutory
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mitigating factor as an aggravator.” (Id. at PageID 11883, ¶ 854.) Fifth, “[t]he
failure to divide the determination of guilt/innocence from the determination of
aggravating circumstances upon which the death penalty may be premised
prohibits a sufficiently individualized determination of sentence under the Fifth,
Sixth, Eighth and Fourteenth Amendments.” (Id. at PageID 11885, ¶ 858, citing
Barclay v. Florida, 463 U.S. 939, 958 (1983); Zant v. Stephens, 462 U.S. 862, 878-79
(1983); Woodson, 428 U.S. at 304-05.)
Sixth:
The Ohio scheme precludes the jury and the judge from exercising their
mercy and imposing a life sentence even if they find that the aggravating
circumstances outweigh the mitigating factors. Ohio Rev. Code §§
2929.03 and 2929.04 require death. The sentencer is prohibited from
exercising discretion to impose a life sentence.
(Id. at ¶ 859.) Finally, “International law binds each of the states that comprise the
United States. Ohio is bound by international law whether found in treaty or in
custom. Because the Ohio death penalty scheme violates international law, Davis’
capital convictions and sentences cannot stand.” (Id. at PageID 11887, ¶ 862.)
The Warden argues that “[t]he Ohio Supreme Court reasonably rejected
Davis’ constitutional and international law challenges to Ohio’s death penalty
system. And Davis presents no clearly established federal law which would
overcome the deference that must be afforded to Ohio’s reasonable denial of his
claims.” (Return of Writ, ECF No. 97, PageID 10931-32, citing Davis I, 2008-Ohio2, ¶¶ 382-83.) Further, “[t]he Sixth Circuit has repeatedly held that the
constitutional challenges of Ohio’s death sentenced prisoners are meritless.” (Id. at
PageID 10932, citing Beuke, 537 F.3d at 652-653.)
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The Warden is correct that the Sixth Circuit, in binding precedent, has
repeatedly upheld the constitutionality of Ohio’s capital sentencing scheme. Beuke,
537 F.3d at 653, citing Getsy, 495 F.3d at 306; Williams v. Bagley, 380 F.3d 932,
962-63 (6th Cir. 2004); Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir. 2003);
Wickline v. Mitchell, 319 F.3d 813, 824-25 (6th Cir. 2003); Cooey e, 289 F.3d at 92728; Buell, 274 F.3d at 368; Byrd v. Collins, 209 F.3d 486, 539-40 (6th Cir. 2000),
superseded on other grounds by 28 U.S.C. § 2254(d)(1). Thus, the above challenges
fail.
In the Traverse, Petitioner attempts to save his claim by arguing for the first
time that the Supreme Court case of Hurst v. Florida invalidates Ohio’s capital
sentencing scheme because in Ohio, like Florida, the jury’s death verdict is a mere
recommendation. According to Petitioner, the trial judge still must make a factual
finding that aggravating circumstances outweigh mitigating factors before imposing
death or life imprisonment. (Traverse, ECF No. 104, PageID 11215-16, quoting Ohio
Rev. Code § 2929.03; citing Hurst, 577 U.S. 92.) The Supreme Court ruled that such
a scheme is unconstitutional because it takes factfinding on crucial issues out of the
hands of the jury. (Id., quoting Hurst, 577 U.S. at 99; Walton v. Arizona, 497 U.S.
639, 648 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).) Similarly,
Petitioner argues:
The Ohio statute does not require the jury to make any specific findings
of fact about mitigating factors nor does it require the jury to make any
specific findings about the weighing of the mitigating and aggravating
factors. Therefore, the trial court is left to make these determinations
without guidance from the jury and without those critical findings.
(Id. at PageID 11217.)
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In the Sur-Reply, the Warden lists several reasons why Hurst does not make
Petitioner’s claim viable. First, the argument was raised for the first time in the
Traverse, which is impermissible. (Sur-Reply, ECF No. 107, PageID 11238, quoting
Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005); citing Hurst, 577 U.S. 92;
Traverse, ECF No. 104, PAGEID 11107, 11213-17.) Second, “[b]ecause the state
courts adjudicated on the merits his merging aggravating circumstances and his
death penalty constitutionality claims, should he attempt to raise a Hurst challenge
in state court he likely would be procedurally barred due to the doctrine of res
judicata.” (Id.) Third, the claim is procedurally defaulted because it has never been
presented to and exhausted in the state court. (Id. at PageID 11239, citing 28
U.S.C. § 2254(b)(2); Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998).) Finally, the
claim is meritless because it interprets Hurst too broadly. The Warden argues that
all Hurst held was that characteristics rendering a defendant death-eligible must be
presented to the jury and proved beyond a reasonable doubt. (Sur-Reply, ECF No.
107, PageID 11239, citing Hurst, 577 U.S. at 102-03.) The Warden claims that the
Petitioner is conflating the “eligibility phase,” in which the jury considers
aggravating circumstances to narrow the class of defendants who are death-eligible,
with the “selection phase,” in which the decision is made whether to impose a death
sentence. (Id. at PageID 11239, quoting Buchanan v. Angelone, 522 U.S. 269, 275
(1998); citing Tuilaepa v. California, 512 U.S. 967, 971-72 (1994).)
In Ohio, the Warden argues, the jury—and only the jury—determines
whether a defendant is death-eligible. (Sur-Reply, ECF No. 107, PageID 11240,

155

quoting Hurst, 577 U.S. at 98; citing State v. Belton, 149 Ohio St. 3d 165, 2016Ohio-1581, ¶¶59-60.) Thus, Florida’s “circumstance is not present in Ohio’s
statutory scheme where the defendant’s case never gets to the mitigation phase
unless the jury first determines guilt of enumerated capital specifications beyond a
reasonable doubt during the guilt phase of the case.” (Id. (emphasis in original),
citing Ohio Rev. Code § 2929.04(A).) Moreover, the Warden argues, weighing the
aggravating circumstances and mitigating factors is not a fact-finding process
subject to Sixth Amendment protections, because the sentence cannot be enhanced
through the weighing process. (Id. at PageID 11241, quoting Belton, 2016-Ohio1581, at ¶ 60.) “Because Davis’ claimed error only implicates the weighing process
in the penalty phase, it simply does not implicate the right to a jury trial on which
Ring and Hurst were based.” (Id.)
This Court, in denying leave to amend to include a Hurst claim, concluded
that any such claim would be futile, as Ohio’s sentencing scheme is fundamentally
different from Florida’s, and that Hurst is not applicable on collateral review
(Opinion and Order, ECF No. 127, PageID 11562, 11563, citing Smith v. Pineda, No.
1:12-cv-196, 2017 WL 631410, at * 3-4, 5 (S.D. Ohio Feb. 16, 2017); see also
McKinney v. Arizona, 140 S.Ct. 702, 708 (2020) (“ Hurst do[es] not apply
retroactively on collateral review.”).) The Court sees no reason to depart from its
earlier, well-founded conclusions, much less binding Supreme Court precedent. For
these reasons, Claim Twenty-Three must be dismissed.

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IV.

CONCLUSION
For the foregoing reasons, the Third Amended Petition (ECF No. 133) is

DENIED and the action is DISMISSED WITH PREJUDICE. Judgment shall
enter in favor of the Warden and against Petitioner. The Court concludes that no
reasonable jurist would find that Petitioner “has made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), or would disagree with this
conclusion as to any of Petitioner’s claims. This Court certifies to the Sixth Circuit
that any appeal would be objectively frivolous and therefore should not be permitted
to proceed in forma pauperis.
IT IS SO ORDERED.
_/s/ Sarah D. Morrison_______
Sarah D. Morrison
United States District Judge

157