No. 95-02393--Donald C. Nugent, District Judge.

Argued: August 7, 2001
Decided and Filed: February 7, 2002

Before: NORRIS, SILER, and DAUGHTREY, Circuit Judges.

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COUNSEL

ARGUED: Timothy R. Payne, OHIO PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant. Norman E. Plate, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Timothy R. Payne, Kyle E. Timken, OHIO PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant. Jon W. Oebker, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. Ernest Martin, Mansfield, Ohio, pro se.

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OPINION

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BACKGROUND

     On December 20, 1982, Ernel Foster, a security guard, was robbed of his .38 caliber Smith & Wesson revolver, Model 10, Serial No. D431784, by a black male, while waiting at a bus stop on East 93rd Street and Kinsman Avenue. Foster testified that he chased the offender for a block and a half and was able to see his face. He further noted that the offender's hair was in small braids. On February 1, 1983, Foster was summoned to the police station to view a line-up composed of six black males. Foster was able to identify the defendant-appellant, Ernest Martin, noting that his hair was braided in the same manner as it appeared on December 20, 1982. Later, Foster identified appellant in the courtroom as the man who had taken his weapon.

     Appellant's girlfriend, Josephine Pedro, testified that he had threatened her with a gun earlier that year, telling her that he had stolen the weapon from a security guard at East 93rd and Kinsman. Pedro wrote down the serial number of the gun on the back of an envelope box. The number was identical to the serial number of Foster's weapon except that the letter "D" had been purposely transformed into a "9." Pedro testified that this was done to make the number sequence look like a telephone number in order to ward off any suspicion.

     Pedro further testified that in the early hours of January 21, 1983, appellant revealed a plan to rob Robinson's Drug Store. She attempted to dissuade him but the appellant threatened her if she did not cooperate in the robbery. Appellant then left the apartment and returned approximately ten minutes later with the gun he had taken from Foster.

     When Pedro reached the apartment she called her neighbor, Larry Kidd. Appellant returned approximately thirty-five minutes later. Pedro asked appellant whether the evening's events had been worth it. He showed her a pile of bills under a blanket which he then took into the bathroom and explained that he had stolen between $38 and $39 from the store.

     The state also offered another letter into evidence which had been written by the appellant to Pedro when he was in jail in February 1981 for another offense. Pedro identified the letter and read it into the record. The letter asked Pedro to lie for appellant and to implicate someone else for the commission of the offense for which the appellant was charged. Pedro admitted lying for the appellant pursuant to the letter in the previous trial for the other offense.

     The jury found the appellant guilty of the aggravated robbery of Ernel Foster and of the aggravated robbery and aggravated murder of Robert Robinson with the specification of being the principal offender of the aggravated murder while committing or attempting to commit aggravated robbery. After the mitigation hearing was conducted, the jury recommended that appellant receive the death penalty. On July 8, 1983, the trial court sentenced appellant to death. On July 13, 1983, appellant filed a motion for a new trial. On May 9, 1984, the motion was denied. On May 23, 1984, the court filed its required judgment entry and separate opinion, pursuant to R.C. 2929.03(F), finding that the aggravating circumstances outweighed the mitigating factors. The following day, the trial court filed its opinion on the motion for a new trial.

     On August 5, 1983, appellant appealed his conviction to the court of appeals. The court of appeals affirmed the sentence of the trial court and issued a separate opinion as required by R.C. 2929.05(A) on September 27, 1984.

State v. Martin, 483 N.E. 2d 1157, 1159-61 (Ohio 1985).

     E.J. Rieves-Bey lived across the street from the victim's store and witnessed someone running away from the scene after hearing shots fired. Within two weeks of the killing, he gave a statement to the Cleveland police describing the man he saw fleeing as 5'10" and 170 lbs, roughly matching Martin. Approximately a month later, he told a court-appointed investigator that the man was "About six foot, two maybe three . . . Maybe about 180, 200 pounds." He also stated, "I know he's taller than Ernest Martin, and Ernest Martin is smaller, way smaller."

     The State subpoenaed Rieves-Bey to testify, but he arrived just as jury deliberations began. The State sought to reopen its case and present the testimony of Rieves-Bey. The defense successfully objected, and deliberations continued.

     In sum, Martin makes the following claims: (A) ineffective assistance of trial counsel, Herbert Adrine and James Carnes, for their failure to (1) challenge Martin's warrantless arrest; (2) investigate and otherwise prepare for trial; (3) interview witnesses; (4) subpoena Rieves-Bey; (5) effectively cross-examine witnesses; (6) investigate and otherwise prepare for the mitigation phase; (7) object to jury instructions; (8) object to the use of presentence investigation and psychiatric clinic reports at mitigation; (B) ineffective assistance of appellate counsel for failing to make the transcript of his hearing on his motion for a new trial part of the record on his direct appeal; (C) prosecutorial misconduct at trial by improperly commenting on his failure to testify; and (D) insufficiency of the evidence supporting his conviction.

STANDARD OF REVIEW

     A federal court is authorized to grant a writ of habeas corpus to a person in custody pursuant to a state-court judgment, but only if 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 unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. � 2254(d).

     The Supreme Court has declared that "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000). In its elaboration on the meaning of the term "objectively unreasonable," the Court stated that "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Finally, a district court's denial of the writ is subject to de novo review. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998).

Wilson v. Mitchell, 250 F.3d 388, 393-94 (6th Cir. 2001). We review the district court's findings of fact on a disposition of a petition for a writ of habeas corpus for clear error. See Cone v. Bell, 243 F.3d 961, 967 (6th Cir. 2001).

     However, there are several prerequisites before the cause and prejudice test is applied in a federal court to any kind of state procedural default. "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). "Second, the court must decide whether the state courts actually enforced the state procedural sanction." Id. Third, the procedural default must be an "independent and adequate" state ground on which the state can rely to foreclose review of a federal constitutional claim. County Court of Ulster County, New York v. Allen, 442 U.S. 140, 148 (1979). If these three prerequisites are met, a federal court must determine whether the petitioner is able to meet the cause and prejudice test to excuse the state procedural default.

     The cause and prejudice standard is a two-part test in which the petitioner must: (1) present a substantial reason to excuse the default, Coleman, 501 U.S. at 754; and (2) show that he was actually prejudiced as a result of the claimed constitutional error, United States v. Frady, 456 U.S. 152, 167-69 (1982).

     If the claims presented in the federal court were never actually presented in the state courts, but a state procedural rule now prohibits the state court from considering them, the claims are considered exhausted, but are procedurally barred. Coleman, 501 U.S. at 752-53.

Id. In Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001), we explained the last resort for habeas petitioners who fail to show cause and prejudice for procedural default:

Id. at 540.

     As relevant here, we have recognized that Ohio applies res judicata to bar the consideration of constitutional issues that were not, but could have been, raised on direct appeal.      

     In 1967, the Ohio Supreme Court held that "[c]onstitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him." State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967) (syllabus para. 7). In State v. Cole, 443 N.E.2d 169 (Ohio 1982), the state supreme court articulated how this procedural rule would apply with respect to ineffective assistance of trial counsel claims. The court explained: "Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors [i.e., outside] the record, res judicata is a proper basis for dismissing defendant's petition for post-conviction relief." Id. at 170 (syllabus).

Byrd v. Collins, 209 F.3d 486, 520 (6th Cir. 2000) (emphasis added).

DISCUSSION

I. Procedural Default

     B. Ineffective Assistance of Appellate Counsel

     The district court found that Martin had not procedurally defaulted his claim of ineffective assistance of appellate counsel. This claim took issue with counsel's failure to make the transcript of the hearing on Martin's motion for a new trial part of the record for his direct appeal. This argument, and other ineffective assistance of appellate counsel claims, as discussed infra, were raised in Martin's post-conviction application for delayed reconsideration, as authorized by State v. Murnahan, 584 N.E. 2d 1204, 1209 (Ohio 1992). The application was denied by the Ohio Court of Appeals in a one-sentence opinion that did not state whether the decision was on the merits or based upon procedural grounds. The district court, while recognizing this court's holding in Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996) (when a state court of appeals decision is silent as to the grounds for denying a claim, it is assumed that the court observed its own procedural bar), nonetheless ruled that it was improper to assume that the claim was rejected upon a procedural ground, because Murnahan had just been decided, and the brief Court of Appeals opinion did not state the basis of its denial as required by Murnahan. The State does not challenge this finding or otherwise argue that this claim was not preserved for federal habeas review.

     C.  Ineffective Assistance of Trial Counsel / Prosecutorial Misconduct

     Martin raised his claims of ineffective assistance of trial counsel in post-conviction proceedings rather than by direct appeal. Thus, these claims were barred by res judicata pursuant to Perry. See Byrd, 209 F.3d at 520. Nonetheless, he argues that these claims are not procedurally defaulted because the last state court rendering judgment on the case did not clearly and expressly state that its judgment rested on a procedural bar See Harris v. Reed, 489 U.S. 255, 262 (1989). This contention is not accurate. When addressing these claims, the court held:

We find that these were all matters that could have been addressed on defendant's direct appeal since defendant was represented by new appellate counsel and are therefore barred by the doctrine of res judicata as found by the trial court.

State v. Martin, 1995 WL 66698, *3 (Ohio App. 1995). Martin simply ignores this opinion and focuses on a lower court opinion that was not the last state court rendering judgment on the case. Thus, this argument is without merit.

     Martin also argues that the ineffective assistance of his appellate counsel is cause and prejudice for not raising his claims of ineffective assistance of trial counsel on direct appeal. In Martin's post-conviction application for delayed reconsideration, he raised claims of ineffective assistance of appellate counsel, based upon the failure of his appellate counsel to raise the ineffectiveness of trial counsel for not challenging his warrantless arrest, objecting to jury instructions, obtaining the attendance of Rieves-Bey, and performing effectively at the mitigation phase. If Martin can show that he received ineffective assistance of appellate counsel that rose to the level of a violation of his Sixth Amendment rights, it would excuse his procedural default. See Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). In Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), we provided guidance on considerations relevant to claims of ineffective assistance of appellate counsel.

The cases decided by this court on the issue of ineffective assistance of appellate counsel suggest the following considerations that ought to be taken into account in determining whether an attorney on direct appeal performed reasonably competently.

(1) Were the omitted issues "significant and obvious"?

(2) Was there arguably contrary authority on the omitted issues?

(3) Were the omitted issues clearly stronger than those presented?

(4) Were the omitted issues objected to at trial?

(5) Were the trial court's rulings subject to deference on appeal?

(6) Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?

(7) What was appellate counsel's level of experience and expertise?

(8) Did the petitioner and appellate counsel meet and go over possible issues?

(9) Is there evidence that counsel reviewed all the facts?

(10) Were the omitted issues dealt with in other assignments of error?

(11) Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?

Id. at 427-28.

     Excusing procedural default for "cause and prejudice" and a grant of relief for ineffective assistance of counsel involves an examination of whether prejudice occurred, see Frady, 456 U.S. at 167-69; Strickland v. Washington, 466 U.S. 688, 694 (1984). Thus, if Martin's underlying ineffective assistance of trial counsel arguments lack merit, he cannot show "cause and prejudice" via ineffective assistance of appellate counsel. Of course, our procedural default analysis is ultimately complicated by the fact that, although Martin apparently preserved ineffective assistance of appellate counsel arguments for federal review through his Murnahan application, he only presented one such argument with specificity on his habeas petition and that argument did not include his claim that appellate counsel should have raised ineffective assistance of trial counsel with regard to the merits he attempts to present in this action.

     Just prior to the Mapes court's recital of the considerations relevant to the constitutional effectiveness of appellate counsel, it noted that Mapes's claim of ineffective assistance of trial counsel at the mitigation stage was procedurally defaulted, but could be addressed in considering whether appellate counsel was ineffective in failing to raise it on direct appeal. Mapes, 171 F.3d at 427. Like Martin, Mapes raised ineffective assistance of appellate counsel, with regard to mitigation, in a post-conviction proceeding, id. at 412; however, unlike here, Mapes's habeas petition also sought relief on this specific ground.

     Another concern in this regard is the fact that our COA did not grant review of the ineffective assistance of appellate counsel claims that charged ineffective assistance of trial counsel. Of course, we would have no reason to do so since these specific issues were not raised in the habeas petition or considered by the district court. The COA did provide that the parties could address the question of procedural default related to the merit issues upon which the COA was granted. Inasmuch as the merits of the ineffective assistance of appellate counsel arguments are hopelessly intertwined with the procedural default arguments regarding the merit claims upon which we granted review, our grant of review on procedural default encompasses these claims.

     Martin makes essentially the same procedural default argument with regard to his claim of prosecutorial misconduct. In claim O(c) of his post-conviction application for delayed reconsideration, he argued that he received ineffective assistance of appellate counsel because his counsel had not argued that the prosecutor had improperly commented on his failure to testify. He argues that appellate counsel's ineffectiveness in this regard is cause and prejudice and thus excuses his failure to raise the issue on direct appeal. He did not raise this argument before the district court.

     Martin's failure to raise ineffective assistance of counsel and prosecutorial misconduct on direct appeal resulted in procedural default. He raised the merits of these claims in his ineffective assistance of appellate counsel on his Murnahan application, but he did not petition the district court for habeas relief in this regard. Thus, our discussion of the merits of these claims, save the effectiveness of his counsel at mitigation, is limited to his cause and prejudice arguments.

II. Ineffective Assistance of Counsel

     First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious 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.

Id. at 687. Both prongs of the inquiry are mixed questions of law and fact reviewed de novo. See id. at 698.

          1. Failure to challenge Martin's warrantless arrest.

     Martin does not argue that the police lacked probable cause to arrest him. Thus, although Martin's arrest could have been illegal, his identification by Foster and Pedro's statement to police were not suppressible fruits of this tainted action. See id. As any motion to suppress this evidence would have failed, Martin cannot show how the failure to make the motion was a result of his counsel's deficient performance or that the failure resulted in prejudice to his defense. Accordingly, Martin cannot show that his appellate counsel rendered ineffective assistance by failing to raise this issue on direct appeal, and, therefore, he cannot show cause and prejudice for his procedural default in this regard.

     He argues that Rieves-Bey's belief that Martin was not the man he saw fleeing from the scene of the crime shows that the failure to secure this testimony prejudiced his case. As stated above, Rieves-Bey's statements, while inconsistent with regard to the description of the fleeing man, corroborated the factual account of events testified to by Pedro. Also, Rieves-Bey's reliability as a witness is questionable at best, given the inconsistencies in his statements and testimony, and his admission of drug use and its effect on his memory. Both the State and the defense sought to secure Rieves-Bey's testimony, but he could not be located in time to appear at trial. His testimony would have been detrimental to Martin's defense and its absence will not support a finding that his trial counsel performed ineffectively, that his appellate counsel was ineffective for not raising the issue on appeal, or that he suffered prejudice by these alleged failings.

     Martin argues that his trial counsel rendered ineffective assistance by failing to: (1) effectively cross-examine Pedro regarding: (a) the inconsistency between Pedro's and Kidd's testimony and Pedro's previous statement concerning whether Martin dropped the two off, or went inside with them, at an after-hours establishment; (b) Pedro's "falling out" with Henderson and the question of whether Henderson held a grudge against Pedro and Martin; (c) Pedro's rendition of how she found money at Robinson's store; (d) Pedro's testimony that she had argued with Martin on the day of their arrests; and (2) effectively cross-examine Henderson, regarding: (a) her grudge against Martin; and (b) inconsistency between her testimony and Pedro's testimony about overhearing discussions of the plan to rob Robinson.

     Martin's arguments with regard to effective cross-examination of Pedro and Henderson are without merit. Martin points only to attenuated collateral facts and nonexistent inconsistencies in making this argument. Where arguably material inconsistencies exist, such as Henderson's and Pedro's recollections of when the robbery was discussed, other evidence (Foster's testimony about the theft of the gun, ballistics evidence, Kidd's testimony about Martin's possessing empty shell casings) corroborates or independently proves the facts that Martin contends effective cross-examination would have questioned. In sum, the overwhelming nature of the evidence of guilt precludes Martin from showing prejudice resulting from any alleged deficiency in his counsel's cross-examination.

     B. Mitigation

     Martin makes three ineffective assistance of counsel arguments related to the mitigation phase of his capital conviction: (1)failure to investigate or prepare for mitigation; (2)failure to object to a jury instruction on the role of the jury with regard to the imposition of the death sentence; and (3) counsel's request for and the preparation and introduction of a presentence investigation report and a psychiatric clinic report.

     Martin claims that his counsel failed to prepare for the mitigation hearing by failing to conduct an investigation into his background. He points to the failure of counsel to contact his immediate family members, save counsel's "talking" with his father and requesting a written statement from his mother. He does note the possibility of "limited contact [between counsel and] other family members at the courthouse on the day of the hearing." He lists eight family members that have stated, through affidavits, that they were ready and willing to testify at mitigation but were not interviewed by counsel. Martin does not show what they would have testified to, or how such testimony could have aided him at sentencing.

     Martin also takes issue with his counsel's failure to collect records and documentary evidence pertinent to his medical, mental health, educational, employment, juvenile, and incarceration histories. In his arguments, Martin points to two instances where the trial judge took an exceptionally active role (in his view, taking the place of counsel upon realizing their deficiencies) at the mitigation hearing. As relevant to this argument, he points to the trial judge's independent procurement of his records from the Mansfield Reformatory and the "Human Services Agency." A discussion of this information occurred outside of the presence of the jury. The judge called the reformatory's warden, who informed the judge that a psychological profile resulting from interviews and testing revealed "nothing extraordinary that would trigger their interests in having further psychiatric examinations of treatment done of [sic] the man." The judge later provided defense counsel with a letter from the warden that was consistent with their previous conversation about the records. Defense counsel concluded that the letter was of no value for mitigation, but made it part of the record for "appellate purposes."      

     After Mrs. Martin's testimony, the defense stated that it had nothing further to offer. The judge then began calling into the audience, inquiring as to whether other family members were present and wished to testify. This constitutes the other action by the judge that Martin contends demonstrates his counsel's ineffectiveness at the hearing. When the judge asked Martin's father, "Don't you want to come up here and speak for your son?", he replied, "You mean come now?" Defense counsel then stated that Martin's father did not want to testify, and the judge asked, "You feel that would not be helpful to the defendant?", to which counsel responded, "It might not be in the best interest." The judge then inquired whether Martin's counsel wanted to talk to a lady in the courtroom. Counsel responded, "I would like the record to show, Judge, that this is not the first time we have talked to Mr. Wilkins about testifying . . . . Mr. Adrine [co-counsel] has been in constant communication with him. Up to this point, they were fine, but now, there seems to be some interest - -" Adrine then interrupted, indicating that Martin's grandmother would testify. The judge then stated, "Okay. Bring in the jury." Earlier in the proceeding, Adrine stated, "Yes, we might further state for the record, that we have been in constant contact with the family outside, inside, during the course of the hearing, and we have discussed the matters fully with both mother and father, the brother, sister, and by telephone we have had several conversations."

     Martin's grandmother, Hattie Mae Johnson, then testified about the following facts: she took care of Martin when he was a baby and when he was five and six years old; he wanted to go to church with her at that age; she cooked for Martin and his siblings and their frequent hunger as children was due to a lack of financial support from their father; Martin's mother had a hard time raising her children due to her asthma and resulting inability to work steadily; and Martin's limited contact with his father and their relationship was not a typically "tight" one between father and child.

     If Ernest Martin is guilty of this, I say, let's improve. If he is going to a [sic] institution, let's see if we can't do something to change the outlook or the view or maybe his like that cord of wood, and all he is worth is casting aside, or putting it in a wood burning stove.

     I don't know, but this will be your choise [typo]. My Bible always says, judge, and says judge thee not - we have to be careful as to whether you want the same judgment.

     Thank you again.

     Martin argues that the course of these proceedings shows his counsel's complete failure to investigate mitigating evidence and that this insufficiency was so severe that we should infer prejudice pursuant to United States v. Cronic, 466 U.S. 648, 658 (1984).

     In regard to the cooperation of Martin, Carnes stated, "We found him to be [a] very difficult, uncooperative client." Co-counsel Adrine, added, "And even hostile at times." Id. Martin argues that this statement shows that "Defense counsel was [sic] sabotaging their own client's case." Martin's lack of cooperation is evident from an exchange between his counsel and the judge in which counsel stated that Martin wanted to give an oral statement, not under oath, at sentencing, but that he was unwilling to tell counsel what the statement would relate, even though they had advised him that he should do so.

     He also argues that defense counsel impeached his credibility by telling the judge, just after the exchange described immediately above, that he had admitted lying to them about a letter "relating to a different matter." They argue that these two statements further provide evidence of "counsel's abandonment of Mr. Martin."      

     In support of these propositions, he cites several recent cases from this circuit in which habeas relief has been granted for the failure of counsel to investigate at mitigation. This court's opinion in Carter v. Bell, 218 F.3d 581 (6th Cir. 2000), reviewed these cases and Williams v. Taylor, 529 U.S. 362 (2000), as follows:

In Williams, the Supreme Court found that trial counsel's representation of the petitioner during the sentencing phase fell short of professional standards . . . .

* * *

Id. at 595. In Coleman v. Mitchell, 244 F.3d 533, 544-45 (6th Cir. 2001), we clarified the import of some of these recent cases as follows:

We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):

Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend death.

Id. at 426.

* * *

Id. (emphasis in original). We then rejected Coleman's claim that the failure of his counsel to investigate mitigating evidence amounted to ineffective assistance because Coleman had been uncooperative and had directed his counsel to present limited evidence at the hearing, instructing him "not to investigate mitigating factors." Id. at 545-46.

     Campbell v. Coyle, ___ F.3d ____ , 2001 WL 863560 (6th Cir. 2001), another case involving a habeas petition filed by an Ohio death row inmate, further illuminates the standards applicable to ineffective assistance of counsel arguments related to capital sentencing proceedings. The Campbell court stated:

[W]e note that the cases where this court has granted the writ for failure of counsel to investigate potential mitigating evidence have been limited to those situations in which defense counsel have totally failed to conduct such an investigation. In contrast, if a habeas claim 'does not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation,' the presumption of reasonableness imposed by Strickland will be hard to overcome.

Id. at *19 (citing Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir.1993)) (emphasis added). The court then rejected the petitioner's claims of ineffective assistance of counsel at sentencing, which were based upon the alleged failure of his counsel to discover that he suffered from post-traumatic stress disorder ("PTSD"), because the petitioner had not pointed to anything in the record that showed he suffered from PTSD or any other psychological disorder. Id. at 22. The court stated:

     We also note that, unlike in Seidel [v. Merkle, 146 F.3d 750, 752 (9th Cir. 1998)] and Glenn [cited supra], Campbell has not pointed to anything in his childhood medical records indicating that he has either PTSD or some form of brain damage. He has never been diagnosed or treated for PTSD, whereas the medical records in Seidel explicitly noted the defendant's mental afflictions. See Seidel, 146 F.3d at 755-56. At most, Campbell's childhood medical records would have provided another list of people to interview. These former physicians and healthcare workers, Campbell argues, would have been able to expose his mental condition.

     This is much too tenuous a claim to support the conclusion that Campbell was prejudiced by his attorneys' failure to look into his childhood medical records.

Id.

     Martin's initial brief completely fails to point to what mitigating evidence further action on the part of his counsel would have uncovered. The affidavits of those he claims should have been witnesses at the hearing do not state what they would have offered on his behalf. Martin's reply brief references the affidavit of Dr. Nancy Schmidtgoessling, which states "the transcript material suggests that the defense could not have put on a well thought out, well developed mitigation, as they lacked the data to do so." The affidavit also states:

Among the significant factors that defense counsel failed to present to the jury in mitigation of the sentence are the following extremely significant psychological data:

A) family history of alcoholism;

B) family history of physical abuse;

C) parental dysfunctional and chaos that had a significant impact on Ernest Martin's adult psychological functioning;

E) the history of inappropriate behavior and troubled emotional status that was recognized and even attempted to be treated during Martin's childhood years.

* * *

     As is evident from the summaries above, the testimony of Martin's mother and grandmother did discuss most, if not all, of the factors in the affidavit. Granted, defense counsel did not produce expert testimony to draw conclusions from the facts presented by these two witnesses, but their testimonies did recount facts and occurrences showing everything that Dr. Schmidtgoessling contends was not, but should have been, presented. Some of this information is also found in the presentence investigation and the psychological report given to the jury. Dr. Schmidtgoessling's affidavit also fails to specify the "severe psychological disorder" from which Martin allegedly suffers. Thus, this "diagnosis" is no more than a conclusory statement from a psychologist who has never examined Martin. This part of the affidavit makes reference to the fact that the "Cleveland Court Clinic" completed a psychological workup of Martin for purposes of mitigation. The report generated from this workup was attached to Martin's motion to supplement the record. Thus, a psychological examination of Martin was conducted and a report of the examination was provided to the judge and jury during the mitigation phase. Martin argues that the report's conclusions were self-serving to the State and lacked credibility merely because it was generated by a State-employed pschyoanalyst. We have never found counsel to be ineffective solely because the expert used was on the State payroll. After all, the expert, Dr. Schmidtgoessling, now being touted by Martin, is apparently a government employee. Martin also argues that his counsel was ineffective for agreeing to have the report prepared, as discussed infra, but in truth, his argument rests on the fact that he did not like the conclusions it conveyed. As discussed below, once the report was requested, Ohio law required that the sentencing judge, the jury, and both parties obtain copies for review. Thus, this "psychological workup" is also included in the quantum of counsel's preparation for and performance at the mitigation phase.

     Martin's briefs did not take issue with the lack of an evidentiary hearing in the district court with regard to these specific claims. In his Rule 59(e) motion for an amended judgment, he complained generally about the district court's application of AEDPA to his petition and stated that the application of the standards for deciding the necessity of an evidentiary hearing in 2254(e)(2) "present[ed] the potential for retroactive effects." At oral argument, Martin's counsel, in a limited way, argued that he should be entitled to an evidentiary hearing with regard to his claims of ineffective assistance of counsel at the mitigation phase.

     The applicable version of 2254(e)(2) provides:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

     (A) the claim relies on--

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

     As stated above, these ineffective assistance of counsel claims were not raised during Martin's direct appeal. The Ohio courts declined to review these claims for this failure. See Perry, 226 N.E.2d at105-06; Cole, 443 N.E.2d at 170. Martin has "failed to develop the factual basis of [these] claim[s] in State court proceedings," 2254(e)(2), and, thus, a hearing is only warranted if he has shown that his claims fit the exceptions in 2254(e)(2)(A) or (B).

     Section 2254's Subsection (e)(2)(A)(i) is not applicable to this claim. Therefore, a hearing would be warranted only if Martin has provided the requisite showing that: " [this] claim relies on . . . (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."

     Martin has not attempted to show that the factual predicate to his claim of ineffective assistance of counsel at the mitigation phase could "not have been previously discovered through the exercise of due diligence." His brief attempted no such showing, and, at oral argument, his counsel could not explain why nearly 20 years had passed without an attempt to depose, interview, or otherwise contact Martin's trial counsel. Likewise, Martin's failure to point to mitigating evidence that presumably should have been, but was not presented, at sentencing, i.e., his failure to show prejudice, makes it clear that he has not met the requirement of 2254(e)(2)(B). Thus, Martin is not entitled to an evidentiary hearing with regard to this claim.

     Martin argues that his counsel rendered ineffective assistance by failing to object to jury instructions, which he contends were constitutionally infirm pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985), because they allegedly improperly led the jury to believe that the ultimate responsibility for the imposition of death lay elsewhere by stating that the jury only recommended the death penalty to the judge. Our court recently rejected this argument in Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000), as follows:

Id. This holding also reflects the state of Ohio law at the time of Martin's sentencing, and, thus, this argument is without merit.

          3. Presentence investigation and psychiatric clinic report

     In Martin's final subclaim involving allegations of ineffective assistance of trial counsel at sentencing, he contends that his counsel ineffectively agreed to the production of a presentence report and psychological evaluation. The presentence investigation report contained the following statement concerning the impact of the crime on the victim's wife: "Mrs. Robinson was very abrupt in her comments and very dramatic, indicating 'He shot my husband in the back, he is a skunk, and he needs to get the electric chair.'" Martin argues that this statement is unconstitutional under Payne v. Tenn., 501 U.S. 808, 827 (1991), which overruled Booth v. Maryland, 482 U.S. 496 (1987), but left intact its prohibition against such statements. Although Mrs. Robinson's statement was somewhat inflammatory, the presentation of the reports also allowed Martin to present his defense of the charges without being subjected to cross examination. Both reports relate that Martin denied the robbery and the homicide. The presentence investigation also elaborated on more specific parts of his defense, such as the appearance of "Slim" with Pedro near the time of the crime.

     C. Appellate Counsel

     Martin argues that his appellate counsel rendered ineffective assistance by failing to make the transcript of the proceedings on his motion for a new trial part of the record on his direct appeal. Viewing this claim in the framework outlined in Mapes, quoted above, it lacks merit because its underlying premises, that counsel ineffectively failed to procure Rieves-Bey's testimony and that the testimony would have changed the outcome of the trial, is incorrect.

     As discussed previously, both parties attempted to locate Rieves-Bey in time to testify at trial. He gave inconsistent statements and testimony about the physical description of the man he saw flee from the crime scene, stated that Martin was not the fleeing man, and that the police had the wrong man; however, his other testimony corroborated Pedro's version and sequence of the events, which was highly incriminating. At best, he was a problematic witness because of his admitted drug use and the effect he admits it had on his memory. Martin cannot show prejudice as Rieves-Bey's testimony was incriminating and would not have aided his defense. Accordingly, this claim is without merit.

III. Sufficiency of the Evidence

     Martin argues that the evidence supporting his conviction was insufficient because: (1) Foster's identification of him at the line-up was unreliable and tainted by police comments to Foster that "we [have] the guy that robbed you"; (2) the government presented very little physical evidence; (3) witnesses Pedro and Henderson were unreliable because Pedro was not charged for her involvement and Henderson had a grudge against him; and (4) the evidence did not support a finding that he had the specific intent to kill Robinson.

     As an initial matter, it must be noted that "attacks on witness credibility are simply challenges to the quality of the government's evidence and not to the sufficiency of the evidence." United States v. Adamo, 742 F.2d 927, 935 (6th Cir.1984). Thus, Martin's arguments with regard to Pedro and Henderson are misplaced. The district court's opinion contains an exhaustive review of the trial evidence that proved Martin's guilt. This recitation is consistent with the record and demonstrates that a rational juror could conclude that Martin committed the crimes beyond a reasonable doubt consistent with Jackson. Thus, Martin's argument is without merit.

IV. Prosecutorial Misconduct

This Circuit has explained that we will not find "manifest intent" where some other explanations for the prosecutor's comments are equally possible. United States v. Ursery, 109 F.3d 1129, 1135 (6th Cir.1997). In addition, we have made clear that the question is not whether the jury possibly or even probably would view the statements as comments on the defendant's failure to testify, "but whether the jury necessarily would have done so." Id.

Id. at 534.

     Martin's argument is without merit. As the district court found, the entire quote shows that "some other explanations for the prosecutor's comments are equally possible." Id. The comment was isolated, as this is the only comment complained of by Martin. Evidence of guilt was overwhelming. Finally, the court instructed the jury to draw no inference about Martin's decision not to testify.

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Footnotes

     ² The relevant part of the prosecutor's statement is apparently not included in the joint appendix in the form of trial transcript. The district court quoted the statement as follows:

[Defense Counsel:] Objection, your Honor, to that statement.

Court: Overruled.

[Prosecutor:] Everybody available testified. Everybody could testify the defendant as the perpetrator of the crime. Everybody testified, and there is not indications when the police officer testified that anyone other than the defendant committed the crime. That's why I am saying when the defense counsel argues to you, I want you to be thinking if you agree that this is reasonable; that would any counsel from my standpoint, defense counsel says, we presented evidence in this case, ask me, in my mind's eye, or them, where is the evidence that substantiates the position that you are asking us to take.