Background: After unsuccessful direct appeal, 43 Ohio St.3d 72, 538 N.E.2d 1030, and state post-conviction proceedings on his aggravated murder convictions and death sentence, petitioner filed a petition for a writ of habeas corpus. The United States District Court for the Southern District of Ohio, Herman J. Weber, J., denied writ, and petitioner appealed.

Holdings: The Court of Appeals, Siler, Circuit Judge, held that:
(1) petitioner's representation by same counsel at trial and on appeal precluded state rule requiring assertion of ineffective trial counsel claims on direct appeal from serving as procedural bar to habeas claims concerning trial counsel's conduct;
(2) petitioner procedurally defaulted on ineffective assistance of appellate counsel claims by not raising them in accordance with state procedural rule;
(3) defense counsel did not render ineffective assistance in connection with use of state psychologist's testimony;
(4) defense counsel was not otherwise ineffective;
(5) prosecutor did not make improper comment in urging jury to act as community conscience;
(6) prosecutor did not violate Brady or improperly use victim impact statements; and
(7) prosecutor's improper review of all statutory mitigating factors did not prejudice petitioner. Affirmed.

SILER, Circuit Judge.

Petitioner John R. Hicks was convicted after a trial by jury of two counts of aggravated murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one count of aggravated robbery, O.R.C. § 2911.01. He was sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and (A)(7). After unsuccessful direct appeals and state post-conviction proceedings, Hicks filed a petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254. The district court denied the petition and he appeals to this court. For the following reasons, we AFFIRM.

I. BACKGROUND

On August 2, 1985, Hicks acquired some cocaine in Cincinnati, Ohio. After ingesting the drug, he desired more and took the videocassette recorder (VCR) from the home he shared with his wife, Ghitana, and stepdaughter, Brandy Green. Hicks gave the VCR to a drug trafficker as security for a cocaine purchase. After consuming the cocaine, Hicks realized he had no money with which to redeem the VCR.

Recognizing that the missing VCR would lead to problems with Ghitana, he decided to rob Maxine Armstrong, who was Ghitana's mother and his mother-in-law. He knew that “if [he] robbed her he would have to kill her.” State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030, 1032 (1989). Hicks went to Armstrong's apartment, where he found Brandy asleep on the couch. He woke her, put her to bed, and prepared to kill Armstrong, telling himself, “you go do it or you don't.” Id. at 1033.

Hicks killed Armstrong by strangling her with a clothes line he had brought with him. He stole approximately $300 and some credit cards from her apartment. He then retrieved the VCR from the drug dealer and purchased more cocaine. Around 12:30 a.m. on August 3, after injecting the cocaine, he “got to thinking again” and realized that Brandy could identify him as the last person to visit Armstrong. Therefore, he decided to return to the apartment to kill Brandy.

Upon returning to Armstrong's apartment he tried to smother Brandy with a pillow. As Brandy was “bucking” and “fighting,” he tried to choke her with his hands. When she continued to make breathing sounds, he affixed duct tape over her nose and mouth. After killing Brandy, Hicks moved Armstrong's body into the bathtub so that he could dismember it for easier disposal.

After nearly severing one of her legs with a kitchen knife, however, he gave up and returned to the bedroom where Brandy's body was located. He removed her underwear and digitally penetrated her vagina. He then stole other items from the apartment, returned to his own apartment, and fled Cincinnati. On August 4, he surrendered to police in Knoxville, Tennessee, where he confessed to both murders. Hicks was returned to Cincinnati and made additional incriminating statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffman.

After Hicks was indicted, he filed a suggestion of incompetence to stand trial. The trial court conducted evidentiary hearings and found him competent to stand trial. While the trial court denied the majority of Hicks's pre-trial motions, it deferred ruling on his motion for funding to hire experts until he could “provide more specific information as to the identity and qualification of said expert or experts, the relationship of the expert's expected testimony ··· and the cost of said expert.”

The guilt phase of Hicks's trial began on February 3, 1986. Hicks did not present any evidence on his insanity defense and subsequently withdrew his insanity plea. On February 12, 1986, the jury found Hicks guilty on all counts. The sentencing phase of his trial began on February 13, 1986, and Hicks presented mitigating evidence and made an unsworn statement.

On February 14, 1986, the jury recommended death for the murder of Brandy Green and life imprisonment for the murder of Maxine Armstrong. Based upon its independent review of the evidence, the trial court sentenced Hicks to death for Green's murder, thirty-years' imprisonment for Armstrong's murder, and ten to twenty-five-years' imprisonment for aggravated robbery.

Hicks appealed to the Ohio Court of Appeals and asserted nine assignments of error. In 1988, the appellate court affirmed his convictions. He appealed to the Supreme Court of Ohio, asserting ten assignments of error. It rejected his arguments and affirmed his sentences. Hicks's subsequent motion for rehearing was denied by the Ohio Supreme Court in 1989. He then filed a petition for writ of certiorari in the United States Supreme Court, but it was also denied.

In 1990, pursuant to O.R.C. § 2953.21, Hicks filed a petition for post-conviction relief in the Hamilton County Court of Common Pleas, raising forty-one issues for review. The trial court denied his motion for relief from judgment. Hicks appealed to the court of appeals, raising twelve assignments of error. In 1993, the appellate court affirmed the decision of the trial court. Hicks then sought discretionary review before the Ohio Supreme Court, which dismissed his appeal on July 21, 1993, for lack of a substantial constitutional question.

In the interim, Hicks filed an application for delayed consideration in the Ohio appellate court in September 1992, submitting thirty-seven assignments of error. On December 1, 1992, the appellate court denied his application and he appealed to the Ohio Supreme Court. On October 27, 1993, the Ohio Supreme Court affirmed. On December 15, 1993, the Ohio Supreme Court denied his motion for rehearing. On March 5, 1993, Hicks filed a motion for reinstatement of direct appeal in the Ohio Supreme Court, which in turn denied his request.

In 1994, Hicks filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Ohio. An evidentiary hearing was held in 1997. In April 2001, the district court entered its thorough 171-page order denying Hicks's petition. However, it issued a certificate of appealability (“COA”) on the issues of ineffective assistance of counsel during the guilt and penalty phases and prosecutorial misconduct. We granted Hicks's request for a COA on the additional issue of ineffective assistance of appellate counsel.

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A. Ineffective Assistance of Trial Counsel

1. Cocaine Expert

Hicks first alleges that he was denied the effective assistance of counsel during the guilt phase of his trial because his counsel failed to consult with or obtain an expert on the effects of cocaine on the human body. Prior to trial, Hicks's counsel, Dominic Perrino and James Rueger, filed a notice of intent to rely on the defense of not guilty by reason of insanity. Hicks had not been evaluated prior to the filing of this notice and none of the three experts who subsequently evaluated him concluded that he was insane on the date of the murders. As Hicks's counsel realized during pretrial investigation that his cocaine ingestion could affect the guilt and penalty phases of his trial, they applied for the appointment of an expert witness pursuant to O.R.C. § 2929.024.FN2

Hicks's counsel anticipated the need for an expert on the pharmacological, physiological, and psychiatric effects of cocaine, specifically as it related to his ability to form intent to commit aggravated murder and any diminished mental capacity for mitigation purposes. The trial court advised Hicks's counsel that if they came forward with such an expert witness the request would probably be granted.

The trial court deferred ruling on Hicks's motion, specifically “taking it under submission pending further evidence, further argument from defense counsel.” Nevertheless, Hicks's counsel neither renewed the motion to appoint an expert nor obtained an expert, instead relying upon the testimony of Dr. Nancy Schmidtgoessling, a court-appointed psychologist.

FN2. O.R.C. § 2929.024 provides that if an indigent defendant is charged with aggravated murder, the court in its discretion may authorize defense counsel to obtain an expert if necessary for the proper presentation of the defendant's trial or sentencing hearing. The payment for the expert's fees and expenses are to be made in the same manner that payment for appointed counsel is made pursuant to Chapter 120 of the Ohio Revised Code.

Dr. Schmidtgoessling's testimony on Hicks's behalf was less than favorable. Although Dr. Schmidtgoessling did not hold herself out as a “cocaine expert,” she had been directed to evaluate Hicks regarding his competency and to determine if he was insane on the date of the crimes. While she testified that Hicks's criminal actions were consistent with cocaine intoxication and that he was probably impaired, she nonetheless opined that he acted with purpose and intent.

According to Hicks, Dr. Schmidtgoessling inaccurately testified as to the following: voluntary cocaine intoxication does not meet the definition of “disease or defect”; Hicks understood his actions; the duration of cocaine intoxication peaks at about fifteen to twenty minutes; and injection of cocaine, rather than inhalation, leads to a quicker reaction, although “the intensity or symptoms are equally the same” whether injecting or inhaling it. Dr. Schmidtgoessling's testimony was damaging to Hicks's case because it significantly narrowed the time in which he could have been acting under the influence of cocaine.

Because Hicks's counsel were surprised by Dr. Schmidtgoessling's testimony and “as to the affect that she testified as her qualifications as to what cocaine affect has on a person, how long lasting it was,” they attempted to use Dr. Ross Zumwalt, the Hamilton County Coroner, as a “cocaine expert” during cross-examination. Dr. Zumwalt's testimony did not benefit Hicks.

The district court denied Hicks's habeas relief on his claim of ineffective assistance of trial counsel because he feigned mental illness and refused to cooperate with his counsel, concluding that Hicks's “failure to cooperate had an adverse impact on the ability of his defense counsel to conduct his defense and that the decision to use Dr. Schmidtgoessling as a defense expert was a tactical decision by counsel and appropriate under the circumstances.”

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Second, the record indicates that Hicks was a malingerer who refused to assist his counsel in the preparation of his defense. For example, prior to trial Perrino informed the trial court that defense counsel needed a “cocaine expert” because they did “not have assistance from our client except that we know from certain things that he indicated in statements that were given to us to the ingestion of cocaine and what its effect may have on him.”

Furthermore, although Rueger observed that Hicks was “fully communicative” during their first meeting, Hicks later “went into a shell, ··· wouldn't talk, wouldn't look at you, just stared off in the distance and kind of rocked back and forth.” Rueger also insisted that Hicks's lack of cooperation and participation in his own defense adversely affected his counsel's preparation of the case. Rueger cited a specific instance in which he and Perrino “couldn't even communicate or ask [Hicks] whether or not the notes that the Police Officers in Cincinnati had taken ··· were consistent with what he remembered talking to them about.”

Dr. James Reardon, a counseling psychologist who testified during the evidentiary hearing on behalf of Warden Collins, insisted that “Dr. Schmidtgoessling was prevented from administering and interpreting any psychological tests” upon Hicks due to his feigning mental illness; Dr. Schmidtgoessling could not obtain “any kind of coherent history or representation of the circumstances and facts of the case based on [ ] Hicks's behavior”; and by reason of Hicks's behavior and lack of cooperation, his counsel were unable to have any psychological tests performed upon him, “which may have contributed to their ability to assess him in a more complete way.”

Third, and most importantly, even if the jury had been informed of cocaine psychosis and its effects, the result of the proceeding would not have been different. Like Dr. Schmidtgoessling, Dr. Parran testified that Hicks's actions were purposeful and that “certainly people can do purposeful actions when they're involved in cocaine psychosis.” Additionally, Dr. Parran could not testify that Hicks was insane at the time he committed the offenses.

The decision to employ Dr. Schmidtgoessling was a direct result of Hicks's refusal to cooperate with his counsel. See Coleman, 244 at 545 (death penalty petitioner was not subjected to ineffective assistance of counsel where he did not cooperate with his counsel concerning the investigation and identification of mitigating evidence, imposed restrictions upon his counsel, and refused to submit to further psychological or psychiatric testing). A fair assessment of counsel's performance requires that we “evaluate [their] conduct from counsel's perspective at the time.” Combs, 205 F.3d at 278 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

3. Mitigation Hicks further claims that his trial counsel was ineffective in failing to introduce evidence of his abusive upbringing, problems in school, poor self-esteem, and history of drug and alcohol abuse in mitigation. Arguably his most compelling contention is that counsel should have, at a minimum, called some sort of expert witness instead of relying on the testimony of his mother and six former co-workers, who generally testified that Hicks was a “good guy” and that his crimes were out of character. At the evidentiary hearing before the district court, Dr. Susan Shorr, a mitigation specialist, and Dr. Julia Hawgood, a clinical psychologist, opined that this failure to call a psychiatric or psychological expert rendered counsel's mitigation efforts ineffective.

Under the Strickland standard, however, Hicks's counsel was not constitutionally ineffective in mitigation. This is so because, as the district court found, “Mr. Hicks did not assist his counsel because he was feigning the symptoms of mental illness.” It is significant that Dr. Shorr, who testified at the evidentiary hearing that counsel's mitigation strategy was substandard, “did not consider, in making her opinion, the fact that Mr. Hicks refused to cooperate with his counsel.”

Similarly, Dr. Hawgood, whose testimony was to the same effect, conceded that “Mr. Hicks admitted [to her, in the course of her evaluation of him] that prior to and during his trial he had feigned mental illness.” FN7 This singular fact-that Hicks did little to participate in his own defense because he was faking a mental illness-distinguishes this case from those Hicks relies upon and effectively forecloses a finding that counsel was ineffective.

FN7. This concession is particularly damaging to Hicks's specific contention that counsel was ineffective for failing to call a psychologist or other expert during the mitigation phase because, had counsel in fact called such an expert, the prosecution could have introduced this concession in rebuttal. As it was, the jury was not privy to this damning information.

Hicks further argues that his counsel was ineffective in failing to present his history of sexual abuse to the jury. He alleges that his counsel “entirely overlooked the detailed information concerning [his] background that Shirley Leahy had compiled for the court psychiatric clinic.” FN8 Leahy compiled a detailed report concerning Hick's background which, although her report was available to Hicks's counsel for mitigation purposes, was never used.

Hicks also claims that while many of his relatives were prepared to testify during the mitigation phase of his trial, none was called to do so. FN8. Shirley Leahy, a clinical social worker who interviewed Hicks prior to trial, aided Dr. Schmidtgoessling in constructing Hicks's social history.

Despite Hicks's contentions, his counsel was not ineffective. Hicks was uncooperative and never communicated any history of sexual abuse to his counsel. Although Perrino reviewed Leahy's report, defense counsel's failure to introduce the report or call Leahy as a witness was probably a tactical decision. For instance, in the “Sexual History” section of Leahy's report, she documented that Hicks was molested by a fourteen-year-old male cousin when he was eight years old.

In addition, Hicks confided in Leahy that he engaged in homosexual prostitution as a teenager and after he married his first wife. If Leahy's report had been admitted or she had testified, the jury would have learned this information. In all likelihood, this fact would have been unfavorable to Hicks. Furthermore, while Hicks was molested by a juvenile when he was a child, Hicks molested Brandy, postmortem, when he was an adult. Therefore, defense counsel*218 made a tactical decision to keep this potentially-damaging information from the jury.

We “reject[ ] [Hicks's] claim that the failure of his counsel to investigate mitigating evidence amounted to ineffective assistance because [Hicks was] uncooperative····” Martin v. Mitchell, 280 F.3d 594, 612 (6th Cir.2002) (citing Coleman, 244 F.3d at 545-46). There is an “extremely high standard that must be met for counsel's representation in the penalty phase to be considered constitutionally inadequate[,]” Mason v. Mitchell, 320 F.3d 604, 643 (6th Cir.2003) (Boggs, J., dissenting), and Hicks has fallen short of that standard.

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For the foregoing reasons, the judgment of the district court is AFFIRMED.