About 9:50 a.m., Warden Phillip Kerns approached Cooey and read the state's death warrant. Cooey was then fitted with shunts in each arm that were used to transfer the lethal drugs into his system.

By Alan Johnson - Columbus Dispatch

On his last night, Cooey had a big meal: a T-bone steak with A1 sauce, french fries and onion rings, four eggs over easy, hash browns, buttered toast, bear claw pastries, a pint of Rocky Road ice cream and Mountain Dew. The prison waived its nonsmoking policy, allowing him to smoke in his Death House cell.

By Michal K. McIntyre - Cleveland Plain Dealer

Rob McCreery opened a gift bag from a former Alpha Delta Pi sorority sister of Dawn and Wendy. It was a shirt with the sorority's Greek lettering, one that Dawn had actually worn. The card said it was for Rob McCreery's 5-year-old daughter. The morning sky, still dark, was full of stars as a nearly full moon loomed over the hills of Lucasville. At breakfast in the Holiday Inn Express, someone noted that it was a harvest moon. Perfect for execution day. "You reap what you sow," said Nicole McCreery, Rob's wife.

The state has now executed 27 inmates since 1999, when Ohio renewed executions after more than three decades.

ProDeathPenalty.com

Gov. Bob Taft on Tuesday denied Cooey's request for clemency. Cooey admits he kidnapped, robbed and raped University of Akron sorority sisters Wendy Offredo, 21, and Dawn McCreery, 20, of North Ridgeville, in September 1986. He denied he killed them, but says he's ''morally'' responsible for the murders. According to court documents, Cooey was on leave from the Army when he and a friend, Clint Dickens, attacked the women. Dickens was 17 then and could not be sentenced to death. He is serving a life sentence.

June 13, 2005

MarkGribben.com

State v. Cooey, Not Reported in N.E.2d, 1987 WL 31921 (Ohio App. 1987). (Direct Appeal)

1. HISTORY OF THE CASE

Richard Wade Cooey, II, defendant-appellant, was tried by a panel of judges and found guilty of two counts each of aggravated murder under R.C. 2903.01(A) and R.C. 2903.01(B), with three aggravating specifications to each count [R.C. 2929.04(A)(3), (5), and (7) ]. Cooey was also found guilty of two counts of kidnapping, two counts of rape, two counts of aggravated robbery and one count of felonious assault. The trial panel, after a penalty hearing, found that the aggravating circumstances for the aggravated murders outweighed the mitigating factors. The trial panel sentenced Cooey to death for the aggravated murders and to imprisonment for the other seven felonies.

Cooey appeals his conviction and death sentence assigning thirteen errors, with the seventh assignment of error having ten subparts.

2. STATEMENT OF THE FACTS

On August 31, 1986, Wendy Offredo and Dawn McCreery left their place of employment to go to a bar frequented by young adults. As they drove on the Akron expressway, they traveled under a bridge where Cooey, along with a juvenile co-defendant, Clint Dickens, and Kenny Horonetz stood. Clint Dickens hurled a piece of concrete off the bridge, hitting Offredo's car, smashing the windshield, damaging the side of the car and the door frame. Offredo was cut by the glass and immediately pulled to the side of the road.

Cooey and his companions approached the women and drove them to a pay phone where they could call the Akron police, as well as their parents. Offredo's mother said she would come to the car and Cooey gave the mother directions on the location of the disabled car. While the women made their phone calls, Clint Dickens saw money in Offredo's wallet and suggested to Cooey and Horonetz that they rob the women. Once everyone got back into Cooey's car, he drove for a distance and then stopped the car. Cooey pulled a knife on the women and ordered Horonetz to tie them up. Horonetz refused, got out of the car and left.

Cooey and Dickens took one of the victims' purses. Cooey drove the car to an isolated wooded area and the victims were forced to exit the car. Cooey raped McCreery while Dickens raped Offredo. Then, Cooey raped Offredo while Dickens raped McCreery. During this time, Cooey called out Dicken's name, which infuriated him. Dickens grabbed a billy club which had been placed on the hood of the car and began hitting a tree.

Cooey grabbed Offredo in a choke hold, strangling her until she was unconscious. Once she was on the ground he tied her feet together with a red bandana. Dickens clubbed McCreery with the billy club when she attempted to escape. She eventually slumped to the ground. Cooey tied a shoestring around Offredo's neck and Dickens tied another around McCreery's. During this episode, both victims were beaten in the head with the billy club and McCreery was stabbed in the neck.

The pair stripped the bodies of all jewelry and placed it in the purses. They then dragged the bodies off the road and into some weeds. Cooey and Dickens brushed the car tracks off the road with branches and left, driving to a nearby carwash to wash the blood off the car, their clothing and themselves. Thereafter, they discarded the purses. The next day, when Cooey learned that the police had discovered the bodies, he, Dickens, Horonetz and Terry Grant went back to where the purses had been thrown, recovered them, and took them to Cooey's home where they were burned.

A few days following the murders, an informant called the detective bureau telling the police that Cooey was trying to sell jewelry belonging to the victims. The informant named the street Cooey lived on. The police immediately set up surveillance around Cooey's house while two warrants were being obtained-one to search and one to arrest Cooey. Cooey attempted to leave the house and he was arrested. Items were removed from his person and from his grandmother's automobile. Thereafter, the house was searched and various items were removed. At the police station, Cooey gave several statements to the police. A motion to suppress these statements was made and denied.

Clint Dickens, the juvenile, was tried as an adult. He was found guilty, and sentenced to life imprisonment. Cooey waived his right to a trial by jury and a panel of judges was assigned to try him. Cooey was found guilty by the panel of judges, and sentenced to death.

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4. APPELLATE REVIEW PROCEDURES

In order to determine whether Cooey's death sentence should be affirmed upon appeal, this court is required to do three things. First, it must answer the specific issues raised by Cooey regarding the proceedings below. Second, it must independently weigh the aggravating circumstances in this case against any factors which mitigate against imposition of the death penalty. Finally, it must independently consider whether Cooey's sentence is disproportionate to the death penalty imposed in similar cases. State v. Rogers (1985), 17 Ohio St.3d 174, 175.

5. PRE-TRIAL MOTIONS

ASSIGNMENT OF ERROR I

“That the trial court erred in failing to suppress statements obtained from appellant by the police for reason that said statements were obtained in violation of appellant's Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and Article I Section 10 of the Ohio Constitution.”

Cooey made two taped statements admitting his involvement in the aggravated assault, kidnapping, robbery, rape and murder of the victims. These taped confessions were made on September 1, 1986 and September 2, 1986, immediately following Cooey's arrest. The entire time period within which Cooey gave his statements covered about five and one quarter hours.

The first taped statement began on September 1, 1986 at 10:30 p.m. and ran to 10:47 p.m., when the statement was interrupted so that Cooey could show the police the location of the house where the co-defendant, Clint Dickens, resided. The first tape resumed at 11:59 p.m. and lasted until 12:35 a.m. on September 2, 1986. The second taped statement began at 1:55 a.m. on September 2, 1986 and continued until 2:14 a.m. when another break was taken. The second taped statement resumed at 2:45 a.m. and continued until 3:16 a.m. Cooey motioned the trial court for a suppression of both taped statements claiming that he did not understand the meaning of his rights.

A defendant's statements may only be admitted into evidence at a criminal trial if the statements were knowingly and voluntarily made. Mincey v. Arizona (1978), 437 U.S. 385. Whether the statements were knowingly and voluntarily made is to be determined from the totality of the circumstances. State v. Barker (1978), 53 Ohio St.2d 135. Initially, although not in itself enough to show voluntariness, Cooey repeatedly waived his Miranda rights throughout the interrogation. State v. Utsler (1970), 21 Ohio App.2d 167. Despite the length of the interrogation period, the questioning itself was intermittent and relatively short. The actual time of the two taped statements together was approximately one and a half hours.

There is no claim nor evidence of physical deprivation or mistreatment. There is also no evidence that there were any threats or inducements made to elicit the statements. In fact, it is apparent that Cooey's statements were a self-serving attempt to deflect the blame to the co-defendant, Clint Dickens, and to thus minimize his role in the crimes. Although Cooey had little or no prior criminal experience and was nineteen at the time he made the statements, he did possess an above-average intelligence. These facts combine to lead this court to conclude that the statements were knowingly and voluntarily given. The trial court properly denied Cooey's motion to suppress. Assignment of error one is overruled.

ASSIGNMENT OF ERROR II

“That the trial court erred in failing to suppress evidence seized as a result of search warrants issued in this case for reason that said evidence was seized in violation of his Fourth Amendment rights.”

After the discovery of the victims' bodies, the discovery of evidence from the murder scene, the police interview of a witness, David Jones, and the evidence provided by the victims' families, the police applied for a search warrant of Cooey's residence and automobile. The warrant was authorized by a judge of the municipal court. Upon execution of the warrant, the police seized a number of items from Cooey's home and automobile. Cooey argues that the trial court erred in failing to suppress this evidence.

Cooey initially contends that the affidavit submitted with the application for the warrant was insufficient to justify the issuance of the warrant. In reviewing the sufficiency of the affidavit, this court must ensure, through a conscientious review of the affidavit, that the issuing magistrate had a substantial basis for concluding that probable cause existed. State v. Bean (1983), 13 Ohio App.3d 69. The affidavit of Detective Hillegas, and the sworn testimony of Officer Wright and Detective Hillegas, given prior to the issuance of the warrant provided the municipal judge with sufficient information upon which to conclude that probable cause existed to issue the search warrant. Crim.R. 41(C).

Cooey also contends that the search made pursuant to the warrant became exploratory and exceeded the scope of the warrant. Cooey urges that the items seized were not specifically listed in the warrant. The warrant clearly described the residence and automobile to be searched. The warrant authorized the search and seizure of the following items.

1. One gold necklace, 16?-18? in length. 2. One gold necklace, 12? in length. 3. Four (4) wrist bracelets, gold in color. 4. Two (2) gold ladies rings. 5. Two (2) ladies rings with diamond setting. 6. One ladies ring with red stone setting. 7. One ladies watch, red stones around face of watch. 8. One ladies watch, with black plastic band. 9. One police type nightstick. 10. One checkbook from National City Bank (In the name of Wendy Offredo). 11. One credit card from Highbees (In the name of Wendy Offredo). 12. One credit card from O'Neils (In the name of Wendy Offredo).

Cooey complains that certain items seized do not fit under any of the enumerated items. This court disagrees. The description of the jewelry seized from Cooey's leather jacket sufficiently match the description provided in the warrant. The watch and knives taken from Cooey were taken incidental to a lawful arrest. The billy club found in Cooey's bedroom was specifically described in the warrant and found on his bed.

Although the search warrant did not specify the seizure of items containing trace evidence, the police seized clothing items found laying around Cooey's bedroom and in the basement, because they were believed to be recently worn by Cooey. The seizure of these items meet the plain view exception to the warrant requirement. Coolidge v. New Hampshire (1971), 403 U.S. 443. Accordingly, assignment of error two is overruled.

ASSIGNMENT OF ERROR XI

“The trial court erred in denying appellant's motion for change of venue.” In this assignment of error, Cooey contends that the extensive pre-trial publicity of this case required a change of venue. Cooey asserts that the fact-finder could not impartially consider the case because of the pre-trial publicity. This argument is not well taken.

A decision to change venue is within the trial court's discretion. State v. Johnson (1972), 31 Ohio St.2d 106, paragraph three of the syllabus. This court will not reverse such a decision absent a clear showing that the trial panel abused its discretion. Abuse of discretion connotes more than an error of law or judgment, it implies that the trial panel's attitude is unreasonable, arbitrary or unconscionable. No such abuse appears from the record here. See State v. Adams (1980), 62 Ohio St.2d 151, 157.

Prior to any jury voir dire, the defense moved for a change of venue. Cooey then decided to waive his right to a trial by jury while renewing his motion for a change of venue. The record here is insufficient to demonstrate that the pre-trial publicity was so pervasive and prejudicial as to warrant a finding that a fair trial was not probable in this jurisdiction. State v. Herring (1984), 21 Ohio App.3d 18. Accordingly, the trial panel did not err in denying the motion for a change of venue, and this assignment of error is overruled.

ASSIGNMENT OF ERROR III

“That the trial court erred in failing to require the state to elect whether to proceed upon a prosecution theory of prior calculation or design as felony murder.” (sic)

In this assignment of error, Cooey claims that the state was required to elect, prior to trial, whether to proceed on the count of felony murder or on the count of murder by prior calculation or design. Cooey asserts that Crim.R. 14 requires the court to order an election once there is a finding of prejudice by a joinder of the offenses. Cooey failed to show either prejudicial joinder or any other legal basis for requiring the state to elect between the two different theories of aggravated murder.

A defendant who asserts that a joinder is improper has the burden of making an affirmative showing that his rights are prejudiced. State v. Williams (1981), 1 Ohio App.3d 156, 159. Although Cooey asserts that he was prejudiced, he provides no support for his assertion. Upon review of the record, this court does not find that Cooey was prejudiced by the joinder of the aggravated murder counts.

R.C. 2941.25(A) provides: “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted on only one.”

The allied offense statute is only a sentencing statute which precludes, not an indictment or the finding of guilt of an allied offense of similar import, but rather a judgment of conviction on both offenses. State v. Kent (1980), 68 Ohio App.2d 151. A judgment of conviction is defined as a plea or verdict of guilty and the imposition of sentence. Crim.R. 32(B), State v. Henderson (1979), 58 Ohio St.2d 171. Cooey was sentenced on the felony murder counts and not on the murder by prior calculation or design counts. Accordingly, the allied offense statute was not violated here.

The state was not required to elect whether to proceed upon a prosecution theory of prior calculation or design or felony murder. Cooey's third assignment of error is overruled.

6. EVIDENTIARY RULINGS

ASSIGNMENT OF ERROR IV

“In a capital murder prosecution, evidence of a criminal defendant's diminished capacity is relevant and the introduction of such evidence should be permitted.”

Cooey contends that the proffered testimony of Dr. Siddall relative to diminished capacity should have been admitted at the guilt phase as relevant to the specific intent or purpose element contained in the first four counts of the indictment. Although this testimony was later admitted at the sentencing phase of the trial, Cooey argues that the denial of his opportunity to present such evidence at the guilt phase denies him the right to present evidence on his behalf. This contention is not well taken.

Under R.C. 2929.03(D)(1) and R.C. 2929.04(B)(3), the defendant's mental capacity is a formal mitigating factor in capital cases rather than a defense to be presented during the guilt phase. State v. Wilcox (1982), 70 Ohio St.2d 182. After giving a written plea of insanity and having an evaluation of his mental condition at the time of the crime, Cooey withdrew his not guilty by reason of insanity plea prior to trial. Expert psychiatric testimony, unrelated to the insanity defense, may not be offered to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime. Wilcox, supra, paragraph two of the syllabus. Accordingly, the trial panel properly refused the testimony of Dr. Siddall during the guilt phase. This assignment of error is overruled.

ASSIGNMENT OF ERROR VI

“It is error for a presiding judge in a capital murder case tried to a three judge panel, to disseminate Victim Impact Statements to the other judges, without showing them to defendant or defense counsel and consider the contents of the statement in the mitigation phase.”

Cooey contends that the trial panel erred by considering the victim impact statement in the mitigation phase of the trial. Cooey further contends error in the failure to provide a copy of the victim impact statement to the defense. These contentions are not well taken.

Cooey requested that the trial panel order a pre-sentence investigation and report. Here, the pre-sentence report was accompanied by the victim impact statements. A victim impact statement “does not relate to any of the statutory aggravating or mitigating factors which the [fact-finder] is required to weigh.” State v. Denson (Oct. 1, 1986), Hamilton App. No. C-850311, unreported, at 27. Consideration of a victim impact statement is proper only at the time of sentencing. Booth v. Maryland (1987), 482 U.S. 496, 96 L.Ed.2d 440. However, the trial panel clearly discovered its error in admitting the victim impact statements, and corrected the error.

The trial panel specifically stated in its separate opinion, required under R.C. 2929.03(F), that the victim impact statements were not given any consideration in the mitigation phase and had no bearing on the panel's decision to sentence Cooey to death. Thus, the error in the admission of the statements did not act to prejudice Cooey. Crim.R. 32.2(C)(1) provides that the report of the pre-sentence investigation is not to be confidential in aggravated murder cases. Here, the victim impact statements were not considered by the trial panel and the failure to provide a copy of these statements to the defense was not prejudicial. This assignment of error is overruled.

7. Verdict and Judgment

ASSIGNMENT OF ERROR XII

“The verdicts in this case were against the manifest weight of the evidence.”

Cooey asserts that the manifest weight of the evidence is insufficient to support his conviction on the murder with prior calculation or design counts. Cooey contends that the evidence shows that the decision to kill the victims was instantaneous rather than with thought and preparation. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. State v. Thomas (1982), 70 Ohio St.2d 79.

Here, there is substantial evidence that Cooey and the co-defendant, Clint Dickens, discussed and formulated a plan to kill the victims. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of a murder to constitute prior calculation, and the circumstances surrounding the murder show a scheme designed to implement the calculated decision to kill, a finding of prior calculation and design is justified. State v. Robbins (1979), 58 Ohio St.2d 74.

The evidence demonstrates that during the rape, Cooey used Dickens' name. Dickens became angry because the victims had learned his name. After the rape, the victims got back in the car while Cooey and Dickens remained outside of the car and talked. Dickens stated that the victims would have to be killed because they knew his name. This evidence supports the finding that there was prior calculation.

The circumstances surrounding the murders also demonstrate a scheme designed to implement the calculated decision to kill. As the victims were getting out of the car, each of the defendants grabbed one of the victims and rendered them unconscious by strangulation or club beating resulting in death or near death. Once unconscious, the victims were beaten and choked to make sure that they were dead. Accordingly, there was substantial evidence upon which the trial panel could reasonably conclude that Cooey committed the murders with prior calculation and design.

A review of the record further demonstrates that there was substantial evidence to find that Cooey had committed each and every crime of which he was found guilty. This assignment of error is overruled.

ASSIGNMENT OF ERROR VIII

“The court committed error in sentencing the defendant to death in that the aggravating circumstances that the defendant was convicted of did not outweigh the mitigating factors by proof beyond a reasonable doubt as required by ORC 2929.03 and the United States Supreme Court.”

In this assignment of error, Cooey alleges that the aggravating circumstances do not outweigh the mitigating factors beyond a reasonable doubt, thus the trial panel's imposition of the death penalty was improper. This assignment of error is reviewed separately from our own mandated statutory independent review and weighing process as required under R.C. 2929.05(A).

Under R.C. 2929.04, in order for the trial panel to impose a death penalty, it must find that the aggravating circumstances enumerated under R.C. 2929.04(A) and proven beyond a reasonable doubt, outweigh the mitigating factors set forth under R.C. 2929.04(B), the existence of which must be established by a preponderance of the evidence. In essence, the aggravating circumstances proven beyond a reasonable doubt were, that the offense was committed for the purpose of escaping detection, apprehension, trial or punishment for another offense committed by the offender [R.C. 2929.04(A)(3) ]; that the offense was part of a course of conduct involving the purposeful killing of two or more persons by the offender [R.C. 2929.04(A)(5) ]; and that the offenses were committed while the offender was committing kidnapping, rape and aggravated robbery, and either the offender was the principal offender, or if not, committed the aggravated murder with prior calculation and design. [R.C. 2929.04(A)(7) ].

R.C. 2929.04(B) specifies that the court must consider the nature and circumstances of the crime; and the history, character and background of the offender as mitigating factors. The court must also consider any of the seven additional mitigating factors specified under R.C. 2929.04(B), which are established by a preponderance of the evidence.

Of these seven specified mitigating factors, Cooey presented evidence concerning only two of these factors. Cooey was clearly only nineteen at the time the crimes were committed, and Cooey did not have any significant criminal history. Cooey also asserted that he was innocent of aggravated murder, had a history of drug and alcohol abuse, and that his juvenile co-defendant could not be sentenced to death.

Although Cooey attempted to show that he had a diminished mental capacity, his own expert testimony demonstrated that Cooey did have the capacity to appreciate his criminality and could conform his conduct to the requirements of law. Cooey also attempted to show that he was not the principal offender and that his degree of participation in the offenses did not justify the imposition of the death penalty. However, Cooey was found to be the principal offender beyond a reasonable doubt at trial. Therefore, Cooey failed to meet his burden of demonstrating the existance of this mitigating factor.

Upon review of the aggravating circumstances proven beyond a reasonable doubt, and the mitigating factors shown by a preponderance of the evidence, the trial panel did not err in holding that the aggravating circumstances outweighed the mitigating factors. The mitigating effect of Cooey's youth and lack of criminal history, his abusive family history, his substance abuse, his claimed innocence, and the unequal punishment between Cooey and his co-defendant, does not outweigh the aggravating circumstances in this case.

Cooey intentionally and brutally kidnapped, raped and robbed the two victims over a period of three hours, then, Cooey killed the two victims by beating, choking and strangling them in order to escape detection. The trial panel properly found that these aggravating circumstances outweighed the mitigating factors in this case beyond a reasonable doubt. See State v. Byrd (1987), 32 Ohio St.3d 79; State v. Martin (1985), 19 Ohio St.3d 122. This assignment of error is overruled.

8. INDEPENDENT REVIEW

This court must also undertake the independent weighing process required by R.C. 2929.05(A) to determine whether the aggravating circumstances of which Cooey was found guilty outweigh the mitigating factors beyond a reasonable doubt. The aggravating circumstances of which Cooey was found guilty are as follows:

(1) That the Aggravated Murder of Wendy Offredo was part of a course of conduct involving the purposeful killing or attempt to kill two or more persons; [R.C. 2929.04(A)(5) ].

(2) That the Aggravated Murder of Wendy Offredo was committed while the Defendant committed the offense of Kidnapping, Robbery, and Rape and that he was the principal offender and the aggravated murder was committed with prior calculation and design; [R.C. 2929.04(A)(7) ].

(3) That the Aggravated Murder of Wendy Offredo was committed for the purpose of escaping detection, apprehension, trial or punishment for another crime or crimes, to wit: Rape, Kidnapping and Aggravated Robbery; [R.C. 2929.04(A)(3) ].

(4) That the Aggravated Murder with prior calculation and design of Dawn McCreery was part of a course of conduct involving the purposeful killing or attempt to kill two or more persons; [R.C. 2929.04(A)(5) ].

(5) That the Aggravated Murder of Dawn McCreery was committed while the Defendant committed the offenses of Rape, Kidnapping and Robbery and that he was the principal offender and the aggravated murder was committed with prior calculation and design; [R.C. 2929.04(A)(7) ].

(6) That the Aggravated Murder of Dawn McCreery was commited for the purpose of escaping detection, apprehension, trial or punishment for another crime or crimes, to-wit: Rape, Kidnapping and Aggravated Robbery; [R.C. 2929.04(A)(3) ].

Initially, it must be pointed out that the second and fifth aggravating circumstances are an incomplete statement of R.C. 2929.04(A)(7). R.C. 2929.04(A)(7), in whole part is as follows: “Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt:

* * *

“(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.”

The criteria set forth in R.C. 2929.04(A)(7) are constructed in the alternative. The death penalty may be imposed only where the aggravated murder was committed during the course of one of the enumerated felonies, and the defendant was the actual killer, or, where the defendant was not the actual killer, if he committed the murder with prior calculation and design. These alternatives are not to be charged and proven in the same cause. Penix, supra, at 371. Thus, since Cooey was found to be the principal offender, then the aggravating circumstance is shown, and the question of whether the offense was also committed with prior calculation and design need not be considered.

In addition, the trial panel should not have considered the two repeat murder aggravating circumstances separately since they arose from the same indivisible course of conduct, and thus were duplicative. See Jenkins, supra, paragraph five of the syllabus. Resentencing is not required in this case however, since this court finds that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and it is clear that the trial panel's consideration of the duplicative aggravating circumstance in the penalty phase did not affect the verdict. Jenkins, supra, paragraph five of the syllabus.

R.C. 2929.04(B) sets forth seven factors to be considered in mitigation of the death penalty: (1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; (5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

Three persons presented mitigating evidence at the penalty phase of the trial: a clinical psychologist, Cooey's mother and Cooey himself. The psychologist spent approximately seven hours with Cooey. He testified that: 1) Cooey possessed an I.Q. in the high average range, 2) Cooey suffered physical abuse beginning at an early age, 3) Cooey had a severe personality disorder and exhibited early signs of an emotional disturbance, 4) Cooey had a chronic alcohol and drug dependency, and 5) Cooey suffered from a mental disorder that would likely affect his judgment and behavioral control. On cross-examination, the psychologist testified that Cooey's mental disorder did not prevent him from appreciating the criminality of his actions or from conforming his conduct to the requirements of law.

Cooey's mother testified that Cooey's father began to physically abuse Cooey at age three. After his parents divorced, Cooey divided his time, from age eleven to eighteen, living with his mother, his father, and his grandmother. Cooey's mother also testified that his father abused alcohol and drugs, and that his father introduced him to drugs when he was about fifteen years old.

Cooey was the last person to give evidence at the sentencing hearing. He made an unsworn oral statement which corroborated his mother's testimony concerning his childhood. Cooey stated that he increasingly used drugs from the sixth grade on. He further stated that at the time of the crime, he was home on a thirty-one day leave from the army, and spent two thousand dollars buying alcohol and drugs to have a good time during that period. Cooey claimed that after the crime he was in a daze and did not realize exactly what had happened. He further stated that he confessed to the police because he did not feel too good about committing the crimes. The state presented no witnesses in the mitigation hearing.

Applying this testimony, in addition to the evidence presented at trial, and the presentence report furnished at the request of Cooey, this court finds that factors (1), (2), (3) and (6) do not apply. With regard to factor (4), the youth of the offender, this court notes that Cooey was nineteen years old. His youth however, by itself, does not absolve Cooey of responsibility for his crimes. See Byrd, supra, at 93. This court grants this factor very little weight in the absence of any evidence to show why this factor should be given any greater weight. Factor (5), Cooey's lack of a significant history of prior criminal convictions and delinquency adjudications, has been noted and considered by this court.

Under the seventh factor, this court has considered (1) Cooey's difficult and violent childhood, (2) his chronic alcohol and drug dependency, (3) his claimed abuse of alcohol and drugs at the time of the crime together with the fact that there was no evidence to support this claim, and (4) the fact that Cooey's co-defendant is not subject to the same penalty because he was under eighteen at the time of the crime.

This court is also required to consider the nature and circumstances of the offenses. The coroner testified that one victim sustained multiple fractures of the skull from being clubbed in the head at least eleven times. This victim also sustained injuries to other parts of her body, was strangled with a shoelace, stabbed in the neck, and an “X” was carved on her chest. The other victim was clubbed at least three times in the head, sustained various injuries to other parts of her body, was strangled with a shoelace, and also had an “X” carved on her stomach. The evidence further indicates that the victims futilely attempted to fend off the blows with their arms, hands and legs and that their deaths were not instantaneous.

In sum, these aggravated murders were brutal and violent. The three mitigating factors presented and considered do not outweigh the aggravating circumstances. Based upon this mandatory statutory independent review, this court holds: (1) That the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt and (2) that the sentence of death is an appropriate penalty for Richard Wade Cooey, II.

9. PROPORTIONALITY OF DEATH SENTENCE

This court must also determine whether Cooey's death sentence is excessive or disproportionate to the penalty imposed in similar cases. This determination encompasses a review of only those cases which this court itself has decided. State v. Steffen (1987), 31 Ohio St.3d 111, 123-124.

This court has previously reviewed and affirmed three penalties of death. State v. Post (Jan. 15, 1986), Lorain App. No. 3868, unreported; Greer, supra; Benner, supra. The murders involved in Post and Greer were committed during the commission of a robbery. Each of these two cases involved a single aggravating circumstance of felony murder. R.C. 2929.04(A)(7). The multiple murders committed in Benner were committed after raping the victims. The murders in Benner involved the multiple murder specification. R.C. 2929.04(A)(5). In all three cases, the murders were committed in a brutal fashion. This court finds that the death penalty given Cooey is not excessive nor disproportionate as compared to these previous cases.

Accordingly, this court affirms the death penalty imposed on Cooey.

10. CONCLUSION

This court first finds that there is no merit to any of the specific issues raised by Cooey concerning the proceedings below. Second, this court has independently evaluated the aggravating circumstances, as modified, and finds that these aggravating circumstances outweigh any and all of the mitigating factors presented by Cooey beyond a reasonable doubt. Third, this court finds that the sentence of death is appropriate in this case, as it is neither excessive nor disproportionate to the penalty imposed in similar cases. Thus, in accordance with R.C. 2929.05(A), the conviction and sentence of death in this case is affirmed.

The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this court, directing the County of Summit Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions.

QUILLIN, P.J., and MAHONEY, J., concur.

Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002) (Habeas)

After his murder convictions, and sentence of death, were affirmed on direct appeal, 46 Ohio St.3d 20, 544 N.E.2d 895, and his state postconviction petition was denied, petitioner sought federal habeas corpus relief. The United States District Court for the Northern District of Ohio, Sam H. Bell, J., denied petition. Petitioner appealed. The Court of Appeals, Suhrheinrich, Circuit Judge, held that: (1) reweighing of aggravating circumstances and mitigating factors that was performed by Ohio Supreme Court on direct appeal in affirming death sentence did not involve a decision that was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented, and (2) petitioner was not entitled to relief based on ineffective assistance of counsel. So ordered.

SUHRHEINRICH, Circuit Judge.

This is an appeal from a judgment denying Petitioner Richard Cooey's petition for writ of habeas corpus under 28 U.S.C. § 2254. We determine that Cooey is entitled to a certificate of appealability on only two of his claims. We also decide on the merits that Cooey is not entitled to relief as to either issue.

I. Background

A. Facts

On the night of August 31, 1986, Appellant, Richard Wade Cooey II, on leave from the army, and two of his friends, Clint Dickens and Kenneth Horonetz, threw a large chunk of concrete over the side of a bridge just as Wendy Offredo and Dawn McCreery were passing below along Interstate 77 in Akron, Ohio. The concrete hit Wendy's car, forcing her to pull over. The men went down and offered a ride so the women could call for help. After driving them to a nearby mall to use a telephone, the men took the women to a field where they were raped, beaten, and murdered by Cooey and Dickens. The men also stole Wendy's jewelry.

The bodies were found on September 1. The Summit County Coroner concluded that Wendy and Dawn had died of multiple blows to the head-Wendy received at least three blows and Dawn at least eleven-with strangulation also contributing to Wendy's death. He also concluded that both women had oral and vaginal intercourse before death.

B. Procedural History

Cooey was indicted on September 8, 1986, with two counts of aggravated murder in violation of Ohio Rev.Code §§ 2903.01(A) and 2903.01(B), including three specifications of aggravating circumstances in violation of Ohio Rev.Code §§ 2929.04(A)(3), 2929.04(A)(5), and 2929.04(A)(7). Cooey was also charged with two counts of kidnapping with the purpose of engaging in nonconsensual sexual activity, in violation of Ohio Revised Code § 2907.02(A); and two counts of aggravated robbery, in violation of Ohio Rev.Code §§ 2911.01(A)(1) and 2911.01(A)(2). Lastly, he was charged with one count of felonious assault, in violation of Ohio Rev.Code § 2903.11(A)(2), for dropping the chunk of concrete on Wendy's car.

Cooey entered a not guilty plea. Cooey waived his right to trial by jury and was tried by a three-judge panel according to Ohio Rev.Code §§ 2945.05 and 2945.06. The panel found Cooey guilty of all counts and specifications.

On December 5, 1986, the panel conducted a mitigation hearing, pursuant to Ohio Rev.Code § 2929.03(C)(2)(b). The panel returned a unanimous verdict, finding beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, and recommended the death penalty. The two aggravated murders under*886 § 2903.01(A) were merged into the two convictions under Ohio Rev.Code § 2903.01(B). Cooey was sentenced to death for each murder and to imprisonment for the seven other felonies.

Cooey timely appealed, setting forth thirteen assignments of error. The Ohio Court of Appeals upheld Cooey's conviction and sentence on December 23, 1987. See State v. Cooey, 1987 WL 31921 (Dec. 23, 1987). Cooey appealed to the Ohio Supreme Court, raising thirty-three issues. On October 11, 1989, the Ohio Supreme Court affirmed Cooey's conviction and death sentence. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989). The United States Supreme Court denied certiorari on April 1, 1991.

Cooey then sought state post-conviction relief. He filed a petition to vacate or set aside his sentence pursuant to Ohio Rev.Code § 2953.21, in the Court of Common Pleas of Summit County, Ohio, raising sixty-five claims for relief. On July 31, 1992, the Summit County Common Pleas Court denied Cooey's petition. See State v. Cooey, No. 86-09-1109A (Com. Pl. Summit Cty. July 21, 1992). Cooey appealed, raising eight assignments of error. State v. Cooey, 1994 WL 201009 (Ohio Ct.App. May 25, 1994). The Ohio Court of Appeals found that most of Cooey's claims were barred by res judicata. Id. It did, however, address Cooey's claims of ineffective assistance of counsel on the merits. Cooey appealed to the Ohio Supreme Court, but that court declined to take jurisdiction of Cooey's post-conviction appeal.

On November 3, 1994, Cooey filed an application to reopen his direct appeal. Cooey claimed that his appellate counsel was ineffective and asserted fifty-eight claims that appellate counsel failed to raise. On January 16, 1995, the Ohio Court of Appeals denied his request to reopen his direct appeal, finding that Cooey had procedurally defaulted these claims because he had failed to establish good cause for not filing the application to reopen within ninety days from the effective date of Ohio App. R. 26(B), July 1, 1993. The Ohio Supreme Court affirmed the judgment of the Ohio Court of Appeals. See State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995). Cooey's motion for reconsideration was also denied.

Cooey filed this petition for writ of habeas corpus in October 1996. Among other grounds for relief, Cooey claimed that he was denied the effective assistance of both trial and appellate counsel, and that he was denied a meaningful opportunity to litigate his federal claims in the state courts. On September 4, 1997, the district court denied the writ. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio 1997). Under the procedure that pre-dated the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court then issued a certificate of probable cause for appeal. Petitioner then filed a notice of appeal.

On October 12, 2000, this Court entered an order ruling that the AEDPA applies to this case, and that the district court's issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(c) was ineffective. We elected to treat Cooey's brief as an application for a certificate of appealability. After expressing our tentative view that Cooey had not made a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the issues raised, we directed Cooey to show cause why we should not deny the application for a certificate. Attached to our order was an appendix summarizing our tentative view as to each issue. The parties filed their respective briefs responding to the show cause order, and *887 the matter was argued on January 30, 2002.

* * *

A. Reweighing

Cooey argues that the Ohio Supreme Court's reweighing of the aggravating circumstances and mitigating factors leading to his death sentence was erroneous.FN1

FN1. Under Ohio Rev.Code § 2929.05(A), the Ohio appellate courts are required to “independently weigh” the aggravating circumstances against the mitigating factors:The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. Ohio Rev.Code § 2929.05(A) (emphasis added).

In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Supreme Court confirmed that the federal Constitution does not prohibit reweighing or harmless analysis as a cure for weighing errors. Although not required to do so, once it elects to reweigh, the state appellate court must “give each defendant an individualized and reliable sentencing determination based on the defendant's circumstances, his background and crime.” Id. at 749, 110 S.Ct. 1441.

The three-judge panel convicted Cooey of four aggravated murder counts, two counts relating to victim Wendy Offredo, and two relating to victim Dawn McCreery. Each contained three capital specifications. For each victim, Cooey was charged with purposely killing her with prior calculation and design (Ohio Rev.Code § 2903.01(A)), and with purposely killing her in the course of an enumerated felony, being kidnapping, rape, and aggravated robbery (Ohio Rev.Code § 2903.01(B)). The same three capital specifications were attached to each count: (1) the murder was committed to escape detection for other crimes (Ohio Rev.Code § 2929.04(A)(3)); (2) the murder was part of a course of conduct that involved the purposeful killing of two or more persons (Ohio Rev.Code § 2929.04(A)(5)); and (3) the murder was committed while committing or attempting to commit or fleeing immediately after committing or attempting to commit rape and/or kidnapping and/or aggravated robbery and Cooey was a principal offender in the commission of the aggravated murder and/or the aggravated murder was committed with prior calculation and design. (Ohio Rev.Code § 2929.04(A)(7)).

The three-judge panel found Cooey guilty of all counts and all specifications. However, before sentencing, the court made the State elect which count for each victim the court would sentence upon. The State elected the felony murder count for each victim. The three-judge panel also found that the “course of conduct” specification for each count was duplicative, so it considered only one such specification.

In its review, the Ohio Supreme Court initially determined that the trial court had erred in several respects in its weighing. First, the Ohio Supreme Court concluded that the trial court erred in combining and collectively considering the aggravating circumstances of both murders:

Cooey argues that the trial court erred in combining the aggravating circumstances related to both murders, and weighing all of them collectively against the mitigating factors. We agree. As Cooey states, each murder was a separate offense subject to a separate penalty. By adding together the aggravating circumstances of both murders in the penalty phase, the trial court denied Cooey that “consideration of ... the circumstances of the particular offense ...” that is “a constitutionally indispensable part of the process of inflicting the penalty of death.” (Emphasis added.) Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (plurality opinion).

Therefore, when a capital defendant is convicted of more than one count of aggravated murder, the penalty for each individual count must be assessed separately. Only the aggravating circumstances related to a given count may be considered in assessing the penalty for that count.

We do not think it is clear that the trial court's error determined the result. Indeed, we conclude that the aggravating circumstances of each murder, weighed separately, outweigh the mitigating factors. Thus, although the trial court erred, its error was not plain error, and therefore not reversible error in light of Cooey's failure to raise it in the court of appeals. State v. Cooey, 544 N.E.2d at 916-17.

The Ohio Supreme Court also determined that certain specifications should have been merged: [Cooey] also argues that, under the facts in this case, the specifications should *890 have been merged because they arose from the same acts and were committed with the same animus. See Jenkins, supra, ... syllabus. We agree. The specifications for which Cooey was trying to escape accountability when he killed Wendy and Dawn (R.C. 2929.04[A][3] ) are the same as those that support his convictions of the felony murder specifications. (R.C. 2929.04[A][7] ). Thus, the “escaping accountability” specifications lack “a significance independent of the other” specifications. Logan, supra, .... Cooey did not raise this error in the court of appeals, and we find it far from clear that it affected the panel's verdict. We therefore cannot hold it plain error. State v. Cooey, 544 N.E.2d at 917.

The Ohio Supreme Court also found that the panel should not have considered mitigating factors not raised by Cooey:

Cooey correctly asserts that the trial court erred by considering all of the mitigating factors set forth in R.C. 2929.04(B) even though Cooey did not raise some of them. See State v. DePew, .... However, the sentencing opinion lists what the court understood to be the aggravating circumstances, and the absence of mitigating factors is not among them. Cf. State v. Broom, supra. ... We conclude that the absence of mitigating factors was not impermissibly transformed into an aggravating circumstance. Id. The Ohio Supreme Court further held that the trial court had misconstrued the standard for legal insanity under Ohio Rev.Code § 2929.04(B):

Cooey argues that the trial court and the court of appeals misapplied the standard for legal insanity to the mitigating factor created by R.C. 2929.04(B)(3). We agree. The mitigating factor existed if Cooey “... lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law....” The question was not, as the trial court thought, whether Cooey completely lacked capacity to do so. Cf. Lawrence, supra....

... Of course, under either standard, it must be demonstrated that such lack of capacity resulted from a mental disease or defect.... Since the trial court found that Cooey did not have a mental disease or defect, this mitigating factor would not have applied even under the correct standard. Id. at 918.

The Ohio Supreme Court then turned to the question of whether the aggravating circumstances outweighed the mitigating factors, “as part of our statutorily mandated review.” Specifically, the Ohio Supreme Court considered evidence relating to Cooey's physical and mental history. First, it noted the testimony of Dr. James W. Siddall, a clinical psychologist, who had interviewed Cooey and performed a standard battery of psychological tests on him. Dr. Siddall determined that Cooey exhibited a “mental disorder” consisting of a “conduct disorder” and a pattern of substance abuse. Id. at 919.

The Ohio Supreme Court noted that Siddall “testified that a ‘mental disorder’ is not necessarily a ‘mental illness,’ but that it probably ‘would affect judgment as well as behavioral control.’ ” Id. The Court also observed that Siddall testified that Cooey's history of child abuse was significant, a fact which Cooey's mother further attested to. Id. The Court ultimately concluded that Cooey's mental disorder was entitled to “little legal weight,” because his mental disorder “consisted of the ingestion of drugs in combination with his ‘conduct disorder,’ ” and Dr. Siddall's “definition of ‘conduct disorder’ as a pattern of violating other people's rights could apply to virtually every criminal.” Id.

The Ohio Supreme Court also took into account Cooey's youth, subject to his military status, and his lack of previous criminal convictions: Cooey's youth is entitled to some weight, but his military status makes it reasonable to expect more maturity from him than one might otherwise expect of a nineteen-year-old. His history as a severely abused child is certainly relevant for whatever it may have contributed to his mental problems. Although the record shows that Cooey has had contact with juvenile authorities, the record does not demonstrate any previous criminal convictions or delinquency adjudications. This factor is entitled to some weight in mitigation. Id.

Nevertheless, the Ohio Supreme Court ultimately concluded as follows: These factors tend to suggest that Cooey may have been less responsible for his acts than were most people. However, they are outweighed beyond any reasonable doubt by the aggravating circumstances of rape and kidnapping. Cooey used deceit to lure Wendy and Dawn into his car, drove them to a deserted area, then took what he wanted from them by force. He beat them repeatedly with a nightstick, then tried to make sure Wendy was dead by strangling her.

We conclude that the properly admitted evidence overwhelmingly proves that the aggravating circumstances outweigh, beyond a reasonable doubt, the mitigating factors. Id.

As the foregoing illustrates, the Ohio Supreme Court followed the dictates of Clemons in that it gave individualized consideration to Cooey's circumstances, his background, and the crime. As the district court ruled:

In this case, the Supreme Court of Ohio committed no such error. First, in its decision, the Court gave no consideration to those factors which the trial court had erroneously included in its analysis. Id. at 41-42, 544 N.E.2d 895, 46 Ohio St.3d 20, 544 N.E.2d 895. Second, it did not reach its decision merely on the existence of a single aggravating circumstance. Instead, it noted the specific nature of the crimes at issue, the use of deceit in committing those crimes, and the amount of force employed by the perpetrator. Id. (“[The mitigating factors] are outweighed beyond any reasonable doubt by the aggravating circumstances of rape and kidnaping. Cooey used deceit to lure Wendy and Dawn into his car, drove them to a deserted area, then took what he wanted from them by force. He beat them repeatedly with a nightstick, then tried to make sure Wendy was dead by strangling her.”). Finally, the Court provided a thorough discussion of and gave careful consideration to all mitigating factors relevant to Cooey's sentence. In sum, the Ohio Supreme Court acted properly when, pursuant to § 2929.05, it elected to reweigh the aggravating circumstances and mitigating factors of this case. Cooey v. Anderson, 988 F.Supp. at 1097-98 (footnote omitted).

Thus, it is simply baseless to suggest, as Cooey does in his brief at 46-47, that the Ohio Supreme Court's reweighing was merely conclusory and insufficient under constitutional standards. The Ohio Supreme Court's decision was not “ ‘contrary to,’ nor did it involve[ ] an unreasonable application of, clearly established Federal law.” The Ohio Supreme Court was properly allowed to reweigh under Clemons, and considered all the factors Clemons set out as part of the reweighing analysis. And even if we thought that the Ohio Supreme Court's application of Clemons was incorrect, which we do not, it was certainly not an *892 unreasonable application of Clemons. Nor can it be said that the Ohio Supreme Court's holding was based on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. See 28 U.S.C. § 2254(d)(1) & (2). In short, the “reweighing issue” provides no basis upon which to grant the writ.

B. Ineffective Assistance of Trial Counsel

Cooey also argues that his trial counsel were ineffective for various reasons. To show that counsel was constitutionally ineffective, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and also that counsel's deficiencies prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, the defendant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Supreme Court explained that “[t]he prejudice component of the Strickland test ... focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Id. at 372, 113 S.Ct. 838. The Court further explained that “unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id.

1. Impermissible Cumulation of Aggravating Factors

First, Cooey claims that his trial counsel failed to prevent or redress the impermissible cumulation of aggravating factors at the sentencing phase. Specifically, Cooey asserts that trial counsel were constitutionally ineffective for failing to object to the trial court's separate weighing of duplicative aggravating factors, in contravention of the clear mandate of the Ohio Supreme Court in State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) (syllabus, ¶ 5).

The Ohio Supreme Court acknowledged the underlying weighing error, but concluded that “Cooey did not raise this error in the court of appeals, and we find it far from clear that it affected the panel's verdict. We therefore cannot hold it plain error.” State v. Cooey, 544 N.E.2d at 917. As to Cooey's assigned error of ineffective assistance of counsel based on counsel's failure to object, the Ohio Court of Appeals held:

The Ohio Supreme Court reviewed this claim and found that the failure of the trial court to merge the aggravating circumstances at issue was not plain error. This Court concludes that there also was not a ‘reasonable probability’ that defendant was prejudiced by his trial lawyers' failure in regard to the merger of aggravating circumstances. State v. Cooey, 1994 WL 201009, at * 15.

As the district court held, “the evidence confirming the aggravating circumstances of Cooey's offenses is overwhelming.” Cooey v. Anderson, 988 F.Supp. at 1088. More importantly, the Ohio Supreme Court corrected the trial court's error in failing to merge the aggravating circumstances, and upon independent reweighing, still concluded that “the properly admitted evidence overwhelmingly proves that the aggravating circumstances outweigh, beyond*893 a reasonable doubt, the mitigating factors.” State v. Cooey, 544 N.E.2d at 919.

The Ohio Court of Appeals ruled on Cooey's postconviction petition by holding that there was not a “reasonable probability” that Cooey was prejudiced by his trial lawyers' failure to argue that the aggravating circumstances should not have been merged. Cooey has not contended, and cannot establish, how this conclusion is at odds with Strickland. See 28 U.S.C. § 2254(d).

2. Other Failures

Cooey also alleges that trial counsel were deficient for several other reasons, which we address in order.

a. Failure to Object to Constitutionally Infirm Procedures

Cooey claims that counsel were ineffective regarding jury waiver, selection of the three-judge panel, introduction of gruesome slides, and the indictment.

i. Jury Waiver Cooey claims that his trial counsel failed to insure that he knew that he was waiving his fundamental right to a jury trial. However, as the Ohio Court of Appeals found, Cooey failed to present any evidence supporting his assertion. State v. Cooey, 1994 WL 201009, at *13, *14. See also State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823, 826 (1983). In other words, the court held implicitly that Cooey defaulted this claim in the state postconviction trial proceeding. By failing to submit evidence, Cooey barred himself from developing the claim further, and is not now entitled to an evidentiary hearing. See 28 U.S.C. § 2254(e)(2)(A)(ii).

The court also held that Cooey “failed to show that his trial lawyers' performance fell below an objective standard of reasonable representation.” State v. Cooey, 1994 WL 201009, at *14. Cooey makes no attempt to show how this ruling is contrary to, or an unreasonable application of, Supreme Court precedent. It is meritless.

ii. Three-Judge Panel

Cooey complains that trial counsel should have objected to the method of empaneling the three judges. The Ohio Court of Appeals held: Defendant has failed to indicate how the makeup of the three judge panel had an adverse impact on him. Accordingly, defendant did not demonstrate a “reasonable probability” that he was prejudiced by his trial lawyers' alleged failure. State v. Cooey, 1994 WL 201009, at *12. Again, the state appellate court's finding that Cooey had not demonstrated prejudice under Strickland ' s second prong was reasonable. This claim is utterly without merit.

iii. Gruesome Slides

The Ohio Court of Appeals held that: The Ohio Supreme Court ruled that, although the photographs were gruesome, they were highly probative. Cooey II, at 36, 544 N.E.2d 895. The Supreme Court further ruled that the trial court committed harmless error in admitting four of the photographs that were duplicative. Id. There is no “reasonable probability” that defendant was prejudiced by his trial lawyers' failure to object to the admissibility of the photographs at issue. Id. at *14.

Again, Cooey has not shown how the Ohio Court of Appeals' decision is an unreasonable application of Strickland's prejudice prong. More fundamentally, *894 this fails to state a constitutional claim, see Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir.1997) (holding that the claim that a gruesome photo of decedent was erroneously admitted did not raise “the spectre of fundamental fairness such as to violate federal due process of law”), and therefore is not cognizable on habeas.

iv. Unsigned Indictment

Finally, Cooey argues that trial counsel failed to object to the use of an unsigned indictment against him. According to Cooey, the indictment was invalid because it was not signed by the foreman of the jury. First of all, the Ohio Supreme Court found that, although it was not originally part of the appellate record, the signed indictment was subsequently sent to the high court by the trial court. State v. Cooey, 544 N.E.2d at 909. Thus, “that it was journalized at all requires us to accept it as genuine and as having been filed at the time indicated by the date stamp, for the journal of a court of record imports absolute verity absent clear and convincing evidence to the contrary.” Id. at 909-10. Then, the Ohio Court of Appeals found that:

The Ohio Supreme Court held that there was a signed indictment filed in the trial court in this case. Cooey II, at 30, 544 N.E.2d 895. Accordingly, there was not a “reasonable probability” that defendant was harmed by his trial lawyers' failure to raise this claim. State v. Cooey, 1994 WL 201009, at *14. As an initial matter, the Ohio Supreme Court's fact finding is entitled to deference. Furthermore, Cooey has not demonstrated how the Ohio Court of Appeals' ruling is an unreasonable application of Strickland's prejudice component.

b. Presentence Report

Cooey complains that his trial lawyers were ineffective because they requested a presentence report. According to Cooey, the request was problematic because the presentence report contained the police captain's sentence recommendation as well as prior uncharged criminal misconduct. The Ohio Court of Appeals ruled to the contrary. Id. at *13. The Ohio court reasonably applied Strickland. Indeed, Cooey does not even make a stab at showing how this decision is contrary to federal law.

c. Preparation for Mitigation

Cooey maintains that counsel were ineffective in failing to prepare for mitigation. More precisely, Cooey complains that counsel requested a presentence report a mere ten days prior to the mitigation hearing. This claim was not raised in the state courts and is therefore defaulted. Even if we reviewed the claim, and even if this alleged deficiency constituted ineffective assistance, Cooey has not explained how he suffered actual prejudice. In short, Cooey has not shown a violation of Strickland.

Cooey asserts that counsel should have contacted social workers to assist in presenting mitigating evidence, especially since the strongest factors in favor of mitigation were Cooey's youth and substance abuse. The Ohio Court of Appeals held that Cooey “failed to proffer any exculpatory evidence in support of his petition that was not presented at defendant's trial and arguably would have been if the trial court had appointed a social worker to assist defendant. Accordingly, he did not demonstrate a ‘reasonable probability’ that he was prejudiced by his trial lawyers' failure to request assistance of a social worker.” Id. at *14.

Cooey has not shown that the Ohio Court of Appeals's ruling is contrary to, or an unreasonable application of Strickland.

Third, Cooey contends that trial counsel failed to obtain a pharmacologist and/or toxicologist to assist them in preparing Cooey's case pursuant to Ohio Rev.Code § 2929.024. The Ohio Court of Appeals ruled as follows:

Trial counsel failed to request the appointment of a pharmacologist and/or toxicologist to give opinions as to the effect of chemicals in defendant's system. The Supreme Court ruled on direct review that expert testimony about defendant's alleged diminished capacity was properly excluded from the guilt/innocence phase of his trial. Cooey II, at 26, 544 N.E.2d 895. Although the psychologist whose affidavit was attached to defendant's petition to vacate or set aside sentence opined that a pharmacologist and/or toxicologist could have presented the three judge panel “ ‘a more detailed and complete understanding of the impact’ of drugs on defendant's cognitive and emotional functioning,” neither the psychologist nor defendant's counsel has explained how that “more detailed and complete understanding” would have been exculpatory. Accordingly, defendant did not demonstrate a “reasonable probability” that he was prejudiced during either phase of his trial by his trial lawyers' alleged failure. Id. at *11. Again, Cooey has not shown that the Ohio Court of Appeals unreasonably applied Strickland.

d. Failure to Object to Prosecutorial Misconduct

The Ohio Court of Appeals ruled as follows: The properly admitted evidence against defendant was so overwhelming that, to the extent defendant's trial lawyers failed to object to irrelevant evidence or prosecutorial misconduct, there was not a “reasonable probability” that defendant was prejudiced by that failure. Id. at *13. Cooey has simply not demonstrated how this ruling is an unreasonable application of Strickland.

IV. Conclusion

For all of the foregoing reasons articulated in this opinion and accompanying unpublished appendix, we conclude that Cooey is not entitled to habeas relief. SO ORDERED.