During 1990, appellant worked as a cross-country truck driver for a company based in Portland, Oregon. In the early part of November 1990, appellant informed one of his supervisors that he was quitting his job because of the long hours that were required of him as a truck driver. Thereafter, appellant spent a few days at the Flying J Truck Stop in Portland loading and unloading trucks for money. It was at that time that appellant met Donald Nutley. On one occasion, Nutley, who possessed several firearms, invited appellant to go target shooting with him. The two drove to an area near Mt.

Hood, Oregon where they proceeded to fire at bottles until approximately sunset. As they walked back to Nutley's vehicle, appellant fired a single, fatal .38 caliber round into the right side of Nutley's head. Appellant then stole approximately $10,000 in cash from his victim and dumped the body somewhere in the Mt. Hood area. Nutley's body was not located until April 1991.

In early February 1991, appellant was traveling from Rhode Island to Ohio when he arrived at the Pilot Truck Plaza in Hunterdon County, New Jersey. Appellant, out of money and in need of gasoline in order to continue his trip, met Gary Farmer, who allegedly offered to provide appellant with food and money in exchange for sex. Upon entering Farmer's truck, appellant fatally shot Farmer once in the head with a .22 caliber handgun. Appellant left the body in the truck, stole the victim's wallet, and completed his trip to Cincinnati, Ohio.

After spending some time in Cincinnati, appellant left his sister's home on February 17, 1991, with no money, no transportation, and, it appears, a desire to travel to Oregon.

Appellant began hitchhiking on Interstate 275 when Joseph William Daron, a father of two young children, stopped his vehicle and offered appellant a ride. Appellant explained that he was trying to reach Columbus. Daron offered to drive appellant approximately twenty miles out of his way to a restaurant near the junction of Interstate 71, where appellant believed he might better be able to find a ride to Columbus.

Upon reaching the restaurant, appellant exited Daron's vehicle, reached back into the car and shot Daron twice in the right side of his chest with the same .22 caliber handgun that he had used to kill Farmer. After the shooting, appellant drove to a wooded area on the north bank of the Ohio River, where he threw Daron's body. Appellant then used Daron's vehicle, credit cards, and cash to return to Oregon.

Appellant arrived in Portland, Oregon, on February 24, 1991, and went to a local bar to meet a friend, Wes Halbrook.

Several people, including Christine Guthrie, were invited to join the two men at Halbrook's apartment for a private party.

The following day, appellant and Guthrie traveled to Rockaway, Oregon where they spent a few days at the Silver Sands Motel.

On the return trip to Portland, appellant drove Guthrie to a wooded area, where appellant claimed they would find something of interest. The two walked into the woods on foot and appellant fired three shots from his Jennings J 22 pistol into the back of Christine Guthrie's head. Appellant then took the victim's bank credit card and address book containing the personal identification number for the credit card, left the body in the woods, and returned to Portland, where he used the credit card to make cash withdrawals. Guthrie's body was not discovered until April 1991.

In early March 1991, appellant traveled to Juneau, Alaska. While there he spent his time working on a fishing boat and consuming large quantities of alcohol. Appellant met Jefferson Diffee at some point during this period. On March 13, 1991, appellant accompanied Diffee to the latter's apartment, where appellant beat, handcuffed and fatally stabbed Diffee seventeen times. Shortly thereafter, appellant was arrested by the Alaska police. He ultimately pled guilty to the charge of first-degree murder in connection with Diffee's death, and received the maximum sentence available under Alaska state law: ninety-nine years' confinement without parole eligibility.

Shortly after his arrest by the Alaska police, appellant made four separate statements to various law enforcement officers concerning his involvement with the five murders.

Appellant spoke to the police in detail concerning the sites of the murders, the manner in which he had carried out the killings, and the locations where the police could find the victims' bodies.

After finding appellant guilty of all counts and specifications in connection with Daron's murder, the Hamilton County three-judge panel conducted a mitigation hearing on September 14, 1992. The panel unanimously sentenced Fautenberry to death. Consecutive sentences were imposed for the other offenses, except those which were merged. The court of appeals affirmed appellant's convictions and sentence of death.

This cause is before the court upon an appeal as of right.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, for appellee.

H. Fred Hoefle and Peter Pandilidis, for appellant.

Alice Robie Resnick, J. In accordance with R.C. 2929.05(A), we are required to undertake a three-part review of appellant's convictions and sentence of death. First, we must review the judgment and consider the issues raised on appeal as we do in all cases. Second, we must independently weigh the evidence disclosed in the record and determine whether the aggravating circumstances the appellant was found guilty of committing outweigh the mitigating factors beyond a reasonable doubt. Finally, we must decide whether the sentence of death is appropriate after considering whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. For the reasons which follow, we affirm the judgments of conviction and uphold the sentence of death.

A

I

Appellant alleges in his first proposition of law that the three-judge panel committed reversible error by considering victim-impact statements during the penalty phase of the proceedings. The statements included expressions from the victim's family, the victim's employer and the arresting officer concerning the impact of Daron's death on his survivors and the appropriate sentence that should be imposed.

Specifically, the victim-impact evidence indicated that each individual who was interviewed wanted appellant to receive "the maximum sentence" available under the law. Appellant argues that these statements make the sentence of death "the product, not of law and reason, but of passion and bias," as prohibited by State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058.

In Huertas, this court concluded that "[e]xpressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge." Id. at syllabus. The conclusion in Huertas hinged upon the holdings of two United States Supreme Court decisions which prohibited the introduction of victim-impact evidence not directly related to the circumstances of the crime. Booth v. Maryland (1987), 482 U.S. 496, 107 S.C. 2529, 96 L.Ed.2d 440, and South Carolina v. Gathers (1989), 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876.

Booth and Gathers were eventually overruled in Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed. 2d 720, where the Supreme Court determined, "if a State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Id. at 827, 115 L.Ed.2d at 736, 111 S.Ct. at 2609.

Those statements which describe the tragic impact of Daron's murder on his family and friends clearly fall within the scope of victim evidence contemplated by Payne. The expressions of opinion relating to the appropriate sentence to be imposed against appellant, however, reach beyond Payne.1 As a result, we find error in the admission of that part of the victim-impact statements which relate to sentencing recommendations. Nevertheless, we are not persuaded that such error warrants reversal.

A review of the three-judge panel's decision in the instant action fails to demonstrate that the judges contemplated or relied upon the victim-impact evidence which was available to them. "Absent an indication that the panel was influenced by or considered victim impact evidence in arriving at its sentencing decision," the admission of such is not reversible error. State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759; see also, State v. Cooey (1989), 46 Ohio St.3d 20, 33, 544 N.E.2d 895, 912. Furthermore, because we presume that "'*** in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary[,]'" we reject appellant's first proposition of law. Post, 32 Ohio St.3d at 384, 513 N.E.2d at 759, quoting State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70.

At this juncture, we note that our decision in State v. Loza (1994), 71 Ohio St.3d 61, 641 N.E.2d 1082, included a limited discussion of victim-impact evidence which, upon further reflection and review, requires some clarification.

The appellant's twenty-fifth proposition of law in Loza in part challenged statements made by the prosecutor concerning the fact that one of the four murdered victims was a pregnant woman, and that the killing of the four people represented a loss of "many years" of combined potential life expectancy.

Loza argued that these statements, made during the penalty phase of the trial, constituted impermissible victim-impact evidence which denied him a fair penalty determination. We rejected this argument, but now offer some additional discussion for doing so.

While the prosecutor's comments in Loza fit within the fairly broad definition of victim-impact evidence contemplated by Payne, supra, they also represent a recitation of the facts and circumstances surrounding the offense that were introduced during the guilt phase of the trial. True victim-impact evidence, pursuant to the terms of R.C. 2930.13, 2930.14 and 2947.051, shall be considered by the trial court prior to imposing sentence upon a defendant, not during the guilt phase of the proceedings. Evidence relating to the facts attendant to the offense, however, is clearly admissible during the guilt phase. As a result, we find that evidence which depicts both the circumstances surrounding the commission of the murder and also the impact of the murder on the victim's family, may be admissible during both the guilt and the sentencing phases.

For that reason, we decided that the statements made by the prosecutor in Loza were properly admitted.

II

In his second proposition of law, appellant asserts that the trial court relied upon nonstatutory aggravating circumstances to justify the death sentence. Appellant focuses upon the portion of the panel's opinion titled "WEIGHING AGGRAVATING CIRCUMSTANCE [sic] AGAINST MITIGATING FACTORS," where the panel, following a discussion of the mitigating factors, stated:

"However, these mitigating factors pale before the simple fact that defendant's actions were plotted, vicious, persistent and utterly callous. Joseph Daron was shot not once, but twice. His belongings including money[,] credit cards, [B]ible and even his vehicle were stolen by the defendant. Then his body was thrown into a wooded area near the Ohio River.

"The actions of the defendant were contemplated and calculating as he asked Joseph Daron to drive twenty miles out of his way, all the time knowing he would kill Daron and steal his belongings. John Fautenberry's calculation[s] continued after the shooting as he drove to the Ohio River looking for a place to hide Joseph Daron's body."

Appellant contends that this portion of the trial court's sentencing opinion represents an impermissible conversion of the nature of the crime into nonstatutory aggravating circumstances. We disagree. In its opinion, the panel specifically set forth the statutory aggravating circumstances that had been proven beyond a reasonable doubt: first, that the murder of Joseph Daron was part of a course of conduct involving the purposeful killing of two or more people (R.C. 2929.04[A][5]), and second, that the murder occurred while appellant committed the offense of aggravated robbery (R.C. 2929.04[A][7]). Only then did the trial court turn to a discussion of the facts surrounding the commission of the murder.

It is well settled that, "[u]nder R.C. 2929.03(F), a trial court or three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors." State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus.

See, also, State v. Smith (1991), 61 Ohio St.3d 284, 293, 574 N.E.2d 510, 518; State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293, 305. The trial court in the case at bar clearly understood the difference between statutory aggravating circumstances and additional facts which depicted the nature and circumstances of the murder. Furthermore, it is only by considering both the facts surrounding the crime and also the statutory aggravating circumstances that judges and juries can prevent the implementation of a rigid and mechanistic sentencing scheme. State v. Jester (1987), 32 Ohio St.3d 147, 153, 512 N.E.2d 962, 969.

Upon thorough review and consideration of the trial court's opinion, we find that the nature and circumstances of the offense were simply utilized to support the trial court's finding that the aggravating circumstances outweighed the mitigating factors. Appellant's second proposition is accordingly overruled.

III

Appellant alleges in his third proposition of law that the three-judge panel failed to consider several offered mitigating factors. R.C. 2929.04(B) requires the trial court to consider and weigh against the proven aggravating circumstances the nature and circumstances of the offense, the history, character and background of the offender, and seven mitigating factors, including "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death." Appellant specifically challenges the trial court's conclusion that age (R.C. 2929.04[B][4]), lack of prior criminal record (R.C. 2929.04[B][5]), and cooperation with police (R.C. 2929.04[B][7]) were not mitigating factors in this case.

Appellant focuses his challenge in part on the claimed difference between the trial court giving little or no weight to a mitigation factor and the trial court finding that a mitigating factor does not exist. In the case at bar, the three-judge panel determined that neither youth nor lack of a prior criminal record existed as a mitigating factor, since appellant was twenty-seven-years old at the time of the murder and had one prior felony conviction for carrying a concealed weapon, in addition to at least one misdemeanor conviction.

The trial court's conclusions are consistent with previous decisions of this court. See, e.g., State v. Campbell (1994), 69 Ohio St.3d 38, 54, 630 N.E.2d 339, 353 (youth mitigation factor does not apply where defendant is twenty-seven years of age at time of offense); State v. Brewer (1990), 48 Ohio St.3d 50, 64, 549 N.E.2d 491, 505 (youth mitigation factor not established when defendant is twenty-five-years old at time of offense); State v. Lott, supra, 51 Ohio St.3d 160, 173, 555 N.E.2d 293, 306 (two previous felonies make R.C. 2929.04[B][5] "inapplicable" as a mitigating factor). Clearly both age and prior criminal record were considered in the mitigation process, but they were simply negated by the facts at hand.

Appellant further claims that the trial court did not properly consider his cooperation with police or his history, character and background. This argument is also without merit. The sentencing opinion specifically mentions the fact that appellant confessed to each of the murders and cooperated with the law enforcement officers. "While R.C. 2929.04(B)(evinces the legislature's intent that a defendant in a capital case be given wide latitude to introduce any evidence the defendant considers to be mitigating, this does not mean that the court is necessarily required to accept as mitigating everything offered by the defendant and admitted. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight." State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two of the syllabus. See, also, State v. Davis (1991), 62 Ohio St.3d 326, 346, 581 N.E.2d 1362, 1379.

Moreover, this court independently weighs the aggravating circumstances against the mitigating factors of the crime.

That review can negate any claim of error in previous reviews.

State v. Lott, 51 Ohio St.3d at 170, 555 N.E.2d at 304.

Appellant's proposition of law is therefore without merit.

IV

In his fourth proposition of law, appellant argues prejudicial error because the sentencing opinion written by the trial court listed all statutory mitigating factors, including those not raised by defense counsel.

In State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542, 557-558, this court determined that if a defendant chooses to refrain from raising some or all of the mitigating factors available to him under R.C. 2929.04(B), those factors not raised may not be referred to or commented upon by the trial court or prosecution. The trial court's reference to factors not introduced by the defendant, however, does not constitute reversible error. Id. at 290, 528 N.E.2d at 558.

See, also, State v. Lorraine (1993), 66 Ohio St.3d 414, 425, 613 N.E.2d 212, 221. We also presume, unless clearly demonstrated otherwise, that the panel based its decision on only relevant, material, and competent evidence. State v. Post, 32 Ohio St.3d at 384, 513 N.E.2d at 759; State v. White, supra, 15 Ohio St.2d at 151, 44 O.O.2d at 136, 239 N.E.2d at 70.

Furthermore, our independent review of the sentence can rectify any sentencing errors that may have occurred. State v. Lott, supra. Appellant's fourth proposition of law is overruled.

V

In his fifth proposition of law, appellant asserts that the state failed to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. As we discussed in State v. Sowell (1988), 39 Ohio St.3d 322, 334, 530 N.E.2d 1294, 1307, "[t]he 'weighing' procedure *** is not a mere counting process of the number of aggravating circumstances and the number of mitigating factors. It is a reasoned judgment as to which situations require the death sentence and which situations require life imprisonment, based upon the totality of the evidence presented by both parties."

A review of the instant record reveals that the evidence presented was sufficient for the three-judge panel to determine that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. We address this issue further in Part B of our opinion, infra, pursuant to our duty to independently weigh the aggravating circumstances against the mitigating factors. See R.C. 2929.05(A).

VI

In his sixth proposition of law, appellant challenges the constitutionality of Ohio's death-penalty statute on several grounds. These arguments have all been previously addressed and rejected by this court. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568; State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237; State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585; State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264. Appellant's proposition of law is therefore overruled.

VII

In his final proposition of law, appellant argues that the trial court erred in sentencing him to death because his death sentence is disproportionately severe because no fewer than ten other defendants in the same county were convicted of aggravated murder during the commission of aggravated robbery, but were not capitally prosecuted. This argument has been repeatedly rejected by this court. State v. Sowell, supra , at 335, 530 N.E.2d at 1308; State v. Jenkins, supra, at 209, 15 OBR at 350, 473 N.E.2d at 304; State v. Steffen, supra, at 123-124, 31 OBR at 283-284, 509 N.E.2d at 394-395. For the reasons set forth in those decisions, we adhere to that position today.

B

Having completed our examination of the issues raised upon appeal, we must now turn to an independent review of the record as required by R.C. 2929.05, for the purpose of determining whether the mitigating factors present in this case are outweighed by the aggravating circumstances appellant was found guilty of committing.

Turning first to the aggravating circumstances, the evidence established beyond a reasonable doubt that the murder of Daron was part of a course of conduct involving the purposeful killing of five people (R.C. 2929.04[A][5]), and that the murder occurred while appellant committed the offense of aggravated robbery (R.C. 2929.04[A][7]).

With respect to the nature and circumstances of the crime, the facts demonstrate that during the five-month period between November 1990 and March 1991, appellant committed five brutal, calculated murders in four different states. Appellant perpetrated each murder simply as a means to facilitate his trip across the country. Daron, a devoted father and religious man, lost his life because he stopped to offer appellant some assistance. After being driven to his chosen destination more than twenty miles out of Daron's way, appellant fired two shots into Daron's chest, stole his wallet and personal belongings, and ultimately disposed of the body in a secluded area near the Ohio River. Appellant thereafter used the stolen money, credit cards and vehicle to make his way to Oregon, where he continued his killing spree.

The defense presented the videotaped testimony of three witnesses during the mitigation hearing concerning appellant's history, character, and background. Louise M. Corcoran, a long-time family friend, testified to the difficult childhood appellant experienced as a result of the repeated abuse and rejection inflicted on him by his father and later by two stepfathers. Olivia Priest, who was once appellant's stepmother and later his girlfriend, testified that she knew appellant as a kind, caring and sometimes overly protective individual. She also acknowledged alcohol and drug abuse by appellant on numerous occasions. Finally, Margaret Berck of the Juneau office of the Alaska Public Defender Agency testified that an Alaska judge had sentenced appellant to ninety-nine years' confinement for the murder of Jefferson Diffee. She further stated that appellant would be required to serve a minimum of sixty-six years before being considered for any type of early release.

Mary Slayback, appellant's maternal aunt, testified during the mitigation hearing concerning the abusive environment in which appellant was raised. She also reported that appellant had lived with her in her home for a period of time during his early twenties. Slayback described appellant as cooperative, thoughtful and kind.

The defense psychologist, Dr. Nancy Schmidtgoessling, testified that appellant's performance on a number of psychological tests indicated an average range of intelligence with no signs of organic impairment. She confirmed that appellant spent his childhood in an environment of dysfunctional, abusive relationships where he was frequently abused, humiliated, rejected and ultimately abandoned by his father and stepfathers. As a result of his background, appellant carries extreme feelings of worthlessness, distrust and suppressed rage. Dr. Schmidtgoessling further determined that while appellant exhibits a mixed personality disorder with narcissistic and antisocial tendencies, he does not suffer from a "mental disease or defect," as that phrase is used in R.C. 2929.04(B)(3). The effects of appellant's personality disorder have been further compounded by his abuse of alcohol and other substances. Finally, Dr. Schmidtgoessling testified that appellant's killing spree would likely have continued but for his arrest in Alaska.

Appellant chose to make an unsworn statement to the court during the mitigation hearing in which he described various childhood memories, both positive and negative. He recounted instances of physical and emotional abuse that he and his mother suffered because of his father and stepfathers. He spoke of his abuse of alcohol and drugs, which began in high school, led to his discharge from the military, and contributed to everything "falling apart" in November 1990 just before he killed Donald Nutley. Appellant concluded his statement with expressions of sorrow for the person he has become and a request for a life sentence so that he could have an opportunity to work with other children of abuse.

The prosecution presented six witnesses during the mitigation phase, each a law enforcement officer. Five of the six were police officers from the states in which appellant had committed the murders. Those officers identified the victims that had been found in their respective jurisdictions and related details of the subsequent investigations which led them to appellant. The sixth witness was Larry Ott, a special agent with the Federal Bureau of Investigation. Agent Ott and two of the state police officers, Detective Thomas Nelson and Investigator Walter Bowman, testified that appellant cooperated with the police by confessing to the murders and providing information as to where the bodies and various evidentiary items could be located.

Upon review of all the evidence offered as mitigation, we find that little or no weight should be given to any of the statutory mitigating factors. The facts in this case fail to demonstrate that Daron in any way "induced or facilitated" the offense within the meaning of R.C. 2929.04(B)(1). Nor do the facts indicate that appellant acted under "duress, coercion, or strong provocation," as set forth in R.C. 2929.04(B)(2). The defense psychologist's testimony indicates that while appellant exhibits a personality disorder, he does not suffer from a mental disease or defect contemplated by R.C. 2929.04(B)(3).

Appellant's age of twenty-seven at the time of the murder negates R.C. 2929.04(B)(4). Given appellant's previous felony and misdemeanor convictions, we assign no weight to appellant's claim that he lacks a significant criminal history under R.C. 2929.04(B)(5). No other offenders were involved in the murder, thereby rendering R.C. 2929.04(B)(6) inapplicable. Mitigating factors which fall under R.C. 2929.04(B)(7) include appellant's abusive childhood, his cooperation with law enforcement officers, and his alcohol and substance abuse, but each warrants little weight. We therefore find that the substantial aggravating circumstances established by competent evidence outweigh the mitigating factors beyond a reasonable doubt.

C

Finally, we are required, pursuant to R.C. 2929.05(A), to consider whether the sentence imposed in this case was excessive or disproportionate. We have upheld death penalties in other cases involving aggravated murders which involved the purposeful killing of or attempt to kill two or more persons, e.g., State v. Lorraine, supra, 66 Ohio St.3d 414, 613 N.E.2d 212 ; State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Coleman (1989), 45 Ohio St.3d 298, 544 N.E.2d 622; State v. Sowell, supra, 39 Ohio St.3d 322, 530 N.E.2d 1294; State v. Brown (1988), 38 Ohio St.3d 305, 538 N.E.2d 523; and cases where the aggravated murder was committed in the course of an aggravated robbery, e.g., State v. Green (1993), 66 Ohio St.3d 141, 609 N.E.2d 1253; State v. Cook (1992), 65 Ohio St.3d 516, 605 N.E.2d 70; State v. Brown, supra; State v. Byrd (1987), 32 Ohio St.3d 79, 512 N.E.2d 611. Therefore, we find that the sentence of death in this case is neither excessive nor disproportionate.

Accordingly, we affirm appellant's convictions and death sentence. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, F.E. Sweeney, Pfeifer and Cook, JJ., concur.

Wright, J., concurs in judgment only.

FOOTNOTES

1We further recognize that while R.C. 2930.13(C)(4), which became effective in October 1994, authorizes a trial court to consider a written or oral statement by the victim as to the victim's recommended sanction for the defendant, similar recommendations by family and friends are not statutorily authorized.

Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008) (Habeas)

Background: Following affirmance, 72 Ohio St.3d 435, 650 N.E.2d 878, of state conviction for aggravated murder and sentence of death, and exhaustion of state postconviction remedies, state prison inmate sought federal habeas relief. The United States District Court for the Southern District of Ohio, James L. Graham, J., denied petition, and inmate appealed.

Holdings: The Court of Appeals, Alice M. Batchelder, Circuit Judge, held that: (1) defense counsel did not render ineffective assistance during penalty phase; (2) any deficiency in presentation of mitigation evidence at penalty phase did not prejudice defendant; (3) no actual conflict of interest was shown as to defense attorney who also was township trustee; (4) inmate failed to show prejudice as to procedurally defaulted claims of Brady violation; (5) ineffective assistance of trial counsel claim was procedurally barred; (6) there had been knowing and intelligent waiver of right to be sentenced by jury; (7) no-contest plea had been knowing and intelligent; (8) state court's determination of harmless error as to Eighth Amendment violation at trial was not contrary to or unreasonable application of clearly established federal law; (9) ineffective assistance of appellate counsel claim was procedurally barred; and (10) appellate counsel did not perform deficiently. Affirmed.

ALICE M. BATCHELDER, Circuit Judge.

Petitioner John Fautenberry (“Fautenberry”), a prisoner in the state of Ohio awaiting execution, appeals the district court's denial of his petition for writ of habeas corpus. Fautenberry raises eight issues on appeal. Finding no merit in any of them, we AFFIRM the judgment of the district court.

I.

In November 1990, Fautenberry, who had recently quit his job as a cross-country truck driver, met Donald Nutley at a truck stop outside Portland, Oregon, and the two men went target shooting together. After they had finished and were leaving the range, Fautenberry shot Nutley in the head and stole $10,000 from him. Fautenberry then drove to Cincinnati, Ohio, where he stayed with his sister for a short time before traveling to Connecticut to visit an old friend. In February 1991, while en route back to Cincinnati, Fautenberry-out of money and in need of gasoline to continue his travels-stopped at a truck stop in New Jersey. There he met Gary Farmer, who, after learning of Fautenberry's need for money, offered to buy Fautenberry breakfast and give him money in exchange for sex. Fautenberry got into the cab of Farmer's truck, shot Farmer in the head, and took his wallet. Fautenberry then returned to his sister's residence in Cincinnati.

On February 17, 1991, after another brief stay in Cincinnati, Fautenberry again left his sister's residence, this time on foot, in search of money. Fautenberry walked down Highway 125, in the eastern suburbs of Cincinnati, stopped at the on-ramp to Interstate 275, and began hitchhiking. Joseph Daron offered to give Fautenberry a ride. Daron intended to travel only ten miles north to his home in Milford, Ohio, but, upon learning that Fautenberry wanted to go north to Columbus, Ohio, he drove Fautenberry an extra ten miles and dropped him near the intersection of Interstate 275 and Interstate 71, which goes directly to Columbus. As he exited Daron's vehicle, Fautenberry reached back into the car and shot Daron twice in the chest. Fautenberry then drove Daron's car south to Cincinnati, and threw Daron's body into a wooded area on the north bank of the Ohio River, where it was eventually found more than a month later by the local authorities. Fautenberry took Daron's car, wallet, briefcase, wristwatch, and Bible, and returned to Oregon.

Fautenberry arrived in Portland on February 24, 1991, and spent the next few days at the Oregon coast with some old friends and acquaintances, including a woman named Christine Guthrie. Guthrie accompanied Fautenberry back to Portland from the coast, and along the way, they stopped on an old logging road. Fautenberry escorted Guthrie to a secluded portion of the woods, shot her three times in the back of the head, and stole her bank card. A few days later, after withdrawing cash from her bank account, Fautenberry traveled to Juneau, Alaska, where he began working aboard a fishing boat. On March 13, 1991, Fautenberry met Jefferson Diffee at a local bar, and the two men went to Diffee's apartment. While there, Fautenberry beat Diffee, handcuffed him, and stabbed him seventeen times, which resulted in his death. The local police discovered Fautenberry's fingerprints at the scene of the crime, and on March 16, 1991, they arrested him for the murder of Diffee. The police then searched Fautenberry's storage locker and hotel room, where they found Daron's briefcase, wristwatch, and Bible.

On March 17, 1991, while in police custody, Fautenberry called Federal Bureau of Investigation (“FBI”) Agent Larry Ott and left a message indicating that he wanted to talk. Agent Ott went to the jail, informed Fautenberry of his Miranda rights (which Fautenberry subsequently waived), and recorded Fautenberry's confession to the murders of Nutley, Farmer, Daron, and Guthrie. Fautenberry accurately described the wounds inflicted upon each victim, and indicated that robbery was the motive for each killing. A few days later, Fautenberry called his old girlfriend, Olivia Priest-Herndon, and told her that he was “only after ... money” and that he “did it[,] so [he] gotta pay the price now.” Fautenberry also confessed to Tom Nelson of the Portland Police Department, informing Nelson where the bodies of Nutley and Guthrie were located. In August 1991, Fautenberry pleaded guilty in an Alaskan state court to the murder of Jefferson Diffee, and the court sentenced him to 99 years' imprisonment.

In September 1991, the Alaskan authorities transferred Fautenberry to Hamilton County, Ohio, the county in which Cincinnati is located, where a grand jury had returned a five-count indictment charging Fautenberry with two counts of aggravated murder (both pertaining to the death of Daron), aggravated robbery, theft of a motor vehicle, and theft of a credit card. The aggravated murder charges included two specifications, either of which would render Fautenberry eligible for the death penalty under Ohio law: (1) killing Daron while committing aggravated robbery; and (2) killing Daron as part of a course of conduct involving the purposeful killing of two or more persons. See Ohio Rev.Code § 2929.04(A). Fautenberry waived his right to a trial by jury and later proffered a no-contest plea to all counts and specifications in the indictment.

The prosecution presented the three-judge panel FN1 with evidence, including the murder weapon, various other pieces of physical evidence, and transcripts of Fautenberry's confessions to Agent Ott, Officer Nelson, and Ms. Priest-Herndon. After reviewing this evidence, the court concluded beyond a reasonable doubt that Fautenberry was guilty of all counts and specifications in the indictment, and accepted his plea. In September 1992, the three-judge panel held a sentencing hearing. The defense presented its mitigating evidence, which included testimony from Fautenberry, Dr. Nancy Schmidtgoessling, and friends who knew Fautenberry well. Those friends included Louise Corcoran (a long-time friend of Fautenberry's family), Ms. Priest-Herndon (Fautenberry's former girlfriend with whom he had lived), and Mary Theresa Slayback (a friend with whom Fautenberry lived during his early twenties). After hearing all of this evidence, as well as the testimony of the six law-enforcement officers presented during the mitigation hearing by the prosecution, the three-judge panel imposed the death penalty, finding that, despite the defense's “thorough job in presenting the[ ] mitigating factors,” it was beyond a reasonable doubt that the aggravating factors sufficiently outweighed the mitigating factors.

FN1. Under Ohio law, a capital defendant who waives his right to trial by jury and elects to be tried by the court, is actually tried by a three-judge panel. See Ohio Rev.Code § 2945.06. Furthermore, even on a no-contest plea, the prosecution must produce evidence to prove aggravated murder with the specified aggravating circumstances. See Ohio R.Crim. Pro. 11(c)(3).

Fautenberry appealed to the state appellate court, which affirmed his conviction and sentence in 1994. See State v. Fautenberry, No. C-920734, 1994 WL 35023 (Ohio Ct.App. February 9, 1994). The Ohio Supreme Court also affirmed on direct appeal, see State v. Fautenberry, 72 Ohio St.3d 435, 650 N.E.2d 878 (1995), and the United States Supreme Court denied Fautenberry's request for review, see Fautenberry v. Ohio, 516 U.S. 996, 116 S.Ct. 534, 133 L.Ed.2d 439 (1995). In March 1996, Fautenberry filed a motion for reconsideration with the Ohio Supreme Court, arguing that he had received ineffective assistance of appellate counsel during his direct appeal to that court. That motion was summarily denied in May 1996. See State v. Fautenberry, 78 Ohio St.3d 320, 677 N.E.2d 1194 (1997). In July 1996, Fautenberry filed, pursuant to Ohio App. R. 26(B), an application for reopening (i.e., a motion for delayed reconsideration) with the state court of appeals, alleging ineffective assistance of appellate counsel during his direct appeal to that court. This application was denied because Fautenberry “failed to demonstrate that there [was] good cause for filing [ ]his application more than two years after th[e] court's judgment was journalized.” The Ohio Supreme Court affirmed that decision. See State v. Fautenberry, 78 Ohio St.3d 320, 677 N.E.2d 1194 (1997). Also in July 1996, Fautenberry filed his petition for post-conviction relief. The trial court denied the petition, and the court of appeals affirmed that denial. See State v. Fautenberry, No. C-971017, 1998 WL 906395 (Ohio Ct.App. December 31, 1998). The Ohio Supreme Court then declined to review Fautenberry's petition, see State v. Fautenberry, 85 Ohio St.3d 1477, 709 N.E.2d 849 (1999), and refused Fautenberry's request for reconsideration, see State v. Fautenberry, 86 Ohio St.3d 1422, 711 N.E.2d 1015 (1999).

In May 2000, Fautenberry filed his petition for a writ of habeas corpus with the federal district court, asserting nineteen grounds for relief. The State moved to dismiss, contending that many of Fautenberry's claims had been procedurally defaulted. The district court partially granted the State's motion and dismissed some of Fautenberry's claims. In a later opinion and order, the district court addressed the substance of Fautenberry's non-defaulted claims, found them to be without merit, and denied Fautenberry's petition for habeas relief. The district court issued a certificate of appealability on nine of Fautenberry's claims (two of which relate to his claim for ineffective assistance of trial counsel during the pretrial and plea hearing, and which Fautenberry has consolidated for purposes of this appeal). Fautenberry asserts eight claims on appeal, and we will address them separately.

II.

“We review de novo the district court's denial of ... [a] petition for a writ of habeas corpus.” Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir.2004). Fautenberry filed his habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”); we will therefore review his claims under the standards set forth in that statute. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA permits a federal court to grant a writ of habeas corpus only where the state court's adjudication “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.” 28 U.S.C. § 2254(d)(1). “A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). “The [federal] court may grant relief under the ‘unreasonable application’ clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. “An unreasonable application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (quotations omitted). We may not issue the writ “simply because [we] conclude[ ] in [our] independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Instead, we must find that “the state court's application of clearly established federal law [was] objectively unreasonable.” Cone, 535 U.S. at 694, 122 S.Ct. 1843. When identifying the relevant, controlling federal law for purposes of AEDPA analysis, we look to “the holding, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions.” Williams, 529 U.S. at 412, 120 S.Ct. 1495.

A. Ineffective Assistance of Trial

Counsel During the Penalty Phase of the Proceedings Fautenberry's primary argument-to which he devoted most of his time at oral argument-is that his trial counsel rendered ineffective assistance during the penalty phase of his proceedings. An ineffective-assistance claim has two components: (1) counsel's performance must have been deficient, and (2) counsel's deficient performance must have prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]he proper standard for attorney performance is that of reasonably effective assistance,” id., as measured by “prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quotation marks and citations omitted). To establish deficient performance, the habeas petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. When evaluating counsel's performance, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

“A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Fautenberry contends that his trial counsel rendered deficient performance by: (1) failing to communicate meaningfully with him, (2) failing to conduct a “reasonable” investigation for mitigating evidence, and (3) failing to retain “reasonable and necessary” experts. The state court rejected this claim, relying primarily on Fautenberry's refusal to cooperate. We address Fautenberry's three allegations in turn.

First, Fautenberry contends that his counsel failed to communicate meaningfully with him. The Sixth Amendment, however, protects the criminal defendant's right to “adversarial process”; that is, to “have counsel [,] acting in the role of advocate[,] ... require the prosecution's case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (quotation marks and citations omitted).

[T]he appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such. If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. It is for this reason that we attach no weight to either respondent's expression of satisfaction with counsel's performance at the time of his trial, or to his later expression of dissatisfaction. Id. at 657 n. 21, 104 S.Ct. 2039 (citations omitted). Thus, at its root, the ineffective-assistance analysis is based on “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

The record shows that any communication problems between Fautenberry and his attorneys were the result of Fautenberry's own determined refusal to communicate, not a lack of availability of, or effort by, counsel. The record contains abundant evidence indicating that Fautenberry independently resolved not to communicate or cooperate with anyone, including his lawyers. Fautenberry's former girlfriend, Ms. Priest-Herndon, testified that Fautenberry told her of his tactical decision not to communicate with his attorneys because he “thought that was his best way to beat this thing.” As the district court aptly noted, Fautenberry “has not cited, and the court is not aware of, any Supreme Court case holding that the Sixth Amendment requires counsel to persuade a recalcitrant client to do that which he ... refused to do.” We find nothing objectively unreasonable in these attorneys' inability to communicate meaningfully with Fautenberry, who steadfastly refused to communicate with them. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel's actions may be determined or substantially influenced by the [accused's] own statements or actions.”).

The evidence proffered to demonstrate that counsel had failed to communicate with Fautenberry is wholly unpersuasive. Fautenberry relies heavily upon statements in the medical notes recorded during his pretrial incarceration, in which he said, “I just want to be treated like a human being,” and “I[ am] as good as dead now.” When considered in their proper context, these statements, contrary to Fautenberry's contention, do not demonstrate a dysfunctional attorney-client relationship. Instead, they display Fautenberry's despondency because of the situation at hand-he had been incarcerated for six months awaiting trial for a murder that he had already (on at least three occasions) confessed to committing. Fautenberry also relies on the affidavit of Dr. Susan D. Shorr, a mitigation specialist who assisted his attorneys during their preparation for the sentencing hearing, in which she opined that Fautenberry became uncooperative and noncommunicative only “[a]s a result of the breakdown of the relationship between ... Fautenberry and his attorneys.” This unsubstantiated statement contradicts Ms. Priest-Herndon's testimony that Fautenberry had told her of his independent, tactical decision not to communicate with his lawyers, but it substantiates all other accounts that Fautenberry, in fact, refused to communicate. Fautenberry's attempts to blame his counsel for his own recalcitrance and unwillingness to communicate do not demonstrate that counsel were deficient in failing to communicate meaningfully with Fautenberry.

Second, Fautenberry argues that his attorneys rendered ineffective assistance by failing to conduct a “reasonable” mitigation investigation that would have discovered his organic brain damage.FN2 Fautenberry contends that further investigation would have revealed his past head injuries and alerted his attorneys to the likelihood that he had permanent brain damage. We conclude, contrary to Fautenberry's assertion, that counsel did in fact conduct a reasonable mitigation investigation.

FN2. The State disputes whether Fautenberry actually suffers from a functional brain impairment. Because it is not dispositive to our analysis of this ineffective-assistance claim, we will assume without deciding that Fautenberry does in fact have some sort of organic brain damage.

Defense counsel interviewed and procured extensive testimony from lay witnesses, including Louise Corcoran (a close family friend) and Ms. Priest-Herndon (Fautenberry's former girlfriend). These women testified regarding Fautenberry's unstable family environment and emotionally abusive upbringing. Defense counsel also garnered the assistance of numerous experts, including Dr. Nancy Schmidtgoessling and Dr. James Tanley. In fact, counsel hired Dr. Tanley for the express purpose of conducting a neuropsychological examination-the most effective means possible of determining whether Fautenberry had a brain impairment. But Fautenberry refused to submit to the examination. Counsels' inability to discover or establish organic brain damage is directly attributable to Fautenberry's refusal to cooperate, rather than any insufficiency in the investigation. Had Fautenberry not impeded Dr. Tanley's examination, the doctor presumably would have discovered, verified, and revealed any such brain damage. We will not find counsel deficient simply because they did not succeed in discovering his brain damage or pursue unspecified, alternate avenues (which may or may not have revealed the brain damage). In light of the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” Darden, 477 U.S. at 186, 106 S.Ct. 2464, Fautenberry's attorneys conducted a sufficient and reasonable mitigation investigation under the circumstances Fautenberry created.

Third, Fautenberry contends that his counsel failed to retain “reasonable and necessary” experts, asserting that neither Dr. Schmidtgoessling nor Dr. Tanley provided him with a reasonable level of assistance. We find this argument baseless. Dr. Tanley provided as much assistance as was possible under the circumstances: He attempted to examine Fautenberry to determine whether he suffered from a brain impairment, but Fautenberry refused to participate in the examination. Thus, any deficiencies in Dr. Tanley's assistance were the result of Fautenberry's admitted refusal to cooperate, rather than any shortcoming of Dr. Tanley or any flaw in his work. We conclude as well that any alleged defect in Dr. Schmidtgoessling's assistance cannot be attributed to counsel.

Fautenberry argues that Dr. Schmidtgoessling misdiagnosed his mental condition when she concluded that he did not suffer from organic brain damage. Even if we assume that Dr. Schmidtgoessling did misdiagnose Fautenberry,FN3 “[a] licensed practitioner is generally held to be competent, unless counsel has good reason to believe to the contrary.” Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir.2006). Fautenberry has not shown that counsel had “good reason” to believe that Dr. Schmidtgoessling was incompetent, and we conclude that it was objectively reasonable for counsel to rely upon the doctor's opinions and conclusions. See Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir.2001) (holding, in a case where there was “no evidence that [the expert] was incompetent[ ] or that [the petitioner's] lawyers had any reason to question [the expert's] professional qualifications,” that “it was objectively reasonable for ... trial counsel to rely upon [the expert's] diagnosis”). Under these circumstances, any inadequacies in Dr. Schmidtgoessling's expert assistance-assuming there were any-cannot be the basis for a meritorious ineffective-assistance claim. Accordingly, we find no deficiency in counsels' performance.

FN3. We have assumed for the sake of argument that Fautenberry does have some sort of organic brain damage. See n. 2, supra.

Even if Fautenberry could show that his counsels' performance was deficient, he has not established that he was prejudiced by that performance. The prejudice prong requires the petitioner to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Darden, 477 U.S. at 184, 106 S.Ct. 2464. “When a [petitioner] challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. We thus “reweigh the evidence in aggravation against the totality of available mitigating evidence,” which, in this case, includes the mitigation evidence that was omitted because of counsel's alleged deficiencies. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). A petitioner does not establish the prejudice element where he shows only that his counsel failed to present “cumulative” mitigation evidence, that is, evidence already presented to the jury. Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006). Rather, “to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005).

Fautenberry argues that he was prejudiced because, due to counsel's alleged deficiencies, the jury did not hear evidence about (1) his personal struggle with, and his family's history of, depression, (2) the connection between his abusive childhood and the commission of these murders, (3) his head injuries and resulting organic brain damage, and (4) the sexual aspects of the murders he committed. But, Corcoran and Priest-Herndon testified extensively regarding Fautenberry's rough upbringing, his difficult family life, his poor relationships with the father figures in his life, his mother's constant struggle with depression, and his longing for acceptance. After hearing this testimony, as well as all the other mitigating evidence, the three-judge panel concluded that the mitigating factors included: (1) Fautenberry's “past history”; (2) his “abuse[ ] as a child”; (3) the “rage of his childhood”; (4) his abuse of drugs and alcohol; and (5) his “low self-esteem and rejection.” The omitted mitigation evidence of Fautenberry's depression, his family's history of depression, and his abusive childhood mirrors the evidence actually presented at the sentencing hearing, and therefore its omission cannot be held to have prejudiced his mitigation defense. See Broom, 441 F.3d at 410. Furthermore, the three-judge panel had already heard some evidence about the sexual nature of the murders. At the guilt phase, the prosecutor had informed the court that prior to Fautenberry's murder of Farmer in New Jersey, Fautenberry agreed to have sex with him in exchange for money. See Gillard v. Mitchell, 445 F.3d 883, 896 (6th Cir.2006) (stating that the sentencer was “privy” to evidence introduced during the guilt phase of trial and that counsel need not reintroduce it during the sentencing hearing). Thus, the court was aware that at least one of Fautenberry's murders contained a sexual element, and, to the extent that Fautenberry relies upon this already-disclosed evidence, we find that it is cumulative and insufficient to establish prejudice.

Inclusion of the non-cumulative evidence (i.e., evidence of organic brain damage and the sexual nature of some of the murders)-which purportedly would have explained his impulsive and violent nature, inability to tolerate frustration, and sexual confusion-does not create “a reasonable probability that ... the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Furthermore, we question whether evidence of the sexual nature of the murders is even mitigating. The three-judge panel might just as well have viewed Fautenberry's apparent strategy of preying on gay victims as an aggravating factor. Nor do the side-effects of organic brain damage significantly mitigate Fautenberry's actions. According to Fautenberry's medical reports, “[b]rain impairment of the sort ... apparent in ... Fautenberry's case can ... cause serious problems in such areas of day-to-day functioning as impulse control[,] modulation of affect[,] planning [,] problem-solving[,] and the capacity to tolerate frustration.” It is highly unlikely that this sort of evidence would have altered the three-judge panel's decision to impose the death sentence for Fautenberry's murder of Daron, which they found was “contemplated and calculating”-a conclusion that is not at all mitigated or reduced by the traits associated with or the side effects of organic brain disorder. In short, when we aggregate all the mitigating evidence, including Fautenberry's brain disorder and the sexual nature of the crimes (to the extent that those are even mitigating), and reweigh this evidence against the aggravating factors, we find that “these mitigating factors pale before the simple fact that [Fautenberry's] actions were plotted, vicious, persistent[,] and utterly callous,” which was the finding of the three-judge panel. Accordingly, even if trial counsel rendered deficient performance, we find that those deficiencies did not prejudice Fautenberry. FN4

FN4. At one point in his brief, Fautenberry implies that the state court's denial of his ineffective-assistance claim was contrary to the Supreme Court's decision in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). This argument is wholly meritless. Federal law for purposes of AEDPA is defined as “the holding, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. First, Rompilla was decided in 2005, long after Fautenberry had concluded his proceedings in state court. Second, the holding in Rompilla is inapposite here. Contrary to Fautenberry's argument, the Court in Rompilla did not hold that counsel, even though faced with his client's uncooperative and obstructive behavior, rendered deficient performance by failing to conduct additional mitigation investigation. The court made no such statement, holding instead that “the lawyers were deficient in failing to examine the court file on [the petitioner's] prior conviction.” Rompilla, 545 U.S. at 383, 125 S.Ct. 2456.

B. Trial Counsel's Alleged Conflict of Interest

Fautenberry next contends that one of his trial counsel labored under a conflict of interest, which rendered his assistance per se ineffective and violated Fautenberry's Sixth Amendment rights. Fautenberry argues that attorney Michael Walton had a conflict of interest because he was a trustee for Anderson Township, the township in which Daron's body was found; as a trustee, Walton had a fiduciary duty to the citizens of that township to ensure that the criminal laws were upheld; and Walton's duty to the citizens of that township conflicted with his duty to Fautenberry. The state trial court addressed this claim, contained in Fautenberry's petition for post-conviction relief, and found the following facts: (1) “No evidentiary documents demonstrate that Anderson Township or the Anderson Township Trustees had an interest in the outcome of [Fautenberry's] trial”; and (2) “No evidentiary documents demonstrate that service as a Township Trustee hampered [Fautenberry's] attorneys in any way.” The state appellate court determined that, “absent evidence of an actual conflict, there is no presumption of prejudice arising from the mere fact that defense counsel also serves in some capacity as a public official.” Fautenberry, 1998 WL 906395, at *5. The court then rejected Fautenberry's claim, finding that Fautenberry had “not presented any evidence to support the conclusion that Walton's position on the board [of trustees] in any way influenced his ability to defend Fautenberry at trial.” Id.

A habeas petitioner asserting an ineffective-assistance claim generally must show that his counsel's performance was deficient and that the deficiency resulted in prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. But a habeas petitioner can establish an ineffective-assistance claim without having to show prejudice if he demonstrates that his counsel labored under an “actual conflict” of interest. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (“Prejudice is presumed only if [the petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.”) (quotations omitted). “An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.” Mickens v. Taylor, 535 U.S. 162, 171 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

Fautenberry has not established an “actual conflict.” He does not challenge the state court's factual findings that “[n]o evidentiary documents demonstrate that ... the Anderson Township Trustees had an interest in the outcome of [his] trial” or that “[n]o evidentiary documents demonstrate that service as a Township Trustee hampered [his] attorneys in any way.” See 28 U.S.C. § 2254(e)(1) (providing that “a determination of a factual issue made by a[s]tate court shall be presumed to be correct” unless the habeas petitioner “rebut[s] the presumption of correctness by clear and convincing evidence”). After independently reviewing the record, we find that Fautenberry has failed to demonstrate that his “counsel actively represented conflicting interests” or that any alleged conflict “adversely affected his lawyer's performance.” See Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Accordingly, we find this claim baseless.

C. The Prosecution Withheld Material Exculpatory Evidence in Violation of Brady

Fautenberry next argues that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State argues that this claim has been procedurally defaulted. A claim is procedurally defaulted and is thus unreviewable by a federal habeas court where the “habeas petitioner fail[ed] to obtain consideration of [that] claim by a state court ... due to [his] failure to raise that claim before the state courts while state-court remedies [were] still available.” Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). Fautenberry admits that he did not present his Brady claim to the state courts, but argues that the prosecution's failure to disclose the evidence is both the cause of and the prejudice resulting from the default. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (discussing “cause” and “prejudice”). A habeas petitioner shows “cause” where he demonstrates that he failed to raise a constitutional issue because it was “reasonably unknown to him” at the time. Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). The district court found that most of the challenged Brady evidence had not been disclosed to Fautenberry during his state-court proceedings, and the State does not directly dispute the “cause” element. Thus we will assume without deciding that Fautenberry satisfied that element.

The question of whether we may excuse Fautenberry's procedural default, therefore, turns on the issue of prejudice. “Prejudice, for purposes of procedural default analysis, requires a showing that the default of the claim not merely created a possibility of prejudice to the defendant, but that it worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.” Jamison v. Collins, 291 F.3d 380, 388 (6th Cir.2002) (citing United States v. Frady, 456 U.S. 152, 170-71, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Procedural default analysis on the issue of prejudice mirrors Brady materiality analysis, see id., so in determining whether Fautenberry has procedurally defaulted his Brady claim, we will follow the Supreme Court's example and proceed under a Brady materiality analysis. See Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is deemed material for purposes of Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In a case such as this, involving a guilty or no-contest plea, the habeas petitioner may establish prejudice by showing that there is a reasonable probability that, but for the non-disclosure of evidence, “he would not have [entered his plea] and would have insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Alternatively, he can show that the findings and decision by the three-judge panel “would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Our analysis must consider the totality of the undisclosed evidence, not each item in isolation. Id.

Fautenberry contends that the prosecution failed to produce five categories of exculpatory evidence: (1) evidence suggesting that FBI Agent Ott violated Fautenberry's Fifth Amendment right to counsel by contravening the rule announced in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (upon requesting counsel, an accused may not be subjected to further questioning until counsel is provided, unless the accused reinitiates the questioning); (2) evidence indicating that the State of Ohio lacked jurisdiction and that venue was improper in Hamilton County, Ohio; (3) evidence demonstrating that victim Joseph Daron had verbal arguments with his girlfriend and another friend just prior to his disappearance; (4) evidence relating to the sexual nature of the murders; and (5) evidence indicating that Fautenberry was depressed and suicidal just prior to the murders. For the following reasons, we find that Fautenberry has failed to establish that any of this evidence is material for purposes of Brady.

First, the undisclosed documents concerning Fautenberry's interaction with Agent Ott do not establish an Edwards violation. Fautenberry was arrested on May 16, 1991, and sometime during the following day, while in police custody, he invoked his Fifth Amendment right to counsel. According to Edwards and its progeny, an accused in police custody who has invoked his Fifth Amendment right to counsel is protected from further police questioning so long as “the accused himself [does not] initiate[ ] further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880; see also Van Hook v. Anderson, 488 F.3d 411, 415 (6th Cir.2007) ( en banc ). Here, the evidence shows that it was Fautenberry himself who initiated communications with Agent Ott, after invoking his right to counsel. Sometime in the evening of May 17, 1991, a few hours after asking to speak with a lawyer, Fautenberry called Agent Ott and left a message indicating that he wanted to talk. At this point, Fautenberry had clearly initiated further communications with the police, and Agent Ott did not violate Fautenberry's Fifth Amendment right to counsel by questioning him at that time. The alleged Brady evidence shows only that Agent Ott returned Fautenberry's call a few hours later and left a message stating that Fautenberry should call him if he still wanted to talk. After waiting for two hours without hearing from Fautenberry, Agent Ott called the jail, made arrangements to visit Fautenberry, spoke with Fautenberry (apparently without any objection or refusal on the part of Fautenberry), and received Fautenberry's confession to the four murders.

Fautenberry contends that this newly discovered evidence establishes an Edwards violation. We disagree. Fautenberry's mere failure to return Agent Ott's call and “confirm” his desire to speak does not negate Fautenberry's prior, unambiguous initiation of further communication. To be sure, had Fautenberry reinvoked his Fifth Amendment right to counsel after initiating communication with Agent Ott, he would have been protected from further questioning, but Fautenberry does not assert that he did so and the alleged Brady evidence does not demonstrate that he did so. In order to invoke one's Fifth Amendment right to counsel, the “suspect must unambiguously request counsel,” meaning that “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that an ambiguous mention of an attorney is not a request for counsel). The alleged Brady evidence does not indicate that Fautenberry renewed his request for an attorney, unambiguously or otherwise, and is therefore insufficient to establish an Edwards violation or to require the suppression of his confession to Agent Ott. Moreover, all of the events that transpired during this time were known to Fautenberry and there is no basis for assuming that the non-disclosure of this evidence affected his decision to enter his no-contest plea. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375.

Second, the undisclosed evidence does not establish that Ohio lacked jurisdiction or that Hamilton County was not the proper venue for prosecution. The state court found that Fautenberry entered Daron's car at “the on-ramp to [Interstate] 275 off of Highway 125,” see Fautenberry, 1994 WL 35023, at *2, which is located to the east of Cincinnati, near the border of Hamilton County, Ohio, and Clermont County, Ohio. The state court concluded that Daron drove north on Interstate 275 to a destination “some ten miles north of Milford, Ohio,” see id., and dropped Fautenberry at a “restaurant near the junction of Interstate 71,” see Fautenberry, 650 N.E.2d at 880. The state court determined that Fautenberry shot Daron at this location, see id., which is in Hamilton County, Ohio; and that Fautenberry dumped Daron's body on the north bank of the Ohio River, near the intersection of Highway 52 and Interstate 275, see Fautenberry, 1994 WL 35023, at *2, which is also in Hamilton County, Ohio. The body was later found in this general vicinity. It is therefore clear, based on the facts as found by the state court, that Ohio had jurisdiction over this murder, see Ohio Rev.Code §§ 2901.11(A)(1), 2901.11(B) (stating that a “person is subject to criminal prosecution and punishment in [Ohio] if ... [t]he person commits an offense under the laws of [Ohio], any element of which takes place in [Ohio],” and that the elements of a homicide offense “include[ ] the act that causes death”), and that Hamilton County was the proper venue. See Ohio Rev.Code § 2901.12(A) (noting that venue is proper “in the territory of which the offense or any element of the offense was committed”). None of the proffered Brady material rebuts any of these factual findings by clear and convincing evidence; thus we must presume that these factual findings are correct. See 28 U.S.C. § 2254(e)(1).

Fautenberry argues that two pieces of evidence indicate that the murder occurred in the Commonwealth of Kentucky. First, the prosecutor, in his recitation of the facts during the plea hearing, stated that the murder occurred at “a restaurant and motel parking lot just past the junction of I-71 and I-275.” Fautenberry emphasizes that Interstate 275-a highway that circles Cincinnati-and Interstate 71 intersect twice, once in the State of Ohio and once in the Commonwealth of Kentucky. This argument, of course, entirely ignores the overwhelming evidence indicating that Daron picked up Fautenberry in an eastern suburb of Cincinnati, Ohio, and drove north to Columbus, Ohio. This one arguably ambiguous statement by the prosecutor is woefully insufficient to rebut the abundant evidence indicating that this murder occurred near the intersection of Interstate 275 and Interstate 71 in Hamilton County, Ohio. Second, a psychiatric report, which contains a second-hand account of Fautenberry's description of the murder, states that Fautenberry “drove to Kentucky[,] pulled over[,] ... [and] shot the man in the chest a couple of times.” This hearsay statement is contradicted by all the evidence in the record and does not amount to clear and convincing evidence to rebut the state court's factual findings.

The alleged Brady evidence consists of FBI intra-department communications indicating uncertainty about jurisdiction and venue, and instructing the officers to obtain more evidence on these issues. These documents do not establish that jurisdiction or venue were proper elsewhere; at best, they call these issues into question. Even if we were to assume, as alleged by Fautenberry, that this evidence creates a genuine ambiguity as to the location of the murder, both jurisdiction and venue would nevertheless be proper in Hamilton County, Ohio. Ohio law provides that “[w]hen the offense involves the death of a person, and it cannot reasonably be determined in which jurisdiction the offense was committed, the offender may be tried in the jurisdiction in which the dead person's body or any part of the dead person's body was found.” Ohio Rev.Code § 2901.12(J). It is undisputed that Daron's body was found on the north bank of the Ohio River in Hamilton County, Ohio. Therefore, even if the evidence as to the location of the murder were unclear, both jurisdiction and venue would lie in Hamilton County. We conclude that this evidence was not material because it did not establish an error in jurisdiction or venue.

The remainder of the alleged Brady evidence-evidence regarding Daron's arguments prior to his disappearance, the sexual nature of the murders, and Fautenberry's depression and suicidal inclinations-is not material for Brady purposes. In fact, the evidence is virtually insignificant in light of the overwhelming evidence both of guilt (i.e., the confessions to Agent Ott, Officer Nelson, and Ms. Priest-Herndon and the physical evidence connecting Fautenberry to Daron's murder) and the sentencing specifications (i.e., the three-judge panel's finding that the “mitigating factors pale before the simple fact that [Fautenberry's] actions were plotted, vicious, persistent[,] and utterly callous”). Considering as we must the cumulative effect of all the alleged Brady evidence, we conclude that Fautenberry has failed to establish a “reasonable probability” that the disclosure of this evidence would have altered either his decision to enter a no-contest plea or the three-judge panel's sentence of death. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Because this evidence is not material under Brady, Fautenberry cannot show prejudice to excuse his procedural default. See Jamison, 291 F.3d at 388. And because Fautenberry cannot establish prejudice to excuse his procedurally defaulted Brady claim, he is not entitled to habeas relief on that basis. FN5

FN5. Fautenberry's Brady claim with regard to most of this evidence fails for an additional reason: The Brady rule applies only to evidence that was “known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis added); see also United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir.1994). Regardless of his guilt in the commission of the murders, Fautenberry knew the details about his interaction with Agent Ott and his own state of mind (i.e., his depression and suicidal tendencies). Furthermore, by pleading no contest, Fautenberry admitted the facts charged in the indictment, so he also knew the location where he shot Joseph Daron and any pertinent sexual aspects of the murders. With the lone exception of the evidence pertaining to Joseph Daron's relationships, Fautenberry or his counsel had knowledge of all this “undisclosed evidence.”

D. Ineffective Assistance of Trial Counsel During the Pretrial Preparation and Plea Hearing

Fautenberry argues that his trial counsel rendered ineffective assistance during their pretrial preparation and at the plea hearing. In his habeas petition, Fautenberry presents three subparts to this ineffective-assistance claim: (A) counsel failed to engage in an adequate investigation, (B) counsel provided him with erroneous information regarding the implications of pleading no contest to the charges against him, and (C) counsel failed to hold the prosecution to its burden of proof at the plea hearing. The district court determined that each subpart of this ineffective-assistance claim had been procedurally defaulted. The court granted Fautenberry a certificate of appealability only on Subparts A and C, so we do not address the allegations asserted under Subpart B.

The State argues that we should affirm the district court's conclusion that Fautenberry procedurally defaulted this claim. A habeas petitioner procedurally defaults a claim where “a state procedural rule ... prevents the state courts from reaching the merits of the petitioner's claim.” Seymour, 224 F.3d at 549-50. Federal courts must consider four factors when determining whether a habeas petitioner has procedurally defaulted a claim. Gonzales v. Elo, 233 F.3d 348, 353 (6th Cir.2000); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986).

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction. Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.2001) (quoting Maupin, 785 F.2d at 138) (alterations omitted). “Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground,” the court must move to the fourth factor. Maupin, 785 F.2d at 138. The fourth factor allows a petitioner to avoid or excuse procedural default if he demonstrates “that there was cause for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.” Id. (quotation omitted).

Under Subpart A of this claim, Fautenberry contends that his counsels' performance was deficient because: (1) they did not interview a sufficient number of the prosecution's potential witnesses, (2) they did not object to venue in Hamilton County, and (3) they did not file a motion to suppress Fautenberry's confession to Agent Ott. Fautenberry presented this claim to the state court in his petition for post-conviction relief, but he alleged only that counsel were ineffective because they failed to object to venue; he did not challenge counsels' failure to interview a sufficient number of witnesses or to file a suppression motion. Because Fautenberry undeniably did not present these allegations to the state courts, we find that the district court correctly held that they were procedurally defaulted. See Seymour, 224 F.3d at 549-50.

The state appellate court addressed the only allegation presented to it, namely, that counsel did not object to venue, and held, pursuant to State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), that “this is a claim which could and should have been raised by Fautenberry on direct appeal and is, therefore, barred by the doctrine of res judicata.” Fautenberry, 1998 WL 906395, at *3. In Cole, the Ohio Supreme Court held that res judicata is a proper basis upon which to dismiss an ineffective-assistance claim in a petition for post-conviction relief where a defendant who is represented by new counsel on direct appeal fails to raise that claim and the basis for that claim “could fairly be determined without examining evidence outside the record.” 443 N.E.2d at 171. We have in the past recognized that Ohio's application of res judicata pursuant to Cole is an actually enforced, adequate and independent state ground upon which the Ohio state courts consistently refuse to review the merits of a defendant's claims. See Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.2000) (“Ohio state courts consistently invoke Cole and apply res judicata when a defendant, who is represented by new counsel on direct appeal, fails to raise at that stage of the litigation an ineffective assistance of trial counsel claim appearing on the face of the record.”); see also Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir.1999) (rejecting the habeas petitioner's attempt to “demonstrate Ohio's wavering commitment to its procedural default rules”). We therefore conclude that Fautenberry has procedurally defaulted the allegation that counsel failed to object to venue. In short, then, Fautenberry has procedurally defaulted all the claims of deficiency raised in Subpart A.FN6

FN6. Fautenberry argues that because most of the evidence supporting the allegations in Subpart A of this ineffective-assistance claim was the alleged Brady evidence, the prosecution's failure to provide him with this evidence constitutes the cause and prejudice to excuse his procedural default. Because, as already noted, Fautenberry's Brady claim lacks merit, that claim cannot constitute cause and prejudice to excuse procedural default.

Even if we were to conclude that Fautenberry did not procedurally default Subpart A of this ineffective-assistance claim, we would find it to be without merit. First, Fautenberry argues that his counsel did not interview a sufficient number of the prosecution's potential witnesses. Noting that his attorneys billed most of their investigation time in one-hour increments, he surmises that they were not interviewing any of the out-of-state witnesses. This argument is based on sheer speculation; it does not account for the reasonable inference that counsel interviewed some of the witnesses (including out-of-state witnesses) via phone. Fautenberry does not indicate how many witnesses were actually interviewed or how many more should have been interviewed. Fautenberry has the burden of establishing his counsel's deficiency, and this speculative argument is insufficient to support an ineffective-assistance claim. Second, Fautenberry cannot establish that he was prejudiced by counsel's failure to raise the venue issue because the evidence overwhelmingly indicated that the murder occurred in Hamilton County and, to the extent that the evidence was less than conclusive on this issue, venue was proper in the jurisdiction where Daron's body was found, which was Hamilton County. See Ohio Rev.Code § 2901.12(J). Finally, Fautenberry cannot establish prejudice from counsel's failure to file a motion to suppress the statements made to Agent Ott because he cannot prove that conversation was improper, as there is no evidence of an Edwards violation. See Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880.

In Subpart C of this claim, Fautenberry alleges that his trial counsel should not have stipulated to the prosecution's evidence at the plea hearing. Fautenberry readily admits that he did not raise that portion of his claim on direct appeal or during post-conviction proceedings, but contends that he preserved this issue by raising it in his motion for reconsideration with the Ohio Supreme Court and his application for reopening with the Ohio Court of Appeals. Both Fautenberry's motion for reconsideration with the Ohio Supreme Court and his application for reopening with the court of appeals alleged ineffective assistance of appellate counsel. This claim, on the other hand, alleges ineffective assistance of trial counsel. The district court correctly concluded that the allegations in Fautenberry's motions for reconsideration and reopening, which argued only ineffective assistance of appellate counsel, did not fairly present his ineffective assistance of trial counsel claim to the state court, and that Fautenberry had defaulted Subpart C of this claim.

E. Waiver of Right to a Jury Trial During the Penalty Phase of the Proceedings

Fautenberry argues here that although he waived his right to a jury trial during the guilt phase of his proceedings, he did not waive his right to a jury trial during the penalty phase. The substance of this argument is entirely different from the “waiver of jury trial” argument he presented to the state trial court in his petition for post-conviction relief, in which he alleged that: (1) his attorneys failed to gain his trust and thus failed to provide him with the necessary information regarding his constitutional rights; (2) his attorneys provided him with incorrect information about the waiver; and (3) he was psychologically and mentally unable to waive his right to a jury trial. The state trial court made the following findings of fact: (1) “[Fautenberry] was competent when the jury waiver occurred”; (2) “[Fautenberry] acknowledged discussing the [waiver] with both attorneys”; and (3) “[t]he court went over the law regarding the waiver and the proceedings before a three[-]judge panel with petitioner[,] and petitioner acknowledged that he fully understood what he was doing.” The state trial court concluded that this claim “could have been raised at trial or on direct appeal” and therefore was “barred by res judicata.” The state appellate court, however, did not consider whether this claim was procedurally barred, but addressed the merits of the claim and rejected it because “the record on review show[ed] that Fautenberry was engaged in a colloquy by the judge[ ] and indicated squarely that he understood that he was waiving his right to a jury trial and that no promises had been made to him.” Fautenberry, 1998 WL 906395, at *7.

In his habeas petition, Fautenberry argues that he did not waive his right to a jury trial on the penalty phase of his prosecution. This claim that he did not knowingly waive his right to be sentenced by a jury is materially different from the claim he raised in the state court, which challenged his competence and knowledge in connection with the waiver of his right to a trial by jury and did not distinguish between the waiver of his right to a jury at the guilt phase and the waiver of his right to a jury at the penalty phase. The argument Fautenberry raises in these habeas proceedings, on the other hand, effectively concedes that he waived his right to a jury trial but contends that he did not knowingly or voluntarily waive his right to be sentenced by a jury.

Before us, the State argues that Fautenberry's claim that he did not waive his right to a jury trial on the penalty phase has been procedurally defaulted because the state court applied res judicata and refused to address the merits. “In determining whether state courts have relied on a procedural rule to bar review of a claim, we look to the last reasoned opinion of the state courts....” Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir.2003). Because the state appellate court's decision is the “last reasoned opinion of the state courts,” we must look to that decision. That decision, however, did not mention res judicata but addressed the merits of the waiver claim that Fautenberry raised in his post-conviction proceedings. But that decision did not address at all the claim that Fautenberry makes in his habeas petition and in this appeal, because Fautenberry never presented that claim to the state post-conviction courts. We therefore conclude that although the State's reason for claiming procedural-default argument is incorrect, this claim is nonetheless defaulted. See Seymour, 224 F.3d at 549-50.

Even if we were to reach the substance of this claim, we would find it to be without merit. Fautenberry has not presented, and we have not discovered, any Supreme Court precedent establishing that a capital defendant has a constitutional right to be sentenced by a jury in state court. Fautenberry argues, relying on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), that Ohio statutory law creates a right to be sentenced by a jury and that the Fourteenth Amendment protects that right. Fautenberry's reliance on Hicks is misplaced. In Hicks, it was undisputed that the defendant had a statutory right to be sentenced by the jury; the issue in that case was whether the state court violated the defendant's due process rights by restricting the jury's discretion through a habitual-offender statute that was later declared to be unconstitutional. Id. at 345-46, 100 S.Ct. 2227. Here, however, Fautenberry did not have a statutory right to be sentenced by a jury. The applicable Ohio statute states:

[I]f the offender is found guilty of both the [aggravated murder] charge and one or more of the specifications, the penalty to be imposed on the offender ... shall be determined by one of the following: (a) By the panel of three judges that tried the offender upon the offender's waiver of the right to trial by jury; (b) By the trial jury and the trial judge, if the offender was tried by jury. Ohio Rev.Code § 2929.03(C)(2) (1981).FN7 See also Ohio R.Crim. Pro. 11(c)(3). FN7. The quoted passage was in effect at the time of Fautenberry's trial and sentencing in 1992. The current statute, amended as of 1995, is identical.

Fautenberry clearly and expressly waived his right to a jury trial. His waiver stated: I, John Fautenberry, ... hereby knowingly, intelligently[,] and voluntarily waive and relinquish my right to a trial by Jury, and elect to be tried by a Judge of the Court in which the said cause be pending.” The trial court explained Fautenberry's rights and asked him if it was his desire to knowingly, intelligently, and voluntarily relinquish his right to a jury trial; he responded in the affirmative. The trial court also informed Fautenberry that if his waiver were accepted and if he pleaded guilty to the charges against him, he would be sentenced by a three-judge panel (rather than a jury). We find, as did the state court, that Fautenberry knowingly and voluntarily waived his right to a jury trial. We conclude further that he did not have a statutory right (let alone a constitutionally protected right) to be sentenced by a jury. This case, therefore, is distinguishable from Hicks, and we find no basis upon which to grant habeas relief.

F. Knowing and Voluntary Nature of the No-Contest Plea

Fautenberry next argues that he did not knowingly or voluntarily enter his no-contest plea. The state trial court, in resolving Fautenberry's petition for post-conviction relief, made the factual finding that “the plea was properly accepted,” and arrived at the legal conclusion that the plea was knowingly, intelligently, and voluntarily entered. The state appellate court, in affirming the trial court's decision, evaluated Fautenberry's three evidentiary bases for this claim: (1) the affidavit of mitigation specialist, Dr. Shorr, which stated that defense counsel failed to “maintain a positive, working relationship with ... Fautenberry”; (2) documents concerning Fautenberry's psychological condition prior to his plea; and (3) Fautenberry's own affidavit stating that his attorneys did not adequately apprise him of the consequences of his plea. Fautenberry, 1998 WL 906395, at *6. The court concluded that Dr. Schorr's opinion was insufficient to rebut the abundant evidence in the record demonstrating that his plea was knowingly and voluntarily entered. Id. at *7. The court found the documents concerning his psychological condition to be unpersuasive because he “was twice found competent to stand trial.” Id. And the court refused to give much weight to Fautenberry's self-serving affidavit. Id.

A guilty or no-contest plea involves a waiver of many substantial constitutional rights, see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and a court may accept a guilty or no-contest plea only where it is a “voluntary[,] ... knowing, intelligent act [ ] done with sufficient awareness of the relevant circumstances and likely consequences,” see Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). On appeal, Fautenberry asserts that his plea was not knowing and voluntary for four reasons: (1) his trial counsel incorrectly informed him that if he pleaded no contest, the three-judge panel would not learn that he committed other murders, the three-judge panel would perceive his no-contest plea as mitigating, and he would preserve his right to appeal the denial of his pretrial motions; (2) he was unaware of exculpatory evidence impermissibly withheld by the prosecution (i.e., the alleged Brady evidence); (3) he suffered from serious mental illnesses at the time of his plea; and (4) during the plea colloquy, the court “was disorganized [,] ... failed to [engage] in a meaningful dialogue,” and failed to correct the misinformation provided by trial counsel.

Each asserted basis for this claim is without merit. First, aside from Fautenberry's unsubstantiated, self-serving affidavit, there is no evidence in the record indicating that trial counsel incorrectly advised him of the implications of entering a no-contest plea. During the plea colloquy, trial counsel indicated that they “explained to [Fautenberry] in detail what the plea of no contest means” and that “he underst[ood] ... that by pleading no contest ... he [was] in essence giving up [a] substantial number of rights, particularly those that may be available to him at the appellate level if he were to go to trial.” We agree with the state courts that Fautenberry's own self-serving affidavit is insufficient to rebut the contrary evidence in the record or to undermine the knowing and intelligent nature of his plea. Second, we have already concluded, in the context of the Brady claim, that there is no reasonable likelihood that the disclosure of the undisclosed evidence would have altered Fautenberry's decision to enter his plea because that evidence was not material to his defense. Third, none of the psychological evidence indicates that Fautenberry was mentally incapable of understanding, appreciating, and waiving his constitutional rights, and he does not challenge the state court's finding that he was twice found competent to stand trial. Fourth, and most importantly, the state court's plea colloquy was methodical and thorough, not “disorganized” or “failing to result in a meaningful dialogue” as alleged by Fautenberry. And, at the plea hearing, Fautenberry indicated that he did not have any questions about his rights. In sum, we reject this claim as unfounded, and instead agree with the state court that Fautenberry knowingly and voluntarily waived his rights during the entry of his guilty plea.

G. Admission of Victim Impact Evidence

Fautenberry argues that the state court violated his Eighth Amendment rights by admitting victim-impact evidence. Fautenberry specifically challenges the admission of statements from Daron's friends and family recommending that he receive the maximum available sentence: (1) Daron's ex-wife stated that Fautenberry “should receive the maximum possible sentence”; (2) Daron's father stated that Fautenberry is “an animal with no conscience” and that “the maximum possible sentence is the only appropriate punishment”; and (3) Daron's supervisor at work stated that Fautenberry committed “an extremely brutal offense” and he “should receive a maximum penalty.” The Ohio Supreme Court addressed this argument on direct appeal and found “error in the admission of ... the victim-impact statements [that] relate to sentencing recommendations.” Fautenberry, 650 N.E.2d at 882. The court nevertheless was “not persuaded that such error warrant[ed] reversal” because there was no indication that the three judges who sentenced Fautenberry “contemplated or relied upon the victim-impact evidence which was available to them.” Id.

In Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court held that the introduction of victim-impact evidence “at the sentencing phase of a capital murder trial violates the Eighth Amendment.” Id. Just a few years later, however, the Court retreated from this holding, declaring that “if the State chooses to permit the admission of victim impact evidence ..., the Eighth Amendment erects no per se bar.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The Payne Court noted that it overturned only that part of Booth that disallowed “evidence ... relating to the victim and the impact of the victim's death on the victim's family.” Id. at 830 n. 2, 111 S.Ct. 2597. The Court did not disturb that portion of Booth that forbids “a victim's family members' characterization and opinions about the crime, the defendant, and the appropriate sentence.” Id.; see also Welch v. Sirmons, 451 F.3d 675, 703 (10th Cir.2006) (recognizing that many circuits have found that this portion of Booth's holding “survived the holding in Payne and remains valid”). We agree with the Ohio Supreme Court that the state trial court erred in admitting this evidence.

The issue, then, is whether the Ohio Supreme Court's reasoning that this error did not “warrant reversal” was contrary to or involved an unreasonable application of Supreme Court precedent. Fautenberry argues that the Ohio Supreme Court's decision was an unreasonable application of Booth because it employed a sort of “harmless error” analysis, whereas Booth did not require the defendant to demonstrate “actual prejudice.”

We find helpful the Tenth Circuit's decision in Hain v. Gibson, 287 F.3d 1224, 1239-40 (10th Cir.2002), and our unpublished decision in Brewer v. Anderson, 47 Fed.Appx. 284, 287-88 (6th Cir.2002) (unpublished case). In Hain, the Tenth Circuit noted that “[t]he decision in Booth does not expressly indicate whether the Court believed such errors to be trial errors subject to harmless error review, or structural error[s] requiring automatic reversal.” Hain, 287 F.3d at 1239 n. 11. The Hain court thus concluded that the state court in its case did not “unreasonably appl[y] Booth in concluding that such errors [were] subject to harmless error review.” Id. In Brewer, we reviewed, as we do here, the admission of victim-impact evidence before a three-judge panel. The Ohio Supreme Court, both in Brewer and in the present case, relied on State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754, 759 (1987), which states: “Absent an indication that the panel was influenced by or considered the victim impact evidence in arriving at its sentencing decision, the admission of the victim impact statement ... did not constitute prejudicial error.” Id. And both here and in Brewer, the Ohio Supreme Court found no indication that the three-judge panel considered or contemplated the victim-impact evidence available to them.FN8 We concluded in Brewer, 47 Fed.Appx. at 288, that the state court's application of Booth was not unreasonable and we reach the same conclusion here.

FN8. As we noted in Brewer, the Ohio Supreme Court's finding that there was no indication that the three-judge panel relied on the victim-impact evidence was a “factual finding that is presumed to be correct under the AEDPA.” See Brewer, 47 Fed.Appx. at 288. Fautenberry has failed to challenge this factual finding on appeal, much less to establish that it was clearly erroneous, and our review of the record persuades us that the finding is correct. See Cooey v. Coyle, 289 F.3d 882, 910-11 (6th Cir.2002) (affirming the district court's giving deference to the Ohio Supreme Court's factual finding that there was “no affirmative indication that the victim impact statements were considered in sentencing [the petitioner] to death”).

“An unreasonable application of federal law is different from an incorrect application of federal law,” Woodford, 537 U.S. at 25, 123 S.Ct. 357 (quotation marks omitted); in order to grant habeas relief under the “unreasonable application” clause, we must determine that “the state court's application of clearly established federal law [was] objectively unreasonable,” Cone, 535 U.S. at 694, 122 S.Ct. 1843. Contrary to Fautenberry's argument, Booth does not indicate whether the erroneous admission of victim-impact evidence warrants automatic reversal or whether such errors are subject to harmless-error review. See Hain, 287 F.3d at 1239 n. 11. Therefore, the Ohio Supreme Court's decision to engage in a form of harmless-error analysis does not constitute an unreasonable application of Booth because Booth did not address that issue.

Moreover, we question whether Booth even applies here. Booth involved the improper admission of victim-impact evidence to a jury, whereas this case involves the improper admission of victim-impact evidence to a three-judge panel. The Court in Booth was greatly concerned that the victim-impact evidence might (1) “distract the sentencing jury from its constitutionally required task [of] determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime,” Booth, 482 U.S. at 507, 107 S.Ct. 2529, (2) “divert the jury's attention away from the defendant's background and record [ ] and the circumstances of the crime,” id. at 505, 107 S.Ct. 2529, or (3) “create an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Id. Those considerations are severely diminished-if not entirely obviated-when the sentencer is a judge or a three-judge panel, rather than a lay jury. We conclude that Booth has minimal relevance when the victim-impact evidence is presented to a three-judge panel, see Brewer, 47 Fed.Appx. at 287-88 (affirming, as a reasonable application of Supreme Court precedent, the Ohio Supreme Court's conclusion that “ Booth does not apply to situations where a defendant is tried by a three-judge panel rather than a jury”), and hold that the Ohio Supreme Court did not unreasonably apply Supreme Court precedent.

H. Ineffective Assistance of Appellate Counsel

Fautenberry contends that he received ineffective assistance of counsel during his direct appeal to the state court of appeals. The district court found that this claim had been procedurally defaulted because Fautenberry did not present it to the state appellate court in a timely application for reopening, which is the proper procedure in Ohio for raising ineffective assistance of appellate counsel claims.

The State urges us to affirm the district court's conclusion that this claim has been procedurally defaulted. Under Ohio law, a criminal defendant must raise his ineffective assistance of appellate counsel claim in an application for reopening (i.e., a motion for delayed reconsideration) filed “in the court of appeals where the alleged error took place.” State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1209 (1992). Ohio App. R. 26(B)(1) states that an application for reopening “shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.” The state court of appeals rejected Fautenberry's direct appeal in February 1994, and the Ohio Supreme Court denied his appeal in 1995. In January 1996, after the conclusion of Fautenberry's direct appeal, the state court appointed new counsel to represent Fautenberry during his post-conviction proceedings. In March 1996, Fautenberry, through his new counsel, filed a motion for reconsideration with the Ohio Supreme Court, alleging ineffective assistance of appellate counsel during his direct appeal to that court; the motion was denied in May 1996. In July 1996, Fautenberry filed an application for reopening with the state court of appeals, asserting ineffective assistance of appellate counsel during his direct appeal to the court of appeals. The court of appeals denied that application because Fautenberry “failed to demonstrate that there [was] good cause for filing [ ]his application more than two years after th[e] court's judgment was journalized.” The court further reasoned that Fautenberry could have raised the issue of ineffective assistance of appellate counsel in his “previous application for reopening in the Supreme Court” and “provided no explanation as to why the application of res judicata would be unjust.” The Ohio Supreme Court affirmed this decision in April 1997 “for the same reasons articulated by the court of appeals.” Fautenberry, 677 N.E.2d at 1195.

We hold that Fautenberry has procedurally defaulted this claim. The state appellate court denied his direct appeal in February 1994, and Fautenberry waited more than two years to file his application for reopening with that court. Fautenberry demonstrated good cause for not filing his application prior to January 1996, because until that point he was represented by the same counsel on appeal and we conclude that it would be unreasonable to expect counsel to raise an ineffective assistance claim against himself. But Fautenberry did not show good cause for failing to file his application until July 1996, six months after the appointment of new counsel. Additionally, he did not explain why he failed to raise this claim in his motion for reconsideration filed with the Ohio Supreme Court in March 1996. We conclude that Fautenberry did not comply with the timeliness requirements in Ohio App. R. 26(B) and that those time constraints are an actually enforced, adequate and independent state ground upon which the Ohio courts consistently refuse to address ineffective assistance of appellate counsel claims. See Coleman v. Mitchell, 244 F.3d 533, 539-40 (6th Cir.2001) (finding that the petitioner procedurally defaulted his claim because he failed to comply with the requirements in Ohio App. R. 26(B)); Wickline v. Mitchell, 319 F.3d 813, 823 (6th Cir.2003) (finding that the petitioner's ineffective assistance of appellate counsel claims were procedurally defaulted because he failed to comply with the rule set forth in Murnahan ).

Fautenberry argues that the timeliness requirements in Ohio App. R. 26(B) are not “adequate and independent” state grounds upon which to find that his claims have been procedurally defaulted. Maupin, 785 F.2d at 138. “To be adequate, a state procedural rule must be firmly established and regularly followed....” Hutchison v. Bell, 303 F.3d 720, 737 (6th Cir.2002) (quotation marks omitted). Fautenberry relies on our decision in Franklin v. Anderson, 434 F.3d 412, 418-21 (6th Cir.2006), to argue that an untimely application for reopening pursuant to Ohio App. R. 26(B) is not a “firmly established and regularly followed” procedural rule, id. at 418, particularly emphasizing the Franklin court's statement that “[a] review of the relevant case law reveals that the Ohio Supreme Court has been erratic in its handling of untimely Rule 26(B) applications in capital cases.” Id. at 420. Fautenberry wishes to elevate this statement to an all-encompassing, ever-applicable legal proposition that will forever (or at least for a very long time) bar the federal courts from finding that an ineffective assistance of appellate counsel claim has been procedurally defaulted where the state court refused to address the merits of that claim because of the time constraints in Ohio App. R. 26(B). But the “firmly established and regularly followed” inquiry cannot be made once and for all. Instead we must consider whether the “adequate and independent state procedural bar ... [was] ‘firmly established and regularly followed’ by the time as of which it [was] to be applied.” Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (emphasis added). Cf. Rogers v. Howes, 144 F.3d 990, 994 n. 5 (6th Cir.1998) (“[T]he question is not whether the state courts consistently apply the procedural bar in the present.”). Put differently, we ask “whether, at the time of the petitioner's actions giving rise to the default, the petitioner could ... be deemed to have been apprised of the rule's existence.” Hutchison, 303 F.3d at 737 (quotations and alterations omitted).

We find that, as of the time that Fautenberry should have filed his application for reopening (i.e., when he acquired new counsel in January 1996), the time constraints in Ohio App. R. 26(B) were firmly established and regularly followed, and he was or should have been apprised of the rule's existence. The Franklin decision is not to the contrary. To begin with, the facts in that case are materially different from those here. In Franklin, the defendant had filed his application for reopening with the court of appeals one year after the Ohio Supreme Court issued its decision in Murnahan and just prior to the effective date of Ohio App. R. 26(B). The Ohio procedural rule in effect at the time Murnahan was decided required that such an application be filed within ten days from the entry of the opinion for which reconsideration was sought; Murnahan itself did not set any time frame within which such an application was required to be filed, but opined that courts should take a more lenient approach with regard to the time for filing. Ohio App. R. 26(B) was then created to provide the time frame for these applications. As we observed in Franklin, at the time Franklin filed his application for delayed reconsideration, the law regarding the time period within which ineffective assistance of appellate counsel claims were required to be filed was unclear. But we specifically noted in Franklin that “[f]or several years following the enactment of amended Rule 26(B) [in July 1993], the Ohio Supreme Court regularly enforced the rule's timeliness requirements.” Franklin, 434 F.3d at 420 (citing a string of Ohio Supreme Court cases).

Fautenberry's circumstances are significantly different from those in Franklin. Fautenberry did not obtain new counsel (and thus cannot be held responsible for failing to file an application for reopening) until January 1996, which is almost four years after Murnahan was decided, and two-and-a-half years after Ohio App. R. 26(B) became effective. By that time, the 90-day time limit in Ohio App. R. 26(B) was clearly established and Fautenberry was or should have been apprised of its existence. Nevertheless, after obtaining his new counsel, Fautenberry waited six months-during which he filed a motion for reconsideration with the Ohio Supreme Court in which he could have raised this claim but did not-before filing his application for reopening. We conclude that the holding of Franklin-in which the court stated that “Rule 26(B) is not an adequate and independent state rule that can preclude consideration of Franklin's ineffective assistance of appellate counsel claim,” id. at 421-is inapplicable here. Fautenberry has procedurally defaulted his ineffective assistance of appellate counsel claim.

But even if this claim was not procedurally defaulted, it must fail because it is meritless. A defendant is entitled to effective assistance of counsel during his first appeal of right, Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), but effective assistance does not require counsel to raise every nonfrivolous argument on appeal, Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). “[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.2002).

Fautenberry argues that his appellate counsel rendered ineffective assistance because they raised only seven issues on direct appeal, and, more specifically, they failed to present four allegedly meritorious claims on appeal: (1) the trial court's failure to review evidence as required by Ohio Crim. R. 11(C)(3); (2) ineffective assistance of trial counsel; (3) Ohio's discriminatory method for selecting grand-jury forepersons; and (4) the fact that Fautenberry was forced to wear shackles in the presence of the trial court. The mere fact that appellate counsel confined their appeal to seven issues does not establish that counsel were ineffective; it is often best to filter out less meritorious issues so that counsel can emphasize those that present the best opportunity for relief on appeal. See Jones, 463 U.S. at 752, 103 S.Ct. 3308 (“There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review.”). And the four “ignored issues” were not “clearly stronger than those presented.” The first of the four appears to be baseless. Contrary to Fautenberry's argument, the trial court did in fact review evidence as required by Ohio Crim. R. 11(C)(3); most notably, the prosecutor introduced and the trial court reviewed the transcripts of Fautenberry's confessions to Agent Ott, Officer Nelson, and Ms. Priest-Herndon. We have already concluded that the second omitted issue-i.e., ineffective assistance of trial counsel-is baseless. The third omitted claim, which alleges the impropriety of Ohio's selection of grand-jury forepersons, was not apparent from the record on direct appeal, and thus we do not fault appellate counsel for failing to raise that claim. Moreover, the case upon which Fautenberry relies to challenge Ohio's grand-jury foreperson selection process, Campbell v. Louisiana, 523 U.S. 392, 398, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998), was not decided until 1998, long after Fautenberry's direct appeal had concluded. Finally, the fourth omitted claim-that Fautenberry was prejudiced by the wearing of shackles before the trial court-would not have had any merit on direct appeal because under Ohio law the appellate court “presum[es] that in a bench trial in a criminal case[,] the court consider[s] only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.” Post, 513 N.E.2d at 759.

III.

After carefully reviewing the record and evaluating Fautenberry's arguments on appeal, we conclude that the district court properly denied Fautenberry's petition for habeas relief. Accordingly, we AFFIRM the judgment of the district court.

KAREN NELSON MOORE, Circuit Judge, dissenting.

When an attorney calls forward an expert, especially an expert asked to provide mitigating evidence when a defendant's life hangs in the balance, the attorney has an obligation to ensure that the expert knows about that which she speaks. When the majority declares that “[w]e will not find counsel deficient simply because they did not succeed in discovering his brain damage or pursue unspecified, alternate avenues (which may or may not have revealed the brain damage),” Maj. Op. at 625, they find no fault in the actions of counsel who, in the face of numerous indicators of brain damage, inexcusably failed to ensure that their expert actually tested for the organic brain disorder that she claimed to be unable to find. I believe that the majority's elevation of form over substance wrongly excuses ineffective assistance of counsel; simply presenting an expert who is a doctor does not absolve counsel from an obligation to grasp the bare rudiments of the expert's testimony. Because I conclude that Fautenberry's counsel was ineffective in the penalty stage of his trial, I respectfully dissent.

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III. CONCLUSION

Given Fautenberry's history of physical abuse, headaches, and significant head injuries, his counsel had an obligation to investigate fully a potential mitigation defense of an organic brain defect. This obligation did not diminish just because Fautenberry erected obstacles to his attorneys' efforts. Had Fautenberry's attorneys scrutinized the basis of their purported expert witness's conclusion, they would have realized that they had not fully investigated the presence of brain damage as they were obligated to do. Instead, counsel were unaware of the limits of their witness's testimony and repeatedly emphasized to the sentencing panel that their client had no mental deficiencies. This was both defective and prejudicial. Accordingly, I conclude that Fautenberry has established ineffective assistance of counsel at the mitigation phase of his trial and that the Ohio Court of Appeals's holding was contrary to clearly established federal law. Therefore, I respectfully dissent.