Gross v. Jackson

Full title: TONY R. GROSS, Petitioner, v. WANZA JACKSON, Respondent

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: May 6, 2008

CASE NO. 2:06-cv-00072 (S.D. Ohio May. 6, 2008)

Opinion

CASE NO. 2:06-cv-00072.

May 6, 2008

ORDER and REPORT AND RECOMMENDATION

NORAH KING, Magistrate Judge

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's habeas corpus petition, as amended and supplemented ( see Doc. Nos. 20, 23, 26) with supplemental appendices (Doc. Nos. 11-14), respondent's return of writ, and the exhibits of the parties. Petitioner's request for an evidentiary hearing, Doc. No. 21, is DENIED. Petitioner's August 16, 2007, motion to expand the record with the documents attached thereto, Doc. No. 37, is GRANTED. Petitioner's request for the appointment of counsel is DENIED. Petitioner's motion to dismiss unexhausted claims, Doc. No. 36, is DENIED, as moot.

For the reasons that follow the Magistrate Judge RECOMMENDS that petitioner's May 31, 2007, motion to amend the petition to include now exhausted claims, Doc. No. 41, be GRANTED in part and DENIED in part and that this action be DISMISSED.

I. FACTS and PROCEDURAL HISTORY

The Ohio Supreme Court summarized the facts and procedural history of this case as follows:

At around 3:00 a.m. on July 12, 1994, four juveniles were preparing to distribute the morning newspaper together when they observed a man who appeared to be using the restroom outside the Certified gas station in South Zanesville, Ohio. The juveniles also noticed a yellow car with a black stripe on the side parked at the gas station.

While making their deliveries, the juveniles saw the same man drive the yellow car past them. Suspicious, the juveniles informed Muskingum County Deputy Sheriff Lieutenant Michael Lutz about the man while on their route. One of the juveniles also tried to memorize the yellow car's license plate number and later wrote it down. At around 4:30 a.m., after finishing their paper route, the juveniles returned to a house near the gas station. There, they again saw the yellow car and the same man whom they had observed earlier at the Certified station. The man proceeded to break a lock off the men's restroom door and enter the gas station. One of the juveniles ran inside his home and called the police to report the break-in.

Within moments, Lieutenant Michael Lutz arrived at the gas station. Lieutenant Lutz radioed the police dispatcher a description of the yellow car with a license plate of "Nora, Boy, Young, 718" — indicating that the plate read "NBY 718." This was similar to the juvenile's description of the license plate as "NVB-718."

The juveniles approached the gas station and watched as Lieutenant Lutz emerged from his police cruiser and walked to the restroom door. The man who had broken into the gas station came out of the bathroom and went to the front of the station, where he threw something away that sounded like metal when it hit the ground; the police later recovered a metal crow bar. Lieutenant Lutz followed the man, who began to argue with the officer. A fight ensued. The deputy sheriff struck the man on the head several times with his flashlight, but then lost hold of the flashlight. As the two men separated, Lieutenant Lutz reached for his gun, saying, "Don't make me do this." Before the officer could retrieve his weapon, however, the man grabbed Lieutenant Lutz's gun and fired twice, hitting the deputy sheriff in the head at least once. Lieutenant Lutz fell to the ground. As the juveniles watched, the man then walked up to Lieutenant Lutz, pointed the gun at the deputy sheriff's head, and fired twice at point-blank range. The man then fled in the yellow car toward Zanesville. One of the juveniles called 911 for an ambulance.

Several passing motorists observed portions of the incident. One of them, Karen Wright, was driving on Maysville Pike on her way to work. As she passed the gas station, Wright noticed Lieutenant Lutz and a man fighting. She slowed down but did not stop, intending to find a pay phone and call for help. Wright later informed officers who arrived on the scene that she had watched the officer's assailant for approximately 30 seconds and that she could see his face. After hearing gunfire, Wright turned around in a parking lot down the road and returned to the gas station. While Wright was waiting in the turn lane to enter the gas station, the yellow car nearly hit her vehicle as it pulled from the gas station and sped away.

At approximately the same time, Shawn Jones was also driving on Maysville Pike. He had noticed the juveniles in the gas station parking lot and slowed his vehicle when he heard a gunshot. He observed a man twice shoot Lieutenant Lutz in the face; Lieutenant Lutz was partially lying on the ground when the shooting occurred. Jones drove to a SuperAmerica gas station down the road and told the clerk to call 911. After going to work to inform his coworkers that he had to return to the scene, Jones returned to the Certified gas station and gave the police his statement.

Similarly, Sherry Fugate was driving to work when she noticed Lieutenant Lutz's police cruiser behind the gas station. While waiting at a traffic light further down the road, she saw police cars racing toward the gas station. She also saw a yellow car come from the direction of the gas station. As Fugate sat at a red light, the yellow car passed her on the right, ran the light, and traveled down Putnam Avenue onto Van Buren Street, before pulling into an alley behind a bakery. Fugate saw only one person in the yellow car.

By the time officers arrived at the gas station, Lieutenant Lutz had died. A pathologist from the Franklin County Coroner's Office later determined that he had died from three gunshot wounds to the head.

Ron Johnson was selling crack cocaine that morning from his house in Zanesville when Gross arrived in a yellow car. The back of Johnson's house sits on the alley into which Fugate had watched the yellow car disappear. Gross left his car running as he entered Johnson's house. Johnson noticed blood running from a cut on Gross's head and gave the man a towel to wipe off the blood. Gross then traded a.9-mm gun that he had for a $50 piece of crack. As Gross left the house, he told Johnson to hide the gun because "it could be life or death." Johnson therefore proceeded to clean the gun of fingerprints and to empty approximately eleven shells from the weapon. He noticed that the gun had blood on its handle. After subsequently hearing that Gross had been arrested and charged with murder, Johnson initially hid the gun under rocks near the Muskingum River, then later retrieved the weapon and hid it in the woods near his home. Based on information Johnson provided, the police eventually recovered the gun, which was stamped with Lieutenant Lutz's unit numbers.

Also that morning, shortly after the shooting of Lieutenant Lutz, Village of South Zanesville Chief of Police Bob Van Dyne was given the license number that Lutz had communicated to the dispatcher and informed that the car was registered to Gross. Van Dyne was familiar with Gross and drove to his trailer in South Zanesville. After the dispatcher repeated the license number, Van Dyne realized that the vehicle in the driveway was Gross's car. He radioed for assistance.

Several other deputies arrived and set up a perimeter around Gross's trailer. One of the deputies found Gross lying in weeds near his trailer, wearing only pants with no shirt or shoes. He had a recent head injury. Gross eventually surrendered. Because initial radio broadcasts had reported that two suspects were involved, the deputies conducted a one-minute protective sweep of Gross's trailer to ensure that another suspect was not inside.

The deputies conducted a show-up identification. Karen Wright identified Gross as the man she had observed fighting with Lieutenant Lutz and later identified Gross's yellow car as the yellow car she saw. Shawn Jones identified Gross as the man he saw shoot the deputy. Only one of the juveniles, however, was able to select only Gross from a photo array of suspects, although he expressed some uncertainty. A second juvenile identified five possible suspects, while another juvenile narrowed the photos to three suspects; both groups included Gross. The fourth juvenile was unable to identify anyone from the group of photographs as the man at the gas station. All four juveniles identified Gross's car from photographs as the vehicle that they had observed at the gas station. Sherry Fugate similarly identified Gross's car as the yellow car that had passed her.

The Muskingum County Grand Jury issued a seven-count indictment against Gross. Counts one and two charged aggravated murder, with each count carrying three death specifications-murder of a police officer, felony murder, and murder to escape detection for another offense-as well as firearm specifications. Counts three through six charged Gross with having committed aggravated robbery; each carried a prior aggravated felony conviction specification and a firearm specification. Count seven charged Gross with having had a weapon under a disability and carried a specification of a prior felonious assault conviction. The matter proceeded to jury trial on the first six counts, while Gross waived a jury trial on count seven. The jury found Gross guilty of all six counts and all the specifications that were before the jury, and the trial judge subsequently found Gross guilty of having a weapon while under disability and the remaining specifications. In addition to imposing terms of confinement, the trial court followed the jury's recommendation and imposed the death penalty.

State v. Gross, 97 Ohio St.3d 121, 122-24 (2002). On September 4, 1996, the trial court sentenced petitioner to death and imposed three years actual imprisonment on the firearm specification, fifteen to twenty-five years incarceration on count three, fifteen to twenty-five years incarceration on count six, and three to five years incarceration on count seven, all such sentences to run consecutively to each other. Exhibit 1 to Return of Writ. ¹

1 Prior to being sentenced, on August 30, 1996, petitioner filed a motion for a new trial. Exhibits 24 and 25 to Return of Writ. On September 4, 1996, he filed a supplemental memorandum in support or a second motion for a new trial. Exhibit 27 to Return of Writ. The trial court denied petitioner's motion for a new trial. See Transcript, Vol. 26. In June 2002, petitioner filed a pro se delayed motion for a new trial. See Exhibit H to Petition. It does not appear from the record before this Court that the trial court has issued a decision on that motion.

Represented by new counsel, petitioner raised the following assignments of error on appeal:

ASSIGNMENT OF ERROR I

THE INITIAL SEARCH OF TONY GROSS' HOUSE TRAILER VIOLATED HIS RIGHTS UNDER THE FOURTH AMENDMENT AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. ALL EVIDENCE OBTAINED FROM THAT SEARCH OR WARRANTS ISSUED BASED ON INFORMATION GENERATED FROM THAT SEARCH ARE FRUIT OF THE POISONOUS TREE AND SHOULD HAVE BEEN SUPPRESSED.

ASSIGNMENT OF ERROR II

SAMPLES OF BLOOD, HAIR AND FINGERNAIL SCRAPINGS WERE TAKEN FROM TONY GROSS PURSUANT TO A WARRANT ISSUED ON THE BASIS OF INFORMATION OBTAINED IN AN ILLEGAL WARRANTLESS SEARCH OF HIS HOME IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR III

THE PHOTOGRAPHIC IDENTIFICATION AND FOLLOW UP PROCEDURES USED WITH SEVERAL WITNESSES WERE SO SUGGESTIVE THAT THEY LED TO UNRELIABLE PRE-TRIAL AND IN-COURT IDENTIFICATION THAT SUBVERTED THE FAIRNESS OF THE FACT FINDING PROCESS AT BOTH THE TRIAL AND PENALTY PHASES.

ASSIGNMENT OF ERROR IV

SHOW-UP IDENTIFICATION PROCEDURES USED WITH WITNESSES KAREN WRIGHT AND SHAWN JONES WERE UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN IDENTIFICATION. NEITHER THEIR IN-COURT IDENTIFICATIONS OF TONY GROSS NOR TESTIMONY CONCERNING THE PRIOR IDENTIFICATIONS SHOULD HAVE BEEN ADMITTED AT TRIAL.

ASSIGNMENT OF ERROR V

THE JURY SELECTION DEPRIVED TONY GROSS OF DUE PROCESS, A FAIR TRIAL AND A RELIABLE SENTENCING DETERMINATION IN VIOLATION OF THE FIFTH, SIXTH EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR VI

INTRODUCTION OF "OTHER ACTS" EVIDENCE THAT TONY GROSS DEALT IN "CRACK" CAUSED UNDUE PREJUDICE, UNFAIRLY DENYING HIM DUE PROCESS, A FAIR TRIAL, AND A FAIR AND RELIABLE SENTENCING HEARING, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AS WELL AS ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR VII

THE EVIDENTIARY ERRORS THAT PERVADED THE TRIAL DEPRIVED TONY GROSS OF DUE PROCESS, A FAIR TRIAL, AND A FAIR AND RELIABLE SENTENCING DETERMINATION IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLE I, §§ 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR VIII

ERRONEOUS INSTRUCTIONS, GIVEN TO THE JURY DURING THE TRIAL PHASE OF GROSS' CAPITAL CASE, DENIED HIM DUE PROCESS AND A FAIR TRIAL.

ASSIGNMENT OF ERROR IX

THE CONSIDERATION OF DUPLICATIVE AGGRAVATING CIRCUMSTANCES IMPROPERLY TIPPED THE WEIGHING PROCESS, DESTROYED THE RELIABILITY OF THE SENTENCING PROCESS AND RESULTED IN THE ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AS WELL AS ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR X

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY AT THE PENALTY PHASE DID NOT ADEQUATELY GUIDE THE JURY'S DISCRETION IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AS WELL AS ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR XI

TONY GROSS WAS CONVICTED AND SENTENCED TO DEATH IN A TRIAL CONDUCTED IN AN EMOTIONAL ATMOSPHERE BASED ON VICTIM IMPACT EVIDENCE AND ARGUMENT.

ASSIGNMENT OF ERROR XIII

TONY GROSS WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND ARTICLE I, SECTION 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR XIV

JUROR MISCONDUCT DENIED TONY GROSS DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AS WELL AS ARTICLE I, SECTION 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR XV

THE CONVICTIONS AND SENTENCE OF DEATH IMPOSED UPON TONY GROSS VIOLATE THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AS WELL AS ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS THROUGHOUT BOTH PHASES OF THE TRIAL, THE PRETRIAL PREPARATION AND LITIGATION, THE MOTION FOR A NEW TRIAL AND THE APPELLATE PROCESS.

ASSIGNMENT OF ERROR XVI

THE DEATH SENTENCE IS INAPPROPRIATE IN THIS CASE.

ASSIGNMENT OF ERROR XVII

WHEN PROPORTIONALITY REVIEW IS A NECESSARY COMPONENT IN THE APPELLATE REVIEW OF A CAPITAL CASE, DUE PROCESS AND EQUAL PROTECTION ARE DENIED WHEN THE STATE COURTS' REVIEW IS LIMITED.

ASSIGNMENT OF ERROR XVIII

THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND §§ 2, 9, 10 AND 16 OF ARTICLE I OF THE OHIO CONSTITUTION ESTABLISH THE REQUIREMENTS FOR A VALID DEATH PENALTY SCHEME. OHIO'S STATUTORY PROVISIONS GOVERNING THE IMPOSITION OF THE DEATH PENALTY DO NOT MEET THE PRESCRIBED CONSTITUTIONAL REQUIREMENTS AND ARE UNCONSTITUTIONAL, BOTH ON THEIR FACE AND AS APPLIED.

State v. Gross, 1999 WL 33233 (Ohio App. 5 Dist May 24, 1999), Exhibit 32 to Return of Writ. On May 24, 1999, the appellate court affirmed the trial court's judgment. Id. Represented by the same appellate counsel, petitioner filed a timely appeal to the Ohio Supreme Court. He asserted the following propositions of law:

1. Evidence obtained in an illegal search are fruits of the poisonous tree under the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. The initial search of Tony Gross' trailer was in violation of the Constitutions. The fruits of this search should have been suppressed.

2. A warrant issued on the basis of information obtained in an illegal warrantless search of a home violates the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. Samples of blood, hair and fingernail scrapings taken from Tony Gross pursuant to such a warrant must be suppressed.

3. The photographic identification and follow up procedures used with several witnesses were so suggestive that they led to unreliable pre-trial and in-court identification that subverted the fairness of the fact finding process at both the trial and penalty phases.

4. Show up identification procedures used with witnesses Karen Wright and Shawn Jones were unnecessarily suggestive and conductive to irreparable mistaken identification. Neither of their in-court identifications of tony Gross nor testimony concerning the prior identifications should have been admitted at trial.

5. Gross was entitled to a fair and reliable determination of guilt or innocence as well as sentence by an impartial jury under Article I, Sections 2, 9, 10 and 16 and the Fifth, Sixth, Eighth and Fourteenth Amendments. The jury selection process here denied Gross such a fair and impartial jury.

6. Introduction of "other acts" evidence, except under limited, clearly defined circumstances denies a criminal defendant of a fair trial and due process. The introduction of "other acts" evidence that Tony Gross dealt in "crack" caused undue prejudice, unfairly denied him due process, a fair trial, and a fair and reliable sentencing hearing in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.

7. The evidentiary errors that pervaded the trial deprived Gross of due process, a fair trial, and a fair and reliable sentencing determination.

8. The jury must be given clear and legally correct jury instructions to ensure a fair and reliable determination of guilt or innocence at the trial phase of a capital case.

9. Duplicative aggravating circumstances improperly tipped the weighing process, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.

10. Jury instructions at the penalty phase must convey to the jury adequate information to adequately guide the jury's exercise of its discretion. The instructions here failed to provide the mandated guidance in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.

11. Tony Gross was convicted and sentenced to death in a trial conducted in an emotional atmosphere based on victim impact evidence and argument in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.

12. Due process permits convictions only upon proof beyond a reasonable doubt. The State failed to introduce sufficient evidence upon which to premise a conviction for aggravated murder, as well as the other charged crimes. Tony Gross' convictions and sentence of death deprived him of due process as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 15 of the Ohio Constitution.

13. A defendant in a capital prosecution is guaranteed the effective assistance of counsel by the Fifth, Sixth, Eighth and Fourteenth Amendments and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution. The performance of trial counsel fell far below the prevailing professional norms, and was therefore unreasonable, denying Gross the effective assistance of counsel.

14. A capital defendant is entitled to a fair and reliable determination of his guilt and sentence by a jury that is properly instructed and that follows the court's instructions. Where the jury ignores the court's admonitions and discusses the case outside of the jury room and where jurors intimidate other jurors there is a denial of due process and a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.

15. The convictions and sentence of death imposed upon Tony Gross violate the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution because of the cumulative effect of the errors throughout both phases of the trial, the pretrial preparation and litigation, the motion for a new trial and the appellate process.

16. The death sentence is inappropriate in this case.

17. When proportionality review is a necessary component in the appellate review of a capital case, due process and equal protection are denied when the state courts' review is limited.

18. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio's statutory provisions governing the imposition of the death penalty do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied to Tony Gross.

Exhibits 33 and 34 to Return of Writ. On October 30, 2002, the Ohio Supreme Court affirmed petitioner's convictions but vacated his death sentence and remanded the case to the trial court for re-sentencing. State v. Gross, supra, 97 Ohio St.3d at 121; Exhibits 38 and 39 to Return of Writ. Petitioner filed a motion for reconsideration with the Ohio Supreme Court, which motion was denied. Exhibits 40 and 44 to Return of Writ. On December 9, 2004, the trial court re-sentenced petitioner to life in prison with eligibility for parole after thirty years. Exhibits 73 and 74 to Return of Writ. Petitioner filed an appeal; however, on April 1, 2005, the appellate court dismissed the appeal at petitioner's request. See Exhibits 75-78 to Return of Writ. Petitioner apparently thereafter filed a motion for leave to file a delayed application to reopen, application to reopen, and motion to file brief instanter in the state appellate court, which motions were denied on September 25, 2006, as untimely. See Motion to Amend Petition, Doc. No. 41, Appendix U. On January 24, 2007, the Ohio Supreme Court dismissed petitioner's subsequent appeal as not involving any substantial constitutional question. Id., Appendix W.

Meanwhile, on March 1, 2000, petitioner filed a pro se application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Exhibit 46 to Return of Writ. On April 11, 2000, the appellate court denied petitioner's motion for failure to comply with the provisions of Rule 26. Exhibit 47 to Return of Writ. On July 3, 2000, petitioner filed another application to reopen the appeal. Exhibit 48 to Return of Writ. On October 18, 2000, the appellate court dismissed that application on the basis that, because the matter was pending on appeal before the Ohio Supreme Court, the appellate court was without jurisdiction to review petitioner's claims. Exhibit 49 to Return of Writ. On January 28, 2003, petitioner filed yet another application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Exhibit 50 to Return of Writ. On April 1, 2003, the appellate court denied the application for failure to show good cause for the untimely filing. Exhibit 51 to Return of Writ. Represented by the Ohio Public Defender, petitioner then filed a timely appeal to the Ohio Supreme Court. Exhibit 52 to Return of Writ. On July 30, 2003, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Exhibit 53 to Return of Writ. On November 21, 2003, petitioner filed a fourth application to reopen the appeal. Exhibit 54 to Return of Writ. On December 12, 2003, the appellate court denied that application as untimely. Exhibit 57 to Return of Writ.

Petitioner also pursued post conviction relief. On July 7, 1997, represented by counsel, petitioner filed his first petition for post conviction relief in the state trial court. Exhibit 58 to Return of Writ. Petitioner thereafter filed two pro se motions "to append" and one motion to amend his post conviction petition. Exhibits 59, 62, 63 to Return of Writ. On September 26, 2002, the trial court denied petitioner's post conviction petition as barred under Ohio's doctrine of res judicata. Exhibit 64 to Return of Writ. Represented by the Ohio Public Defender, petitioner filed a timely appeal. He raised the following assignments of error:

1. The trial court issued inadequate findings of fact and conclusions of law in regard to Tony Gross' petitions for post conviction relief.

2. The actions of the trial court and post conviction counsel deprived petitioner of his right to effective assistance of counsel.

3. The trial court erred when it overruled petitioner's motions for funds to employ experts.

4. The trial court erred when it denied petitioner's post conviction petitions without first affording him the opportunity to conduct discovery.

5. The trial court erred when it ruled that petitioner's constitutional claims were barred by res judicata.

6. The trial court erred in denying the merits, or in the alternative factual development, as to the causes of actions contained in Tony Gross' first post conviction petition.

7. The trial court erred in denying factual development for the causes of action contained in petitioner's pro se post conviction petition.

8. This court improperly denied petitioner's appointment of counsel in his appeal to this court.

Exhibit 65 to Return of Writ. On November 18, 2003, the appellate court dismissed the petition as premature because petitioner had not yet been re-sentenced. Exhibit 68 to Return of Writ. Still represented by counsel, petitioner filed a timely appeal to the Ohio Supreme Court. On April 14, 2004, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. On August 26, 2005, petitioner filed a pro se petition for post conviction relief with the state trial court. He asserted the following claims:

1. Trial counsel [failed] to contact parents of former juror Ryan Nolan and obtain affidavits, evidence. . . . to substantiate the informed instances of juror misconduct. . . .

2. Trial counsel [failed] to contact former juror Ed Edwards and determine the validity of former alternate juror Kathy Ours' statements towards Edwards' source of extraneous, prejudicial, hearsay and obtain evidence, aliunde — the deliberations in form of an affidavit — to substantiate the informed instances of juror misconduct. . . .

3. Trial counsel [failed] to question, confront, and challenge for cause or use a peremptory challenge [against] former juror Carolyn Mayle, after being informed by both the petitioner and the petitioner's sister of her adverse relationship with petitioner and of her crack cocaine drug addiction. . . .

4. Trial counsel [failed] to request . . . pre-trial discovery, the Auto-Rads — generated from the DNA test procedures — instituted by both the F.B.I. labs and Cellmark Labs, in order to conduct a meaningful, independent analysis of the final reports generated from these DNA tests. . . .

5. Trial counsel [failed] to move for a continuance and retain the services of a forensic science lab and test the sample from the flashlight and compare that to a sample taken from the petitioner to determine the source of the flashlight's contaminate. . . .

6. Trial counsel [failed] to motion the court for a continuance in order to have tested the tape by a forensic lab for foreign substances/glue, reportedly wrapped around the two evidence boxes, and/or to conduct an in-court demonstration reflecting the ease of steaming tape from a package, and then resealing the package without it being apparent [that] the process had ever taken place — directly allowed tainted and tampered evidence to be introduced, unchallenged. . . .

7. Trial counsel [failed] to motion . . . the court to permit the jury to view the premises — allowed to stand, unchallenged and uncontested the testimony of two state witnesses who claimed to see the event unfold and participated in identification procedures [which] directly violated the petitioner's. . . . rights . . . to confront and challenge evidence used against him. . . . and the right to the effective assistance of counsel.

8. Trial counsel [failed] to retain a gunshot powder residue expert to challenge and confront the state's introduction of the BCI's flawed report. . . .

9. Trial counsel [failed] to investigate the petitioner's extensive history of multiple substance abuse and addiction: call witnesses that were available and enter a plea of temporary insanity by reason of voluntary intoxication. . . .

10. Trial counsel [failed] to retain the expert services of a toxicologist and neurologist to determine the effects of years of documented chronic and sustained [sic] harsh chemical abuse upon the petitioner's brain functioning/mental process . . . all towards a plea of temporary insanity due to voluntary intoxication. . . .

11. Trial counsel . . . purposely deprived the petitioner of his rights to a fair trial; to confront evidence; due process of law, and the effective assistance of counsel. . . .

12. O.R.C. § 2953.21 permits persons convicted of crimes to introduce evidence dehors the trial record . . . which if received would entitle the petitioner [to] a hearing, summary judgment, and eventual new trial, and/or other relief as deemed appropriate by the court.

13. O.R.C. § 2953.21 permits persons convicted of crimes to introduce evidence dehors the trial record. . . . which, if received, would entitle the petitioner [to] a hearing, summary judgment, an eventual new trial, and/or other relief deemed appropriate by the court.

14. Trial counsel, by . . . failing to call witnesses, close properly and failing to retain a forensic science lab to measure the distances relevant and in question to the known, reported time(s) to prove dispositively the petitioner could not have traveled to Ron Johnson's — where the victim's gun was found. . . .

15. Trial counsel by his individual and cumulative acts and/or omissions substantially prejudiced the petitioner. . . .

16. Trial counsel directly violated both the petitioner's United States Constitutional . . . rights to due process of law, and rights to confront evidence and witnesses, and rights to effective assistance of counsel. . . . when he failed to raise the issue(s) on appeal.

17. Trial counsel directly violated the petitioner's . . . rights . . . when [the court] refused to admit into evidence the exculpatory F.B.I. reports: while appellate counsel, struggling with an unreconci[la]ble conflict with the petitioner also violated these same, self-said rights when he failed to properly develop the claim[s] which are also violations of the Ohio's Constitution. . . .

18. Trial counsel directly violated the petitioners . . . rights . . . when it failed, pre-trial, to motion the court to order a competency to stand trial evaluation upon the petitioner.

19. Trial counsel, directly, and appellate counsel, indirectly, violated the petitioner's . . . rights . . . when trial counsel failed to object or motion the court to conform its sentencing to O.R.C. § 2929.41(E), and appellate counsel [failed] to raise this issue on appeal.

20. Warren County Correctional Institution by its policies have directly violated the petitioner's rights to due process and equal protection. . . .

21. Ohio's post conviction statute, § 2953.21, is unconstitutional and violates the petitioner's . . . rights to due process of law and equality and protection of law.

22. Resentencing counsel, Shank and Doughten, directly violated the petitioner's . . . rights to the effective assistance of counsel . . . by failing to investigate, prepare, and present to the resentencing trial court on-the-record evidence which — if presented — would allow the court to recognize and correct plain error in the prior . . . sentences.

Exhibit 79 to Return of Writ. On January 5, 2006, the trial court denied the post conviction petition as untimely. Exhibit 81 to Return of Writ. Petitioner filed a timely appeal from that decision. He asserted the following assignments of error:

I. THE TRIAL COURT WRONGFULLY DISMISSED THE POST PETITION FOR BEING FILED OUT-OF-TIME ON CLEARLY ERRONEOUS FACTS AND ALLOWED THEM TO SERVE AS BASIS FOR THE DISMISSAL.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE POST CONVICTION PETITION FOR BEING FILED OUT-OF-TIME IN DISREGARD OF THE RECORD, STATE STATUTE, AND THIS COURT'S PRIOR ORDER.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY PREDICATING AND TAKING ADVANTAGE OF THE INTOLERABLE ACCESS TO LEGAL SERVICES AND MATERIALS WHEN IT DISMISSED THE POST CONVICTION PETITION FOR BEING FILED OUT-OF-TIME WHEN THE VERY CAUSES FOR ITS "HELD" LATE FILING DATE WERE CITED IN THE PETITION'S 20TH CLAIM FOR RELIEF.

IV. THE TRIAL COURT ERRORED/ABUSED ITS DISCRETION BY HOLDING CLAIMS 1-19 OF THE POST CONVICTION PETITION HAD BEEN PREVIOUSLY RAISED AND AFFIRMED ADOPTING THE STATE'S DEFENSE, WITHOUT A PER SE REVIEW TO ENFORCE THE IMPLIED APPLICATION OF RES JUDICATA.

V. THE TRIAL COURT ERRORED/ABUSED ITS DISCRETION BY ALLOWING THE STATE TO PARTICIPATE IN THE POST CONVICTION PROCEEDINGS BY ITS HOLDING THAT THE RULES APPLICABLE TO IT'S PARTICIPATION WERE BUT DIRECTORY AND NOT MANDATORY; [TH]EREBY MAKING MOOT, RETROACTIVELY, THE APPELLANT'S MOTION FOR SUMMARY JUDGEMENT.

VI. THE TRIAL COURT ERRED/ABUSED ITS DISCRETION BY DISMISSING AND DISALLOWING THE APPELLANT ANY DISCOVERY, SCIENTIFIC OR MEDICAL EXPERTS, EVIDENTIARY HEARING, COUNSEL OR RIGHT TO DEPOSE WITNESSES.

See State v. Gross, 2006 WL 3804532 (Ohio App. 5 Dist. December 20, 2006). On December 20, 2006, the appellate court affirmed the trial court's dismissal of petitioner's post conviction petition as untimely. On April 17, 2007, the Ohio Supreme Court dismissed petitioner's subsequent appeal. State v. Gross, 2006 WL 3804532 (Ohio 2007).

On May 18, 2007, petitioner filed the amended pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,² asserting that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:

2 Petitioner filed the original petition on January 30, 2007. Doc. No. 1.

Exhausted direct appeal claims

Section I

1. This claim involves the unconstitutional one-man show-up identification that took place.

2. This ground for relief is premised on faulty jury instructions.

3. This ground for relief is premised upon unconstitutional juror misconduct.

4. This ground for relief is premised upon unconstitutional photo array identification and the testimony which followed.

5. This ground for relief is premised [on the] ineffective assistance of trial counsel.

6. This ground for relief is premised upon the remaining claims presented in the direct appeals brief to the Ohio Supreme Court. . . .

Exhausted 26(B) claims to reopen the direct Appeal and motion to the Ohio Supreme Court to replace appellate counsel

Section II

7. This claim is premised upon pre-trial legal conflicts of interest the petition[er] had with trial counsel and irreconcilable differences: the failure of appellate counsel to document and present this issue as an assignment of error on direct appeal.

8. The petitioner . . . would submit this petition's Appendix E, F, and G as claims for review, and has motioned this Court for the appointment of counsel and to preserve the right to amend this petition with counsel if it's appointed since each of the aforementioned petitions have been exhausted in the state courts excepting for App. G which has sit [sic] in the Fifth District Court since November 21^st, 2003, a total of twenty-six months.

Unexhausted 26(B) application to reopen the direct appeals and delayed new trial motion

Section III

9. The petitioner would move to have the unexhausted delayed 26(B) application to reopen the appeal (see.. App. G), considered as his [ninth] ground for relief.

10. The petitioner would move to have his delayed application for a new trial, (see App. H), considered as his [tenth] ground for relief.

Amended Petition, Doc. Nos. 20, 23. On May 31, 2007, petitioner filed a request to further amend the petition to include the following additional claims:

11. The petitioner would move to have his 1^st R.C. 2953.21 post [conviction] petition . . . considered as his [eleventh] ground for relief.

12. The petitioner would move to have his 2^nd R.C. 2953.21 post [conviction] petition . . . considered as his [twelfth] ground for relief.

13. The petitioner would move to have his resentencing trial issues and appeal claims ( see Appendixes P through W), considered as his [thirteenth] ground for relief.

Renewed Motion for Leave to Amend the Habeas Petition to Include the Now Exhausted State Claims, Doc. No. 41. Respondent opposes petitioner's request. Memorandum in Opposition to Petitioner's Motion for Leave to Amend his Habeas Petition, Doc. No. 42. Further, respondent contends that all of petitioner's claims are either without merit or procedurally defaulted.

STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 imposed a one-year statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Petitioner's conviction became final on April 1, 2005,³ when his re-sentencing appeal was dismissed at his request. The statute of limitations expired one year later, on April 1, 2006. It does not appear that any of petitioner's collateral or post conviction actions tolled the running of the statute of limitations, since the state courts dismissed each of these actions as untimely or improperly filed. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005); Larry v. Dretke, 361 F.3d 890, 894-95 (5^th Cir. 2004) (improperly filed state habeas corpus petition did not toll the running of the statute of limitations). Petitioner executed his original habeas corpus petition on January 24, 2006. See Doc. No. 1. He filed that petition on January 30, 2006. Id. Therefore, the original petition is timely.

3 Alternatively construing the date that petitioner's judgment became final as May 16, 2005, i.e., forty-five days after the appellate court dismissed petitioner's appeal, and the time period in which petitioner could have filed an appeal to the Ohio Supreme Court, see Ohio Supreme Court Rule of Practice II Section 2(A)(1)(a), does not alter any of the conclusions reached here.

However, respondent contends that petitioner's May 31, 2007, request to amend the petition with new claims, filed after the statute of limitations expired, is barred by the one-year statute of limitations. See Memorandum in Opposition to Petitioner's Motion for Leave to Amend, Doc. No. 42.

In Mayle v. Felix, 125 S.Ct. 2562 (2005), the United States Supreme Court addressed whether an untimely request to amend a habeas corpus petition with new claim(s) relates back to timely raised claims under Rule 15 of the Federal Rules of Civil Procedure.⁴ The Supreme Court held:

An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.

Id. In so holding, the Supreme Court reasoned:

4 Rule 15 of the Federal Rules of Civil Procedure provides in relevant part:

Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course;

(A) before being served with a responsive pleading; or

(B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

* * *

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law the provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment;

(I) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Congress enacted AEDPA to advance the finality of criminal convictions. See Rhines v. Weber, 544 U.S. ___ ____, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005). To that end, it adopted a tight time line, a one-year limitation period ordinarily running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A). If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance. . . . The very purpose of Rule 15(c)(2), as the dissent notes, is to "qualify a statute of limitations." Post, at ____ 2. But "qualify" does not mean repeal. See Fuller v. Marx, 724 F.2d 717, 720 (C.A.8 1984). Given AEDPA's "finality" and "federalism" concerns, see Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Hicks, 283 F.3d, at 389, it would be anomalous to allow relation back under Rule 15(c)(2) based on a broader reading of the words "conduct, transaction, or occurrence" in federal habeas proceedings than in ordinary civil litigation, see supra, at ___ — ____ 10-12.

***

. . . So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order. . . . Our reading is consistent with the general application of Rule 15(c)(2) in civil cases . . . with Habeas Corpus Rule 2(c) . . . and with AEDPA's installation of a tight time line for § 2254 petitions. . . .

Id. (citations and footnotes omitted.)

Here, petitioner requests to amend his petition in claim thirteen to include "resentencing trial issues and appeal claims." The sole issue raised by petitioner on appeal from his December 9, 2004, resentencing was the ineffective assistance of trial counsel at the resentencing hearing. See Appendix Q to Petition. It does not appear that this claim arises from the same common core of facts, see Mayle v. Felix, supra, as those claims presented in the initial and amended petitions, which raise issues regarding petitioner's trial and direct appeal. However, even if that claim thirteen is not time-barred, that claim is procedurally defaulted.

Petitioner also seeks to amend the petition with claims eleven and twelve to include state post conviction claims. Again, even assuming that such claims are not time-barred, all of petitioner's post conviction claims are likewise procedurally defaulted.

The Magistrate Judge therefore GRANTS that petitioner's request to amend the petition to include claims eleven, twelve, and thirteen. Doc. No. 41. However, it is RECOMMENDED that all such claims be DISMISSED for reasons discussed, infra, as procedurally defaulted.

PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to fairly present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S.. 4, 6 (1982) ( per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. 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." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided 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. Id. Finally, if the Court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis also applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

In claim two, petitioner asserts that he was denied a fair trial because of improper jury instructions. A portion of this claim was reviewed on direct appeal for plain error only, due to petitioner's failure to object at trial. In claim six, petitioner raises "all of the other" direct appeal claims not already presented in habeas corpus claims one through five.⁵ The Ohio Supreme Court likewise reviewed petitioner's evidentiary claims for plain error only because he failed to object at trial:

5 This Court will not address any claims raised by petitioner in the state courts regarding his death sentence, since that sentence was reversed by the Ohio Supreme Court and is no longer at issue.

A. Evidentiary Issues

Gross asserts in his sixth proposition of law that the trial court erred in permitting the testimony of Ron Johnson, which placed Gross's purchase of crack cocaine before the jury. In his seventh proposition of law, Gross then claims prejudice from the admission of nine allegedly redundant autopsy photographs, three allegedly irrelevant photographs, and the flashlight. He additionally claims that the trial court erred in permitting two individuals to testify as experts on atomic absorption testing. Further, Gross argues in his eleventh proposition of law that the impermissible admission of victim-impact evidence created an emotional atmosphere that rendered his trial fundamentally unfair. Finally, he claims in his twelfth proposition of law that there was insufficient evidence to support his convictions. None of these propositions of law is well taken.

"Other Acts" Testimony

The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. State v. Issa (2001), 93 Ohio St.3d 49, 64, 752 N.E.2d 904. Therefore, we confine our inquiry to determining whether the trial court acted unreasonably, arbitrarily, or unconscionably in deciding the evidentiary issues about which Gross complains. See State v. Barnes (2002), 94 Ohio St.3d 21, 23, 759 N.E.2d 1240.

Gross argues that the trial court erred by admitting prejudicial "other acts" evidence-specifically, the testimony by Ron Johnson that Gross traded the murder weapon for crack cocaine. But our review of the record indicates that Gross failed to timely object to Johnson's testimony at trial. Accordingly, Gross has forfeited all but plain error. See State v. Hartman (2001), 93 Ohio St.3d 274, 281, 754 N.E.2d 1150; State v. Allen (1995), 73 Ohio St.3d 626, 634, 653 N.E.2d 675.

Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." We have previously explained that this rule "places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial": (1) "there must be an error, i.e., a deviation from a legal rule," (2) "the error must be plain," which means that it "must be an `obvious' defect in the trial proceedings," and (3) "the error must have affected `substantial rights,'" which means that "the trial court's error must ** have affected the outcome of the trial."FN2 Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. Further, the decision to correct a plain error is discretionary and should be made "`with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" Id., quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

FN2. We note-without deciding the issue in this case-that the phrase "affecting substantial rights" may not always be synonymous with "prejudicial." See Olano, 507 U.S. at 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 ("There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome").

We find no plain error here. Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." We have previously held that this rule sets forth "an exception to the common law with respect to evidence of other acts of wrongdoing * * *. The rule * * * contemplate[s] acts which may or may not be similar to the crime at issue. If the other act does in fact `tend to show' by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible." (Citations omitted.) Broom, 40 Ohio St.3d 277, 533 N.E.2d 682, paragraph one of the syllabus.

By testifying as to the details of the crack transaction, Johnson placed the murder weapon in Gross's possession, explained the sequence of events leading to its recovery and connection to Gross, and demonstrated Gross's concern about discovery of the weapon. His "could be life or death" comment reflects consciousness of guilt. See State v. Tibbetts (2001), 92 Ohio St.3d 146, 161, 749 N.E.2d 226. See, also, Hartman, 93 Ohio St.3d at 283, 754 N.E.2d 1150. And, similar to the defendant in Tibbetts, Gross was charged with committing aggravated murder while in the course of an aggravated robbery. His desire for drugs was probative of a possible motive to steal and kill. Id., 92 Ohio St.3d at 161, 749 N.E.2d 226, citing State v. Henness (1997), 79 Ohio St.3d 53, 61, 679 N.E.2d 686. Therefore, because Johnson's testimony concerning Gross's postmurder visit to his house tended to show by substantial proof Gross's motive and intent and Gross's identity as Lieutenant Lutz's killer, we cannot say that the trial court abused its discretion in admitting the testimony under Evid.R. 404(B). Because there is no error, Gross has failed to satisfy the first prong of plain-error analysis.

Moreover, even if we were to decide that the trial court erred in permitting Johnson to testify as to why Gross was at his house, Johnson's testimony as to everything but Gross's purpose was proper. And because the "other act" complained of here-purchasing crack cocaine-is of minor significance compared to the gravity of the aggravated murder counts against Gross, any error would be harmless beyond a reasonable doubt. See Tibbetts, 92 Ohio St.3d at 161, 749 N.E.2d 226. Gross has therefore also failed to demonstrate that the "error" would have affected the outcome of the trial, the third prong of plain-error analysis.

Gruesome Photographs

Gross contends that the trial court erred in permitting the state to introduce nine autopsy photographs that were gruesome and repetitive.FN3 He further claims that the prejudicial effect of the photographs outweighed any probative value. Although Gross asserts that his trial counsel objected to the photographs-he even directs our attention to two transcript pages said to contain the objection-the record reveals that Gross's counsel objected at trial only to the timing of the formal admission of the photographs; counsel wanted to delay the admission of exhibits so any legal debate would not occur in front of the jury. In fact, on one of the transcript pages Gross cites, his counsel stipulates to the admission of the nine photographs in question. Consequently, Gross has forfeited all but plain error. State v. Coley (2001), 93 Ohio St.3d 253, 265, 754 N.E.2d 1129.

FN3. Gross's appellate brief states that the state showed the photographs as slides. The exhibits themselves are photographs. We have considered the potential prejudicial impact of both photographs and slides in determining any effect on the trial.

No plain error occurred. The law regarding the admission of photographic evidence is well settled:

"Under Evid.R. 403 and 611(A), the admission of photographs is left to the sound discretion of the trial court. State v. Landrum, 53 Ohio St.3d at 121, 559 N.E.2d at 726; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. Close-up photographs of victims' injuries, even if gruesome, are admissible in capital cases if the probative value of the photographs outweighs the danger of material prejudice and if the photographs are not repetitive or cumulative in number. Id." Treesh, 90 Ohio St.3d at 483, 739 N.E.2d 749.

We have reviewed the nine photographs at issue, all of which depict the wounds Lieutenant Lutz suffered. The photographs serve purposes that we have time and again found sufficiently probative to overcome their inherently disturbing nature. They helped the jury appreciate the nature of the crimes, they illustrated the coroner's testimony, and, by portraying the wounds, they helped to prove Gross's intent and the lack of accident or mistake. See Coley, 93 Ohio St.3d at 266, 754 N.E.2d 1129; Tibbetts, 92 Ohio St.3d at 156-157, 749 N.E.2d 226; State v. Evans (1992), 63 Ohio St.3d 231, 250-251, 586 N.E.2d 1042. Further, the fact that several of the photographs show the same wounds from varying distances does not automatically mean that they are repetitive. Several of the photographs establish the location of a wound but fail to depict the wound as clearly as another photograph that presents a closer view of the wound-which in turn fails to establish the location of the wound as clearly as the more distant photograph. Therefore, we conclude that, given the substantial probative value of the photographs and the fact that they were not particularly inflammatory, coupled with the consequent lack of any unfair prejudice to Gross, the trial court did not abuse its discretion in admitting the evidence. See Coley, 93 Ohio St.3d at 265, 754 N.E.2d 1129 ("Decisions on the admissibility of photographs are `left to the sound discretion of the trial court,'" quoting State v. Slagle [1992], 65 Ohio St.3d 597, 601, 605 N.E.2d 916). See also, Treesh, 90 Ohio St.3d at 483-484, 739 N.E.2d 749; Landrum, 53 Ohio St.3d at 121, 559 N.E.2d 710; State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267. Further, even if we were to say that because some of the photographs show several of the same wounds from varying distances-a characteristic that this court regarded as nonreversible error in State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d 407-there is no doubt that any such error here is harmless in regard to the guilt phase because of the abundant evidence against Gross. See id. See also, State v. Moore (1998), 81 Ohio St.3d 22, 32-33, 689 N.E.2d 1. Gross has failed to satisfy at least the first and third prongs of our plain-error analysis.

Similarly, we find no plain error in regard to the three photographs that Gross claims are irrelevant. Each photograph depicts Gross at the Bethesda Hospital emergency room following his apprehension and shows his head wounds. Again, Gross failed to object to the admission of these photographs. Relevancy attaches to the photographs because they illustrate witness testimony regarding the head wound Gross sustained that morning, a wound that goes to his identity as the man who struggled with and ultimately killed Lieutenant Lutz. Cf. Coley, 93 Ohio St.3d at 266, 754 N.E.2d 1129. Thus, we cannot say that the trial court abused its discretion in admitting photographic evidence of the head wound. To the extent that the photographs are repetitive, any such error is harmless in light of the abundant remaining evidence of guilt introduced at trial. Moore, 81 Ohio St.3d at 32-33, 689 N.E.2d 1; Thompson, 33 Ohio St.3d at 9, 514 N.E.2d 407. Gross's argument fails to satisfy at least the third prong of our plain-error inquiry.

***

Finally, Gross claims prejudice as a result of the trial court's failure to define for the jury key terms used in the instructions regarding R.C. 2929.04 specifications. He faults the trial court for not defining what constitutes "escaping detection" in its instruction that, if the jury reaches the third aggravated murder specification, it must then decide "whether the State has proved beyond a reasonable doubt that the Defendant * * * committed the offense of aggravated murder for the purpose of escaping detection, apprehension, trial or punishment for another offense committed by the Defendant." Gross further faults the trial court for not requiring unanimity from the jury on the "other offense" and for not defining "principal offender."

Gross timely objected on the issue of unanimity. But there is no record of Gross's timely raising his "escaping detection" and "principal offender" arguments to the trial court. While the trial court permitted defense counsel to build a record of objections to the instructions after the jury retired to deliberate, those objections never included these specific arguments. Accordingly, Gross has waived all but plain error for these arguments. See State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; Crim.R. 30(A).

In regard to his lack-of-definition arguments, Gross has failed to establish plain error. Because "terms of common usage * * * need not be defined for the jury," State v. Riggins (1986), 35 Ohio App.3d 1, 8, 519 N.E.2d 397, the trial court's failure to define "escaping detection" presents no error. Moreover, we note that considering that Lieutenant Lutz arrived and found Gross in the gas station, the officer had already detected Gross. We therefore cannot say that the lack of a detailed "escaping detection" instruction can constitute prejudice under the third prong of our plain-error inquiry when the unchallenged "escaping * * * apprehension, trial or punishment for another offense" qualifiers are more likely to have contributed to the jury's verdict.

Nor does prejudice arise from the trial court's failure to define "principal offender." Gross contends that the failure to define the term "relieved the state of its burden of proof and denied Gross due process and a fair trial." The trial court should have defined "principal offender" for the jury. See State v. Chinn (1999), 85 Ohio St.3d 548, 559, 709 N.E.2d 1166. But the state's theory of the case was that Gross acted alone in killing Lieutenant Lutz. As in Chinn, "[t]here was no evidence to suggest that appellant, if he was present at the time of the aggravated murder, was anything but the actual killer." Id. at 560, 709 N.E.2d 1166. Thus, to have found Gross guilty under the state's theory of the case, the jury necessarily must have found that Gross was the principal offender. Gross has failed to satisfy the third prong of our plain-error analysis. Given the overwhelming evidence of guilt, "[t]he facts in this case fall far short of meeting the criteria for plain error. We see no miscarriage of justice in this case." Underwood, 3 Ohio St.3d at 14, 3 OBR 360, 444 N.E.2d 1332. See also, Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.

Last, we note that the trial court stated that it had sufficiently instructed the jury regarding unanimity. We need not parse the trial court's instructions to decide the issue because, even assuming error, the fact that the jury unanimously found Gross guilty of the "other offense" would render any such error harmless. Cf. Moore, 81 Ohio St.3d at 40, 689 N.E.2d 1. Accordingly, we reject Gross's complaints regarding the guilt-phase jury instructions.

State v. Gross, supra, 97 Ohio St.3d at 134-37; 146-47; Exhibit 44 to Return of Writ. ⁶

Controlling precedent in our circuit indicates that plain error review does not constitute a waiver of state procedural default rules. See Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989) (stating that the state court's review of a claim for "manifest injustice" did not constitute a waiver by the state of its contemporaneous objection rule).

Seymour v. Walker, 224 F.3d 542, 557 (6^th Cir. 2000). The United States Court of Appeals for the Sixth Circuit has held that Ohio's contemporaneous objection rule constitutes an adequate and independent state ground on which to preclude federal habeas review. See Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 424 (6^th Cir. 2003); Hinkle v. Randle, 271 F.3d 239, 244 (6^th Cir. 2001). This Court therefore likewise concludes that petitioner has waived the foregoing claims for federal habeas corpus review.

6 This Court addresses these claims as a cautionary matter, as it is not clear whether or not petitioner intends to raise the foregoing claims in this federal habeas corpus petition. See Traverse, at 2.

In claims seven, eight, and nine, petitioner asserts the ineffective assistance of appellate counsel. These claims have been waived by petitioner's failure to properly present such claims to the state courts. The Ohio Court of Appeals refused to consider the merits of petitioner's ineffective assistance of appellate counsel claims and dismissed all of his Rule 26(B) applications as improperly or untimely filed. Further, with the exception of his third Rule 26(B) application, petitioner failed to file an appeal of the appellate court's denial of his Rule 26(B) applications to the Ohio Supreme Court. He may now no longer do so, as Ohio does not permit delayed appeals in Rule 26(B) proceedings. Ohio Supreme Court Rule of Practice II, Section 2(A)(4)(b).

Specifically, the Ohio Court of Appeals dismissed petitioner's March 1, 2000, Rule 26(B) application for failure to comply with the provisions of Rule 26. Exhibit 47 to Return of Writ. The appellate court dismissed his July 3, 2000, Rule 26(B) application as follows:

This cause comes before us upon appellant's delayed application to reopen his appeal. This matter is currently pending before the Ohio Supreme Court.

We find we do not have jurisdiction to review these claims. Claims of ineffective assistance of counsel in capital cases must be raised on direct appeal to the Ohio Supreme Court, see State v. Wagenstahl (1996), 75 Ohio St.3d 273.

The application is dismissed.

Exhibit 49 to Return of Writ. Petitioner did not appeal that decision. The state appellate court denied petitioner's January 3, 2003, Rule 26(B) application as untimely:

This cause comes before us upon appellant's application to re-open his direct appeal, made pursuant to App.R. 26(B).

The docket reflects our opinion in the within was filed May 24, 1999.

App.R. 26(B) requires an application to re-open be filed within 90 days of the journalization of our opinion.

Appellant must establish good cause for the delay in filing. . . . The application is dismissed as untimely.

Exhibit 51 to Return of Writ. The Ohio Supreme Court affirmed the appellate court's dismissal. Exhibit 53 to Return of Writ. The state appellate court rejected petitioner's November 21, 2003, Rule 26(B) application as untimely:

This cause comes before us upon appellant's delayed application to reopen his appeal, filed November 21, 2003.

Our opinion in the within was filed on May 24, 1999. The Supreme Court then reviewed the matter, affirming in part and reversing in part, see State v. Gross (2002), 97 Ohio St.3d 121.

Appellant has filed three previous applications, all rejected by this court.

App.R. 26(B) provides an application shall be filed within 90 days of the appellate judgment unless the applicant demonstrates good cause.

Appellant states that counsel advised him his appeal to the Ohio Supreme Court divested this court of jurisdiction to entertain appellant's application until after the Supreme Court announced its decision.

Appellant submits a letter from trial counsel which advised appellant to file his application pro se, and to review App.R. 26. The letter is dated June 3, 1999.

From the above, we find appellant has failed to demonstrate good cause for the delay. It appears defense counsel advised appellant promptly after our opinion in the within was filed.

Reliance on appellate or trial counsel does not constitute good cause for the untimely filing of an application to reopen, see State v. Rodgers, (September 29, 1998), Cuyahoga App. #60254.

We find the application is untimely.

In addition, the matter is res judicata, because appellant did not raise this issue in his earlier applications.

Exhibit 57 to Return of Writ. Petitioner did not appeal from that judgment.

Thus, petitioner's ineffective assistance of appellate counsel claims have been waived due to his failure to timely file a Rule 26(B) application and due to his failure to file an appeal of the appellate court's denial of his Rule 26(B) applications to the Ohio Supreme Court. The Ohio Supreme Court was never given an opportunity to enforce the procedural rule at issue due to the nature of petitioner's procedural default. Further, the state court's denial of petitioner's Rule 26(B) as untimely constitutes an adequate and independent state ground to preclude federal habeas corpus review. See Smith v. Ohio Department of Rehabilitation and Correction, 331 F.Supp. 2d 605, 621-22 (N.D. Ohio 2004), citing Monzo v. Edwards, 281 F.3d 568, 578 (6^th Cir. 2002). Petitioner has therefore waived claims seven, eight, and nine.

In claim ten, petitioner asserts the issues raised in his June 2002 motion for a new trial. These claims are summarized as follows:

1. Max and Courtney Ford lied at trial when they testified against petitioner in order to collect a reward from the Certified station.

2. The prosecutor improperly failed to disclose evidence that Courtney Ford, who testified against petitioner at trial, had claimed head injuries and amnesia as a result of an auto accident prior to trial, in violation Brady v. Maryland, 373 U.S. 667 (1963).

3. Jury misconduct.

See Petitioner's Appendix H.

Respondent argues that these claims have been procedurally defaulted because the trial court never granted petitioner leave to file his motion for a new trial, and because petitioner presented similar claims in his 1997 and 2005 post conviction petitions, which were denied by the state courts as untimely or improperly filed.

It does not appear that the trial court ever ruled on petitioner's June 2002 motion for a new trial. Therefore, the state courts have not enforced any procedural bar. Further, in view of this lengthy delay, petitioner will not be required to wait for a ruling from the trial court prior to raising his delayed motion for new trial claims in this action. See Turner v. Bagley, 401 F.3d 718, 724-25 (6^th Cir. 2005) (exhaustion requirement excused where state courts fail to give prompt consideration to petitioner's claims) (citations omitted).

However, this Court also notes that Rule 33 of the Ohio Rules of Criminal Procedure provides that a motion for a new trial must be filed within fourteen days

after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.

Ohio R. Crim. P. 33. Thus, petitioner's motion for a new trial was untimely unless he can establish by clear and convincing proof that he was unavoidably prevented from raising his claims earlier.

"[A] party is unavoidably prevented from filing a motion for new trial if the party had no knowledge of the existence of the ground supporting the motion for a new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence." State v. Walden (1984), 19 Ohio App.3d 141, 146, 19 OBR 230, 483 N.E.2d 859. Clear and convincing proof is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt: it "`produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. Thus, in order for a trial court to properly reach the merits of an untimely motion for a new trial, clear and convincing proof requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial. See State v. Kiraly (1977), 56 Ohio App.2d 37, 55, 10 O.O.3d 53, 381 N.E.2d 649; State v. Dodrill (Oct. 28, 1987), 9th Dist. No. 4204, 1987 WL 19466.

State v. Lordi, 149 Ohio App.3d 627 (Ohio App.7 Dist. October 7, 2002). The record in this action does not reflect that petitioner can meet this standard, at least with regard to his claim of jury misconduct. Petitioner raised this allegation of jury misconduct, supported by an affidavit from the same witness, in his 1997 petition for post conviction relief. See Exhibit 58 to Return of Writ This Court therefore will not address this claim in these habeas corpus proceedings.

That said, the Court is unable to locate in the record any indication that petitioner raised the same Brady claim presented in his June 2002 motion for a new trial in prior post conviction proceedings. As noted by respondent, petitioner alleged in his 2005 post conviction petition that Max and Courtney Ford lied to obtain reward money. See Exhibit 79 to Return of Writ. This same claim was presented in petitioner's June 2002 motion for a new trial. However, the state courts' dismissal of that action as untimely does not constitute the enforcement of a procedural bar by presentment of the same claim in petitioner's delayed motion for a new trial. Further, even assuming that petitioner's remaining claims presented in his motion for a new trial are properly considered in these habeas corpus proceedings, such claims are plainly without merit.

Petitioner asserts that he was denied a fair trial because Max and Courtney Ford lied when they testified against petitioner in order to obtain reward money. In support of this claim petitioner has attached the affidavit of Iria Stanton Galliger dated January 31, 2002, which states in relevant part as follows:

My brother's son, Max Ford, has told me, his aunt, that he needed to speak to Mr. Tony Gross' attorney — to convey that he was put up to altering his his sister's trial testimony in the case of Tony R. Gross.

See Petitioner's Appendix H. Petitioner also asserts that the prosecutor improperly failed to disclose exculpatory evidence. In support of this claim, petitioner has attached the affidavit of John Wade dated February 25, 2002, which states in relevant part:

I was involved in an automob[i]le accident on or about Nov. 1994 in which Courtney M. Ford was involved.

Courtney claimed injuries, head injuries, including amnesia, apparently to increase her insurance settlement award.

It was discovered later that Courtney appeared in court and testified against Tony R. Gross, but made no mention of the fact that just prior to that, she had made a claim based upon amnesia.

Personally, I feel the court should be made aware of this fact — perhaps she wanted to claim the 10.000 [sic] reward made by the Certified Oil Co. To anyone responsible for securing the conviction of anyone who commits a crime on it's [sic] property and to collect on insurance.

Petitioner's Appendix U.

In Brady v. Maryland, supra, the United States Supreme Court held that

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Id. at 86. Evidence is material

[i]f 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 (1985).

[T]here is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.

Strickler v. Greene, 527 U.S. 263, 281 (1999).

The affidavits of both Galliger and Wade lack credibility because the affiants waited so long to come forward. In any event, neither Max nor Courtney Ford was able to identify petitioner as the person who killed Lieutenant Lutz. See Transcript, Volume 14, at 2932; 2839. Further, their testimony regarding the events in question were merely cumulative to other substantial evidence at trial indicating petitioner's guilt, and their eyewitness accounts of the murder were corroborated by other witnesses. It does not appear, therefore, that the information presented in the proferred affidavits can be characterized as material. Accordingly, petitioner cannot establish either a violation of Brady v. Maryland, supra, or that he was denied a constitutionally fair trial in this regard.

In claims eleven and twelve, petitioner raises issues presented in his first and second petitions for post conviction relief. The appellate court dismissed petitioner's first post conviction petition, filed in 1997, as premature because petitioner had not yet been re-sentenced by the state trial court, Exhibit 68 to Return of Writ, and the Ohio Supreme Court affirmed that dismissal. Exhibit 71 to Return of Writ. The state appellate court thereafter dismissed petitioner's August 26, 2005, second post conviction petition (filed after petitioner had been re-sentenced) as untimely:

[A]ppellant filed a direct appeal from his sentence following the Supreme Court's remand for resentencing on January 4, 2005. The Judgment Entry from which appellant appeals was filed on January 10, 2005. Appellant voluntarily dismissed the appeal on April 1, 2005.

R.C. 2953.21(A) provides:

"(2) Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal."

(Emphasis added.)

The trial court concluded appellant's appeal after resentencing was a nullity due to his voluntary dismissal of the same. R.C. 2953.21 required appellant file his post-conviction petition within 180 days after the expiration of the time for filing an appeal, or August 10, 2005. The trial court found appellant filed his petition on November 10, 2005, beyond the permissible time. Accordingly, the trial court dismissed the appeal.

Appellant maintains his petition for post-conviction relief was filed on August 22, 2005, not November 10, 2005, the date he filed an amended post-conviction brief, instanter. Appellant asserts the trial court disregarded its February 28, 2005 order extending the time deadline for appellant to supplement the record on his direct appeal. Including this extension, appellant contends the deadline for his filing a petition for post-conviction relief was September 13, 2005, not August 10, 2005.

We disagree with appellant's argument. As set forth above, 2953.21(A) clearly afforded appellant 180 days from the date the trial transcripts were filed in his first direct appeal or no later than 180 days after the expiration of time for filing the appeal. Because the trial transcript was filed in this Court before our decision affirming appellant's conviction and sentence on May 24, 1999,^FN1 appellant's petition for post-conviction relief is clearly untimely. The fact appellant was resentenced on January 10, 2005, does not serve to restart the clock for post-conviction relief purposes as to any claims attacking his underlying conviction. Assuming, arguendo, it did restart the clock, appellant's petition would still be untimely. Appellant's appeal of the trial court's resentencing was voluntarily dismissed. Any extension of time to file the transcript therein is of no import in computing the timeliness of the instant post-conviction relief petition. Because no transcript had been filed before appellant voluntarily dismissed that appeal, we treat the procedural posture to be the functional equivalent of no appeal having been taken. Pursuant to R.C. 2953.21(A), appellant had 180 days after the expiration of the time for filing his notice of appeal (February 10, 2005). We compute this time to be August 10, 2005, at the latest. Accordingly, the trial court correctly found appellant's petition untimely filed.

FN1. Even under the present version of R.C. 2953.21 which accommodates the new procedure of direct review of capital death penalty cases by the Ohio Supreme Court, bypassing review in the court of appeals, the trial transcript was filed in the Ohio Supreme Court prior to its decision affirming appellant's conviction on October 30, 2002.

Having so found, we find it unnecessary to address the trial court's alternative reason for dismissing appellant's petition.

State v. Gross, supra, 2006 WL 3804532. The Ohio Supreme Court affirmed the appellate court's dismissal of petitioner's post conviction petition as untimely. State v. Gross, supra, 113 Ohio St.3d at 1468. This Court deems the first and second parts of the Maupin test to have been satisfied as to claims eleven and twelve.

In claim thirteen, petitioner asserts that he was denied the effective assistance of counsel at his resentencing hearing. Petitioner properly raised this claim on appeal; however, the state appellate court thereafter dismissed the appeal at his request. See Exhibits 75-78 to Return of Writ. Although petitioner later attempted to reopen his appeal, the appellate court denied his request as follows:

This matter came before the Court for consideration of Appellant's motion for leave to file a delayed application to reopen, application to reopen and motion to file brief instanter. No response has been filed.

Pursuant to App.R. 26(B), an application for reopening should be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of appellate counsel. However, an application to reopen an appeal must be filed "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." App.R. 26(B). If the application is filed more than ninety days after journalization of the appellate judgment, then it must contain "[a] showing of good cause for untimely filing in the application." App.R. 26(B)(2)(b).

In this case, Appellant seeks to appeal a re-sentencing which occurred on December 9, 2004. Appellant filed a timely Notice of Appeal on January 4, 2005. The Ohio Public Defender's Office was appointed to represent Appellant. Appellant by and through counsel moved to voluntarily dismiss the appeal. On April 1, 2005, this Court granted Appellant's motion and the matter was dismissed.

Appellant did not file his application to reopen until August 8, 2006, more than sixteen months later. . . .

Appellant claims he did not file a timely application because he was unaware of the consequences of the dismissal until his post-conviction proceedings were dismissed as being untimely by the trial court's judgment entry journalized in January of 2006. Furthermore, Appellant claims he was unaware that an application to reopen must be filed within ninety days of the judgment of this Court. Appellant believes this is good cause for a delayed filing and asks this Court to consider whether his appellate counsel was ineffective. We disagree.

In this case, the application was clearly filed in excess of ninety days and is untimely on its face. Appellant indicated that he filed motions for post-conviction relief in the trial court and became aware of the impact of a dismissed appeal in January of 2006. Yet he did not file an application with this Court until August of 2006. Finally, the negative impact of the dismissal on other trial court proceedings is insufficient to show good cause for the reopening of a voluntarily dismissed appeal.

For these reasons, the Court find[s] that there is no indication of good cause for filing more than a year after the dismissal entry was journalized. Accordingly, Appellant's failure to show good cause is a sufficient basis for denying the application for reopening. . . . and the matter is hereby dismissed.

Petitioner's Appendix U; Exhibit B to Response in Opposition to Motion to Amend Petition. This Court deems the first and second parts of the Maupin test to have been met as to claim thirteen.

The Court must next decide whether the procedural rules at issue constitute adequate and independent bases upon which to foreclose review of the petitioner's federal constitutional claims. This task requires the Court to balance the state's interests behind each procedural rule against the federal interest in reviewing federal claims. See Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rules barring claims eleven, twelve and thirteen constitute adequate and independent state grounds for denying relief. The time requirements for filing state post conviction and Rule 26(B) applications serve the state's interest in finality and in adjudicating claims at the earliest possible opportunity.

In sum, the Court concludes that petitioner has waived his right to present a portion of claims two, six and ten, and claims seven through thirteen for federal habeas corpus review. Petitioner can still secure review of these claims on the merits if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the constitutional violations that he alleges. "[P]etitioner has the burden of showing cause and prejudice to overcome a procedural default." Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001), citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted).

As cause for the procedural default of his ineffective assistance of counsel claims, petitioner appears to assert the ineffective assistance of appellate counsel. He alleges that his appellate attorney failed to advise him of the time limit for filing his Rule 26(B) application. See Traverse; Exhibit 54 to Return of Writ. ⁷ The ineffective assistance of counsel may constitute cause for a procedural default, so long as such claim has been presented to the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000); see also Deitz v. Money, 391 F.3d 804, 809 (6^th Cir. 2004). However, petitioner's ineffective assistance of appellate counsel claim(s) is waived due to his failure to timely present the claim to the state courts, as well as his failure to file an appeal of the appellate court's denial of his March 1, 2000, and November 23, 2003, Rule 26(B) applications to the Ohio Supreme Court. The ineffective assistance of counsel cannot constitute cause for his failure to file an appeal in the Ohio Supreme Court, because he had no right to counsel in such proceedings. See Gulertekin v. Timmerman-Cooper, 340 F.3d 415, 425 (6th Cir. 2003), citing Coleman v. Thompson, 501 U.S. 722, 752-53 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no right to counsel beyond first appeal of right); Tanner v. Jeffries, 516 F.Supp.2d 909, 916-17 (N.D. Ohio 2007). Further, although petitioner filed his Rule 26(B) applications during the time period that the United States Court of Appeals for the Sixth Circuit took the view that proceeding under Rule 26(B) constituted part of the direct appeal process in Ohio, which included the right to counsel, see White v. Schotten, 201 F.3d 743 (6^th Cir. 2000), overruled by Lopez v. Wilson, 426 F.3d 339, 341 (6^th Cir. 2005), the ineffective assistance of counsel claim petitioner asserts as cause for his untimely Rule 26(B) filings, i.e., counsel's failure to properly advise him of the time requirements to file a Rule 26(B) application, is itself procedurally defaulted. Petitioner first raised this claim in his November 21, 2003, application to reopen the appeal. The appellate court noted that the claim was barred under Ohio's doctrine of res judicata. See Exhibit 57 to Return of Writ. Additionally, petitioner never filed an appeal of the appellate court's denial of this Rule 26(B) application to the Ohio Supreme Court.

7 A letter from petitioner's attorney appears to be missing from the record. See Exhibits 54, 57 to Return of Writ.

Petitioner asserts as cause for this default the fact that he did not learn until July 24, 2006, when he received the Return of Writ in this case, that the appellate court had denied his Rule 26(B) application in December 2003. However, petitioner's failure to keep himself informed of the status of his own Rule 26(B) proceedings, particularly for a time period of approximately three years, does not constitute cause for his procedural default.

`[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753 (1991).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003); see also Lundgren v. Mitchell, 440 F.3d 754, 763-64 (6^th Cir. 2006), citing Murray v. Carrier, 477 U.S. at 488. To establish cause, petitioner "must present a substantial reason that is external to himself and cannot be fairly attributed to him." Hartman v. Bagley, 492 F.3d 347, 358 (6^th Cir. 2007), citing Jamison v. Collins, 291 F.3d 380, 386 (6th Cir. 2002). Petitioner has failed to meet this standard here. The Court concludes that petitioner has failed to establish cause for his procedural defaults.

Beyond the four-part Maupin analysis, this Court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333. After review of the record, this Court does not deem this to be such a case.

CLAIMS ONE AND FOUR

In claims one and four, petitioner asserts that he was denied a fair trial due to a one-man show up and unconstitutional photo identification. The Ohio Supreme Court rejected these claims as follows:

. . . Gross argues, respectively, that photographic and show-up identification procedures were unduly suggestive and produced unreliable pretrial and in-court identifications of Gross that the trial court should have excluded. We again find no reversible error.

"The rationale for excluding a tainted pretrial identification is to protect the defendant from misconduct by the state." State v. Brown (1988), 38 Ohio St.3d 305, 310, 528 N.E.2d 523. Thus, "`[w]hen a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances.' (Emphasis added.)" State v. Murphy (2001), 91 Ohio St.3d 516, 534, 747 N.E.2d 765, quoting State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588 N.E.2d 819. We have previously recounted those factors to be considered: "(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation." State v. Broom (1988), 40 Ohio St.3d 277, 284, 533 N.E.2d 682, citing Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140.

Here, Gross contends that the state subjected the juveniles who were present at the gas station to numerous viewings of Gross or Gross's photograph before the photographic arrays and in-court identifications. The totality of the circumstances, however, weighs in favor of admitting the identifications.

Only one of the four juveniles positively identified Gross from two photographic arrays. That witness stated that he ranked the certainty of his pretrial identification of Gross as a "five" on a scale of one to ten, with ten equaling the most certainty. On cross-examination, the juvenile then admitted that he had seen Gross's picture in the newspaper and that his subsequent in-court identification had been a "three" on the certainty scale. Of the remaining three juveniles, two could identify Gross only as part of a group that included other photographs — and one of these juveniles testified that, after failing to identify Gross in an earlier courtroom appearance, his at-trial identification of Gross depended in part on flashback dreams that he had been having in the interim. The fourth juvenile made no identification.

We find that the trial court did not abuse its discretion in admitting the identifications. The juveniles' accounts of the investigators' procedures undercut Gross's argument that impermissibly suggestive state action tainted the identification process. To the contrary, the record reflects the state's careful efforts to avoid suggestiveness. The investigators showed the juveniles between 30 and 100 photographs, and there is no evidence that the investigators made suggestions or comments to the juveniles, rushed them, or told them whether they had picked Gross's photograph. Moreover, the circumstances that Gross cites as suggestive-that the juveniles encountered media reports and saw Gross in the courtroom-go to the weight to be given the identifications, rather than their admissibility. See Brown, 38 Ohio St.3d at 310-311, 528 N.E.2d 523 (holding that allegedly suggestive circumstances that did not constitute state action go to weight and reliability of testimony, not admissibility). Even if we were to conclude that the trial court erred, however, no prejudice attached. See id. at 311, 528 N.E.2d 523. Defense counsel conducted a probing examination of the circumstances surrounding both the photographic arrays and the identifications to allow the jury to assess the value of the juveniles' testimony. Given the totality of the circumstances surrounding the photograph selection procedures and the identifications, we cannot say that reversible error exists.

Nor can we say that the show-up identification procedures constitute reversible error. Several hours after the murder of Lieutenant Lutz, investigators took both Karen Wright and Shawn Jones to view Gross, who was in custody near the scene. Neither witness spoke to the other. From separate police vehicles, the witnesses observed Gross, who stood with his hands behind his back, between two officers. Both Wright and Jones identified Gross at the scene, in court for a motion hearing, and at trial. Gross complains that the trial court erred in admitting these identifications.

We agree with Gross that the show-up identification was suggestive. We also reiterate that "`[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.'" Broom, 40 Ohio St.3d at 284, 533 N.E.2d 682, quoting Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199. But the ultimate focus in determining whether reversible error exists is not just on whether the practice was used, but on whether it was so suggestive as to create "`"a very substantial likelihood of irreparable misidentification."'" Id., quoting Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (quoting Simmons v. United States [1968], 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247).

Our consideration of the Manson factors, 432 U.S. at 114, 97 S.Ct. 2243, 53 L.Ed.2d 140, leads us to conclude that there is not a "`very substantial likelihood of irreparable misidentification'" in this case. Id. at 105, 97 S.Ct. 2243, 53 L.Ed.2d 140, fn. 8. Both witnesses had time to view Gross during the commission of the crimes; both testified that they had focused their attention on him; both described him prior to the show-up identification; both were confident in their respective identifications (Wright, in fact, testified both at a pretrial motion hearing and at trial that she was 100 percent certain of her identification); and both identified Gross mere hours after witnessing the crime. Although the show-up identification procedures were suggestive, the totality of the circumstances persuade us that the procedures did not create a substantial likelihood of irreparable misidentification. Accordingly, the trial court did not abuse its discretion in admitting the identifications.

State v. Gross, supra, 97 Ohio St.3d at 125-127.

The state court's decision is binding on this Court unless that holding:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Additionally,

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Petitioner has failed to establish that the state court's decision is so unreasonable as to justify federal habeas corpus relief.

Identification testimony based upon a pre-trial procedure that is so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" violates a criminal defendant's right to due process. Thigpen v.Cory, 804 F.2d 893, 895 (6^th Cir. 1986), quoting Simmons v. United States, 390 U.S. 377, 384 (1968); see also Stovall v. Denno, 388 U.S. 293. "It is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. at 198. A court must first determine whether the pre-trial identification procedure employed was unduly suggestive. Ledbetter v. Edwards, 35 F.3d 1062, 1070-71 (6^th Cir. 1994). If so, that Court must then consider the totality of the circumstances in order to determine if the identification is nevertheless reliable. Id., at 1070, citing United States v. Hill, 967 F.2d 226, 230 (6^th Cir. 1992); Neil v. Biggers, supra, 409 U.S. at 199-200; Thigpen v. Cory, supra, 804 F.2d at 895. In making this determination, the Court must consider the following five factors:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of observation; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness when confronting the defendant; and (5) the length of time between the crime and the confrontation.

Ledbetter v. Edwards, supra, 35 F.3d at 1070, citing Manson v. Brathwaite, 432 U.S. at 114; Neil v. Biggers, supra, 409 U.S. at 199-200.

Neither Courtney Ford nor Max Ford was able to identify petitioner as the person whom they saw shoot Lieutenant Lutz at the Certified station on the night in question after viewing photographs shown to them by police. Transcript, Vol. 14, at 2823, 2840, 2932, 2952-54. When interviewed by police, Courtney narrowed her identification of possible suspects to five photographs, one of which was of petitioner. Id., at 2949-51. Robert Hill likewise narrowed his possible suspects to three photographs, one of which was of petitioner. Id., Vol. 13, at 2730-32. Hill identified petitioner at trial as the man whom he saw kill Lutz, but Hill also admitted he had been unable to identify petitioner at a prior court hearing held approximately five months earlier. Id., at 2739. Hill also testified on cross-examination that his in-court identification of petitioner was the result of dreams. Id., at 2744. Jason Stevens identified petitioner from photographs he was shown by police and likewise identified petitioner in court as Lutz's killer. Id., Vol. 14, at 2971. Stevens ranked the certainty of his identification as a five on a scale of one to ten. Id., at 2973. On cross examination, he acknowledged that he had previously ranked the certainty of his identification as a three on a scale of one to ten and had thereafter seen petitioner's photograph in the newspaper. Id., at 2983, 2988. As discussed by the Ohio Supreme Court, this Court is unable to locate any evidence in the record demonstrating that any of the witness identifications were unconstitutionally or impermissibly obtained.

Karen Wright was on her way to work when she saw two people fighting at the Certified station. Id., Vol. 13, at 2767. She slowed down as she approached the station and saw the deputy sheriff. Id. She continued to slow to 10 mph. Her car was in first gear. Id., at 2768; 2777. She had her foot on the brake and almost stopped her car. Transcript, Motion to Suppress Hearing, January 19, 1996, at 28. She was driving in the outside lane closest to the station. There was no other traffic. Id. The area was well lit. Id. She was just a few feet away. Id., at 29. Petitioner faced the highway. Transcript., at 2769. She thought about stopping but continued on to find a phone to call for help. Id., at 2769-70. She heard a gunshot and turned around. Id., at 2770. She saw a yellow car come out from behind the gas station heading towards Zanesville. Id., at 2771. She had a good opportunity to view petitioner for "a good 30 seconds." He appeared taller than Lutz and "was a big person," with shaggy hair. Id., at 2774. He didn't have a beard, but had some facial hair. Id. She remembered his eyes and his build. Id., at 2776. She described him to police as approximately six feet tall, stocky build, dark medium length hair with some facial hair. Transcript, Motion to Suppress Hearing, at 3034. She was one hundred percent sure of her identification of petitioner. Id., at 2789. The front of the Certified station was well lit. Id., at 2779. Her headlights were on and shining out in front. Id., at 2802. She identified petitioner a couple hours later from inside the police cruiser at the Certified station. Id., at 2784-85; Transcript, Motion to Suppress Hearing, at 35. Petitioner was outside the cruiser and there were officers to each side of him. Id., at 2784. She never doubted in her mind regarding her identification of petitioner. Id., at 2790. She recognized him immediately. Transcript, Motion to Suppress Hearing, at 37. She remembered his eyes. Id., at 62. "[I]t's just etched in my mind. I'll never forget that face." Id., at 40.

Shawn Jones was also on his way to work as he approached the Certified station on the night in question. Id., Vol. 13, at 2845. He slowed when he saw kids beside the cars at Fink's parking lot behind the station. He figured they were messing around the cars. Id., at 2546. Then he heard a shot and slowed down and "looked over to where I heard it and then I seen two more shots." Id., at 2846-47. He saw the sheriff deputy partially down and petitioner, whom he described as "kind of stocky, curly hair, [with a] mustache and scraggly beard." Id., at 2847. Petitioner, who was "kind of rough looking," faced the road. Id. Jones saw the flash from the gun. Id., at 2848. Jones saw petitioner shoot Lutz in the face twice. Id., at 2849. Jones was traveling about 15 mph as he watched the events in question. He was driving in the curb lane, approximately 10 to 15 feet away. Id., at 2849. Jones drove to the SuperAmerica gas station and told them to call 911. Id. He identified petitioner from a police car later that same morning. He was not in the same car as Wright. "[Police] brought the guy and asked if that's who I seen." Id., at 2851. Jones said, "I got a good look at all of it." Id., at 2855. The events happened fast; he observed the events for three to five seconds. Id., at 2866. He was ninety percent sure of his identification of petitioner. Id., at 2869. His identification was based on facial features. Id., at 2867. "It was dark but there were lights." Id., at 2875.

A show-up, of the type used by police when they obtained identifications from Karen Wright and Shawn Jones, is inherently suggestive. Summit v. Bordenkircher, 608 F.2d 247, 252 (6th Cir. 1979). "When only one person is presented to a witness, there is a natural tendency for the witness to feel obligated to provide a positive identification." Nonetheless, the totality of circumstances fail to indicate that either Wright or Jones' in-court identification of petitioner was constitutionally prohibited. See Neil v. Biggers, supra, 409 U.S. at 199-200. The record reflects that both Jones and Wright had adequate opportunity to view Lutz's assailant. Both of them carefully observed the events at issue and slowed their cars as they approached the Certified station. Both remained certain of their identification of petitioner from the date of the event until the time of trial. Although it was dark, evidence indicated that the area was lit both by cars and by station lights. Additionally, both Wright and Jones made their identifications of petitioner shortly after the events in question. In short, this Court concludes that petitioner has failed to establish that the state court's decision rejecting this claim warrants federal habeas corpus relief. 28 U.S.C. § 2254(d), (e).

Claims one and four are without merit.

CLAIM TWO

In claim two, petitioner asserts that he was denied a fair trial because of improper jury instructions. The Ohio Supreme Court rejected this claim as follows:

Gross alleges that the trial court erred in five instructions given to the jury as part of the first phase of the trial. Because none of his arguments demonstrates reversible error, we find that this proposition is not well taken.

First, Gross argues that the trial court failed to instruct the jury properly on purpose and causation. The trial court instructed the jury as follows:

"Purpose to kill is an essential element of the crime of aggravated murder.

"A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there were [sic] present in the mind of the Defendant a specific intention to kill Lieutenant Michael Lutz.

"Purpose is a decision of the mind to do an act with a conscious objective of producing a specific result. To do an act purposely is to do it intentionally and not accidentally. Purpose and intent mean the same thing.

* * *

"No . . . person . . . may be convicted of aggravated murder unless he specifically intended to cause the death of another.

* * *

"* * * Cause is an essential element of the offense. Cause is an act or failure to act which in a natural and continuous sequence directly produces the death of a person and without which it would not have occurred.

"The Defendant's responsibility is not limited to the immediate or most obvious result of the Defendant's act or failure to act. The Defendant is also responsible for the natural and foreseeable consequences or results that follow in the ordinary course of events from the act or failure to act."

Gross contends that the result of including "foreseeable" in this instruction was that the trial court "relieved [the state] of its burden to prove an essential element of the crime-specific intent to kill the victim." We disagree. This court has previously upheld a trial court instruction on causation that was for all practical purposes identical to the instant charge in State v. Jalowiec (2001), 91 Ohio St.3d 220, 230-231, 744 N.E.2d 163. There, we reaffirmed that "`[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge.'" Id. at 231, 744 N.E.2d 163, quoting State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus. See, also, Cupp v. Naughten (1973), 414 U.S. 141, 146-147, 94 S.Ct. 396, 38 L.Ed.2d 368. In both cases, when viewed in the requisite full context, the trial court's instructions adequately conveyed to the jury that it could not convict the defendants of aggravated murder unless it found specific intent to kill. "The instruction on foreseeable consequences does not constitute error * * * since other instructions given by the court limited any prejudicial effect." Jalowiec, 91 Ohio St.3d at 231, 744 N.E.2d 163, citing State v. Getsy (1998), 84 Ohio St.3d 180, 196, 702 N.E.2d 866. See, also, State v. Frazier (1995), 73 Ohio St.3d 323, 331, 652 N.E.2d 1000; State v. Burchfield (1993), 66 Ohio St.3d 261, 262-263, 611 N.E.2d 819. We therefore find the purpose and causation instructions sufficient.

We also find that the following trial court instruction does not constitute reversible error:

"If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause the death may be inferred from the use of the weapon."

Gross argues that there is no statutory basis for such an instruction and that it is an unconstitutional mandatory presumption. But we have recognized that "`where an inherently dangerous instrumentality was employed, a homicide occurring during the commission of a felony is a natural and probable consequence presumed to have been intended. Such evidence is sufficient to allow a jury to find a purposeful intent to kill.'" State v. Esparza (1988), 39 Ohio St.3d 8, 14, 529 N.E.2d 192, quoting State v. Jester (1987), 32 Ohio St.3d 147, 152, 512 N.E.2d 962. The trial court's use of "may" communicates that the jury was free to accept or reject a permissive inference; it does not communicate a conclusive presumption that "relieved the state of its burden of persuasion on the issue of criminal intent." See Price, 60 Ohio St.2d at 142, 14 O.O.3d 379, 398 N.E.2d 772. See, also, Francis v. Franklin (1985), 471 U.S. 307, 315, 105 S.Ct. 1965, 85 L.Ed.2d 344 ("If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption"); Sandstrom v. Montana (1979), 442 U.S. 510, 527-528, 99 S.Ct. 2450, 61 L.Ed.2d 39 (Rehnquist, J., concurring) (recognizing that jury charges that describe permissive inferences do not run afoul of constitutional protections against impermissible burden-shifting presumptions and conclusive presumptions). Thus, we conclude that the jury instruction did not prejudice Gross.

Gross also attacks the trial court's instruction defining "reasonable doubt" based on the definition set forth in R.C. 2901.05(D). We have continuously rejected this argument. See State v. Jones (2000), 90 Ohio St.3d 403, 417, 739 N.E.2d 300; Moore, 81 Ohio St.3d at 33, 689 N.E.2d 1; Frazier, 73 Ohio St.3d at 330, 652 N.E.2d 1000; State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph eight of the syllabus.

State v. Gross, supra, 97 Ohio St.3d at 144-146; Exhibit 44 to Return of Writ. Again, the decision of the Ohio Supreme Court is presumed to be correct. 28 U.S.C. § 2253(d), (e). Petitioner simply has failed to establish that the Ohio Supreme Court's decision is unreasonable so as to justify federal habeas corpus relief. See Williams v. Taylor, supra.

Errors in jury instructions are generally not cognizable in federal habeas corpus unless they deprive the petitioner of a fundamentally fair trial. Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Wood v. Marshall, 790 F.2d 548, 551-52 (6^th Cir. 1986); Thomas v. Arn, 704 F.2d 865, 868-69 (6^th Cir. 1983). A habeas petitioner challenging jury instructions must establish that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). An omission or an incomplete instruction is less likely to be prejudicial than a misstatement of law. Henderson, 431 U.S. at 155. For the reasons discussed by the Ohio Supreme Court, petitioner has failed to meet this standard here.

Claim two is without merit.

CLAIM THREE

In claim three, petitioner asserts that he was denied a fair trial due to juror misconduct. The Ohio Supreme Court rejected this claim as follows:

Gross asserts that his convictions and death sentence were the result of juror misconduct. Specifically, he argues that the trial court should have dismissed a juror for discussing the case outside the courtroom and for forming an opinion as to Gross's guilt or innocence prior to deliberations, that this conduct necessitated that the trial court declare a mistrial. . . .

We address here Gross's claim that a juror had disobeyed the trial court's instructions by discussing the case and forming an opinion before deliberations. Although defense counsel had learned of an instance of alleged juror misconduct prior to closing arguments, counsel waited until just prior to the jury's returning with its verdicts at the end of the guilt phase to bring the matter to the trial court's attention. In response, before the sentencing phase commenced, the trial court received testimony from Travis Gross, Gross's nephew. Travis testified that while attending a community picnic/fitness competition, he overheard one of the jurors discussing the trial from a distance of twenty-five to thirty feet away. According to Travis, the juror had stated, when asked by another person how the trial was going, "It shouldn't be much longer because I think he's guilty."

After receiving this testimony, the trial court then questioned the juror accused of misconduct. The juror testified that while at the picnic, two people asked him about the case because they had heard that he was on the jury. He testified that he acknowledged that he was a juror but that he did not discuss the merits of the case. The juror also specifically denied that he had told anyone that he had made up his mind about the case.

The trial court decided that the juror should remain part of the jury. In so doing, the trial court considered that Travis admitted that at the time of the alleged impropriety, he had been twenty-five to thirty feet away from the juror, in a crowded area where many people were talking, with ten to fifteen tables separating him from the juror. The trial court also noted the juror's specific denial of misconduct and that the juror had confirmed only that he was on the jury, a matter of public record.

Gross argues that the trial court should have granted a mistrial over this issue. But the record does not reflect that Gross ever moved for a mistrial on these grounds. Rather, Gross merely asked that the trial court replace the juror with an alternate juror. Accordingly, we review only the decision actually made by the trial court.

A trial court is permitted to rely on a juror's testimony in determining that juror's impartiality. State v. Herring (2002), 94 Ohio St.3d 246, 259, 762 N.E.2d 940, citing Smith v. Phillips (1982), 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78, fn. 7. Here, the trial court's ruling reflects that the court believed the juror and apparently did not believe Travis. As noted, issues concerning the weight given to the evidence and the credibility of witnesses are primarily for the trier of fact. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. Cf. State v. Fears (1999), 86 Ohio St.3d 329, 337-338, 715 N.E.2d 136 (acknowledging that a trial judge is in the best position to observe the demeanor and body language of prospective jurors and decide whether they can be impartial and follow the law). Further, given the trial court's rejection of Travis's account, Gross has failed to demonstrate the requisite prejudice resulting from the alleged communication. See State v. Sheppard (1998), 84 Ohio St.3d 230, 233, 703 N.E.2d 286. We thus cannot say that the trial court erred in declining to seat an alternate in place of the juror.

State v. Gross, supra, 97 Ohio St.3d at 147-148.⁸ Again, the decision of the Ohio Supreme Court is presumed to be correct. 28 U.S.C. § 2254(d), (e); Williams v. Taylor, supra. Petitioner has failed to establish that the Ohio Supreme Court's decision is unreasonable so as to justify federal habeas corpus relief.

8 The Ohio Supreme Court sustained petitioner's claim of juror misconduct during the penalty phase of the trial and vacated petitioner's death sentence, and thus rendered moot other claims relating only to the sentence of death. State v. Gross, supra, 97 Ohio St.3d at 148. This Court will therefore not address that portion of petitioner's juror misconduct claim here.

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a. . . . trial, by an impartial jury. . . . [and] to be confronted with the witnesses against him. . . ." Parker v. Gladden, 385 U.S. 363, 365 (1966), citing Kirby v. United States, 174 U.S. 47, 55, 56 (1899); Pointer v. Texas, 380 U.S. 400 (1965); In re Oliver, 333 U.S. 257, 273 (1948). "The defendant's right in a criminal case to receive a fair trial by a panel of impartial and indifferent jurors is a basic requirement of due process." Mays v. Chandler, 2007 WL 2903212 (E.D. Ky September 28, 2007), citing United States v. Rigsby, 45 F.3d 120, 122 (6th Cir. 1995) (citing Irvin v. Dowd, 366 U.S. 717, 721 (1961)). In Remmer v. United States, 347 U.S. 227, 229-30 (1954), the United States Supreme Court held that, where juror misconduct is alleged, the trial court should conduct a hearing with all interested parties to determine the circumstances and impact of the alleged misconduct. See also United States v. Rugiero, 20 F.3d 1387 (6^th Cir. 1994). The burden is on the defendant to prove actual juror partiality. United States v. Pennell, 737 F.2d 521, 532 (6^th Cir. 1984). Juror testimony at such a hearing is not inherently suspect. Zuern v. Tate, 336 F.3d 478, 486 (6^th Cir. 2003) citing United States v. Rugiero, supra, 20 F.3d at 1390.

In this case, the record reflects that the trial court properly conducted the required hearing, and determined, based upon the juror's assurances, that the challenged juror had not violated in any material way the Court's instructions and could sit as a fair and impartial juror. See Transcript, Vol. 23, at 4455-4482. Therefore, petitioner has failed to establish either actual juror bias or that the state courts' rejection of this claim warrants federal habeas corpus relief. See Zuern v. Tate, supra.

CLAIM FIVE

In claim five, petitioner asserts the ineffective assistance of trial counsel. The Ohio Supreme Court rejected this claim as follows:

Gross argues that he was denied the effective assistance of counsel. It is well settled that a reviewing court may not reverse a conviction on the grounds of ineffective assistance of counsel unless a defendant shows "first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. `To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.' State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus." Treesh, 90 Ohio St.3d at 489, 739 N.E.2d 749. "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Sanders, 92 Ohio St.3d at 273, 750 N.E.2d 90, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. As part of this inquiry, "[a] reviewing court must strongly presume that `counsel's conduct falls within the wide range of reasonable professional assistance,' and must `eliminate the distorting effects of hindsight, * * * and * * * evaluate [counsel's] conduct from counsel's perspective at the time.'" Sanders, 92 Ohio St.3d at 273, 750 N.E.2d 90, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Applying this standard, we have reviewed Gross's extensive list of his trial counsel's alleged deficiencies, all of which we find meritless.^FN5 Gross's claim that counsel failed to engage in reasonable investigation and preparation must fail because the record before us does not reveal these alleged errors. See State v. Nields (2001), 93 Ohio St.3d 6, 35, 752 N.E.2d 859, citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; Sanders, 92 Ohio St.3d at 274, 750 N.E.2d 90. And given our examination of defense counsel's extensive questioning of prospective jurors, discussed supra, the record also fails to support Gross's allegations that counsel were ineffective during voir dire. Similarly, the record does not support Gross's complaints that counsel failed to argue for a change of venue effectively (counsel sought to obtain a change vigorously), that counsel failed to counter the state's challenges for cause (counsel did, and often joined the challenges), and that counsel failed to challenge the state's use of a peremptory challenge under Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (counsel objected).

FN5. Given our reversal of Gross's death sentence in Section IV(A), infra, those instances of alleged ineffective assistance that Gross cites as affecting the sentencing phase are moot.

Gross also faults counsel for not requesting funds to employ expert investigators and witnesses (1) to challenge the state's testing procedures of evidence, (2) to demonstrate the unreliability of eyewitness identifications, (3) to support his motions to suppress, and (4) to help provide an adequate defense in general. To obtain such funds, however, Gross would have had to make a particularized showing of a reasonable probability that the requested expert would have aided his defense, and that the denial of the requested expert assistance would have resulted in an unfair trial. See State v. Mason (1988), 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus. Gross, however, has failed to demonstrate either proposition. See, e.g., State v. Madrigal (2000), 87 Ohio St.3d 378, 390-391, 721 N.E.2d 52 (declining to find ineffective assistance based on failure to employ eyewitness identification expert because "[n]othing in the record indicates what kind of testimony an eyewitness identification expert could have provided. Establishing that would require proof outside the record, such as affidavits demonstrating the probable testimony. Such a claim is not appropriately considered on a direct appeal"). Thus, we cannot say that counsel was ineffective in this regard by employing only a psychiatrist, a mitigation specialist, and an investigator. See Jalowiec, 91 Ohio St.3d at 236, 744 N.E.2d 163.

Further, we reject Gross's allegation of ineffectiveness predicated on his claim that "[c]ounsel failed to properly and effectively demand that the State provide a detailed and descriptive Bill of Particulars." The record reflects that Gross's original trial counsel (later replaced) filed a motion for a bill of particulars, that Gross's second counsel obtained a trial court order for the state to supply the bill, and that the state complied. Given that counsel was conducting extensive discovery during this process, we agree with the court of appeals that a more detailed bill of particulars was unnecessary.

Gross cites one instance in which counsel waived his presence without first obtaining an on-the-record waiver. This occurred when the trial court gave prospective jurors a witness list so that they could mark on the list anyone they knew. Without deciding that this was error, we conclude that Gross has failed to demonstrate a reasonable likelihood that the result of the trial would have been different had he been present. Treesh, 90 Ohio St.3d at 489, 739 N.E.2d 749. See, also, Herring, 94 Ohio St.3d at 262, 762 N.E.2d 940; State v. Green (2000), 90 Ohio St.3d 352, 371-372, 738 N.E.2d 1208; State v. Clark (1988), 38 Ohio St.3d 252, 258, 527 N.E.2d 844.

Finally, Gross asserts-often without explanation or elaboration-perceived deficiencies ranging from counsel's failure to suppress evidence, to challenge effectively the jury array, to move for a change of venue successfully, to object successfully to testimony and evidence, to cross-examine witnesses effectively, and to move for a change in the starting date of the trial. We note that in many instances, such as in regard to the jury array issue, Gross overlooks that counsel mounted vigorous but unsuccessful challenges. Counsel filed over fifty pretrial motions concerned with substantive aspects of the proceedings. Gross's allegations thus equate a lack of success with a failure to render effective assistance of counsel. But we cannot say that the manner in which counsel conducted unsuccessful challenges falls below the wide range of what constitutes reasonable professional assistance. Further, Gross ignores that counsel's decisions often fell within the realm of trial strategy. See Hartman, 93 Ohio St.3d at 296, 754 N.E.2d 1150 (failure to object can be legitimate tactical decision); Issa, 93 Ohio St.3d at 68, 752 N.E.2d 904, citing State v. Taylor (1997), 78 Ohio St.3d 15, 31, 676 N.E.2d 82 ("Counsel is certainly not deficient for failing to raise a meritless issue"). Gross also overlooks that minor missteps are not tantamount to ineffective assistance; a complaining defendant must still demonstrate prejudice. See Fears, 86 Ohio St.3d at 347, 715 N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831 ("`[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel'"). None of the instances Gross cites, either individually or collectively, determined the outcome of the guilt phase of his trial. See Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Gross's claims of ineffective assistance of counsel fail.

State v. Gross, supra, 97 Ohio St.3d at 148-151.

The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177 (6^th Cir. 1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.

To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 697. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697.

Again, the state courts' decision is presumed to be correct. 28 U.S.C. § 2254(d), (e); Williams v. Taylor, supra. Petitioner has failed to establish that the Ohio Supreme Court's decision is unreasonable so as to justify federal habeas corpus relief. For reasons detailed by the Ohio Supreme Court, this Court likewise concludes that petitioner has failed to establish the ineffective assistance of counsel under the two-prong Strickland test.

CLAIM SIX

In claim six, petitioner asserts the remainder of his direct appeal claims not already addressed. Petitioner specifically asserts that the evidence was constitutionally insufficient to sustain his convictions. The Ohio Supreme Court rejected this claim as follows:

Sufficiency of the Evidence

In his twelfth proposition of law, Gross asserts that there was insufficient evidence to convict him of aggravated murder, any of the aggravating specifications, and aggravated robbery. He therefore argues that the trial court erred in failing to grant his Crim.R. 29 motions. This argument is without merit.

"When reviewing the sufficiency of evidence to support a criminal conviction, `[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, **1088 any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" Tibbetts, 92 Ohio St.3d at 161-162, 749 N.E.2d 226, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. When conducting this review, we do not weigh the evidence; rather, our inquiry is limited to whether reasonable minds could reach the conclusion reached by the trier of fact. See Tibbetts, 92 Ohio St.3d at 162, 749 N.E.2d 226; Treesh, 90 Ohio St.3d at 484, 739 N.E.2d 749. Issues concerning the weight given to the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus.

We begin with the essential elements of the crimes. The state charged Gross with two counts of aggravated murder in violation of former R.C. 2903.01(A) and (B). This statute provided:

"(A) No person shall purposely, and with prior calculation and design, cause the death of another.

"(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape." 139 Ohio Laws, Part I, 3.

The state also charged Gross with four counts of aggravated robbery in violation of former R.C. 2911.01(A)(1) and (2). That statute provided:

"(A) No person, in attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:

"(1) Have a deadly weapon or dangerous ordnance, as defined in Section 2923.11 of the Revised Code, on or about his person or under his control;

"(2) Inflict, or attempt to inflict serious physical harm on another." 140 Ohio Laws, Part I, 590.

R.C. 2913.01(K)(1) in turn defines a theft offense to include "[a] violation of * * * 2911.13 [or] 2913.02." The state charged Gross with violations of both statutes. R.C. 2911.13, the breaking-and-entering statute, provides:

"(A) No person[,] by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in Section 2913.01 of the Revised Code, or any felony.

"(B) No person shall trespass on the land or premises of another, with purpose to commit a felony."

R.C. 2913.02(A)(1), the theft statute, provided that "[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [w]ithout the consent of the owner or person authorized to give consent[.]"

The state further sought to prove the charged specifications.^FN4 Under R.C. 2929.04(A)(3), the state had to prove beyond a reasonable doubt that Gross committed the aggravated murder to escape detection, apprehension, trial, or punishment for another offense. Under former R.C. 2929.04(A)(6), the state had to prove beyond a reasonable doubt that Lieutenant Lutz was a peace officer as defined in R.C. 2935.01, that Gross knew or had reason to know this fact, and either that Lieutenant Lutz was engaged in his duties at the time of the offense or that Gross's specific purpose was to kill a peace officer. The definition of a peace officer includes "a sheriff [or] deputy sheriff." R.C. 2935.01(B). Under R.C. 2929.04(A)(7), the state also had to prove that Gross committed the aggravated murder while "committing, attempting to commit, or fleeing immediately after committing or attempting to commit * * * aggravated robbery," and that Gross was either "the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design." All counts also carried a firearm specification, requiring that the state prove that Gross had a firearm on or about his person or under his control while committing the offense. The state also had to prove that Gross had a prior aggravated felony conviction.

FN4. As noted, several of the specifications were before the jury, while other specifications were tried to the court. For purposes of the present analysis, we need not note which entity functioned as the trier of fact for particular specifications.

The evidence adduced at trial, construed in a light most favorable to the state, supports concluding that a rational trier of fact could have found that the state proved each necessary element beyond a reasonable doubt. Four juveniles observed a man, whom one of them later identified as Gross, break a lock off a restroom door and enter the Certified gas station. They also observed the man's car, with one of them attempting to memorize the license plate. The juvenile's memorized plate number was similar to the plate number on Gross's car.

Upon arriving at the gas station, Lieutenant Lutz radioed police dispatch a description of the car he found there, as well as the license plate number. Both corresponded to Gross's vehicle.

From different vantage points, the juveniles also observed Gross attack Lieutenant Lutz. They watched as Lieutenant Lutz struck Gross in the head with a flashlight, as Gross took the officer's firearm, and as Gross shot the deputy sheriff, wounding him. Gross then walked up to the fallen officer and shot him repeatedly in the head, killing him, before fleeing in the yellow car.

Testimony by other witnesses confirmed these events and provided further identifications. While Gross was attacking Lieutenant Lutz, motorist Karen Wright passed by the gas station. She saw the men fighting, observed Gross's face, and heard gunfire as she passed the gas station. Similarly, motorist Shawn Jones saw the fight and watched as Gross- and only Gross-shot Lieutenant Lutz repeatedly, killing him. Wright also saw Gross's vehicle speed from the gas station as she returned to assist the officer. Motorist Sherry Fugate testified that she watched a yellow car, which she later identified as Gross's car, as it sped away from the gas station and into an alley that morning.

Ron Johnson, who lived in a house located off that same alley, testified that Gross came to his house that morning in the yellow car.

He explained how Gross traded a gun (later identified through serial numbers to be Lieutenant Lutz's gun) for crack cocaine. He also testified that Gross was bleeding from a head wound, and that Gross told him to hide the gun, because "it could be life or death." Johnson explained the sequence of events that led to his turning the gun over to the authorities.

Numerous officers testified concerning Gross's capture. The South Zanesville Chief of Police testified that he had arrived at Gross's trailer and found the yellow car, still warm and bearing none of the condensation that a car not recently driven would have had. After forming a perimeter around Gross's trailer, officers found Gross hiding in nearby weeds. He had a head wound that appeared to be fresh. Shortly after Gross was taken into custody, Karen Wright identified Gross as the man she had seen fighting with Lieutenant Lutz. Shawn Jones similarly identified Gross as the man he had watched murder the officer. Both witnesses, as well as the juveniles, identified Gross's car as the vehicle that they had seen at the gas station.

The state introduced all of this testimony at trial. The state also introduced evidence demonstrating that Lieutenant Lutz was a deputy sheriff performing his duties at the time of his murder, facts that Gross did not contest. Two of the juveniles testified that Gross was the man they had observed. Wright and Jones also again identified Gross. The state further presented the testimony of a pathologist who had examined Lieutenant Lutz's body, and who had determined that the officer died as a result of the gunshot wounds to his head. Testimony regarding the serial number established that the gun recovered from Ron Johnson was Lieutenant Lutz's gun. Additional scientific evidence linked Gross to the crime. Expert testimony established that it was "very probable" that a shoe recovered from Gross's trailer matched a shoe print found on a toilet seat taken from the gas station restroom. Material found on Lieutenant Lutz's flashlight matched Gross's DNA, and Gross's head wound was consistent with the juveniles' account of the fight. Further, the results of an atomic absorption test revealed gunshot powder residue on Gross's hand.

We also note that prior to sentencing, the state introduced into evidence without objection a certified copy of Gross's prior 1980 conviction for felonious assault. Because Gross challenges "all" of his convictions, we assume that his sufficiency challenge includes his conviction for having a weapon while under disability, which was tried to the court. Under former R.C. 2923.13(A)(2), the state had to prove that Gross knowingly acquired, had, carried, or used a firearm or dangerous ordnance after having been convicted of a felony of violence. 134 Ohio Laws, Part II, 1966. Felonious assault, a violation of R.C. 2903.11, is such a felony. R.C. 2903.11(B).

Given the foregoing evidence, we conclude that the trial court properly denied Gross's Crim.R. 29 motions and that sufficient evidence exists to support the charge of having a weapon under a disability and related specifications tried to the trial court. We find Gross's twelfth proposition of law not well taken.

State v. Gross, supra, 97 Ohio St.3d at 140-144. The record fails to reflect that petitioner is entitled to federal habeas corpus relief on this claim. 28 U.S.C. § 2254(d), (e); Williams v. Taylor, supra.

Before a criminal defendant can be convicted consistent with the United States Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine whether the evidence was sufficient to support petitioner's conviction, this Court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, at 326). "[A] reviewing court `faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. (quoting Jackson, at 326). For the reasons discussed by the Ohio Supreme Court, this Court likewise concludes that, when viewing all of the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, supra, the evidence was constitutionally sufficient to sustain petitioner's convictions.

Petitioner also asserts in this claim that he was denied a fair trial due to admission of evidence obtained in violation of the Fourth Amendment. However, Fourth Amendment claims cannot be considered in a federal habeas corpus action so long as the state courts provided "an opportunity for full and fair litigation" of that claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976); Riley v. Gray, 674 F.2d 552, 526 (6th Cir. 1982). Such are the circumstances here.⁹

9 The Ohio Supreme Court rejected petitioner's claim as follows:

Gross argues that the trial court erred by failing to suppress evidence obtained as a result of a search warrant that relied in part on officer observations made during the initial, warrantless entry into his home. Gross then contends in his second proposition of law that, because a second search warrant permitting the state to obtain clothes and blood, hair, and fingernail samples also depended in part on these officer observations, the trial court should have suppressed all evidence obtained pursuant to that warrant. We conclude that neither proposition presents reversible error.

We need not resolve the issue of whether officer observations made during the initial, warrantless entry into Gross's trailer could constitute grounds for a search warrant because, even assuming arguendo that they could not, the search warrants properly issued. The United States Supreme Court has held that, after excising tainted information from a supporting affidavit, "if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid." United States v. Karo (1984), 468 U.S. 705, 719, 104 S.Ct. 3296, 82 L.Ed.2d 530. See, also, United States v. Macias (C.A. 10, 1999), 202 F.3d 283, 1999 WL 1244469 (unpublished opinion), quoting United States v. Snow (C.A. 10, 1990), 919 F.2d 1458, 1460 ("`An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid'"); United States v. Whitehorn (C.A. 2, 1987), 829 F.2d 1225, 1231, quoting United States v. Levasseur (E.D.N.Y. 1985), 620 F.Supp. 624, 631, fn. 2 ("`[i]t is well settled that "[t]he ultimate inquiry * * * is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause"'"); State v. Booker (Nov. 20, 1989), Montgomery App. No. 11255, 1989 WL 140201. Here, the officers' observations during the initial entry into Gross's trailer are not critical to establishing probable cause. Excising the observations, we conclude that the remainder of the supporting affidavit independently suffices to establish probable cause for the search warrants. Accordingly, Gross's first two propositions of law are not well taken.

State v. Gross, supra, 97 Ohio St.3d at 125.

Petitioner also alleges in this claim that he was denied a fair trial because of improper jury selection. The Ohio Supreme Court rejected this claim as follows:

Gross raises numerous issues related to venue or the selection of the jury. We address each issue in turn.

Change of Venue

Citing "overwhelming news coverage" and the fact that he "was charged with killing a beloved member of the community," Gross argues that the jury was not free from outside knowledge or influence and bias. As a result, Gross speculates, "[p]otential jurors were necessarily aware that the failure to impose the death penalty against [him] would be dealt with harshly in the media and in the community." Gross therefore argues that because an impartial jury was impossible, the trial court erred in denying his motion to change venue.

A motion for change of venue is governed by Crim.R. 18(B), which provides that "[u]pon the motion of any party or upon its own motion the court may transfer an action * * * when it appears that a fair and impartial trial cannot be held in the court in which the action is pending." We have recently reiterated that the rule "does not require a change of venue merely because of extensive pretrial publicity. State v. Landrum (1990), 53 Ohio St.3d 107, 116-117, 559 N.E.2d 710, 722-723. Any decision on a change of venue rests in the sound discretion of the trial court. Id. at 116, 559 N.E.2d at 722. `"`[A] careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.'"' Id. at 117, 559 N.E.2d at 722, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357 N.E.2d 1035, 1051, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.E.2d 1155. A defendant claiming that pretrial publicity has denied him a fair trial must show that one or more jurors were actually biased. Mayola v. Alabama (C.A.5, 1980), 623 F.2d 992, 996. Only in rare cases may prejudice be presumed. Id. at 997; see, also, Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554-555, 96 S.Ct. 2791, 2800-2801, 49 L.Ed.2d 683, 694-695." State v. Treesh (2001), 90 Ohio St.3d 460, 463-464, 739 N.E.2d 749.

It is indeed true that "[p]retrial publicity can undermine a trial's fairness." Landrum, 53 Ohio St.3d at 117, 559 N.E.2d 710. But Gross has failed to show that "the publicity in this case was so pervasive that it impaired the ability of the empaneled jurors to deliberate fairly and impartially." Treesh, 90 Ohio St.3d at 464, 739 N.E.2d 749. Here, as in Landrum, the trial court took effective steps to protect the defendant's rights. The record is replete with instances of the trial court questioning individual prospective jurors about their exposure to media coverage and their ability to function as fair, impartial jurors. During the lengthy voir dire, the trial court excused over one hundred prospective jurors, often because they knew an individual involved in the case or because they had formed an opinion regarding Gross's guilt or innocence that they could not set aside. Each empanelled juror, however, stated-without exception-that he or she had not formed an opinion about Gross's guilt or innocence, or that he or she could put aside any such opinion, and that he or she could render a fair and impartial verdict based on the law and evidence presented. We have previously explained that where "it appears that opinions as to the guilt of the defendant of those called for examination for jurors are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue, in absence of a clear showing of an abuse of discretion." State v. Swiger (1966), 5 Ohio St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417, paragraph one of the syllabus. Gross has failed to demonstrate that any seated juror was not impartial. Accordingly, we cannot say that the trial court abused its discretion in denying Gross's motion for change of venue.

Limited Voir Dire

Gross argues that the trial court's restrictions on and repeated interruption of voir dire impaired his ability to use peremptory challenges effectively to remove prospective jurors. Gross also complains that the trial court summarily denied defense counsel challenges for cause without permitting counsel to ask appropriate followup questions. We find no merit to these arguments. "The scope of voir dire is within the trial court's discretion and varies depending on the circumstances of each case. Any limits placed thereon must be reasonable." (Citation omitted.) State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913. See, also, State v. Twyford (2002), 94 Ohio St.3d 340, 345, 763 N.E.2d 122. Accordingly, "[n]o prejudicial error can be assigned to the examination of veniremen in qualifying them as fair and impartial jurors unless a clear abuse of discretion is shown." State v. Cornwell (1999), 86 Ohio St.3d 560, 565, 715 N.E.2d 1144. The transcript shows that the trial court was not unduly restrictive; to the contrary, the trial court balanced its obligation to control the inquiry with according counsel latitude in questioning the prospective jurors. See State v. Lorraine (1993), 66 Ohio St.3d 414, 419, 613 N.E.2d 212, quoting State v. Durr (1991), 58 Ohio St.3d 86, 89, 568 N.E.2d 674 ("`[a]lthough R.C. 2945.27 affords the prosecution and defense the opportunity to conduct a reasonable examination of prospective jurors, * * * the trial court reserves the right and responsibility to control the proceedings of a criminal trial pursuant to R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth'"). Voir dire lasted eleven days, encompassed over 2,500 pages of transcript, and, as we noted in our discussion on venue, featured extensive examination of the prospective jurors by the court, the state, and defense counsel. Although the trial court limited certain areas of inquiry, these limitations were within the discretion of the court. Nor do we find the trial court's interaction with counsel unduly intrusive.

Excusal of Jurors

Gross claims that the trial court erred in regard to excusing various prospective jurors. First, he asserts that the trial court incorrectly excused jurors who possessed objections to capital punishment but who were not unequivocally opposed to it under all circumstances. Second, he argues that by failing to excuse jurors who stated that they would automatically impose a death sentence upon a conviction for murder, the trial court forced defense counsel to use peremptory challenges unnecessarily. Third, he contends that the trial court failed to fully voir dire the seated jurors to determine whether their knowledge of the facts or persons involved would prevent a fair trial by an impartial jury. Finally, he objects specifically to the trial court's having excused prospective juror Catherine Decker.

The standard for our review of Gross's complaints is well settled: "[A] court's determination in a voir dire proceeding of a prospective juror's fairness and impartiality constitutes reversible error only when it can be shown that the court, in conducting the examination, clearly abused its discretion." State v. Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 452 N.E.2d 1323.

***

Gross . . . asserts that the trial court improperly denied challenges for cause concerning jurors who stated that they could not consider mitigating evidence and would automatically vote to recommend imposition of the death penalty. Gross identifies 19 prospective jurors who he asserts fit into this category.^FN1 As a result of his need to prevent any of these individuals from sitting on the jury, Gross argues, he had to exercise peremptory challenges that he could have reserved for other prospective jurors. Again, given the need for resentencing, Gross's argument is moot insofar as it pertains to the actual sentence he received. Thus, we address Gross's claim of error only to the extent that it could have deprived him of peremptory challenges that he could have used in an attempt to affect the first phase of the trial.

FN1. Gross fails to identify with accuracy several of the events to which he assigns error. His brief, for example, incorrectly states the names of several prospective jurors and cites transcript pages that do not contain what he represents occurred at that point in the proceedings. We have reviewed the entirety of the transcript and have afforded Gross every benefit of the doubt in searching for support for his argument.

The record reflects that Gross's asserted classification is unfounded. Contrary to his representations, many of the 19 prospective jurors Gross identifies stated in response to further questioning-some emphatically so-that, despite any personal inclinations favoring capital punishment, they could, and would, follow the law in the sentencing phase. It is well settled that "a prospective juror in a capital case may be excluded for cause if his views on capital punishment `* * * would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."'" State v. Coleman (1989), 45 Ohio St.3d 298, 305, 544 N.E.2d 622, quoting Wainwright v. Witt (1985), 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841, and Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581. See, also, State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. Consistent with this rule is our holding that "even if a juror shows a predisposition in favor of imposing the death penalty, the trial court does not abuse its discretion in overruling a challenge for cause if the juror later states that she will follow the law and the court's instructions." (Emphasis sic.) Treesh, 90 Ohio St.3d at 468, 739 N.E.2d 749, citing State v. Mack (1995), 73 Ohio St.3d 502, 510, 653 N.E.2d 329. The prospective jurors here fell into this category, and the record supports the trial court's appropriate exercise of its discretion in refusing to excuse them for cause.

By joint agreement of the parties, the trial court excused for cause those identified prospective jurors who did express an inability to consider mitigation evidence. And, of those remaining identified prospective jurors, the court excused one for cause solely at defense counsel's urging and another by agreement of the parties based on that individual's position as the county dog warden, a position they regarded as too closely aligned with law enforcement. Therefore, Gross is correct only in that some of the prospective jurors whom he later struck by peremptory challenge initially stated that they regarded capital punishment as the appropriate penalty for the intentional killing of another. But Gross has not identified jurors who maintained that view and whom the trial court nevertheless permitted to remain as prospective jurors, thereby necessitating the use of a peremptory. His claim that the trial court's denials of challenges for cause prejudicially affected his use of peremptory challenges thus lacks support and credibility.

The record also contradicts Gross's third complaint, that the trial court conducted an incomplete voir dire. We have already recounted the trial court's efforts to seat an impartial jury in our discussion on venue. The trial court conducted a probing inquiry that addressed the issues of prospective jurors' personal knowledge of the individuals involved in this case and the influence of media reports. The court then permitted counsel for both sides to question the prospective jurors. In the course of this three-pronged examination, all empanelled jurors indicated that they would be able to perform their duties as demanded by the law. The fact that they had heard of the case does not obviate their stated willingness to function as impartial jurors. "While fairness requires that jurors be impartial, jurors need not be totally ignorant of the facts and issues involved. State v. Sheppard (1998), 84 Ohio St.3d 230, 235, 703 N.E.2d 286, 292. The trial court [is] entitled to accept [a juror's] assurances that he would be fair and impartial and would decide the case on the basis of the evidence. `[D]eference must be paid to the trial judge who sees and hears the juror.' Wainwright, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853." State v. Jones (2001), 91 Ohio St.3d 335, 338, 744 N.E.2d 1163. Gross has failed to persuade us either that the trial court acted unreasonably, arbitrarily, or unconscionably in declining to excuse any jurors challenged for cause or in deciding that each of the seated jurors would serve impartially.

Finally, Gross argues that the trial court should not have granted the state's challenge for cause in regard to Catherine Decker, a prospective juror. Gross asserts that Decker "did not express any reservations about the death penalty" and that "[t]he trial court excused her because of her role as a pharmacist." Excusing Decker because she was a pharmacist cannot constitute prejudicial error. "[A]n erroneous excusal for cause, on grounds other than the venireman's views on capital punishment, is not cognizable error, since a party has no right to have any particular person sit on the jury. Unlike the erroneous denial of a challenge for cause, an erroneous excusal cannot cause the seating of a biased juror and therefore does not taint the jury's impartiality." State v. Sanders (2001), 92 Ohio St.3d 245, 249, 750 N.E.2d 90.

***

Jury Sequestration

Gross argues that because the trial court did not sequester the jury throughout the course of the trial, he was denied a fair trial. The decision of whether to sequester a jury lies within the sound discretion of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 252-253, 15 OBR 379, 473 N.E.2d 768. See, also, State v. Osborne (1976), 49 Ohio St.2d 135, 141-142, 3 O.O.3d 79, 359 N.E.2d 78; White v. Maxwell (1963), 174 Ohio St. 186, 189, 22 O.O.2d 140, 187 N.E.2d 878. As in Maurer, the trial judge in the instant case routinely admonished the jury not to discuss the case or to read any news accounts about the matter. The trial court was in the best position to gauge the atmosphere of the trial proceedings and to evaluate whether these instructions sufficed over sequestration. Consequently, as in Maurer, "[w]e believe that the precautions taken, based in part on our finding that the pretrial publicity fell well short of justifying a change of venue, clearly demonstrate that the court's decisio[n] relative to sequestration [was] not in error." Id., 15 Ohio St.3d at 253, 15 OBR 379, 473 N.E.2d 768. We cannot say that the trial court's declining to sequester the jury throughout the trial was an unreasonable, arbitrary, or unconscionable decision.

State v. Gross, supra, 97 Ohio St.3d at 128-133. Again, the Ohio Supreme Court's decision is presumed to be correct, 28 U.S.C. § 2254(d), (e); Williams v. Taylor, supra, and review of the record fails to indicate that federal habeas corpus relief is warranted here.

To the extent that petitioner asserts a violation of state law, such claim is not appropriate for federal habeas corpus review. A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6^th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6^th Cir. 1988). "`[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11^th Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6^th Cir. 1988). Such are not the circumstances here.

Moreover, a change of venue based upon pre-trial publicity or undue media coverage is constitutionally mandated under only limited circumstances.

The United States Supreme Court has held that a court should grant a defendant a change of venue if prejudicial pretrial publicity jeopardizes a defendant's right to a fair trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 722-24, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Ritchie v. Rogers, 313 F.3d 948, 956 (6th Cir. 2002). Prejudice resulting from pretrial publicity can be presumptive or actual. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999), abrogated on other grounds, Harris v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 2000). Presumptive prejudice from pretrial publicity occurs in a case where an inflammatory, circus atmosphere pervades both the courthouse and surrounding community. Ritchie, 313 F.3d at 952-53; Gall v. Parker, 231 F.3d 265, 309 (6th Cir. 2000); Nevers, 169 F.3d at 362-63; DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998) ( en banc). For that presumption to apply, the trial must be entirely lacking in the solemnity and the sobriety required of a system that subscribes to any notion of fairness and rejects the verdict of a mob. Gall, 231 F.3d at 310; Nevers, 169 F.3d at 363. Cases where prejudice from pretrial publicity is presumed are extremely rare, and even pervasive, adverse publicity does not inevitably lead to an unfair trial. DeLisle, 161 F.3d at 382.

Mendoza v. Berghuis, 2007 WL 37745 (E.D. Michigan January 4, 2007). See also Turnage v. Wilson, 2006 WL 2380623 (N.D.Ohio August 14, 2006), citing Irvin v. Dowd, 366 U.S. 717, (1961); Rideau v. Louisiana, 373 U.S. 723 (1963); Sheppard v. Maxwell, 384 U.S. 333 (1966); Ritchie v. Rogers, 313 F.3d 948, 952 (6th Cir. 2002).

Presumed prejudicial publicity occurs only in the rare case where the "the trial atmosphere [has] been utterly corrupted by press coverage." Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The petitioner bears the burden of showing utter corruption of the proceedings. See Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1976) (petitioner proved only that jury pool was well aware of the case). The petitioner does not meet his burden simply by showing that the community has "extensive knowledge" of the alleged crimes or criminal. Id. If the petitioner cannot establish presumed prejudice, he must show actual prejudice if he is to succeed in his claim that he did not receive a fair trial. Ritchie, 313 F.3d at 956.

Turnage v. Wilson, supra. The record in this case fails to reflect either an atmosphere under which prejudice should be presumed or actual prejudice. As noted by the Ohio Supreme Court, "[e]ach empanelled juror . . . stated-without exception-that he or she had not formed an opinion about Gross's guilt or innocence, or that he or she could put aside any such opinion, and that he or she could render a fair and impartial verdict based on the law and evidence presented found." State v. Gross, supra, 97 Ohio St.3d at 129. This finding is presumed to be correct, see 28 U.S.C. § 2254(e), and petitioner has pointed to no reason to disturb such finding here.

It is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irwin v. Dowd, supra, 366 U.S. at 722-23 (citations omitted).

The record likewise fails to support petitioner's contention that the trial court conducted voir dire in a constitutionally improper manner. "The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury." Morgan v. Illinois, 504 U.S. 719, 729 (1997). The trial court is granted wide discretion in conducting voir dire. Mu'Min v. Virginia, 500 U.S. 415, 427 (1991). To be constitutionally compelled, it is not enough that a question may be helpful. "Rather, the trial court's failure to ask . . . questions must render the defendant's trial fundamentally unfair." Id., at 425-26, citing Murphy v. Florida, 421 U.S. 794, 799 (1975). For the reasons discussed by the Ohio Supreme Court, such were not the circumstances here. Further, the fact that petitioner was forced to exercise peremptory challenge(s) because the trial court denied his challenge(s) for cause does not warrant federal habeas corpus relief.

So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. See Hopt v. Utah, 120 U.S. 430, 436, 7 S.Ct. 614, 616, 30 L.Ed. 708 (1887); Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21, 22, 31 L.Ed. 80 (1887).

Ross v. Oklahoma, 487 U.S. 81, 88 (1988); see also United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (the fact that defendant exercised peremptory challenge after trial court improperly failed to excuse juror for cause did not violate the Constitution, so long as no biased jurors were seated on jury). Similarly, the trial court's allegedly improper excusal of one of the potential jurors for cause does not rise to error of constitutional dimension. See United States v. Brooks, 175 F.3d 605, 606 (8^th Cir. 1999); United States v. Mendoza, 157 F.3d 730, 734 (9^th Cir. 1998). Finally, failure to sequester the jury does not warrant habeas corpus relief because "there is no federal constitutional right to jury sequestration." King v. Elo, 2000 WL 791721 (E.D. Michigan May 25, 2000), citing Powell v. Rose, 581 F.Supp. 60, 63 (M.D.Tenn. 1983). As discussed by the Ohio Supreme Court, the trial judge admonished the jury not to discuss the case with anyone, read any newspaper coverage or watch television. "Stay away from them during the trial of this case," Transcript, Vol. 13, at 2600-2601, and there is no evidence indicating that the jury was tainted by the publicity regarding this case. See King v. Elo, supra, citing Lydon v. Kuhlman, 62 F.Supp.2d 974, 979 (E.D.N.Y. 1999).

Petitioner also asserts that he was denied a fair trial due to improper evidentiary rulings by the trial court. The Ohio Supreme Court rejected these claims as follows:

The Flashlight

At trial, the state introduced a flashlight that belonged to Lieutenant Lutz, which, according to witnesses, the officer had used to strike Gross in the head during their struggle. The state further introduced DNA test results indicating that material on the flashlight was consistent with six genetic markers present in blood obtained from Gross; the forensic scientist/molecular biologist who conducted the test testified that such a result would appear only once in every 6,900 Caucasians tested.

Gross argues that admission of the flashlight and test results was error because (1) the officer who retrieved the flashlight from the gas station did not use fresh latex gloves, (2) FBI testing found no genetic material on the flashlight, while subsequent testing by another lab did, and (3) the state failed to preserve a sample of the material for independent testing by the defense. Gross concludes that such alleged errors failed to establish a chain of custody sufficient to satisfy Evid.R. 901(A)'s requirement of proper authentication of evidence as a condition precedent to admissibility.

We find no merit in Gross's arguments. As a general matter, "the state [is] not required to prove a perfect, unbroken chain of custody." State v. Keene (1998), 81 Ohio St.3d 646, 662, 693 N.E.2d 246. Accordingly, "[a] strict chain of custody is not always required in order for physical evidence to be admissible." State v. Wilkins (1980), 64 Ohio St.2d 382, 389, 18 O.O.3d 528, 415 N.E.2d 303. The arguments that an officer failed to change gloves and that a second round of testing found previously undiscovered genetic material on the flashlight go to the weight to be afforded the evidence, not to the admission of the evidence. See State v. Richey (1992), 64 Ohio St.3d 353, 360, 595 N.E.2d 915 ("The possibility of contamination goes to the weight of the evidence, not its admissibility"), overruled on other grounds, State v. McGuire (1997), 80 Ohio St.3d 390, 402-404, 686 N.E.2d 1112. Finally, the state represented to the court at sidebar that a sample of the material sufficient for testing remained available, and that it had informed defense counsel of this fact. The trial court apparently credited this representation and denied a motion for a mistrial by Gross. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the flashlight and related test results over objection.

Expert Testimony

Similarly, we cannot say that the trial court abused its discretion in permitting testimony from two technicians from the Ohio Bureau of Criminal Investigation and Identification. Both technicians testified about the results of an atomic absorption test performed on Gross's hands shortly after his arrest. The test revealed gunshot residue on the back of Gross's left hand. Gross asserts that the trial court erred in finding the technicians qualified to present such scientific testimony.

But the implicit substance of Gross's argument-that it is unusual to find residue on the left hand of a right-handed individual-goes to the weight of the evidence and not to the qualifications of the expert witnesses. Gross provides no substantive explanation as to why either technician was not qualified. Rather, he presents this court with unsupported conclusory statements challenging the expert's findings and credentials ("Neither [technician] had the appropriate expertise to conduct this testing or [to] present their testimony or to give their opinions. [Evid.R.] 602, 701, 702, 703. Their testimony was neither within their personal knowledge nor was it rationally based on their perceptions nor helpful to the jury").

Both technicians supplied their credentials during extensive voir dire. "Pursuant to Evid.R. 104(A), the trial court determines whether an individual qualifies as an expert, and that determination will be overturned only for an abuse of discretion." State v. Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128. We have reviewed the voir dire of both technicians and can discern no reason why, under the Evid.R. 702(B) standards for qualifying witnesses as experts, we should consider the trial court's decision unreasonable, arbitrary, or unconscionable. Gross's conclusory argument is rejected.

Victim-Impact Evidence

In his eleventh proposition of law, Gross argues that the admission of victim-impact evidence in both phases of the trial rendered the proceedings fundamentally unfair. He cites the following as constituting such victim-impact evidence: statements by jurors that they knew Lieutenant Lutz or had encountered media coverage of the crime; autopsy photographs; testimony that Lieutenant Lutz's son, who is also a police officer, had arrived at the scene of the crime; testimony by Karen Wright that when she returned to the gas station after hearing the gunshot, Lieutenant Lutz rolled over and looked at her before he died; the fact that officers were visibly emotional while testifying; and the admission of Lieutenant Lutz's clothes and some personal items.

Nothing Gross identifies, however, presents us with reversible error. Juror statements and exposure to media reports are not evidence. We have already rejected Gross's arguments in regard to these issues in our discussion of venue and voir dire. We also find unpersuasive his arguments related to the autopsy photographs, Wright's discovery of Lieutenant Lutz, and the admission of the victim's clothes and personal belongings. It is well settled that "[e]vidence relating to the facts attendant to the offense * * * 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." (Emphasis sic.) State v. Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d 878. Each of the items about which Gross complains establishes the circumstances of the crime. See Lorraine, 66 Ohio St.3d at 420, 613 N.E.2d 212 (holding that "the physical condition and circumstances of the victims are relevant to the crime as a whole" and are admissible as evidence illustrating the nature and circumstances of a crime).

We also find no merit in Gross's complaint about an incidental mention of Lieutenant Lutz's son, also a law enforcement officer. The first law enforcement officer to arrive at the Certified gas station after the shooting testified as to his discovery of Lieutenant Lutz, the condition of the victim, and the fact that Lieutenant Lutz's gun was missing. After the officer testified that other officers had arrived and assumed his duties, the state asked, "What did you do then?" The officer responded, without objection, "I went over to grab Matt. He wanted to see his dad." The officer then explained that he left the gas station. To the extent that the mention of the victim's son can be said to constitute victim-impact evidence, we conclude that it does not constitute a violation of Gross's constitutional rights. The reference to the victim's son was not detailed, not inflammatory, and not the focus of the testimony. Viewing the facts of this case as a whole, we cannot say that these two sentences of testimony constitute prejudice. See Lorraine, 66 Ohio St.3d at 420-421, 613 N.E.2d 212 (in determining whether prejudice exists, evidence that would cause a jury to empathize with a victim must be viewed against all of the facts of a case).

State v. Gross, supra, 97 Ohio St.3d at 137-140.

Federal habeas review of state court evidentiary rulings is extremely limited. Waters v. Kassulke, 916 F.2d 329, 335 (6^th Cir. 1990). Evidentiary questions generally do not rise to a constitutional level unless the error was so prejudicial as to deprive a defendant of a fundamentally fair trial, thereby violating due process. Cooper v. Sowders, 837 F.2d 284, 286 (6^th Cir. 1983). When such errors are alleged, the federal court's inquiry in reviewing these claims is directed to whether the evidence was rationally connected to the crime charged. Carter v. Jago, 637 F.2d 449, 457 (6^th Cir. 1980). Such are the circumstances here.

Claim six is without merit.

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).