Richard COOEY, Petitioner-Appellant, v. Ralph COYLE, Warden, Respondent-Appellee, 289 F.3d 882

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

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

The men also stole Wendy’s jewelry. The bodies were found on September 1. The Summit County Coroner concluded that Wendy and Dawn had died of multiple blows to the head — Wendy received at least three blows and Dawn at least eleven — with strangulation also contributing to Wendy’s death. He also concluded that both women had oral and vaginal intercourse before death. B. Procedural History Cooey was indicted on September 8, 1986, with two counts of aggravated murder in violation of Ohio Rev.Code §§ 2903.01(

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

Cooey entered a not guilty plea. Cooey waived his right to trial by jury and was tried by a three-judge panel according to Ohio Rev.Code §§ 2945.05 and 2945.06. The panel found Cooey guilty of all counts and specifications. On December 5,1986, the panel conducted a mitigation hearing, pursuant to Ohio Rev.Code § 2929.03(C)(2)(b). The panel returned a unanimous verdict, finding beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, and recommended the death penalty. The two aggravated murders under § 2903.01(

A) were merged into the two convictions under Ohio Rev.Code § 2903.01(B). Cooey was sentenced to death for each murder and to imprisonment for the seven other felonies. Cooey timely appealed, setting forth thirteen assignments of error. The Ohio Court of Appeals upheld Cooey’s conviction and sentence on December 23, 1987. See State v. Cooey, 1987 WL 31921 (Dec. 23, 1987). Cooey appealed to the Ohio Supreme Court, raising thirty-three issues. On October 11, 1989, the Ohio Supreme Court affirmed Cooey’s conviction and death sentence. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989).

The United States Supreme Court denied cer-tiorari on April 1, 1991. Cooey then sought state post-conviction relief. He filed a petition to vacate or set aside his sentence pursuant to Ohio Rev. Code § 2953.21, in the Court of Common Pleas of Summit County, Ohio, raising sixty-five claims for relief. On July 31, 1992, the Summit County Common Pleas Court denied Cooey’s petition. See State v. Cooey, No. 86-09-1109A (Com. PI. Summit Cty. July 21, 1992). Cooey appealed, raising eight assignments of error. State v. Cooey, 1994 WL 201009 (Ohio Ct.App. May 25, 1994).

The Ohio Court of Appeals found that most of Cooey’s claims were barred by res judicata. Id. It did, however, address Cooey’s claims of ineffective assistance of counsel on the merits. Cooey appealed to the Ohio Supreme Court, but that court declined to take jurisdiction of Cooey’s post-conviction appeal. On November 3, 1994, Cooey filed an application to reopen his direct appeal. Cooey claimed that his appellate counsel was ineffective and asserted fifty-eight claims that appellate counsel failed to raise.

On January 16, 1995, the Ohio Court of Appeals denied his request to reopen his direct appeal, finding that Cooey had procedurally defaulted these claims because he had failed to establish good cause for not filing the application to reopen within ninety days from the effective date of Ohio App. R. 26(B), July 1, 1993. The Ohio Supreme Court affirmed the judgment of the Ohio Court of Appeals. See State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995). Cooey’s motion for reconsideration was also denied. Cooey filed this petition for writ of habe-as corpus in October 1996.

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

On October 12, 2000, this Court entered an order ruling that the AEDPA applies to this case, and that the district court’s issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(

c) was ineffective. We elected to treat Cooey’s brief as an application for a certificate of appealability. After expressing our tentative view that Cooey had not made a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the issues raised, we directed Cooey to show cause why we should not deny the application for a certificate. Attached to our order was an appendix summarizing our tentative view as to each issue. The parties filed their respective briefs responding to the show cause order, and the matter was argued on January 30, 2002.

II.Application for Certificate of Appealability Under the AEDPA, an appeal from the denial of a writ of habeas corpus may not be taken unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We may also reject an issue for appeal if the procedural default doctrine applies. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

However, this determination has two components, “one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. at 483, 120 S.Ct. 1595. When the district court denies a habeas petition on procedural grounds alone, the certificate of appealability should issue when the applicant “shows, at least, that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484, 120 S.Ct. 1595.

Cooey raises the following issues in his brief as broadly stated in seven categories, with numerous subissues, and asks us to grant a certificate of appealability as to the following: I. THE STANDARDS CREATED BY THE UNITED STATES SUPREME COURT AND THE SIXTH CIRCUIT COURT OF APPEALS MANDATED AN EVI-DENTIARY HEARING IN MR. COOEY’S CASE. II. THE IMPROPER WEIGHING OF INVALID CIRCUMSTANCES, AND INADEQUATE CONSIDERATION OF MITIGATING FACTORS, REQUIRE THAT MR. COOEY’S DEATH SENTENCE BE VACATED. III. THE IMPROPER CONSIDERATION OF INADMISSIBLE AND PREJUDICIAL MATERIAL BY THE TRIAL COURT REQUIRES THAT MR.

COOEY’S DEATH SENTENCE BE VACATED. IV. THE DISTRICT COURT ERRED WHEN IT FOUND THAT THE ERRORS WHICH OCCURRED AT THE TRIAL PHASE DID NOT DENY [MR. COOEY] HIS RIGHT TO A FAIR TRIAL. V. THE DISTRICT COURT ERRED IN DETERMINING THAT PETITIONER COOEY HAD PROCEDURALLY DEFAULTED ON HIS CLAIMS. VI. MR. COOEY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO PREVENT THE IMPERMISSIBLE CUMULATION OF INVALID AGGRAVATING FACTORS AND OTHER PREJUDICIAL INFLUENCES ON THE TRIAL AND SENTENCING DECISIONS; AND FAILED TO REASONABLY INVESTIGATE MITIGATING FACTORS. VII.

OHIO’S DEATH PENALTY LAW IS UNCONSTITUTIONAL. (Petitioner’s Br. at 2; see also id. at ii-ix). We have reviewed the parties’ most recent round of briefs, and heard their arguments, and conclude that a certificate of appealability should issue as to only the two following issues: I. Whether the Ohio Supreme Court failed on direct appeal to correct the trial court’s errors in weighing the aggravating and mitigating factors; and II. Whether Cooey’s trial counsel provided ineffective assistance.

As for the remaining issues raised, we hold that none meets the standards for granting a certifícate of appealability, for the reasons originally articulated in the appendix to our order dated October 12, 2000, which we reincorporate and attach as an unpublished appendix to this opinion. III. Petition This Court reviews a district court’s decision in a habeas proceeding de novo. Staley v. Jones, 239 F.3d 769, 775 (6th Cir.2001).

Under the AEDPA, a federal court may not grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits unless (1) the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1) (1994 & Supp. VII), or (2) the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” Id. § 2254(d)(2).

A state court’s legal decision is “contrary to” clearly established federal law under § 2254(d)(1) “if the court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An “unreasonable application” occurs when “the state court identified the correct legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. Under this standard, a state decision is not unreasonable simply because the federal court concludes that the state decision is erroneous or incorrect. Id. at 411, 120 S.Ct. 1495. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Id. at 410-12. Factual findings by state courts are presumed correct. 28 U.S.C. § 2254(e)(1).

A. Reweighing Cooey argues that the Ohio Supreme Court’s reweighing of the aggravating circumstances and mitigating factors leading to his death sentence was erroneous. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Supreme Court confirmed that the federal Constitution does not prohibit reweighing or harmless analysis as a cure for weighing errors.

Although not required to do so, once it elects to reweigh, the state appellate court must “give each defendant an individualized and reliable sentencing determination based on the defendant’s circumstances, his background and crime.” Id. at 749, 110 S.Ct. 1441. The three-judge panel convicted Cooey of four aggravated murder counts, two counts relating to victim Wendy Offredo, and two relating to victim Dawn McCreery. Each contained three capital specifications. For each victim, Cooey was charged with purposely killing her with prior calculation and design (Ohio Rev.

Code § 2903.01(A)), and with purposely killing her in the course of an enumerated felony, being kidnapping, rape, and aggravated robbery (Ohio Rev.Code § 2903.01(B)). The same three capital specifications were attached to each count: (1) the murder was committed to escape detection for other crimes (Ohio Rev.

Code § 2929.04(A)(3)); (2) the murder was part of a course of conduct that involved the purposeful killing of two or more persons (Ohio Rev.Code § 2929.04(A)(5)); and (3) the murder was committed while committing or attempting to commit or fleeing immediately after committing or attempting to commit rape and/or kidnapping and/or aggravated robbery and Cooey was a principal offender in the commission of the aggravated murder and/or the aggravated murder was committed with prior calculation and design. (Ohio Rev.Code § 2929.04(A)(7)). The three-judge panel found Cooey guilty of all counts and all specifications.

However, before sentencing, the court made the State elect which count for each victim the court would sentence upon. The State elected the felony murder count for each victim. The three-judge panel also found that the “course of conduct” specification for each count was duplica-tive, so it considered only one such specification. In its review, the Ohio Supreme Court initially determined that the trial court had erred in several respects in its weighing.

First, the Ohio Supreme Court concluded that the trial court erred in combining and collectively considering the aggravating circumstances of both murders: Cooey argues that the trial court erred in combining the aggravating circumstances related to both murders, and weighing all of them collectively against the mitigating factors. We agree. As Cooey states, each murder was a separate offense subject to a separate penalty.

By adding together the aggravating circumstances of both murders in the penalty phase, the trial court denied Cooey that “consideration of ... the circumstances of the particular offense ...” that is “a constitutionally indispensable part of the process of inflicting the penalty of death.” (Emphasis added.) Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (plurality opinion). Therefore, when a capital defendant is convicted of more than one count of aggravated murder, the penalty for each individual count must be assessed separately.

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

The Ohio Supreme Court also determined that certain specifications should have been merged: [Cooey] also argues that, under the facts in this ease, the specifications should have been merged because they arose from the same acts and were committed with the same animus. See Jenkins, supra, ... syllabus. We agree. The specifications for which Cooey was trying to escape accountability when he killed Wendy and Dawn (R.C. 2929.04[A][3]) are the same as those that support his convictions of the felony murder specifications. (R.C. 2929.04[A][7]).

Thus, the “escaping accountability” specifications lack “a significance independent of the other” specifications. Logan, supra, .... Cooey did not raise this error in the court of appeals, and we find it far from clear that it affected the panel’s verdict. We therefore cannot hold it plain error. State v. Cooey, 544 N.E.2d at 917. The Ohio Supreme Court also found that the panel should not have considered mitigating factors not raised by Cooey: Cooey correctly asserts that the trial court erred by considering all of the mitigating factors set forth in R.C. 2929.04(

B) even though Cooey did not raise some of them. See State v. De-Pew, .... However, the sentencing opinion lists what the court understood to be the aggravating circumstances, and the absence of mitigating factors is not among them. Cf. State v. Broom, supra. ... We conclude that the absence of mitigating factors was not im-permissibly transformed into an aggravating circumstance. Id.

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

Of course, under either standard, it must be demonstrated that such lack of capacity resulted from a mental disease or defect.... Since the trial court found that Cooey did not have a mental disease or defect, this mitigating factor would not have applied even under the correct standard. Id. at 918. The Ohio Supreme Court then turned to the question of whether the aggravating circumstances outweighed the mitigating factors, “as part of our statutorily mandated review.” Specifically, the Ohio Supreme Court considered evidence relating to Cooey’s physical and mental history. First, it noted the testimony of Dr.

James W. Siddall, a clinical psychologist, who had interviewed Cooey and performed a standard battery of psychological tests on him. Dr. Siddall determined that Cooey exhibited a “mental disorder” consisting of a “conduct disorder” and a pattern of substance abuse. Id. at 919. The Ohio Supreme Court noted that Siddall “testified that a ‘mental disorder’ is not necessarily a ‘mental illness,’ but that it probably ‘would affect judgment as well as behavioral control.’ ” Id.

The Court also observed that Siddall testified that Cooey’s history of child abuse was significant, a fact which Cooey’s mother further attested to. Id. The Court ultimately concluded that Cooey’s mental disorder was entitled to “little legal weight,” because his mental disorder “consisted of the ingestion of drugs in combination with his ‘conduct disorder,’ ” and Dr. Siddall’s “definition of ‘conduct disorder’ as a pattern of violating other people’s rights could apply to virtually every criminal.” Id.

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

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

We conclude that the properly admitted evidence overwhelmingly proves that the aggravating circumstances outweigh, beyond a reasonable doubt, the mitigating factors. Id. As the foregoing illustrates, the Ohio Supreme Court followed the dictates of Clemons in that it gave individualized consideration to Cooey’s circumstances, his background, and the crime. As the district court ruled: In this case, the Supreme Court of Ohio committed no such error. First, in its decision, the Court gave no consideration to those factors which the trial court had erroneously included in its analysis.

Id. at 41-42, 544 N.E.2d 895, 46 Ohio St.3d 20, 544 N.E.2d 895. Second, it did not reach its decision merely on the existence of a single aggravating circumstance. Instead, it noted the specific nature of the crimes at issue, the use of deceit in committing those crimes, and the amount of force employed by the perpetrator. Id. (“[The mitigating factors] are outweighed beyond any reasonable doubt by the aggravating circumstances of rape and kidnaping. Cooey used deceit to lure Wendy and Dawn into his car, drove them to a deserted area, then took what he wanted from them by force.

He beat them repeatedly with a nightstick, then tried to make sure Wendy was dead by strangling her.”). Finally, the Court provided a thorough discussion of and gave careful consideration to all mitigating factors relevant to Cooey’s sentence. In sum, the Ohio Supreme Court acted properly when, pursuant to § 2929.05, it elected to reweigh the aggravating circumstances and mitigating factors of this case. Cooey v. Anderson, 988 F.Supp. at 1097-98 (footnote omitted).

Thus, it is simply baseless to suggest, as Cooey does in his brief at 46-47, that the Ohio Supreme Court’s reweighing was merely conclusory and insufficient under constitutional standards. The Ohio Supreme Court’s decision was not “ ‘contrary to,’ nor did it involve[ ] an unreasonable application of, clearly established Federal law.” The Ohio Supreme Court was properly allowed to reweigh under Clemons, and considered all the factors Clemons set out as part of the reweighing analysis.

And even if we thought that the Ohio Supreme Court’s application of Clemons was incorrect, which we do not, it was certainly not an unreasonable application of Clemons. Nor can it be said that the Ohio Supreme Court’s holding was based on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. See 28 U.S.C. § 2254(d)(1) & (2). In short, the “reweighing issue” provides no basis upon which to grant the writ. B. Ineffective Assistance of Trial Counsel Cooey also argues that his trial counsel were ineffective for various reasons.

To show that counsel was constitutionally ineffective, a petitioner must demonstrate that counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and also that counsel’s deficiencies prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, the defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Supreme Court explained that “[tjhe prejudice component of the Strickland test ... focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Id. at 372, 113 S.Ct. 838.

The Court further explained that “unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. 1. Impermissible Cumulation of Aggravating Factors First, Cooey claims that his trial counsel failed to prevent or redress the impermissible cumulation of aggravating factors at the sentencing phase.

Specifically, Cooey asserts that trial counsel were constitutionally ineffective for failing to object to the trial court’s separate weighing of duplicative aggravating factors, in contravention of the clear mandate of the Ohio Supreme Court in State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) (syllabus, ¶ 5). The Ohio Supreme Court acknowledged the underlying weighing error, but concluded that “Cooey did not raise this error in the court of appeals, and we find it far from clear that it affected the panel’s verdict. We therefore cannot hold it plain error.” State v. Cooey, 544 N.E.2d at 917.

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

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

The Ohio Court of Appeals ruled on Cooey’s postconviction petition by holding that there was not a “reasonable probability” that Cooey was prejudiced by his trial lawyers’ failure to argue that the aggravating circumstances should not have been merged. Cooey has not contended, and cannot establish, how this conclusion is at odds with Strickland. See 28 U.S.C. § 2254(d). 2. Other Failures Cooey also alleges that trial counsel were deficient for several other reasons, which we address in order. a.

Failure to Object to Constitutionally Infirm Procedures Cooey claims that counsel were ineffective regarding jury waiver, selection of the three-judge panel, introduction of gruesome slides, and the indictment. i.Jury Waiver Cooey claims that his trial counsel failed to insure that he knew that he was waiving his fundamental right to a jury trial. However, as the Ohio Court of Appeals found, Cooey failed to present any evidence supporting his assertion. State v. Cooey, 1994 WL 201009, at *13, *14. See also State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823, 826 (1983).

In other words, the court held implicitly that Cooey defaulted this claim in the state postconviction trial proceeding. By failing to submit evidence, Cooey barred himself from developing the claim further, and is not now entitled to an evidentiary hearing. See 28 U.S.C. § 2264(e)(2)(A)®). The court also held that Cooey “failed to show-that his trial lawyers’ performance fell below an objective standard of reasonable representation.” State v. Cooey, 1994 WL 201009, at *14. Cooey makes no attempt to show how this ruling is contrary to, or an unreasonable application of, Supreme Court precedent.

It is meritless. ii.Three-Judge Panel Cooey complains that trial counsel should have objected to the method of empaneling the three judges. The Ohio Court of Appeals held: Defendant has failed to indicate how the makeup of the three judge panel had an adverse impact on him. Accordingly, defendant did not demonstrate a “reasonable probability” that he was prejudiced by his trial lawyers’ alleged failure. State v. Cooey, 1994 WL 201009, at *12. Again, the state appellate court’s finding that Cooey had not demonstrated prejudice under Strickland’s second prong was reasonable.

This claim is utterly without merit. iii.Gruesome Slides The Ohio Court of Appeals held that: The Ohio Supreme Court ruled that, although the photographs were gruesome, they were highly probative. Cooey II, at 36, 544 N.E.2d 895. The Supreme Court further ruled that the trial court committed harmless error in admitting four of the photographs that were duplicative. Id. There is no “reasonable probability” that defendant was prejudiced by his trial lawyers’ failure to object to the admissibility of the photographs at issue. Id. at *14.

Again, Cooey has not shown how the Ohio Court of Appeals’ decision is an unreasonable application of Strickland’s prejudice prong. More fundamentally, this fails to state a constitutional claim, see Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir.1997) (holding that the claim that a gruesome photo of decedent was erroneously admitted did not raise “the spectre of fundamental fairness such as to violate federal due process of law”), and therefore is not cognizable on habeas. iv. Unsigned Indictment Finally, Cooey argues that trial counsel tailed to object to the use ot an unsigned indictment against him.

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

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

Furthermore, Cooey has not demonstrated how the Ohio Court of Appeals’ ruling is an unreasonable application of Strickland’s prejudice component. h PrPGPnionpp T?onnr*f Cooey complains that his trial lawyers were ineffective because they requested a presentence report. According to Cooey, the request was problematic because the presentence report contained the police captain’s sentence recommendation as well as prior uncharged criminal misconduct. The Ohio Court of Appeals ruled to the contrary. Id. at *13. The Ohio court reasonably applied Strickland.

Indeed, Cooey does not even make a stab at showing how this decision is contrary to federal law. c. Preparation for Mitigation Cooey maintains that counsel were ineffective in failing to prepare for mitigation. More precisely, Cooey complains that counsel requested a presen-tence report a mere ten days prior to the mitigation hearing. This claim was not raised in the state courts and is therefore defaulted. Even if we reviewed the claim, and even if this alleged deficiency constituted ineffective assistance, Cooey has not explained how he suffered actual prejudice.

In short, Cooey has not shown a violation of Strickland. Cooey asserts that counsel should have contacted social workers to assist in presenting mitigating evidence, especially since the strongest factors in favor of mitigation were Cooey’s youth and substance abuse. The Ohio Court of Appeals held that Cooey “failed to proffer any exculpatory evidence in support of his petition that was not presented at defendant’s trial and arguably would have been if the trial court had appointed a social worker to assist defendant.

Accordingly, he did not demonstrate a ‘reasonable probability’ that he was prejudiced by his trial lawyers’ failure to request assistance of a social worker.” Id. at *14. Cooey has not shown that the Ohio Court of Appeals’s ruling is contrary to, or an unreasonable application of Strickland. Third, Cooey contends that trial counsel failed to obtain a pharmacologist and/or toxicologist to assist them in preparing Cooey’s case pursuant to Ohio Rev.Code § 2929.024.

The Ohio Court of Appeals ruled as follows: Trial counsel failed to request the appointment of a pharmacologist and/or toxicologist to give opinions as to the effect of chemicals in defendant’s system. The Supreme Court ruled on direct review that expert testimony about defendant’s alleged diminished capacity was properly excluded from the guilt/innocence phase of his trial. Cooey II, at 26, 544 N.E.2d 895.

Although the psychologist whose affidavit was attached to defendant’s petition to vacate or set aside sentence opined that a pharmacologist and/or toxicologist could have presented the three judge panel “ ‘a more detailed and complete understanding of the impact’ of drugs on defendant’s cognitive and emotional functioning,” neither the psychologist nor defendant’s counsel has explained how that “more detailed and complete understanding” would have been exculpatory.

Accordingly, defendant did not demonstrate a “reasonable probability” that he was prejudiced during either phase of his trial by his trial lawyers’ alleged failure. Id. at *11. Again, Cooey has not shown that the Ohio Court of Appeals unreasonably applied Strickland. d.

Failure to Object to Prosecutorial Misconduct The Ohio Court of Appeals ruled as follows: The properly admitted evidence against defendant was so overwhelming that, to the extent defendant’s trial lawyers failed to object to irrelevant evidence or prosecutorial misconduct, there was not a “reasonable probability” that defendant was prejudiced by that failure. Id. at *18. Cooey has simply not demonstrated how this ruling is an unreasonable application of Strickland. IV.

Conclusion For all of the foregoing reasons articulated in this opinion and accompanying unpublished appendix, we conclude that Cooey is not entitled to habeas relief. SO ORDERED. ORDER APPENDIX TO PUBLISHED OPINION Before NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges. Richard W. Cooey was convicted in the Court of Common Pleas of Summit County, Ohio, on two counts of aggravated murder, two counts of aggravated robbery, two counts of kidnaping, one count of felonious assault, and four counts of rape. The trial court sentenced Mr.

Cooey to lengthy prison sentences for the robbery, kidnaping, assault, and rape convictions, and to death for the aggravated murder convictions. A number of appeals, both direct and collateral, followed in the state court system. On Oct. 17, 1996, after he had exhausted his state remedies, Mr. Cooey filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio. That court denied the writ. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio 1997).

Under the procedure prescribed by law prior to enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (the AEDPA), the district court issued a certificate of probable cause for appeal. The filing of a notice of appeal followed. After each of the parties submitted a proof brief on the merits of the appeal, we were asked to make an interlocutory determination as to whether the petitioner’s case is governed by the AEDPA. We agreed to do so, and the issue was fully briefed. Upon consideration, we now decide that the appeal is indeed subject to the AEDPA.

The AEDPA had an effective date of April 24, 1996. The district court applied pre-AEDPA habeas corpus standards on the ground that on April 18, 1996 — a week before the AEDPA’s effective date — Mr. Cooey filed a motion for appointment of counsel and a notice of intent to file a petition for habeas corpus. Mr. Cooey’s actual habeas petition was not filed until October 17, 1996, however, and this court has now squarely held, in a published decision, that the AEDPA does apply to petitioners in situations such as this. See Williams v. Coyle, 167 F.3d 1036, 1039 (6th Cir.1999).

We see no principled basis for distinguishing Williams from the case at bar, and we are satisfied that Williams is not inconsistent with any subsequent decision of the United States Supreme Court. Because the AEDPA applies to Mr. Cooey’s case, the district court’s issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(

c) was ineffective. An appeal may not be taken here absent the issuance of a “certificate of appealability” indicating “which specific issue or issues satisfy the showing required by [28 U.S.C. § 2253(c)(2) ]” — ie., “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) and (3). Under circumstances similar to those presented here, this court has on occasion elected to treat a certificate of probable cause as if it were a certificate of appeala-bility. See Mackey v. Dutton, 217 F.3d 399, 406 — 07 (6th Cir.2000).

This was done, however, only after the court had satisfied itself that all of the issues in the appeal actually met the standard for a certificate of appealability. Id. In the case at bar, after careful examination of Mr. Cooey’s proof brief — a brief that we have chosen to treat as an application for a certificate of appealability — our tentative view is that Mr. Cooey has not made “a substantial showing of the denial of a constitutional right” with respect to any of the issues he seeks to raise. The appendix attached hereto summarizes our current thinking on the subject.

To assist us in reaching a final decision as to whether a certificate of appealability should issue on any of his constitutional claims, the petitioner is hereby directed to show cause, in a brief of not more than 50 pages, why we should not deny the application for a certificate. The petitioner’s brief is to be filed on or before November 30, 2000. The respondent may file an answering brief of not more than 50 pages on or before January 12, 2001, and the petitioner may file a reply brief of not more than 25 pages on or before February 2, 2001.

Each of these briefs shall comply in form with the requirements of Rule 32(a)(l)-(6), Fed. RApp. P. APPENDIX The panel here sets forth its tentative thoughts on whether Mr. Cooey’s proof brief of December 23, 1999, demonstrates that Cooey is entitled to a certificate of appealability with respect to any of the issues discussed therein. In order for this court or a judge thereof to grant a certifícate of appealability, the applicant must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2258(c)(2).

Any certificate of appealability that is granted must “indicate which specific issue or issues satisfy the showing required by paragraph (2).” Id. at (3). As the Supreme Court recently indicated, we may reject an issue for appeal if the procedural default doctrine applies, without considering whether there has been a constitutional violation for that specific issue. Slack v.

McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (“Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.

Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal”). We assume that the standards of 28 U.S.C. § 2254(

d) are to be imported into the analysis under § 2253(c).

Section 2254(

d) now provides that if a claim was adjudicated on the merits in state court, the federal court cannot grant habeas corpus relief unless the state decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In making the inquiry under § 2253(c), then, we believe that we must ask whether Mr.

Cooey has made a “substantial showing” that the state court decision was contrary to clearly established constitutional doctrine as declared by the Supreme Court. We also assume that the standard of § 2253(

c) should not override the deference required by § 2254(e)(1) for a state court’s factual findings. Given what the Supreme Court said about the procedural default doctrine in Slack, it seems clear that the deference required by § 2254(

e) should take precedence (like a procedural default) over any constitutional violation that might be considered demonstrable were the question being addressed as a matter of first impression. We note that wherever the Ohio Supreme Court conducted “plain error” review in rejecting a claim as procedurally defaulted, we must likewise treat the claim as procedurally defaulted. In Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir.1989), the Sixth Circuit held that a Michigan court’s review of a claim for “manifest injustice” did not preclude a procedural bar.

Following Paprocki, the Sixth Circuit has said that “[cjontrolling precedent in our circuit indicates that plain error review does not constitute a waiver of state procedural default rules.” Seymour v. Walker, 224 F.3d 542, No. 98—4316, 2000 U.S.App. LEXIS 20170, at *32 (6th Cir.2000). The standard citation for the procedural default doctrine in the Sixth Circuit is Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must determine that there is a 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. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim.

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 must 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. Against this background, we turn our attention to the individual issues raised in Mr. Cooey’s proof brief. DISCUSSION I. Whether Mr. Cooey should have a new Evidentiary Hearing Mr.

Cooey argues that he should have received an evidentiary hearing in state court on all of the “issues contained in his habeas petition.” (p. 14). Since that did not happen, he claims that he is entitled to have the federal district court conduct an evidentiary hearing under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). He also argues that Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) does not apply, (p. 15). This whole line of argument is irrelevant now that we have decided that the AEDPA applies.

Section 2254(e)(2) describes the exclusive circumstances when a federal district court is allowed to hold an eviden-tiary hearing: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (

A) the claim relies on— (

i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (

B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” Mr. Cooey does not demonstrate that any facts underlying any of his claims could not have been discovered through due diligence earlier, nor does he show that any facts would establish by clear and convincing evidence that but for constitutional error no reasonable factfinder would have found him guilty.

As the district court held, even applying pre-AEDPA standards, “Cooey is not entitled to an evidentiary hearing as a matter of law ... ‘[A] district court is without authority to hold an evidentiary hearing on a matter on which the state court has made findings unless one of the factors contained in § 2254(d).’” Cooey v. Anderson, 988 F.Supp. 1066, 1079-80 (N.D.Ohio 1997) (quoting Mitchell v. Rees, 114 F.3d 571, 577 (6th Cir.1997)). Moreover — and perhaps even more significantly — Mr.

Cooey does not make a substantial showing that an evidentiary hearing was constitutionally required, such that the federal district court’s failure to conduct one was a denial of a constitutional right. In order to make such a showing, Mr. Cooey would have first to show that the AEDPA’s restrictions on federal evidentiary hearings are unconstitutional. Thus, Mr. Cooey’s first claim does not merit issuance of a certificate of appealability. II. Five Grievous Errors Mr.

Cooey next argues that the state trial court improperly weighed aggravating circumstances, thus making “five grievous errors that tipped the scale irreparably to death.” (p. 22). We shall consider these alleged errors in turn.

A. “Principal Offender” Ohio Revised Code § 2929.04(A)(7) lists as an aggravating circumstance that the offense was “committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit, kidnaping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder, or if not the principal offender, committed the aggravated murder with prior calculation and design.” 1. Whether “Principal offender” is vague. Mr.

Cooey argues that the term “principal offender” is “vague” (p. 23), and that it therefore failed to “genuinely narrow the class of persons eligible for the death penalty” as required by Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). This argument was addressed by the Ohio Court of Appeals, which held that “[w]here a term is undefined by statute the term is to be accorded its common, everyday meaning,” and that the “common, everyday meaning of principal offender is that the person is the actor, or absolute perpetrator of the crime.” State v. Cooey, 1987 WL 31921, 1987 Ohio App.

LEXIS 10341, at *14 (Ohio Ct.App.1987). The court also pointed to an Ohio Supreme Court decision construing “principal offender” to mean the “actual killer”—State v. Penix, 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746 (1987); subsequent Ohio Supreme Court decisions have confirmed that construction. See, e.g., State v. Getsy, 84 Ohio St.3d 180, 197, 702 N.E.2d 866, 884 (1998) (holding that “actual killer” has the same meaning as a jury instruction which said “one who personally performs every act constituting the offense”).

As a federal court, we are of course bound to take the state statute as construed by the state court. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (holding that in a vagueness challenge “a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered”). The term “principal offender” hardly seems vague on its face, much less as construed by the Ohio court to mean the “actual killer.” Moreover, the state correctly points out in its brief that Mr.

Cooey has never made this claim before, not even in the federal district court. (State’s brief at 32). Mr. Cooey’s allegation of unconstitutional vagueness thus appears to have no merit. 2. Whether the trial court failed to define “principal offender” Mr. Cooey asserts that the trial court failed to provide a definition of “principal offender” until the state had rested its case. (p. 25). This allegedly hurt the “defense ability to examine state witnesses.” Mr. Cooey also suggests that the definition given was “tailored to the State’s case, evidencing a possible bias on the part of the panel.” Mr.

Cooey produces no evidence for this bias allegation, nor does he explain how his case was hurt by any defense confusion as to what “principal offender” means. Presumably, Mr. Cooey’s counsel would have tried to minimize Mr. Cooey’s involvement in the rapes and murders no matter what meaning they ascribed to “principal offender.” What is more, as the state’s brief points out, Mr. Cooey never made this claim before, so it is procedurally barred at this point. 3. Whether ‘‘Principal offender’’ fails to narrow Mr.

Cooey then asserts that “principal offender” fails to narrow the class of offenders eligible for the death penalty because the definition of “principal offender” merely replicates the elements of aggravated murder, (p. 25 — 26) This assertion too is meritless. The Ohio Supreme Court has already held in State v.

Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) that “the state, in order to prevail upon an aggravating circumstance under R.C. 2929.04(A)(7), must additionally prove that the offender was the principal offender in the commission of the aggravated murder or, if the offender was not the principal offender, that the aggravated murder was committed with prior calculation and design.” Id. at 280 n. 17 (emphasis added). The “principal offender” element thus serves a narrowing function, because it is in addition to the base offense that the state must prove.

Even if the provision for aggravated circumstances merely replicated the provision for aggravated murder, moreover, that would still be insufficient to support Mr. Cooey’s claim. As the Supreme Court held in a recent case, “an aggravating circumstance may duplicate an element of the capital offense if the class of death-eligible defendants is sufficiently narrowed by the definition of the offense itself.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1513 n. 16, 146 L.Ed.2d 389 (2000) (emphasis added) (citing Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)).

The result in Lowen-field was that the Court upheld a death sentence where the defendant had been convicted of first-degree murder under a law that stated, “[T]he offender has a specific intent to kill or to inflict great bodily harm upon more than one person,” and where the sole aggravating circumstance was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Lowenfield, 484 U.S. at 243, 108 S.Ct. 546.

The Court held: “Here, the ‘narrowing function’ was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that ‘the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.’ The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.

There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.” Id. at 246, 108 S.Ct. 546. Applying the holding of Lowenfield to Mr. Gooey’s case, it would be entirely within constitutional bounds for Ohio to provide similar

definitions for both “aggravated murder” (in Ohio Rev.Code § 2903.01(B)) and “aggravating circumstances” (in Ohio Rev.Code § 2929.04(A)(7)). What matters is that Ohio has, in the first instance, narrowed the class of those eligible for the death penalty by requiring some aggravated form of murder. Accordingly, this claim of Mr. Cooey does not make a substantial showing of a constitutional violation. B. Whether the trial court improperly counted two aggravating circumstances Mr. Cooey then argues that the panel of judges at his trial erred to his prejudice by finding as aggravating circumstances both that Mr.

Cooey was the “principal offender” and that his murders were “committed with prior calculation and design.” (p. 28).

This claim arises from the text of Ohio Rev.Code § 2929.04(A)(7): “The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” (emphasis added). Note that the factors “principal offender” and “prior calculation and design” are disjunctive.

As the Ohio Supreme Court held in State v. Penix, 513 N.E.2d at 746, these two factors are “alternatives which are not to be charged and proven in the same cause. Thus, if the defendant is found to be the principal offender, then the aggravating circumstance is established, and the question of whether the offense was committed with prior calculation and design is irrelevant with respect to the death sentence.” Mr. Cooey argues that because the trial panel of judges looked at both factors, the sentence of death was fatally flawed.

The district court, however, noted that the Ohio Supreme Court limited its review of this claim to plain error, because Mr. Cooey failed to raise this claim at the proper time. Cooey v. Anderson, 988 F.Supp. 1066, 1093 — 94 (N.D.Ohio 1997). The district court then held this claim procedurally defaulted, a holding which Mr. Cooey cannot overcome unless he establishes both cause and prejudice as required by Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Id. at 1094. Mr. Cooey does not even attempt to establish cause and prejudice as to this claim.

Even if this claim were not procedurally defaulted, we do not think this court should review it. Mr. Cooey here claims nothing more than that the Ohio court did not apply Ohio law correctly. And such a claim is not justiciable in federal habeas proceedings. As the Supreme Court said in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991): “[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.

In conducting ha-beas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 67—68, 112 S.Ct. 475. C. Whether the trial court improperly double-counted aggravating circumstances and weighed them collectively against the mitigating factors. Mr. Cooey argues (p. 28) that the trial court improperly combined the aggravating circumstances related to both murders.

He points out that the Ohio Supreme Court found error here, agreeing that “when a capital defendant is convicted of more than one count of aggravated murder, the penalty for each individual count must be assessed separately.” State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895, 916 (1989).

He fails to point out, however, that the Ohio Supreme Court concluded that “the aggravating circumstances of each murder, weighed separately, outweigh the mitigating factors,” and that “although the trial court erred, its error was not plain error, and therefore not reversible error in light of Cooey’s failure to raise it in the court of appeals.” Id. at 917. This claim was thus procedurally barred, as the federal district court held, unless Mr. Cooey can demonstrate cause and prejudice under Wainmight. Cooey v. Anderson, 988 F.Supp. at 1093—94. Mr.

Cooey also asserts (p. 28) that this is an “error of federal constitutional dimension.” The case he cites for that point, however (Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)), is inapposite — it had nothing to do with the improper aggregation of aggravating circumstances, but rather struck down a mandatory death penalty statute (thus the Court’s language that Mr. Cooey quotes on p. 29 about considering the individual circumstances of each crime). Mr.

Cooey has therefore not made a substantial showing of a constitutional violation with respect to this claim, especially considering that the Ohio Supreme Court held that the result would have been the same even without any improper double-counting. D. Whether the trial court prejudicially erred in failing to merge two duplicative aggravating circumstances Mr.

Cooey (p. 29 — 30) points to two aggravating circumstances that are dupli-cative, and should therefore have been merged: • Ohio Rev.Code § 2929.04(A)(3): “The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender;” •

Section 2929.04(A)(7): “The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit [the felony], and either the offender was the principal offender ... or, if not the principal offender, committed the aggravated murder with prior calculation and design.” Because these aggravating circumstances are similar, they should not both have been used against Mr. Cooey.

The Ohio Supreme Court agreed, saying that the “specifications for which Cooey was trying to escape accountability [Section 2929.04(A)(3) ]... are the same as those that support his convictions of the felony murder specifications [Section 2929.04(A)(7) ].” State v. Cooey, 544 N.E.2d at 917. However, the Ohio Supreme Court went on to say, “Cooey did not raise this error in the court of appeals, and we find it far from clear that it affected the panel’s verdict. We therefore cannot hold it plain error.” Id. On the basis of this procedural default, the federal district court declined to hear this claim. Cooey v.

Anderson, 988 F.Supp. at 1087—88. Once again, Mr. Cooey fails to demonstrate that any constitutional right has been violated by the procedural bar or the federal district court’s refusal to hear this claim. As the district court noted, “the evidence confirming the aggravating circumstances of Gooey’s offenses is overwhelming.” Id. Any error that the trial court made in failing to merge the two duplicative aggravating circumstances is far outweighed by the collective weight of the valid aggravating circumstances. E.

Whether the trial court erred by considering mitigating circumstances not in the evidence, and counting the absence of mitigating factors against Mr. Cooey Mr. Cooey asserts that the trial court improperly considered the lack of mitigating factors in determining his sentence, (pp. 30 — 31). The Ohio Supreme Court dismissed this issue in a single paragraph: “Cooey correctly asserts that the trial court erred by considering all of the mitigating factors set forth in R.C. 2929.04(

B) even though Cooey did not raise some of them.... However, the sentencing opinion lists what the court understood to be the aggravating eir-cumstances, and the absence of mitigating factors is not among them.We conclude that the absence of mitigating factors was not impermissibly transformed into an aggravating circumstance.” State v. Cooey, 544 N.E.2d at 917. Mr.

Cooey now claims that the Ohio Supreme Court failed to consider all the facts, such as that the sentencing opinion contains the following statements: “The Court then considered and weighed pursuant to R.C. 2929.04(B), the nature and circumstances of the offense, the history, character, and background of the offender, together with each of the seven specified factors.” “The Court has given full consideration to the character and record of the Defendant, all mitigating factors, and the circumstances of the offenses.” (p. 31, n.21).

These statements, however, are at best circumstantial implications that the trial court considered the absence of mitigating factors. The Ohio Supreme Court’s finding is explicit — the absence of mitigating factors was not used as an aggravating circumstance. As the federal district court noted in discussing this issue, a federal court must defer to the findings of the state court pursuant to

Section 2254(d)— and under the AEDPA version of

Section 2254(e), the state court factual findings are “presumed to be correct,” unless the applicant rebuts that presumption by “clear and convincing evidence.” Cooey v. Anderson, 988 F.Supp. at 1094. This statement of the law is correct — the Supreme Court has confirmed that a state supreme court’s finding as to what the trial court considered is itself a factual determination that is subject to the deference required by

Section 2254(d). Parker v. Dugger, 498 U.S. 308, 320, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). More to the point, Mr. Cooey presents no reason to think that any constitutional right was violated. Even had the trial court actually considered the absence of mitigating factors, this would have been merely a violation of the Ohio statute at issue (Rev.Code § 2929.04(B)), which the Ohio Supreme Court has held is meant to allow the defendant to raise mitigating factors. State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542, 557—558 (1988). Thus, no constitutional violation here. E.

Whether Unlawful Consideration of Invalid Aggregating Circumstances mandates Reversal of Death Penalty (p. 32ff) 1. Whether when Invalid Non-Statutory Aggravating Circumstances have been used by the trial court, the Ohio Supreme Court remands for a new sentencing proceeding Mr. Cooey alleges that under Ohio law, the Ohio Supreme Court will typically remand for a new sentencing hearing whenever an invalid aggravating circumstance was used. (p. 33).

Whether this statement of Ohio law is correct (and Ohio’s brief gives good reason to think it is not, see Respondent’s proof brief at 24 — 28), it is ultimately irrelevant at this stage. There is no reason to think that a constitutional violation occurred even if the Ohio Supreme Court chose to reweigh the aggravating circumstances rather than remand for a new sentencing hearing. Mr. Cooey attempts to argue that any invalid aggravating circumstance makes the sentence unconstitutional (pp. 32—33). His citations, however, are incomplete. For example, he quotes the following from Stringer v.

Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992): “But when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.” Mr. Cooey obviously means to imply that the reviewing court is not allowed to reweigh the aggravating circumstances. This implication, however, is belied by the continuation of the above quote, which Mr.

Cooey omits: “When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.” Stringer, 503 U.S. at 232, 112 S.Ct. 1130 (emphasis added). Thus, the reweighing by the Ohio Supreme Court (see State v. Cooey, 544 N.E.2d at 919) sufficed to guarantee that Mr. Cooey got the individualized sentence he deserved. The other case cited by Mr. Cooey, Richmond v.

Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), had a similar holding: “Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand.” Id. at 49,113 S.Ct. 528. Again, since the Ohio Supreme Court reweighed the factors, Mr. Cooey’s sentence should stand against his constitutional challenges. Mr. Cooey fails to provide a substantial showing that a constitutional error occurred here. 2.

Whether Ohio Supreme Court precedents mandate harmless error review when duplicative aggravating circumstances were considered. This argument, made on pp. 36ff, is that Ohio precedent requires harmless error review (in which the state must prove the error harmless), rather than plain error review (in which the defendant must show the outcome would have been otherwise). Mr. Cooey here claims nothing more than that the Ohio court did not apply Ohio law correctly — a claim which is not justiciable in federal habeas proceedings. As the Supreme Court said in Estelle v.

McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991): “[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting ha-beas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 67-68, 112 S.Ct. 475. 3. Whether a Remand is Required because the Ohio Supreme Court never analyzed the Cumulative Effect of the Weighing Errors in this Case Mr.

Cooey argues (pp. 37ff) that because the Ohio Supreme Court never “conducted any analysis of the cumulative effect” of the weighing errors, it violated his right to “reliable and non-arbitrary decision-making” and to a “fundamentally fair trial.” However, here is the Ohio Supreme Court’s discussion of the claim of cumulative prejudice: “Cooey argues that the alleged errors he assigns cumulatively prejudiced his cause in the sentencing phase. We have already rejected some of these assignments of error, and some assigned errors were not objected to at the trial or appellate levels.

In any event, ‘[i]t is clear beyond a reasonable doubt that the large body of properly admitted evidence, standing alone, constituted overwhelming evidence State v. Cooey, 544 N.E.2d at 915—16. The federal district court similarly rejected this claim, noting that of the fourteen errors alleged by Mr. Cooey, some had been established as non-errors, and others were procedurally defaulted. Cooey v. Anderson, 988 F.Supp. at 1096.

Considering the errors which remained, the district court said, “When compared with the weight of other evidence admitted against Petitioner, the cumulative error in Cooey’s trial ‘pales into relative insignificance.’ ” Id. “In sum, the prosecution in this case has met its burden ... to prove beyond a reasonable doubt that whatever cumulative error exists did not contribute to the panel’s verdict of guilty.” Id. Mr. Cooey presents no additional reason to think that the Ohio Supreme Court or the federal district court erred in their unanimous assessment of the alleged cumulative errors.

Thus, there is no substantial showing of a constitutional error here. F. Whether Mr. Cooey’s Sentencing was Unfair because the Trial Panel Improperly Applied the Standard for Legal Insanity, and thus failed to Consider Relevant Mitigating Evidence under R.C. 2929.04(B)(3). 1. Whether the Trial Panel Improperly Deemed Evidence of Mental Disorder Irrelevant Unless it Amounted to Insanity Mr. Cooey argues that the trial court misstated the mitigating factor for insanity.

This factor reads: “Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” R.C. 2929.04(B)(3). As Mr. Cooey points out (p. 38), the Ohio Supreme Court held that the trial court did misstate this factor by looking at whether Mr. Cooey “completely lacked” the capacity to appreciate his criminality rather than at whether he lacked “substantial capacity.” State v. Cooey, 544 N.E.2d at 918. What Mr.

Cooey leaves out, however, is the Ohio Supreme Court’s conclusion that because in any case the lack of capacity must be shown to result from a mental disease or defect, “this mitigating factor would not have applied even under the correct standard,” since “the trial court found that Cooey did not have a mental disease or defect.” Id.

The federal district court took another look at the trial panel’s opinion, and came to the opposite conclusion from the Ohio Supreme Court as to whether the trial panel misstated the factor; the district court found “no evidence that the panel acted inappropriately in considering the mitigating factor.” Cooey v. Anderson, 988 F.Supp. at 1094.

The district court went on to confirm that the trial panel’s sentencing opinion rested on a psychologist’s testimony that “the Defendant was not insane nor psychotic, had no mental defect, that he knew what he was doing was wrong, and he could have conformed to the law.” Id. at 1094 — 95 (quoting State v. Cooey, No. 86-09-1109 at 5 (Com. PI. Summit Cty. Dec. 5, 1986)). As the district court held, “Nothing in this discussion reveals any misapplication of the mitigating factor to Cooey’s mental capacity,” and therefore this claim “lacks merit.” Id. at 1095. The Supreme Court case cited by Mr.

Cooey (p. 39), is once again inapposite. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), held invalid a statutory scheme which absolutely precluded the sentencer from considering certain mitigating factors. But this is an irrelevant point — the Ohio statute did not preclude the sentencer from considering the factor of insanity. Rather, Mr. Cooey’s sentencer properly did not consider that factor as mitigating once it was determined that Mr. Cooey did not have a mental disease or defect. We see no plausible allegation of a constitutional error here. 2.

Whether the Ohio Supreme Court Mis-characterized the Trial Panel’s Findings and Improperly Refused to Order a New Sentencing Proceeding Mr. Cooey then argues (pp. 40 — 41) that the Ohio Supreme Court mischaracterizes the trial panel as finding that there was no “mental disease or defect.” Mr. Cooey admits that the trial panel explicitly found that Mr. Cooey had “no mental defect,” but nonetheless claims that Mr. Cooey could still have a “mental disease.” The evidence for this? That court-appointed psychologist Dr. Siddall found that Mr.

Cooey had a “conduct disorder and a mental disorder caused by substance abuse.” (This finding is quoted in Cooey v. Anderson, 988 F.Supp. at 1094—95). Mr. Cooey now claims that this is evidence of a mental disease, and that the Ohio Supreme Court erred in concluding that the panel had found there was no mental disease. We consider this contention meritless. The psychologist, Dr. Siddall, testified that Mr. Cooey had no mental defect.

He also responded “No” when the prosecution posed the following question, “[W]e certainly have a detailed definition of mental illness in Ohio, at least the Ohio statute defines ... what it is supposed to mean; and by that definition this Defendant certainly is not mentally ill, is he?” (Tr. Vol.VIII, p. 42 — 43). Even if it were true that this testimony left open the possibility that Mr. Cooey had a mental disease, that would still be unavailing.

The mitigating factor of Ohio Rev.Code § 2929.04(B)(3) requires not merely that the defendant have a mental disease or defect, but that because of that mental disease or defect the defendant “lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Dr. Siddall’s testimony showed that Mr. Cooey “knew what he was doing was wrong, and ... he could have conformed to the law.” Cooey v. Anderson, 988 F.Supp. at 1095. Thus, even if Mr.

Cooey had some unidentified and undiagnosed mental disease, he still failed to demonstrate that the mitigating factor of § 2929.04(B)(3) applied to him. Moreover, the issue of what the trial court found is a factual issue, and the state supreme court’s findings on that issue are entitled to deference under

Section 2254(

d) and (e). Parker v. Dugger, 498 U.S. 308, 320, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). Those sections require that a state court’s factual finding not be disturbed unless there was an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2), or unless the habeas petitioner demonstrates the factual findings incorrect by “clear and convincing evidence,” § 2254(e). Mr. Cooey does not do so here. G. Whether Mr. Cooey is Entitled to a Reversal of his Sentence due to the Cumulative Effect of these Weighing Errors 1.

Neither the Federal Court nor the Ohio Supreme Court can Reweigh the Aggravating and Mitigating Factors Mr. Cooey makes this argument on pp. 43ff. As to the federal court, this may or may not be correct, but it is irrelevant because the federal court did not reweigh the aggravating and mitigating factors; rather, it affirmed the Ohio Supreme Court’s reweighing. As a matter of Ohio law, Mr. Cooey is wrong to suggest that “Ohio appellate courts have no power to reweigh.” (p. 44). The very statute that Mr.

Cooey quotes on p. 46 says: “The court of appeals and the supreme court shall review the judgment in the ease and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the cash, and whether the sentence of death is appropriate.” Ohio Rev.Code § 2929.05(A) (emphasis added).

Thus it is absolutely clear that under Ohio law, the appellate courts are not merely allowed but required to “independently weigh” the aggravating circumstances versus the mitigating factors. The Ohio Supreme Court reweighed the valid aggravating circumstances against the mitigating factors in an extended and thoughtful analysis. See State v. Cooey, 544 N.E.2d at 919—20. The federal district court is clearly correct in concluding that “the Ohio Supreme Court acted properly when, pursuant to § 2929.05, it elected to reweigh the aggravating circumstances and mitigating factors of this case.” Cooey v.

Anderson, 988 F.Supp. at 1098. Given that the Supreme Court has affirmed the practice of state appellate reweighing, see Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), we see no conceivable constitutional violation here. 2. Whether the Ohio Supreme Court has mandated reversal for certain errors in the past, and therefore reweighing is arbitrary as to such errors Mr.

Cooey asserts, without citing any Ohio Supreme Court cases, that the Ohio Supreme Court has “established a practice of refusing to utilize harmless error or independent weighing” in certain unidentified situations, (p. 47 — 48). Thus, the Ohio Supreme Court has applied reweighing inconsistently and arbitrarily. This claim is meaningless without some concrete examples, and moreover seems to assert nothing more than that the Ohio Supreme Court misapplied state law. We find no constitutional error here. 3. Whether the Ohio Supreme Court Failed to meet Constitutional Standards for Reweighing. Mr.

Cooey asserts (p. 48) that the Ohio Supreme Court made a “purely conclusory assertion” that the aggravating circumstances, weighed separately, outweigh the mitigating factors, and that this leaves no assurance that the court actually performed a new sentencing calculus. Id. (citing State v. Cooey, 544 N.E.2d at 917). In focusing on one isolated sentence taken out of context, Mr. Cooey fails to note that the Ohio Supreme Court repeatedly and thoroughly reweighed the aggravating factors. See State v. Cooey, 544 N.E.2d at 918—19. There is no constitutional error here.

A Whether “Even If A Harmless Error Review Could Be Conducted Respecting These Errors, That Determination Is For the Ohio Supreme CouU, and a Remand Must be Ordered To That Court For Such a Review” Mr. Cooey argues that this court should remand his case to the Ohio state court system for harmless error review (pp. 48ff), alluding in a footnote (on p. 49) to a Supreme Court holding that harmless error review is constitutionally required.

Here is what the Supreme Court actually said: “Use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system.” Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Because the Ohio Supreme Court clearly-performed a reweighing (indeed, Mr. Cooey has already lambasted the Ohio Supreme Court for doing just that), this constitutional standard has been satisfied (assuming that any aggravating factor was vague in the first place). Mr.

Cooey then argues that if the federal court performs a harmless error review, the Chapman standard should apply (p. 50). Because this argument is not aimed at describing any alleged constitutional violation in the past, but rather at dictating the legal standard for analyzing his claims, it should not be part of any certificate of appealability. 5. Whether under Harmless Error Review, Mr. Cooey is Entitled to Reversal of his Death Sentence Mr.

Cooey then argues that under any harmless error review, his sentence should be overturned because when the “invalid and duplicative aggravating circumstances are removed,” there is “eighty-five percent” less weight on the aggravating factor side. (p. 54).

In making this curious mathematical calculation, he excludes aggravating factors that have already been upheld numerous times; for example, he excludes the aggravating factor for “principal offender” because it is too vague (a claim that has been and should still be rejected), and by excluding the duplicative aggravating factor under R.C. 2929.04(A)(3) (a claim that the Ohio Supreme Court found both procedurally barred and not plain error). The Ohio Supreme Court reweighed all the valid aggravating circumstances and found that they “outweigh, beyond a reasonable doubt, the mitigating factors.” State v.

Cooey, 544 N.E.2d at 919. Mr. Cooey presents no constitutional reason to disturb this reweighing. 6. Whether the Extensive Mitigation in This Case Further Demonstrates the Injurious Effect of the Panel’s Weighing Errors Mr. Cooey then argues that he has many mitigating factors, such as his age (19), his lack of a criminal record, his physical abuse as a child, and his use of alcohol and drugs (p. 55).

He argues that with various aggravating factors excluded (a spurious claim, as noted above), the balance of aggravating vs. mitigating factors shows that a harmful error occurred, and that he must receive a new sentencing hearing. Mr. Cooey also quotes, with emphasis, a statement by the Ohio Supreme Court that the various mitigating “factors tend to suggest that Cooey may have been less responsible for his acts than were most people.” (p. 56, citing State v. Cooey, 544 N.E.2d at 919).

He fails to complete this quote: “However, [the mitigating factors] are outweighed beyond any reasonable doubt by the aggravating circumstances of rape and kidnaping. Cooey used deceit to lure Wendy and Dawn into his car, drove them to a deserted area, then took what he wanted from them by force. He beat them repeatedly with a nightstick, then tried to make sure Wendy was dead by strangling her. We conclude that the properly admitted evidence overwhelmingly proves that the aggravating circumstances outweigh, beyond a reasonable doubt, the mitigating factors.” State v. Cooey, 544 N.E.2d at 919. Again, Mr.

Cooey does not make a substantial showing of a constitutional violation here. III. Whether the Trial Court Improperly Considered Inadmissible and Prejudicial Material, and the Death Sentence should therefore be Reversed. A. Whether the Panel Denied Defense Counsel [Access] to the Victim Impact S

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