Hoffner v. Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0311p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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TIMOTHY HOFFNER,
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Petitioner-Appellant,
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No. 08-4013
v.
,
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Respondent-Appellee. -
MARGARET BRADSHAW, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 05-00687—James S. Gwin, District Judge.
Argued: November 18, 2009
Decided and Filed: September 23, 2010
Before: BOGGS, GIBBONS, and SUTTON, Circuit Judges.

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COUNSEL
ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Sarah L. Leatherman,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: David L. Doughten, Cleveland, Ohio, Michael Montgomery, BAKER
AND HOSTETLER, LLP, Cleveland, Ohio, for Appellant. Sarah L. Leatherman,
Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Petitioner–appellant Timothy Hoffner
appeals the district court’s order denying his petition for habeas corpus. Hoffner was
convicted of aggravated murder, aggravated kidnapping, and robbery and was sentenced
to death. In his petition, he claims that the trial court improperly weighed aggravating

1
No. 08-4013 Hoffner v. Bradshaw Page 2

and mitigating circumstances, that he received ineffective assistance of trial and
appellate counsel, that statements were admitted at trial in violation of his Miranda
rights, and that the cumulative effect of the errors at trial violated his constitutional
rights. For the reasons set forth below, we now affirm the district court’s decision and
deny Hoffner’s habeas petition.

I.

The Ohio Supreme Court summarized the facts of the case as follows:

{¶ 1} On September 22, 1993, Timothy L. Hoffner, defendant–appellant,
and Archie Dixon kidnapped and robbed Christopher Hammer, then
drove Hammer to a remote area where they buried him alive in a shallow
grave and left him to die.
{¶ 2} Hoffner was convicted of the aggravated murder, aggravated
robbery, and kidnapping of Hammer, and he was sentenced to death.
{¶ 3} Hoffner and Hammer met in August 1993. For a short period of
time in mid-August 1993, Hoffner, Hammer, and Dixon lived at the
Toledo home of Kirsten Wilkerson, Dixon’s girlfriend.
{¶ 4} In early September 1993, Michael Elting, a friend of Hammer,
Hoffner, and Dixon, borrowed Hammer’s car, a 1987 Dodge Daytona, to
go to the movies with Hoffner and Dixon. According to Elting, Hoffner
and Dixon discussed “how to get rid of [Hammer’s] car,” and Hoffner
said that he knew a place where he could take the car, presumably after
Hammer was killed. Approximately one month after Hammer’s
disappearance, Elting discovered Hammer’s car at a used car lot in
Toledo.
{¶ 5} On the afternoon of September 21, Dixon told Wilkerson that he
and Hoffner were going to “get [Hammer] tonight.” Wilkerson
understood this to mean that Dixon and Hoffner were going to kill
Hammer.
{¶ 6} In the early morning of September 22, Hoffner, Dixon, and
Hammer went to Wilkerson’s house. Once there, Hoffner and Dixon
attacked Hammer. Hoffner restrained Hammer in a headlock while
Dixon beat him. Hoffner tried to break Hammer’s neck, and Dixon
struck Hammer in the head with a wine bottle. Hoffner and Dixon then
tied Hammer to a bunk-bed ladder, and Dixon went through Hammer’s
wallet, taking out his money, birth certificate, and Social Security card.
No. 08-4013 Hoffner v. Bradshaw Page 3

Then Hoffner and Dixon discussed how they should dispose of
Hammer’s body.
{¶ 7} While Hammer remained tied to the bunk-bed ladder, Hoffner and
Dixon left Wilkerson’s house to dig a grave. Hoffner and Dixon returned
to Wilkerson’s house and they, along with Wilkerson, drove Hammer,
blindfolded, to the gravesite in Hammer’s car. Wilkerson stayed at the
car while Hoffner and Dixon walked Hammer into the woods, where they
permitted Hammer to smoke a cigarette. Then they gagged and again
blindfolded Hammer, tied his hands and feet behind his back, grabbed
him by his arms and legs, and dropped him into the grave, still alive. At
one point, Hammer was able to remove the gag from his mouth and free
one of his legs. Hoffner jumped into the grave and placed his foot over
Hammer’s mouth when Hammer yelled for help. Hoffner and Dixon
then held Hammer down and covered him with dirt. After Hammer was
completely buried, Hoffner and Dixon walked back and forth across the
grave, packing down the dirt. Hoffner, Dixon, and Wilkerson then
returned to Wilkerson’s house in Hammer’s car.
{¶ 8} After killing Hammer, Hoffner and Dixon carried out their plan to
sell his car. On September 25, Dixon obtained a state of Ohio
identification card with his photograph but in Hammer’s name. On
September 30, Hoffner and Dixon went to the automobile title bureau,
where Dixon obtained a duplicate certificate of title for Hammer’s car
using the fraudulent ID card. Hoffner and Dixon then took Hammer’s car
to a used car lot, where they sold the car for $2,800.
{¶ 9} By November 8, 1993, police officers investigating Hammer’s
disappearance had located his Dodge Daytona at a used car lot in Toledo,
had confirmed its unauthorized sale on September 30, and had identified
Dixon as the prime suspect in the vehicle transaction. On November 9,
police went to Wilkerson’s home and arrested Dixon for forgery. The
police also executed a search warrant at Wilkerson’s home. During the
search, police questioned Hoffner regarding Hammer’s disappearance.
Hoffner denied involvement but made statements implicating Dixon.
Hoffner agreed to accompany police detectives downtown to make a
statement. On the way to the station, Hoffner told police that Dixon had
shown him the location of Hammer’s body, and he then led police to the
gravesite.
{¶ 10} Once at the station, police read Hoffner his Miranda rights, but
Hoffner was not placed under arrest. Hoffner waived his rights and gave
a taped account of Dixon’s involvement in Hammer’s murder. After
Hammer’s body was discovered, Dixon confessed to Hammer’s murder
and also implicated Hoffner. Police subsequently arrested Hoffner on
November 10 at his mother’s home. At police headquarters, detectives
No. 08-4013 Hoffner v. Bradshaw Page 4

read Hoffner his Miranda rights, and Hoffner signed a waiver-of-rights
form. Hoffner then gave a taped statement confessing to his part in
Hammer’s death.
{¶ 11} Cynthia Beisser, Deputy Coroner of Lucas County, performed an
autopsy and concluded that Hammer had died of asphyxiation.
According to Dr. Beisser, Hammer likely died within five minutes of
being buried alive, and he might have remained conscious during the first
two to three minutes.
{¶ 12} A grand jury indicted Hoffner, Dixon, and Wilkerson for the
aggravated murder, kidnapping, and aggravated robbery of Hammer.
Hoffner was indicted on three counts of aggravated murder. Count One
of the indictment charged Hoffner with aggravated murder involving
prior calculation and design. [Ohio Rev. Code Ann. §] 2903.01(A).
Count Two charged Hoffner with aggravated murder while committing
kidnapping, and Count Three charged Hoffner with aggravated murder
while committing aggravated robbery, both pursuant to [Ohio Rev. Code
Ann. § 2903.01(B). Hoffner was additionally indicted for kidnapping in
Count Four, aggravated robbery in Count Five, and three counts of
forgery in Counts Six, Seven, and Eight.
{¶ 13} The three counts of aggravated murder each contained two [Ohio
Rev. Code Ann. §] 2929.04(A)(7) death penalty specifications. The first
specification charged aggravated murder during a kidnapping, and the
second charged aggravated murder during an aggravated robbery.
{¶ 14} The jury convicted Hoffner as charged and recommended the
death penalty. Thereafter, the trial court sentenced Hoffner to death for
the murder, to ten to 25 years each for kidnapping and aggravated
robbery, and to 18 months for each forgery charge. On appeal, the court
of appeals affirmed Hoffner’s convictions and death sentence.

State v. Hoffner (Hoffner II), 811 N.E.2d 48, 51–52 (Ohio 2004).

After considering the thirteen propositions of law Hoffner raised on direct appeal,
the Supreme Court of Ohio rejected each of them and affirmed Hoffner’s conviction and
sentence on July 14, 2004. Id. at 67. The Supreme Court denied Hoffner’s petition for
a writ of certiorari. Hoffner v. Ohio, 543 U.S. 1058 (2005). While his direct appeal was
pending, Hoffner also sought state post-conviction relief under Ohio Revised Code
§ 2953.21 on three grounds. His petition was dismissed by the trial court, and the
dismissal was affirmed by the Ohio Court of Appeals on September 30, 2002. State v.
Hoffner (Hoffner III), No. L-01-1281, 2002 WL 31162813 (Ohio Ct. App. Sept. 30,
No. 08-4013 Hoffner v. Bradshaw Page 5

2002). The Ohio Supreme Court denied leave to appeal. State v. Hoffner, 814 N.E.2d
489 (Ohio 2004). On June 6, 2006, Hoffner applied to reopen his appeal under Ohio
Appellate Rule 26(B) in order to assert a claim of ineffective assistance of appellate
counsel. As Hoffner filed the petition roughly five years after his conviction became
final—long after the ninety-day window provided for by statute, see Ohio App. R.
26(B)(1)—the Ohio Court of Appeals recognized that the petition was untimely but
nonetheless denied the petition on the merits. State v. Hoffner (Hoffner IV), No. L-95-
181, slip op. at 3, 15 (Ohio Ct. App. Aug. 24, 2006). The Ohio Supreme Court affirmed
the lower court’s judgment but did so on untimeliness grounds only. State v. Hoffner
(Hoffner V), 860 N.E.2d 1021, 1023 (Ohio 2007).

On January 6, 2006, Hoffner filed a habeas petition in federal district court
raising thirteen grounds for relief. Hoffner v. Bradshaw (Hoffner VII), No. 3:05-cv-
00687, slip op. at 6 (N.D. Ohio July 23, 2008). On February 8, 2006, the district court
held the case in abeyance to allow Hoffner to file his Rule 26(B) motion. Hoffner v.
Bradshaw (Hoffner VI), No. 3:05-cv-00687, 2007 WL 3046464, at *1 (N.D. Ohio Oct.
16, 2007). After the state filed its return of writ, Hoffner withdrew two of the claims,
conceding that they were procedurally defaulted. Hoffner VII, slip op. at 54–55. The
district court rejected the remainder of Hoffner’s claims, finding that they were either
meritless or procedurally defaulted, and denied the petition. Id. at 12–65. The court
then granted a certificate of appealability (“COA”) as to all of Hoffner’s claims except
one. Id.

On appeal, Hoffner failed to brief four of the ten claims for which the district
court granted a COA and therefore has abandoned them. See Fed. R. App. P.
28(a)(9)(A); Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007). Thus, we will
address the six issues that Hoffner has preserved:

1. Whether Hoffner’s death sentence violated his due process rights
because it was based on the consideration of improper aggravating
circumstances.
2. Whether trial counsel’s performance at the guilt phase of trial was
constitutionally ineffective.
No. 08-4013 Hoffner v. Bradshaw Page 6

3. Whether trial counsel’s performance at the penalty phase of trial was
constitutionally ineffective.
4. Whether appellate counsel’s performance was constitutionally
ineffective.
5. Whether Hoffner’s conviction is invalid because it was based on
statements obtained in violation of his Miranda rights.
6. Whether the cumulative effect of the errors in this case violated
Hoffner’s constitutional rights.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2241 et seq., governs all habeas petitions filed after April 24, 1996. See
Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(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 on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).

A state court adjudication is “contrary to” Supreme Court precedent under
§ 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at [an
opposite result].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court makes
“an unreasonable application of” Supreme Court precedent under § 2254(d)(2) “if the
state court identifies the correct governing legal rule from [the Supreme] Court’s cases
but unreasonably applies it to the facts of the particular . . . case” or if the court
unreasonably extends or refuses to extend existing Supreme Court precedent to new
No. 08-4013 Hoffner v. Bradshaw Page 7

factual situations where it should apply. Id. at 407. Under AEDPA, the question for this
court to answer “is not whether a federal court believes the state court’s determination
was incorrect but whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Factual findings made by
state courts based on the trial record are entitled to a presumption of correctness that may
be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Warren v. Smith,
161 F.3d 358, 360–61 (6th Cir. 1998).

However, federal courts need not review every point of error raised by a habeas
petitioner. When a “state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and actual prejudice
. . . or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this
circuit, to determine whether a federal claim has been procedurally defaulted, we apply
the three-prong test initially laid out in Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986):

First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that the petitioner failed to
comply with the rule. . . . Second, the court must decide whether the
state courts actually enforced the state procedural sanction. . . . Third,
the court must decide whether the state procedural forfeiture is an
“adequate and independent” state ground on which the state can rely to
foreclose review of a federal constitutional claim. . . .

Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin, 785 F.2d at 138).
If the state procedural rule was not complied with and that rule was an “adequate and
independent” ground for default, we may still excuse the default if the petitioner can
demonstrate “that there was ‘cause’ for him not to follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.” Maupin, 785 F.2d at 138.
No. 08-4013 Hoffner v. Bradshaw Page 8

III.

Hoffner claims that the trial court violated his due process rights by improperly
weighing the statutory aggravating factors of his crime. This argument has two sub-
claims. First, Hoffner argues that the trial court wrongly considered the nature and
circumstances of the offense to be an aggravating factor. Second, Hoffner argues that
the trial court considered various elements of the charged statutory aggravating factor
as separate aggravating factors, thus multiplying the value of what should have been one
factor.

“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
State-law errors may warrant habeas relief if the errors “rise for some other reason to the
level of a denial of rights protected by the United States Constitution.” Barclay v.
Florida, 463 U.S. 939, 957–58 (1983). Nonetheless, if a trial court considers
unconstitutional aggravating factors, the Supreme Court has held that this error can be
cured by the state appellate court “independently ‘reweighing’ aggravating and
mitigating factors and reaching a sentence without the consideration of the factors found
impermissible at the trial level.” See Lundgren v. Mitchell, 440 F.3d 754, 783 (6th Cir.
2006) (citing Clemons v. Mississippi, 494 U.S. 738, 740 (1990)); Ohio Rev. Code Ann.
§ 2929.05(A) (“The . . . supreme court . . . shall review and independently weigh all of
the facts . . . and consider the offense and the offender to determine whether the
aggravating circumstances the offender was found guilty of committing outweigh the
mitigating factors in the case, and whether the sentence of death is appropriate.”).

A.

In support of his claim that the trial court improperly considered the nature and
circumstances of his crime, Hoffner points to various parts of the sentencing opinion
where the trial judge used several “inflammatory” adjectives to describe Hoffner’s
conduct. For example, the trial court described Hoffner’s crime as “graphic,”
“macabre,” “sinister,” and “depraved.” State v. Hoffner (Hoffner I), No. CR93-7212A,
slip op. at 4–6 (Ct. Com. Pl. June 7, 1995). Further, Hoffner claims, the trial court
No. 08-4013 Hoffner v. Bradshaw Page 9

explicitly considered impermissible factors when it allegedly explained that its job was
to “weigh[] the relative heinousness” of his crime. Appellant Br. at 18. He claims that
the trial judge’s conclusion is evidence of improper consideration:

Sympathy for the defendant’s mistreatment as a child, however, can in
no way excuse the depraved, violent and calculated nature of the acts he
committed against Christopher Hammer. It was, and is the conclusion of
this Court that the aggravating circumstances so clearly demonstrated by
the evidence at trial, far, far outweighed the modest cumulative
mitigating circumstances presented in this case and during the penalty
phase.

Hoffner I, slip op. at 8. Hoffner claims that the trial court’s actions violated his due
process rights under the Fourteenth Amendment and Hicks v. Oklahoma, 447 U.S. 343,
346 (1980).

Hoffner properly preserved this claim by raising it on direct appeal, but the Ohio
Supreme Court found the claim to be meritless. The court noted that the trial court never
referred to the nature and circumstances of the crime as an aggravating circumstance and
that the sentencing opinion “reflect[ed] the trial court’s understanding of the difference
between statutory aggravating circumstances and facts describing the nature and
circumstances of the offense.” Hoffner II, 811 N.E.2d at 60–61. Further, the court
explained that the trial court can evaluate the nature and circumstances in order to
conclude that “no mitigating feature can be extracted.” Id. at 61 (quoting State v.
Steffen, 509 N.E.2d 383, 390 (Ohio 1987)) (internal quotation marks omitted). The court
also conducted an extensive review of the penalty-phase evidence, independently
weighed the aggravating and mitigating factors, and concluded that the death penalty
was appropriate. Id. at 62–66.

We agree with the district court that there was no violation, or unreasonable
application, of clearly established Supreme Court law. As noted above, a violation of
state law is not grounds for habeas relief unless it rises to the level of a due process
deprivation. Estelle, 502 U.S. at 67–68. We find no such deprivation; we agree with the
Ohio Supreme Court that no violation of state law occurred, let alone one of such
magnitude as to violate due process. Furthermore, the Ohio Supreme Court’s
No. 08-4013 Hoffner v. Bradshaw Page 10

independent reweighing of the relevant evidence cured any error that the trial court may
have committed. Hoffner has made no showing of fundamental unfairness, and we
affirm the district court’s denial of relief on this sub-claim.

B.

Hoffner also argues that the trial court improperly multiplied the statutory
aggravating circumstances at sentencing. Hoffner was charged in the indictment with
three separate counts of murder—murder with prior calculation and design, murder in
the course of kidnapping, and murder in the course of aggravated robbery. For each
count, the indictment provided two death penalty specifications: that the offense was
committed while committing kidnapping and that the offense was committed while
committing aggravated robbery, both pursuant to Ohio Rev. Code Ann. § 2929.04(A)(7).
The specification requires that, in addition to proving that the murder was committed in
the course of an enumerated violent felony, the government must also prove that “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.” Ohio Rev. Code Ann. § 2929.04(A)(7). The jury found Hoffner guilty of all
three counts of murder and of both specifications for each count. However, the trial
court held that the two counts of murder during the commission of kidnapping and
aggravated robbery constituted allied offenses of similar import under Ohio Rev. Code
Ann. § 2941.25(A) and sentenced Hoffner only for murder with prior calculation and
design.

Hoffner argues that, under Ohio law, the court could not have used the
kidnapping and aggravated robbery as separate aggravating circumstances because they
both fall under the same statutory provision. See Ohio Rev. Code Ann. § 2929.04(A)(7).
As evidence that the aggravating circumstances were multiplied, Hoffner points to the
trial court’s sentencing opinion, where it wrote that “it was established beyond a
reasonable doubt that the aggravated murder . . . was committed by . . . Hoffner in the
commission of both a kidnapping and an aggravated robbery, and that he also committed
the aggravated murder with prior calculation and design.” Hoffner I, slip op. at 4. In the
No. 08-4013 Hoffner v. Bradshaw Page 11

next sentence, however, the court writes that “[t]hese findings, of course, merely
reiterate the jury’s verdicts.” Id. Hoffner also points out that the trial court referred to
the death penalty specification under subsection (A)(7) as “aggravating circumstances”
throughout the opinion. Hoffner cites to State v. Green, 738 N.E.2d 1208, 1222 (Ohio
2000), in which the Ohio Supreme Court held that it was improper for the trial court to
have “consider[ed] as two separate and distinct aggravating circumstances [the
defendant’s] involvement in committing ‘both an aggravating robbery and a
kidnapping’” when the indictment had charged a single death specification of “murder
while committing or attempting to commit ‘kidnapping or aggravated robbery.’”

The district court rejected this sub-claim on the grounds that it is a violation of
state, not federal, law and that even if the trial court’s alleged error rose to the level of
a due process violation, the state supreme court cured it through independent reweighing.
Hoffner VII, slip op. at 17–18. We agree. In the first instance, as the Ohio Supreme
Court held, see Hoffner II, 811 N.E.2d at 61, two separate death penalty specifications
were listed in the indictment, rather than just one as in Green. Thus, it was not improper
for the trial court to refer to “aggravating circumstances.” The trial court’s conjunctive
reference to Hoffner’s prior calculation and design in its sentencing opinion was in
reference to the jury’s verdict finding such facts beyond a reasonable doubt. But even
if this were error, the Ohio Supreme Court conducted a detailed independent review of
the evidence presented at the penalty phase. It found that “the evidence established
beyond a reasonable doubt the two [§] 2929.04(A)(7) aggravating circumstances” and
concluded that “Hoffner’s collective mitigation evidence is relatively modest when
compared with the aggravating circumstances.” Hoffner II, 811 N.E.2d at 65, 66
(emphasis added). Hoffner does not object to the Ohio Supreme Court’s reweighing of
the evidence. We therefore affirm the district court’s denial of habeas on this sub-claim.

IV.

Hoffner’s second claim is that his trial counsel performed ineffectively at the
guilt phase of trial by: (1) failing to argue that Dixon, not Hoffner, was the principal
offender and (2) failing to move to suppress Hoffner’s taped confession on the ground
No. 08-4013 Hoffner v. Bradshaw Page 12

that he had previously requested counsel. Hoffner raised both of these arguments for the
first time in his state post-conviction petition.1 See Hoffner III, 2002 WL 31162813, at
*3 (third and sixth sub-claims). Because the claims did not involve evidence outside of
the record and therefore could have been raised on direct appeal, the court of appeals
found both sub-claims to be barred by res judicata. Id. at *5 (citing State v. Cole, 443
N.E.2d 169, syllabus (Ohio 1982)). The Supreme Court of Ohio denied review.

Under Ohio’s doctrine of res judicata,

a final judgment of conviction bars the convicted defendant from raising
and litigating in any proceeding, except an appeal from that judgment,
any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.

State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967). In Cole, 443 N.E.2d at 171, “the Ohio
Supreme Court held that res judicata is a proper basis upon which to dismiss an
ineffective-assistance claim in a petition for post-conviction relief where a defendant
who is represented by new counsel on direct appeal fails to raise that claim and the basis
for that claim ‘could fairly be determined without examining evidence outside the
record.’” Fautenberry v. Mitchell, 515 F.3d 614, 633 (6th Cir. 2008). Thus, in
Fautenberry we held that “Ohio’s application of res judicata pursuant to Cole is an
actually enforced, adequate and independent state ground upon which the Ohio state
courts consistently refuse to review the merits of a defendant’s claims.” Id. The district
court followed this rule and held that this claim was procedurally defaulted. We agree.

The first three prongs of the Maupin test for procedural default are all met in this
instance. As discussed, (1) Hoffner failed to raise these ineffective-assistance sub-
claims on direct appeal, thus failing to comply with a state procedural rule; (2) the court
of appeals enforced the rule by holding the claim barred by res judicata; and (3) res

1
On direct appeal, Hoffner raised a claim that counsel failed to file a post-hearing brief in support
of his motion to suppress statements made to the police. See Hoffner II, 811 N.E.2d at 56. That claim is
distinct from the suppression claim raised here.
No. 08-4013 Hoffner v. Bradshaw Page 13

judicata is an adequate and independent state ground on which to foreclose federal
review. See Maupin, 785 F.2d at 138.

In his reply brief, however, Hoffner offers two reasons why his claim is not
procedurally defaulted. First, he claims that the state court improperly applied res
judicata because his claim was, in fact, based on evidence outside the record. See Hill
v. Mitchell, 400 F.3d 308, 320 (6th Cir. 2005) (“[T]he Ohio Court of Appeals’ improper
application of its res judicata rule does not bar our review [of a federal habeas claim.]”).
Hoffner’s outside evidence consists of “an expert affidavit concerning the standards of
representation in a capital case.” (Reply Br. at 10.) In order to excuse the procedural
default, the proffered affidavit must have been required, in addition to the original
record, to bring Hoffner’s claim for ineffective assistance on direct appeal. See State v.
Gibson, 430 N.E.2d 954, 957 (Ohio Ct. App. 1980) (citing Ohio Rev. Code Ann.
§ 2953.21). Yet, nothing in the sub-claims brought here suggests that the affidavit was
necessary and that they could not have been brought without it. Thus, procedural default
is not excused on this ground.

Hoffner also argues that procedural default should be excused because his
appellate counsel’s deficient performance in not raising these claims on direct appeal
constitutes cause and prejudice under the fourth part of the Maupin test.2 See Maupin,
785 F.2d at 138 (“Once the court determines that [the first three parts of the test have
been met], then the petitioner must demonstrate under Sykes that there was ‘cause’ for
him to not follow the procedural rule and that he was actually prejudiced by the alleged
constitutional error.” (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)) (additional
citations omitted)). Ineffective assistance of appellate counsel can constitute cause to
excuse a procedural default. See Murray v. Carrier, 477 U.S. 478, 492 (1986); Howard
v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005).

Appellate counsel’s failure to raise these guilt-phase ineffective-assistance claims
does not establish cause to excuse the default, however, because the underlying claims

2
Although Hoffner did not raise this defense in his principal brief, he did raise it in his reply brief
in response to the government’s assertion of procedural default in its brief.
No. 08-4013 Hoffner v. Bradshaw Page 14

are meritless. To establish a claim of ineffective assistance of trial or appellate counsel,
see Smith v. Robbins, 528 U.S. 259, 285 (2000), Hoffner must show (1) that his
counsel’s performance was deficient and (2) that the deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To prove deficiency, Hoffner
must show that “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. Prejudice can be shown by proving “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.

Hoffner’s first sub-claim—that trial counsel were deficient for failing to argue
that Hoffner was not a principal offender—is meritless because, as the district court
found, “ample evidence showed that Hoffner and Dixon fully collaborated in burying
Hammer alive.” Hoffner VII, slip op. at 22. “To be eligible for the death penalty under
[Ohio Rev. Code Ann. §] 2929.04(A)(7) as ‘the principal offender,’ the defendant must
have been the actual killer.” State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993) (citing
State v. Penix, 513 N.E.2d 744, 746 (Ohio 1987)). Substantial evidence at trial shows
that Hoffner was intimately involved in the planning and execution of the murder.
Hoffner and Dixon discussed killing Hammer and selling his car well in advance of the
murder. Hoffner held Hammer in a headlock and tried to break his neck while Dixon
beat him. While Dixon was burying Hammer, Hoffner jumped into the grave and put
his foot on Hammer’s mouth to prevent Hammer from crying for help.

The record is replete with evidence that Hoffner was the “actual killer” of
Hammer. Hoffner’s arguments that, because Hoffner followed Dixon, only Dixon could
have been the principal offender are irrelevant because, under Ohio law, two defendants
can be considered principal offenders when they act in concert to cause the death of
another. See State v. Franks, No. 18767, 1998 WL 696777, at *6 (Ohio Ct. App. Oct.
7, 1998) (citing State v. Keene, No. 14375, 1996 WL 531606, at *34–35 (Ohio Ct. App.
Sept. 20, 1996)). Especially considering the deference given to counsel’s tactical
choices, it is clear that counsel’s decision not to argue that Hoffner was not a principal
No. 08-4013 Hoffner v. Bradshaw Page 15

offender was not deficient. Furthermore, trial counsel’s failure to raise this argument
could not have been prejudicial because, under Ohio Rev. Code Ann. § 2929.04(A)(7),
a non-principal offender is eligible for the death penalty if he acted with prior calculation
and design. Hoffner does not argue that counsel were ineffective for failing to argue that
he did not act with prior calculation and design, and the record clearly supports the jury’s
finding that his actions were premeditated. We affirm the district court’s holding that
this sub-claim was procedurally defaulted.

Hoffner’s second sub-claim is that trial counsel were constitutionally deficient
for failing to move to suppress his taped confession under Minnick v. Mississippi, 498
U.S. 146 (1990), on the ground that Hoffner had requested counsel before giving the
confession. The only evidence Hoffner offers in support of this claim is his own
affidavit, which states that he had requested an attorney before being interrogated and
that trial counsel’s “response was, in effect, that the denial of my right to an attorney
prior to the interrogation didn’t matter.” This self-serving affidavit carries little weight,
especially in light of the copious evidence in the record to contradict it. The transcripts
of Hoffner’s statements to the police reveal that he was advised of his Miranda rights,
voluntarily waived those rights, and chose not to request an attorney prior to
interrogation. At the suppression hearing before the trial court, the investigating officers
both testified that Hoffner never requested to speak to an attorney. Counsel’s decision
not to pursue suppression of Hoffner’s confession was not unreasonable, nor was
appellate counsel’s decision not to argue trial counsel’s ineffectiveness on these grounds.
We affirm the district court’s denial of this sub-claim on the basis that it was
procedurally defaulted.

V.

Hoffner’s third ground for relief—ineffective assistance of counsel at the penalty
phase—is based on three allegations. First, Hoffner claims that trial counsel deficiently
advised him to show no emotion throughout the proceedings, thus dehumanizing him in
the jurors’ eyes. Second, Hoffner argues that counsel ceased functioning as his advocate
at closing argument when counsel cast Hoffner in a negative light instead of arguing for
No. 08-4013 Hoffner v. Bradshaw Page 16

mitigation. Third, Hoffner claims that counsel were deficient in failing to object to the
court’s response to a jury question requesting the definition of a “preponderance.” We
find that the state courts’ resolutions of the first two claims were not an unreasonable
application of federal law and therefore affirm the district court’s denial of habeas relief
on these grounds. Hoffner has defaulted his third argument and we therefore affirm the
district court’s rejection of that claim as well.

A.

Hoffner claims that trial counsel advised him to show no emotion “throughout
the entire trial” and specifically during his unsworn statement in the mitigation phase.
He claims that this adversely affected his chances of avoiding the death penalty because
it “dehumanized [him] to the jury.” In support of this claim, he offers the affidavit of
juror Eve Gimple. The affidavit states that the jury “wanted to know why Mr. Hoffner
appeared to show no emotion during his unsworn statement. It was this lack of emotion
which also was a factor in my vote to recommend the death penalty for Mr. Hoffner.”

Because this claim was based on an affidavit outside the trial record, Hoffner
properly raised it for the first time in his state post-conviction petition. See Hoffner III,
2002 WL 31162813, at *4–5. The Ohio Court of Appeals applied Ohio’s aliunde rule,
under which “jurors are not competent to testify about their deliberations or their mental
processes during deliberations without first establishing this evidence from an outside
(nonjury) source.” Id. at *4 (citing Ohio R. Evid. 606(B)). Ohio courts have applied this
rule to “juror testimony in postconviction proceedings where the defendant alleges
ineffective assistance of counsel.” Id. at *5; see also Doan v. Brigano, 237 F.3d 722,
730 (6th Cir. 2001), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510
(2003) (discussing the differences between the Ohio rule and its federal analogue); State
v. Hessler, No. 01AP-1011, 2002 WL 1379249, at *8 (Ohio Ct. App. June 27, 2002)
(applying the aliunde rule in state post-conviction proceedings to exclude consideration
of a juror affidavit). The state court ruled that “the juror was not competent to testify as
to her mental processes during the trial” and rejected Hoffner’s claim. Hoffner III, 2002
WL 31162813, at *5.
No. 08-4013 Hoffner v. Bradshaw Page 17

The district court found that this ruling was not an unreasonable application of
constitutional law, noting also that the affidavit was weak evidence of prejudice anyway
as the juror had specified that Hoffner’s affect was only a “factor” but had crossed out
the modifier “significant.” Hoffner VII, slip op. at 28. We agree. The affidavit does not
allege that the jury was influenced by any “extraneous” information, and therefore the
juror’s testimony was properly excluded from consideration by the Ohio courts. This
court has previously held that there is no “constitutional impediment to enforcing”
Ohio’s aliunde rule, and Hoffner has cited no authority to the contrary. See Brown v.
Bradshaw, 531 F.3d 433, 438 (6th Cir. 2008); see also Tanner v. United States, 483 U.S.
107, 117–27 (1987) (chronicling the legal history of and policy underlying Federal Rule
of Evidence 606(b)). Without the affidavit, Hoffner cannot establish that trial counsel’s
advice regarding his demeanor was prejudicial under Strickland. We affirm the denial
of habeas on this ground.

B.

Hoffner also claims that some of the comments trial counsel made during closing
argument at mitigation rendered counsel’s assistance constitutionally ineffective. At
summation, counsel stated the following:

This is a heinous crime, it’s unbelievable. As [the prosecutor]
said, I can’t begin to put it into words, and it’s really rather difficult.
Please don’t mistake any of my remarks as an attempt to evoke
sympathy on behalf of Timothy L. Hoffner, because I don’t feel any, not
a bit. I feel revulsion and confusion in equal parts because of everything
that we have heard, these amazingly gruesome photographs, and they’re
hard to look at. I’ve looked at them for 17 months. And how is it that
one young man can find it within himself to commit an act of homicide
on his friend?
....
Please understand at the outset what I’m asking of you. There are
three sentences available . . . . There is death, life imprisonment with
possibility of parole after serving the first 30 full years, and then life
imprisonment with the possibility of serving—or possibility of parole
eligibility after serving the first 20 years. Don’t even think about that.
To stand before you and ask for 20 full years to the parole board is an
abomination and it’s an insult to you, to me and to the Hammers.
No. 08-4013 Hoffner v. Bradshaw Page 18

(JA at 73.) Hoffner claims that, through these comments, “trial counsel essentially
ceased functioning as Hoffner’s advocate during the penalty phase” and “failed to
subject the prosecution’s penalty case to meaningful adversarial testing” in violation of
his Sixth Amendment rights. See United States v. Cronic, 466 U.S. 648, 659 (1984).

The Ohio Supreme Court “determine[d] that defense counsel’s comments do not
reflect deficient performance and that they were not prejudicial. Rather than an
abandonment of Hoffner’s mitigation defense, counsel’s comments were an apparent
attempt to acknowledge the particularly gruesome nature of the crime and to preserve
credibility between counsel and the jury.” Hoffner II, 811 N.E.2d at 57. The court
applied “highly deferential” scrutiny to “the strategic decisions of trial counsel” under
Strickland and reasoned that trial counsel “apparently believed that any attempt to seek
the lesser sentence of life with the possibility of parole after 20 years would have
alienated the jury.” Id. at 57–58. The court concluded that the “tactic was not
unreasonable in light of the particularly heinous nature of the aggravated murder
committed here.” Id. at 58. The district court held that the Ohio Supreme Court’s
decision was not contrary to or an unreasonable application of federal law and denied
relief. Hoffner VII, slip op. at 29–30.

We affirm the district court’s ruling. Trial counsel’s comments quoted above
constitute only a small portion of the entirety of the closing argument, roughly the first
page and a half of the transcript. For the remainder of the argument—approximately
twenty-one transcript pages—counsel recounted at length the mitigating evidence that
had been presented at the penalty phase in an attempt to prove that “there is indeed
sufficient evidence to diminish the appropriateness of the death penalty.” (JA at 73.)
Counsel’s decision to cast Hoffner’s crime in a negative light only briefly at the start of
argument was clearly a strategic decision aimed at maintaining the trust of the jury. The
Ohio Supreme Court’s decision to that effect was not unreasonable.

The cases Hoffner cites in support of his claim are of no avail. Hoffner relies
heavily on Rickman v. Bell, 131 F.3d 1150, 1160 (6th Cir. 1997), in which we held that
counsel’s strategy of attacking his own client constructively deprived his client of
No. 08-4013 Hoffner v. Bradshaw Page 19

representation to the extent that prejudice could be presumed. In Rickman, however, the
hostility and disgust that counsel exhibited toward his client was far more extensive than
in this case. Counsel’s performance in Rickman “convey[ed] to the jurors an
unmistakable personal antagonism toward Rickman, characterized both by attacks on
Rickman and by repeatedly eliciting information detrimental to Rickman’s interests.”
Id. at 1158. The lawyer “portray[ed] [Rickman] as crazed and dangerous” throughout
the trial and “paint[ed] a picture of [his] client even more frightening than the
prosecution could paint.” Id. at 1159. We characterized the lawyer’s conduct as
“combin[ing] a total failure to actively advocate his client’s cause with repeated
expressions of contempt for his client for his alleged actions.” Id. at 1157. Not only did
we find counsel’s performance deficient, but we held that the deficiency was so
substandard as to be presumptively prejudicial under Cronic. Counsel’s performance
here was limited to a strategic choice to gain favor with the jury by asking that Hoffner
receive eligibility for parole after thirty years instead of after twenty. Counsel did not
depict Hoffner as frightening or create an image of him more damaging than what the
prosecution presented. Rickman is thus inapposite.

Hoffner also cites our decision in Spisak v. Hudson, 512 F.3d 852 (6th Cir. 2008),
which, since oral argument in this case, has been reversed by the Supreme Court, Smith
v. Spisak, 130 S. Ct. 676 (2010). In Spisak, counsel “described his client’s acts in vivid
detail,” “argued that his client deserved no sympathy for his actions,” and “[a]t no point
. . . endeavor[ed] to direct his negative statements about his client toward an express
appeal for leniency.” Id. at 692 (Stevens, J., concurring in part and concurring in the
judgment). However, the Court unanimously held that counsel’s actions were not
prejudicial in light of the context in which the argument was made. Id. at 687 (majority
opinion). The Court reasoned that, because evidence from the guilt phase was still fresh
in the jurors’ minds, because counsel made repeated appeals to the jurors’ sense of
humanity, and because the testimony of the defense’s mental health experts had
presented many of the arguments for mitigation, it could not find a reasonable
probability that the result of the case would have been different had closing argument
been more persuasive. Id.; see also id. at 693 (Stevens, J., concurring in part and
No. 08-4013 Hoffner v. Bradshaw Page 20

concurring in the judgment) (“In my judgment even the most skillful of closing
arguments—even one befitting Clarence Darrow—would not have created a reasonable
probability of a different outcome in this case.”).

Even if we were to find counsel’s performance deficient in this case, under
Spisak we could not find it to have prejudiced Hoffner’s defense. Hoffner’s counsel only
referred to the heinous nature of his client’s acts; he did not go into “vivid detail” or
argue that Hoffner deserved “no sympathy.” Further, counsel spent substantial time
presenting a case for leniency. When viewed in light of the extensive evidence of the
crime produced at the guilt phase of trial and the substantial mitigating evidence
produced at the penalty phase, we can hardly find counsel’s comments here to be
prejudicial. Our decision is only bolstered by the deference due under AEDPA to the
Ohio Supreme Court’s determination of this issue. We therefore affirm the district
court’s denial of habeas on this sub-claim.

C.

Finally, Hoffner argues that trial counsel was ineffective at the penalty phase for
failing to object to the trial judge’s definition of a “preponderance,” which was given in
response to a question from the jury during deliberations. Hoffner claims that counsel
should have requested “an additional instruction to make clear that the jury knew the
prosecution carried the ultimate burden of proving that the aggravating factors
outweighed the mitigating factors ‘beyond a reasonable doubt.’” According to Hoffner,
counsel’s failure to do so was constitutionally deficient because “the Sixth Amendment
requires a criminal defense attorney to remain an ‘active advocate’ on behalf of his or
her client.” Appellant Br. at 46 (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)).

Hoffner raised this claim for the first time in his state post-conviction petition.
The Ohio Court of Appeals held that, because this claim could have been brought solely
on the basis of the trial record, it was barred by res judicata. Hoffner III, 2002 WL
31162813, at *5. Therefore, this claim is procedurally defaulted. Hoffner claims in a
footnote in his reply brief that ineffective assistance of appellate counsel excuses his
No. 08-4013 Hoffner v. Bradshaw Page 21

default but, on appeal, he has not developed any argument for why counsel’s error here
was prejudicial, and, thus, his claim fails.3

We affirm the district court’s denial of habeas relief for ineffective assistance of
trial counsel at the penalty phase.

VI.

In his fourth claim for relief, Hoffner contends that appellate counsel’s failure
to raise various meritorious issues on appeal amounted to constitutionally deficient
performance. On appeal, Hoffner points to four issues in particular that appellate
counsel should have raised: (1) that the trial court failed to define the term “aggravating
circumstances” in the jury instructions; (2) that the prosecution committed misconduct
by arguing that the nature and circumstances of the case were to be considered as
aggravation; (3) that the trial court’s jury instruction as to the process of weighing
mitigating and aggravating factors was faulty; and (4) that trial counsel was ineffective
for failing to object to the above errors.

Under Ohio law, a claim of ineffective assistance of appellate counsel must be
raised as part of an Ohio Appellate Rule 26(B) motion to reopen an appeal before the
Ohio Court of Appeals. State v. Murnahan, 584 N.E.2d 1204, 1209 (Ohio 1992); Ohio
R. App. 26(B). Rule 26(B)(1) requires that the “application for reopening shall be filed
. . . within ninety days from journalization of the appellate judgment unless the applicant
shows good cause for filing at a later time.” The Ohio Court of Appeals’ decision on
Hoffner’s direct appeal was journalized on March 23, 2001, but Hoffner did not file his
Rule 26(B) application until June 6, 2006. The Ohio Court of Appeals thus found
Hoffner’s application to be “untimely on its face” and dismissed it. Hoffner IV, slip op.
at 2. The court further rejected his attempts to establish cause for the late filing and his
challenge to the constitutionality of the rule. Id. at 2–3. Despite this ruling, however,
the court of appeals proceeded to address each of Hoffner’s ineffective-assistance-of-

3
Before the district court, Hoffner pointed to the affidavit of juror Eve Gimple, but he has not
done so here.
No. 08-4013 Hoffner v. Bradshaw Page 22

appellate-counsel claims and rejected them all on their merits. Id. at 4–15. On appeal,
the Ohio Supreme Court affirmed the dismissal of the 26(B) application on untimeliness
grounds only. Hoffner V, 860 N.W.2d at 1022–23.

This court’s precedents guide our application of the Maupin test for procedural
default when a Rule 26(B) motion has been denied for untimeliness. By the time
Hoffner filed his Rule 26(B) motion in June 2006, “it was well established that claims
of ineffective assistance of appellate counsel must be raised in a motion for
reconsideration before the Ohio Court of Appeals.” Monzo v. Edwards, 281 F.3d 568,
577 (6th Cir. 2002) (considering whether Rule 26(B) was an independent and adequate
state procedural rule as of May 1998). Since at least 1996, Ohio law has provided
sufficient guidance on what constitutes a “good cause” for a late filing under Rule 26(B).
Id. at 578. Furthermore, as of January 1996, “the time constraints of Rule 26(B) were
firmly established and regularly followed.” Parker v. Bagley, 543 F.3d 859, 861 (6th
Cir. 2008) (discussing Fautenberry v. Mitchell, 515 F.3d 614, 641 (6th Cir. 2008))
(emphasis omitted). Although we have, in prior cases, found Rule 26(B) not to be an
adequate and independent ground on which to find procedural default, those precedents
are not applicable here because Rule 26(B) was firmly established and regularly
followed by June 2006.4 See id. at 862 (applying the “firmly established and regularly
followed” requirement “as of the time Rule 26(B) was to be applied”). Thus, we
conclude that Hoffner has procedurally defaulted his claims of ineffective assistance of
appellate counsel. Nevertheless, even if Hoffner’s claims were not defaulted, each fails
on the merits. See Fautenberry, 515 F.3d at 642 (analyzing the merits of a procedurally
defaulted claim in the alternative).

The usual two-pronged analysis of ineffective-assistance claims under Strickland
also governs claims of ineffective assistance of appellate counsel. Robbins, 528 U.S. at
285. Thus Hoffner must demonstrate that appellate counsel’s decision not to raise the

4
For this reason, Hoffner’s reliance on Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006), is
misplaced. In Franklin, the Rule 26(B) motion was filed on June 30, 1993, one day before Rule 26(B) went
into effect. Id. at 418. We determined that applying Rule 26(B)’s timeliness requirement to cases filed
before the effective date of the rule would give the rule impermissible retroactive effect, a holding with
no application to Hoffner’s case. Id. at 420.
No. 08-4013 Hoffner v. Bradshaw Page 23

issues raised here was “below an objective standard of reasonableness” and that the
deficiency caused a “reasonable probability” that “the result of the proceedings would
have been different.” Strickland, 466 U.S. at 688, 694. “It is not required that an
attorney argue every conceivable issue on appeal.” Jones v. Barnes, 463 U.S. 745, 749
(1983) (citation and quotation marks omitted). Rather, appellate counsel must “examine
the record with a view to selecting the most promising issues for review.” Id. at 752.
“Generally, only when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.” Robbins, 528 U.S. at 259
(citation and quotation marks omitted).

Because we are reviewing these claims under AEDPA, we must give the
appropriate deference to “the last state court to issue a reasoned opinion on the issue.”
Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005); see also Joseph v. Coyle, 469 F.3d 441,
450 (6th Cir. 2006) (citing Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir. 2000)
(“When the last state adjudication of the claim is silent or ambiguous, the federal court
should look through to the last clear state decision on the matter.”)). Further, we give
AEDPA deference to a ruling on the merits despite the fact that the reasoning was given
as an alternative to a primary ground for decision—in this case, the court of appeals’s
dismissal of the Rule 26(B) application as untimely. See Brooks v. Bagley, 513 F.3d
618, 625 (6th Cir. 2008). Therefore, we will review the Ohio Court of Appeals’s
determination of the merits of the claims Hoffner raises here and accord that decision the
appropriate deference under AEDPA.

A.

Hoffner first argues that appellate counsel were deficient for failing to argue that
the trial court erred by failing to instruct the jury on the meaning of “aggravating
circumstances.” Without a proper definition, Hoffner claims, the jury was left “with
untrammeled discretion to impose or withhold the death penalty.” Appellant Br. at
49–50 (citing Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976)). The Ohio Court of
Appeals rejected the claim, relying on a prior case in which the exact same argument
was raised and rejected. Hoffner IV, slip op. at 5–6. In State v. Hutton, the Ohio
No. 08-4013 Hoffner v. Bradshaw Page 24

Supreme Court held that appellate counsel’s decision not to argue that the trial court
erred by not including a definition of “aggravating circumstances” was reasonable,
especially considering the fact that, because trial counsel had not objected to the
instructions, plain error review would have applied on appeal. 797 N.E.2d 948, 958–59
(Ohio 2003). The court cited Robbins and Barnes and held that appellate counsel’s
decision not to raise the issue was not unreasonable. Id. at 959. Applying Hutton to
Hoffner’s claim, the Ohio Court of Appeals concluded that counsel’s decision not to
argue for the need for a definition of “aggravating circumstances” did not constitute
deficient performance, as the issue was not “clearly stronger” than the numerous other
issues counsel did raise, including other alleged defects in the jury instructions. See
Hoffner IV, slip op. at 5–6.

Relying primarily on the same cases, the district court held that the Ohio Court
of Appeals’s decision was not an unreasonable application of federal law. Hoffner VII,
slip op. at 36. We agree. Trial counsel’s failure to object to the jury instructions meant
that plain error review would have applied; appellate counsel’s decision not to raise a
waived issue was reasonable. Furthermore, as the district court explained, the Ohio
Supreme Court’s reweighing of the mitigating and aggravating factors would effectively
cure any error caused by an improper definition of “aggravating circumstances.” See id.
at 36–37 (citing Slagle v. Bagley, 457 F.3d 501, 521 (6th Cir. 2006)). Moreover,
Hoffner cannot show that, even if appellate counsel was deficient for not having raised
the claim, the result of the proceeding would have been different. Hoffner argues that
the failure to provide this instruction was a “structural” defect in the trial under Arizona
v. Fulminante, 499 U.S. 279, 309–310 (1991). This is a mischaracterization of the trial
court’s omission. Structural defects affect “the framework within which the trial
proceeds” and are not simply errors in the trial process itself, see id., such as a faulty jury
instruction is. The Ohio court’s resolution was not unreasonable. We affirm the district
court’s rejection of this sub-claim.
No. 08-4013 Hoffner v. Bradshaw Page 25

B.

Next, Hoffner claims that the prosecutor made several comments during closing
argument at the penalty phase that improperly represented that the nature and
circumstances of the offense could be considered an aggravating factor. At closing
argument, the prosecutor stated:

Archie Dixon went through Chris’ wallet and later both Mr.
Hoffner and Mr. Dixon took and sold Chris’ car. I don’t think there’s
any question there’s an aggravating circumstance, maybe more than one
here.
Is there anything mitigating about the nature of circumstance of
this crime? Is there anything mitigating, ladies and gentlemen, about
trying to snap someone’s neck, trying to snap his neck, leaving, digging
a hole, coming back, walking him to the car, driving him there with other
people, walking him down a path and taking him to his grave, is there
anything mitigating about that? . . .
Who benefited in this murder? I think the evidence is clear that
Mr. Hoffner and Mr. Dixon sold Chris Hammer’s car. He bought at least
one car, and there are a couple of exhibits, State’s Exhibit’s, after the
taking and selling of Chris Hammer’s car, and then he initially lied to the
police and blamed everything on Archie Dixon. Is there anything
mitigating about the nature and circumstances of this crime, a planned,
premeditated, calculated killing?

(emphasis added by Hoffner). Hoffner claims that these statements “allowed the jury
unbridled discretion to consider any number of non-statutory aggravating factors.”
Appellant Br. at 51 (citing Zant v. Stephens, 462 U.S. 862, 878 (1983)).

The Ohio Court of Appeals once again conducted plain-error review, as
Hoffner’s counsel had not objected at trial. Hoffner IV, slip op. at 8. As to the
prosecutor’s first comment, the state court reasoned that although “the prosecutor’s
reference to ‘more than one’ aggravating circumstance technically may have been
improper[,] . . . ‘[i]solated comments by a prosecutor are not to be taken out of context
and given their most damaging meaning.’” Id. at 9 (quoting State v. Ahmed, 813 N.E.2d
637, 662 (Ohio 2004)). As to the remainder of the statements, the court held that the
remarks properly stated the law. Under Ohio law, the facts and circumstances of the
offense must be examined to determine whether they are mitigating. Ohio Rev. Code
No. 08-4013 Hoffner v. Bradshaw Page 26

Ann. § 2929.04(B). “Thus, a prosecutor may legitimately refer to the nature and
circumstances of the offense, both to refute any suggestion that they are mitigating and
to explain why the specified aggravating circumstance[s] outweigh mitigating factors.”
State v. Sheppard, 703 N.E.2d 286, 294 (Ohio 1998). Therefore, the court of appeals
reasoned, the prosecutor was justified in arguing to the jury that the nature and
circumstances of Hoffner’s crime should not be considered mitigating, and appellate
counsel was not deficient for failing to raise the claim. Hoffner IV, slip op. at 10–11.

We agree with the district court that this conclusion was not an unreasonable
application of federal law. The prosecutor’s statements could hardly qualify as
prosecutorial misconduct under Ohio law as they accurately reflected Ohio’s rules on the
use of aggravating and mitigating evidence. Therefore, appellate counsel’s failure to
raise the claim on appeal could not have been deficient, especially considering the plain-
error review to which the claim would have been subject. We affirm the district court’s
decision on this sub-claim.

C.

Hoffner also argues that the trial court’s instructions to the jury were erroneous
in their explanation of the process by which the jury should weigh aggravating and
mitigating evidence. First, he claims that the court omitted an instruction that the jury
need not reach a unanimous decision as to the existence of any mitigating factor. The
instructions read: “If the weight of the evidence is equally balanced, or if you are unable
to determine which side of an issue has the preponderance as to any one or more of the
mitigating factors, then the defendant has not established that mitigating factor or factors
as the case may be.” Hoffner argues that this instruction could have led the jurors to
believe that they could not consider a mitigating factor unless all the jurors believed it
had been proven, in violation of Mills v. Maryland, 486 U.S. 367, 384 (1988).

The Ohio Court of Appeals rejected this claim, concluding that the trial court in
fact was properly instructing the court as to the defendant’s burden to prove a mitigating
circumstance by a preponderance, which is constitutionally valid. Hoffner IV, slip op.
at 12 (citing State v. Tenace, 847 N.E.2d 386, 397 (Ohio 2006)). In a prior case, we held
No. 08-4013 Hoffner v. Bradshaw Page 27

that “requiring unanimity as to the presence of a mitigating factor”—a process prohibited
by Mills—is a “far different matter” than requiring unanimity as to the results of the
weighing. Coe v. Bell, 161 F.3d 320, 338 (6th Cir. 1998) (emphasis omitted). Similarly,
it is a far different matter than emphasizing that the defendant carries the burden of
proving mitigating factors by a preponderance. “[F]ailing to expressly state that
mitigating factors need not be unanimously found does not improperly imply that
mitigating factors must be unanimously found.” Williams v. Anderson, 460 F.3d 789,
808 n.5 (6th Cir. 2006). We affirm the district court’s finding that the court of appeals’s
resolution of this sub-claim was not unreasonable.

Second, Hoffner contends that the district court erred by instructing the jury that
it could consider penalties other than death only after finding that the prosecution failed
to prove that the aggravating factors did not outweigh the mitigating factors. Hoffner
does not cite a particular portion of the jury instructions where the trial court made such
an error, but we will assume that he is referring to the same passage that he cited in his
Rule 26(B) application. The instructions read:

If after a full and impartial consideration of all the evidence in
this case you are firmly convinced that the aggravating circumstances
outweigh the mitigating factors, then the State has established this
beyond a reasonable doubt and your sentence recommendation should be
death.
If you are not firmly convinced that the aggravating
circumstances outweigh the mitigating factors, then your sentence
recommendation must be life imprisonment with parole eligibility only
after either 20 full years of imprisonment or 30 full years of
imprisonment.
....
Now, in conclusion, as you shall recommend the sentence of
death only if you unanimously, all 12 jurors, find by proof beyond a
reasonable doubt that the aggravating circumstances outweigh the
mitigating factors. If you do not so find, you should unanimously
recommend either a life sentence with parole eligibility after serving 20
full years of imprisonment or a life sentence with parole eligibility only
after serving 30 full years of imprisonment.

Hoffner claims that this instruction was faulty in requiring the jury to reject the death
penalty before considering another option and that counsel was ineffective for failing to
No. 08-4013 Hoffner v. Bradshaw Page 28

raise the claim. Appellant Br. at 56 (citing Mapes v. Coyle, 171 F.3d 408, 416–17 (6th
Cir. 1999)).

The Ohio Court of Appeals distinguished the instructions given here from an
Ohio Supreme Court case prohibiting “acquittal-first” instructions. Hoffner IV, slip op.
at 13–14. In State v. Brooks, 661 N.E.2d 1030, 1042 (Ohio 1996), the Ohio Supreme
Court “h[eld] that the jury need not unanimously reject the death penalty in order to
recommend a life sentence.” State v. Murphy, 747 N.E.2d 765, 793 (Ohio 2001). But
the instruction given in Brooks—“You are now required to determine unanimously that
the death penalty is inappropriate before you can consider a life sentence,” Brooks, 661
N.E.2d at 1040—is clearly distinguishable from the instructions in this case, which
“state nothing about unanimously rejecting the death penalty nor do they state anything
about the order in which the jury should proceed,” Hoffner IV, slip op. at 14.

We agree with the Ohio Court of Appeals that counsel was not deficient for
failing to raise this state claim as the claim itself was meritless under Ohio precedent.
The claim would have also failed under federal law. As it recently noted, the Supreme
Court “ha[s] not . . . previously held jury instructions unconstitutional” for requiring
rejection of the death penalty first. Spisak, 130 S. Ct. at 684. The jury instructions here
are substantively congruent to those in Spisak, in which the Court held the instructions
not to be contrary to clearly established Supreme Court precedent. Id. The Ohio court’s
conclusion was not an unreasonable application of federal law, and we affirm the district
court on this sub-claim.

D.

Finally, Hoffner claims that appellate counsel was ineffective for failing to raise
a claim that trial counsel was ineffective for failing to object to the errors discussed here.
Because we find none of the alleged underlying errors to be meritorious, trial counsel
was not ineffective for failing to object. Therefore, appellate counsel’s failure to raise
the ineffective assistance issue was not constitutionally deficient. The Ohio Court of
Appeals reached the same conclusion.
No. 08-4013 Hoffner v. Bradshaw Page 29

We therefore affirm the district court’s denial of habeas on Hoffner’s claim of
ineffective assistance of appellate counsel.

VII.

In his fifth claim for relief, Hoffner contends that the police questioning that led
to his arrest was conducted in violation of his Fifth Amendment rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and that the trial court erred by failing to suppress the
statements. Hoffner argues that the atmosphere at the house where he was initially
questioned by the police was such that it constituted custodial interrogation necessitating
a Miranda warning. According to Hoffner, because the police failed to give the warning
at that time, later statements given in the police car and at the police station were so
tainted that a mid-interrogation Miranda warning could not cure the violation. Appellant
Br. at 60–61 (citing Missouri v. Seibert, 542 U.S. 600 (2004)).

Hoffner properly preserved this issue for our review by raising it on direct
appeal. See Hoffner II, 811 N.E.2d at 52. Under AEDPA, factual findings made by the
state courts based on the trial record are entitled to a presumption of correctness that may
be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Warren, 161 F.3d
at 360–61. The Ohio Supreme Court made extensive factual findings on this issue:

{¶ 17} On November 9, 1993, Hoffner and Dixon were living at
Wilkerson’s house. At approximately 11:00 a.m. on that date, Toledo
police officers executed a search warrant at the Wilkerson residence and
arrested Dixon for forgery.
{¶ 18} During the search, Lieutenant Charles Hunt discovered Hoffner
covered with a blanket lying on a couch in the family room. Hunt, with
his weapon drawn but pointed in the air, ordered Hoffner off the couch.
Hunt then pulled the blanket away from Hoffner, holstered his weapon,
and searched Hoffner for weapons. To prevent Hoffner from interfering
while police searched the premises, Hunt asked Hoffner to sit in a nearby
chair.
{¶ 19} Hunt and Detective Robert Leiter then searched the family room.
During their search, the detectives asked Hoffner whether he knew
anything about Hammer’s disappearance. Hoffner denied all knowledge
of Hammer’s whereabouts.
No. 08-4013 Hoffner v. Bradshaw Page 30

{¶ 20} After Hunt and Leiter completed their search of the family room,
Hoffner asked to speak with them. Hoffner told police that Dixon and
Hammer had gotten into an argument and that Dixon had “[taken] care
of him,” had buried Hammer’s body in the woods, and had sold
Hammer’s car. At no point did Hoffner implicate himself.
{¶ 21} Once Hoffner had implicated Dixon, Hunt and Leiter asked
whether Hoffner would go downtown to make a statement. Hoffner
agreed. On the drive to the police station, Leiter told Hoffner that
officers would begin searching the wooded area where Hoffner had said
Hammer’s body was buried and that any other information Hoffner had
would be helpful. Leiter again asked whether Hoffner had had anything
to do with Hammer’s disappearance, and Hoffner said he had not.
Hoffner subsequently asked the detectives to stop the car and indicated
that he had additional information but said he did not want to get into
trouble. Leiter told Hoffner that he could be charged with obstruction if
he withheld information, but if he told the truth and was not involved in
any crimes, he had nothing to worry about. At that point, Hoffner told
the detectives where they could find Hammer’s body.
{¶ 22} After leading the detectives to Hammer’s grave, Hoffner again
agreed to go to the police station to give a statement. On the way to the
station, the detectives stopped at a fast-food restaurant, and Hoffner was
given food and a drink. At the station, Leiter advised Hoffner of his
Miranda rights but did not arrest him. Hoffner confirmed that he
understood his rights and signed a waiver-of-rights form. At
approximately 3:30 p.m., Hoffner gave a taped statement describing
Dixon’s murder of Hammer. After the interview, Leiter and Detective
Phil Kulakoski drove Hoffner back to Wilkerson’s house. Hoffner then
packed his belongings and drove himself to his mother’s house in
Perrysburg.
{¶ 23} At approximately 7:30 p.m. on November 9, Dixon confessed to
Hammer’s murder and, in the process, implicated Hoffner. Shortly
thereafter, police obtained an arrest warrant for Hoffner. After midnight
on November 10, Kulakoski and Leiter arrested Hoffner at his mother’s
house.
{¶ 24} Detectives drove Hoffner to the police station, where they again
read him Miranda warnings. Hoffner signed a waiver-of-rights form and
gave a taped statement confessing to Hammer’s murder.

Hoffner II, 811 N.E.2d at 52–53.

Addressing Hoffner’s claim, the Ohio Supreme Court began by explaining that
“Miranda warnings are not required simply because the questioning takes place in a
No. 08-4013 Hoffner v. Bradshaw Page 31

coercive atmosphere.” Id. at 54 (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
Rather, the court undertook analysis under Thompson v. Keohane, 516 U.S. 99, 112
(1995), and California v. Beheler, 463 U.S. 1121, 1125 (1983), to determine whether
Hoffner would have felt that he was not at liberty to terminate the interview and leave.
The court found that the police’s initial questioning regarding Hammer’s whereabouts
consisted of “[g]eneral on-the-scene questioning” not subject to the Miranda warning
requirement. Hoffner II, 811 N.E.2d at 54 (quoting Miranda, 384 U.S. at 477). Further,
the court found “no evidence that police officers coerced Hoffner into making any
statements”; rather, Hoffner “voluntarily offered information that Dixon had killed
Hammer.” Id. (citing Miranda, 384 U.S. at 478). The court held that the police’s initial
instructions to Hoffner to stay in a specific location were reasonably necessary to secure
the scene and did not place Hoffner in custody. Id.

The court also found that events after Hoffner left the Wilkerson house in the
police vehicle did not constitute custodial interrogation. According to the Ohio Supreme
Court, “Hoffner voluntarily agreed to go to police headquarters to give a taped
statement. On the way to the station, Hoffner offered to direct police to the location of
Hammer’s body.” Id. at 55. The court reasoned that “[b]ecause Hoffner was not under
arrest or in custody . . . , police were not required to issue Miranda warnings.” Id. As
to the interrogations at the police station occurring both before and after his arrest, the
court found that, in both instances, Hoffner voluntarily waived his Miranda rights in
writing. Id. Therefore, the court concluded that “[a]ll of Hoffner’s statements regarding
Hammer’s disappearance and murder were voluntarily made and properly admitted at
trial.” Id.

The district court found that “the Ohio Supreme Court correctly identified and
reasonably applied federal precedent to this case’s facts” and therefore denied habeas
relief on this claim. Hoffner VII, slip op. at 53–54.

Hoffner argues that this was an unreasonable application of Supreme Court
precedent. He claims that the initial questioning at the Wilkerson house was custodial
because he was not free to leave after ten officers entered Wilkerson’s house, and at least
No. 08-4013 Hoffner v. Bradshaw Page 32

one officer pointed a gun at him and ordered him to stay in one place. He maintains that
the questions he was asked at that point regarding Hammer’s disappearance constituted
interrogation. Hoffner argues that, because he gave incriminating statements to the
police shortly thereafter and because his custody with the police was continuous until
the time he gave his first statement, he could not have reasonably perceived the later
questioning to be “new and distinct,” which would have dissolved the taint of the earlier
Miranda violation. Finally, he claims that the officers failed to ensure that, at the time
he gave his confession, his earlier pre-Miranda statements could not be used against
him, thus violating United States v. Pacheco-Lopez, 531 F.3d 420 (6th Cir. 2008).

The procedural safeguards outlined in Miranda apply only to suspects subject to
“custodial interrogation.” Miranda, 384 U.S. at 444. This term was defined as
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Id.
“[T]he only relevant inquiry” for determining whether an individual is in custody “is
how a reasonable man in the suspect’s position would have understood his situation.”
Berkermer v. McCarty, 468 U.S. 420, 442 (1984). This requires that we resolve two
questions: “[F]irst, what were the circumstances surrounding the interrogation; and
second, given those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave.” Keohane, 516 U.S. at 112
(footnote omitted). “Volunteered statements of any kind are not barred by the Fifth
Amendment and their admissibility is not affected by [Miranda].” Miranda, 394 U.S.
at 478.

We find that the Ohio Supreme Court’s ruling was neither contrary to nor an
unreasonable application of clearly established Supreme Court precedent. The
circumstances surrounding the beginning of Hoffner’s interaction with the police do not
reflect any form of coercion or custody. Hoffner was present at Wilkerson’s house when
the police burst into the house to execute a search warrant. However, as the Ohio
Supreme Court recognized, “[g]eneral on-the-scene questioning as to facts surrounding
a crime or other general questioning of citizens in the fact-finding process is not affected
No. 08-4013 Hoffner v. Bradshaw Page 33

by [the] holding [in Miranda].” Id. at 477. Thus, the police did not need to give Hoffner
Miranda warnings upon entering the house in order to ask basic investigatory questions.
Hoffner’s claim that the fact that one officer pointed a gun at him is unavailing as
Hoffner made each of his statements incriminating Dixon entirely voluntarily and not
in response to police questioning. At Wilkerson’s house, Hoffner approached the
officers to inform them that he had information as to Hammer’s whereabouts. Hoffner
then volunteered to go to the police station to give a statement. In the police vehicle on
the way to the station, Hoffner volunteered that he knew the location of Hammer’s body.
Hoffner walked to Hammer’s gravesite voluntarily, without coercion by the police
officers. As noted above, volunteered statements do not implicate Miranda’s
protections. Further, Hoffner was properly Mirandized and waived his rights in writing
before he gave his official statement at the police station. The same proper procedures
preceded his eventual confession. Therefore, the Ohio Supreme Court correctly
concluded that each of Hoffner’s statements complied with the requirements of Miranda
and its progeny.

As to Hoffner’s argument that his earlier statements tainted his later taped
confession, because none of the statements violated Miranda on its own, none of them
can taint any later statements. Cf. Seibert, 542 U.S. at 606. In any event, the facts of
Seibert are easily distinguishable from this case. In Seibert, police had developed a
protocol whereby they would interrogate a suspect, gain incriminating information, then
give the proper Miranda warnings and re-question the suspect covering the same
ground. Id. at 604. The Supreme Court held that this technique rendered the Miranda
warnings “ineffective,” id. at 611, and “likely to mislead and ‘depriv[e] a defendant of
knowledge essential to his ability to understand the nature of his rights and the
consequences of abandoning them,’” id. at 613–14 (quoting Moran v. Burbine, 475 U.S.
412, 424 (1986)) (alteration in original). Nothing in the facts of this case remotely
resemble the police protocol invalidated in Seibert. In fact, Hoffner’s case is much more
similar to Oregon v. Elstad, 470 U.S. 298, 300–01 (1985), in which a suspect was
questioned without proper warnings at his home, made an incriminating statement, then
was taken to the police station, properly warned, waived his rights, and made a full
No. 08-4013 Hoffner v. Bradshaw Page 34

confession. The Supreme Court held that the confession was admissible because no taint
attached to an incriminatory statement given without “any actual coercion or other
circumstances calculated to undermine the suspect’s ability to exercise his free will.”
Id. at 309. The initial unwarned statement was suppressed, but all later statements were
subject to the standard voluntariness inquiry. Id.

The Ohio Supreme Court’s application of federal law in affirming the admission
of Hoffner’s statements was thus reasonable. We therefore affirm the district court’s
denial of the writ on this ground.

VIII.

In his last assignment of error, Hoffner claims that the prejudicial effect of the
various errors that we have individually rejected become, in the aggregate, a
constitutional violation. First, Hoffner has defaulted this issue by not raising it on direct
appeal. Although he did argue cumulative error in his post-conviction petition, see
Hoffner III, 2002 WL 31162813, at *6, that claim involved a substantially different set
of underlying claims and thus does not preserve the issue for our review. Even so, as
Hoffner recognizes in his brief, we have previously held that “post-AEDPA, not even
constitutional errors that would not individually support habeas relief can be cumulated
to support habeas relief.” Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005); see also
Appellant Br. at 74 n.3. We therefore affirm the district court’s denial of habeas relief
on this claim.

IX.

For the reasons discussed above, we affirm the judgment of the district court and
deny Hoffner’s petition for a writ of habeas corpus.