Landrum v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0340p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellee/Cross-Appellant, -
LAWRENCE LANDRUM,
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Nos. 06-4194/4251
v.
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Respondent-Appellant/Cross-Appellee. -
BETTY MITCHELL,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 96-00641—Thomas M. Rose, District Judge.
Argued: April 21, 2009
Decided and Filed: November 4, 2010
Before: BATCHELDER, Chief Judge; BOGGS and GIBBONS, Circuit Judges.

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COUNSEL
ARGUED: Laurence R. Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cleveland, Ohio, for Appellant. Gerald W. Simmons, Cincinnati, Ohio, for Appellee.
ON BRIEF: Laurence R. Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cleveland, Ohio, for Appellant. Gerald W. Simmons, Cincinnati, Ohio, Randall L.
Porter, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Warden Betty Mitchell appeals the
district court’s order granting Lawrence Landrum’s petition for a writ of habeas corpus
on the basis of guilt-phase ineffective assistance of counsel. Landrum cross-appeals the
district court’s denial of his other claims. Because we find that Landrum has
procedurally defaulted his claim of guilt-phase ineffective assistance of counsel, we

1
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reverse the district court’s grant of habeas on that ground and affirm the district court’s
decision in all other respects.

I.

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

On September 19, 1985, Harold White, Sr., the eighty-four-year-old
victim, left his second floor apartment where he lived alone to dine at Sir
Richard’s, a restaurant just north of Chillicothe. After dinner, he went
home around 9:15 or 9:30 p.m. When he arrived home, White found
burglars in his apartment. Appellant-defendant, Lawrence (“Larry”)
Landrum, was searching drawers in the kitchen. White, shining a
flashlight on him, asked Landrum: “What the hell are you doing in my
apartment?” Landrum replied: “I’m going to get all the money and stuff
I can.” Then White told Landrum to leave immediately: “If you don’t
get out, I will call the police.”
While White and Landrum were talking, Grant Swackhammer,
Landrum’s fourteen-year-old accomplice, came up behind White and
struck White on the head five or six times with a large railroad bolt. He
struck some blows after White had fallen. Grant then said: “I killed
him.” Landrum, joining in, sat astride White and wrestled with him. In
the struggle, White tore Landrum’s surgical gloves. Landrum then told
Grant that White was still alive and to go get the biggest knife that he
could from the kitchen. Grant responded and handed Landrum a large
kitchen knife.
Landrum has given different versions of exactly what he did next. At
trial, Landrum testified that he did not kill White. He denied asking
Grant for the knife but admitted Grant handed it to him. Landrum
testified that he only threatened White with the knife: “Told him not to
move, to stay still and he wouldn’t get hurt.” Landrum then went
through White’s pockets, taking his keys and wallet. Landrum further
testified that he told Grant to watch White, then laid the knife down and
went to another room to search for valuables. Later, Landrum heard
hollering and screaming and shouted to Grant to keep White down. Only
when Landrum came back did he notice that White’s throat was slit.
However, Landrum told several witnesses that night that he, and not
Grant, had cut White’s throat.
Landrum took about $80 and over two hundred nerve pills (Placidyls and
Librium) from White’s apartment. Landrum kept all the money and
pills. When Landrum and Grant left the apartment, they went to Grant’s
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house, separated, and Landrum then went to the house of his friend, Rick
Perry.
At Perry’s house, then at a railroad yard, and later at a first floor
apartment below White’s, Landrum told several juveniles that night the
details of the burglary and murder. Landrum told Michael Drew, a
seventeen-year-old runaway, that he had just done a job and then
described the burglary and murder. He told Drew that he had nodded his
head, telling Grant to hit White with the railroad bolt. Landrum showed
Drew a bunch of money and also told him that “he slit his [White’s]
throat from ear to ear.” Landrum also warned Drew and the others: “If
you guys go to the law, I’ll cut your throat just like I did Mr. White’s.”
Drew also described Landrum changing clothes that evening.
Rick Perry, age nineteen, a good friend of Landrum’s, testified that he
saw Landrum around 11:30 p.m. on September 19 at Perry’s house.
Landrum told him: “I’ve got money.” “I did a job.” “I killed some old
man.” “I cut his throat.” Landrum told Larry Perry, Rick’s brother, that:
“he had to get out of town because he had just gutted [someone].” He
also showed Larry around one hundred thirty Placidyl pills and about the
same quantity of Libriums. Landrum counted the pills at the house.
Cary Leasure, age sixteen, was also at the Perry house and later at the
railroad yard. Cary testified that Landrum said he encountered White,
“and then gave the signal, waved his hand and told his buddy to hit him
[White] in the head.” When White fell down, Landrum got on top of him
and then “told his buddy to go get a knife out of the kitchen drawer.”
After his buddy gave him the knife, Landrum said, he then “cut the guy’s
throat.”
Karen Hughes Brown, age sixteen, also was at the Perry house and at the
railroad yard. Karen said that Landrum told them he and his buddy,
Grant, had “broke into Mr. White’s house and Grant was supposed to
have hit [him] over the head and Larry sliced his throat.” Landrum said
they had been planning the burglary for a couple of days. Karen went
that evening with Larry back to an apartment on the first floor of the
same building. Landrum had to get a sweater and pair of pants that he
had left. There, Landrum told Karen, “Oh, by the way, there’s a dead
body above you.” Karen testified that Landrum “asked me what I would
do if blood started dripping on me from the ceiling and after he did that
he asked if I wanted to go upstairs and see the body.” That evening,
Landrum threatened all the juveniles, “if we told anybody, that he’d slice
our throat. He said he sliced one person’s throat, so he’d slice another.”
On September 20, an anonymous caller phoned the police, and that
afternoon, the police forcibly entered Mr. White’s second floor
apartment. Inside they found White, his throat slit, lying in a pool of
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blood. Closet doors were ajar or open, drawers were pulled open with
some contents dumped on the floor, and a wooden locked cabinet had
been pried open. Police also found two pieces of material later
determined to be pieces of gloves.
On September 21, police arrested Landrum for White’s murder. On his
person, police found a one-way bus ticket to Michigan purchased on
September 20. When Landrum was arrested, the tennis shoes he was
wearing bore traces of human blood. On September 23, after a grid
search, police found a large kitchen knife in a wooded area. Police also
found that day in the woods a paper sack containing a bloody towel and
washcloth, surgical gloves, a pair of other rubber gloves, and the victim’s
wallet. At trial, Landrum admitted throwing away the towel and gloves.
The knife, towel and washcloth, and one glove, contained human blood,
type O, the same blood type as White’s. Two fragments of gloves found
in the apartment matched torn rubber gloves from the sack in the woods.
A pathologist testified that White suffered multiple lacerations to his
head caused by a relatively blunt instrument, possibly the railroad bolt.
He found six distinct wounds on White’s right forehead, right side of the
scalp and back left side. One blow caused a depressed skull fracture
which might have proved fatal. White died of massive bleeding from a
gaping neck wound. The neck wound, five inches in length, extended to
the spine itself; the right carotid artery, windpipe, neck muscles and veins
were all severed. At least two cutting episodes were involved. The
evidence indicated that the kitchen knife found in the woods could have
caused that wound.
At trial, the evidence showed Landrum planned the burglary. Carolyn
Brown lived in an apartment below White. Landrum, while visiting
Brown on September 17, told her that he was in trouble, needed money
and might rob White to get some money. Brown asked Landrum: “What
if you rob him and he comes in on you?” Landrum replied: “I’ll kill
him.” Landrum also said that he would use surgical gloves so they could
not take fingerprints. In his own testimony, Landrum claimed to have
told Brown he would only knock White unconscious. On September 18,
Landrum went upstairs to visit White’s apartment to “case the joint.”
Landrum told White he was looking for an apartment to rent and White
showed him through his apartment.
Grant Swackhammer had found a railroad bolt, and Grant and Landrum
kept the bolt to use later as a weapon. On September 19, Landrum, along
with Grant, visited Landrum’s girlfriend, Wendy, who had delivered their
baby the day before. At the hospital, Landrum showed Wendy some
surgical gloves and told her those gloves may make him some money.
Nos. 06-4194/4251 Landrum v. Mitchell Page 5

At trial, Landrum admitted essential details of planning and executing the
burglary, including the confrontation with White. Although he admitted
wrestling with White, he denied he cut White’s throat, claiming only to
have threatened him with the knife. Landrum did not recall telling
various juveniles that he had cut White’s throat.
To support his testimony, Landrum relied heavily on two facts. First, the
shorts he wore and clothes he was carrying when arrested on September
21 showed no traces of blood. Some witnesses testified he wore those
same clothes the night of the murder. Other testimony indicated that he
changed clothes.
Second, Landrum raised intoxication as interfering with his intent.
Landrum testified that he took some pills and drank six to eight beers that
afternoon and fourteen to eighteen beers between 4:30 and 7:30 p.m. on
September 19 at Carolyn Brown’s apartment. There, Grant and he
waited for White to leave so they could break into White’s apartment.
Several witnesses testified that Landrum appeared high or intoxicated
that afternoon and evening. Others testified that Landrum was high on
drugs after the murder.
A jury convicted Landrum in February 1986 of aggravated murder and
aggravated burglary as charged. The jury found two death penalty
specifications: (1) aggravated murder to escape detection for burglary;
and (2) being the principal offender in the aggravated murder while
committing or attempting aggravated burglary.
Following a sentencing hearing, the jury recommended death. The trial
court sentenced Landrum to death, and the court of appeals affirmed the
conviction and death penalty sentence.
State v. Landrum (“Landrum II”), 559 N.E.2d 710, 710–16 (Ohio 1990).

The Ohio Court of Appeals affirmed Landrum’s convictions and sentence on
January 12, 1989. See State v. Landrum (“Landrum I”), No. 1330, 1989 WL 4244 (Ohio
Ct. App. Jan. 12, 1989). The Ohio Supreme Court likewise affirmed the convictions and
death sentence on August 15, 1990. Landrum II, 559 N.E.2d at 716. The United States
Supreme Court denied certiorari in 1991. Landrum v. Ohio, 498 U.S. 1127 (1991).
Landrum filed a petition for post-conviction relief in the state trial court in May 1996.
The trial court denied Landrum’s petition in December 1997, and the Ohio Court of
Appeals affirmed that decision in January 1999. State v. Landrum (“Landrum III”), No.
98 CA 2401, 1999 WL 22626 (Ohio Ct. App. Jan. 11, 1999). Landrum applied to reopen
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his appeal under Ohio App. R. 26(B) in September 1998. The Ohio Court of Appeals
denied the application, finding that Landrum failed to show good cause for delaying his
application, and the Ohio Supreme Court affirmed that decision in May 1999. State v.
Landrum (“Landrum IV”), 720 N.E.2d 524 (Ohio 1999).

Landrum filed his petition for a writ of habeas corpus in May 1996, an amended
petition in May 1999, and a second amended petition in August 2000. Landrum moved
to expand the record to include an affidavit in support of his position that he did not
procedurally default his claim of ineffective assistance of appellate counsel. The
magistrate judge initially denied the motion but granted it upon reconsideration. The
magistrate judge ruled in part that Ohio App. R. 26(B) “is not presently firmly
established and regularly followed in Ohio capital cases so as to prevent merits review
of Mr. Landrum’s claims of ineffective assistance of appellate counsel presented to the
Ohio courts in his 26(B) application.” Landrum v. Anderson (“Landrum V”), 185 F.
Supp. 2d 868, 873 (S.D. Ohio 2002). The district court denied the Warden’s objections
to the magistrate judge’s report and recommendation on January 28, 2003. The court
held evidentiary hearings in September 2003 and November 2003 and directed the
parties to brief the issues. In a report and recommendation filed November 1, 2005, the
magistrate judge recommended granting Landrum a conditional writ on the basis of one
of his claims of ineffective assistance of counsel. Landrum v. Anderson (“Landrum VI”),
No. 1:96-cv-641, 2005 U.S. Dist. LEXIS 41846, at *130 (S.D. Ohio Nov. 1, 2005). The
district court adopted the magistrate judge’s report and recommendation over the
Warden’s objections. Landrum v. Anderson (“Landrum VII”), No. 1-:96-cv-641, 2006
U.S. Dist. LEXIS 27510 (S.D. Ohio Apr. 17, 2006). Landrum moved for a certificate
of appealability (“COA”) as to eight claims, and the Warden did not oppose the motion.
The magistrate judge recommended granting the COA as requested, and the district court
adopted that recommendation by order entered December 11, 2006. Landrum’s eight
claims before us are:

1. Trial counsel’s deficient performance in the trial phase prejudiced
Landrum.
2. The trial court erred when it did not grant Swackhammer immunity.
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3. The district court erred when it denied Landrum’s motion to
supplement the record with the affidavit of reconstruction expert Wayne
Hill.
4. The trial court erred in the sentencing phase when it excluded
testimony that detailed Landrum’s role in the offense.
5. The Ohio Supreme Court erred when it “reweighed” testimony that
was never admitted into evidence.
6. The trial court erred when it denied counsel’s repeated requests for a
continuance.
7. Defense counsel performed deficiently in the mitigation phase to
Landrum’s prejudice.
8. Landrum did not receive the benefit of a reasonably competent expert
in the mitigation phase.

In his appellate brief, Landrum fails to address many of the sub-claims included within
the claims certified for appeal. Accordingly, he has waived those sub-claims. See Fed.
R. App. P. 28(a)(9)(A); Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007). We
therefore address only those claims and sub-claims both certified for appeal and briefed
by Landrum, noting that Landrum combined his arguments regarding issues four and
five.

II.

In a habeas case, filed—as this one was—after the effective date of AEDPA, we
review de novo the district court’s conclusions on issues of law and on mixed questions
of law and fact, and review its factual findings for clear error. Armstrong v. Morgan,
372 F.3d 778, 781 (6th Cir. 2004). “In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also Bey v. Bagley,
500 F.3d 514, 519 (6th Cir. 2007). Issues of state law cannot form the basis for habeas
relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Estelle, 502 U.S. at 67
(applying Lewis to bar habeas review of a state court’s decision to apply a state
evidentiary rule unless the rule itself violates the federal Constitution).
Nos. 06-4194/4251 Landrum v. Mitchell Page 8

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal
court shall not grant a habeas petition with respect to any claim that was adjudicated on
the merits in the state courts unless the adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of, clearly-established federal law
as determined by the Supreme Court; or (2) was based on an unreasonable determination
of the facts in light of the evidence presented to the state courts. See 28 U.S.C.
§ 2254(d); Berghuis v. Smith, 130 S.Ct. 1382, 559 U.S. — (2010); Irick v. Bell, 565 F.3d
315, 319–320 (6th Cir. 2009). “Under the ‘contrary to’ clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412–13 (2000). Under the unreasonable application clause, a
federal habeas court may grant the writ if the state court’s application of clearly-
established federal law was objectively unreasonable. See id. at 409–11.

In analyzing whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may consider
only the holdings of the Supreme Court’s decisions at the time the relevant state court
rendered its decision. See Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003); Williams,
529 U.S. at 412. Our decisions “may be informative to the extent [they] have already
reviewed and interpreted the relevant Supreme Court case law to determine whether a
legal principle or right had been clearly established by the Supreme Court.” Hill v.
Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003). Finally, the habeas petitioner has the
burden of rebutting, by clear and convincing evidence, the presumption that the state
court’s factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo,
365 F.3d 487, 493–94 (6th Cir. 2004).

III.

In his second amended habeas petition, Landrum alleged that he was denied
effective assistance of counsel during the guilt phase of his prosecution. Although he
presented several bases for this claim to the district court, the district court held that the
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only valid basis for granting habeas relief was counsel’s ineffectiveness in failing to
seek admission of Rameal (Randy) Coffenberger’s testimony during the guilt phase.
Landrum argues that Coffenberger would have testified that Swackhammer had
confessed to him that it was actually Swackhammer who cut White’s throat. As
explained below, we conclude that Landrum procedurally defaulted this claim of
ineffective assistance of trial counsel. We also conclude that he has not shown cause for
us to excuse the default of this claim because he has also procedurally defaulted his
ineffective assistance of appellate counsel claim. Finally, we hold that the balance of his
guilt-phase ineffective assistance claims are without merit.

A.

Landrum first raised a claim of ineffective assistance of counsel in his 1996 post-
conviction petition in the trial court. He alleged generally that he was denied the
effective assistance of counsel during pretrial, the guilt phase, and the sentencing phase.
Landrum listed his trial counsel’s errors as including the failure to proffer adequately
details of the anticipated testimony of Coffenberger1 and Swackhammer and the failure
to request the state to seek immunity for Swackhammer. Landrum did not claim that his
trial counsel erred during the guilt phase by failing to attempt to introduce
Coffenberger’s testimony about Swackhammer’s admission. The post-conviction trial
court held that res judicata barred Landrum’s claims because he had new co-counsel on
direct appeal and could have raised ineffective assistance of trial counsel then. The Ohio
Court of Appeals affirmed the trial court’s decision, agreeing that res judicata barred
Landrum’s claims of ineffective assistance of counsel. Landrum III, 1999 WL 22626,
at *12. The court noted that Landrum’s case did not fall within the exception to res
judicata that applies when the same counsel represents a defendant at trial and on direct
appeal because Landrum had new co-counsel on appeal.2 Id. The Ohio Court of

1
Trial counsel sought unsuccessfully to admit the Coffenberger testimony at the sentencing phase
and made a statement to the court in the form of a proffer, outlining Coffenberger’s anticipated testimony.
2
Landrum’s trial counsel continued to represent him on direct appeal, even though he added new
counsel. As we discuss in Part III.C., we addressed this situation in Combs v. Coyle, 205 F.3d 269 (6th
Cir. 2000). Applying Combs to Landrum’s case, we do not rely on the res judicata determination of the
Ohio Court of Appeals.
Nos. 06-4194/4251 Landrum v. Mitchell Page 10

Appeals addressed the merits of some of Landrum’s claims that he received ineffective
assistance of counsel during the sentencing phase but did not address the merits of his
guilt-phase ineffective assistance of counsel claims. Id.

Landrum also raised ineffective assistance of trial counsel as an underlying claim
in his Rule 26(B) application in the Ohio Court of Appeals. Rule 26(B) requires a
defendant to seek a collateral post-conviction remedy for ineffective assistance of
appellate counsel rather than raise the issue of appellate counsel’s ineffectiveness in a
second direct appeal. Landrum alleged in his Rule 26(B) filing that appellate counsel
erred by failing to raise ineffective assistance of trial counsel on direct appeal because
of trial counsel’s errors in, inter alia, failing to seek admission of Coffenberger’s and
Swackhammer’s testimony in the guilt phase. The Ohio Court of Appeals dismissed
Landrum’s petition as untimely, concluding that Landrum did not demonstrate good
cause for his delay in filing. The court also found that the issues Landrum sought to
raise in his Rule 26(B) application had been raised previously in post-conviction
proceedings, and res judicata barred relitigation of those issues. The Ohio Supreme
Court agreed that Landrum’s application was untimely and that he had not shown good
cause for the delay. Landrum IV, 720 N.E.2d at 524–25.

The district court examined Landrum’s claims of guilt-phase ineffective
assistance of counsel and concluded that one had merit: the claim that trial counsel
should have attempted to introduce at the guilt phase Coffenberger’s testimony that
Swackhammer confessed to cutting the victim’s throat. The district court wrote: “Trial
counsel had in Coffenberger’s testimony an admission of principal offender status by an
admitted co-perpetrator which admission, if believed by the jury, would have prevented
imposition of a death sentence.”3 Landrum VI, 2005 U.S. Dist. LEXIS 41846, at *130.
The district court found that trial counsel’s belief that the testimony was excludable
hearsay constituted deficient performance because the testimony was in fact admissible
under Ohio law and there was no strategic reason not to offer the testimony. Id.

3
The district court was incorrect in believing that Landrum could not receive the death penalty
if a jury believed Swackhammer’s admission that he slit White’s throat. See infra note 4.
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Addressing prejudice, the district court wrote that although it was uncertain whether the
jury would have believed Coffenberger, a “grave doubt” whether a constitutional error
occurred that had a substantial and injurious effect or influence on the verdict led it to
grant relief. Id. The district court concluded that it was ineffective assistance of trial
counsel to fail to present Coffenberger’s testimony during the guilt phase and that
Landrum’s failure to present the claim on direct appeal was excused by ineffective
assistance of appellate counsel. Id. at *131. The district court rejected Landrum’s
additional claim that his counsel was ineffective for failing to interview potential
witnesses because it found that such testimony would have been cumulative to testimony
that was already presented at trial. Id. at *174.

B.

We first consider whether the claim on which the district court granted
relief—the failure to present Coffenberger’s testimony at the guilt phase—was
procedurally defaulted. Although Landrum failed to raise the claim on direct appeal, the
district court determined that the failure was excused by ineffective assistance of
appellate counsel. We disagree with the district court’s analysis on this point and
conclude that the failure was not excused because the ineffective assistance of appellate
counsel claim was itself defaulted. Moreover, we note that Landrum also failed to raise
the claim in his state court petition for post-conviction relief. He failed to exhaust the
claim, and no avenues remain available for him to seek relief. Because he was not
entitled to counsel in post-conviction proceedings, he cannot seek to excuse this default
by claiming ineffective assistance of counsel.

As noted, Landrum made no claim in his direct appeal relating to trial counsel’s
failure to call Coffenberger as a witness during the guilt phase. The claim was raised
only when Landrum filed his Rule 26(B) application in the Ohio Court of Appeals in
September 1998. In it Landrum alleged that trial counsel was ineffective in failing to
call Coffenberger and Swackhammer at the guilt phase and that appellate counsel was
ineffective in failing to raise the issue on direct appeal. That application was found to
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be untimely by the Ohio Court of Appeals, a finding affirmed by the Ohio Supreme
Court.

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). However, “an ineffective-assistance-of-
counsel claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In Ohio,
defendants claiming ineffective assistance of appellate counsel must apply to the Ohio
Court of Appeals for reopening of the direct appeal, as Landrum did. Ohio App. R.
26(B).

The state argues that the claim of ineffective assistance of appellate counsel is
defaulted due to Landrum’s failure to comply with the state’s procedural rule requiring
the filing of a Rule 26(B) motion within ninety days. The analysis of this issue is
governed by the four-part rule described in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986). A federal habeas court must first determine whether there is a state procedural
rule that is applicable to the petitioner’s claim and whether the petitioner failed to
comply with the state procedural rule. Second, the federal court must decide whether
the state courts actually enforced the state procedural sanction. Third, the federal court
must decide whether the state procedural default is an adequate and independent state
ground upon which the state can rely to foreclose review of the federal habeas claim.
Fourth, the habeas petitioner can excuse a procedural default by demonstrating cause for
his failure to comply with the state procedural rule and prejudice from the alleged
constitutional error. Id.; see also Seymour v. Walker, 224 F.3d 542, 555–56 (6th Cir.
2000).

Our precedents give guidance for application of the Maupin test in the Rule
26(B) context. By the time Landrum filed his Rule 26(B) motion in September 1998,
“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
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independent and adequate state procedural rule as of May 1998). Since at least 1996,
Ohio law has provided sufficient guidance on what constitutes “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). Thus, because Landrum’s Rule 26(B)
motion was filed beyond the ninety-day period, we conclude that he has procedurally
defaulted his ineffective assistance of appellate counsel claim.

Landrum’s reliance upon Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006), is
misplaced. In Franklin, we considered whether Rule 26(B) was an adequate and
independent state procedural bar and held that it was not firmly established and regularly
followed. 434 F.3d at 421. We bolstered our conclusion by describing the Ohio
Supreme Court’s “erratic” handling of untimely Rule 26(B) applications in capital cases.
Id. at 420. However, this analysis is inapplicable here for two reasons. Both turn on the
fact that Franklin’s motion was filed June 30, 1993, one day before Rule 26(B) went into
effect. First, because we concluded in Franklin 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, Franklin’s discussion of the Ohio Supreme Court’s
subsequent treatment of Rule 26(B) is thus dicta. Second, the “firmly established and
regularly followed” requirement is measured “as of the time Rule 26(B) was to be
applied.” Parker, 543 F.3d at 862. As Fautenberry and Parker emphasized, although
Rule 26(B) was not firmly established in 1993, “it had become firmly established by
1996.” Id. at 861–62 (citing Fautenberry, 515 F.3d at 641).

Landrum now argues that the state waived its procedural default defense because
it focused on Landrum’s failure to raise the claim on direct appeal. “[P]rocedural default
is normally a defense that the State is obligated to raise and preserv[e] if it is not to lose
the right to assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89 (1997) (internal
quotation marks and citations omitted) (alteration in original); see also Slagle v. Bagley,
457 F.3d 501, 514 (6th Cir. 2006) (noting that the defense of procedural default may be
Nos. 06-4194/4251 Landrum v. Mitchell Page 14

waived by failing to assert it). However, this court can consider procedural default when
it is raised for the first time on appeal. See White v. Mitchell, 431 F.3d 517, 524 (6th Cir.
2005); Sowell v. Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004).

Landrum’s waiver argument is unavailing. In its third return of the writ, the state
presented two specific arguments and one general argument that Landrum had
procedurally defaulted some of his claims. First, the state argued that Landrum
procedurally defaulted his ineffective assistance of trial counsel claims because he did
not raise them on direct appeal and that he could not rely on ineffective assistance of
appellate counsel to excuse that default because the Ohio Court of Appeals rejected his
Rule 26(B) application as untimely. Second, the state argued that Landrum procedurally
defaulted forty-three of the forty-five claims he raised in his post-conviction petition
because he did not raise them on appeal to the Ohio Court of Appeals. Third, citing
Wong v. Money, 142 F.3d 313, 321–22 (6th Cir. 1998), and Pillette v. Foltz, 824 F.2d
494, 497–98 (6th Cir. 1987), the state recited that “a constitutional claim presented to
the federal courts that does not rest on the same theory as was presented to the state
courts is procedurally defaulted.” Although the state did not argue specifically that
Landrum failed to exhaust his guilt-phase ineffective assistance of counsel claim
regarding Coffenberger’s statement, either in its return of the writ or in later pleadings,
the state raised the defense generally and in terms that apply to the claim at issue by
citing Wong and Pillette. Accordingly, we hold that the state did not waive its
procedural default defense to Landrum’s claim.

In addition to their arguments about default of the claim based on untimeliness
of the Rule 26(B) motion, the parties dispute whether Landrum raised the issue of trial
counsel’s failure to present Coffenberger’s testimony at the guilt phase in his post-
conviction petition. The Supreme Court has stated that “state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). “It is not enough that all the facts necessary to
support the federal claim were before the state courts, or that a somewhat similar state-
Nos. 06-4194/4251 Landrum v. Mitchell Page 15

law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted); see
also Wong, 142 F.3d at 321–22 (ineffective assistance of counsel claim procedurally
defaulted where petitioner’s argument in state courts relied upon different grounds than
argument on habeas appeal); Pillette, 824 F.2d at 497–98 (petitioner did not exhaust his
state remedies for all ineffective assistance of counsel claims if the state courts were
presented with only one aspect of his attorney’s performance). “[O]rdinarily a state
prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond
a petition or a brief (or a similar document) that does not alert it to the presence of a
federal claim in order to find material, such as a lower court opinion in the case, that
does so.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). When the petitioner has failed to
present the grounds to the state courts and has exhausted his claims because no state
remedy remains available, his grounds are procedurally defaulted. See Gray v.
Netherland, 518 U.S. 152, 161–62 (1996); O’Sullivan, 526 U.S. at 848.

Although Landrum did raise an ineffective assistance of trial counsel claim in his
post-conviction petition, he did not include the allegation about introducing
Coffenberger’s testimony in the guilt phase. In this court, Landrum argues that his
general allegation of ineffective assistance of counsel, along with affidavits from his trial
counsel and another attorney that were attached to his post-conviction petition, sufficed
to have presented the claim to the post-conviction trial court. Landrum’s trial counsel’s
affidavit recited that additional time was needed to develop background information
regarding Swackhammer’s relative culpability. In the other affidavit, an attorney not
involved in the trial opined that Landrum’s trial counsel was deficient for failing to
present Coffenberger’s testimony in the trial phase. Reference to Coffenberger in
Landrum’s post-conviction petition itself can only be fairly read as a reference to the
penalty phase of the trial, not the guilt phase. The affidavits on which Landrum relies did
not present the factual basis for the ineffective assistance claim raised here because no
corresponding claim was made in the state post-conviction petition and, thus, the state
court would have had to read beyond the petition to discover it. See Baldwin, 541 U.S.
at 32; Pillette, 824 F.2d at 497–98.
Nos. 06-4194/4251 Landrum v. Mitchell Page 16

No state court remedies remain for Landrum to bring an ineffective assistance
of trial counsel claim. Ohio law permits second, successive, or untimely petitions only
under limited circumstances. Ohio Rev. Code § 2953.23. Successive post-conviction
relief petitions are barred unless the petitioner was unavoidably prevented from
discovering the facts on which he later seeks to rely, or the United States Supreme Court
has recognized a new right that applies retroactively to the petitioner. Ohio Rev. Code
§ 2953.23(A)(1)(a). In addition, the prisoner must show that, but for the error, no
reasonable factfinder would have found the petitioner guilty, or, in a death penalty case,
eligible for the death sentence. Ohio Rev. Code § 2953.23(A)(1)(b); Broom v. Mitchell,
441 F.3d 392, 400 (6th Cir. 2006). The facts underlying Landrum’s ineffective
assistance of counsel claim were available to him when he filed his first post-conviction
petition and the right to effective assistance of counsel is not one that is newly
recognized by the Supreme Court. Moreover, Ohio does not require a defendant to be
the principal offender to receive a death specification. See Ohio v. Herring, 762 N.E.2d
940, 949–50 (Ohio 2002). Therefore, the statement does not cast doubt on his
involvement in the murder—a point the district court did not acknowledge—and
Landrum is unable to demonstrate that no reasonable factfinder would have found him
eligible for the death penalty if the statement was admitted.4

Because Landrum failed to exhaust this claim and no state court remedies remain,
he must show cause to excuse his failure to present the claims, as well as actual
prejudice to his defense at trial or on appeal. See Coleman v. Thompson, 501 U.S. 722,
750 (1991). Landrum cannot rely on ineffective assistance of post-conviction counsel
as cause because there is no constitutional right to an attorney in post-conviction
proceedings. See id. at 752–53; Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Further, Landrum cannot excuse his procedural default by showing a fundamental
miscarriage of justice because he has not submitted new evidence showing that a

4
Even if the jury believed that Landrum did not personally slit the victim’s throat, Landrum would
still likely have been convicted of aggravated murder and aggravated burglary, either as an aider and
abettor or based on the felony-murder rule. See Ohio Rev. Code. §§ 2923.03, 2903.01(B). The district
court was simply incorrect in its observation that Swackhammer’s admission, if believed, would have
prevented Landrum from being sentenced to death.
Nos. 06-4194/4251 Landrum v. Mitchell Page 17

constitutional violation has probably resulted in a conviction of one who is actually
innocent. See Murray, 477 U.S. at 495–96.

In sum, we hold that Landrum procedurally defaulted his claim that his trial
counsel was constitutionally ineffective for failing to introduce Coffenberger’s testimony
during the guilt phase because he failed to raise this claim on direct appeal and in his
post-conviction petition. Furthermore, we hold that Landrum is unable to excuse this
default because he failed to comply with the firmly established and regularly followed
timing requirements of Rule 26(B) in bringing his ineffective assistance of appellate
counsel claim and because ineffective assistance of counsel is not a basis for excusing
the post-conviction proceeding default. Thus, we reverse the decision of the district court
granting Landrum a conditional writ of habeas corpus on this claim.

C.

In the rest of his guilt-phase ineffective assistance of counsel claims, Landrum
argues that counsel failed to conduct a proper investigation and interview potential
witnesses, failed to present important lay testimony, and failed to present needed expert
testimony. As an initial matter, the procedural default analysis for Landrum’s remaining
guilt-phase ineffective assistance of counsel claims is complicated by overlapping
counsel between Landrum’s trial and appeals and the details of Ohio’s post-conviction
law. Under Ohio law, when the same attorney represents a defendant at trial and on
direct appeal, claims of ineffective assistance of trial counsel generally are raised in a
post-conviction action and the claims are not barred by res judicata. See Gulertekin v.
Tinnelman-Cooper, 340 F.3d 415, 425 n.5 (6th Cir. 2003) (citing State v. Cole, 443
N.E.2d 169, 171 n.1 (Ohio 1982)). When a defendant is represented by new counsel on
direct appeal, res judicata bars the defendant from raising the issue of ineffective
assistance of trial counsel in later proceedings if the issue could fairly have been
determined on direct appeal without resorting to evidence outside the record. See
Monzo, 281 F.3d at 576–77 (citing Cole, 443 N.E.2d at 170). Ohio courts will consider
an ineffective assistance of counsel claim based on evidence outside the record in a post-
Nos. 06-4194/4251 Landrum v. Mitchell Page 18

conviction petition. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); State v. Smith,
477 N.E.2d 1128, 1131 n.1 (Ohio 1985); Cole, 443 N.E.2d at 170–71.

Landrum’s trial counsel continued to represent him on direct appeal, but new co-
counsel was also appointed. The Ohio Court of Appeals held that Landrum’s new
counsel could have raised claims of ineffective assistance of trial counsel on direct
appeal so res judicata barred him from raising the claims in a post-conviction petition.
The court cited Cole, State v. Lentz, 639 N.E.2d 784 (Ohio 1994), State v. Zuern, Nos.
C-900481, C-910229, 1991 WL 256497 (Ohio Ct. App. Dec. 4, 1991), and two other
unpublished decisions from 1998 and 1992 in support of its decision. Id. The court also
noted a contrary decision, State v. Evans, No. L-97-1134, 1998 WL 351884 (Ohio Ct.
App. June 19, 1998). See Landrum III, 1999 WL 22626, at *11–12. The Ohio Supreme
Court has since rejected the application of res judicata to defendants in Landrum’s
situation. See State v. Hutton, 797 N.E.2d 948, 957 (Ohio 2003). Thus, under current
Ohio law, Landrum proceeded properly by raising his ineffective assistance of counsel
claims in his post-conviction petition rather than on direct appeal.

We addressed the overlapping trial and appellate counsel issue in Combs v.
Coyle, 205 F.3d 269 (6th Cir. 2000). In Combs, the defendant was represented by two
attorneys at trial. One of these continued his representation on direct appeal and was
joined by new co-counsel. The Ohio Court of Appeals dismissed the ineffective
assistance of counsel claims Combs brought in his post-conviction petition under the res
judicata doctrine because the court held that he could have raised them on direct appeal.
When Combs raised these claims in his habeas petition, the state argued that he had
defaulted them. We held that, because Zuern was not decided until after the state court
of appeals had ruled on Combs’s direct appeal, and Cole did not address the situation in
which trial counsel continues on appeal with the addition of a new co-counsel, we were
“unable to conclude that a firmly established state procedural rule existed.” Combs, 205
F.3d at 277. Accordingly, we held that Combs’s claims were preserved for review. Id.

Landrum was convicted in 1986 and completed his direct appeals in 1990. Zuern
was decided in December 1991. As in Combs, it does not appear that a firmly
Nos. 06-4194/4251 Landrum v. Mitchell Page 19

established state procedural rule existed when Landrum filed his direct appeal. Thus,
we do not rely upon the Ohio Court of Appeals’ post-conviction res judicata ruling,
which held that Landrum procedurally defaulted his ineffective assistance of trial
counsel claims by not raising them on direct appeal. See Seymour, 224 F.3d at 555–56;
Maupin, 785 F.2d at 138. Under current Ohio law, Landrum properly waited until he
filed his post-conviction petition to raise claims of ineffective assistance of trial counsel
because one of the attorneys who represented him at trial also represented him on appeal.
Accordingly, the ineffective assistance of counsel claims Landrum raised in his post-
conviction petition are preserved for habeas review. To reiterate our holding above, this
does not resuscitate Landrum’s claim about Coffenberger’s testimony because, unlike
the rest of his guilt-phase ineffective assistance claims, Landrum never presented the
state courts with that aspect of his attorney’s performance and his failure to do so is not
excusable.

Landrum’s remaining guilt-phase ineffective assistance of counsel claims are
without merit. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that: (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, “[t]he
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.

The district court properly held that Landrum did not allege or show prejudice
from his counsel’s alleged lapses. As indicated above, Landrum argues that counsel
failed to conduct a proper investigation or interview potential witnesses, failed to present
important lay testimony, and failed to present needed expert testimony. The magistrate
judge reproduced Landrum’s list of potential witnesses and their expected testimony in
the report and recommendation to deny these claims. The lay witnesses would have
testified about Swackhammer’s preparations for burglarizing the victim’s home.
Nos. 06-4194/4251 Landrum v. Mitchell Page 20

Testimony was in fact introduced at trial that Swackhammer talked about burglarizing
the victim’s home beforehand, however, so more testimony along those lines would have
had little impact. The police received an anonymous note suggesting that Swackhammer
confessed to his girlfriend Louise Hughes. Landrum faults his trial counsel for not
following up on this lead but has not presented any evidence that Swackhammer actually
made such a confession.

Landrum also alleged that his counsel failed to obtain a pathologist to review the
autopsy and findings of the coroner. He argues that such an expert could have
determined whether the physical evidence was consistent with Landrum’s account of the
murder. At trial, Landrum’s counsel cross-examined the state’s pathologist to establish
that the victim’s slashed throat would have been expected to spurt blood, cross-examined
a police officer about the blood he saw on the walls, and questioned other witnesses to
suggest that there was no blood found on the shorts Landrum wore on the day of the
murder. Using an expert witness to review the autopsy would not likely have
strengthened these points or changed the outcome of the case.

Landrum argues that his trial counsel should have established that the witnesses
who testified that he confessed were runaways who stood to gain favorable treatment
from the juvenile court if they testified as the prosecutor wanted. Landrum does not
indicate what specific charges the juveniles were facing, if any, or what favorable
treatment they might expect. In any event, the witnesses’ ages were brought out at trial,
and some of them mentioned that they were runaways. Given the vagueness of these
allegations, it is speculative at best that the prospect of unspecified favorable treatment
would have swayed the juveniles to risk prosecution by giving false testimony. Landrum
has not shown that his counsel’s alleged lapses in this area prejudiced him.

Because he cannot show prejudice, Landrum has not shown that any of his trial
counsel’s other alleged guilt-phase errors deprived him of a fair trial. See Strickland,
466 U.S. at 687; Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001).
Nos. 06-4194/4251 Landrum v. Mitchell Page 21

IV.

Landrum asserted that the trial court denied him the rights to compulsory process,
a fair trial, and due process under the Sixth and Fourteenth Amendments when it refused
to grant immunity to Swackhammer and allowed Swackhammer to avoid testifying by
invoking his Fifth Amendment privilege against self-incrimination. Because the Ohio
courts denied Landrum relief on this claim under state law and there is no clearly
established federal constitutional right to compel the immunization of a witness by a trial
court, Landrum is not entitled to relief on this claim.

A.

Landrum filed a motion in the trial court to grant Swackhammer immunity from
prosecution. Swackhammer had been adjudicated delinquent in juvenile court for his
role in the offenses but had not completed the appeal process. The trial court denied
Landrum’s motion, holding that Landrum had the right to subpoena Swackhammer but
that the court could not grant Swackhammer immunity. At trial, the prosecution called
Swackhammer as a witness, but he asserted his Fifth Amendment privilege. He did not
respond to either prosecution or defense questioning.

In affirming the trial court on direct appeal, the Ohio Court of Appeals cited an
Ohio Supreme Court decision, State ex. rel. Leis v. Outcalt, 438 N.E.2d 443, 445 (Ohio
1982), for the principle that, under Ohio law, immunity may only be granted by the trial
court upon request of the prosecution. Landrum I, 1989 WL 4244, at *14. The Ohio
Supreme Court also denied Landrum relief, holding that, under Ohio law, trial courts did
not have the authority to immunize defense witnesses. Landrum II, 559 N.E.2d at 725.
The court observed that Landrum had not established that Swackhammer’s testimony
would have helped him, that Landrum did not request the prosecutor to seek statutory
immunity under Ohio Rev. Code § 2945.44, and that Landrum had not “suggested
prosecutorial misconduct in immunizing some witnesses but not others for a nefarious
purpose.” Id. at 726.
Nos. 06-4194/4251 Landrum v. Mitchell Page 22

The district court held that the Ohio Supreme Court’s resolution of Landrum’s
claim was a state law question and, thus, not reviewable in federal court on habeas. The
court went on to conclude that Landrum’s claim was without merit under Ohio law
because Landrum did not request that the prosecutor grant Swackhammer immunity,
Landrum did not allege prosecutorial misconduct, and Landrum did not establish that
Swackhammer’s testimony would have been favorable to his defense. Landrum VI, 2005
U.S. Dist. LEXIS 41846, at *158–59.

B.

“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle, 502
U.S. at 68. Under well-established precedent, “[f]ederal habeas corpus relief does not
lie for errors of state law.” Id. at 67; see also Lewis, 497 U.S. at 780 (1990).

The district court properly denied this claim as limited to state law, and under
Estelle, we may not overturn a state court ruling on state law unless the law itself
violates the federal Constitution. We have rejected repeatedly the notion that there is a
federal constitutional right to compel a federal prosecutor to immunize a defense
witness. See, e.g., United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991)
(“[F]ederal courts do not have the inherent power to immunize witnesses whose
testimony is essential to an effective defense.”); United States v. Pennell, 737 F.2d 521,
527 (6th Cir. 1984); United States v. Lenz, 616 F.2d 960, 962 (6th Cir. 1980). Nor has
such a claim of a federal constitutional violation succeeded in habeas proceedings. See,
e.g., Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir. 1983). Indeed, we have even
declined to recognize an exception to this rule for circumstances in which the
government’s failure to immunize a witness constituted prosecutorial misconduct.
United States v. Medina, 992 F.2d 573, 586 (6th Cir. 1993) (discussing cases from the
Seventh, Ninth, and District of Columbia Circuits). More importantly, whatever the case
law from the circuit courts may say, Landrum has not shown that a right to have
witnesses immunized by the trial court was “clearly established” by Supreme Court
precedent at the time of the relevant state court decisions. 28 U.S.C. § 2254(d); Smith,
Nos. 06-4194/4251 Landrum v. Mitchell Page 23

130 S.Ct. at 1388. None of the Supreme Court cases he cites dealt with a trial court’s
purported constitutional duty to immunize witnesses.

Because the Ohio courts denied Landrum relief on this claim under state law and
there is no federal constitutional right to compel a witness’s immunization, Landrum is
not entitled to relief on this claim.

V.

Landrum challenged the district court’s denial of his motion to supplement the
record. Landrum moved the district court for an evidentiary hearing in order to present
the testimony of several witnesses, including homicide reconstruction expert Wayne
Hill. The magistrate judge denied the motion with respect to Hill. The district court
upheld that decision. Landrum later moved to expand the record under Rule 7 of the
Rules Governing § 2254 Cases to include an affidavit by Hill. The magistrate judge
denied the motion because Landrum had not presented Hill’s testimony to the state
courts and because Hill’s affidavit did not demonstrate that he was competent to testify
about the subjects on which he was offered as an expert under the standards adopted in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

“This court reviews a district court’s decision to expand the record under Rule
7 for an abuse of discretion.” Levine v. Torvik, 986 F.2d 1506, 1517 (6th Cir. 1993),
abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995); see also
Apanovitch v. Houk, 466 F.3d 460, 478–79 (6th Cir. 2006). Under AEDPA, a prisoner
may introduce new evidence in support of a claim in the district court “only if [the
prisoner] was not at fault in failing to develop that evidence in state court, or (if he was
at fault) if the conditions prescribed in § 2254(e)(2) were met.” Holland v. Jackson,
542 U.S. 649, 652–53 (2004) (citing Williams, 529 U.S. at 431–37). A prisoner is at
fault in failing to develop the evidence if there is a “lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432.
The required diligence is “a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court.” Id. at 435.
Nos. 06-4194/4251 Landrum v. Mitchell Page 24

We hold that the district court did not abuse its discretion in denying Landrum’s
motion to expand the record because he has not shown that the factual predicate of Hill’s
affidavit could not have been discovered previously through the exercise of due
diligence. See 28 U.S.C. § 2254(e)(2); Holland, 542 U.S. at 652–53. Landrum argued
that Hill’s affidavit was relevant to his claims that his trial counsel was ineffective for
failing to request the assistance of necessary experts and that the trial court should have
appointed a pathologist to assist his trial counsel. In his November 13, 2000, affidavit,
Hill described himself as an expert in homicide events reconstruction. He reviewed
Landrum’s trial testimony, Swackhammer’s December 22, 1985, statement to the police,
and the physical evidence presented at trial. Hill said that Swackhammer’s account did
not make sense because Swackhammer said he struck the victim in the head several
times but passed out when he saw Landrum cut the victim’s throat. Hill also stated that
the physical evidence contradicted Swackhammer’s statement that Landrum cut the
victim’s throat immediately after the victim fell to the ground. Hill concluded that the
physical evidence was consistent with Landrum’s testimony.

Hill’s opinion was based on a review of the evidence presented at trial and
Swackhammer’s statement to the police. These materials were available to Landrum
when he filed his post-conviction petition in state court in 1996. At that time, Landrum
submitted affidavits and other materials from many witnesses but none from Hill or any
other expert witness on this issue and none claiming that the physical evidence tended
to prove that Landrum did not kill the victim. Landrum argues that he exercised
diligence because he requested discovery and an evidentiary hearing in state court and
blames the prosecution for opposing discovery. However, he refers to general requests,
but not to any request relating specifically to the need for an expert in homicide
reconstruction. Accordingly, Landrum’s requests for discovery in state court did not
amount to due diligence in developing the factual basis of the claim he now advances.

Moreover, Hill’s affidavit falls short of establishing by clear and convincing
evidence that, absent Landrum’s trial counsel’s failure to have an expert witness testify
as to the manner of the victim’s death, no reasonable factfinder would have found
Nos. 06-4194/4251 Landrum v. Mitchell Page 25

Landrum guilty. See 28 U.S.C. § 2254(e)(2)(B). Swackhammer did not testify at trial,
nor was his statement entered into evidence. Thus, whether or not his version of how
the victim was killed made sense was not part of the jury’s assessment. The jury heard
Landrum’s account and that of the state’s pathologist. Landrum’s trial counsel brought
out the fact that little or no blood was found on Landrum’s clothes, in spite of the
pathologist’s testimony that the victim’s fatal injuries would have spurted blood.
Landrum and his trial counsel presented a version of events that identified
Swackhammer as the principal offender, but the jury apparently was not swayed. Hill’s
testimony would not have made a difference. Thus, we affirm the district court’s
decision on this claim.

VI.

Landrum asserted that the trial court violated his constitutional rights when it
excluded from the mitigation phase evidence pertinent to the circumstances of the
offense. Landrum offered testimony by Coffenberger, who would have said that
Swackhammer told him that he, and not Landrum, cut the victim’s throat. Landrum also
complained that the trial court excluded evidence that Swackhammer had a violent
nature and routinely carried a knife. Landrum also alleged that the state supreme court
usurped the role of the jury when it reweighed the evidence to cure the trial court’s error
of excluding relevant mitigating testimony. We consider these issues together and affirm
the district court because the Ohio Supreme Court’s decision to consider in its
reweighing analysis mitigating evidence that was excluded at trial was not contrary to
Supreme Court precedent.

A.

During the mitigation hearing, Landrum’s counsel announced his intention to call
Coffenberger as a witness. According to the defense, Coffenberger was prepared to
testify that he spoke with Swackhammer the day after the murder and Swackhammer
told him that he cut the victim’s throat. Counsel wished to counter the state’s “principal
offender” aggravating factor and support Landrum’s “participation in the offense”
mitigating factor. See Ohio Rev. Code §§ 2929.04(A)(7), (B)(6). The prosecution
Nos. 06-4194/4251 Landrum v. Mitchell Page 26

argued that Coffenberger’s testimony was inadmissible hearsay and was not
corroborated. Ohio R. Evid. 804(b)(3). The government noted that, in earlier statements
to the police, Coffenberger denied seeing either Swackhammer or Landrum after the
killing. The state also referred to Coffenberger’s past felony convictions. The state trial
court found that, although the testimony was relevant, it was inadmissible as hearsay.

The Ohio Supreme Court found fault with this ruling but reweighed the evidence
and held that Landrum’s sentence was appropriate despite the error. The court found
that Swackhammer was unavailable as a witness because he had invoked his Fifth
Amendment rights, that the statement was a declaration against penal interest because
it admitted his guilt as a principal to the murder, and that Landrum’s testimony and the
lack of blood on Landrum’s clothing corroborated Swackhammer’s statement. Landrum
II, 559 N.E.2d at 720. The court also noted that the rules of evidence do not apply
strictly in sentencing proceedings. Id. at 721. Thus, it held Coffenberger’s testimony
admissible. The court then considered Coffenberger’s proferred testimony as part of its
independent assessment and weighing of the evidence. Id. (citing Ohio Rev. Code
§ 2929.05(A), and Clemons v. Mississippi, 494 U.S. 738 (1990)). The court found that
Landrum was a principal offender in the aggravated murder, relying on testimony that
Landrum planned the burglary, surveilled the victim’s apartment, and told a witness that
he would kill the victim if he returned during the burglary. Id. The court further found
that Landrum signaled Swackhammer to hit the victim, wrestled with the victim, told
Swackhammer to bring a knife, and cut the victim’s throat. Id. at 730. The court also
held that the fact that Swackhammer regularly carried a knife was before the jury and
that Landrum made no proffer and preserved no error as to Swackhammer’s allegedly
violent character. Id. at 721.

The district court applied harmless error analysis and held that the failure to
admit Swackhammer’s statement by way of Coffenberger’s testimony at the mitigation
phase did not have a substantial and injurious effect on the verdict at that stage of the
case. Landrum VI, 2005 U.S. Dist. LEXIS 41846, at *153–54. It noted that by the time
Landrum offered this evidence at sentencing, the jury had already found him to be a
Nos. 06-4194/4251 Landrum v. Mitchell Page 27

principal offender beyond a reasonable doubt. Id. at *152. Moreover, the district court
relied upon the reasoning of the Ohio Supreme Court in its reweighing analysis. Finally,
the district court found that Landrum’s counsel was able to elicit testimony about the
type of knife Swackhammer carried. Id. at *154–55.

B.

The Supreme Court has held that juries must be permitted to consider all relevant
mitigating evidence in a capital case. Mills v. Maryland, 486 U.S. 367, 374 (1988);
Eddings v. Oklahoma, 455 U.S. 104, 110–12 (1982); Lockett v. Ohio, 438 U.S. 586, 604
(1978). In Clemons, a state appellate court affirmed the imposition of a death sentence
after reweighing the aggravating and mitigating factors and eliminating an aggravating
factor improperly introduced to and considered by the jury. 494 U.S. at 742–44. The
Supreme Court found no constitutional error in this procedure and held that the
“[f]ederal Constitution does not prevent a state appellate court from upholding a death
sentence that is based in part on an invalid or improperly defined aggravating
circumstance either by reweighing of the aggravating and mitigating evidence or by
harmless-error review.” Id. at 741.

“[U]nder Ohio law, the appellate courts are not merely allowed but required to
‘independently weigh’ the aggravating circumstances versus the mitigating factors.”
Cooey v. Coyle, 289 F.3d 882, 908 (6th Cir. 2002) (emphasis omitted). Applying
Clemons, we have held that reweighing is appropriate to cure the trial court’s failure to
consider a mitigating factor. See Baston v. Bagley, 420 F.3d 632, 638 (6th Cir. 2005).
We found that “there is no reason that an appellate court could properly reweigh after
removing an aggravating factor from consideration, but could not do so after adding an
additional mitigating factor.” Id. In light of Clemons and Baston, the Ohio Supreme
Court’s reweighing of the mitigation evidence cured any possible error on the part of the
trial court and its decision was neither contrary to nor involved an unreasonable
application of governing federal law. See Williams, 529 U.S. at 412–13. Although
Coffenberger’s statement was excluded from the trial record, the Ohio Supreme Court
considered Landrum’s proffer of its contents as if it were in evidence, thus effectively
Nos. 06-4194/4251 Landrum v. Mitchell Page 28

giving Landrum the benefit of additional mitigation testimony. Landrum II, 559 N.E.2d
at 730. Although the Ohio Supreme Court did not rule for Landrum ultimately, its
decision to consider Coffenberger’s previously excluded statement in its reweighing
analysis was to Landrum’s advantage. Under Clemons and Baston, this procedure was
not contrary to Supreme Court precedent and, accordingly, we affirm, albeit on different
grounds.

VII.

Landrum alleged that the trial court violated his constitutional rights by denying
his trial counsel’s repeated requests for a continuance of the trial to complete
investigations and to prepare guilt-phase and penalty-phase defenses. Because the trial
court’s decision to deny a continuance was reasoned and not arbitrary, and Landrum is
unable to show that he suffered actual prejudice from the trial court’s decision, we affirm
the district court’s decision.

A.

On direct appeal, the Ohio Supreme Court found that Landrum’s requests for
delay arose from defense counsel’s “tactical desire to devote their efforts to extensive
pretrial motions and to allow the state public defender’s investigators to interview
witnesses. Denial of a continuance requested pursuant to counsel’s tactical design is
permissible.” Landrum II, 559 N.E.2d at 721. The court observed that trial counsel had
four full months to prepare for trial and over five months to prepare for sentencing, that
counsel investigated numerous leads and abandoned some, and that counsel called
numerous witnesses at sentencing. “The record demonstrates from the inception a
zealous, earnest, intelligent and dedicated defense effort. Under these circumstances,
the trial judge did not abuse his discretion by denying a continuance.” Id. at 722.
Landrum renewed this claim in his post-conviction petition, which the trial court held
to be barred by res judicata. Affirming this decision, the Ohio Court of Appeals cited
the Ohio Supreme Court’s analysis and held that the new evidence Landrum submitted
was cumulative and insufficient to demonstrate a constitutional violation. Landrum III,
1999 WL 22626, at *6. In habeas proceedings, the district court held that the state
Nos. 06-4194/4251 Landrum v. Mitchell Page 29

courts’ resolution of the claim was consistent with federal law, finding that Landrum
failed to show prejudice, that he was able to present extensive mitigation evidence, and
that the evidence was cumulative. Landrum VI, 2005 U.S. Dist. LEXIS 41846, at *174.

B.

A trial court’s decision to grant or deny a continuance is a matter of discretion.
Ungar v. Sarafite, 376 U.S. 575, 589 (1964); Bennett v. Scroggy, 793 F.2d 772, 774–75
(6th Cir. 1986). As we held in Powell v. Collins, “[a]bsent proof of a violation of a
specific constitutional protection, a habeas petitioner must show that a trial error was so
egregious as to deprive him of a fundamentally fair adjudication, thus violating
constitutional principles of due process.” 332 F.3d 376, 396 (6th Cir. 2003) (citing
Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988)). The denial of a continuance
constitutes a constitutional violation only when there is “an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable request for delay’. . . .”
Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (quoting Ungar, 376 U.S. at 589)). As
Morris and Ungar indicate, the denial of a continuance will rarely give rise to a
constitutional violation and “[t]he circumstances of a particular case determine whether
the denial of a continuance is so arbitrary as to violate due process.” Burton v. Renico,
391 F.3d 764, 773 (6th Cir. 2004) (citing Ungar, 376 U.S. at 589). In addition, “[t]o
demonstrate reversible error, the defendant must show that the denial resulted in actual
prejudice to his defense.” United States v. King, 127 F.3d 483, 487 (6th Cir. 1997)
(internal quotation marks and citation omitted). “Actual prejudice may be demonstrated
by showing that additional time would have made relevant witnesses available or
otherwise benefited the defense.” Powell, 332 F.3d at 396.

The relevant factors in determining whether a continuance was properly denied
include: (1) the length of the requested delay; (2) whether other continuances had been
requested and granted; (3) whether the delay was for legitimate reasons; (4) the
inconvenience to the parties, witnesses, counsel, and the court; (5) whether the defendant
contributed to the circumstances giving rise to the request; (6) whether denying the
Nos. 06-4194/4251 Landrum v. Mitchell Page 30

continuance resulted in prejudice to the defendant; and (7) the complexity of the case.
See id. (citing United States v. Burton, 584 F.2d 485, 490–91 (D.C. Cir. 1978)).

We hold that the Ohio Supreme Court’s decision was neither contrary to nor an
unreasonable application of clearly established federal law. Landrum was indicted in
September 1985 and the trial court set a trial date of December 16, 1985. On November
19, 1985, Landrum’s counsel moved for a continuance and the court rescheduled the trial
for February 10, 1986. The court denied subsequent pre-trial motions for delay and
Landrum was convicted on February 21, 1986. Landrum II, 559 N.E.2d at 721. The
penalty phase began on March 17, 1986, after the trial court granted Landrum an
additional one-week continuance. Although capital cases are complex and there is no
evidence in the record that Landrum requested delays for an illegitimate reason, the trial
court’s decision to deny another continuance in consideration of the convenience of the
parties, counsel, and the court after granting Landrum continuances before each phase
of the trial was not “unreasoning and arbitrary.” Morris, 461 U.S. at 11–12. Moreover,
Landrum has not shown that he was prejudiced by the trial court’s case management.
For example, Landrum claims that the trial court’s refusal to continue the trial deprived
him of Coffenberger’s testimony, but the record indicates that Landrum’s counsel did
not introduce Coffenberger’s testimony in the guilt phase because they thought it was
inadmissible hearsay, not because they had insufficient time to investigate and prepare
the witness. Landrum has identified no evidence relevant to the guilt phase that more
time would have permitted him to discover. See Powell, 332 F.3d at 396.

With respect to the mitigation phase, Landrum did point to some new evidence
concerning his youth. The clinical psychologist he presented in post-conviction
proceedings painted him in a more sympathetic light but that expert relied largely on the
same information available to trial counsel. Trial counsel had considered but rejected
using two other experts in the mitigation phase on this issue. Any deficiencies in the
mitigation phase were the result of counsel’s strategic choices and not the trial court’s
refusal to delay the trial. Thus, the district court properly denied this claim.
Nos. 06-4194/4251 Landrum v. Mitchell Page 31

VIII.

Landrum alleged that he was denied the right to the effective assistance of
counsel during the mitigation phase of his trial. He argues that his counsel: failed to
provide information and leads to the mitigation investigators; failed to collect records
pertaining to his education, mental health, family history, and development; failed to
present testimony about or records from his medical treatment, psychological treatment,
institutional functioning, and educational experiences; failed to seek the assistance of
and present the testimony of a psychologist or psychiatrist; failed to seek the assistance
of an expert on substance abuse; failed to ensure that a complete psychosocial history
was prepared and presented to the necessary experts; and admitted to the jury in closing
argument, “I don’t know, I’m not a psychologist, I’m just trying to piece together what
you all heard.”

A.

In his post-conviction petition, Landrum attached affidavits from mitigation
specialists, a clinical psychologist, attorneys, jurors, Coffenberger, and himself. The
trial court denied the petition without an evidentiary hearing. It concluded that res
judicata barred this claim because Landrum had new co-counsel on appeal and the
affidavits were cumulative. The Ohio Court of Appeals affirmed, holding that res
judicata barred claims that did not rely on evidence outside the record even when trial
counsel assisted the new co-counsel on appeal. Landrum III, 1999 WL 22626, at *12.
The appeals court went on to hold that the new materials concerning Landrum’s social
history and substance abuse were insufficient grounds for relief because they were
merely cumulative to the evidence presented at the mitigation phase. Id. at *13. The
court noted that trial counsel’s decision to use psychiatric testimony, but not
underdeveloped evidence of Landrum’s drug and alcohol abuse, constituted sound trial
strategy. Id. In his Rule 26(B) application in September 1998, Landrum alleged that his
appellate counsel was ineffective for failing to raise the ineffective assistance of trial
counsel at the mitigation phase. As described above, the Ohio Court of Appeals held
that Landrum had not shown good cause for delaying this application to reopen his direct
Nos. 06-4194/4251 Landrum v. Mitchell Page 32

appeal. Landrum IV, 720 N.E. 2d at 525. In federal proceedings, the district court
concluded that counsel’s performance did not fall below an objective standard of
reasonableness. Landrum VI, 2005 U.S. Dist. LEXIS 41846, at *99–101.

B.

At the outset, we note that under Hutton, 797 N.E.2d at 957, and Combs,
205 F.3d at 277, this claim is not procedurally defaulted because Landrum was not
obligated to raise ineffective assistance of counsel on direct appeal when his trial
attorney assisted in the appeal.

Claims of ineffective assistance of counsel at the penalty phase require us to
determine whether counsel reasonably investigated the defendant’s background and
presented mitigating evidence to the jury. Wiggins v. Smith, 539 U.S. 510, 521–22
(2003). An attorney “has a duty to investigate the circumstances of [his client’s] case
and to explore all avenues relevant to the merits of the case and the penalty in the event
of a conviction,” and “[i]nformation concerning the defendant’s background, education,
employment record, mental and emotional stability, family relationships, and the like,
will be relevant, as will mitigating circumstances surrounding the commission of the
offense itself. Investigation is essential to fulfillment of these functions.” Powell,
332 F.3d at 399 (citations and emphasis omitted); see also Hamblin v. Mitchell, 354 F.3d
482, 486–88 (6th Cir. 2003) (using American Bar Association standards to define
prevailing professional norms). To assess the potential prejudice to a defendant at
sentencing, the reviewing court must reweigh the evidence in aggravation against the
total available mitigating evidence, adduced at trial and in post-conviction proceedings,
Wiggins, 539 U.S. at 536, to determine whether there is a “reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death,” Strickland, 466 U.S. at 695. The
petitioner must present new evidence that differs both in strength and subject matter
from the evidence actually presented at sentencing, not just cumulative mitigation
evidence. See Broom, 441 F.3d at 410; Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.
2005). Thus, we must review the mitigation evidence presented at trial and in the post-
Nos. 06-4194/4251 Landrum v. Mitchell Page 33

conviction petition to determine whether the latter differed in strength and subject
matter, and, if so, whether Landrum was prejudiced by its absence.

During the mitigation phase, counsel presented numerous witnesses. Landrum’s
family members, two of his friends, two former girlfriends, and the pastor of his church
testified. Landrum’s mother stated that he started to drink alcohol and take drugs in
ninth grade, that he overdosed on drugs when he was sixteen, and that he was not
violent. On cross-examination, she revealed that Landrum once stole a car after being
sent to reform school. His step-father testified that Landrum’s behavior changed after
the overdose and that court hearings, counseling, and confinement could not control his
behavior. Landrum’s other relatives described him as easygoing and none remembered
his being violent. They said that he drank heavily and used drugs as he grew older. One
of Landrum’s friends said that Landrum’s family was strict, that Landrum’s step-father
whipped him, and that Landrum was scared of his step-father. Landrum’s former
girlfriends testified that he drank alcohol and used marijuana and was hard to get along
with when drunk or high. Testifying on his own behalf, Landrum said that he was very
sorry for what had happened and asked the jury to spare his life. On cross-examination,
he testified that he did not remember telling anyone that he killed the victim and asked
for the forgiveness of the victim’s family.

In his closing argument, defense counsel argued that there was reason to doubt
that Landrum was the principal offender. He reminded the jury that although the
victim’s blood spurted from his injury, no blood was found on Landrum’s clothes. He
next said that because Landrum took drugs, he did not remember what he said to other
people. Counsel also pointed to Swackhammer’s behavior, size, and habit of carrying
a knife to persuade the jury to doubt Landrum’s degree of participation in the murder.
Counsel appealed to the jury for mercy, stating that Landrum’s history and character
revealed a defect somewhere along the line and that Landrum had changed, was
genuinely remorseful, and wanted to help others avoid his fate. Landrum’s attorney then
pointed to the statutory mitigating factors in Landrum’s favor, including his youth, his
lack of a substantial criminal history, and his arguably moderate degree of participation
Nos. 06-4194/4251 Landrum v. Mitchell Page 34

in the murder. He argued that Landrum was not violent except when intoxicated by
drugs or alcohol. He contended that Landrum was excessively praised as a child and
brought up to think that he could do no wrong. Counsel added that Landrum’s move to
Ohio was a change in environment that should be considered a mitigating factor.
Turning to Landrum’s family life, counsel argued that his client received inconsistent
discipline from authority figures. He noted that Landrum had graduated from high
school but that he became dependent on alcohol and drugs to medicate himself for the
failures in his life. Counsel stressed Landrum’s remorse, repentance, and love of his
family. He asked the jury to punish Landrum, but not to impose the death penalty.

In post-conviction proceedings, Landrum submitted affidavits from a social
worker experienced in mitigation investigations, a clinical psychologist, an attorney not
involved in his case, his trial counsel, his appellate counsel, the attorney who submitted
his post-conviction petition, the mitigation investigators who researched Landrum’s past
in 1986, mitigation specialists, attorneys with the Ohio public defender’s office, two
jurors from the trial, and Coffenberger. He also submitted a transcript of a police
interview with Swackhammer, his own affidavit, descriptions of executions, newspaper
articles about his conviction, and other materials.

The social worker concluded that the mitigation investigation was inadequate
because it had not begun until late January 1986, less than a month before trial started.
She also reported that most of the interviews conducted for mitigation purposes took
place after the guilt phase ended on February 21, 1986, less than a month before the
penalty phase began on March 17, 1986. She stated that it takes three to six months to
compile a mitigation case. She also presented evidence about Landrum’s early life,
including the chaotic household in which he was raised until the age of five, the effects
of his mother’s remarriage and the move to Ohio, his step-father’s drinking and physical
abusiveness, the death of family members, and his being teased and taunted in school.
The social worker averred that Landrum had serious emotional problems that required
an expert evaluation. She believed that the mitigation team had not adequately explored
Landrum’s alcohol and drug abuse, such as his overdose at the age of sixteen. In her
Nos. 06-4194/4251 Landrum v. Mitchell Page 35

opinion, the team had not explored Landrum’s inability to adjust to prison; indications
of drug abuse, depression, and ADHD; and possible sexual abuse when he was five. The
social worker concluded that the witnesses who testified on Landrum’s behalf were not
prepared and that there were other witnesses who were willing to testify but had not been
contacted.

The clinical psychologist administered a series of tests to Landrum. He presented
additional evidence supporting the social worker’s testimony and documented
Landrum’s drug use. Landrum had progressed from the occasional use of marijuana to
daily use of various pills to cope with his strained relationships with his step-father and
left home for days at a time. He continued to binge through adolescence, culminating
in his dishonorable discharge from the Navy at the age of twenty. The psychologist went
on to describe Landrum’s depression and inability to stop using alcohol and drugs.
Landrum was diagnosed with dysythmic disorder and substance dependence. The
psychologist described him as having flat affect, low self-esteem, and feelings of
helplessness or hopelessness. He opined that these disorders were the result of
Landrum’s physical and sexual abuse and other early life experiences. He termed
Landrum’s addiction inevitable given these factors and opined that, at the time of the
murder, Landrum was dependent on alcohol, sedatives, and marijuana, which aggravated
his dysythmic disorder.

Trial counsel averred that the trial court denied him sufficient time to prepare his
mitigation defense. Specifically, he averred that more time would have permitted him
to obtain a psychological evaluation, to investigate and develop a full drug- and alcohol-
abuse history, to obtain records regarding his client’s ability to adapt to confinement, to
develop information regarding Swackhammer’s culpability, and to retain expert
witnesses. Counsel explained that he was afraid to present underdeveloped evidence of
Landrum’s substance abuse for fear that it would be used by the jury as an aggravator.
The mitigation investigators faulted the district court for not granting continuances.
They claimed they were unable to interview all potential witnesses and obtain all
relevant records. Another mitigation specialist was asked to review a letter from an
Nos. 06-4194/4251 Landrum v. Mitchell Page 36

individual who claimed to have spoken with people who knew Landrum in elementary
school who had said that Landrum had been teased because his family was poor. The
specialist claimed that the letter offered potentially significant mitigation information
and numerous leads.

Given the evidence presented during the mitigation phase, we cannot conclude
that trial counsel failed to investigate Landrum’s background or to present mitigating
evidence to save him from the death penalty. See Wiggins, 539 U.S. at 521–22. The
evidence gave the jury an overall view of Landrum’s background, some insight into his
troubled youth, and accounts of his substance abuse. Indeed, investigators interviewed
witnesses, who testified, and researched records, which were submitted into evidence.
Landrum points to trial counsel’s failure to use a mental health expert. However, the
trial court authorized funds to pay Dr. Nancy Schmidtgoessling, a psychologist proposed
by Landrum’s attorney. Schmidtgoessling examined Landrum by December 4, 1985, but
had not provided counsel with anything in writing at that time. Counsel also withdrew
a request to have her examine Landrum after the guilt phase and before the mitigation
phase, and declined to have Landrum examined by a mental health expert named by the
trial court. In a pre-trial hearing on March 11, 1986, counsel stated that
Schmidtgoessling never reduced her findings to writing, and no report by her appears in
the record.

On this record, Landrum has not shown that his representation was
constitutionally deficient. The strategic decision not to present Schmidtgoessling’s
underdeveloped testimony to the jury contrasts sharply with the cases in which we have
found violations of Wiggins and Strickland. See, e.g., Morales v. Mitchell, 507 F.3d 916,
934 (6th Cir. 2007) (counsel did not present evidence of childhood abuse, a
dysfunctional family situation, head injuries, and substance abuse); Hamblin, 354 F.3d
at 490–91 (counsel conducted no mitigation investigation); Coleman v. Mitchell, 268
F.3d 417, 450–52 (6th Cir. 2001) (counsel failed to present evidence that the defendant
was abandoned by his mother, was abused by his grandmother, and that his grandmother
used her home as a brothel and gambling house and exposed him to group sex, bestiality,
Nos. 06-4194/4251 Landrum v. Mitchell Page 37

and pedophilia); Carter v. Bell, 218 F.3d 581, 594–600 (6th Cir. 2000) (counsel failed
to investigate and present mitigating evidence of the defendant’s poor, violent, and
unstable childhood).

Moreover, Landrum is unable to show prejudice from any alleged deficiency in
his representation. Trial counsel presented most of the same facts that the post-
conviction mitigation witnesses said should have been presented. Even if some of the
information offered in post-conviction proceedings by the social worker and clinical
psychologist, such as the evidence that Landrum was abused by his step-father, would
have placed Landrum in a more favorable light in comparison with the testimony of his
family in the mitigation phase, it could have been outweighed by unfavorable evidence
offered post-conviction that Landrum was disciplined in the Navy and received a
dishonorable discharge. Such information would have undermined trial counsel’s claim
that Landrum functioned well in structured settings.

The most significant difference between the evidence presented at the mitigation
hearing and the post-conviction petition evidence is that at the hearing no mental health
expert testified on Landrum’s behalf. Trial counsel suggested that events in Landrum’s
life somehow caused him to go astray, but counsel did not present any expert testimony
to support this theory and was unable to articulate what went wrong. The prosecution
seized on defense counsel’s efforts to portray Landrum’s substance abuse and the
ineffectiveness of the juvenile justice system as mitigating factors. In contrast, the post-
conviction clinical psychologist explained that the events and circumstances of
Landrum’s life contributed to his depression and substance abuse, that Landrum’s
substance abuse was not treated properly, and that his substance abuse affected his
judgment at the time of the murder. Although Landrum’s family members testified that
he was surrounded by people who loved him as a child, the psychologist described
Landrum’s early life as chaotic and his time in Ohio as severely troubled. Landrum was
diagnosed with a form of depression after psychological testing.

Even when we consider the testimony of a mental health expert, we cannot say
that Landrum has come forward with new evidence that differs significantly both in
Nos. 06-4194/4251 Landrum v. Mitchell Page 38

strength and subject matter from the evidence actually presented at sentencing. See
Broom, 441 F.3d at 410; Clark, 425 F.3d at 286. Moreover, the jury heard that Landrum
bragged about brutally slashing the throat of his victim. Thus, we do not find that there
is a reasonable probability that the jury would have concluded that “the balance of
aggravating and mitigating circumstances did not warrant death.” See Strickland, 466
U.S. at 695. Indeed, the facts in this case are similar to others in which we have found
no prejudice. See, e.g., Johnson v. Bell, 344 F.3d 567, 573–74 (6th Cir. 2003) (although
testimony from family members would have helped to humanize the defendant, the jury
could have concluded that he was even more culpable because he had enjoyed a loving
family and yet had murdered his wife); Martin v. Mitchell, 280 F.3d 594, 613–14 (6th
Cir. 2002) (defendant did not show prejudice at the mitigation phase where family
members testified about his background and a psychological report was given to the
jury); Scott v. Mitchell, 209 F.3d 854, 880–81 (6th Cir. 2000) (finding that potential
mitigating circumstances were overwhelmingly negated by other evidence about the
defendant’s background). In Landrum’s case, nothing in the post-conviction record
suggests that his childhood was drastically different from what the jury heard or that he
suffers from a mental or physical condition that would explain or significantly mitigate
his crimes. See Hamblin, 354 F.3d at 490–91 (no investigation by defense counsel);
Skaggs v. Parker, 235 F.3d 261, 269–75 (6th Cir. 2000) (post-conviction evidence
indicated that the defendant was mentally impaired, suffered from organic brain damage,
and exhibited psychotic, paranoid, and schizophrenic behaviors). There is no reasonable
probability that the jury’s verdict would have been different had it heard the cumulative
evidence in the post-conviction record.

Landrum has failed to establish that he received ineffective assistance of counsel
in the sentencing phase of his trial. The state court’s resolution of his claims regarding
his social history and history of substance abuse was not contrary to or an unreasonable
application of clearly established Supreme Court law.
Nos. 06-4194/4251 Landrum v. Mitchell Page 39

IX.

Landrum alleged that the trial court violated his constitutional rights by failing
to provide him with an independent, competent psychologist when this service was
reasonably necessary to present mitigation evidence. Landrum argues that an
independent psychologist would have analyzed his psychological and social history and
adduced testimony as to his early life and developmental experiences, the development
of his personality, his family’s dynamics, his potential for success or failure in a
structured system, his medical history, his abuse of drugs and alcohol, his emotional and
psychological functioning, and the effect of his psycho-social issues on his capacity to
form the requisite intent at the time of the murder.

A.

Landrum first raised this claim in his post-conviction petition. The trial court
ruled that res judicata barred the claim because he should have raised it on direct appeal.
Appealing this decision, Landrum argued ineffective assistance of trial counsel and the
denial of his requests for a continuance. He did not specifically argue the issue of the
appointment of a psychologist, but mentioned it along with forty-two other claims for
relief. The Ohio Court of Appeals held that Landrum was not entitled to relief and that
the trial court did not err by denying his request for an evidentiary hearing. Landrum III,
1999 WL 22626, at *11. Landrum then raised this claim as part of a claim of ineffective
assistance of appellate counsel when he applied to reopen his appeal pursuant to Rule
26(B). The Ohio Court of Appeals held that Landrum’s application was untimely and
that he had not shown good cause for his delay. The court also found that res judicata
barred relitigation of the issues that Landrum had raised in previous proceedings. The
Ohio Supreme Court affirmed this appellate decision. Landrum IV, 720 N.E.2d at 525.
The district court examined the merits of this claim in habeas proceedings and concluded
that Landrum was not entitled to a psychological expert because he did not present an
insanity defense and that trial counsel exercised strategic judgment in not presenting
Schmidtgoessling to the jury. Landrum VI, 2005 U.S. Dist. LEXIS 41846, at *233–35.
Nos. 06-4194/4251 Landrum v. Mitchell Page 40

B.

We find this claim procedurally defaulted for the same reason we found defaulted
Landrum’s claim that trial counsel was constitutionally ineffective for failing to present
Coffenberger’s testimony during the guilt phase. Under Ohio law, res judicata bars
claims in post-conviction collateral attacks that have been, or could have been, litigated
on direct appeal. Hicks v. Collins, 384 F.3d 204, 211 (6th Cir. 2004). The Ohio Court
of Appeals’s reliance on res judicata was an adequate and independent state ground to
foreclose habeas relief in federal court. See Williams v. Bagley, 380 F.3d 932, 967 (6th
Cir. 2004). As explained above, a claim of ineffective assistance of appellate counsel
may excuse a procedural default so long as this claim is not itself procedurally defaulted.
Edwards, 529 U.S. at 453. In Ohio, the vehicle for raising an ineffective assistance of
appellate counsel claim is an application under Rule 26(B). The state courts dismissed
Landrum’s Rule 26(B) application as untimely. Because the timeliness requirements of
Rule 26(B) were firmly established and regularly followed by September 1998, they are
an adequate and independent state procedural bar to habeas review. See Parker,
543 F.3d at 861–62; Fautenberry, 515 F.3d at 641.

X.

For the foregoing reasons, we reverse the district court’s grant of habeas corpus
to Landrum on the basis of ineffective assistance of counsel and affirm the district
court’s decision in all other respects.