Murphy v. State of Ohio

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0007p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOSEPH D. MURPHY,
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Petitioner-Appellant,
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Nos. 00-4558; 06-4428
v.
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Respondent-Appellee. -
STATE OF OHIO,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 96-07244—David A. Katz, District Judge.
Argued: October 29, 2008
Decided and Filed: January 8, 2009
Before: NORRIS, COLE, and GILMAN, Circuit Judges.

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COUNSEL
ARGUED: Pamela J. Prude-Smithers, OHIO PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Holly E. LeClair, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Pamela J. Prude-Smithers, Kathryn L.
Sandford, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Holly
E. LeClair, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
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OPINION
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COLE, Circuit Judge. Petitioner-Appellant Joseph D. Murphy (“Murphy”) seeks
habeas relief from his conviction and death sentence for the murder and robbery of his
elderly neighbor, Ruth Predmore. He appeals from a federal district court opinion and order
denying both his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and
his motion to alter or amend the district court’s judgment. Murphy v. Ohio, No. 3:96-cv-

1
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 2

7244, 2006 WL 3057964 (N.D. Ohio Sept. 29, 2006) (denying petitioner’s habeas claims but
certifying his Atkins claim for appeal); Murphy v. Ohio, No. 3:96-cv-7244 (N.D. Ohio Nov.
9, 2000) (Doc. No. 136) (denying petitioner’s motion to alter or amend judgment). The
district court certified four claims for appellate review. Because we conclude that these
claims are without merit, we AFFIRM the district court’s denial of Murphy’s petition for
habeas relief.

I. BACKGROUND

1
A. Facts

Ruth Predmore, seventy-two years of age and in frail health, resided
alone at 887 Davids Street in Marion, Ohio. Defendant-appellant, Joseph
D. Murphy, resided with his parents at 1049 Davids Street, was
acquainted with Mrs. Predmore and had performed yardwork for her in
the past.
Mrs. Predmore was a member of the philanthropic organization known
as the “Kings Daughters and Sons[.]” Since approximately 1983, the
organization had collected pennies to support its charitable activities. As
treasurer of the organization, Mrs. Predmore maintained custody of the
pennies and other funds of the organization (which exceeded $100) at her
home. The pennies were not in rolls, but were instead retained loose by
Mrs. Predmore.
In mid-January 1987, [Murphy] told his girlfriend, Brenda Cogar, that he
intended to write a note to Mrs. Predmore demanding money, and
threatening her with death if she did not comply. On January 27, 1987,
Mrs. Predmore visited a Lawson’s store in her neighborhood near the
intersection of Davids Street and Bellefontaine Avenue. While at the
store, she talked to Janice Colby, a sales clerk, and displayed to her a
note which she had received. The note stated as follows:
“You don’t have no phone. I want your money. put it in a bag
and put it in your yard or i’ll kill you tonite.
“No money

1
Because Murphy filed his habeas petition after the passage of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, we review his claims to
determine whether the “state court’s application of clearly established federal law was objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). In so doing, we rely on the Ohio Supreme
Court’s determination of the facts as set forth in State v. Murphy, 605 N.E.2d 884, 888-90 (Ohio 1992).
We review de novo all issues not reached by the state courts. Williams v. Anderson, 460 F.3d 789, 804
(6th Cir. 2006).
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 3

“No life
“Tonite at 8:00"
On February 1, 1987, at approximately 7:00 p.m., [Murphy] left his
parents’ home clad in a blue tee-shirt, blue jeans, tennis shoes, maroon
vest and brown jacket with white fleece lining. He went to the Sohio
gasoline station on the corner of Davids Street and Bellefontaine Avenue
and requested penny wrappers. A clerk provided used penny wrappers.
At approximately 9:00 p.m., [Murphy] telephoned his mother and
informed her that he had found a credit card.
That same evening, between 9:00 p.m. and midnight, Mrs. Predmore was
killed by a five-inch knife wound to her neck. The knife severed the
trachea, the esophagus, and the right and left carotid arteries and jugular
veins.
At approximately 10:30 p.m., [Murphy] returned home. Although his
hands and face were covered with blood, he displayed no cuts or bruises
on his body. There was no blood on his clothing. He explained that the
blood was the result of a fight. Thereafter, he went to the bedroom of his
brother Michael where they counted pennies and placed them in paper
rolls. The next morning, [Murphy] had a black bag of pennies in paper
rolls, some of which he offered his mother to purchase cigarettes. On
February 3, 1987, [Murphy] entered Lawson’s store, showed the manager
some rolled pennies in a dark bag and asked whether she would exchange
the coins for currency. The manager declined.
Jackie Valentine was a supervisor for the Homemaker and Chore
Program of the Marion County Department of Human Services, which
delivered meals to the elderly who were unable to leave their homes. On
February 2, 1987, Valentine received a telephone call informing her that
Mrs. Predmore had not responded when a meal was delivered to her
home. Upon arriving at the home of Mrs. Predmore, Valentine entered
the unlocked front door and discovered the lifeless body of Mrs.
Predmore. Valentine thereafter summoned the Marion city police.
The first officer to arrive, Detective Sammie L. Justice, discovered
footprints in blood on the front porch and blood splattered on the screen
door and wooden front door. Thereafter, Agents Robert D. Setzer and
David Barnes of the Ohio Bureau of Criminal Identification and
Investigation (“BCI”) searched the Predmore residence. They discovered
in the living room the note that Ruth Predmore had previously shown to
Janice Colby. Agent Setzer also took blood samples from the shoeprints
found on the porch of the Predmore house. Subsequent analysis revealed
that the blood was of Ruth Predmore’s type.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 4

Meanwhile, as some of the members of the Murphy family were
preparing to travel to West Virginia, they noticed the police activity at
the Predmore home down the street. [Murphy] appeared agitated and
ventured the opinion that Mrs. Predmore must have been murdered.
Thereafter, [Murphy] placed a telephone call to Cynthia Nichols, his
aunt, and asked her whether he could stay with her for a while at her
residence in the Wood Valley Trailer Park in Caledonia, Ohio. After she
agreed, [Murphy] and Brenda Cogar departed for Caledonia at
approximately 8:00 p.m. After their arrival, [Murphy] admitted to Cogar
that he had killed Mrs. Predmore by slashing her throat with a knife he
had taken from a collection of his brother.
On February 3, 1987, Detective Wayne J. Creasap discovered a wallet
belonging to Mrs. Predmore underneath a shrub, approximately fifty
yards south of the Murphy residence.
Thereafter, police searched the Murphy residence and found a pair of
gloves, a brown windbreaker jacket with white fleece, a woman’s purse,
penny wrappers, rolled pennies and writing paper of the type upon which
the note found in the Predmore home was written. A subsequent search
of the residence revealed a pair of blood-stained blue jeans.
Police then traveled to Caledonia, arrested [Murphy] and advised him of
his rights to remain silent and have the assistance of counsel.
At approximately 8:06 p.m., BCI agents searched the house trailer of
Cynthia Nichols. Among the items recovered were a pair of tennis shoes
and a maroon blood-stained vest. Subsequent analysis of the tennis
shoes, the gloves, the jacket, the purse and the blue jeans revealed the
presence of Type A blood. While both [Murphy] and Mrs. Predmore had
Type A blood, Mrs. Predmore had blood containing a PGM +1 enzyme
factor while [Murphy] had a PGM +2 enzyme factor. Sixteen percent of
the population have blood of the type and enzyme factor of Mrs.
Predmore’s. The blue jeans recovered from the home of appellant had
blood stains of those characteristics.
Meanwhile, [Murphy] was transported to the Marion police station.
Upon arrival, [Murphy] was again advised of his constitutional rights and
acknowledged that he understood them. Following both oral and written
instructions regarding his rights, [Murphy] executed a written waiver
prior to any conversation with police detectives. The subsequent
interview was taped and a transcription thereof produced. During the
interview, Sergeant John Gosnell of the Marion County Sheriff’s
Department alluded to prior criminal acts of [Murphy] involving arson
and breaking and entering. [Murphy] acknowledged that he had written
the note found in the home of Mrs. Predmore, which she had previously
shown to Janice Colby.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 5

On February 4, 1987, [Murphy] sent word from jail that he wished to
continue the interview.
This second interview was likewise taped and transcribed. At
approximately 11:13 p.m., [Murphy] was again advised of his rights and
again executed a waiver form. During this interview, [Murphy] denied
any involvement in the death of Mrs. Predmore and implicated Alvie
Coykendall, his brother-in-law, in the crime. [Murphy] volunteered to
submit to a polygraph examination.
On February 8, 1987, police again searched the Murphy residence, and
recovered a knife lodged in the concrete foundation of the home. It was
part of the collection belonging to David Murphy, [Murphy’s] brother.
Analysis of the knife revealed traces of blood. Shortly after this search,
Murphy’s mother discovered a plastic bank card bearing the name of
Ruth Predmore under a mattress in a basement bedroom of her home.
Murphy, 605 N.E.2d at 888-90.

B. Procedural History

1. State Court

On direct appeal, the state court of appeals affirmed Murphy’s convictions and
death sentence. State v. Murphy, No. 9-87-35, 1991 WL 117226, at *21 (Ohio Ct. App.
June 26, 1991). On December 30, 1992, the Ohio Supreme Court affirmed the decision
of the appellate court. State v. Murphy, 605 N.E.2d 884, 909 (Ohio 1992).

In 1994, Murphy filed his first petition for post-conviction relief in the state trial
court, which denied the petition without conducting an evidentiary hearing on the matter.
The Ohio court of appeals affirmed the trial court’s decision, State v. Murphy, No. 9-94-
52, 1995 WL 275766 (Ohio Ct. App. May 12, 1995), and the Ohio Supreme Court
declined further review. State v. Murphy, 655 N.E. 2d 184 (Ohio 1995) (Table).
Murphy subsequently filed a motion for rehearing in the Supreme Court of Ohio, which
was denied in February 1993. State v. Murphy, 607 N.E.2d 13 (Ohio 1993). On October
4, 1993, the United States Supreme Court denied Murphy’s petition for certiorari.
Murphy v. Ohio, 510 U.S. 834 (1993) (Table).
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 6

In 2002, subsequent to the Supreme Court’s ruling in Atkins v. Virginia, Murphy
filed a second petition for post-conviction relief, asserting that because he is mentally
retarded, the imposition of the death sentence violates his Eighth Amendment rights
under the United States Constitution. 536 U.S. 304 (2002). On June 30, 2004, after
conducting an evidentiary hearing on the issue, the trial court found that Murphy was not
mentally retarded under Atkins and denied his petition for post-conviction relief. The
court of appeals affirmed the trial court’s decision, State v. Murphy, No. 9-04-36, 2005
WL 280446, at *6 (Ohio Ct. App. Feb. 7, 2005), and the Ohio Supreme Court declined
further review. State v. Murphy, 830 N.E.2d 347 (Ohio 2005) (Table).

2. Federal Habeas Proceedings

On December 31, 1996, Murphy filed his initial petition for a writ of habeas
corpus, setting forth twenty-three separate grounds for relief. The district court
summarily denied Murphy’s petition on all counts. Murphy v. Ohio, No. 3:96-cv-07244
(N.D. Ohio Sept. 28, 2000) (Doc. No. 130.) Murphy appealed the district court’s ruling
to this Court, and we remanded the case so that the district court could comply with
Slack v. McDaniel, 529 U.S. 473 (2000), which requires a detailed certificate of
appealability (“COA”) analysis as to each claim a prisoner raises in his petition. Murphy
v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). On December 5, 2001, the district court
issued an unpublished memorandum opinion and order granting Murphy a COA on four
of his twenty-three claims for relief. Murphy v. Ohio, No. 03:96-cv-07244 (N.D. Ohio
Dec. 5, 2001) (Doc. No. 147.) The district court also reserved ruling on whether it
would grant Murphy a COA for his Atkins claim because the State had not yet had the
opportunity to brief the issue.

On June 20, 2002, the United States Supreme Court held the execution of a
mentally retarded person to be unconstitutional. Atkins, 536 U.S. at 304. Murphy then
filed his August 29, 2002 motion to hold his federal habeas proceedings in abeyance
pending his return to state court. The district court granted Murphy’s motion on March
5, 2003 and ordered Murphy to notify it once the state court proceedings were complete.
Murphy v. Ohio, No. 03:96-cv-07244 (N.D. Ohio Mar. 5, 2003) (Doc. No. 154.) In
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 7

2004, the trial court conducted an evidentiary hearing on Murphy’s claim, and
subsequently determined that he was not mentally retarded, denying his petition. The
Ohio Court of Appeals affirmed the trial court’s decision. State v. Murphy, No. 9-04-36,
2005 WL 280446, at *6 (Ohio Ct. App. Feb. 7, 2005). The Ohio Supreme Court
declined further review. State v. Murphy, 830 N.E.2d 347 (Ohio 2005) (Table).

When Murphy had fully exhausted his Atkins claim in state court, he notified the
district court and filed an amended petition under Atkins, claiming to be mentally
retarded and seeking relief from his death sentence. The respondent filed an amended
return of writ on January 10, 2005, to which Murphy filed an amended traverse. After
the parties completed their briefings on the issue, the district court issued a September
29, 2006 order dismissing the action but granting Murphy a certificate of appealability
on his Atkins claim. See Murphy v. Ohio, No. 3:96-cv-7244, 2006 WL 3057964, at *5
(N.D. Ohio Sept. 29, 2006). We now turn to consider Murphy’s appeal of the four
claims that were certified for our review.

II. JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 1331 and 2254. This Court
has jurisdiction under 28 U.S.C. §§ 1291 and 2253.

III. STANDARD OF REVIEW

This Court reviews de novo a district court’s decision to grant or deny a petition
for a writ of habeas corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2007) (citing
Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004)). Because Murphy filed his habeas
petition after the enactment of AEDPA in 1996, AEDPA’s provisions apply to his case.
Id. (citing Woodford v. Garceau, 538 U.S. 202, 210 (2003) and Lindh v. Murphy, 521
U.S. 320, 336 (1997)).

Under AEDPA, a federal court may grant a writ of habeas corpus with respect
to a “claim that was adjudicated on the merits in state court proceedings” if the state
court’s decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 28
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 8

U.S.C. § 2254(d)(1). A habeas petition may also be granted if the state court’s decision
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Id. § 2254(d)(2). A state-court decision is
contrary to clearly established federal law “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.”
Williams, 529 U.S. at 405. A state-court decision is an unreasonable application of
clearly established federal law if it “correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case,” id. at 407-08, or if
it “either unreasonably extends or unreasonably refuses to extend a legal principle from
Supreme Court precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th
Cir. 2000).

The AEDPA standard of review, however, applies only to “any claim that was
adjudicated on the merits in State court proceedings.” Hartman v. Bagley, 492 F.3d 347,
356 (6th Cir. 2007) (citing Dannerv. Motley, 448 F.3d 372, 376 (6th Cir. 2006)).
Consequently, where a state court has not previously ruled on the merits of a claim, we
apply the de novo standard of review. Id.

IV. ANALYSIS

Murphy bases his appeal on the following four claims for relief: (1) trial counsel
rendered ineffective assistance by failing to retain expert assistance to explain both the
effects of sexual abuse on children and the impact of Murphy’s mental impairments on
his functioning, and by providing the prosecution with Murphy’s juvenile records and
other record evidence of his past antisocial behavior; (2) the trial court improperly
instructed the jury members regarding whether they could consider Murphy’s
“psychological age” as mitigating evidence at sentencing; (3) Murphy is mentally
retarded and constitutionally ineligible to receive a death sentence under the law as set
forth in Atkins; and (4) Murphy’s statements to the police were allowed into evidence
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 9

at trial in violation of his Sixth Amendment right to counsel. For the reasons set forth
below, we find that none of these claims warrant habeas relief.

A. Trial counsel did not render ineffective assistance during the mitigation
phase of Murphy’s sentencing by failing to retain certain experts or by
providing the prosecution with documentary evidence of Murphy’s past
antisocial behavior.
Murphy argues that his trial counsel rendered ineffective assistance by failing to
retain experts during the mitigation phase of Murphy’s sentencing to address (1) the
effects of Murphy’s having been subjected to sexual abuse in his youth, and (2) his
alleged mental retardation. Murphy also asserts that his counsel improperly disclosed
various documents to the prosecution that contained negative information about Murphy.
The State counters that this claim should not be considered because Murphy first raised
it in his traverse during federal habeas proceedings, and regardless, the denial of the
claim by the Ohio Court of Appeals constituted a reasonable application of Supreme
Court precedent.

On state post-conviction review, Murphy alleged ineffective assistance of
counsel arising from trial counsel’s alleged failure to “obtain a mitigation specialist in
a timely manner who could have assisted counsel in the preparation and presentation of
the mitigation phase of Petitioner’s trial, and also provided more information which
would have assisted in other phases of [the] trial.” (Joint Appendix (“JA”) 958.) In
support, Murphy attached two affidavits. The first affidavit was from Linda Pudvan-
Forment, a mitigation specialist, who attested that she became a mitigation specialist in
September 1986 and began to work on Murphy’s case (her third capital case) in May
1987. Pudvan-Forment’s affidavit emphasized that significant time constraints
surrounding her preparation of the mitigation evidence prevented her from gaining
Murphy’s family’s trust, from conducting the necessary research, and from securing
institutional records pertaining to Murphy’s family background and history. The second
affidavit was from Dr. Gregory Keck, Ph.D., a licensed psychologist. Dr. Keck averred
that he worked with adolescent victims of sexual abuse, and he stated that, “[t]he
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 10

dynamics of Joey Murphy’s behavior are consistent with children who are sexually
abused, especially his history of fire-setting and animal mutilation.” (JA 996.)

Murphy never alleged that trial counsel was ineffective for failing to retain an
expert on mental retardation on state post-conviction review.

The Ohio Court of Appeals affirmed the trial court’s denial of Murphy’s claim,
explaining:

. . . [I]n the instant case, twelve witnesses testified in the mitigation phase
of the proceeding, including a clinical psychologist, a worker from the
West Virginia Department of Human Services, a school official, and
various family members.
The clinical psychologist’s evaluation included review of extensive
records, both hospital and treatment programs and interviews with family
members and appellant. Testimony included descriptions of his
childhood living conditions and the physical punishment he received
from his parents. Additional testimony described various educational
and psychological evaluations.
Furthermore, appellant was represented by two attorneys and had
assistance from psychologists, investigators and the Ohio Public
Defender. The record further reveals, for example, that juvenile records
were requested, numerous pre-trial motions were submitted, and vast
amounts of time expended in preparing for the case.
In summary, appellant’s affidavits make general assertions. Hence, we
cannot find that appellant has met his burden to set forth evidentiary
documents which include sufficient facts to show that he was denied
effective assistance of counsel.
Murphy, 1995 WL 275766, at *6.

In the fifteenth ground for relief in his federal habeas petition, Murphy charged
that trial counsel was ineffective for failing to examine and present evidence concerning
“deep psychological scars from the abuse [Murphy] suffered as a youth and that that
abuse gave rise to the conduct underlying the instan[t] case.” (JA 64-65.)

In his traverse, Murphy specifically charged that retaining and presenting the
testimony of an expert on sexual abuse “would have corroborated Mr. Murphy’s
unsworn statement in which he discussed some of the sexual abuse he had suffered.”
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 11

(JA 399.) Murphy also submitted that trial counsel should have retained an expert on
mental retardation “to relate to the jury how Mr. Murphy, who is mentally retarded, is
affected by everyday situations and stressors.” (JA 401.) Additionally, Murphy offered
that trial counsel rendered ineffective assistance of counsel by “disclosing to the State
documents obtained from the other institutions at which Mr. Murphy had been placed.”
(JA 402.)

As to trial counsel’s failure to retain a sexual-abuse expert, the district court
declined to grant relief, writing:

Petitioner testified in graphic detail as to the instances of sexual abuse
which occurred in his home and during institutional confinements. His
testimony was followed by that of the clinical psychologist who
explained the various factors which played into his psychological
development. Moreover, Petitioner’s testimony, although unsworn, was
more likely than not to have been believed by the jury in light of his
parents’ testimony.
(JA 762.) As to the absence of an expert on mental retardation, the district court
acknowledged that “an expert certainly would have emphasized and perhaps clarified
[Murphy’s] mental abilities,” (JA 764), but nevertheless determined that trial counsel
was not ineffective because these records, for strategic reasons, were not admitted into
evidence.

To establish ineffective assistance of counsel, a claimant must show that the
attorney’s performance was “deficient” and that this performance “prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance
occurs when the representation falls “below an objective standard of reasonableness.”
Id. at 688; see also Johnson v. Bagley, 544 F.3d 592, 598-604 (6th Cir. 2008) (finding
that defendant’s trial counsel’s failure to conduct an adequate investigation of the
substantial mitigating evidence produced at trial was objectively unreasonable).

If counsel’s actions are “objectively unreasonable” under the circumstances, the
court turns to consider prejudice. Strickland, 466 U.S. at 688. Prejudice occurs when
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 12

of the proceeding would have been different.” Id. at 694. To show ineffective assistance
during the penalty phase of a capital trial, a defendant must show a “reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death”; “a
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir. 2006) (citing Strickland, 466
U.S. at 669). On the other hand, there is an insufficient showing of prejudice where “one
is left with pure speculation on whether the outcome of the trial or the penalty phase
could have been any different.” Id. (citing Baze v. Parker, 371 F.3d 310, 322 (6th Cir.
2004)). Finally, this Court has rejected “a requirement that any later-identified
cumulative mitigating evidence must have been introduced in order for counsel to be
effective.” Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir. 2005) (determining that
counsel did not provide deficient assistance at sentencing by failing to introduce
additional mitigating evidence). With this standard in mind, we review Murphy’s three
ineffective assistance claims.

1. Sexual-Abuse Expert

At the mitigation phase of his trial, Murphy provided an unsworn statement
regarding his horrific childhood. Murphy stated that beginning at age five, various
relatives and family friends sexually abused him. According to Murphy, he was abused
by two of his father’s friends when he was five years old and repeatedly raped by the son
of his baby-sitter when he was between the ages of six and eight. Murphy also told the
jury that when he was being held at the Dayton Children’s Psychiatric Hospital, an
officer took him into seclusion with another inmate, told both of them to disrobe, and
photographed them posing in sexually suggestive positions; Murphy also claimed that
the officer used physical force to prevent him from escaping.

Trial counsel retained psychologist Dr. Nancy Schmidtgoessling, Ph.D. to
evaluate Murphy’s mental ability, criminal responsibility, and competency based upon
her review of Murphy’s past hospitalizations and interviews of both Murphy and his
family. Dr. Schmidtgoessling diagnosed Murphy as having “either a borderline
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 13

personality disorder with prominent antisocial features or mixed personality disorder.
In either case, Mr. Murphy’s disorder is severe, chronic, and disabling.” (JA 1292-93.)
Dr. Schmidtgoessling explained that an individual’s development can influence whether
he or she develops a personality disorder, and that, generally, the hallmarks of such
disorders are “personality characteristics that a person very inflexibly uses across a
variety of situations where they are not appropriate to be used. Most people who adjust
well and adapt well to life use certain kinds of behavioral strategies in one situation
because that’s what the environment expects and demands.” (JA 1295.) As to Murphy’s
“borderline personality,” Dr. Schmitgoessling opined that such personalities are not
ingrained, but rather, “are thought to develop in response to the environment,
particularly the social environment, but of course also the physical environment [a
person is] in.” (JA 1298-99.) She further noted that “the type of experiences [Murphy]
had early on were very much influential in his personality assets expressed today. If he
had other experiences, I couldn’t say what he would be like. But it’s clear to me that
those experiences very much affect how he looks at himself, how he looks at other
people, and how he regulates his behavior . . . .” (JA 1302-03.)

Murphy argues that his trial counsel rendered ineffective assistance by presenting
evidence of sexual abuse without offering accompanying expert testimony to explain the
impact of that evidence on Murphy’s mental health. The State counters that trial
counsel’s failure to retain a sexual-abuse expert was not ineffective assistance because
the jurors heard testimony about the abuse through Murphy’s unsworn testimony, as well
as through testimony by Dr. Schmidtgoessling and his parents.

In support of his argument that his trial counsel should have presented testimony
by a sexual-abuse expert in addition to Murphy’s unsworn testimony, Murphy relies on
the affidavit of Dr. Julia H. Hawgood, Psy.D., an Ohio-licensed clinical psychologist
whose work “involves the assessment and treatment of adults who have been sexually,
physically and emotionally abused as children.” (JA 646.) Dr. Hawgood based her July
10, 1998 affidavit on her review of extensive background material in Murphy’s case;
numerous interviews she had with Murphy’s family members, friends, neighbors, school
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 14

teachers, school administrators, and court personnel; and a three-and-one-half hour
clinical interview she had with Murphy on May 29, 1998 while he was housed at the
Mansfield Correctional Institution. She concluded that Murphy suffered significant
instances of sexual abuse over the course of his life. As a result of these incidents, Dr.
Hawgood contended that “the defendant’s inherent sense of worth was severely
diminished, his shame internalized. His understanding of his body, and thus, himself,
was that it was a cheap commodity to be bartered, used by others, but certainly not
something that was his to give or withhold with no strings attached. Sexual submission
became a way of surviving.” (JA 647.) Further, Dr. Hawgood concluded that

the recurrent, forced sexual abuse to which Joseph Murphy was subjected
throughout his developmental years had a significantly negative impact
on his personality dynamics and resulting behavioral manifestations at
the time of the instant offense. The cumulative effect of repeated sexual
abuse, coupled with on-going physical, emotional and verbal abuse in his
family of origin, resulted in the young man who exhibited a deep sense
of shame and worthlessness, suppressed rage, inability to experience
empathy or intimacy, driven to fulfill both psychic and basic functional
needs. Because internal resources, of necessity, had been focused on
surviving the abuse with no support from his family of origin, his
psychological development was stunted. He was a young man adrift in
the world without a mature, responsible, adult “compass” to govern his
actions.
(JA 649.)

Having reviewed the record thoroughly, we conclude that Murphy’s claim that
his counsel rendered ineffective assistance by failing to call a sexual-abuse expert does
not warrant relief. Dr. Hawgood could not isolate the effects of the sexual abuse from
the other troubling aspects of Murphy’s life when she characterized him as a “young
man who exhibited a deep sense of shame and worthlessness, suppressed rage, inability
to experience empathy or intimacy, driven to fulfill both psychic and basic functional
needs.” (JA 649.) Though not an identical description, the jury also heard from Dr.
Schmidtgoessling that “Murphy doesn’t feel quite like the rest of us. He feels very bored
by life, that things are sort of dead and empty. He feels ambivalent, wishing that things
were otherwise, but unable to trust others, always expecting that others will reject him.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 15

And so I guess the thing that most strikes me as I talked with him was his emptiness and
then his desire for affection and closeness.” (JA 1301-02.) Because the two experts
reached similar conclusions about Murphy’s mental state resulting from his traumatic
upbringing, details of which the jury also heard, there is no reasonable likelihood that
the outcome of Murphy’s sentencing would have been different. See Getsy v. Mitchell,
495 F.3d 295, 313-14 (6th Cir. 2007), cert. denied, 128 S. Ct. 1475 (2008) (citing Broom
v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)).

It is clear that Murphy has suffered severe abuse throughout his life, and
undoubtedly, such experiences have had a profound effect on him. Nonetheless, the
abuse suffered by Murphy alone does not support granting the relief he requests. In
short, because Murphy cannot establish that the finding by the Ohio Court of Appeals
that his counsel’s failure to appoint a sexual-abuse expert was objectively unreasonable
or that the testimony by a sexual-abuse expert would have caused a reasonable juror to
give him life rather than death, his claim must fail.

2. Mental-Retardation Expert

Murphy next contends that trial counsel should have retained an expert on mental
retardation to explain to the jury the impact that Murphy’s mental incapacities had on
his daily functioning. The State contends, however, that in light of the expert testimony
actually presented, such an expert would not have affected Murphy’s sentence.

As noted supra, Murphy did not specifically allege that trial counsel should have
retained a mental-retardation expert in state court. Rather, Murphy first raised this claim
in his traverse in the federal habeas proceedings, relying on the affidavit of Michael M.
Gelbort, Ph.D., a clinical psychologist who conducted a neuropsychological evaluation
of Murphy in 1997, several months after Murphy filed his habeas petition. Because
Murphy did not present his claims regarding a mental-retardation expert before the state
courts, we must review the claim de novo. See Danner, 448 F.3d at 376 (applying the
de novo standard of review to a claim not adjudicated on the merits by the state court.)
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 16

Dr. Gelbort’s report indicated that Murphy received a full scale IQ score of 74,
receiving scores of 73 and 78 in the test’s verbal and performances sections,
respectively. Dr. Gelbort indicated that Murphy “tests out with IQ in the borderline
mentally defective range.” (JA 527.) Dr. Gelbort’s report does not offer significantly
different information than that presented at trial. At the mitigation phase, Murphy’s
counsel presented the testimony of John Minter regarding Murphy’s educational
background. Minter earned an undergraduate degree in psychology, a Master’s degree
in educational psychology, and an Ed.S. both in school psychology as well as in
administration. Though Minter previously worked for three years as a school
psychologist for the Marion County Board of Education, at the time of trial, he was
employed by the Marion County Board of Education as the Director of Student
Personnel where he was responsible for providing educational programs for students.

Minter based his testimony in relevant part on the following evaluations
conducted on Murphy by various schools and facilities from 1975 through 1981.
Despite the fact that the resulting IQ scores of the evaluations varied greatly over the
years, ranging from 54 in 1979 to 86 in 1975, the tests, when considered together,
evaluated Murphy’s abilities as in the “moderate mentally retarded” or “low range of
average ability” categories and suggested that Murphy belonged in “a program for
children with emotional problems.” (JA 1277.) In fact, in 1979, upon the
recommendation of the Marion Area Counseling Center (“MACC”), Murphy received
home instruction and was no longer permitted to attend school because his emotional
problems and his “history of setting fires” made him a possible threat to other students.
Minter testified, “initially we of course tried to teach [Murphy] what we call academic
skills. Once a child reaches 16, 17 years of age, we change the emphasis and teach what
we call survival skills, especially with children who have major academic deficits.” (JA
1277.) Murphy remained in the program until his family moved outside of the school
district in 1982.

Contrary to Murphy’s assertions, Minter’s testimony provided the jury with a
detailed view of Murphy’s educational history and considered the programs employed
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 17

by the school system to foster Murphy’s intellectual development. In the opening
statement, trial counsel endeavored to show the jury that Murphy experienced hardship
stemming from his mental limitations:

Joey Murphy kept inside. Joey Murphy not allowed to be with his
brothers. Joey Murphy not allowed to go out and talk to other people.
Joey Murphy required to sit, as a baby, in that home, required to stay
beside his mother as a shadow all his childhood.
Why? Who knows. It was said he was different. It was said he was
sick. They were told he was mentally retarded. Whatever the case was,
sick, different, mentally retarded, his brothers and sisters didn’t want to
be around him cause he was different. His mother wouldn’t let him out
because he was different, he was sick. He would have to sit, as she
stayed in the home, in one place. At night, she would have him sleep at
the end of the bed on the floor, in a shack that was held up by upright
two-by-fours and tar paper around it. Four rooms, two bedrooms, a
living room, and a kitchen. Coal stove in the middle to heat it. So bad
that his dad, on occasions, would tell him to go find another place to
sleep while his mother was asleep just because it was so cold. You could
see the snow through the floor. Little Joey Murphy 4 years old, 5 years
old, had to come in the house. And I can’t even believe it, but when they
tell me – when they tell me and they will tell you, daily to get a beating,
to take his pants down and lay on the floor. These are things that you
will hear about Joey Murphy. Things in his childhood.
(JA 968-69.)
Additionally, Dr. Schmidtgoessling offered some explanation as to the effects of
Murphy’s psychological impairments on his intellectual development. She testified that:

One sees he has not adapted effectively at school, not been able to make
the adjustment effectively at school, not been able to make the
adjustment to authority, to applying his mental capacities to school the
way most kids are able to do. He’s not been able to form relationships
at all in an age appropriate fashion. He’s extremely ambivalent,
relationships literally created so much tension [in] him because of his
desire for approval and affection. Yet his feeling, it will be rejected. He
can’t regulate his behavior towards other people. Often times he’s very
testing and provocative. And at other times, like a child very meek and
attention seeking. Work wise, he’s not been able to hold a job for a
sustained amount of time. If you just look at him in almost any realm of
his functioning, he does not behave in a way we would expect a 22 year
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 18

old person. He behaves at a much younger level than that. That’s why
I mean by disabling.
Disabling psychology means that you are unable to carry out things that
people your age should be able to do.
(JA 1171-72.)

Again, although it is clear that Murphy faced significant challenges during his
youth, including the afore-described mental deficiencies, the record before us does not
warrant a different conclusion than that reached by the district court. Trial counsel
presented Minter’s testimony as a basis for its charge of mental retardation. Indeed,
Minter testified about Murphy’s IQ scores and the resultant actions by the school system
to address his intellectual needs. Further, Minter testified that Murphy had tested in a
“borderline mentally retarded” range and had even produced an IQ score placing him in
the range of being considered “moderate mentally retarded.” Dr. Schmidtgoessling also
offered testimony about the ways in which Murphy’s behavioral issues and mental
limitations have affected him.

Additionally, Murphy submits that testimony by a mental-retardation expert
would have been beneficial if only to refute the testimony of James Sunbury, Ph.D., who
testified for the prosecution. Dr. Sunbury testified that he viewed Murphy as being in
the borderline mental-retardation range, meaning having an IQ score of between 70 and
80. However, Dr. Gelbort’s affidavit adds nothing more than evidence previously
offered at trial. See Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (explaining that
“the new evidence that a habeas petitioner presents must differ in a substantial way – in
strength and subject matter – from the evidence actually presented at sentencing”).2

Given that Murphy has not demonstrated that trial counsel’s failure to retain a
mental-retardation expert to explain the impact of Murphy’s intellectual limitations upon
his life resulted in prejudice, we cannot grant him relief on this claim.

2
Murphy also objects to the district court’s alleged “fail[ure] to address [Dr. Everington’s]
affidavit in reaching its decision,” but Dr. Everington’s testimony was not available for the district court’s
consideration at the time that this particular claim was resolved. Murphy offered Dr. Everington’s
testimony in support of his Atkins claim, which was first raised in 2005, but the district court addressed
and rejected the instant claim in 2001.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 19

3. Disclosure of Records of Past Antisocial Behavior

As his final argument that his trial counsel provided ineffective assistance during
the mitigation phase, Murphy contends that trial counsel improperly disclosed to the
government documents and evidence gathered in preparation for the mitigation phase,
allowing damaging evidence to be presented to the jury. Murphy argues that counsel
was not obligated to disclose its entire mitigation file to the prosecution; rather, the trial
court ordered counsel only to mark in advance the exhibits intended for use during the
mitigation phase of trial. Specifically, Murphy asserts that due to counsel’s allegedly
improper disclosure, on cross-examination, Murphy’s mother confirmed that Murphy
had been unable to attend a group home because he had a history of setting fires and that
he had been removed from a treatment facility because he posed a danger to other
patients by mutilating animals, damaging cars, stealing, and destroying a counselor’s
room. Murphy also claims that the prosecution used the records in their cross-
examination of Dr. Schmidtgoessling, who testified about certain incidents during which
Murphy had been identified as “destructive” while a resident in another treatment
facility. The State argues that Murphy’s disclosure claim is improperly before this
Court, and that, regardless, the argument does not warrant habeas relief.

A petitioner seeking a writ of habeas corpus must meet certain procedural
requirements to permit review of his habeas claims by a federal court. See Smith v. Ohio
Dep’t of Rehab. & Corr., 463 F.3d 426, 431 (6th Cir. 2006). The petitioner must first
exhaust the remedies available in state court by fairly presenting his federal claims
before the state court; the federal court will not review unexhausted claims. Id. (citing
Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004); Lott v. Coyle, 261 F.3d 594, 601 (6th
Cir. 2001)). The exhaustion “requirement is satisfied when the highest court in the state
in which the petitioner was convicted has been given a full and fair opportunity to rule
on the petitioner’s claims.” Lott, 261 F.3d at 608 (internal quotation marks and citation
omitted). A federal court will not review claims that were not entertained by the state
court due to either the petitioner’s failure to raise those claims in the state courts while
state remedies were available or the petitioner’s failure to comply with a state procedural
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 20

rule, thereby preventing the state courts from reaching the merits of the claims.
Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (citing Seymour, 224 F.3d at
549-50).

For noncompliance with a state procedural rule to serve as a bar to habeas
review, the state procedure must satisfy the standards set forth in Maupin v. Smith, 785
F.2d 135, 138 (6th Cir. 1986). See Smith, 463 F.3d at 431. First, there must be a state
procedural rule in place that the petitioner failed to follow. Maupin, 785 F.3d at 138.
Second, the state court must have actually denied consideration of the petitioner’s claim
on the ground of the state procedural default. Id. Third, the state procedural rule must
be an “adequate and independent state ground to preclude habeas review.” Id. If these
three factors are satisfied, the petitioner can overcome the procedural default by either
“demonstrat[ing] cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrat[ing] that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 732
(1991).

We agree with the State’s assessment that Murphy’s disclosure claim is not
properly before this Court because he first presented it in his traverse and, thus, failed
to exhaust the claim in state court. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir.
2005) (a district court may decline to review a claim that a party raises for the first time
in his traverse). Regardless, even assuming arguendo that Murphy had properly
exhausted his disclosure claim, reviewing Murphy’s claim de novo, Danner, 448 F.3d
at 376, Murphy’s arguments fail on their merits. First, the production of the records by
Murphy’s counsel was not objectively unreasonable because the prosecution most likely
is entitled to such information under the relevant Ohio Rule of Criminal Procedure,
which provides:

If on request or motion the defendant obtains discovery under (B)(1)(c),
the court shall, upon motion of the prosecuting attorney order the
defendant to permit the prosecuting attorney to inspect and copy or
photograph books, papers, documents, photographs, tangible objects, or
copies or portions thereof, available to or within the possession, custody
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 21

or control of the defendant and which the defendant intends to introduce
in evidence at the trial.
Ohio Crim. R. 16(C)(1)(a).

More importantly, however, the documents produced were not prejudicial
because they were merely cumulative of potentially damaging information about
Murphy that was already presented at trial in support of Murphy’s claim that he had a
mental illness. Trial counsel tried to demonstrate to the jury that evidence of Murphy’s
problematic and often destructive behavior supported its theory that he suffered from a
mental illness and from possible mental retardation. Specifically, on direct examination,
Murphy’s mother testified that when Murphy was enrolled in Headstart at the age of
five, his teachers contacted her to discuss his habit of starting fires, the fact that he did
not get along well with other children and sometimes abused them, and that he was
generally badly behaved. Moreover, Murphy’s mother testified that Murphy was
institutionalized after he had set fire to a house in which he was being tutored by a
Caledonia school system representative. Murphy’s mother also added that Murphy had
served eighteen months in prison for convictions of auto theft and arson.

Finally, no prejudice resulted from the State’s cross-examination of Dr.
Schmidtgoessling related to the allegedly erroneously disclosed information. When the
prosecution questioned Dr. Schmidtgoessling about several examples of Murphy’s
detrimental behavior, she responded that his behavior reinforced her diagnoses that he
suffered from an antisocial personality disorder. Murphy’s behavior, therefore, served
as a basis for her finding of mental illness, and was not a detriment to Murphy’s case.

Because Murphy has not set forth evidence showing that his counsel’s assistance
was objectively unreasonable or that his counsel’s actions prejudiced his case, his claim
as to counsel’s provision of records to the prosecution also fails.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 22

B. The jury was not improperly precluded from considering Murphy’s
psychological age as mitigating evidence during sentencing.
During the closing arguments at the penalty phase of Murphy’s trial, Murphy’s
counsel presented evidence that Murphy’s development had been hampered such that
his actual age (in years) did not represent his psychological age. Murphy asserts that the
trial court erred in failing to properly instruct the jury that it could consider his
psychological age to be a mitigating factor at sentencing under sections 2929.04(B)(3)
and (B)(7) of the Ohio Revised Code, in violation of his constitutional rights. The State
counters that this Court should reject the claim because Murphy presented this claim to
the federal court for the first time in his traverse, and, alternatively, because the Ohio
Supreme Court’s denial of this claim constituted a reasonable application of Supreme
Court precedent.

Section 2929.04(B) of the Ohio Revised Code provides a list of the various
mitigating factors that the jury may consider in analyzing the appropriateness of the
death penalty in a given case:

(B) If one or more of the aggravating circumstances listed in division (A)
of this section is specified in the indictment or count in the indictment
and proved beyond a reasonable doubt, and if the offender did not raise
the matter of age pursuant to section 2929.023 of the Revised Code or if
the offender, after raising the matter of age, was found at trial to have
been eighteen years of age or older at the time of the commission of the
offense, the court, trial jury, or panel of three judges shall consider, and
weigh against the aggravating circumstances proved beyond a reasonable
doubt, the nature and circumstances of the offense, the history, character
and background of the offender, and all of the following factors: . . . .
Ohio Rev. Code § 2929.04(B). Among these factors are, “[w]hether, at the time of
committing the offense, the offender, because of a mental disease or defect, lacked
substantial capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law,” id. § 2929.04(B)(3), “the youth of the offender,
id. § 2929.04(B)(4), and “[a]ny other factors that are relevant to the issue of whether the
offender should be sentenced to death.” Id. § 2929.04(B)(7). At the end of the
mitigation phase, the trial court submitted the following instructions to the jury:
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 23

You will also consider all of the evidence as to any mitigating
factors included – including, but not limited to the nature and
circumstances of the offense, and the history, character, and background
of the Defendant.
Mitigating factors are factors that while they do not justify or
excuse the crime, nevertheless may be considered by you as extenuating
or reducing the degree of the Defendant’s blame or punishment. These
mitigating factors include but are not limited to the following. One,
whether it is unlikely that the offense would have been committed but for
the fact that the offender was under duress, coercion, or strong
provocation.
Two, whether at the time of committing the offense, the offender,
because of mental disease or defect, lacked substantial capacity to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law.
Three, the youth of the offender.
And four, any other factors that are relevant to the issue whether
the Defendant should be sentenced to death.
(JA 1368-69.) During its deliberations, the jury asked about how to consider Murphy’s
youth, to which the trial court responded:

There’s been a question that’s been put by the members of the
jury to the Court.
On Page 5, charge to the jury, Point 3 in mitigating factors under
3, the youth of the offender. Your question is, “Is youth referring to his
chronological age, or psychological age?”
My response to that is that that particular mitigating factor refers
to a Defendant’s chronological age.
(JA 1371.)

Defense counsel objected to the court’s answer and argued that the judge should
have instructed the jury members that they could still consider psychological age as a
mitigating factor. Murphy now argues that the trial court’s answer did not provide the
jury with sufficient guidance to allow it to consider Murphy’s psychological age as other
mitigating evidence.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 24

To determine whether jury instructions violated federal due process, “the
appropriate inquiry centers on ‘whether there is a reasonable likelihood that the jury has
applied the challenged instruction’ in an unconstitutional manner.” Boyde v. California,
494 U.S. 370, 380 (1990); see also Hartman, 492 F.3d at 363. “The Eighth and
Fourteenth Amendments to the United States Constitution dictate that the sentencer in
a capital case may not be precluded from considering any relevant circumstance as a
mitigating factor.” Mills v. Maryland, 486 U.S. 367, 371 (1988); see also Carter v. Bell,
218 F.3d 581, 594 (6th Cir. 2000). A mitigating factor may constitute “any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S.
586, 604 (1978). Relief should be granted “if the instruction ‘by itself so infected the
entire trial that the resulting conviction violates due process.’” Estelle v. McGuire, 502
U.S. 62, 72 (1991); see also Wilson v. Mitchell, 498 F.3d 491, 514 (6th Cir. 2007).

Murphy first presented this claim as the ninth proposition of law on direct appeal.
The Ohio Supreme Court rejected the merits, however, concluding that the trial court’s
instruction provided an accurate statement of the law and did not preclude the jury from
considering Murphy’s psychological age under the other statutory mitigating factors.”
Murphy, 605 N.E.2d at 902-03. As was true of his improper disclosure claim, Murphy’s
jury instruction claim is not properly before this Court because Murphy first presented
it on federal habeas review in his traverse, Tyler, 416 F.3d at 504. However, the district
court declined to give Tyler retroactive effect,3 thus, a discussion of the merits follows.

Though the Ohio Supreme Court noted that the “better practice” would have been
for the trial court to instruct the jury that it could consider Murphy’s psychological age

3
Declining to retroactively apply Tyler to bar Murphy’s claim, the district court denied the claim
on its merits, explaining:
In this instance, the jury’s question was directed to the third mitigating factor listed in
the jury instructions. The trial court’s response was directed solely to Ohio Rev. Code
§ 2929.04(B)(4). The trial court did not, however, preclude consideration of Petitioner’s
psychological age under the other relevant statutory subsections. Considering the
context in which the question was asked and the trial court’s specific answer, the Court
does not find that the jury was precluded from considering psychological age regarding
mitigation.
(JA 740.)
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 25

in the context of the other applicable mitigating factors, it ultimately found the trial
court’s instruction to the jury that only Murphy’s chronological age could be considered
under Ohio Rev. Code § 2929.04(B)(4) to be a proper statement of Ohio law. See State
v. Landrum, 559 N.E.2d 710, 718 (Ohio 1990) (citing State v. Rogers, 478 N.E.2d 984,
993 (Ohio 1985) (the “youth of the offender” in Ohio Rev. Code § 2929.04(B)(4) refers
to a defendant’s “chronological age”)). Moreover, the instruction did not preclude the
jury from considering Murphy’s psychological age under the other subsections of the
statute. Finally, Murphy’s argument that the Ohio Supreme Court’s decision did not
refer to Supreme Court precedent does not make its decision worthy of dismissal
because, as we have previously observed, a state-court decision can be found reasonable
as long as “neither the reasoning nor the result” of the decision contradicts United States
Supreme Court precedent. See Dennis v. Mitchell, 354 F.3d 511, 517-18 (6th Cir. 2003)
(quoting Early v. Packer, 537 U.S. 3, 8 (2002)). In summation, because Murphy has
failed to put forth evidence demonstrating the reasonable likelihood that the jury applied
the challenged instruction “unconstitutionally,” the Ohio Supreme Court’s properly
considered Boyd v. California, and Murphy’s claim does not warrant habeas relief.

C. The Ohio Court of Appeals’ determination that Murphy is not mentally
retarded is not an unreasonable application of federal law or an
unreasonable determination of the facts.4
Murphy claims that he is mentally retarded, and that, as such, he cannot be
sentenced to death under Atkins v. Virginia, 536 U.S. 304 (2002). The State counters
that Murphy’s Atkins claim does not warrant habeas relief because the Ohio Court of
Appeals’ denial of that claim on the merits was not an unreasonable application of, or
contrary to, applicable Supreme Court precedent.

In 2002, in the wake of Atkins, the Ohio Supreme Court pronounced Ohio’s
definition of what constitutes a mentally retarded individual for purposes of execution

4
In its December 5, 2001 memorandum opinion and order, the district court noted that Murphy
first raised his mental retardation claim in his traverse. This Court has since held that a district court may
decline to review a claim that a party raises for the first time in his traverse. See Tyler, 416 F.3d at 504.
But given the district court’s decision to allow the parties to brief Murphy’s Atkins claim, this Court should
not apply Tyler retroactively to bar the same.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 26

ineligibility in State v. Lott, 779 N.E.2d 1011, 1016 (Ohio 2002). The Lott analysis
mirrors the definitions of mental retardation used by the American Association of Mental
Retardation (“AAMR”) and the American Psychiatric Association (“APA”). Id. at 1014-
15. Under Lott, an individual is mentally retarded if he or she has: “(1) significantly
subaverage intellectual functioning, (2) significant limitations in two or more adaptive
skills, such as communication, self-care, and self-direction, and (3) onset before the age
of 18.” Id. at 1014. Moreover, although the Ohio Supreme Court clarified that IQ tests
alone are “not sufficient to make a final determination on this issue . . . there is a
rebuttable presumption that a defendant is not mentally retarded if her IQ is above 70.”
Id. (internal citations omitted). Murphy timely filed his Atkins claim, and, as such, he
bears the burden of proving that he is mentally retarded by a “preponderance of the
evidence.” Id. at 1016.

Murphy first asserted that he was mentally retarded in his twelfth claim for relief
in his first state petition for post-conviction relief. In 1995, an Ohio appeals court
affirmed the trial court’s application of res judicata as a procedural bar to Murphy’s
claim. Murphy, 1995 WL 275766, at *6-7. Murphy then filed a second petition for post-
conviction relief under Atkins in 2002. The trial court conducted an evidentiary hearing
on the matter in 2004, but found that Murphy was not mentally retarded and denied his
petition, reasoning:

1. The Defendant does not possess significantly sub-average intellectual
functioning which is a necessary requirement to be classified as being
mentally retarded.
2. Even though the Defendant-Petitioner has been evaluated by eight
different psychologists, not a single one has diagnosed him as being
mentally retarded.
3. Defendant-Petitioner’s IQ has consistently been found to be in excess
of 70, which provides a presumption that he is not mentally retarded.
4. After reviewing the tape recordings of the interviews with the
Defendant-Petitioner, this Court cannot conclude that the Defendant-
Petitioner lacked adaptive skills such as communication and self-
direction. In fact, this Court was impressed with Defendant-Petitioner’s
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 27

ability to communicate and logically carry on a conversation with the
police officers.
5. Any difficulties that the Defendant-Petitioner possesses did have an
onset before age 18.
(JA 828-29.) An Ohio appeals court affirmed the decision, Murphy, No. 9-04-36, 2005
WL 280446, at *6, and the Ohio Supreme Court declined further review. Murphy, 830
N.E.2d at 347.

In 2005, when Murphy amended his habeas petition to include his mental
retardation claim, the district court also denied relief, explaining that

[t]he State courts’ findings were not unreasonable because they were
based on the testimony of both experts at the hearing. While Murphy
chooses to emphasize different portions of the experts’ testimony in
support of his position, this Court is not free to disregard the [s]tate
courts’ factual findings merely because some of the hearing testimony at
times supported Murphy’s mental retardation claim. Instead, the Court
finds that there was ample evidence to support the [s]tate courts’ findings
based on the hearing testimony of Dr. Sunbury, who concluded that
Murphy was not mentally retarded, and Dr. Everington, who at various
points in the hearing stated that it was difficult to determine whether
Murphy had significantly subaverage intelligence.
(JA 926.) Accordingly, we must consider whether the Ohio appeals court’s finding that
Murphy was not mentally retarded was a reasonable application of and in accordance
with Supreme Court precedent. See Williams, 529 U.S. at 409.

At the state court evidentiary hearing, Murphy presented testimony by Dr.
Caroline Everington, a special educator with extensive training and twenty-five years of
experience in working with persons with disabilities, who endeavored to raise doubts
about the accuracy of Murphy’s IQ scores. Dr. Everington testified about her
examinations of eleven separate psychological evaluations of Murphy, conducted from
the time he was nine to when he reached age thirty-two. These test results varied
greatly. Over the years, Murphy achieved full-scale IQ scores ranging from 54 to 86,
and Dr. Everington testified as to the importance of these results, explaining:

Overall, the battery of neuropsychological tests show indication of
minimal brain dysfunction arising most notably in terms of frontal lobe
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 28

deficits and temporal lobe impairment. Information processing speed is
consistently slowed and Mr. Murphy has difficulty organizing
unstructured information efficiently and effectively. Abstract reasoning
tasks oftentimes proved to be quite overwhelming to him, leading to
impaired logical abilities, poor reasoning, and subsequently poor
judgment. These problems arise out of neurocognitive limitations and
deficits. Overall, the patient shows indication of having a significant
developmental delay in terms of intellectual functioning. He is also
showing indication of cognitive and reasoning deficits which effect his
ability to function normal in everyday society and interpersonal
situations.
(JA 1674.)

Because assessing Murphy’s IQ scores was difficult, Dr. Everington emphasized
the importance of assessing Murphy’s adaptive skills, testifying that such evaluations
provide “the best measure[] that we have right now, and what is included is what you
would call best practice, or the adaptive behavior scales. . . . And those are skills that are
normed on the typical population.” (JA 1450.) To conduct her assessment, Dr.
Everington used the Scales of Independent Behavior-Revised (“SIB-R”) adaptive skills
test, which she deemed one of the most “respected instruments” in the area of mental
retardation. Dr. Everington also relied on conversations she had with
“informants”—Murphy’s grandmother, Murphy’s brother, and a former social
worker—who provided her with their own observations of Murphy’s behavior when he
was growing up. Because Murphy had been incarcerated for a significant amount of
time when Dr. Everington administered the SIB-R, she had to “retrodiagnose” Murphy
from the time he was incarcerated, at age twenty-one. Also, given that at the time of Dr.
Everington’s evaluation, Murphy was already much older than eighteen (the cut-off age
for “mental retardation under Lott), Dr. Everington was forced to base her SIB-R
evaluation on the informants’ recollections about Murphy’s conduct from twenty-five
years earlier.

Summarizing the SIB-R results for the court, Dr. Everington noted that Murphy
appeared to function “more like a child . . . but did not maintain the functioning of a
household such as paying rent, or . . . [b]udgeting, buying supplies that are needed and
those kinds of things.” (JA 1463.) Specifically, Murphy did not manage his own
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 29

money, did not maintain a checking account or credit cards, and never lived on his own
or cared for himself. Also, though Murphy had some rudimentary cooking skills, he did
not grocery shop or plan meals. Dr. Everington concluded:

He has – has had clear deficits in adaptive skills throughout his life. And
those deficits are in the mental retardation range. And I would add that
they are more significant than you typically see with somebody who has
IQ scores in the range that he does. These are much more significant
than you typically see with somebody who has IQ scores in the 70s
where he does.
(JA 1468-69.)

The State challenged Dr. Everington’s interpretation of Murphy’s IQ test results
and attempted to undermine her assessment of Murphy’s limited adaptive skills, focusing
specifically on the problems of retrodiagnosis and the possibility that the informants
used were providing her with data that would aid Murphy’s claims. On cross-
examination, Dr. Everington agreed that in a “technical” sense, a diagnosis of borderline
mental retardation is not equivalent to a diagnosis of “mentally retarded.” Moreover,
the State noted that Dr. Everington had testified that because she was neither a
psychologist nor a pyschiatrist, unlike the numerous individual who had administered
the evaluations on which she had opined—none of whom had diagnosed Murphy as
“mentally retarded”—she was unqualified to make a diagnosis of mental retardation.

State: In fact, [Murphy’s] been evaluated by seven different psychologists who
performed Wechsler I.Q. Tests on him, and not a single one has diagnosed him
as being mentally retarded, isn’t that correct?
Everington: That is correct.
State: And you’re not a psychologist?
Everington: No, I’m not.
State: And you’re not a psychiatrist?
Everington: No, I’m not.
State: And you testified from the outset that you, you know, would not
be qualified to make the diagnosis yourself? You’d have to rely upon a
psychiatrist or a psychologist, did you not?
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 30

Everington: I made that statement, yes.
(JA 1478.)

The State then presented the testimony of its own expert, Dr. James Sunbury,
Ph.D. a psychologist whose practice includes work in the field of mental retardation.
Based on Dr. Sunbury’s two evaluations of Murphy—conducted in 1985 and 1987—Dr.
Sunbury concluded with a reasonable degree of psychological certainty that Murphy is
not mentally retarded but rather has “borderline intellectual functioning,” (JA 1521),
which translates to having an IQ “in the range of 70-83.” (JA 1523.) Unlike Dr.
Everington, who testified that adaptive skills are the most important consideration in
Murphy’s case, Dr. Sunbury argued that IQ scores should be the primary focus of an
assessment of an individual’s mental abilities:

State: Now, those [full scale IQ test scores], are they helpful to you in
rendering an opinion as to whether or not the Defendant suffers from
mental retardation?
Sunbury: Well, they pretty much rule out mental retardation.

State: Why so?
Sunbury: Well, you can’t have a valid score in the 80s on IQ tests and be
diagnosed with mental retardation.
State: Why not?
Sunbury: Because of the definition of mental retardation is IQ’s, full scale IQ’s
of 70 or below 70, 75 and below scored by the time the person was an adult,
before the person was an adult.
(JA 1528.)

Although Dr. Sunbury testified that he had administered an IQ test to Murphy
that resulted in a score of 66, he felt that the score was invalid and did not accurately
reflect Murphy’s abilities because Murphy told Dr. Sunbury that he “was just having
some fun” during the Minnesota Multiphasic Personality Inventory test, which had been
given on the same day as the IQ test. Dr. Sunbury also explained that although Murphy
suffered from other intellectual limitations, such as poor academic performance, conduct
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 31

disorder, and antisocial personality disorder, his “functioning in society has always been
very poor,” (JA 1535), and the foregoing problems and poor scoring on adaptive
behavior tests can be the result of “many other conditions” outside of mental retardation.
(JA 1535.) In short, Sunbury concluded that because Murphy’s only other IQ score
under 70, a 54, was an outlier that was not an accurate estimate of Murphy’s abilities and
that the rest of Murphy’s IQ scores were above 70, he suffers other intellectual
limitations, but he is not mentally retarded.

Murphy’s Atkins claim does not warrant habeas relief. In the IQ tests
administered before he turned nineteen, Murphy received the following scores: 86, 76,
54, 83, 76; and 82. Of those scores, both Dr. Everington and Dr. Sunbury considered the
54 to be an outlier, and there was no indication that the other evaluations had not already
considered the impact that an out-of-date test or some other measurement of error could
have on Murphy’s full-scale IQ. See In re Bowling, 422 F.3d 434, 437 (6th Cir. 2005)
(“[T]here is no indication that the psychologists who administered the IQ tests to
Bowling would not have already considered the adequacy and accuracy of the testing
mechanisms in calculating his scores or in using these instruments for evaluation in the
first place.”) Accordingly, under Lott, there is a rebuttable presumption that Murphy’s
IQ scores prevent him from being classified as mentally retarded. Further, we do not
find it to be an unreasonable evaluation of the facts that the trial court found that the
evidence presented at the Atkins hearing does not allow Murphy to overcome this
presumption.

The lack of clarity as to possible deficits in Murphy’s adaptive skills also
undermines his claim. In Bowling, petitioner’s mother submitted an affidavit containing
possible evidence of deficits in his adaptive skills, stating that he was: “slow in learning
to walk and in becoming toilet trained”; had scarlet fever when he was three years old
and suffered multiple head injuries as both an infant and a teenager; “wandered off as
a child and teenager, got into fights, and was a follower”; and “had problems with
money, difficulty in keeping jobs, and difficulty maintaining personal relationships.”
422 F.3d at 437. However, we denied petitioner’s request to file a second or successive
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 32

habeas petition based upon his Atkins claim because the information offered by his
mother did not indicate mental retardation. Id. at 438. We explained,

These limitations do not state a prima facie case for Bowling’s mental
retardation claim. Bowling’s known, diagnosed psychological problems
include attention deficit hyperactivity disorder, alcohol abuse, and a
personality disorder. These diagnoses provide an explanation for the
various problems noted by Bowling’s mother and sister. While some of
the problems may also be indicative of a low level of intellectual
function, their existence has little tendency to establish mental
retardation, given Bowling’s other diagnoses and the fact that the
psychological evidence is inconsistent with mental retardation.
422 F.3d at 438.

A similar determination can be made here. Dr. Everington’s evaluation of
Murphy’s adaptive skills is unreliable. Though Dr. Everington identified skill deficits
she found to be indicative of mental retardation—Murphy’s inability to maintain the
household or do chores around the house—this information was culled from third
parties’ assessments of Murphy’s abilities twenty-five years earlier. Moreover, Dr.
Everington acknowledged that Murphy’s adaptive skill deficits could be attributed to
something other than mental retardation, explaining that “[c]ertainly when you say
‘some other mental problem,’ you can’t separate. He does have a dual diagnosis, and
he does have some psychiatric issues as well.” (JA 1463.)

Also, though it was not considered at the hearing, other testimony presented at
Murphy’s trial suggests that Murphy’s adaptive skills were more developed than Dr.
Everington believed. For instance, Murphy’s mother, Stella, testified that Murphy
moved out of her house to live with his then-girlfriend, with whom he had a child.
Additionally, Dr. McBride, whose report was before the trial court at the evidentiary
hearing, stated that “[e]ven though [Murphy] was somewhat unkempt, he has the ability
to care for himself and his personal needs.” (JA 1684.)

In conclusion, although it is evident that Murphy has severe psychological
problems and certain mental deficiencies, these characteristics alone do not make him
“mentally retarded” such that his execution would violate Atkins. Lott, 779 N.E.2d at
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 33

1016; see Bowling, 422 F.3d at 438 (defendant’s psychological disorders, alcohol abuse
and personality disorder do not amount to mental retardation warranting the protection
of Atkins). Therefore, the Ohio appeals court’s resolution of this claim was not an
unreasonable application of, or contrary to, Supreme Court precedent, and we must
affirm the district court’s decision.

D. Murphy’s Sixth Amendment right to counsel was not violated by the
admission into evidence of numerous statements Murphy made to the police
The last issue before us is whether the trial court should have suppressed various
statements Murphy made to law enforcement when he was in police custody. Murphy
asserts that those statements should have been suppressed because the police coerced
him into making an involuntary, unknowing, and unintelligent waiver of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), in violation of his Sixth Amendment right to
counsel.

On direct appeal, Murphy alleged that the trial court improperly admitted his
statements to the police because they used inappropriate interrogation tactics and his
mental limitations undermined any conclusion that his statements were voluntary. The
Ohio Supreme Court rejected Murphy’s assertions, explaining:

The transcripts of the interviews reveal that each [round of interrogation]
was preceded by warnings, that knowing and voluntary waivers of his
right to counsel and privilege against self-incrimination were obtained
and the statements he made were the product of his own free choice.
This view is underscored by appellant’s exercise of his right to cease the
interview and consult an attorney on February 3, 1987, and is further
bolstered by the evaluation of Dr. Sunbury that “Joseph Murphy has
sufficient intellectual understanding of courtroom proceedings in general,
and his own legal difficulties in particular. He also has the ability to
cooperate with his attorneys. However, although he is not mentally
retarded and he is not psychotic, he does have a character or personality
disorder. He is unreliable and unpredictable and he may not tell his
attorneys the whole truth. He has fluctuating internal standards and is
manipulative. These behaviors represent Mr. Murphy’s personality style
and are not treatable as mental illness within any reasonable time
period.”
Murphy, 605 N.E.2d at 900.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 34

Murphy again alleged that the trial court improperly admitted his statements to
the police at trial as his first ground for relief in his habeas petition. He argued that in
addition to the police officers’ decision to ignore his mental deficiencies, they also failed
to ask him whether he wanted to waive his Miranda rights. The district court denied
Murphy’s claim, finding that he failed to rebut by clear and convincing evidence the
presumption that the factual findings of the trial court on the issue of coercion or the
validity of the waiver were correct. Murphy, No. 03-96-cv-07244 (Doc. No. 130) (N.D.
Ohio Dec. 5, 2001).

In Dickerson v. United States, 530 U.S. 428, 433 (2000), the Supreme Court
acknowledged that there are “two constitutional bases for the requirement that a
confession be voluntary to be admitted into evidence: the Fifth Amendment right against
self-incrimination and the Due Process Clause of the Fourteenth Amendment.”
Notably,“[a] statement is not ‘compelled’ within the meaning of the Fifth Amendment
if an individual ‘voluntarily, knowingly and intelligently’ waives his constitutional
privilege.” Colorado v. Spring, 479 U.S. 564, 573 (1987) (quoting Miranda, 384 U.S.
at 444). To protect this Fifth Amendment right, an “implied right to counsel” exists
“when a suspect is interrogated while ‘in custody’ or ‘otherwise deprived of his freedom
in any significant way.’” Abela v. Martin, 380 F.3d 915, 925 (6th Cir. 2004) (quoting
Miranda, 384 U.S. at 444).

“[T]he determination [as to] whether statements obtained during custodial
interrogation are admissible against the accused is to be made upon an inquiry into the
totality of the circumstances surrounding the interrogation, to ascertain whether the
accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and
to have the assistance of counsel.” Fare v. Michael C., 442 U.S. 707, 724 (1979) (citing
Miranda, 384 U.S. at 475-77). The totality of the circumstances can include such factors
as “age, education, and intelligence of the defendant; whether the defendant has been
informed of his Miranda rights; the length of the questioning; the repeated and
prolonged nature of the questioning; and the use of physical punishment, such as
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 35

deprivation of food or sleep.” McCalvin v. Yukins, 444 F.3d 713, 719 (6th Cir. 2006)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

Before trial, Murphy moved to suppress his statements to the police, and the trial
court conducted an evidentiary hearing. The following five statements were at issue:
(1) Murphy’s February 3, 1987 statement to Detective Creasap and Sergeant Gosnell;
(2) Murphy’s February 4, 1987 statement to Detective Creasap accusing Murphy’s
brother-in-law, Alvie Coykendall, of the murder; (3) Murphy’s March 17, 1987
statement to Detective Kauble and Captain Hayden admitting involvement, but claiming
that Coykendall committed the actual murder; (4) Murphy’s April 9, 1987 statement to
Sergeant Black and Detective Layne confessing to the murder; and (5) Murphy’s April
13, 1987 statement to Detective Kauble and the prosecutor during which Murphy entered
a plea of not guilty by reason of insanity. The details surrounding each of these
statements follow.

1. February 3 statement

On February 3, Detective Wayne Creasap and Sergeant J. L. Gosnell arrested
Murphy at the Wood Valley Trailer Park, and Murphy verbally received Miranda
warnings while in the police cruiser. At the Marion County Police Department, Murphy
was again advised of his Miranda warnings, this time, both verbally and in writing.
Murphy acknowledged that he understood his rights to silence and to have counsel, but
he agreed to sign a waiver form and to participate in an interview.

Murphy specifically agreed to speak with Gosnell, with whom he had a prior
relationship. Gosnell testified that he had known Murphy for about five years and knew
Murphy “well” given that he “has been involved in several cases that I investigated over
the past years, and – involving alleged arsons and thefts.” (JA 1156.) Gosnell also
added that he and Murphy “have camaraderie, I believe up to a certain point.” (JA
1159.) Murphy subsequently ended the February 3 interview by invoking his right to
counsel, stating: “I think I’m gonna stop and talk to my lawyer.” (JA 547.) The police
did not continue to try to question Murphy after that point.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 36

2. February 4 statement

Donald Griffin, a police officer with the Marion City Police Department working
as a jailer in the Marion City Jail, testified that on February 4, a jail trustee informed him
that Murphy wanted to talk to him. When Griffin approached Murphy, Murphy
indicated that he wanted to confess. Griffin then requested that another police officer
contact the detectives working on the Predmore murder case. At this point, Griffin knew
that Murphy was represented by an attorney, but he testified that since he did not know
the attorney’s name, he did not contact him.

Creasap, Gosnell, and Captain Frank Arnold were present at the February 4
interview with Murphy. After being advised of his Miranda rights, Murphy indicated
that he understood his rights but had decided to speak with the police and executed a
waiver form to the effect. In the interview, which was transcribed, Murphy indicated
that he had initiated the contact with the police through the jail trustee. Murphy also
indicated that although he knew that he had a right to counsel, he did not want his
attorney to be present.

Notwithstanding any discrepancy as to Murphy’s education level—Murphy told
Creasap he had only a third-grade education but later informed Gosnell that he had
actually completed the ninth grade—Gosnell and Creasap both verbally explained
Murphy’s rights to him and confirmed that he understood those rights. Gosnell believed
that Murphy understood the consequences of his decision-making and was aware of the
possibility of the death penalty in this case. Gosnell testified that he never made any
misrepresentations to or struck any deals with Murphy.

3. March 17 statement

William L. Thatcher, a jailer at the Marion County Sheriff’s Department, testified
that on March 17, Murphy again indicated that he wanted to discuss his case with a
police officer. Thatcher saw Murphy on a daily basis, knew that Murphy was
represented by counsel, and was aware that Murphy’s competency and sanity were an
issue. Thatcher conveyed Murphy’s request to Jack Kauble and Al Hayden.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 37

Kauble, a police detective for the Marion City Police Department, testified that
he interviewed Murphy on March 17 after he had advised of his Miranda rights both
verbally and in writing, and after Murphy signed a waiver of rights form. Kauble
testified that at this interview, Murphy indicated that he did not want counsel present.

4. April 9 statement

On April 9, while Murphy was being prepared to attend a court hearing, told
Charles Black, a sergeant in the Marion County Sheriff’s Department, that he wanted to
talk to a police officer about his case. Murphy specified, however, that he did not want
his counsel present. Greg Layne, a detective with the Marion County Sheriff’s
Department, met with Black and Murphy. Layne advised Murphy of his constitutional
rights to silence and to counsel, which Murphy waived. Layne told Murphy that neither
he nor Black could advise him or promise him anything; nevertheless, Murphy wanted
to meet with the prosecutor after his hearing, and the officers arranged a meeting.

At this meeting of Murphy, Black, Layne, and the prosecutor, Murphy said that
he wanted to be sent to the correctional facility in Chillicothe because he had received
letters that his life would be in danger in Lucasville. Layne testified that he had known
Murphy since Murphy was about sixteen or seventeen years old. Layne also testified
that he was “probably” aware of Murphy’s capabilities and limitations concerning the
ability to know right from wrong and to speak and understand English. Layne also
testified that though he knew about Murphy’s social and educational background, he was
not aware that Murphy’s competency and sanity were at issue.

5. April 13 statement

On April 13, Kauble and the prosecutor interviewed Murphy. Kauble advised
Murphy of his Miranda rights both verbally and in writing, and Murphy signed the
waiver of rights form. Kauble had explained the Miranda rights to Murphy. Murphy
did not want his counsel present, explaining that he was afraid that his attorneys would
prevent him from getting his confession over with. Kauble acknowledged that Murphy
had entered a plea of not guilty by reason of insanity.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 38

6. The totality of the circumstances shows that Murphy’s statements were
voluntary and that Murphy knowingly and intelligently waived his right
to counsel
Murphy asserts that his statements were involuntary because the police knew of
his mental limitations and pressured him to confess to Mrs. Predmore’s murder.
Significantly, the Supreme Court has acknowledged that recently, “interrogators have
turned to more subtle forms of psychological persuasion,” resulting in greater emphasis
being placed upon the defendant’s mental condition when determining the voluntariness
aspect of a confession. Colorado v. Connelly, 479 U.S. 157, 164 (1986); see Smith v.
Mullin, 37 F.3d 919, 935 (10th Cir. 2004) (finding a defendant’s mental impairments
relevant because they can enhance a defendant’s “susceptibility to police coercion”).
However, the Court also explained that “this fact does not justify a conclusion that a
defendant’s mental condition, by itself and apart from its relation to official coercion,
should ever dispose of the inquiry into constitutional ‘voluntariness.’” Connelly, 479
U.S. at 164. Indeed, in Clark v. Mitchell, we determined that a borderline retarded
defendant had voluntarily confessed where the police read him his Miranda rights aloud,
and where he affirmed his understanding of those rights after each paragraph, signed a
waiver form, and was offered the chance to make corrections to his tape-recorded
statements. 425 F.3d at 283. In so doing, we explained that the defendant’s “borderline
retardation” or “low average intellect” was “not dispositive” on the question of
voluntariness, and reasoned, “[o]ur sister circuits have found several instances where
defendants, despite their mental retardation or low IQ’s, were found to have waived their
rights knowingly and intelligently. Id. at 283-84 (citing United States v. Turner, 157
F.3d 552, 555 (8th Cir. 1998) (holding that defendant’s borderline IQ did not prevent
knowing and intelligent waiver of rights); Correll v. Thompson, 63 F.3d 1279, 1288 (4th
Cir. 1995) (determining that despite defendant’s IQ of 78, he gave a valid waiver
because he received warnings several times, both while in custody for the crime at issue
and for prior crimes); Rice v. Cooper, 148 F.3d 747, 751 (7th Cir. 1998) (holding that
mildly retarded defendant gave valid waiver because police had no reason to suspect that
he did not understand the warnings).
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 39

As in Clark and the other cases mentioned above, Murphy’s low intelligence
alone does not make the officers’ actions in questioning him coercive. Moreover, though
the facts do not suggest that the officers engaged in improper tactics when questioning
Murphy, “not all psychological tactics are unconstitutional.” Ledbetter v. Edwards, 35
F.3d 1062, 1067 (6th Cir. 1994) (though officers lied to petitioner to induce his
statement and questioning took place in the midnight hours, confession was voluntary
where no physical punishments or threats were used, defendant was not denied physical
necessities, and the interrogation was not unduly lengthy); see also United States v.
Thomas, No. 96-6079, 1997 WL 764495, at *2 (6th Cir. Dec. 4, 1997) (confession was
voluntary where uniformed, armed officers told the defendant that it would be better if
he told the truth but never opined as to defendant’s possible punishment or promised him
leniency). Thus, because Murphy’s mental deficiencies alone do not support his
assertions, where Murphy has failed to submit any other reasons that his statements were
involuntary, absent police coercion, we find reasonable the conclusion by the Ohio
Supreme Court that Murphy voluntarily waived his Miranda rights. See id. (citing
Spring, 479 U.S. at 574).

Considering the totality of the circumstances, Murphy cannot support his
argument that he did not knowingly and intelligently make his statements to the police.
Before Murphy made each statement at issue, the police advised him of his Miranda
rights, which he acknowledged and waived. Assertions that Murphy may not have
understood his rights or the context of the questioning given his age, education, and
intelligence are belied by the record. Importantly, Murphy was twenty-one years old and
familiar with the procedures associated with police interrogation and the criminal justice
process. See Smith, 379 F.3d at 934 (defendant’s prior experience with the criminal
justice system a consideration in determining whether his waiver was knowing and
intelligent). Detective Kauble testified that Murphy understood his right to remain silent
as well as the fact that any statements could be used against him. Moreover, before he
was put in custody for the murder of Mrs. Predmore, Murphy had several experiences
with police interviews, during which time he was advised of his Miranda rights,
acknowledged his understanding thereof, and signed a waiver of rights form.
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 40

We have expressed concern about the voluntariness of a confession made by
mentally impaired criminal defendant when that impairment is known to the police,
noting “[w]hen a suspect suffers from some mental incapacity, such as intoxication or
retardation, and the incapacity is known to interrogating officers, a ‘lesser quantum of
coercion’ is necessary to call a confession into question.” See Hill v. Anderson, 300 F.3d
679, 682 (6th Cir. 2002) (quoting United States v. Sablotny, 21 F.3d 747, 751 (7th Cir.
1994)). Nevertheless, Murphy demonstrated that he understood the role of counsel as
well as the gravity of the situation in which he found himself. During the February 3
interview, Murphy waived his right to counsel because he saw no reason not to talk to
Gosnell, and he later independently decided to terminate the interview. At the
suppression hearing, Murphy testified: “Only thing I know is every time I get arrested,
the Court – I got before the Court. The Judge says I can get a lawyer, so I go ahead and
get a lawyer and I just do whatever my lawyer tells me to do.” (JA 239-40.) Here,
Murphy spoke to the police without the benefit of counsel because he was angry with
his attorney for allegedly disparaging the Murphy family; however, Murphy confirmed
at each police interview that he understood that he had the rights to remain silent and to
have his counsel present. Moreover, when Murphy sought to talk to the police on
February 4, March 17, April 9, and April 13, the record shows that he specifically told
the officers that he did not want his attorneys present.

Moreover, the fact that Murphy initiated the questioning that led to the majority
of the statements at issue further supports a finding that Murphy’s waiver was knowing
and intelligent. In Edwards v. Arizona, 451 U.S. 477, 485 (1984), the Supreme Court
held that if an accused requests counsel during an interrogation, the police must cease
all questioning “unless the accused himself initiates further communication, exchanges
or conversations with [them].” See also United States v. Ware, 338 F.3d 476, 480 (6th
Cir. 2003). It is undisputed that Murphy sought out the officers before making four of
the five statements he wanted suppressed. Murphy testified that he spoke with the police
because he wanted to avoid receiving the death penalty and because he wanted to be sent
to the Chillicothe, Ohio prison rather than to the Lucasville, Ohio facility where he had
been previously threatened with physical harm by another inmate. Murphy added that
Nos. 00-4558; 06-4428 Murphy v. State of Ohio Page 41

he wanted to talk to the police also because he had been in isolation, which “would make
someone want to come out no matter what they did.” (JA 212.) The evidence also
shows that he pleaded guilty in part because he wanted to be removed from isolation and
“get this whole thing over with.” (JA 214.) Nonetheless, the officers’ responses to
Murphy’s requests to talk cannot be held against them, and the facts do not suggest
coercion. Rather, they suggest that Murphy recognized the seriousness of his situation
and thought that confessions would help him receive leniency for committing such a
heinous crime.

Finally, Dr. Everington’s opinion that the Grisso test she administered shows that
Murphy’s waiver of his rights was not knowing and intelligent does not change our
analysis. The Grisso test is “specifically designed to ‘assess [] a defendant’s
comprehension of the Miranda warnings themselves’ and ‘provid[e] a comparison of the
defendant’s performance to that of other defendants of various ages and levels of
intelligence.’” Thomas Grisso, Instruments for Assessing Understanding & Appreciation
of Miranda Rights 4 (1998). Based upon her administration of the test, Dr. Everington
opined that Murphy did not fully comprehend Miranda warnings or his right to remain
silent. She also testified that Murphy’s cognitive limitations increased the likelihood
that he misunderstood his interactions with the police officers. This Court has not yet
determined the reliability of the results of the Grisso test. See Garner v. Mitchell, 502
F.3d 394, 414 (6th Cir. 2007), rehearing en banc granted, opinion vacated (Jan. 3,
2008). Moreover, Murphy's Grisso test results are inapposite to the district court’s
factual findings that Murphy’s testimony at the suppression hearing indicated that he was
simply trying to work out a deal with the prosecution. Therefore, the Grisso test results
do not change our decision to uphold Ohio state courts’ finding that the officers did not
coerce the statements Murphy sought to have suppressed at trial, and we affirm the
district court’s denial of Murphy’s final claim for habeas relief.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the denial of Murphy’s petition for a
writ of habeas corpus.