Richard M. Frazier v. Stephen J. Huffman, Warden

BATCHELDER, Circuit Judge,

concurring in part and dissenting in part.

The majority entertains the question of whether Frazier received the effective assistance of counsel at the mitigation stage of his trial, despite the fact that the Ohio courts never reached that question because, they held, Frazier’s claim was barred by the state law doctrine of res judicata. Because Frazier’s claim of ineffective assistance of counsel is procedurally defaulted and this court consequently has no business considering the merits of that claim, I respectfully dissent from the majority’s holding in Part II.D of its opinion. To the extent that the claims addressed in Parts II.C and II.E are not waived or procedurally defaulted, I concur in the majority’s treatment of those claims, see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”), as I do in the remainder of its opinion.

I

Before addressing the legal arguments the majority makes in Part II.D, it is important to understand the treatment of Frazier’s ineffective assistance of counsel claim by the Ohio courts. After his conviction and sentencing in state trial court, Frazier appealed to the Ohio Court of Appeals, where he raised fourteen assignments of error. In none of those assignments did Frazier mention the issue of the effectiveness of his trial counsel, despite the fact that Frazier’s attorneys on appeal were not the same lawyers that represented him at trial.1 On appeal by right to the Ohio Supreme Court, Frazier once again failed to raise his claim of ineffective assistance of counsel.

After the United States Supreme Court denied Frazier’s petition for a writ of cer-tiorari, he brought a petition under Ohio Rev.Code § 2953.21 (1997),2 to vacate or *803set aside his sentence in the Cuyahoga County, Ohio, Court of Common Pleas, and asserted for the first time that his trial counsel were ineffective because they failed to investigate and present mitigating evidence at the sentencing phase of his trial. The Court of Common Pleas, without addressing the merits of this claim, stated as follows:

Consistent with the principles of res ju-dicata, matters which have been or should have been raised on direct appeal may not be considered in post-conviction proceedings. State v. Ishmail (1981), 67 Ohio St.2d 16, 428 N.E.2d 1068. In addition, where a defendant, represented by new counsel on direct appeal, fails to raise the issue of competent trial counsel and said issue could fairly have been determined without evidence [beyond] the record, res judicata is a proper basis for dismissing the defendant’s Petition for Post Conviction Relief. State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169.

J.A. at 312 (Court of Common Pleas opinion). Because, the court held, Frazier’s trial counsel were different from his counsel on direct appeal, “[a]ny [in]effective assistance of counsel [claim] concerning trial counsel’s performance should have been raised on direct appeal in accordance with Cole.” Id. The court therefore granted the State’s motion to dismiss, and denied Frazier’s request for an evidentiary hearing.

The Ohio Court of Appeals affirmed. After examining the “new evidence” of his “organic brain impairment” that Frazier claimed was unavailable at trial,3 the court held that the evidence was not new, and hence did not permit Frazier to overcome the bar of res judicata. The court noted that “it can reasonably be concluded trial counsel were appraised of the purported brain injury from their review of the medical records; however, as a matter of trial strategy counsel deemed this avenue of defense unworthy of further pursuit.”4 State v. Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct.App. Dec. 11, 1997). This conclusion, the court said, was “reinforced” by three factors, namely, (1) counsel’s argument that a psychologist would merely interpret the findings of the mitigation expert; (2) counsel’s filing of a motion to limit reference to mitigating factors; and (3) “the thorough and professional manner in which counsel conducted appellant’s defense....”5 Id. These statements *804by the Ohio Court of Appeals were not made in the context of discussing the merits of Frazier’s claim of ineffective assistance of trial counsel, but in the context of determining whether that ineffective assistance claim was barred by the state law doctrine of res judicata. The Common Pleas Court, without reaching the merits of that claim, had granted the state’s motion to dismiss Frazier’s post-conviction petition, holding that the claim was barred by res judicata. The Court of Appeals affirmed that judgment, mentioning the merits only to the extent of explaining their conclusion that the “new”evidence of head injury Frazier urged the court to rely on in order to get around the res judicata bar was not new at all.

II

Respondent Huffman raises Frazier’s “failure to present the [ineffective assistance of counsel] claim and the facts in support of it to the state courts.” Huffman Br. at 49-50. Notwithstanding the Supremacy Clause of the Constitution, see Cooper v. Aaron, 358 U.S. 1, 18-19, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), federal habeas courts are not free to undertake a plenary review of all claims brought pursuant to 28 U.S.C. § 2254. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (“a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts”). Instead, this court must first consider whether Frazier’s ineffective assistance of counsel claim is properly before it prior to discussing the merits of that claim.

This issue “concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.” Coleman v. Thompson, 501 U.S. 722, 726, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court has held that “[w]here the petitioner ... failed properly to raise his claim on direct review, the writ [of habeas corpus] is available only if the petitioner establishes ‘cause’ for the waiver and shows ‘actual prejudice resulting from the alleged ... violation.’ ” Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (quoting Wainwright v. Sykes, 433 U.S. at 84, 97 S.Ct. 2497). This rule applies when a state court, relying upon a state rule of law, refused on collateral appeal to consider a claim that the petitioner could have raised on direct review, and the petitioner now raises the same claim on habeas appeal. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that petitioner’s claim, which he failed to raise on direct review in state court, was proeedurally defaulted because the Illinois appeals court refused, on the basis of a state law doctrine of res judica-ta, to consider the claim in a state collateral proceeding); Coleman v. Mitchell, 268. F.3d 417, 428-29 (6th Cir.2001) (Clay, J.) (holding that Ohio’s doctrine of “res judi-cata under § 2953.21[is] an adequate and independent state ground justifying foreclosure of constitutional claims” in habeas proceedings); see generally Coleman v. Thompson, 501 U.S. at 729-30, 111 S.Ct. 2546 (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.”).

This court’s initial obligation with regard to Frazier’s ineffective assistance of counsel claim, which the Ohio courts held was barred by res judicata, is to determine whether the claim is in fact proeedurally defaulted. First, we must consider whether Ohio’s procedural bar to Frazier’s raising his constitutional claim was “firmly established and regularly followed” at the *805time the Ohio Court of Appeals ruled. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). It clearly was. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), the case on which the Court of Common Pleas relied, and which was subsequently cited by the Ohio Court of Appeals as support for its holding on res judicata, is not only itself established, but relies directly upon the 1967 case of State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). State v. Perry was cited by this court when we held that “application of res judicata ... is an adequate and independent state ground for barring habeas review of constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429.

Second, we must determine whether the state’s procedural rule barring review is an adequate and independent state ground sufficient to foreclose review of constitutional claims. I have already cited authority establishing that Ohio’s doctrine of res judicata meets this requirement. See id.; see also Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir.2003) (reaffirming Coleman v. Mitchell’s holding that Ohio’s doctrine of res judicata is an adequate and independent state ground).

Third, we must be sure that the last state court to rule on Frazier’s claim actually disposed of that claim on a state law procedural ground.6 Thompson, 501 U.S. at 734-35, 111 S.Ct. 2546. “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations omitted). So long as the state court does so, its finding of procedural default precludes consideration by a federal court even when the state court also analyzed the defaulted claim under federal law. Id. at 264 n. 10, 109 S.Ct. 1038. In this case, the majority uses as its tenuous springboard to launch into the merits of Frazier’s ineffective assistance claim- — without ever addressing whether the claim was procedurally defaulted — a patently incorrect characterization of the Ohio Court of Appeals’ ruling: “Frazier’s ineffective-assistance claim was rejected by the Ohio Court of Appeals on the basis of the first prong of Strickland.” Supra, at 794. In fact, as I discussed above, the Ohio Court of Appeals held that “the trial court properly applied the doctrine of res judicata.” Frazier, 1997 WL 764810, at *6. That court never mentioned Strickland or any other federal court precedents pertaining to ineffective assistance of counsel (with the exception of one—Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995) — upon which Frazier relied but that contained facts “inap-posite” to those of the present case). Even if the Ohio Court of Appeals had analyzed the merits of Frazier’s ineffective assistance claim, its distinct holding based upon the state law doctrine of res judicata is sufficient to bar our consideration of that claim unless Frazier can show cause and prejudice.

*806Finally, we must examine whether the Ohio Court of Appeals, which applied the doctrine of res judicata and rejected Frazier’s contention that his claim was based upon evidence outside the record, actually “discuss[ed] any of that evidence, ma[d]e specific factual findings on the matter, or provide[d] any reasoned analysis” to uphold its decision. Williams v. Coyle, 260 F.3d 684, 696 (6th Cir.2001). “Without such analysis, we are unwilling to rule that the claim is procedurally barred.” Id. In this case, the Ohio Court of Appeals discussed the “new” evidence put forth by Frazier, including the affidavit of psychologist Sharon L. Pearson, who opined that Frazier should have been examined by a licensed psychologist as part of his mitigation defense. Frazier, 1997 WL 764810, at *6. Moreover, the court explained — in the portion of its opinion that the majority confuses for a Strickland analysis — the basis for its conclusion that Frazier’s trial counsel were aware of Frazier’s head injury and therefore why the evidence dehors the record was not sufficient to overcome the procedural bar of res judicata. Id. The Ohio Court of Appeals’ analysis was more than sufficient to comply with the requirements of Williams v. Coyle.

Therefore, this court is required to determine whether Frazier can show both cause and prejudice for his failure to comply with Ohio’s procedural rule. Clearly, he cannot. Frazier has not shown any cause for his failure to raise on direct appeal his claim of ineffective assistance of counsel. In his brief before this court, he fails to address the issue of procedural default at all, and instead launches directly into a discussion of the merits of his claim. “We ... require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Frazier has not even attempted to make such a demonstration, and any excuse Frazier might now present for his failure to raise his ineffective assistance claim properly on direct appeal is waived. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir.1996) (citing Fed. R.App. P. 28 and noting that the court “normally decline[s] to consider issues not raised in the appellant’s opening briefs”).

The one means by which Frazier could bypass the requirement that he show cause is extraordinary: “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The present issue concerns whether Frazier was sentenced fairly, and so “the ‘actual innocence’ requirement must focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.” Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Since Frazier only claims that the alleged ineffective assistance of his counsel resulted in a failure to present available mitigating evidence at the sentencing phase, and since the evidence of his brain impairment does not call into question the jury’s finding of aggravating factors, Frazier cannot use the doctrine of “actual innocence of the death penalty” to excuse his procedural default. Id. Moreover, since Frazier does not set forth any evidence which, if believed, might lead a trier of fact to find him innocent of the murder of Tiffany Skiba, he cannot meet Carrier’s actual innocence standard, namely, that the alleged constitutional error probably resulted in the conviction of a defendant who was actually *807innocent. Schlup v. Delo, 513 U.S. 298, 322-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Ill

All means of circumventing the Ohio courts’ holding that Frazier’s ineffective assistance claim was barred by res judica-ta have been foreclosed; this court therefore has no legal authority to consider the merits of that claim. In so doing, the majority contravenes clearly established precedent of the United States Supreme Court and this Circuit, and “undermine[s] the State’s interest in enforcing its laws.” Coleman v. Thompson, 501 U.S. at 731, 111 S.Ct. 2546. I therefore dissent.

. Frazier did challenge the constitutionality of several Ohio statutes on the basis that those statutes worked to deprive him of the effective assistance of counsel. However, he did not argue on direct appeal that his counsel were ineffective.

. Ohio Rev.Code § 2953.21 provides, when a prisoner has filed for post-conviction relief, that "[ujnless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues....” § 2953.21(E) (1997). However,

[b]efore granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, [and] all the files and records pertaining to the proceedings against the petitioner....

§ 2953.21(C).

. Ohio law provides that the procedural bar of res judicata does not apply in this context if the petitioner sets forth, in support of his newly raised claim, evidence that was not available at trial or on direct appeal, and without which the defense could not have been expected to raise the new claim. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 171 (1982).

. The majority agrees with the Ohio courts’ factual finding that Frazier's trial attorneys knew enough about his head injury to present that evidence for mitigation purposes: "Although information about the nature and severity of the injury was less thoroughly developed in those [state postconviction] proceedings than it is now, sufficient facts were presented to indicate the existence of evidence concerning Frazier’s brain injury that could have been developed and presented to the jury during the penalty phase.” Supra, at 797.

.The majority correctly notes that "[t]he first two factors ... have no relevance in explaining how the strategy ultimately pursued by Frazier’s counsel was reasonable.” Supra, at 796. But this statement indicates that the majority misunderstands the legal analysis that the Ohio Court of Appeals undertook. The Ohio Court of Appeals was not seeking to support the "reasonableness" of the trial counsel’s investigatory tactics (or lack thereof); rather, the court was explaining the basis for its conclusion that trial counsel was aware of evidence Frazier claimed was not available at trial, a matter to which the first two factors are obviously relevant.

. While the Ohio Supreme Court was actually the last state court to rule on Frazier's collateral appeal, the Court summarily "decline[d] jurisdiction to hear the case and dismisse[d] the appeal as not involving any substantial constitutional question.” J.A. at 345 (Ohio Supreme Court order). This court therefore looks to the Ohio Court of Appeals decision as the final reasoned state court decision for purposes of considering procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (holding that a federal court looks through an unexplained order "to the last reasoned decision,” and does not assume that the unexplained order lifts the prior holding that the claim at issue was procedurally barred).