dissenting.
I respectfully dissent from the majority’s conclusions that there was insufficient evidence against Richey on the charge of aggravated felony murder, that this issue was not procedurally defaulted, and that trial counsel was ineffective in his handling of his expert witness, DuBois.
The first issue, insufficiency of the evidence, due to the fact that Richey could not have been sentenced to death for the aggravated felony murder charge under Ohio Revised Code § 2903.01 through transferred intent, is procedurally defaulted. As the majority opinion states, Richey has conceded that he did not raise this claim at trial or on direct appeal. The district court correctly found that this issue was procedurally defaulted. As it said: “Richey did raise an insufficiency of evidence claim to the Ohio Supreme Court, although that claim asserted only that his conviction rested on solely circumstantial evidence.” The Ohio Supreme Court discussed transferred intent only as a sub-issue under the issue of circumstantial evidence. See State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915, 925 (1992). Transferred intent is not one of the issues listed in the certificate of appealability. To the contrary, the district court denied a certificate of appealability on this issue, and we did the same. Therefore, the question of transferred intent can only be approached by this court as a subpart of the certified issue on appeal of the ineffective assistance of appellate counsel either by the failure of appellate counsel to raise the question on direct appeal, or the failure of appellate counsel to raise the question of ineffective assistance of trial counsel for his failure to argue the issue of transferred intent before the trial court.
As the district court correctly found, this assertion is in the nature of a faulty indictment claim, which must be raised prior to trial under Ohio Rule of Criminal Procedure 12. Of course, Richey gets around that barrier by asserting that the Ohio Supreme Court reached the issue of transferred intent, but it was part of its ruling on the sufficiency of the evidence, not as a separate issue. Nevertheless, the majority has accepted Richey’s argument of skirting the procedural default by finding that trial counsel was ineffective for failing to challenge the sufficiency of the evidence under this transferred intent issue, and that appellate counsel was ineffective for failing to raise the ineffectiveness of trial *689counsel on that point. However, that issue was also procedurally defaulted, because of the failure by Richey to timely reopen his appeal in the Ohio courts under Ohio Rule of Appellate Procedure 26(B), as the Ohio Supreme Court held that the motion was untimely. Nevertheless, assuming that it was not barred by an untimely application under Rule 26(B), as the district court found, I would still find that there was no ineffective assistance of appellate counsel for failing to raise the ineffective assistance of trial counsel on this point of transferred intent. The reason for my conclusion is simple. The Ohio Supreme Court found that the doctrine of transferred intent applied in this case when it said “ ‘[t]he doctrine of transferred intent is firmly rooted in Ohio law.’ ” Richey, 595 N.E.2d at 925 (quoting State v. Sowell, 39 Ohio St.3d 322, 530 N.E.2d 1294, 1305 (1988)). It held that the doctrine of transferred intent was applicable under Ohio Revised Code § 2903.01(B). Therefore, had counsel raised the issue before the trial court and preserved it on appeal, the issue would have been lost before the Ohio Supreme Court.
The majority admits that the Ohio Supreme Court ruled that transferred intent is applicable under the charge in this case. However, it has essentially eviscerated the power of the Ohio Supreme Court to interpret its own statutes. It relies upon the language from State v. Mullins, 76 Ohio App.3d 633, 602 N.E.2d 769, 771 (1992). However, the language quoted from Mullins is dictum, for the holding was that the doctrine of transferred intent applied in a case where the defendant was charged under Ohio Revised Code § 2903.02(A). Obviously, the Ohio Supreme Court did not feel bound by it, not only because it was dictum but it came from a lower court. Instead, the Ohio Supreme Court interpreted the Sowell case and found that transferred intent had always applied in similar cases.
The majority correctly states that the scope of review under AEDPA requires that we uphold the decision of the Ohio Supreme Court unless it: (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). I am not certain on which of these prongs the majority has anchored its decision, but it seems to be that it was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court. It cites Fiore v. White, 531 U.S. 225, 228-29, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), which held that a state criminal conviction violates the Due Process clause of the Fourteenth Amendment when a person is convicted of a crime when the elements of the crime have not been proven beyond a reasonable doubt. In Fiore, the crime for which the defendant was convicted was the failure to possess a permit for the operation of a hazardous waste facility. The Commonwealth agreed that it had not proven that basic element. To the contrary, in this case at bar, the State met its burden to prove intent through the doctrine of transferred intent, which was the law in Ohio at the time of this crime, as interpreted by the Ohio Supreme Court.
The majority also relies upon Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), for the proposition that the Ohio Supreme Court could not retroactively expand the criminal act prohibited under Ohio law. However, the Ohio Supreme Court held that its decision in this case followed the law which had been in Ohio for many years preceding Richey’s conviction. Therefore, the Ohio Supreme Court’s ruling on transferred intent was neither contrary to nor involved *690an unreasonable application of clearly established Federal law as determined by the Supreme Court. From Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), under the “unreasonable application” clause,
a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
I suggest that the Ohio Supreme Court did not make any unreasonable application of clearly established Federal law here, nor was it contrary to Fiore or Bouie. It is best to leave it up to the Ohio Supreme Court to decide the application of its own laws, so long as it does not do so unconstitutionally. Cf. Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (“A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous.”). Thus, appellate counsel was not ineffective for not raising ineffective assistance of trial counsel on this issue.
I also respectfully disagree with the majority on its conclusion that Richey was deprived of the effective assistance of counsel at the guilt phase of his trial. The Ohio Court of Appeals found that counsel was not ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Richey, 1997 WL 722782, at *3 (Ohio Ct.App.1997). Therefore, because it correctly identified Strickland as the authoritative case governing Richey’s claim, we must decide whether its application of the Strickland standard was “objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. It is Richey’s “burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)(per curiam).
I agree with the majority that this issue is not procedurally defaulted, due to the fact that the Ohio Court of Appeals ruled on it and the circumstances of this claim depend on evidence outside the trial record. However, I disagree with the majority on the issue of deficient performance, so I do not discuss the question of prejudice as an alternative basis except for one minor point. The majority finds several errors amounting to ineffective assistance on the selection and use of the expert witness, DuBois. The majority concludes that Du-Bois was unqualified for several reasons. However, in Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir.2000), we noted that a claim “that the petitioner is entitled to a competent expert in his defense,” has never been “explicitly adopted by this Court.” Accord Campbell v. Coyle, 260 F.3d 531, 550-51 (6th Cir.2001). The record does not support Richey’s allegation that counsel retained DuBois without performing an adequate background check. Richey makes much of DuBois’s academic inexperience in the fields of forensic science and fire investigation, but it appears that his in-class training consisted of courses in fire investigation taught by members of the Ohio Fire Marshal’s Office, the very entity he was hired to critique. There is no suggestion in the record that counsel was put on notice that DuBois was either incompetent or unqualified to serve as Richey’s expert. The majority infers that it was wrong to find him through a promotional flier, but that does not disqualify an expert. After counsel contacted DuBois and discussed some of the facts of the case, DuBois sent a follow-up letter explaining the services he and his employer would provide. The letter included the fact that his business would “investigate the cause and origin of a fatal apartment fire.” It would “include a visit to the fire *691scene, review of available information and reports, and a preliminary report of our findings.” He also estimated that he could do it in ten hours. DuBois listed his company’s services, which included fire and explosions investigations. Nothing in his resume or company profile indicated that he was either incompetent or unqualified to serve as an expert. Moreover, DuBois indicated that his company was involved in approximately 400-500 fire investigations prior to 1987 and he played some role in almost all of them. In 1986 alone, DuBois was involved in 10-30 arson investigations. Based on the foregoing, it cannot be said that the decision to hire DuBois was “objectively unreasonable” pursuant to Strickland. Although his classroom training in forensic science and fire investigation was fairly limited, counsel could not have been on notice of such limitations, and any academic inadequacies seemed to have been compensated for with practical field experience. Obviously, there may have been experts out there somewhere who were better qualified, but the law does not require counsel to search throughout the world to find the best expert in the field and hire him. See Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir.1995).
The majority also finds fault in counsel’s delay in meeting with DuBois and limiting the initial investigation to ten hours. However, these sub-claims were never raised in State court, so they were procedurally defaulted. Even if these sub-issues were not procedurally defaulted, the claims cannot prevail on the merits. Although counsel’s delay in providing DuBois with the State’s scientific report and data prevented DuBois from conducting an independent test of the extracts, Richey has not argued that counsel knew of or should have known of the short lifespan of the extracted compounds. This is not a situation where an attorney was aware of a particular risk and ignored it; rather, this is a situation where only with the benefit of hindsight that counsel’s delay could have been harmful. The Supreme Court has warned that “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, Dr. Armstrong testified that his review of the data suggests that there were no extracts available to be tested following the State’s initial test. That is, the State’s original tests used up all the extracts. Thus, regardless of how soon counsel could have insisted that DuBois conduct his own tests, no tests could have been performed. Richey has not alleged that the State violated any laws in the course of conducting the tests. Furthermore, the fact that extracts were not available in this case did not prevent Dr. Armstrong from later rendering an opinion as to the accuracy and validity of the State’s tests.
The limitation of ten hours for the work of the expert shows nothing. Richey has not shown prejudice under Strickland. DuBois testified that he spent more than ten hours on the case and his biggest limitation was not being able to see the fire scene carpeting, which was not the result of counsel’s alleged ineffectiveness.
The majority also criticizes counsel’s failure to inform DuBois about the fact that the carpet was removed from a dumpster on a parking lot located near gasoline pumps. But DuBois was ambiguous about this. In his deposition, he said he probably knew it. He also said:
I do recall [counsel] told me that the carpeting had been thrown out and — I probably misstated whether or not he told me it had been sampled and then thrown in the dumpster or thrown in the dumpster then sampled. But I did know that there was some questionable *692handling of the carpeting after the fire, and [counsel] was rather upset about it.
Counsel also raised this at trial. Therefore, it is unclear whether counsel withheld this information from DuBois. Thus, Richey has not carried the burden to show this conduct to be objectively unreasonable behavior.
Next, the majority criticizes the fact that trial counsel placed DuBois on his witness list and then failed to mitigate the mistake. Although counsel did not have DuBois’s report, he was obligated to disclose the name of this witness under the Ohio Criminal Rules. He had a tactical reason for disclosing the name of the expert, so he was not ineffective by making such a disclosure. Moreover, counsel was not ineffective for failure to quash the subpoena or otherwise contest his testimony. The Ohio Supreme Court discussed the underlying merits of that issue. See Richey, 595 N.E.2d at 922-23. It indicated that the prosecution’s use of a defense expert does not violate the rights of an accused, unless there is a disclosure of confidential communications between the attorney and the client. In this case, there were no such problems. Therefore, any objection or attempt to quash the subpoena would have been unsuccessful. If counsel was thinking of the possibility of calling DuBois as a witness, he had to list his name, even when he did not yet have DuBois’s report. Otherwise, had DuBois filed a report favorable to Richey, counsel may not have been able to use DuBois.
Finally, the majority criticizes counsel for failing to offer any competing scientific evidence or to screen, supervise, or engage DuBois. However, counsel does not have a duty to “continue looking for experts just because the one he has consulted gave an unfavorable opinion.” Dees v. Caspiri, 904 F.2d 452, 454 (8th Cir.1990)(per curiam). Unless a defense attorney has reason to doubt the objectivity of an expert, the failure to obtain a new “impartial” expert will not be objectively unreasonable. See Jones v. Murray, 947 F.2d 1106, 1112 (4th Cir.1991). DuBois reviewed the results of the tests from the State’s expert and agreed with them. There was nothing to indicate to counsel that the results were not correct. The Supreme Court has indicated that post-AFDPA claims of ineffective assistance of counsel will succeed only in limited circumstances. In Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Court stated:
For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the ... Court ... applied Strickland to the facts of his case in an objectively unreasonable manner.
Id. at 698-99, 122 S.Ct. 1843 (internal citations omitted). Richey has not done that here. Therefore, I would not find that the decisions of the Ohio courts were contrary to or unreasonable applications of Federal law as interpreted by the Supreme Court. Thus, I would affirm the decision of the district court in denying the petition for a writ of habeas corpus.