Gerald Hand v. Marc Houk , 871 F.3d 390 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0210p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GERALD HAND, ┐
Petitioner-Appellant, │
│
> No. 14-3148
v. │
│
│
MARC C. HOUK, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:07-cv-00846—Sandra S. Beckwith, District Judge.
Argued: January 26, 2017
Decided and Filed: September 8, 2017
Before: BOGGS, CLAY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Jeanne M. Cors, TAFT, STETTINIUS & HOLLISTER, LLP, Cincinnati, Ohio, for
Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: Jeanne M. Cors, TAFT, STETTINIUS & HOLLISTER, LLP,
Cincinnati, Ohio, Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati, Ohio, for
Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. This case presents a habeas petitioner who has been convicted of
two counts of aggravated murder and sentenced to death. Over the span of nearly thirty years,
No. 14-3148 Hand v. Houk Page 2
petitioner Gerald Hand married four women. Three of those women would die, two of them
victims of violent, unsolved home invasions. The death of Hand’s fourth and final wife,
however, revealed a different story. At home at the time of her death, Hand allegedly confronted
and shot the intruder, who turned out to be his friend and employee Lonnie Welch. Subsequent
police investigation uncovered a decades-long plot conducted by Hand and Welch to murder
Hand’s wives in order to collect their lucrative insurance policies. Having been convicted in
state court and having exhausted his state appeals, Hand now brings this habeas corpus petition.
The district court denied the petition, and for the following reasons, we affirm.
I
A
In March 1976, Hand’s first wife Donna was found strangled to death in the basement of
their home. She had also been struck on the head. There were no signs of forced entry, but some
items in the house had been disturbed. Hand filed for and received $67,386 in life insurance
proceeds and $50,000 from the Ohio Court of Claims victims-compensation fund. Hand married
his second wife, Lori, just over a year later in June 1977. They had one son together, Robert Jr.
Like Donna, Lori was found strangled to death in the basement of their home. Lori had also
been shot twice. Just as with Donna’s murder, police found no signs of forced entry but some
items in the house had been disturbed. Hand also filed for and received over $126,000 in life
insurance proceeds. Although Hand was a suspect, neither Donna’s nor Lori’s murder was
solved. Hand married a third time, but that marriage ended in divorce.
Hand married his fourth wife, Jill, in 1992. Hand moved into her house, and they
remained married until her death on January 15, 2002. On the night of her death, Hand called
police and reported that a home intruder had shot his wife and that he had shot the intruder in
self-defense. The home intruder was later identified as Lonnie Welch.
The Supreme Court of Ohio best describes the police investigation that followed:
Police found Welch’s body lying face down on Hand’s neighbor’s driveway.
Inside Hand’s house, Jill’s body was found lying between the living room and the
kitchen. Hand told police that he had shot the intruder but did not know his
No. 14-3148 Hand v. Houk Page 3
identity. He also gave police two .38-caliber revolvers that he used to shoot him.
On the way to the hospital, Hand saw the intruder’s vehicle and told Mark
Schlauder, a paramedic, that “it could have belonged to somebody that worked
for” Hand.
Around 8:00 p.m. on January 15, Detective Dan Otto of the Delaware County
Sheriff’s Office interviewed Hand at the hospital. Hand said that after arriving
home, he had dinner with Jill and then went to the bathroom. Upon exiting, Hand
heard Jill scream, “Gerald,” heard two gunshots, and saw a man in a red and black
flannel shirt at the end of the hallway. Hand then retrieved two .38 caliber
revolvers from the master bedroom. Hand started down the hallway firing both
guns at the intruder, but had trouble shooting because the guns were “misfiring”
and “missing every other round.” Hand followed the intruder out the front door
and continued firing at him as he ran toward his car, and then the intruder fell on
the neighbor’s driveway.
During the interview, Hand repeated that he did not recognize the gunman, but
recognized Welch’s car in the driveway. Hand said he “didn’t know [Welch] that
well; that he did odd jobs around the shop; that he was a thief; that he was a
cocaine addict; that he * * * [came] in to the shop area from time to time.” Hand
also said that it had been a year since he had had any contact with Welch, and
Welch had no reason to be at his home that night.
Investigators found no sign of forced entry at Hand’s residence. Blood spatters
were found inside the front door and on the front-door stoop. The top of the
storm door was shattered, and particles of glass extended 13 feet into the front
yard. All the glass fragments were found on top of the blood spatters. Police also
found a black jacket on the front stoop, a spent bullet and glass fragments on top
of the jacket, and a tooth outside the front door.
According to Agent Gary Wilgus, a crime-scene investigator, the blood spatters
indicated that the victim was bleeding and “blood was dropping from his body” as
he was moving away from the house. A bloody trail led onto the sidewalk and
through the front yard and ended where Welch was lying in the driveway. Welch
was wearing cloth gloves, and a knit hat with two eyeholes and a mouth hole was
next to his head. Police also found a .32-caliber revolver on the front lawn.
Inside the house, police found glass fragments and bloodstains extending two to
three feet from the front door and another tooth just inside the front door. Jill’s
body was 12 feet from the front door, her legs pointed towards the front door, and
she was wearing a nightgown. Jill had been shot in the middle of her forehead.
A second bullet deflected off the floor and was found on the carpet next to Jill’s
head.
Investigators found a bullet in the living room ceiling, and a second bullet was
found in the living room window frame. While investigators could not determine
No. 14-3148 Hand v. Houk Page 4
the exact trajectory of the two bullets, they determined that they most likely
originated from gunshots in the hallway area. No evidence of gunplay was found
elsewhere in the house.
On January 17, 2002, Detective Otto reinterviewed Hand, and Hand provided a
different version of events. Hand stated that after his wife was shot, he retrieved
two guns from the master bedroom, went into the hallway, and saw Welch
“coming down the hallway towards the master bedroom at him.” Hand and
Welch then began firing at each other in the hallway and were within four feet of
each other during the gun battle. Hand repeated that he chased Welch outside the
house but “couldn’t get his guns to fire; that he was missing every other round
and * * * they weren’t firing.” When asked about the .32-caliber revolver in the
front yard, Hand stated that he did not know who owned it.
During the second interview, Hand said, “I was misquoted on the first interview at
the hospital” about not knowing Welch. Hand said that he had known Welch, a
former employee, for over 20 years. However, Hand continued to give the
impression that they were not close. When asked about a wedding photo showing
Welch as his best man, Hand said he “couldn’t find anybody else to stand in as
[his] best man.” Hand repeated that “the only thing he saw” on the night of the
murder was an unknown person in “red and black flannel,” and he had “no clue
who this unknown person was.” Hand also said that “Jill had never met Lonnie;
Lonnie’s never been to Walnut Avenue; he had no idea why he was there.”
In discussing his financial situation, Hand said he sold his radiator shop in
October 2000 and received $ 300,000, and later received $ 33,000 from the sale of
his share of the business and its inventory, and $ 140,000 from somewhere else.
Hand said he “always needed money, but if he needed money, he could get some;
that he had money.” Hand also told police that he was “hiding the money and that
he was considering filing bankruptcy; that that was against Jill’s wishes.” Later,
Hand said that he “wasn’t going to file for the bankruptcy * * * and they were
going to work it out.” When asked if he had any offices, Hand said that his office
was in a bedroom in the house. However, Hand failed to disclose that he kept
business records at another location.
On January 19, 2002, the police seized several boxes containing Hand’s business
and personal records from the storage area above a hardware store near Hand’s
former radiator shop. These records included credit cards, credit-card-and life-
insurance-account information, payment receipts, a list of credit card debt
prepared by Jill, and other information about Hand’s finances.
Heather Zollman, a firearms expert, testified that the .32-caliber revolver found in
the front yard was loaded with two fired and three unfired .32-caliber Smith and
Wesson (“S & W”) Remington-Peters cartridges. Bullet fragments removed from
Jill’s skull were consistent with being an S & W .32-caliber bullet. In testing the
No. 14-3148 Hand v. Houk Page 5
.32-caliber revolver, Zollman found that “on more than 50 percent of [her] testing,
the firearm misfired” as a result of “a malfunction of the firearm.” The stippling
pattern shown in Jill’s autopsy photographs indicated that “the muzzle to target
distance was greater than six inches, and less than two feet.”
Zollman tested the two .38-caliber revolvers and found that they were both in
proper working order, and neither weapon showed any tendency to misfire.
A bullet removed from Welch’s right forearm was “consistent with the .38
caliber.” Zollman also concluded that the bullet and fragments recovered from
Welch’s mouth and his lower back had rifling class characteristics corresponding
with the S & W .38-caliber revolver. Further, gunshot residue around the bullet
hole on the back of Welch’s shirt revealed a muzzle-to-target distance greater than
two feet from the garment but less than five feet.
Jennifer Duvall, a DNA expert, conducted DNA testing of bloodstains found on
the shirt Hand was wearing on the night of the murders. Five of the bloodstains
were consistent with the DNA profile of Welch. The odds that DNA from the
shirt was from someone other than Welch was “one in more than seventy-nine
trillion in the Caucasian population; one in more than forty-four trillion in the
African-American population, and one in approximately forty-three trillion in the
Hispanic population.”
Michele Yezzo, a forensic scientist, examined bloodstain patterns on Hand’s shirt.
There were more than 75 blood spatters of varying sizes on the shirt. Yezzo
concluded that the shirt was “exposed to an impact” that “primarily registered on
the front of the garment.” Yezzo also examined glass fragments collected from
Hand’s residence and “found tiny fragments of clear glass” on Hand’s shirt,
trousers, tee-shirt, and pair of socks that he was wearing on the night of the
murders. However, she found no glass fragments on Welch’s boots. Yezzo
conducted a fiber analysis of the bullet from Welch’s mouth, but found “no fibers
suitable for comparison.”
Ted Manasian, a forensic scientist, found particles of lead and barium on both
gloves that Welch was wearing, and these are “highly indicative of gunshot
residue.” Manasian could not determine how the gunshot residue got on the
glove, just that it was there. Thus, Welch could have fired the gun, or was in the
proximity of the gun when it was discharged, or handled an item that had gunshot
residue on it.
Detective Otto testified that $ 1,006,645.27 in life insurance and state-benefit
accounts were in effect at the time of Jill’s death. This amount included
$ 113,700 in Jill’s Ohio Public Employees Retirement System account and
$ 42,345.29 accumulated in the Ohio Public Employees Deferred Compensation
program.
No. 14-3148 Hand v. Houk Page 6
Dr. Keith Norton, a forensic pathologist in the Franklin County Coroner’s office,
conducted the autopsy of Jill and Welch. He concluded that Jill died from a
single gunshot wound to the head. Dr. Norton found that Welch had been shot
five times: in his mouth, left upper chest, left forearm, right shoulder, and lower
back. The gunshot wound to Welch’s lower back went into the spinal cord and
would have paralyzed his legs. However, the gunshot wound to the chest was the
cause of death.
According to Kenneth Grimes Jr., Hand’s former cellmate in the Delaware
County Jail, Hand told him that he “killed his wife and the man he was involved
with.” Hand said he hired a man and they had “been doing business together for
years.” Hand said he “hired the man to kill his wife and, in turn, the deal went
sour. He wanted more money, so he killed two birds with one stone. He got both
and didn’t have to pay anything.” Hand said he had agreed to pay $ 25,000 to
have his wife killed, and the man “wanted it doubled.” Hand said he was going to
claim self-defense. He also said the evidence against him was “circumstantial and
there were many witnesses that didn’t have * * * any actual, proof.”
State v. Hand, 840 N.E.2d 151, 165–68 (Ohio 2006).
In sum, Hand’s conflicting statements about the night of Jill’s death, in conjunction with
forensic evidence and statements of other members of the community, strongly implicated Hand
and Welch in a plot to kill Jill in order to collect her lucrative insurance policy and pensions.
When Welch reneged on the deal and demanded more money, Hand allegedly killed him and
staged the scene in order to claim self-defense.
Armed with this information, Ohio prosecutors sought and received a grand-jury
indictment in state court against Hand on six counts. Counts One and Two charged Hand with
the aggravated murder of Jill and Welch and included several death-penalty specifications: two
“‘course of conduct’ specification[s],” (one for each count) id. at 170 (citation omitted), because
the murders were part of a course of conduct involving the murders of two or more people;
“three specifications of murdering Welch to escape detection for Hand’s complicity in the
murders of Donna, Lori, and Jill Hand; and two specifications of murdering Welch for the
purpose of preventing his testimony as a witness in the murders of Donna and Lori Hand.” Ibid.Counts Three, Four, and Five charged Hand with conspiracy to commit the aggravated murder of
No. 14-3148 Hand v. Houk Page 7
Jill, and Count Six charged Hand with escape for his involvement in an attempt to escape police
custody after he was arrested.1 Ibid.Hand pleaded not guilty. The jury found Hand guilty of all of the charges listed in the
indictment. At the sentencing hearing, psychologist Dr. Daniel Davis testified about Hand’s
background and his ability to adjust to life in prison; Hand’s son and another witness also
testified on his behalf, and Hand submitted an unsworn statement. Id. at 188–89. The jury
recommended the death penalty for both murders. Id. at 170. The judge accepted the jury’s
recommendation and sentenced Hand to death for Counts One and Two of the indictment. The
judge also sentenced Hand to consecutive sentences of three years for two of the remaining
counts of conviction.
B
Hand filed a notice of appeal to the Supreme Court of Ohio in 2003, raising therein
thirteen “propositions of law” for relief:
PROPOSITION OF LAW NO. 1
Where the State fails to prove by clear and convincing evidence that a witness is
unavailable due to a criminal defendant’s wrongdoing, and the proposed evidence
does not meet standards of reliability, it is constitutional error to admit this
evidence against the defendant.
PROPOSITION OF LAW NO. 2
The introduction and admission of prejudicial and improper character and other
acts evidence and the failure of the trial court to properly limit the use of the other
acts evidence denied Gerald Hand his rights to a fair trial, due process and a
reliable determination of his guilt and sentence as guaranteed by the United States
Constitution, Amends. V, VI, VIII, AND XIV; Ohio Const. Art. I, §§ 10 and 16.
1
On November 26, 2002, while Hand was incarcerated in the Delaware County jail, correction
officers discovered that Hand and three other inmates had attempted “to cut through the lock on the rear
emergency exit of the cell block and through a cell bar.” Hand, 840 N.E.2d at 168. Hand allegedly
served as lookout and advised one of the inmates “on how to cut through the metal bar.” Ibid.
No. 14-3148 Hand v. Houk Page 8
PROPOSITION OF LAW NO. 3
It is prejudicial error for a trial court to join the unrelated charge of escape with
charges of aggravated murder and conspiracy in violation of O.R.C. § 2941.04,
thus prejudicing Appellant in violation of his constitutional protections.
PROPOSITION OF LAW NO. 4
Where the State has failed to present any evidence that a criminal defendant
planned to break his detention, a conviction on the charge of escape is
constitutionally infirm due to the insufficiency of the evidence to prove each
element of the offense.
PROPOSITION OF LAW NO. 5
When the State proceeds on a theory that the defendant is the principal offender of
an aggravated murder, it is error for the trial court to instruct the jury on
complicity. U.S. Const. VI, XIV.
PROPOSITION OF LAW NO. 6
The trial court’s failure to give the required narrowing construction to a “course-
of-conduct” specification in a capital case creates a substantial risk that the death
penalty will be inflicted in an arbitrary and capricious manner in violation of the
United States Constitution. U.S. Const. Amends. VIII & XIV.
PROPOSITION OF LAW NO. 7
Where trial counsel’s performance at voir dire and in the trial phase in a capital
case falls below professional standards for reasonableness, counsel has rendered
ineffective assistance, thereby prejudicing the defendant in violation of his
constitutional rights.
PROPOSITION OF LAW NO. 8
Where trial counsel put on a very brief and skeletal presentation at the penalty
phase, fail to argue residual doubt and fail to make any closing argument to the
jury, counsel’s performance is substandard and a capital defendant is prejudiced
thereby. U.S. Const. amends. VI, VIII, and XIV.
PROPOSITION OF LAW NO. 9
The capital defendant’s right against cruel and unusual punishment and his right
to due process are violated when the legal issue of relevance is left to the jury
regarding sentencing considerations. U.S. Const. amends. VIII, XIV.
No. 14-3148 Hand v. Houk Page 9
PROPOSITION OF LAW NO. 10
A capital defendant’s right against cruel and unusual punishment under the Eighth
and Fourteenth Amendments is denied when the sentencer is precluded from
considering residual doubt of guilt as a mitigating factor. The preclusion of
residual doubt from a capital sentencing proceeding and the trial court’s refusal to
instruct the jury to consider it also violate the Defendant’s due process right to
rebuttal under the Fourteenth Amendment. The preclusion of residual doubt may
also infringe a capital defendant’s right to the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments. U.S. Const. Amends. VI,
VIII, XIV; Ohio Const. Art. I, §§ 9, 10, 16.
PROPOSITION OF LAW NO. 11
Gerald Hand’s death sentence must be vacated by this Court as inappropriate
because the evidence in mitigation was not outweighed by the aggravating
circumstances.
PROPOSITION OF LAW NO. 12
A capital defendant’s right to due process is violated when the State is permitted
to convict upon a standard of proof below proof beyond a reasonable doubt. U.S.
Const. amend. XIV; Ohio Const. Art. I, § 16.
PROPOSITION OF LAW NO. 13
Ohio’s death penalty law is unconstitutional. Ohio Rev. Code Ann. §§ 2903.01,
2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 do not
meet the prescribed constitutional requirements and are unconstitutional on their
face and as applied to Gerald Hand. U.S. Const. amends. V, VI, VIII, [a]nd XIV;
Ohio Const. Art. I, §§ 2, 9, 10, [a]nd 16. Further, Ohio’s death penalty statute
violates the United States’ obligations under international law.
On January 18, 2006, the Ohio Supreme Court affirmed Hand’s convictions and sentence.
State v. Hand, 840 N.E.2d at 161. Hand filed a Motion for Reconsideration with the Ohio
Supreme Court on January 30, 2006, in which he re-raised the first two propositions of law that
the Ohio Supreme Court rejected on direct appeal. The court denied the motion on April 29,
2006.
No. 14-3148 Hand v. Houk Page 10
While Hand’s Motion for Reconsideration was still pending with the Ohio Supreme
Court, Hand obtained new counsel who filed an application to reopen his direct appeal.2 His
application raised three new claims for relief:
PROPOSITION OF LAW NO. 1
Appellate counsel was ineffective for failing to raise the claim that appellant
Hand’s conviction was against the manifest weight of the evidence because the
state failed to prove the underlying aggravating circumstances and specifications
of Count 2, specifications 2-6, beyond a reasonable doubt. The conviction was,
therefore, contrary to th[e Ohio Supreme] Court’s holding in State v. Odraye
Jones, 91 Ohio St.3d 335, 744 N.E.2d 1163 (2001).
PROPOSITION OF LAW NO. 2
Appellate counsel was ineffective for failing to motion the court to supplement
their brief to include relevant and previously unavailable juror bias issues.
PROPOSITION OF LAW NO. 3
Appellate counsel was ineffective for failing to raise the issue that the trial court
committed error by failing to conduct a constitutionally adequate inquiry to
determine bias of jurors due to pre-trial publicity.
Hand’s application, filed on April 18, 2006, was denied by the Ohio Supreme Court on August 2,
2006. State v. Hand, 852 N.E.2d 185 (Ohio 2006) (unpublished table decision).
While Hand’s application to reopen his direct appeal was still pending, he also filed a
petition for a writ of certiorari from the Ohio Supreme Court’s original denial of his direct appeal
with the United States Supreme Court. The Court denied Hand’s petition on October 10, 2006.
Hand v. Ohio, 549 U.S. 957 (2006).
Hand filed a second application to reopen his direct appeal pursuant to Ohio Supreme
Court Practice Rule XI on September 24, 2007. Hand argued that his appellate counsel was
ineffective for failure to raise the following three claims:
1) whether the death penalty specifications related to the murder of Hand’s first
wife were barred by the doctrine of collateral estoppel; 2) whether trial counsel
2
See Ohio S. Ct. Prac. R. XI, § 6. Ohio permits an appellant in a death-penalty case to apply to
reopen his direct appeal based on a claim of ineffective assistance of appellate counsel.
No. 14-3148 Hand v. Houk Page 11
were ineffective for failing to object to questions, testimony, and evidence
regarding Hand’s bankruptcy attorney on the grounds of attorney-client privilege;
and 3) whether the trial court erred in denying Hand’s motion to dismiss the
specifications relating to the murders of Hand’s first two wives under Evid. R.
404(b).
Because Hand’s application, filed over a year after his direct appeal had concluded, fell outside
of the 90-day filing deadline, the Ohio Supreme Court denied it on December 12, 2007. State v.
Hand, 877 N.E.2d 987 (Ohio 2007). This ended Hand’s unsuccessful direct appeal.
C
On December 27, 2004, while Hand’s direct appeal was still pending, he filed a petition
for state post-conviction relief in the Delaware County Court of Common Pleas. His petition
initially included ten claims for relief, but he subsequently amended his petition on February 9,
2005, to include two additional claims. In total, he raised the following twelve claims in state
post-conviction relief:
Ground for Relief No. 1
Petitioner’s conviction and sentence are void or voidable because the trial court
failed to conduct a constitutionally adequate inquiry to determine juror bias due to
pre-trial publicity. The court’s error violated Petitioner’s rights as guaranteed by
the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
Ground for Relief No. 2
Petitioner’s conviction and sentence are void or voidable because he was denied
the effective assistance of counsel when trial counsel failed to adequately question
prospective jurors with regards to their awareness of pre-trial publicity. The
failure to act by defense counsel violated Petitioner’s rights as guaranteed by the
Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
Ground for Relief No. 3
Petitioner’s conviction and sentence are void or voidable because he was denied
the effective assistance of counsel when defense counsel failed to make a motion
for a change of venue. The failure to act by defense counsel violated Petitioner’s
rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth
No. 14-3148 Hand v. Houk Page 12
Amendments of the United States Constitution and Article I, Sections 2, 5, 9, 10,
16, and 20 of the Ohio Constitution.
Ground for Relief No. 4
Petitioner’s conviction and sentence are void or voidable because his trial counsel
failed to present compelling expert psychological evidence in his defense during
the penalty phase of his capital trial. This inaction violated Petitioner’s rights as
guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the
United States Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the
Ohio Constitution.
Ground for Relief No. 5
Petitioner’s convictions and sentence are void or voidable because his trial
counsel failed to reasonably investigate and present compelling evidence, through
family and friends, to mitigate the sentence of death. Therefore, Petitioner’s
rights were denied under the Fifth, Sixth, Eighth and Fourteenth Amendments of
the United States Constitution and Sections 2, 5, 9, 10, 16, and 20 of Article I of
the Ohio Constitution.
Ground for Relief No. 6
Petitioner’s convictions and sentence are void or voidable because his trial
counsel failed to reasonably investigate and present compelling evidence that was
vital mitigation after Petitioner testified poorly during his trial and was convicted
of aggravated murder. Therefore, Petitioner’s rights were denied under the Fifth,
Sixth, Eighth and Fourteenth Amendments of the United States Constitution and
Sections 2, 5, 9, 10, 16, and 20 of Article I of the Ohio Constitution.
Ground for Relief No. 7
Petitioner’s judgment and sentence are void or voidable because a juror failed to
follow this court’s instruction regarding the weighing process necessary to
determine Petitioner’s death sentence. As a result, Petitioner was denied his right
to due process, and a fair trial as guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States Constitution and Sections 2, 5, 9,
10, 16, and 20, Article I of the Ohio Constitution.
Ground for Relief No. 8
Petitioner’s conviction and sentence are void or voidable because his trial counsel
failed to present compelling evidence about his third wife during the penalty
phase of his capital trial. As a result, Petitioner was denied his right to effective
assistance of counsel, due process, and a fair trial as guaranteed by the Fifth,
No. 14-3148 Hand v. Houk Page 13
Sixth, Eighth and Fourteenth Amendments of the United States Constitution and
Sections 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution.
Ground for Relief No. 9
Petitioner’s conviction and sentence are void or voidable because the death
penalty as administered by lethal injection in the state of Ohio violates his
constitutional rights to protection from cruel and [un]usual punishment and to due
process of law. U.S. Const. amends. VIII, IX, XIV; Sections 1, 2, 5, 9, 10, 16,
and 20, Article I of the Ohio Constitution; Ohio Adult Parole Authority v.
Woodard, 523 U.S. 272 (1998) (five justices holding that . . . the Due Process
Clause protects the “life” interest at issue in capital cases).
Ground for Relief No. 10
Petitioner’s judgment and sentence are void or voidable because, assuming
arguendo that none of the grounds for relief in his post-conviction petition
individually warrant the relief sought from this court, the cumulative effects of the
errors and omissions presented in the petition’s foregoing paragraphs have been
prejudicial and have denied Petitioner his rights secured by the Fifth, Sixth,
Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, and
Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.
Ground for Relief No. 11
Petitioner’s conviction and sentence are void or voidable because he was denied
the effective assistance of counsel when trial counsel failed to act upon and utilize
Petitioner’s timely report of an escape attempt at the Delaware County Jail. The
failure to act by defense counsel violated Petitioner’s rights as guaranteed by the
Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
Ground for Relief No. 12
Petitioner’s convictions and sentence are void or voidable because the State
withheld material evidence—investigation in 2001 by the Columbus Police
Department of the murders of Petitioner’s first two wives—in violation of his
rights to due process and a fair trial as guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States Constitution and Sections 1, 2, 5, 9,
10, 16, and 20, Article I of the Ohio Constitution.
On May 27, 2005, the state trial court dismissed Hand’s petition for post-conviction relief,
holding that his ninth and tenth grounds for relief failed on the merits, his seventh ground for
No. 14-3148 Hand v. Houk Page 14
relief was based on evidence that violated Ohio evidence rules, and his remaining claims should
have been raised on direct appeal and were therefore precluded by res judicata.
On June 23, 2005, Hand appealed the state trial court’s dismissal of his petition for post-
conviction relief, raising the following three assignments of error:
Assignment of Error No. 1
The trial court erred by dismissing appellant’s post-conviction petition where he
presented sufficient operative facts and supporting exhibits to merit an evidentiary
hearing and discovery.
Assignment of Error No. II
Ohio’s post-conviction procedures neither afford an adequate corrective process
nor comply with due process and equal protection under the Fourteenth
Amendment.
Assignment of Error No. III
Considered together, the cumulative errors set forth in Appellant’s substantive
grounds for relief merit reversal or remand for a proper post-conviction process.
The Ohio Court of Appeals affirmed the trial court’s decision on April 21, 2006. State v. Hand,
No. 05CAA060040, 2006 WL 1063758 (Ohio Ct. App.). Of relevance to this appeal, the court
held that Hand was not entitled to an evidentiary hearing because the trial court correctly
determined that Hand’s first, second, third, fourth, fifth, sixth, eighth, eleventh, and twelfth
claims were precluded by res judicata because he failed to raise them properly on direct review.
Id. at *3. The court also held that, even if not precluded, Hand’s ineffective-assistance-of-
counsel claims based on his counsel’s performance during sentencing—claims four, five, six,
eight, and eleven—were all meritless. Id. at *5.
Hand filed a notice of appeal to the Supreme Court of Ohio on June 5, 2006, raising four
propositions of law, but the court declined review. State v. Hand, 852 N.E.2d 1215 (Ohio 2006)
(unpublished table decision). Hand then filed a petition for certiorari to the United States
Supreme Court, which was also denied. Hand v. Ohio, 549 U.S. 1217 (2007). This ended
Hand’s unsuccessful attempt to obtain state post-conviction relief.
No. 14-3148 Hand v. Houk Page 15
D
Hand then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
federal district court on August 22, 2007. He raised fifteen claims for relief, several of which
contained additional sub-claims. The district court granted Hand an evidentiary hearing, which
was held in February 2010. After the magistrate judge entered a report and recommendation and
a supplemental report recommending that the district court deny Hand’s petition—both swiftly
followed by Hand’s strenuous objections—the district court adopted the magistrate judge’s
report and denied Hand’s petition in its entirety. Hand v. Houk, No. 2:07-cv-846, 2013 WL
2372180 (S.D. Ohio May 29, 2013).
The district court granted Hand a Certificate of Appealability (COA) on six of those
claims and associated sub-claims, and we expanded the COA to include an additional
ineffective-assistance-of-appellate-counsel claim with three sub-claims. Hand’s claims and sub-
claims for habeas relief are:
Claim I
Whether trial counsel’s failure to further question jurors regarding pretrial
publicity constituted ineffective assistance of counsel?
Claim II
Whether res judicata bars Hand’s claim that the trial court conducted an
inadequate voir dire into pretrial publicity?
Claim III
Whether appellate counsel’s failure to (i) challenge the sufficiency of the
evidence as to the aggravating circumstances and specifications of count two,
specifications two through six; (ii) amend the brief to include juror bias issues;
and/or (iii) allege that the trial court’s inquiry into potential juror bias resulting
from extensive pretrial publicity was constitutionally defective constituted
ineffective assistance of counsel?
Claim IV
Whether trial counsel’s failure at sentencing to (i) present expert psychological
testimony; (ii) properly investigate, prepare and present mitigation evidence;
and/or (iii) object to the reintroduction of all guilt-phase evidence constituted
ineffective assistance of counsel?
No. 14-3148 Hand v. Houk Page 16
Claim V
Whether the trial court failed to give the appropriate narrowing construction to the
course of conduct specification?
Claim VI
Whether Hand fairly presented his federal constitutional 404B prior bad acts
claim in state court?
Claim VII
Whether the jury convicted Hand of escape based on insufficient evidence?
Appellant’s Br. at 1–2.
For the purpose of clarity, we will group some of Hand’s claims together when analyzing
them because they involve similar underlying issues. We will also address them in an order
different from that in which he presents them.
II
We review a district court’s habeas corpus decisions under a mixed standard of review,
“examin[ing] the district court’s legal conclusions de novo and its factual findings under a
‘clearly erroneous’ standard.” Kelly v. Lazaroff, 846 F.3d 819, 827 (6th Cir. 2017) (alteration in
original) (citations omitted).
Because Hand’s habeas petition was filed after 1996, it is subject to the Antiterrorism and
Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2254. AEDPA commands that, with
exceptions not relevant here, “[a]n application for a writ of habeas corpus . . . shall not be
granted unless it appears that the applicant has exhausted the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b). AEDPA’s exhaustion requirement gives “state courts the first
opportunity to correct alleged violations of their prisoner’s rights,” King v. Berghuis, 744 F.3d
961, 964 (6th Cir. 2014) (citation omitted), and 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,” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). Because the
exhaustion requirement “refers only to remedies still available at the time of the federal petition,”
Gray v. Netherland, 518 U.S. 152, 161 (1996) (citation omitted), a petitioner whose claims are
No. 14-3148 Hand v. Houk Page 17
barred by res judicata, and are thus procedurally defaulted, has satisfied AEDPA’s exhaustion
requirement. “However, the procedural bar that gives rise to exhaustion provides an independent
and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas
corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice
for the default.” Kelly, 846 F.3d at 828 (quoting Gray, 518 U.S. at 162).
Determining whether a claim has been procedurally defaulted is a four-step inquiry:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that petitioner failed to comply with the
rule . . . . Second, the court must decide whether the state courts actually enforced
the state procedural sanction . . . . Third, the court must decide whether the state
procedural ground is an adequate and independent state ground on which the state
can rely to foreclose review of a federal constitutional claim . . . . Once the court
determines that a state procedural rule was not complied with and that the rule
was an adequate and independent state ground, then the petitioner must
demonstrate . . . that there was cause for him not to follow the procedural rule and
that he was actually prejudiced by the alleged constitutional error.
Ibid. (quoting Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011)). To inform this inquiry, “we
look to the ‘last explained state court judgment,’ to determine whether relief is barred on
procedural grounds.” Stone, 644 F.3d at 346 (quoting Munson v. Kapture, 384 F.3d 310, 314
(6th Cir. 2004)).
When the state court has evaluated the petitioner’s claim on the merits, AEDPA requires
federal courts sitting in habeas review to grant the state court’s decisions great deference. We
are instructed not to grant habeas relief unless the state court’s adjudication of the claim either
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or “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).
This is no easy task for the habeas petitioner. In determining what constitutes “clearly
established” federal law, we are limited strictly to the holdings of the Supreme Court, excluding
any dicta. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations omitted). Moreover, in
order to grant habeas relief on this ground, a state petitioner must show that the state court’s
No. 14-3148 Hand v. Houk Page 18
ruling “was so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011). “[E]ven clear error will not suffice” to grant habeas relief. Moritz v.
Woods, No. 16-1504, 2017 WL 2241814, at *4 (6th Cir. May 22, 2017) (citation omitted).
Similarly, a state court’s findings of fact are unreasonable only where they are “rebutted by
‘clear and convincing evidence’ and do not have support in the record.” Pouncy v. Palmer,
846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir.
2007)). In addition, our review is limited to the record that was before the state court that
adjudicated the claim on the merits in the first instance. Cullen v. Pinholster, 563 U.S. 170, 180
(2011).
Only when the petitioner’s claim was not procedurally defaulted (or if the procedural
default was excused) and the state court never evaluated the claim on the merits do we analyze
the petitioner’s claim under the pre-AEDPA standard of review, which asks us to evaluate
questions of law de novo and questions of fact for clear error. See Robinson v. Howes, 663 F.3d
819, 823 (6th Cir. 2011); Brown v. Smith, 551 F.3d 424, 428, 430 (6th Cir. 2008).
III
Hand raises several claims involving the adequacy of the voir dire at his trial to screen
jurors disqualified on the basis of pretrial publicity. In his second claim, he argues that Ohio’s
res judicata rules do not bar him from challenging the adequacy of the trial court’s voir dire on
habeas review. In his first claim, he argues that his trial counsel’s failure to further question
prospective jurors regarding pretrial publicity constituted ineffective assistance of counsel. In
sub-parts (ii) and (iii) of his third claim, he argues that his appellate counsel on direct appeal was
constitutionally ineffective for failing to amend his brief to include juror-bias issues or to
challenge the trial court’s inquiry into potential juror bias. We will analyze the voir dire claims
in this order.
A
Hand’s second claim is that the trial court’s voir dire did not adequately screen jurors for
bias due to extensive pre-trial publicity, thereby violating his constitutional right to a fair trial.
No. 14-3148 Hand v. Houk Page 19
The district court held that this claim was procedurally defaulted because the Ohio courts
determined that it was barred by res judicata. The district court was correct.
As this court has previously discussed, Ohio employs a bifurcated system of appellate
review. See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751 (6th Cir. 2013)
(“Ohio law appears to contemplate two kinds of [appellate] claims, those based only on evidence
in the trial record and those based in part on evidence outside the record.”). For the first type of
claim—those based only on evidence contained in the trial record—a convicted defendant is
expected to raise the claim on direct appeal or else the claim is barred by the doctrine of res
judicata. As the Ohio Supreme Court stated in the syllabus of State v. Perry, 226 N.E.2d 104(Ohio 1967), and reiterated in State v. Cole, 443 N.E.2d 169 (Ohio 1982):
Under the doctrine of res judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack
of due process that was raised or could have been raised by the defendant at the
trial, which resulted in that judgment or conviction, or on an appeal from that
judgment.
Cole, 443 N.E.2d at 171. Only claims involving evidence outside the trial record may first be
raised in a petition for state post-conviction relief. See McGuire, 738 F.3d at 751–52; Cole,
443 N.E. 2d at 171 (“Generally, the introduction in [a state post-conviction] petition of evidence
dehors the record . . . is sufficient, if not to mandate a hearing, at least to avoid dismissal on the
basis of res judicata.”).
It is undisputed that Hand first raised this claim in his state post-conviction proceeding,
having failed to raise it previously on direct appeal. See supra Part I.B–C, pp. 7–14. The post-
conviction trial court held, and the Ohio Court of Appeals affirmed, that the claim was barred by
res judicata because claims of juror bias can be raised on direct appeal with evidence gathered
from the trial record, such as the voir dire transcript. Hand, 2006 WL 1063758, at *4. We have
previously held that an Ohio court’s application of the res judicata doctrine is an adequate and
independent state ground that bars federal habeas relief. See Hanna v. Ishee, 694 F.3d 596, 614
(6th Cir. 2012). The only question Hand raises on appeal is whether the Ohio courts correctly
applied this procedural bar in light of the fact that he sought to introduce newspaper articles that
No. 14-3148 Hand v. Houk Page 20
were outside of the record in support of his claim. Not only was this argument raised by Hand
before the Ohio courts and rejected, see Hand, 2006 WL 1063758, at *4 (“Appellant’s
attachment of exhibits demonstrating pre-trial publicity to the post-conviction relief petition,
though admittedly outside the original trial record, merely supplements appellant’s argument
which was capable of review on direct appeal on the then extant record.”), it finds no support
elsewhere in Ohio case law. See, e.g., State v. Franklin, No. 19041, 2002 WL 1000415, at *3
(Ohio Ct. App. May 17, 2002) (“Whether a trial court abused its discretion in unfairly limiting
the scope of voir dire will ordinarily be ascertainable from the record.”).
Because the Ohio courts correctly applied the doctrine of res judicata and because Hand
did not argue cause and prejudice to excuse his default,3 we hold that Hand procedurally
defaulted his second claim for habeas relief.
B
Hand’s first claim is that his trial counsel was constitutionally ineffective for failing to
question two specific jurors regarding their exposure to pre-trial publicity. The district court
held that this claim, like his second claim, was procedurally defaulted because the Ohio courts
determined that it was barred by res judicata. Just as with his second claim, the district court
was correct.
It is undisputed that Hand failed to raise this ineffective-assistance-of-trial-counsel claim
on direct appeal, first raising this claim in his petition for state post-conviction relief.4 Just as
with his voir dire claim, see supra Part III.A, pp. 19–20, the post-conviction trial court held that
this claim was barred by res judicata, and the Ohio Court of Appeals affirmed the trial court’s
judgment. Hand, 2006 WL 1063758, at *4–5. Ohio’s rules regarding its bifurcated appellate
3
Although ineffective assistance of appellate counsel can excuse a procedural default, see Murray
v. Carrier, 477 U.S. 478, 492 (1986), and Hand alleges in his habeas petition that his counsel on direct
appeal was ineffective for failing to raise this very issue, he does so as part of a separate substantive claim
for relief and not as cause to excuse this procedural default. In any event, Hand’s claim of ineffective
assistance of appellate counsel is meritless. See infra Part III.B–C, pp. 20–23.
4
Although Hand did raise an ineffective-assistance-of-trial-counsel claim related to voir dire on
direct appeal, he did not raise this one. Hand concedes that his direct-appeal claim “related to a different
juror, supported by different allegations of bias, and did not assert ineffectiveness related to pretrial
publicity.” Appellant’s Br. at 40 n.2.
No. 14-3148 Hand v. Houk Page 21
system—requiring claims based upon evidence contained within the trial record to be brought on
direct review—apply with equal force to ineffective-assistance-of-trial-counsel claims. Hand’s
claim, based on his trial counsel’s performance during voir dire, could have been raised on direct
appeal with the evidence contained within the trial record, just as he could have raised his
analogous voir dire claim regarding the trial court. Id. at *5 (“We find the [ineffective-
assistance-of-trial-counsel] claims presented were cognizable and capable of review on direct
appeal. . . . We note the record on direct appeal was supplemented with the jury questionnaires
which appellant asserts merit review under post[-]conviction relief herein.”). And as previously
discussed, it is established law in this circuit that an Ohio court’s application of the doctrine of
res judicata is an independent and adequate state ground sufficient to bar habeas relief. See
Hanna, 694 F.3d at 614.
However, Hand argues that the procedural default of his ineffective-assistance-of-trial-
counsel claim, unlike his voir dire claim concerning the trial court’s conduct, may be excused
because his appellate counsel was constitutionally ineffective for not raising it. See Appellant’s
Br. at 39–44. Although Hand is correct that ineffective appellate counsel can excuse a
petitioner’s procedural default, see Murray, 477 U.S. at 492, his appellate counsel was not
constitutionally ineffective. The constitutional standard for counsel is governed by Strickland v.
Washington, 466 U.S. 668 (1984), which says that in order to succeed in an ineffective-
assistance-of-counsel claim, a claimant must show that counsel acted “outside the wide range of
professionally competent assistance” such that the claimant was prejudiced. Id. at 690. This is
an extremely deferential standard, as “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Ibid. Mere failure to raise a potentially viable claim is not enough, as “[a]ppellate
counsel need not raise every non-frivolous claim on direct appeal.” Sanders v. Curtin, 529 F.
App’x 506, 521 (6th Cir. 2013). “Generally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of counsel be overcome.” Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)).
No. 14-3148 Hand v. Houk Page 22
Hand’s counsel on direct appeal raised thirteen claims for relief, including an array of
state and federal constitutional claims. See supra Part I.B, pp. 7–11. The thrust of Hand’s claim
is that his appellate counsel should have also argued that his trial counsel was ineffective for
failing to question certain prospective jurors about pretrial publicity, which turns on the
substance of his underlying juror-bias-pretrial-publicity claim. But, as Supreme Court precedent
makes clear, succeeding on a juror-bias challenge is no easy task. To demonstrate actual
prejudice, the publicity and the voir dire testimony must show that “a fair trial was impossible,”
White v. Mitchell, 431 F.3d 517, 532 (6th Cir. 2005) (citation omitted). A mere preconceived
notion as to the guilt or innocence of the accused is not enough to rebut the presumption of a
prospective juror’s impartiality. Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). Moreover, a
reviewing court is instructed to give the trial court’s assessment of a juror’s impartiality
deference because of the unique ability of the trial judge to assess “the prospective juror’s
inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Skilling v.
United States, 561 U.S. 358, 386 (2010). Although both of the jurors that Hand argues were
influenced by pretrial publicity indicated that they held preconceived notions about his case, both
also made clear during voir dire that they could set aside any opinions that they might have held
and decide the case on the evidence presented in court. Given the number and strength of the
other claims Hand raised on direct appeal, the voir dire claim that Hand now alleges his counsel
improperly omitted was not so strong that his counsel acted “outside the wide range of
professionally competent assistance” by failing to raise it.
Because Hand has not demonstrated that his appellate counsel was ineffective for failing
to raise his first claim on direct appeal in state court, the claim is not only procedurally defaulted,
but Hand has also not shown sufficient cause and prejudice to excuse the default.
C
In sub-parts (ii) and (iii) of his third claim, Hand raises independent ineffective-
assistance-of-appellate-counsel claims regarding his voir dire, alleging that his counsel on direct
appeal was constitutionally ineffective for (ii) failing to amend his brief to include juror-bias
issues and (iii) failing to allege that the trial court’s inquiry into potential juror bias resulting
No. 14-3148 Hand v. Houk Page 23
from pretrial publicity was defective. The district court concluded that neither claim was
defaulted, but both lacked merit.
The district court was correct for the same reason that Hand cannot excuse the procedural
default of his previous claim: Hand has not demonstrated that his appellate counsel’s conduct fell
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
Strategic decisions of counsel, including whether to raise some non-frivolous claims over others,
fall well within the range of professional competence. In fact, “the process of ‘winnowing out
weaker arguments on appeal’ is ‘the hallmark of effective appellate advocacy.’” Monzo,
281 F.3d at 579 (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). As discussed above, see
supra Part III.B, pp. 20–22, Hand’s voir dire challenges were not “clearly stronger” than the
13 claims Hand’s counsel did raise on direct appeal. Monzo, 281 F.3d at 579. For this reason,
we hold that sub-parts (ii) and (iii) of Hand’s third claim for habeas relief are meritless. This
resolves Hand’s voir dire claims.
IV
In his fourth claim, Hand raises a trio of ineffective-assistance-of-trial-counsel sub-claims
based upon his trial counsel’s performance during sentencing. He argues that his counsel was
constitutionally ineffective for failing to (i) present expert psychological testimony, (ii) properly
investigate, prepare, and present mitigation evidence, and (iii) object to the reintroduction of all
guilt-phase evidence. The district court concluded that the first sub-claim was procedurally
defaulted or, alternatively, failed on the merits and that the remaining sub-claims could not
overcome AEDPA deference. The district court was correct.
A
In his first sub-claim, Hand argues that his trial counsel was constitutionally ineffective
for failing to present expert psychological testimony during the sentencing phase. The thrust of
Hand’s argument is that his trial counsel failed to take full advantage of the services of Dr.
Daniel Davis, a forensic psychologist who testified on Hand’s behalf during sentencing.
Appellant’s Br. at 56, 62–70. In advance of testifying, Dr. Davis administered to Hand a number
of psychological tests, including the Minnesota Multiphasic Personality Inventory (“MMPI”).
No. 14-3148 Hand v. Houk Page 24
The MMPI is a psychological test that assesses a patient’s personality traits and psychopathology
and is primarily used to test those who are suspected of having mental-health issues. Hand’s test
did not indicate that he suffered from an antisocial personality disorder as previously thought,
but rather that he struggled with internalizing his feelings. Based on these results, Dr. Davis
diagnosed Hand with hypochondria, depression, and anxiety. Id. at 68. Although Dr. Davis
testified on Hand’s behalf during sentencing, trial counsel never asked Dr. Davis questions about
Hand’s MMPI results, instead focusing Dr. Davis’s testimony on Hand’s ability to adjust to
prison life if he were sentenced to life in prison without parole.5 Ibid. Hand now argues that,
had Dr. Davis testified as to his mental-health afflictions, the jury would likely have been
swayed to spare his life.
Although Hand raised arguments on direct appeal that his trial counsel was
constitutionally ineffective during sentencing, see supra Part I.B, pp. 7–11, he did not raise this
particular argument until he filed his petition for post-conviction relief in state court, see supra
Part I.C, pp. 11–14. As previously discussed, Ohio requires convicted defendants presenting
claims based on evidence contained in the record to advance those claims on direct appeal or risk
forfeiting them under principles of res judicata. Cole, 443 N.E.2d at 171. The state post-
conviction court denied Hand’s claim for relief on this ground, noting that this was a claim that
should have been raised on direct appeal. Hand, 2006 WL 1063758 at *5. This is an
independent and adequate state ground sufficient to bar habeas relief. See Hanna, 694 F.3d at
614.
Hand raises two arguments on appeal for why we should evaluate this claim on the
merits: (1) his claim depends on evidence outside of the trial record and, thus, is not barred by
Ohio’s res judicata rules, and (2) his constitutionally ineffective counsel on direct appeal can
excuse any procedural default. Neither argument has merit. As the district court noted, Ohio’s
res judicata rules are designed to prevent a convicted defendant from raising claims that could
have been raised on direct appeal in subsequent claims for relief. Hand, 2013 WL 2372180, at
*45. Claims based on extra-record evidence are not barred by res judicata on the premise that a
5
Specifically, Dr. Davis testified that Hand had positive qualities that would enable him to
contribute to society while imprisoned, including his intelligence, vocational skills, and his absence of
past drug abuse.
No. 14-3148 Hand v. Houk Page 25
convicted defendant cannot be expected to raise a claim based on such evidence within the filing
period for direct appeal. It is undisputed that the allegedly unavailable outside-of-the-record
evidence Hand points to in support of his claim—namely, his MMPI results and the information
contained within Dr. Davis’s post-conviction affidavit—were available to Hand during trial and
easily accessible to his appellate counsel. Ohio’s res judicata rules were therefore correctly
applied in this case.
Although Hand is correct to suggest that ineffective assistance of appellate counsel can
excuse a procedural default, see Murray, 477 U.S. at 492, Hand’s appellate counsel did not fall
“outside the wide range of professionally competent assistance,” Strickland, 466 U.S. at 690, for
many of the same reasons discussed above. See supra Part III.B, pp. 20–22. Here, the claim that
Hand contends his appellate counsel should have raised on direct appeal is that his trial counsel
was constitutionally ineffective for failing to introduce specific psychological evidence at
sentencing. Hand points to only two cases—Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), and
Williams v. Taylor, 529 U.S. 362 (2000)—to support the proposition that the failure to present
mitigating evidence at sentencing constitutes ineffective assistance of counsel, and neither case
applies to the facts before us. In Glenn, a pre-AEDPA habeas case, we held that trial counsel
was constitutionally ineffective where “the lawyers made virtually no attempt to prepare for the
sentencing phase of the trial until after the jury returned its verdict of guilty” and “[o]nly one of
Glenn’s lawyers did any preparatory work at all following the verdict.” 71 F.3d at 1207. In
Williams, trial counsel similarly “failed to conduct an investigation that would have uncovered
extensive records graphically describing Williams’ nightmarish childhood, not because of any
strategic calculation but because they incorrectly thought that state law barred access to such
records.” 529 U.S. at 395. Hand’s trial counsel, by comparison, investigated Hand’s
psychological background and made the strategic decision to emphasize his ability to adjust to
life in prison and mentor other inmates. In light of the relevant case law, it cannot be said that
Hand’s ineffective-assistance-of-trial-counsel claim was “clearly stronger” than the thirteen
claims that Hand’s counsel presented on direct appeal such that his appellate counsel violated
constitutional standards of representation by failing to raise it. Therefore, this first sub-claim
was procedurally defaulted.
No. 14-3148 Hand v. Houk Page 26
B
In his second sub-claim, Hand argues that his trial counsel was constitutionally
ineffective for failing to properly investigate, prepare, and present mitigation evidence at
sentencing. Unlike his first sub-claim, Hand properly presented this ineffective-assistance-of-
trial-counsel claim on direct appeal. The Ohio Supreme Court denied the claim on the merits,
and we are therefore required to give its adjudication of this issue deference under AEDPA. See
supra Part II, pp. 16–18. In addition, because the underlying claim is an ineffective-assistance-
of-counsel claim, we are also required to defer to the reasoned decisions of Hand’s trial counsel.
See Strickland, 466 U.S. at 690 (“[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.”). In practice, this amounts to a “doubly deferential standard of review that gives both
the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S. Ct. 10,
13 (2013) (citation omitted) (emphasis added). “Stated differently, AEDPA requires us to ‘take a
highly deferential look at counsel’s performance through the deferential lens of § 2254(d).’”
Kelly, 846 F.3d at 832 (quoting Pinholster, 563 U.S. at 190).
Hand cannot overcome this deferential standard of review. He argues that his trial
counsel’s mitigation strategy was constitutionally defective for several reasons: (1) failing to
present his mother and sister as witnesses; (2) failing to present any witnesses or testimony about
his military service or performance in school; (3) relying heavily on Hand’s unsworn statement
to the jury; and (4) failing to present a closing argument to the jury. Appellant’s Br. at 57–62.
The Ohio Supreme Court held that these decisions fell within the category of “tactical decisions”
of trial counsel that are “virtually unchallengeable” on review. Hand, 840 N.E.2d at 188–92.
The record reflects that Hand’s trial counsel employed a mitigation specialist, an investigator,
and a psychologist during sentencing. Id. at 188. The record also reflects that Hand’s trial
counsel presented several witnesses, including the psychologist, a former acquaintance of
Hand’s, and Hand’s son, in a coherent trial strategy aimed at convincing the jury that Hand
would be an asset and a role-model prisoner in Ohio’s prison system. Appellant’s Br. at 56, 61.
Based on this evidence, trial counsel’s performance did not fall below constitutional standards
during sentencing, and much less did the Ohio Supreme Court adjudicate the issue so
No. 14-3148 Hand v. Houk Page 27
inadequately as to merit reversal under AEDPA. Therefore, this second sub-claim also fails on
the merits.
C
In his third sub-claim, Hand argues that his trial counsel was constitutionally ineffective
for failing to object to the reintroduction of all guilt-phase evidence during sentencing. Like his
second sub-claim, Hand raised this claim on direct review, and the Ohio Supreme Court denied
the claim on the merits. Hand, 840 N.E.2d at 190–91. Because this is an ineffective-assistance-
of-counsel claim and because the state court adjudicated the claim on the merits, this claim is
also due the “doubly deferential” standard of review that we gave to his second sub-claim. See
supra Part IV.B, pp. 26–27.
Although this is a somewhat closer question, Hand cannot overcome this deferential
standard of review. The thrust of his argument is that his trial counsel failed to object to the
introduction of a number of graphic trial exhibits at sentencing, including photos and autopsy
reports of his deceased wives and Walter Welch. Appellant’s Br. at 70–73. The Ohio Supreme
Court held that Hand’s trial counsel was not ineffective for failing to object because (1) Ohio’s
evidence rules permit the reintroduction of guilt-phase exhibits at sentencing and (2) Hand did
not specify which exhibits he believed prejudiced him. Hand, 840 N.E.2d at 190–91 (citing R.C.
2929.03(D)(1)). As the district court noted below, however, Ohio evidence law does not relieve
the trial court of its duty to determine the relevance of any evidence when the admission of that
evidence is challenged at sentencing. See State v. Gumm, 653 N.E.2d 253, 263 (Ohio 1995)
(listing five general categories of potentially relevant guilt-phase evidence, including “(1) any
evidence raised at trial that is relevant to the aggravating circumstances specified in the
indictment of which the defendant was found guilty, (2) any other testimony or evidence relevant
to the nature and circumstances of the aggravating circumstances specified in the indictment of
which the defendant was found guilty, (3) evidence rebutting the existence of any statutorily
defined or other mitigating factors first asserted by the defendant, (4) the presentence
investigation report, where one is requested by the defendant, and (5) the mental examination
report, where one is requested by the defendant”).
No. 14-3148 Hand v. Houk Page 28
The Ohio Supreme Court never ruled on each individual piece of guilt-phase evidence
that Hand’s trial counsel permitted to be introduced at sentencing. Even if we were to hold,
however, that the Ohio Supreme Court applied the wrong evidentiary law in analyzing Hand’s
ineffective-assistance-of-trial-counsel claim, it is not entirely clear that Hand either properly
exhausted this precise claim before the Ohio courts or suffered prejudice from his trial counsel’s
alleged error. Although Hand now specifies in his habeas petition the specific evidentiary
exhibits that he claims prejudiced him during sentencing, he failed to specify a single exhibit in
his direct appeal before the Ohio Supreme Court. Hand, 840 N.E.2d at 190. It follows that this
precise variation of his claim was never properly presented to the Ohio courts and exhausted, as
Hand did not specify the exhibits that prejudiced him on direct appeal and failed to raise his
more precise claim in any subsequent petition for relief. Because Hand does not raise an
argument for why this procedural default should be excused, the claim is procedurally defaulted.6
Even if we were to evaluate Hand’s more specific claim on the merits, it is not at all clear that
Hand was prejudiced by his trial counsel’s failure to object to the introduction of guilt-phase
evidence. The graphic photos and autopsy reports were relevant to the death-penalty
specifications that Hand’s murders included the use of a firearm and were committed during a
course of conduct while attempting to kill two or more people. See Gumm, 653 N.E.2d at 263.
In any event, the jury had already seen the exhibits during the guilt phase of the trial. We cannot
conclude, based on this evidence, that Hand was prejudiced by his trial counsel’s alleged error in
failing to object to the introduction of all guilt-phase evidence during sentencing.
This resolves Hand’s ineffective-assistance-of-trial-counsel claims based upon his
counsel’s performance during sentencing.
V
In the first sub-part of his third claim, Hand argues that his counsel on direct appeal was
constitutionally ineffective for failing to challenge the sufficiency of the evidence as to certain
aggravating circumstances and death-penalty specifications. In particular, Hand argues that his
6
Were we to hold otherwise, a criminal defendant could raise a vague generic version of a claim
before a state court only to raise a more specific claim in a federal habeas petition, effectively bypassing
the deference to state courts commanded by AEDPA.
No. 14-3148 Hand v. Houk Page 29
appellate attorneys should have challenged the sufficiency of the evidence supporting the death-
penalty specification that Hand killed Welch in order to prevent him from revealing Hand’s
involvement in his wives’ murders. Appellant’s Br. at 50–53. The district court held that the
claim was not procedurally defaulted but nonetheless failed on the merits. The district court was
correct.
It is undisputed that Hand first raised this claim in his April 18, 2006 application to
reopen his direct appeal. See supra Part I.B, pp. 7–11. Under Ohio law, a convicted defendant
may file an application to reopen his direct appeal and introduce new claims on the ground that
his initial appellate counsel was constitutionally ineffective, and we have previously treated such
applications as ineffective-assistance-of-counsel claims. See Kelly, 846 F.3d at 831 (treating an
application filed pursuant to Ohio Rule of Appellate Procedure 26(B)7 as an ineffective-
assistance-of-appellate-counsel claim). The Ohio Supreme Court denied the application
summarily. Hand, 852 N.E.2d at 185.
Hand argues that, because the Ohio Supreme Court denied his application without
comment, he is entitled to de novo review. Appellant’s Br. at 50–51. That is incorrect.
The Supreme Court has instructed us to presume that when a federal claim has been presented to
a state court and the state court denies relief, “the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.” Richter,
562 U.S. at 99. This is true even where, as is the case here, the state court does not offer an
explanation for its decision. Ibid. Stated in AEDPA’s terms, “determining whether a state
court’s decision resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.” Id. at 98. If
“there is reason to think some other explanation for the state court’s decision is more likely,” we
permit a habeas petitioner to rebut the presumption that the state court’s decision was on the
merits. Id. at 99–100. But Hand offers no reason to rebut the presumption in this case, and thus
7
Although Hand filed his application pursuant to Ohio Supreme Court Practice Rule XI, the two rules are
substantively identical. Rule XI was promulgated to give criminal defendants who have been sentenced to death,
and who therefore appeal their conviction and sentence directly to the Ohio Supreme Court, the same opportunity to
reopen their direct appeal as criminal defendants who must first appeal their case to Ohio’s intermediate appellate
courts.
No. 14-3148 Hand v. Houk Page 30
AEDPA deference applies. We may therefore grant relief only if the state court decision was
unreasonable.8
Moreover, because Hand’s claim is an ineffective-assistance-of-counsel claim, which
itself demands deference to the strategic decisions of counsel, we must evaluate Hand’s claim
under a “doubly deferential” standard of review. Burt, 134 S. Ct. at 13. To establish ineffective
assistance of appellate counsel, a petitioner must show that his appellate counsel’s failure to raise
a claim was objectively unreasonable and that he was prejudiced as a result. Strickland, 466 U.S.
at 690. A petitioner can demonstrate that his appellate counsel’s performance was objectively
unreasonable where the unraised claim was “clearly stronger” than those presented. Monzo,
281 F.3d at 579. Here, the underlying unraised claim is a sufficiency-of-the-evidence challenge
to the specification that Hand murdered Welch in order to cover up his previous wives’ murders.
To have succeeded on this claim, Hand’s counsel would have had to prove that, after reviewing
the evidence in the light most favorable to the prosecution, no rational trier of fact could have
found the essential elements of the contested death-penalty specifications beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). At trial, several witnesses testified
regarding statements Welch made about killing Hand’s previous wives for money, and one
jailhouse informant testified that Hand killed Welch because their deal to kill Jill went sour over
money. Hand, 840 N.E.2d at 162, 168. Based on this evidence and the standard of review, we
cannot hold that Hand’s appellate counsel acted unreasonably by failing to raise this sufficiency-
of-the-evidence challenge on direct review, much less that counsel’s failure to do so was so
obvious that the Ohio Supreme Court’s denial of Hand’s ineffective-assistance-of-counsel claim
was unreasonable under AEDPA. We therefore deny the claim.
VI
In his fifth claim, Hand argues that the trial court failed to give the appropriate narrowing
construction to the course-of-conduct specification for the death penalty, in violation of his rights
8
Hand argues that our decision in McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003), permits us to
hear his claim de novo. Not only does this decision predate Harrington, it is distinguishable on its facts.
In that case, there was evidence suggesting that the Michigan state trial court wrongly “believed that the
[state] court of appeals had already considered the claim.” Id. at 727. There is no such evidence in this
case.
No. 14-3148 Hand v. Houk Page 31
under the Eighth and Fourteenth Amendments. The district court held that the claim was
procedurally defaulted because Hand had failed to object to the jury instructions at trial and the
Ohio Supreme Court had enforced its contemporaneous-objection rule. The district court went
on to conclude that, even if the claim were not procedurally defaulted, it still failed on the merits.
The district court was correct—Hand’s claim was procedurally defaulted.
Hand first raised his course-of-conduct claim on direct appeal. His argument focused on
the death-penalty specifications associated with the aggravated murders of Jill and Welch, which
required the jury to determine that each murder “was part of a course of conduct involving the
purposeful killing of two or more persons by the defendant.” Hand, 840 N.E.2d at 183. The
crux of Hand’s argument is that the trial court’s course-of-conduct instructions were
insufficiently clear because they permitted the jury to infer guilt from Hand’s involvement in his
previous wives’ deaths—i.e., that the jury could conclude that the “two or more persons”
element of the death-penalty specification was satisfied by the deaths of Donna and Lori.
Problematically, however, Hand failed to object to the trial court’s course-of-conduct instruction
during trial. Under Ohio law, this means Hand “waived all but plain error” review. Ibid. The
Ohio Supreme Court concluded that under this standard of review, Hand’s claim was meritless.
Id. at 183–84.
We have previously held that an Ohio court’s enforcement of the contemporaneous-
objection rule is “‘an independent and adequate state ground’ of decision” sufficient to bar
habeas relief. Wogenstahl v. Mitchell, 668 F.3d 307, 336 (6th Cir. 2012) (citation omitted). The
mere fact that the Ohio Supreme Court conducted “plain error review does not constitute a
waiver of the state’s procedural default rules and resurrect the issue.” Keith v. Mitchell, 455 F.3d
662, 673 (6th Cir. 2006). Therefore, Hand is barred from raising this claim for relief in a habeas
petition unless he can demonstrate cause and prejudice to excuse the default.
Hand argues that this default can be excused because his “appellate counsel’s failure to
raise the present claim on direct appeal fell below an objectively reasonable standard, causing
[the] default and resulting in prejudice.” Appellant’s Br. at 79. But Hand misunderstands the
state procedural posture of his case. His appellate counsel’s error is not what caused him to
default this claim. Rather, his trial counsel’s failure to object to the trial court’s instruction is
No. 14-3148 Hand v. Houk Page 32
what caused his claim to be procedurally defaulted. Even if we were to construe Hand’s brief to
allege ineffective assistance of trial counsel—or even ineffective assistance of appellate counsel
for failing to raise an ineffective-assistance-of-trial-counsel claim—his argument for cause and
prejudice would itself be procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 451–
52 (2000) (“[I]neffective assistance adequate to establish cause for the procedural default of
some other constitutional claim is itself an independent constitutional claim . . . . [T]hat
constitutional claim, like others, [must] be first raised in state court.”). Even though Hand had
ample opportunity to raise either ineffective-assistance claim before the Ohio courts on appeal,
he failed to do so. Therefore, any argument that Hand’s procedurally defaulted course-of-
conduct claim could be excused is itself defaulted, and we deny the claim.
VII
In his sixth claim, Hand argues that the state trial court improperly admitted five
instances of prior-bad-acts evidence, thereby violating his rights secured by the Fifth, Seventh,
Eighth, and Fourteenth Amendments. The district court held that although Hand invoked
constitutional provisions in support of his claim, his argument was grounded on Ohio evidence
law. Because he did not “fairly present” his federal constitutional claim to the Ohio courts, the
claim was procedurally defaulted. In the alternative, the district court held that four of his five
prior-bad-acts claims were procedurally defaulted because he failed to object at trial and that his
fifth claim was meritless. The district court was correct on both counts—Hand did not fairly
present his constitutional claims to the Ohio courts, and, in any event, the claims are either
procedurally defaulted or meritless.
Hand’s prior-bad-acts claim on direct appeal pointed to five instances where he alleges
evidence was improperly admitted: (1) the prosecutor argued during closing argument that
Hand’s failure to pay taxes demonstrated disrespect for the law and a willingness to lie and
deceive; (2) witnesses testified about Hand’s reaction to the deaths of his first two wives, Donna
and Lori; (3) a witness testified that Hand once told him “he was a horny old man” but Lori
didn’t want sex as often as he did, and another witness testified that Hand was infatuated with a
friend’s daughter; (4) a childhood friend of Hand testified that he liked to read “true crime”
stories; and (5) the prosecution introduced evidence that he forced his father out of business and
No. 14-3148 Hand v. Houk Page 33
was obsessed with money. Hand, 840 N.E.2d at 176–79. Because Hand failed to object at trial
to each allegedly improper instance except instance (2), the Ohio Supreme Court reviewed four
of the five instances for plain error. The court ultimately denied each instance of Hand’s claim
under Ohio evidence law. Ibid.
Hand argues that this was sufficient to present the substance of his federal claim to the
Ohio courts, as every prospective habeas petitioner is required to do under federal law. See
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the necessary
‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court . . .
thereby alerting that court to the federal nature of the claim.” (citations omitted)). To determine
whether a petitioner has fairly presented a claim in state court, we ask whether the petitioner:
(1) relied upon federal cases employing constitutional analysis; (2) relied upon state cases
employing federal constitutional analysis; (3) phrased the claim in terms of constitutional law or
in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleged
facts well within the mainstream of constitutional law. See McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 2000). “While a petitioner need not cite ‘chapter and verse’ of constitutional law,
‘general allegations of the denial of rights to a “fair trial” and “due process” do not “fairly
present claims” that specific constitutional rights were violated.’” Slaughter v. Parker, 450 F.3d
224, 236 (6th Cir. 2006) (quoting Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)).
In his brief on direct appeal to the Ohio Supreme Court, Hand broadly alleged that the
introduction of these instances of prior-bad-acts evidence violated “his rights to a fair trial, due
process and a reliable determination of his guilt and sentence” as guaranteed by the Fifth, Sixth,
Eighth, and Fourteenth Amendments of the Constitution. In support of this claim, however,
Hand almost exclusively cited Ohio cases that address Ohio evidence law. At no point did he
connect the trial court’s alleged misapplication of state evidence law to rights secured to him by
the United States Constitution. In fact, the only federal case that Hand cited in this entire section
of his state appellate brief was Chapman v. California, 386 U.S. 18 (1967), and only for the
limited purpose of defining “harmless error.” Even if we were to construe Hand as having cited
Chapman generally in support of his claim, it would do him no good. Chapman dealt with a
defendant’s Fifth Amendment right to silence, which has nothing to do with the prior-bad-acts
No. 14-3148 Hand v. Houk Page 34
claims that Hand raised before the state court. Based on the foregoing, Hand did not fairly
present his federal constitutional claims to the state court on direct appeal, and those claims are
therefore procedurally defaulted. Because Hand does not allege cause and prejudice to excuse
the default, this concludes the analysis of his sixth claim of relief.9
VIII
In his seventh, and final, claim for habeas relief, Hand argues that the prosecution
presented insufficient evidence to prove each of the elements of escape under Ohio law. The
district court held that the Ohio Supreme Court applied the correct standard of review and
concluded that there was sufficient evidence for a rational juror to find Hand guilty of escape
beyond a reasonable doubt. The district court was correct.
Hand first raised this claim on direct appeal. See supra Part I.B, pp. 7–11. He argued
that there was no evidence that he was involved in planning the escape attempt or that he directly
assisted in cutting the emergency door lock. Hand, 840 N.E.2d at 181. He also argued that the
testimony that he was acting as a lookout, even if true, was insufficient to convict him of the
crime. The Ohio Supreme Court disagreed. The court began by explaining the standard of
review: “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id. at 180–81 (alteration in original) (citation omitted).
Pointing to the record, the court noted the wealth of witness testimony that implicated him in the
escape attempt, including testimony that linked him to planning the escape. Id. at 181. The
court also referred to the circumstantial evidence that supported Hand’s guilt, including “some
torn-up teeshirt material and a pencil with a piece of teeshirt tied around it” that was found in
Hand’s cell—items that were “consistent to what was tied to the saw blades and . . . to what
inmates do to hide things.” Ibid. Even if the evidence established only that Hand was acting as a
lookout, the court concluded, there was sufficient evidence for a rational juror to find that Hand
9
Even if Hand did argue that ineffective assistance of appellate counsel might excuse this default,
he procedurally defaulted that claim by failing to raise his prior-bad-acts claim in either of his
applications to reopen his direct appeal. See Edwards, 529 U.S. at 452–53.
No. 14-3148 Hand v. Houk Page 35
was an accomplice in the escape attempt, who Ohio law commands “shall be prosecuted and
punished as if he were a principal offender.” Ibid. (quoting Ohio Rev. Code Ann. § 2923.03(F)).
As the Ohio Supreme Court addressed this claim on the merits, we are required to grant
that decision AEDPA deference on review. See supra Part II, pp. 16–18. AEDPA only permits
us to grant habeas relief if the state court’s adjudication of the petitioner’s claim either “resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or “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). Because the Ohio Supreme Court did not misstate the law or
unreasonably interpret the facts in the record of this case, we deny Hand’s sufficiency-of-the-
evidence claim.
IX
Based on the foregoing, the claims in Gerald Hand’s habeas petition are all either
procedurally defaulted or meritless. We therefore AFFIRM the decision of the district court.