State v. Ashworth, Not Reported in N.E.2d, 1999 WL 1071742 (Ohio App. 5 Dist.,1999). (PCR)

GWIN
Appellant Herman Dale Ashworth appeals a judgment of the Licking County Common Pleas dismissing his petition for post-conviction relief without an evidentiary hearing.

ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN ISSUING INSUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW IN REGARD TO APPELLANT'S PETITION FOR POST-CONVICTION RELIEF. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S SUMMARY JUDGMENT MOTION. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT MORELAND [SIC] AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10, 16, AND 20 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO APPELLANT'S CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER 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. ASSIGNMENT OF ERROR NO. V OHIO'S POST-CONVICTION PROCESS IS NOT AN ADEQUATE AND CORRECTIVE PROCESS.

After living in DeQuincy, Louisiana, appellant moved to Newark, Ohio in April of 1996. On September 10, 1996, appellant went to the Wagon Wheel Bar and began drinking. While in the bar, appellant began talking to Daniel Baker. People in the bar, including Baker, were buying appellant drinks.

Appellant told the owner of the bar he thought Baker was gay, and he was going to get rid of him. The bar owner did not observe anything that would indicate that Baker was gay, nor did he see Baker make any homosexual advances toward appellant. The bar owner did see appellant and Baker leave together.

Appellant later met his girlfriend outside the Wagon Wheel Bar and the TNT Bar. As they were talking, appellant's girlfriend grabbed his right hand. He fell to his knees in pain, and told the girlfriend that he hurt his hand in a fight. Appellant then took his girlfriend behind the Legend Bar, to the Salvation Army loading dock. Appellant's girlfriend observed a man lying on his belly, but did not see any blood. She heard what sounded like snoring coming from him. She also noticed that appellant had blood on one of his shoes.

Appellant and his girlfriend proceeded to the TNT Bar, where appellant purchased a bucket of beer. Appellant told his girlfriend that he thought he should go back and finish the guy off, because he did not want to be recognized. When his girlfriend begged him not to go, appellant told her he was going back to the Wagon Wheel Bar. Appellant's girlfriend stayed at the TNT until the last call, around 2:15 a.m. She then went to the Wagon Wheel, but appellant was not there.

When she got near the Legend Bar, she heard a noise that sounded like something hitting metal. She walked toward the noise, which was coming from the Salvation Army loading dock. She saw the same man she had seen earlier, lying on his back, with his head against the garage door. There was a lot of blood at the scene. She observed papers and articles thrown about.

Appellant's girlfriend returned to the Wagon Wheel where she grabbed appellant, and said, "You robbed him". Appellant did not reply. He had dark spots on his pants. Earlier that evening, appellant told a friend that he had been in a fight, and "kicked the shit out of this guy". Appellant told his friend that he kicked him until he could not kick anymore.

Around 3:45 a.m. on September 11, Daniel Baker's body was found on the Salvation Army loading dock. When the police arrived, Baker was dead. Blood had seeped underneath the garage door, and items belonging to Baker were strewn about. Bloody footprints surrounded the area, and were evident on Baker's chest.

While police were investigating the crime scene, a 911 call came into the police station. The caller said that he had beaten a man badly and left him on the loading dock of the Salvation Army. The call was traced to a public telephone located less than a mile from appellant's home.

After police located appellant, he agreed to come to the station for questioning. He agreed to make a taped statement after being informed of his Miranda rights. Appellant told police that Baker "reached down and grabbed me on my butt."

Appellant claimed that he told him to stop, claiming he was "not that way", but Baker would not stop. Appellant said that he kept trying to move away from Baker, and they ended up on the loading dock. Appellant told police that Baker kept moving toward him and tried grabbing him.

Appellant then began to hit him with his fist. Appellant stated that Baker did not fight back, but kept coming at him. Appellant said that he eventually picked up a board and struck Baker with it. After Baker fell down, appellant kicked him. Appellant took the wallet out of Baker's pants, claiming he took about $42 in cash.

Appellant's pants and shoes were confiscated. The shoes had blood on them. The pants had blood on them, and in the front pants pocket, police found Baker's driver's license and credit cards. The soles of appellant's shoes matched the bloody footprints at the scene, and on the victim's shirt.

Appellant was charged with two counts of aggravated murder, and a separate count of aggravated robbery. A specification that the murder was committed during the course of an aggravated robbery was attached to each murder count. In addition, a specification that the murder was committed to escape detection for the aggravated robbery was attached to the second murder. Appellant entered a plea of guilty, and waived the presentation of mitigating evidence. A three-judge panel found sufficient basis to find him guilty of aggravated murder, all capital specifications, and aggravated robbery, and sentenced him to death.

Appellant appealed the judgment of conviction and sentence to the Ohio Supreme Court. The court found that the trial court did not err in allowing appellant to waive all mitigating evidence, based on a finding that he was competent to do so. The court concluded that in a capital case, when a defendant wishes to waive the presentation of all mitigating evidence, the trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowingly and voluntary. State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, syllabus one.

A defendant is mentally competent to forego the presentation of mitigating evidence if he has the mental capacity to understand the choice between life and death, and to make a knowing and intelligent decision not to pursue the presentation of evidence. Id. at syllabus two. The defendant must comprehend the ramifications of his decision, and must possess the ability to reason logically. Id.

The Ohio Supreme Court concluded that the procedure followed by the trial court in the instant case was adequate to allow appellant to waive his right to present mitigating evidence. The court further held that the court need not go farther and appoint independent counsel to investigate and present mitigating evidence over appellant's wishes. After conducting an independent sentence review, the court affirmed the conviction and sentence.

Appellant filed a petition for post-conviction relief, arguing primarily that counsel was ineffective for failing to present mitigating evidence. The court dismissed the petition without an evidentiary hearing.

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For the reasons stated in the Memorandum-Opinion on file, the judgment of the Licking County Common Pleas Court is affirmed.

Ashworth v. Bagley, Not Reported in F.Supp.2d, 2002 WL 485006 (S.D.Ohio,2002) (Habeas)

SARGUS, J.
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before the Court a habeas corpus action pursuant to 28 U .S.C. § 2254. This matter is before the Court on respondent's motion to dismiss procedurally defaulted claims (doc.no.22), petitioner's memorandum in opposition (doc.no.23), and the Joint Appendix.

I. Factual History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Ashworth, 85 Ohio St.3d 56 (1999):

Appellant, Herman Dale Ashworth, was charged with two counts of aggravated murder of Daniel L. Baker and with a separate count of aggravated robbery. A specification that the aggravated murder was committed during the course of an aggravated robbery was attached to each murder count.

In addition, a specification that the murder was committed to escape detection for the aggravated robbery was attached to the second murder count. Ashworth pled guilty and waived the presentation of mitigating evidence.

The three-judge panel found a sufficient basis to find him guilty of aggravated murder, all capital specifications, and the aggravated robbery count, and sentenced him to death. He appeals his convictions and death sentences.

Ashworth had been living in Louisiana and had moved to Newark, Ohio, in April 1996. He was living with his cousin, Ron Sillin. On September 10, 1996, Ashworth went to the Wagon Wheel Bar and began drinking. Another cousin, Louis Dalton, also stopped off at the Wagon Wheel for a few drinks, around 4:30 or 5:00 p.m. Dalton stayed for a couple of hours, and before he left, Ashworth asked him whether he could borrow some money. Dalton told him no.

Lloyd Thompson, owner of the Wagon Wheel, saw Ashworth in the bar around 8:00 or 9:00 p.m. Ashworth asked Thompson whether he could borrow $10, but Thompson said no.

Thompson later saw Ashworth talking to a man whom Thompson had not seen before, but who was later identified as Daniel Baker. People in the bar, including Baker, were buying Ashworth drinks. Ashworth told Thompson that he thought that Baker was gay and he (Ashworth) was going to get rid of him. Thompson did not observe anything that would indicate that Baker was gay, nor did Thompson see any advances made by Baker toward Ashworth.

Thompson saw Ashworth and Baker leave together. Thompson saw Ashworth later in the evening but never saw Baker again. When Ashworth returned to the bar, he appeared to have over $40 with him. Ashworth asked Thompson to cover for him if the cops came in. It appeared to Thompson that Ashworth's right hand was swollen.

Tanna Brett, Ashworth's girlfriend, saw Ashworth that evening outside the TNT Bar and Wagon Wheel Bar. As they were talking to each other Brett grabbed Ashworth's right hand. Ashworth fell to his knees in pain, and told Brett that he hurt his hand in a fight with a guy. Ashworth took her behind the Legend Bar, to the Salvation Army loading dock. Brett observed a man lying on his belly but did not see any blood.

However, she heard what sounded like snoring coming from him. She did not observe any belongings on the ground, and they stayed less than a minute. She did notice that Ashworth had blood on one shoe.

Brett and Ashworth proceeded to the TNT Bar, where Ashworth bought a "bucket of beer." Brett noticed that Ashworth had a $5 bill, a few singles, and a $10 bill. Ashworth told Brett that he thought he should go back and finish the guy off, because he did not want to be recognized.

Brett begged him not to go back, and Ashworth told her he was going over to the Wagon Wheel Bar. Brett stayed at the TNT until "last call," around 2:15 a.m. She then went over to the Wagon Wheel, but Ashworth was not there. She proceeded to the Legend Bar to look for him. When she got near the Legend, she heard a noise that sounded like something hitting metal.

She walked toward the noise, which was coming from the Salvation Army loading dock. She saw the same man lying on his back, with his head against the garage door. There was a lot of blood. This time she observed papers and articles strewn about. She could hear the man breathing, and saw him move his hand a little bit. She left because it made her sick to her stomach.

Brett returned to the Wagon Wheel, grabbed Ashworth, and said, "You robbed him." Ashworth did not say anything; he just looked at the floor. She saw dark spots on his pants. Earlier that evening, around 9:30 p.m., Dalton had received a call from Ashworth. Ashworth told him that he had been in a fight and "kicked the shit out of this guy." Ashworth said that he kicked him until he could not kick him any more. He mentioned that his hand hurt.

Around 3:45 a.m. on September 11, 1996, Daniel Baker's body was found on the Salvation Army loading dock. By the time police arrived, he was already dead. There was blood around Baker's head and upper shoulder area. There was so much blood that it had seeped underneath the garage door. Items belonging to Baker were strewn about the area.

Bloody footprints surrounded the area and also were evident on Baker's chest. While police were investigating the crime scene, a 911 call came into the police station (around 4:13 a.m.). The caller said that he had beaten a man badly and left him on the loading dock of the Salvation Army. The call was traced to a public telephone located less than a mile from Ashworth's house. Based on their investigation, police went to the home of Ron Sillin, where Ashworth was residing. Initially, they knocked and rang the doorbell, but no one answered.

They called Ron Sillin and obtained permission to enter. They found Ashworth asleep in the back bedroom. They woke him and asked him to come down to the police station for questioning. He ultimately agreed, and dressed. After being informed of his Miranda rights, he agreed to make a taped statement.

According to Ashworth, he had been drinking at the Wagon Wheel, starting around 3:30 p.m. Baker arrived around 8:00 p.m., and the two started talking together. Upon Baker's suggestion, the pair went over to the Legend Bar, where they had a beer, and then Ashworth suggested going back to the Wagon Wheel.

On the way back to the Wagon Wheel, Baker told Ashworth that he wanted to show him something. They went around the corner, where, Ashworth claimed, Baker "reached down and grabbed me on my butt." Ashworth told him to stop, that he was not "that way," but Baker would not stop.

Ashworth said that he kept trying to move away from Baker, and they ended up on the loading dock. Baker kept moving toward him and again tried grabbing him. Ashworth began to hit him with his first, and "freaked out." Baker did not fight back, but kept coming at him, saying, "it's okay," it'll be all right." Ashworth said that he eventually picked up a board, about six inches wide and five feet long, and struck Baker with it.

After Baker fell down, Ashworth then kicked him. Ashworth took the wallet out of Baker's pants, but denied keeping the wallet; instead, he said he just took the money, about $42. The remaining contents of the wallet spilled out. Ashworth stated that he had not planned to take the wallet or money, but he just thought of it at the time.

Ashworth said that he went back to the Wagon Wheel Bar and drank and then went to the TNT Bar and drank some more. He then went home but did not remember how he got there. He woke up Sillin and asked him to take him up to Tee Jaye's Restaurant to get something to eat. On the way back, he asked Sillin to stop so he could use the phone because he was worried about Baker, but Sillin told him not to worry about it.

After he got home, he said that he began to worry and walked back to the pay phone and called 911. He told the operator that he had hurt someone, that the person needed some help, and described the location, but he did not identify himself. He then went back home and went to bed. Ashworth never admitted going back to the loading dock a second time.

During his statement to the police, Ashworth indicated that the clothes he had worn were at his house and that he was wearing the shoes he had on during the encounter with Baker. The shoes had blood on them, and the police confiscated them. The officers asked for Ashworth's consent to obtain the clothing he had worn, and he gave it.

The police also obtained a search warrant. The pants they recovered had blood on them and in the front pants pocket, contrary to Ashworth's statement, they found Baker's driver's license and credit cards. The soles of Ashworth's shoes matched the bloody footprints found at the scene and on the victim's shirt.

The coroner found that Baker had died as a result of numerous blunt force injuries. He stated that the injuries he observed were typical of those he was more likely to see as a result of a car accident or an airplane crash. In his twenty years of practice, he had seen only one other case with such severe injuries as a result of a beating. The coroner opined that which such injuries, death would normally occur in ten to twenty minutes.

At his request, Ashworth was first examined for competency to stand trial and was found competent. Ashworth eventually decided that he wanted to plead guilty to the crime and waive the presentation of mitigating evidence so that he would be executed. As a result of Ashworth's decision, his original lead counsel, George C. Luther, withdrew, and new lead counsel, W. Joseph Edwards, was appointed.

Edwards requested that Ashworth be examined for competency to waive further proceedings, including mitigation, under the standard set forth in State v. Berry (1996), 74 Ohio St.3d 1504, 659 N.E.2d 796, which had been recently issued. The trial court appointed a clinical psychologist, agreed upon by both parties, to examine Ashworth. Edwards also asked the trial court to appoint an independent counsel to present mitigating evidence during the sentencing proceeding, but the court denied that request.

After a psychological report was prepared, the case was heard. Ashworth was found competent to waive the presentation of mitigation and all appeals. He changed his plea to guilty and the state set forth a factual basis, pursuant to Crim.R. 11(C)(3) , through the presentation of witnesses. Defense counsel, pursuant to their client's wishes, made no objections and did not cross-examine the witnesses. Ashworth agreed to the facts as presented by the state. The trial court accepted his plea and found him guilty as charged.

Upon a finding of guilty, defense counsel renewed the motion for independent counsel, which was denied by the entire panel. The defense presented no mitigating evidence, and the panel entered a sentence of death. Ashworth, 85 Ohio St.3d at 57-60

II. State Court Procedural History

A. Trial and Direct Appeal

Petitioner was indicted by the Licking County Grand Jury on September 20, 1996. On September 23, 1996, upon petitioner's request, the trial court appointed two attorneys to represent petitioner. At his arraignment on September 30, 1996, petitioner entered pleas of not guilty. Ultimately, petitioner waived his right to trial by jury, changed his pleas to guilty, and waived his right to present mitigation evidence.

Following a competency evaluation indicating that petitioner was competent, and presentation by the State of facts demonstrating a factual basis for petitioner's pleas, the three-judge panel found petitioner guilty as charged. During the sentencing phase, no mitigation evidence was presented on petitioner's behalf, at petitioner's insistence. The three-judge panel concluded that the aggravating circumstances outweighed the mitigating factors, and sentenced petitioner to death, which judgment was entered on June 16, 1997.

Represented by new counsel, [FN1] petitioner pursued his direct appeal as of right to the Supreme Court of Ohio. In a merit brief filed on January 5, 1998, counsel for petitioner raised the following propositions of law:

FN1. Petitioner was represented on direct appeal by the Ohio Public Defender's Office and by attorney Carol Wright.

Proposition of Law No. I: The Eighth Amendment to the United States Constitution precludes a state from imposing a sentence of death unless the sentencing authority actually considers all relevant evidence of mitigation. Consequently, a capital defendant cannot interpose his Sixth Amendment right to self-representation as a bar to the introduction of mitigation evidence. Proposition of Law No. II: When a trial court is predisposed to sentence a defendant to death, the defendant is denied his due process rights as guaranteed by the U.S. and Ohio Constitutions. Proposition of Law No. III: A person may elect to forgo capital mitigation proceedings if he has the capacity to appreciate his position and make a rational choice with respect to presenting or waiving mitigation. A person is not competent to forgo capital mitigation proceedings if he suffers from a mental disease, disorder, or defect which may substantially affect his capacity to make that decision. Proposition of Law No. IV: Sentencing an individual to death in violation of treaties to which the United States of America is a signatory violates the Supremacy Clause of the United States Constitution. Proposition of Law No. V: The death penalty authorized by the Ohio Revised Code deprives capitally-charged defendants of their lives without due process of law, denies equal protection, and imposes cruel and unusual punishment in violation of the Ohio and United States Constitutions.

J.A. Vol. VI, at 59. On March 24, 1999, the Ohio Supreme Court issued a decision rejecting petitioner's propositions of law, and concluding after independent review that the death sentence against petitioner was appropriate and proportional. State v. Ashworth, supra, 85 Ohio St.3d 56; J.A. Vol. VII, at 124. On April 24, 1999, the Ohio Supreme Court summarily denied petitioner's motion for reconsideration. J.A. Vol. VII, at 160.

B. Postconviction

On March 16, 1998, represented by the Ohio Public Defender's Office, petitioner filed a state postconviction action to vacate or set aside the judgment against him. Petitioner's grounds for relief may be summarized as follows:

First Ground for Relief: The judgment and sentence against Herman Dale Ashworth are void or voidable because the recent amendments to the Ohio post-conviction process violate his constitutional rights to procedural due process which the Ohio and United States Constitutions afford him. ¶¶ 25-34.

Second Ground for Relief: The imposition and planned execution of the death sentence under Ohio law and practice upon Herman Dale Ashworth is void and/or voidable because the death penalty is administered and applied arbitrarily, capriciously, and whimsically in the State of Ohio and petitioner was sentenced to die and will be executed, pursuant to a pattern and practice of wholly arbitrary and capricious infliction of that penalty. The theoretical justifications for capital punishment are groundless and irrational in fact; death is thus an excessive penalty that fails factually to serve any rational and legitimate social interests that can justify its unique harshness. ¶¶ 35- 43.

Third Ground for Relief: The Sixth, Eighth, and Fourteenth Amendments to the United States Constitution require that a sentencing authority actually consider all relevant mitigation evidence before a sentence of death may be imposed. (citations omitted). The Constitution requires a sentencing body to seek out and actually consider all relevant mitigation evidence. Failure to do so renders a death sentence void. (citations omitted). ¶¶ 44-54.

Fourth Ground for Relief: Due to the actions of the trial court [rejecting defense counsel's suggestion for the appointment of independent counsel to present mitigation evidence], petitioner was deprived of counsel. The deprivation of counsel meant the preclusion of expert assistance. As a result, petitioner's sentencer was prevented from considering and giving effect to the expert testimony, specifically expert testimony regarding Southern culture in which he was born and reared. ¶¶ 55-65.

Fifth Ground for Relief: Due to the actions of the trial court [rejecting defense counsel's suggestion for the appointment of independent counsel to present mitigation evidence], petitioner was deprived of counsel. The deprivation of counsel meant the preclusion of expert assistance. As a result, petitioner's sentencer was prevented from considering and giving effect to the expert testimony of a toxicologist regarding the effect that petitioner's alcohol consumption would have had on Mr. Ashworth in terms of the crimes charged against him. ¶¶ 66-75.

Sixth Ground for Relief: Due to the trial court's failure to appoint independent counsel, petitioner's sentencer was prevented from considering compelling mitigating evidence regarding Dale's abandonment by his birth parents; his adoptive parents' divorce, the death of his beloved brother Ricky; and the abusive, alcoholic environment to which he was consistently exposed. Other mitigation evidence was available pertaining to the community and culture of violence and alcoholism that further surrounded him. If independent counsel had been appointed, they could have presented evidence that Dale was highly homophobic, and there was evidence that the victim's death was precipitated by an inappropriate homosexual advance made on petitioner. Petitioner also had a family history replete with alcoholics and depression. ¶¶ 76-87.

Seventh Ground for Relief: At the penalty phase of a capital case, the central issue is not whether the defendant is guilty of the crimes he was convicted of, but rather whether the defendant, notwithstanding his crimes, is a person who should live or die. When relevant mitigating evidence is available but is not introduced or considered by the sentencer, the appropriateness of any death sentence imposed is undermined. The trial court's refusal to appoint independent counsel to present petitioner's case in mitigation completely eliminates any notion that the death sentence in his case is appropriate. ¶¶ 88-94.

J.A. Vol. VIII, at 1. On May 15, 1998, the trial court denied petitioner's postconviction action. J.A. Vol. IX, at 130. Petitioner appealed to the Court of Appeals for the Fifth Appellate District and raised the following assignments of error:

Assignment of Error No. I: The trial court erred in issuing insufficient findings of fact and conclusions of law in regard to appellant's petition for postconviction relief. 1. A trial court's decision denying a post-conviction petition must contain findings of fact and conclusions of law regarding each of a petitioner's claims.

Assignment of Error No. II: The trial court erred in granting the appellee's summary judgment motion. 1. A party is not entitled to summary judgment when the moving party cannot point to evidence which affirmatively demonstrates that the non-moving party has no evidence to support the non-moving party's claims.

Assignment of Error No. III: The trial court erred when it denied appellant an evidentiary hearing on his petition for post-conviction relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution. 1. A trial court cannot deny an evidentiary hearing to a post-conviction petitioner when his petition is sufficient on its face to raise constitutional claims which depend on factual allegations that cannot be determined from the record.

Assignment of Error No. IV: The trial court erred in its application of the doctrine of res judicata to appellant's claims for relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution. 1. The doctrine of res judicata cannot be applied to bar Appellant's claims for relief when those claims were supported by evidence dehors the record.

Assignment of Error No. V: Ohio's post-conviction process is not an adequate and corrective process. 1. Ohio's post-conviction procedures fail to afford a petitioner with an adequate and corrective process. On May 3, 1999, the appellate court issued a decision affirming the trial court's decision. J.A. Vol. IX, at 305. Petitioner pursued a discretionary appeal to the Supreme Court of Ohio and, in his memorandum in support of jurisdiction, raised the following propositions of law:

Proposition of Law No. 1: R.C. 2953.21 requires a trial court to issue sufficient findings of fact and conclusions of law regarding each of petitioner's claims.

Proposition of Law No. 2: A party is not entitled to summary judgment when the moving party cannot point to evidence which affirmatively demonstrates that the non-moving party has no evidence to support that non-moving party's claims.

Proposition of Law No. 3: A trial court cannot deny an evidentiary hearing to a post-conviction petitioner when his petition is sufficient on its face to raise constitutional claims which depend on factual allegation that cannot be determined from the record.

Proposition of Law No. 4: The doctrine of res judicata cannot be applied to bar a petitioner's claims for relief when those claims are supported by evidence dehors the record. Proposition of Law No. 5: Ohio's post-conviction process does not provide an adequate corrective process in violation of the Due Process, the Equal Protection, and the Supremacy Clauses of the United States Constitution. J.A. Vol. IX, at 354. On March 17, 2000, the Ohio Supreme Court issued an entry declining to hear petitioner's appeal.

III. Habeas Corpus

On June 1, 2000, petitioner filed an application to proceed in forma pauperis, a notice of intent to file a habeas corpus petition, a motion for stay of execution, and a motion for appointment of counsel. Attorneys Carol Wright [FN2] and Herman Carson were appointed on July 7, 2000 and, on July 14, 2000, petitioner's motion for a stay of execution was granted. On November 14, 2000, petitioner filed his formal habeas corpus petition raising the following grounds for relief:

FN2. Ms. Wright has been representing petitioner since his first appeal of right.

First Ground: The Eighth Amendment restrictions on the State of Ohio's power to execute are paramount to the individual's right to self-representation and thus by permitting the Sixth Amendment right to self representation to trump the Eighth Amendment, the State of Ohio denied petitioner his constitutional rights to a reliable sentencing determination and circumvented the statutory and constitutional requirements.

Second Ground: Providing an opportunity to present mitigation evidence is insufficient to guarantee a death sentence meets the requirements of the Eighth Amendment. A valid death sentence requires both guided discretion and an individualized sentencing determination. Petitioner was denied the safeguards required by the Eighth Amendment when his counsel felt obligated to follow his wishes to seek a death sentence because the proceeding that resulted lacked the adversarial testing that his required to assure the system's reliability.

Third Ground: Petitioner Ashworth was deprived of counsel in violation of his Sixth Amendment right to counsel when the trial court refused to appoint independent counsel. Such state induced deprivation of counsel violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Fourth Ground: Petitioner was not competent to waive his right to present mitigation evidence and thus his death sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

Fifth Ground: Petitioner Ashworth was denied the individualized and reliable sentencing determination guaranteed by the Eighth and Fourteenth Amendments to the U.S. Constitution when the state Supreme Court conducted its independent review as the court failed to consider and give effect to mitigating circumstances that were manifestly present in the record.

Sixth Ground: To have a valid waiver of a fundamental constitutional right, there must be an intentional relinquishment of a known right. Petitioner did not validly waive his fundamental right to present mitigation evidence and thus, his due process rights and his rights to a reliable sentence as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution were violated.

Seventh Ground: Petitioner was denied the effective assistance of counsel in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Eighth Ground: Petitioner was tried and sentenced by a trial court that was predisposed to sentence him to death which deprived Petitioner Ashworth of his right to a fair trial and sentencing determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Ninth Ground: Petitioner Ashworth was deprived of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution since he is factually innocent of the offenses of which he was convicted and for which he was sentenced to death.

Tenth Ground: A sentence of death by electrocution violates the Eighth Amendment. Furthermore, forcing a death sentenced individual to elect his own means of execution by choosing between electrocution and lethal injection constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Eleventh Ground: Petitioner's sentence of death violates treaties to which the United States of America is a signatory, thereby violating the Supremacy Clause of the United States Constitution.

Twelfth Ground: The statutory provisions governing the Ohio capital scheme violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. This scheme is unconstitutional on its face. Petition, doc.no. 13.

On March 12, 2001, respondent filed a motion to dismiss procedurally defaulted claims. Petitioner filed a memorandum in opposition on April 2, 2001. This order will address the questions of whether any of petitioner's grounds for relief must be denied because they were procedurally defaulted during the course of state court proceedings, and whether he has successfully demonstrated the existence of cause sufficient to excuse that default.

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For the foregoing reasons, respondent's motion to dismiss procedurally defaulted claims is GRANTED as to grounds nine and ten, as well as paragraphs 107, 108, and 115 in part of ground seven, and DENIED as to grounds five, six, and the remaining claims of ground seven. IT IS SO ORDERED.