OPINION
Petitioner-appellant Timothy Hoffner appeals the district court’s order denying his petition for habeas corpus. Hoffner was convicted of aggravated murder, aggravated kidnapping, and robbery and was sentenced to death. In his petition, he claims that the trial court improperly weighed aggravating and mitigating circumstances, that he received ineffective assistance of trial and appellate counsel, that statements were admitted at trial in violation of his Miranda rights, and that the cumulative effect of the errors at trial violated his constitutional rights. For the reasons set forth below, we now affirm the district court’s decision and deny Hoffner’s habeas petition.
I.
The Ohio Supreme Court summarized the facts of the case as follows:
{¶ 1} On September 22, 1993, Timothy L. Hoffner, defendant-appellant, and Archie Dixon kidnapped and robbed Christopher Hammer, then drove Hammer to a remote area where they buried him alive in a shallow grave and left him to die.
{¶ 2} Hoffner was convicted of the aggravated murder, aggravated robbery, and kidnapping of Hammer, and he was sentenced to death.
{¶ 3} Hoffner and Hammer met in August 1993. For a short period of time in mid-August 1993, Hoffner, Hammer, and Dixon lived at the Toledo home of Kirsten Wilkerson, Dixon’s girlfriend.
{¶ 4} In early September 1993, Michael Elting, a friend of Hammer, Hoffner, and Dixon, borrowed Hammer’s car, a 1987 Dodge Daytona, to go to the movies with Hoffner and Dixon. According *492 to Elting, Hoffner and Dixon discussed “how to get rid of [Hammer’s] car,” and Hoffner said that he knew a place where he could take the car, presumably after Hammer was killed. Approximately one month after Hammer’s disappearance, Elting discovered Hammer’s car at a used car lot in Toledo.
{¶ 5} On the afternoon of September 21, Dixon told Wilkerson that he and Hoffner were going to “get [Hammer] tonight.” Wilkerson understood this to mean that Dixon and Hoffner were going to kill Hammer.
{¶ 6} In the early morning of September 22, Hoffner, Dixon, and Hammer went to Wilkerson’s house. Once there, Hoffner and Dixon attacked Hammer. Hoffner restrained Hammer in a headlock while Dixon beat him. Hoffner tried to break Hammer’s neck, and Dixon struck Hammer in the head with a wine bottle. Hoffner and Dixon then tied Hammer to a bunk-bed ladder, and Dixon went through Hammer’s wallet, taking out his money, birth certificate, and Social Security card. Then Hoffner and Dixon discussed how they should dispose of Hammer’s body.
{¶ 7} While Hammer remained tied to the bunk-bed ladder, Hoffner and Dixon left Wilkerson’s house to dig a grave. Hoffner and Dixon returned to Wilkerson’s house and they, along with Wilkerson, drove Hammer, blindfolded, to the gravesite in Hammer’s car. Wilkerson stayed at the car while Hoffner and Dixon walked Hammer into the woods, where they permitted Hammer to smoke a cigarette. Then they gagged and again blindfolded Hammer, tied his hands and feet behind his back, grabbed him by his arms and legs, and dropped him into the grave, still alive. At one point, Hammer was able to remove the gag from his mouth and free one of his legs. Hoffner jumped into the grave and placed his foot over Hammer’s mouth when Hammer yelled for help. Hoffner and Dixon then held Hammer down and covered him with dirt. After Hammer was completely buried, Hoffner and Dixon walked back and forth across the grave, packing down the dirt. Hoffner, Dixon, and Wilkerson then returned to Wilkerson’s house in Hammer’s car. {¶ 8} After killing Hammer, Hoffner and Dixon carried out their plan to sell his car. On September 25, Dixon obtained a state of Ohio identification card with his photograph but in Hammer’s name. On September 30, Hoffner and Dixon went to the automobile title bureau, where Dixon obtained a duplicate certificate of title for Hammer’s car using the fraudulent ID card. Hoffner and Dixon then took Hammer’s car to a used car lot, where they sold the car for $2,800.
{¶ 9} By November 8, 1993, police officers investigating Hammer’s disappearance had located his Dodge Daytona at a used car lot in Toledo, had confirmed its unauthorized sale on September 30, and had identified Dixon as the prime suspect in the vehicle transaction. On November 9, police went to Wilkerson’s home and arrested Dixon for forgery. The police also executed a search warrant at Wilkerson’s home. During the search, police questioned Hoffner regarding Hammer’s disappearance. Hoffner denied involvement but made statements implicating Dixon. Hoffner agreed to accompany police detectives downtown to make a statement. On the way to the station, Hoffner told police that Dixon had shown him the location of Hammer’s body, and he then led police to the gravesite.
{¶ 10} Once at the station, police read Hoffner his Miranda rights, but Hoffner was not placed under arrest. Hoffner waived -his rights and gave a taped account of Dixon’s involvement in Ham *493 mer’s murder. After Hammer’s body was discovered, Dixon confessed to Hammer’s murder and also implicated Hoffner. Police subsequently arrested Hoffner on November 10 at Ms mother’s home. At police headquarters, detectives read Hoffner his Miranda rights, and Hoffner signed a waiver-of-rights form. Hoffner then gave a taped statement confessing to his part in Hammer’s death.
{¶ 11} Cynthia Beisser, Deputy Coroner of Lucas County, performed an autopsy and concluded that Hammer had died of asphyxiation. According to Dr. Beisser, Hammer likely died within five minutes of being buried alive, and he might have remained conscious during the first two to three minutes.
{¶ 12} A grand jury indicted Hoffner, Dixon, and Wilkerson for the aggravated murder, kidnapping, and aggravated robbery of Hammer. Hoffner was indicted on three counts of aggravated murder. Count One of the indictment charged Hoffner with aggravated murder involving prior calculation and design, [Ohio Rev.Code Ann. §] 2903.01(A). Count Two charged Hoffner with aggravated murder while committing kidnapping, and Count Three charged Hoffner with aggravated murder while committing aggravated robbery, both pursuant to [Ohio Rev.Code Ann. §] 2903.01(B). Hoffner was additionally indicted for kidnapping in Count Four, aggravated robbery in Count Five, and three counts of forgery in Counts Six, Seven, and Eight.
{¶ 13} The three counts of aggravated murder each contained two [Ohio Rev.Code Ann. §] 2929.04(A)(7) death penalty specifications. The first specification charged aggravated murder during a Mdnapping, and the second charged aggravated murder during an aggravated robbery.
{¶ 14} The jury convicted Hoffner as charged and recommended the death penalty. Thereafter, the trial court sentenced Hoffner to death for the murder, to ten to 25 years each for kidnapping and aggravated robbery, and to 18 months for each forgery charge. On appeal, the court of appeals affirmed Hoffner’s convictions and death sentence.
State v. Hoffner (Hoffner II),
After considering the thirteen propositions of law Hoffner raised on direct appeal, the Supreme Court of Ohio rejected each of them and affirmed Hoffner’s conviction and sentence on July 14, 2004.
Id.
at 67. The Supreme Court denied Hoffner’s petition for a writ of
certiorari. Hoffner v. Ohio,
On January 6, 2006, Hoffner filed a
habeas
petition in federal district court raising thirteen grounds for relief.
Hoffner v. Bradshaw (Hoffner VII),
No. 3:05-cv-00687, slip op. at 6 (N.D.Ohio July 23, 2008). On February 8, 2006, the district court held the case in abeyance to allow Hoffner to file his Rule 26(B) motion.
Hoffner v. Bradshaw (Hoffner VI),
No. 3:05-cv-00687,
On appeal, Hoffner failed to brief four of the ten claims for which the district court granted a COA and therefore has abandoned them.
See
Fed. R.App. P. 28(a)(9)(A);
Geboy v. Brigano,
1. Whether Hoffner’s death sentence violated his due process rights because it was based on the consideration of improper aggravating circumstances.
2. Whether trial counsel’s performance at the guilt phase of trial was constitutionally ineffective.
3. Whether trial counsel’s performance at the penalty phase of trial was constitutionally ineffective.
4. Whether appellate counsel’s performance was constitutionally ineffective.
5. Whether Hoffner’s conviction is invalid because it was based on statements obtained in violation of his Miranda rights.
6. Whether the cumulative effect of the errors in this case violated Hoffner’s constitutional rights.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241
et seq.,
governs all
habeas
petitions filed after April 24, 1996.
See Lindh v. Murphy,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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
(2) resulted in a decision that 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).
A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an opposite result].”
Williams v. Taylor,
However, federal courts need not review every point of error raised by a
habeas
petitioner. When a “state, prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson,
First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the 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 forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim...-.
Jacobs v. Mohr,
HL
Hoffner claims that the trial court violated his due process rights by improperly weighing the statutory aggravating factors of his crime. This argument has two sub-claims. First, Hoffner argues that the trial court wrongly considered the nature and circumstances of the offense to be an aggravating factoy. Second, Hoffner argues that the trial court considered various elements of the charged statutory aggravating factor as separate aggravating factors, thus multiplying the value of what should have been one factor.
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire,
A.
In support of his claim that the trial court improperly considered the nature and circumstances of his crime, Hoffner points to various parts of the sentencing opinion where the trial judge used several “inflammatory” adjectives to describe Hoffner’s conduct. For example, the trial court described Hoffner’s crime as “graphic,” “macabre,” “sinister,” and “depraved.” State v. Hoffner (Hoffner I), No. CR937212A, slip op. at 4-6 (Ct. Com. Pl. June 7, 1995). Further, Hoffner claims, the trial court explicitly considered impermissible factors when it allegedly explained that its job was to “weigh[ ] the relative heinousness” of his crime. Appellant Br. at 18. He claims that the trial judge’s conclusion is evidence of improper consideration:
Sympathy for the defendant’s mistreatment as a child, however, can in no way excuse the depraved, violent and calculated nature of the acts he committed against Christopher Hammer. It was, and is the conclusion of this Court that the aggravating circumstances so clearly demonstrated by the evidence at trial, far, far outweighed the modest cumulative mitigating circumstances presented in this case and during the penalty phase.
Hoffner I,
slip op. at 8. Hoffner claims that the trial court’s actions violated his due process rights under the Fourteenth Amendment and
Hicks v. Oklahoma,
Hoffner properly preserved this claim by raising it on direct appeal, but the Ohio Supreme Court found the claim to be meritless. The court noted that the trial court never referred to the nature and circumstances of the crime as an aggravating circumstance and that the sentencing opinion “reflected] the trial court’s understanding of the difference between statutory aggravating circumstances and facts describing the nature and circumstances of the offense.”
Hoffner II,
We agree with the district court that there was no violation, or unreasonable application, of clearly established Supreme Court law. As noted above, a violation of state law is not grounds for
habeas
relief unless it rises to the level of a due process deprivation.
Estelle,
B.
Hoffner also argues that the trial court improperly multiplied the statutory aggravating circumstances at sentencing. Hoffner was charged in the indictment with three separate counts of murder — murder with prior calculation and design, murder in the course of kidnapping, and murder in the course of aggravated robbery. For each count, the indictment provided two death penalty specifications: that the offense was committed while committing kidnapping and that the offense was committed while committing aggravated robbery, both pursuant to Ohio Rev.Code Ann. § 2929.04(A)(7). The specification requires that, in addition to proving that the murder was committed in the course of an enumerated violent felony, the government must also prove that “either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” Ohio Rev.Code Ann. § 2929.04(A)(7). The jury found Hoffner guilty of all three counts of murder and of both specifications for each count. However, the trial court held that the two counts of murder during the commission of kidnapping and aggravated robbery constituted allied offenses of similar import under Ohio Rev.Code Ann. § 2941.25(A) and sentenced Hoffner only for murder with prior calculation and design.
Hoffner argues that, under Ohio law, the court could not have used the kidnapping and aggravated robbery as separate aggravating circumstances because they both fall under the same statutory provision.
See
Ohio Rev.Code Ann. § 2929.04(A)(7). As evidence that the aggravating circumstances were multiplied, Hoffner points to the trial court’s sentencing opinion, where it wrote that “it was established beyond a reasonable doubt that the aggravated murder ... was committed by ... Hoffner in the commission of both a kidnapping and an aggravated robbery, and that he also committed the aggravated murder with prior calculation and design.”
Hoffner I,
slip op. at 4. In the next sentence, however, the court writes that “[t]hese findings, of course, merely reiterate the jury’s verdicts.”
Id.
Hoffner also points out that the trial court referred to the death penalty specification under subsection (A)(7) as “aggravating circumstances” throughout the opinion. Hoffner cites to
State v. Green,
The district court rejected this sub-claim on the grounds that it is a violation of state, not federal, law and that even if the trial court’s alleged error rose to the level of a due process violation, the state supreme court cured it through independent reweighing.
Hoffner VII,
slip op. at 17-18. We agree. In the first instance, as the Ohio Supreme Court held,
see Hoffner II,
IV.
Hoffner’s second claim is that his trial counsel performed ineffectively at the guilt phase of trial by: (1) failing to argue that Dixon, not Hoffner, was the principal offender and (2) failing to move to suppress Hoffner’s taped confession on the ground that he had previously requested counsel. Hoffner raised both of these arguments for the first time in his state post-conviction petition.
1
See Hoffner III,
Under Ohio’s doctrine of res judicata,
a final judgment of conviction bars the convicted defendant 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 of conviction or on an appeal from that judgment.
State v. Perry,
The first three prongs of the
Maupin
test for procedural default are all met in this instance. As discussed, (1) Hoffner failed to raise these ineffective-assistance subclaims on direct appeal, thus failing to comply with a state procedural rule; (2) the court of appeals enforced the rule by holding the claim barred by
res judicata;
and (3)
res judicata
is an adequate and independent state ground on which to foreclose federal review.
See Maupin,
In his reply brief, however, Hoffner offers two reasons why his claim is not proeedurally defaulted. First, he claims that the state court improperly applied
res
*499
judicata
because his claim was, in fact, based on evidence outside the record.
See Hill v. Mitchell,
Hoffner also argues that procedural default should be excused because his appellate counsel’s deficient performance in not raising these claims on direct appeal constitutes cause and prejudice under the fourth part of the
Maupin
test.
2
See Maupin,
Appellate counsel’s failure to raise these guilt-phase ineffective-assistance claims does not establish cause to excuse the default, however, because the underlying claims are meritless. To establish a claim of ineffective assistance of trial or appellate counsel,
see Smith v. Robbins,
Hoffner’s first sub-claim — that trial counsel were deficient for failing to argue that Hoffner was not a principal offender' — is meritless because, as the district court found, “ample evidence showed that Hoffner and Dixon fully collaborated in burying Hammer alive.”
Hoffner VII,
slip op. at 22. “To be eligible for the death penalty under [Ohio Rev.Code Ann. §] 2929.04(A)(7) as ‘the principal offender,’ the defendant must have been the actual killer.”
State v. Taylor,
The record is replete with evidence that Hoffner was the “actual killer” of Hammer. Hoffner’s arguments that, because Hoffner followed Dixon, only Dixon could have been the principal offender are irrelevant because, under Ohio law, two defendants can be considered principal offenders when they act in concert to cause the death of another.
See State v. Franks,
No. 18767,
Hoffner’s second sub-claim is that trial counsel were constitutionally deficient for failing to move to suppress his taped confession under
Minnick v. Mississippi,
V.
Hoffner’s third ground for relief — ineffective assistance of counsel at the penalty phase — is based on three allegations. First, Hoffner claims that trial counsel deficiently advised him to show no emotion throughout the proceedings, thus dehumanizing him in the jurors’ eyes. Second, Hoffner argues that counsel ceased functioning as his advocate at closing argument when counsel cast Hoffner in a negative light instead of arguing for mitigation. Third, Hoffner claims that counsel were deficient in failing to object to the court’s response to a jury question requesting the definition of a “preponderance.” We find that the state courts’ resolutions of the first two claims were not an unreasonable application of federal law and therefore affirm the district court’s denial of habeas relief on these grounds. Hoffner has defaulted his third argument and we there *501 fore affirm the district court’s rejection of that claim as well.
A.
Hoffner claims that trial counsel advised him to show no emotion “throughout the entire trial” and specifically during his unsworn statement in the mitigation phase. He claims that this adversely affected his chances of avoiding the death penalty because it “dehumanized [him] to the jury.” In support of this claim, he offers the affidavit of juror Eve Gimple. The affidavit states that the jury “wanted to know why Mr. Hoffner appeared to show no emotion during his unsworn statement. It was this lack of emotion which also was a factor in my vote to recommend the death penalty for Mr. Hoffner.”
Because this claim was based on an affidavit outside the trial record, Hoffner properly raised it for the first time in his state post-conviction petition.
See Hoffner III,
The district court found that this ruling was not an unreasonable application of constitutional law, noting also that the affidavit was weak evidence of prejudice anyway as the juror had specified that Hoffner’s affect was only a “factor” but had crossed out the modifier “significant.”
Hoffner VII,
slip op. at 28. We agree. The affidavit does not allege that the jury was influenced by any “extraneous” information, and therefore the juror’s testimony was properly excluded from consideration by the Ohio courts. This court has previously held that there is no “constitutional impediment to enforcing” Ohio’s
aliunde
rule, and Hoffner has cited no authority to the contrary.
See Brown v. Bradshaw,
B.
Hoffner also claims that some of the comments trial counsel made during closing argument at mitigation rendered counsel’s assistance constitutionally ineffective. At summation, counsel stated the following:
This is a heinous crime, it’s unbelievable. As [the prosecutor] said, I can’t begin to put it into words, and it’s really rather difficult.
Please don’t mistake any of my remarks as an attempt to evoke sympathy on behalf of Timothy L. Hoffner, because I don’t feel any, not a bit. I feel revulsion and confusion in equal parts *502 because of everything that we have heard, these amazingly gruesome photographs, and they’re hard to look at. I’ve looked at them for 17 months. And how is it that one young man can find it within himself to commit an act of homicide on his friend?
Please understand at the outset what I’m asking of you. There are three sentences available.... There is death, life imprisonment with possibility of parole after serving the first 30 full years, and then life imprisonment with the possibility of serving — or possibility of parole eligibility after serving the first 20 years. Don’t even think about that. To stand before you and ask for 20 full years to the parole board is an abomination and it’s an insult to you, to me and to the Hammers.
(JA at 73.) Hoffner claims that, through these comments, “trial counsel essentially ceased functioning as Hoffner’s advocate during the penalty phase” and “failed to subject the prosecution’s penalty case to meaningful adversarial testing” in violation of his Sixth Amendment rights.
See United States v. Cronic,
The Ohio Supreme Court “determine[d] that defense counsel’s comments do not reflect deficient performance and that they were not prejudicial. Rather than an abandonment of Hoffner’s mitigation defense, counsel’s comments were an apparent attempt to acknowledge the particularly gruesome nature of the crime and to preserve credibility between counsel and the jury.”
Hoffner II,
We affirm the district court’s ruling. Trial counsel’s comments quoted above constitute only a small portion of the entirety of the closing argument, roughly the first page and. a half of the transcript. For the remainder of the argument — approximately twenty-one transcript pages— counsel recounted at length the mitigating evidence that had been presented at the penalty phase in an attempt to prove that “there is indeed sufficient evidence to diminish the appropriateness of the death penalty.” (JA at 73.) Counsel’s decision to cast Hoffner’s crime in a negative light only briefly at the start of argument was clearly a strategic decision aimed at maintaining the trust of the jury. The Ohio Supreme Court’s decision to that effect was not unreasonable.
The cases Hoffner cites in support of his claim are of no avail. Hoffner relies heavily on
Rickman v. Bell,
Hoffner also cites our decision in
Spisak v. Hudson,
Even if we were to find counsel’s performance deficient in this case, under Spisak we could not find it to have prejudiced Hoffner’s defense. Hoffner’s counsel only referred to the heinous nature of his client’s acts; he did not go into “vivid detail” or argue that Hoffner deserved “no sympathy.” Further, counsel spent substantial time presenting a case for leniency. When viewed in light of the extensive evidence of the crime produced at the guilt phase of trial and the substantial mitigating evidence produced at the penalty phase, we can hardly find counsel’s comments here to be prejudicial. Our decision is only bolstered by the deference due under AEDPA to the Ohio Supreme Court’s determination of this issue. We therefore affirm the district court’s denial of habeas on this sub-claim.
C.
Finally, Hoffner argues that trial counsel was ineffective at the penalty phase for failing to object to the trial judge’s definition of a “preponderance,” which was given in response to a question from the jury during deliberations. Hoffner claims that counsel should have requested “an additional instruction to make clear that the jury knew the prosecution carried the ultimate burden of proving that the aggravating factors outweighed the mitigating factors ‘beyond a reasonable doubt.’ ” According to Hoffner, counsel’s failure to do so was constitutionally deficient because “the Sixth Amendment requires a criminal defense attorney to remain an ‘active ad
*504
vocate’ on behalf of his or her client.” Appellant Br. at 46 (citing
Evitts v. Lucey,
Hoffner raised this claim for the first time in his state post-conviction petition. The Ohio Court of Appeals held that, because this claim could have been brought solely on the basis of the trial record, it was barred by
res judicata. Hoffner III,
We affirm the district court’s denial of habeas relief for ineffective assistance of trial counsel at the penalty phase.
VI.
In his fourth claim for relief, Hoffner contends that appellate counsel’s failure to raise various meritorious issues on appeal amounted to constitutionally deficient performance. On appeal, Hoffner points to four issues in particular that appellate counsel should have raised: (1) that the trial court failed to define the term “aggravating circumstances” in the jury instructions; (2) that the prosecution committed misconduct by arguing that the nature and circumstances of the case were to be considered as aggravation; (3) that the trial court’s jury instruction as to the process of weighing mitigating and aggravating factors was faulty; and (4) that trial counsel was ineffective for failing to object to the above errors.
Under Ohio law, a claim of ineffective assistance of appellate counsel must be raised as part of an Ohio Appellate Rule 26(B) motion to reopen an appeal before the Ohio Court of Appeals.
State v. Murnahan,
This court’s precedents guide our application of the
Maupin
test for procedural default when a Rule 26(B) motion has been denied for untimeliness. By the time Hoffner filed his Rule 26(B) motion in June 2006, “it was well established that claims of ineffective assistance of appellate counsel must be raised in a motion for reconsideration before the Ohio Court of Appeals.”
Monzo v. Edwards,
The usual two-pronged analysis of ineffective-assistance claims under
Strickland
also governs claims of ineffective assistance of appellate counsel.
Robbins,
Because we are reviewing these claims under AEDPA, we must give the appropriate deference to “the last state court to issue a reasoned opinion on the issue.”
Payne v. Bell,
A.
Hoffner first argues that appellate counsel were deficient for failing to argue that
*506
the trial court erred by failing to instruct the jury on the meaning of “aggravating circumstances.” Without a proper definition, Hoffner claims, the jury was left “with untrammeled discretion to impose or withhold the death penalty.” Appellant Br. at 49-50 (citing
Gregg v. Georgia,
Relying primarily on the same cases, the district court held that the Ohio Court of Appeals’s decision was not an unreasonable application of federal law.
Hoffner VI,
slip op. at 36. We agree. Trial counsel’s failure to object to the jury instructions meant that plain error review would have applied; appellate counsel’s decision not to raise a waived issue was reasonable. Furthermore, as the district court explained, the Ohio Supreme Court’s reweighing of the mitigating and aggravating factors would effectively cure any error caused by an improper definition of “aggravating circumstances.”
See id.
at 36-37 (citing
Slagle v. Bagley,
B.'
Next, Hoffner claims that the prosecutor made several comments during closing argument at the penalty phase that improperly represented that the nature and circumstances of the offense could be considered an aggravating factor. At closing argument, the prosecutor stated:
Archie Dixon went through Chris’ wallet and later both Mr. Hoffner and Mr. Dixon took and sold Chris’ car. I don’t think there’s any question there’s an aggravating circumstance, maybe more than one here.
Is there anything mitigating about the nature of circumstance of this crime? Is there anything mitigating, ladies and gentlemen, about trying to snap someone’s neck, trying to snap his neck, leaving, digging a hole, coming back, walking him to the car, driving him there with other people, walking him down a path and taking him to his grave, is *507 there anything mitigating about that?
Who benefited in this murder? I think the evidence is clear that Mr. Hoffner and Mr. Dixon sold Chris Hammer’s car. He bought at least one car, and there are a couple of exhibits, State’s Exhibit’s, after the taking and selling of Chris Hammer’s car, and then he initially lied to the police and blamed everything on Archie Dixon. Is there anything mitigating about the nature and circumstances of this crime, a planned, premeditated, calculated killing?
(emphasis added by Hoffner). Hoffner claims that these statements “allowed the jury unbridled discretion to consider any number of non-statutory aggravating factors.” Appellant Br. at 51 (citing
Zant v. Stephens,
The Ohio Court of Appeals once again conducted plain-error review, as Hoffner’s counsel had not objected at trial.
Hoffner IV,
slip op. at 8. As to the prosecutor’s first comment, the state court reasoned that although “the prosecutor’s reference to ‘more than one’ aggravating circumstance technically may have been improper!,] ... ‘[isolated comments by a prosecutor are not to be taken out of context and given their most damaging meaning.’ ”
Id.
at 9 (quoting
State v. Ahmed,
We agree with the district court that this conclusion was not an unreasonable application of federal law. The prosecutor’s statements could hardly qualify as prosecutorial misconduct under Ohio law as they accurately reflected Ohio’s rules on the use of aggravating and mitigating evidence. Therefore, appellate counsel’s failure to raise the claim on appeal could not have been deficient, especially considering the plain-error review to which the claim would have been subject. We affirm the district court’s decision on this sub-claim.
C.
Hoffner also argues that the trial court’s instructions to the jury were erroneous in their explanation of the process by which the jury should weigh aggravating and mitigating evidence. First, he claims that the court omitted an instruction that the jury need not reach a unanimous decision as to the existence of any mitigating factor. The instructions read: “If the weight of the evidence is equally balanced, or if you are unable to determine which side of an issue has the preponderance as to any one or more of the mitigating factors, then the defendant has not established that mitigating factor or factors as the case may be.” Hoffner argues that this instruction could have led the jurors to believe that they could not consider a mitigating factor unless all the jurors believed it had been proven, in violation of
Mills v. Maryland,
*508
The Ohio Court of Appeals rejected this claim, concluding that the trial court in fact was properly instructing the court as to the defendant’s burden to prove a mitigating circumstance by a preponderance, which is constitutionally valid.
Hoffner IV,
slip op. at 12 (citing
State v. Tenace,
Second, Hoffner contends that the district court erred by instructing the jury that it could consider penalties other than death only after finding that the prosecution failed to prove that the aggravating factors did not outweigh the mitigating factors. Hoffner does not cite a particular portion of the jury instructions where the trial court made such an error, but we will assume that he is referring to the same passage that he cited in his Rule 26(B) application. The instructions read:
If after a full and impartial consideration of all the evidence in this case you are firmly convinced that the aggravating circumstances outweigh the mitigating factors, then the State has established this beyond a reasonable doubt and your sentence recommendation should be death.
If you are not firmly convinced that the aggravating circumstances outweigh the mitigating factors, then your sentence recommendation must be life imprisonment with parole eligibility only after either 20 full years of imprisonment or 30 full years of imprisonment.
Now, in conclusion, as you shall recommend the sentence of death only if you unanimously, all 12 jurors, find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If you do not so find, you should unanimously recommend either a life sentence with parole eligibility after serving 20 full years of imprisonment or a life sentence with parole eligibility only after serving 30 full years of imprisonment.
Hoffner claims that this instruction was faulty in requiring the jury to reject the death penalty before considering another option and that counsel was ineffective for failing to raise the claim. Appellant Br. at 56 (citing
Mapes v. Coyle,
The Ohio Court of Appeals distinguished the instructions given here from an Ohio Supreme Court case prohibiting “acquittal-first” instructions.
Hoffner IV,
slip op. at 13-14. In
State v. Brooks,
We agree with the Ohio Court of Appeals that counsel was not deficient for failing to raise this state claim as the claim itself was meritless under Ohio precedent. The claim would have also failed under federal law. As it recently noted, the Supreme Court “ha[s] not ... previously held jury instructions unconstitutional” for requiring rejection of the death penalty first.
Spisak,
D.
Finally, Hoffner claims that appellate counsel was ineffective for failing to raise a claim that trial counsel was ineffective for failing to object to the errors discussed here. Because we find none of the alleged underlying errors to be meritorious, trial counsel was not ineffective for failing to object. Therefore, appellate counsel’s failure to raise the ineffective assistance issue was not constitutionally deficient. The Ohio Court of Appeals reached the same conclusion.
We therefore affirm the district court’s denial of habeas on Hoffner’s claim of ineffective assistance of appellate counsel.
VII.
In his fifth claim for relief, Hoffner contends that the police questioning that led to his arrest was conducted in violation of his Fifth Amendment rights under
Miranda v. Arizona,
Hoffner properly preserved this issue for our review by raising it on direct appeal.
See Hoffner II,
{¶ 17} On November 9, 1993, Hoffner and Dixon were living at Wilkerson’s house. At approximately 11:00 a.m. on that date, Toledo police officers executed a search warrant at the Wilkerson residence and arrested Dixon for forgery.
{¶ 18} During the search, Lieutenant Charles Hunt discovered Hoffner covered with a blanket lying on a couch in the family room. Hunt, with his weapon drawn but pointed in the air, ordered Hoffner off the couch. Hunt then pulled the blanket away from Hoffner, holstered his weapon, and searched Hoffner for weapons. To prevent Hoffner from interfering while police searched the premises, Hunt asked Hoffner to sit in a nearby chair.
{¶ 19} Hunt and Detective Robert Letter then searched the family room. During their search, the detectives asked Hoffner whether he knew anything *510 about Hammer’s disappearance. Hoffner denied all knowledge of Hammer’s whereabouts.
{¶ 20} After Hunt and Letter completed their search of the family room, Hoffner asked to speak with them. Hoffner told police that Dixon and Hammer had gotten into an argument and that Dixon had “[taken] care of him,” had buried Hammer’s body in the woods, and had sold Hammer’s car. At no point did Hoffner implicate himself.
{¶ 21} Once Hoffner had implicated Dixon, Hunt and Letter asked whether Hoffner would go downtown to make a statement. Hoffner agreed. On the drive to the police station, Letter told Hoffner that officers would begin searching the wooded area where Hoffner had said Hammer’s body was buried and that any other information Hoffner had would be helpful. Letter again asked whether Hoffner had had anything to do with Hammer’s disappearance, and Hoffner said he had not. Hoffner subsequently asked the detectives to stop the car and indicated that he had additional information but said he did not want to get into trouble. Letter told Hoffner that he could be charged with obstruction if he withheld information, but if he told the truth and was not involved in any crimes, he had nothing to worry about. At that point, Hoffner told the detectives where they could find Hammer’s body.
{¶22} After leading the detectives to Hammer’s grave, Hoffner again agreed to go to the police station to give a statement. On the way to the station, the detectives stopped at a fast-food restaurant, and Hoffner was given food and a drink. At the station, Letter advised Hoffner of his Miranda rights but did not arrest him. Hoffner confirmed that he understood his rights and signed a waiver-of-rights form. At approximately 3:30 p.m., Hoffner gave a taped statement describing Dixon’s murder of Hammer. After the interview, Letter and Detective Phil Kulakoski drove Hoffner back to Wilkerson’s house. Hoffner then packed his belongings and drove himself to his mother’s house in Perrysburg.
{¶ 23} At approximately 7:30 p.m. on November 9, Dixon confessed to Hammer’s murder and, in the process, implicated Hoffner. Shortly thereafter, police obtained an arrest warrant for Hoffner. After midnight on November 10, Kulakoski and Letter arrested Hoffner at his mother’s house.
{¶24} Detectives drove Hoffner to the police station, where they again read him Miranda warnings. Hoffner signed a waiver-of-rights form and gave a taped statement confessing to Hammer’s murder.
Hoffner II,
Addressing Hoffner’s claim, the Ohio Supreme Court began by explaining that
“Miranda
warnings are not required simply because the questioning takes place in a coercive atmosphere.”
Id.
at 54 (citing
Oregon v. Mathiason,
The court also found that events after Hoffner left the Wilkerson house in the police vehicle did not constitute custodial interrogation. According to the Ohio Supreme Court, “Hoffner voluntarily agreed to go to police headquarters to give a taped statement. On the way to the station, Hoffner offered to direct police to the location of Hammer’s body.” Id. at 55. The court reasoned that “[b]ecause Hoffner was not under arrest or in custody ..., police were not required to issue Miranda warnings.” Id. As to the interrogations at the police station occurring both before and after his arrest, the court found that, in both instances, Hoffner voluntarily waived his Miranda rights in writing. Id. Therefore, the court concluded that “[a]ll of Hoffner’s statements regarding Hammer’s disappearance and murder were voluntarily made and properly admitted at trial.” Id.
The district court found that “the Ohio Supreme Court correctly identified and reasonably applied federal precedent to this case’s facts” and therefore denied habeas relief on this claim. Hoffner VII, slip op. at 53-54.
Hoffner argues that this was an unreasonable application of Supreme Court precedent. He claims that the initial questioning at the Wilkerson house was custodial because he was not free to leave after ten officers entered Wilkerson’s house, and at least one officer pointed a gun at him and ordered him to stay in one place. He maintains that the questions he was asked at that point regarding Hammer’s disappearance constituted interrogation. Hoffner argues that, because he gave incriminating statements to the police shortly thereafter and because his custody with the police was continuous until the time he gave his first statement, he could not have reasonably perceived the later questioning to be “new and distinct,” which would have dissolved the taint of the earlier
Miranda
violation. Finally, he claims that the officers failed to ensure that, at the time he gave his confession, his earlier
pre-Miranda
statements could not be used against him, thus violating
United States v. Pacheco-Lopez,
The procedural safeguards outlined in
Miranda
apply only to suspects subject to “custodial interrogation.”
Miranda,
We find that the Ohio Supreme Court’s ruling was neither contrary to nor an unreasonable application of clearly es
*512
tablished Supreme Court precedent. The circumstances surrounding the beginning of Hoffner’s interaction with the police do not reflect any form of coercion or custody. Hoffner was present at Wilkerson’s house when the police burst into the house to execute a search warrant. However, as the Ohio Supreme Court recognized, “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by [the] holding [in
Miranda].’’ Id.
at 477,
As to Hoffner’s argument that his earlier statements tainted his later taped confession, because none of the statements violated
Miranda
on its own, none of them can taint any later statements.
Cf. Seibert,
The Ohio Supreme Court’s application of federal law in affirming the admission of Hoffner’s statements was thus reasonable. We therefore affirm the district court’s denial of the writ on this ground.
VIII.
In his last assignment of error, Hoffner claims that the prejudicial effect
*513
of the various errors that we have individually rejected become, in the
aggregate, a
constitutional violation. First, Hoffner has defaulted this issue by not raising it on direct appeal. Although he did argue cumulative error in his post-conviction petition,
see Hoffner III,
IX.
For the reasons discussed above, we affirm the judgment of the district court and deny Hoffner’s petition for a writ of habeas corpus.
Notes
. On direct appeal, .Hoffner raised a claim that counsel failed to file a post-hearing brief in support of his motion to suppress statements made to the police.
See Hoffner II,
. Although Hoffner did not raise this defense in his principal brief, he did raise it in his reply brief in response to the government's assertion of procedural default in its brief.
. Before the district court, Hoffner pointed to the affidavit of juror Eve Gimple, but he has not done so here.
. For this reason, Hoffner's reliance on
Franklin v. Anderson,