A denial of a request for habeas relief by a defendant convicted and sentenced to death for raping and murdering a six-month-old baby is affirmed where: 1) defendant's claim that the prosecutor improperly commented on his failure to testify during the guilt phase is procedurally defaulted and defendant cannot excuse the default through the ineffectiveness of counsel because he cannot show that counsel's failure to object to this one comment -- thereby drawing attention to it -- was deficient; 2) defendant's claim that the penalty instructions violated Caldwell v. Mississippi is procedurally defaulted; 3) defendant's counsel was not ineffective for failing to object to the penalty instructions; and 4) a state court's analysis under Beck was reasonable as it is well established that a lesser-included offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant's intent.
Argued: July 29, 2009
Decided and Filed: January 15, 2010
Opinion by Circuit Judge Boggs
For Appellant: Joseph E. Wilhelm, Federal Public Defender's Office
For Appellee: Charles L. Wille, Office of the Ohio Attorney General