Fugen Gulertekin v. DEBORAH TINNELMAN- COOPER, Warden

*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0287P (6th Cir.)
File Name: 03a0287p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FUGEN GULERTEKIN,
Petitioner-Appellant,
v.
DEBORAH TINNELMAN-
COOPER, Warden,
Respondent-Appellee.
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No. 01-3920
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00808—James L. Graham, District Judge.
Argued: February 7, 2003
Decided and Filed: August 14, 2003
Before: SILER and ROGERS, Circuit Judges; GWIN,
District Judge.*
2 Gulertekin v. Tinnelman-Cooper No. 01-3920
_________________
COUNSEL
ARGUED: John P. Feldmeier, SIRKIN, PINALES,
MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant.
Diane Mallory, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: John P. Feldmeier, Marc D.
Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ,
Cincinnati, Ohio, for Appellant. Diane Mallory, OFFICE OF
THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioner-appellant Fugen
Gulertekin appeals the district court’s denial of her petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For
the following reasons, we affirm the decision of the district
court.
BACKGROUND
Gulertekin’s conviction arises from events which occurred
on June 12, 1997. Gulertekin, a citizen of Turkey who holds
a Master’s Degree from Ohio State University in special
education and early childhood education, was caring for
Patrick Lape, a five-month-old infant, in her home.
According to Gulertekin’s testimony, in the early afternoon
on that date, Gulertekin was changing Patrick’s diaper before
his nap when he began to choke and vomit. Patrick stopped
breathing and Gulertekin administered first the Heimlich
maneuver and then CPR. At some point she called for her
thirteen-year-old daughter, who was also in the house, to call
911. The baby, however, started breathing again, so the call

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 3
1The government asserts in its brief that “[a]t approximately 1:00
p.m., two 911 calls were placed from Gulertekin’s home, both resulting
in hang-up s. W hen the police dispatcher called back, Gulertekin’s 13-
year-old daughter answered the telephone and stated that a baby was
choking.” This account comports with the facts recounted b y the Ohio
Court of Appeals, in its opinion rendered on December 3, 1998.
was discontinued. A few minutes later, when Patrick again
stopped breathing, Gulertekin called her daughter to renew
the call to 911, and resumed her attempts at resuscitation.1
Emergency personnel arrived and Patrick was taken to
Children’s Hospital in Columbus, Ohio. Upon his arrival, Dr.
Carla Hauersperger (a pediatrician who examined and treated
Patrick) diagnosed him with “a closed head injury, seizure,
possible aspiration pneumonia, bilateral retinal hemorrhage
and occipital skull fracture.”
Gulertekin was indicted on one count of felonious assault
and one count of child endangering. At trial, three physicians
testified for the state. Dr. Hauersperger stated that she had
suspected child abuse, based on Patrick’s injuries, so she
ordered the medical photographer for the hospital to come to
the Emergency Department and take photographs of Patrick.
Dr. Hauersperger also ordered several consultations of other
physicians, including Dr. Charles Johnson, the director of the
Child Abuse Division of the hospital. Dr. Johnson, who is
also a professor of pediatrics at the Ohio State University
College of Medicine and has published articles on shaken
baby syndrome, testified as well. Dr. Johnson stated his
opinion that the injuries to Patrick’s brain occurred within
minutes of the manifestation of his symptoms, that these
injuries were caused by his being severely shaken, and that
there was nothing in the history he had been given to indicate
an accident. Dr. Elizabeth Gilles, a child neurologist at the
hospital and an assistant professor of neurology and pediatrics
at Ohio State University, also testified. Dr. Gilles has
previously testified as an expert in pediatric child abuse and
neglect, has written articles on shaken baby syndrome, and
was called in as a consultant to examine Patrick several weeks
4 Gulertekin v. Tinnelman-Cooper No. 01-3920
2These ground s were as follows:
(1) ineffective assistance of counsel; (2) denial of due p rocess,
a fair trial, and an impartial jury based o n trial court’s
manipulative and coercive tactics toward a deadlocked jury;
(3) denial of due process, a fair trial, and effective representation
of counsel due to government’s violation of the Vienna
Convention on Consular Relations; (4 ) prosecuto rial misco nduc t,
concealment of exculpatory and mitigating evidence, and
coerced incriminating statements; (5) denial of a fair trial and
due process of law due to severe and prejudicial evidentiary
errors by the trial court; and (6) actual innocence.
after his injury. She testified that Patrick’s injuries were
probably sustained within one hour before the paramedics
were called, and that they could not have happened by
accident.
The jury found Gulertekin guilty of both offenses charged
in the indictment. The court sentenced her to eight years
imprisonment. She appealed her convictions to the Ohio
Tenth District Court of Appeals, which affirmed on
December 3, 1998. She then sought to appeal to the Supreme
Court of Ohio, but it declined to accept jurisdiction over the
direct appeal. She filed a petition for post-conviction relief
with the trial court on September17, 1998, one day after the
180-day deadline. The court dismissed the petition for lack
of jurisdiction, due to the late filing. She appealed this
dismissal to the Ohio Tenth District Court of Appeals, which
affirmed. Gulertekin then filed a petition with the Ohio
Supreme Court, requesting it to accept jurisdiction over her
post-conviction appeal, but it was denied. She filed the
current habeas petition with the federal district court on July
20, 2000, asserting six grounds for relief.2 The district court
dismissed the petition, finding that her claims were
procedurally defaulted and that her claim of actual innocence
was insufficient to excuse such default.

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 5
STANDARD OF REVIEW
In a habeas proceeding, this court reviews a district court’s
legal conclusions de novo and its factual findings for clear
error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
Further:
In all cases in which 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 as
a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “Whether
a state court rested its holding on procedural default so as to
bar federal habeas review is a question of law” reviewed de
novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).
This court looks to the last explained state-court judgment
when answering that question. Id.
DISCUSSION
A. Procedural Default
1. Juror Coercion
In her second claim on habeas, Gulertekin asserts that “her
rights to due process, a fair trial, and an impartial jury. . .were
violated when the trial judge effectively directed the jury to
return a guilty verdict.” This claim stems from a series of
events which occurred during the jury’s deliberations. The
jury initially began deliberating at 1:00 p.m. on November 25,
1997. At 2:42 p.m. the jury was admonished and given a
fifteen minute recess. The jury continued deliberating until
7:25 p.m., at which time they were admonished and recessed
until the next morning. At approximately 9:45 a.m. on
6 Gulertekin v. Tinnelman-Cooper No. 01-3920
November 26, 1997, the jurors submitted a note to the trial
judge, asking, “What do you suggest when some jurors feel
strongly one way, and one or two jurors feel strongly the
other way?”
The judge noted that the same question had been posed by
the jurors the day before, after they had been deliberating for
less than two hours. The judge then gave the standard
“Howard charge,” and the jury returned to the jury room at
10:45 a.m. Shortly after 11:00 a.m., another note was sent to
the trial judge asking whether one of the jurors could be
replaced by an alternate juror. The note stated in part that
Juror No. 3 “would like to be replaced because I am not able
to reach the decision of everyone else.”
At 11:20 a.m., the trial judge held a discussion with the
attorneys for both sides, out of the presence of the jury. The
judge expressed concern that Juror No. 3 was not deliberating,
and further related that “[i]t’s also come to my understanding
from the bailiff that – I have seen her do this – that whenever
they are on break she’s on a cell phone. It is my
understanding from the bailiff that she’s called her boyfriend
to come pick her up. She’s not been excused from this jury.”
The judge then asked counsel what they wanted to do, and
whether they wanted to excuse the juror, noting that
“yesterday the comment was that she doesn’t want to be the
one responsible for making the decision in this case.” In the
discussion which ensued, the judge further expressed her
intention to have the bailiff remove the juror’s cell phone,
because:
For her to call her boyfriend to come pick her up to me
is communicating about the case. That’s a violation of
the oath. . . . It’s now been brought to my attention that
she’s also called her mother yesterday, now she’s calling
her boyfriend to come pick her up. Maybe she’s not
talking about the substance of the case, but I don’t think
it’s appropriate to have that cell phone back there so I’m
going to ask the bailiff to take the cell phone.

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 7
The trial judge asked the attorneys whether they wanted to
voir dire the juror, in chambers, in order to determine whether
she was refusing to deliberate. Defense counsel stated his
opinion that “it is inappropriate for us to intrude into the
deliberating process” and that the court should not “creat[e]
an intrusive atmosphere with regard to that juror.” He
suggested that the next step would be to ask the jury
foreperson whether further deliberations would be productive
and, if he answered in the negative, to declare a mistrial (to
which the court stated that an insufficient period of time had
elapsed since the giving of the Howard charge to declare a
mistrial). Defense counsel then reiterated his objection to
“pull[ing] one juror out of deliberations and interrogat[ing]
them in the middle of deliberations.” A further exchange
occurred regarding the judge’s concern that Juror No. 3 was
not deliberating and her use of the cell phone, to which
defense counsel responded, “Your Honor, the question and
the answer, seem to me, do not infer juror misconduct. . . .
My suggestion is, frankly, the answer to the question is no,
she can’t be removed.” The remaining dialogue was as
follows:
THE COURT: Okay. Then what I’ll tell her
she can’t be removed, hand
over the cell phone. She’s
not allowed to have any
contact with anyone out of
the jury deliberation room
regarding this case.
[DEFENSE COUNSEL]: During the deliberations, or I
don’t know, you can get –
THE COURT: Outside the process here. I
don’t want her on the breaks
calling anybody saying come
pick me up, I can’t do this
any more.
8 Gulertekin v. Tinnelman-Cooper No. 01-3920
[DEFENSE COUNSEL]: Well, I think you need to
make it not just to her, but to
all of the jurors.
THE COURT: Bring them out here. We’ll
do that.
Upon the jury’s entry into the courtroom, the judge read the
note aloud, noted that it posed the same question as was
submitted by the jury the day before, and stated:
Our response is still the same, you are all members of
this jury. You have not been excused from this jury. I
have given you the instructions. I have just given you
additional instructions on how you are to conduct
yourselves in the deliberation room. I’m telling you to
go back there and deliberate on this case.
I would like anybody who has got a cell phone to turn
it in to the bailiff. You are not allowed to have any
communications concerning this case either in the
deliberation room or outside of the deliberation room.
The admonition that I have given you applies throughout
the entire trial. The only time you are allowed to discuss
this case is among yourselves while you are deliberating
in the deliberation room. This also applies to calling
anyone on the outside, such as a mother or boyfriend to
come pick them up because that’s not going to happen.
Now, I’m going to ask you to turn over the cell phones
to the bailiff, go back into the deliberation room and
continue your deliberations.
The jury was given the admonition and recessed during the
noon hour; they resumed deliberations after lunch, and
returned a verdict of guilty on both counts at 1:50 p.m. The
jurors were polled, and each, including Juror No. 3, indicated
that this was his or her verdict.
Gulertekin contends that the trial court’s tactics amounted
to juror coercion, and has presented an affidavit by Juror No.

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 9
3We have previously held:
W hen a state argues that a habeas claim is precluded by the
pe titioner's failure to observe a state procedural rule, the federal
court must go through a complicated analysis. 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 dec ide
whether the state courts actually enforced the state procedural
sanction. . . .Third, the cou rt must decide whether the state
procedural forfeiture is an "adeq uate and independent" state
ground on which the state can rely to foreclose review of a
federal constitutional claim.
Ma upin v. Sm ith, 785 F.2d 135, 138 (6th Cir. 1986) (internal citations
omitted).
3, Julie Weston Ring, which recounts her feelings that the
judge’s statements regarding the use of cell phones
were directed solely at me, as I had previously used my
cell phone to call my boyfriend during a break. In front
of the entire courtroom, which was filled with spectators,
news reporters and television cameras, I was then forced
to turn over my cell phone to a man I believed to be the
court’s bailiff. I felt humiliated and degraded by the
judge.
Ring further avers that the judge’s “statements made me feel
as though she was forcing me to change my position and
compelling me to vote to convict Mrs. Gulertekin. The
manner in which Judge O’Neill instructed us made me feel as
though she was not going to let anyone leave until we had a
conviction.”
The district court found this habeas claim to be
procedurally defaulted, due to the failure of Gulertekin’s trial
counsel to object to the judge’s supplemental instructions, and
thus declined to address the merits.3 Gulertekin asserts,
however, that the finding of a procedural bar is erroneous,
because (1) Ohio Criminal Rule 30 (requiring
10 Gulertekin v. Tinnelman-Cooper No. 01-3920
contemporaneous objections to jury instructions) does not
apply to jury instructions given after the jury begins its
deliberations; (2) defense counsel did object to the trial
court’s resolution of the situation; (3) the court of appeals
failed to provide a “clear and express” statement that it was
enforcing the state procedural sanction at issue; and (4) this
procedural bar does not constitute an independent and
adequate state ground, separate from federal law. The district
court rejected these arguments upon examination of the
opinion of the Ohio Court of Appeals, dated December 3,
1998, the last state court to review the claim.
In reviewing this claim on direct appeal, the Ohio Court of
Appeals first observed that defense counsel did not object to
the Howard charge the court had initially given to the jury,
and “further note[d] that no objection was raised to the court’s
final supplemental instructions which included the court’s
admonition to the jurors to ‘go back there and deliberate on
this case.’” The court then reviewed state law, holding that
“in the absence of plain error, ‘the failure to object to
improprieties in jury instructions, as required by Crim. R. 30,
is a waiver of the issue on appeal.’” Gulertekin’s first
argument, that Rule 30 is inapplicable to jury instructions
given after the jury has begun to deliberate, relies on a single
antiquated case, Burnett v. State, 19 Ohio Law Abs. 100
(1935), which held that a court’s admonition to the jury to
“try and reach a verdict” after deliberations had started was
not an “additional charge . . . in violation of § 13442-9 GC.”
Neither Gulertekin nor Burnett explains the substance of
§ 13442-9 GC, so the import of this holding, thus removed
from its context, is dubious. Moreover, while Gulertekin
asserts that the state court never used the term
“contemporaneous objection” in reference to the jury coercion
claim, the court did state that “counsel failed to object to the

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 11
4Mo reover, in State v. Baker, No. CA 86-06-041, 1987 WL 9749
(Ohio App . Apr. 13, 1987), an Ohio ap pellate court confronted the
question of whether contemporaneous objection was required with regard
to the trial court’s rerea ding of an instruction in response to a jury
question. The court discussed Rule 30, acknowledging that “[t]he case at
bar is somewhat incongruous to the situation contemplated in the rule in
that this involves a case where the jury has already retired for
deliberations and has requested a rereading of an instruction.” Id. at *2.
After reviewing the rationale behind the rule (to “enab le[] the court to
correct an erro neous instruction or add that which was improperly
omitted”), the court held that “the requirements of contemporaneous and
specific objections, necessary before a jury retires to consider its verdict,
are equa lly applicable to a rereading of an instruction or instructions
requested by the jury after it has commenced it[s] deliberations.” Id. at
*3.
[supplemental] instruction given at the time.” Therefore, this
argument is without merit.4
Gulertekin further maintains that defense counsel’s
discussion with the trial judge, prior to the giving of the
supplemental instruction, in which he voiced disagreement
with the suggestion of singling out Juror No. 3, did constitute
a contemporaneous objection to the judge’s instruction –
particularly to the court’s admonition against jurors “calling
anyone on the outside, such as a mother or boyfriend to come
pick them up.” Gulertekin seeks to distinguish the present
situation due to the fact that defense counsel had no
opportunity, before the jury was called in, to review the exact
language the court intended to use in addressing them and
lodge any objections. Although this factual scenario is
somewhat unique, it is by no means unprecedented. In State
v. Gumm, 653 N.E.2d 253, 264 (Ohio 1995), during
deliberations, the jury sent a two-part question to the trial
judge, asking “Are the aggravating circumstances to Count I
just the kidnapping and attempted rape, or do they also
include the murder itself?” The jury was called into the
courtroom, the court read its question aloud, and the judge
responded as follows: “The answer to that is 'Yes.' Let me
read you the instructions on that point.” Id. The judge then
12 Gulertekin v. Tinnelman-Cooper No. 01-3920
reread the instructions on aggravating circumstances, without
any contemporaneous objection from defense counsel. The
jury was sent back to continue its deliberations, and after it
left the courtroom, the defense objected that the judge had
indicated that aggravated murder was itself an aggravating
circumstance for the purpose of determining penalty. In
reviewing this case, the Supreme Court of Ohio stated:
We note that the jury question itself was compound in
nature and therefore contained a potential for ambiguity.
As a result, the trial court's response ("the answer to that
is yes") contained an element of uncertainty as to
whether that answer meant, "yes, the aggravating
circumstances are just the kidnapping and rape" or "yes,
the aggravating circumstances include the murder itself."
We note that defense counsel's objection to the court's
response was not made at a point in time at which the
trial court could easily have corrected the ambiguity
inherent in its response, and error, if any, might properly
be deemed to have been waived.
Id. (emphasis added). This case indicates that the rationale
behind the contemporaneous objection rule – the timely
correction of errors – should be taken into account in
determining the import of a failure to object. If defense
counsel felt that the judge’s remarks improperly coerced Juror
No. 3, counsel should have so indicated before the jury
returned its verdict. His reliance on his previous discourse
with the judge regarding the proper course of action, which
resulted in (ostensibly) an agreement, is insufficient to
preserve any objection to the supplemental instructions on
appeal. What is clear from the record is that counsel objected
to “pull[ing] one juror out of deliberations and interrogat[ing]
them.” The trial judge accommodated this objection, and
instead addressed the entire jury. While the particular
reference to calling “a mother or a boyfriend” may have hit
home with Juror No. 3, there was nothing explicit in the
judge’s admonition regarding cell phones which mentioned

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 13
her by name or juror number, and defense counsel did not
object to this admonition.
Gulertekin also contends that the court of appeals failed to
provide a “clear and express” statement that its ruling
regarding her juror coercion claim was based on the state
procedural bar, conducted a “full-blown constitutional review,
not plain error review,” and spoke in terms of “reversible
error.” The requirement that a state court invoking a state
procedural bar must provide a “clear and express” statement
to that effect (the “plain statement” rule) originated in
Michigan v. Long, 463 U.S. 1032 (1983), and was applied to
the federal habeas context by Harris v. Reed, 489 U.S. 255
(1989). Coleman, 501 U.S. at 732-34. In Coleman v.
Thompson, however, the Supreme Court made clear that “[a]
predicate to the application of the Harris presumption [that
state court opinions lacking such a “clear and express”
statement of reliance on a state procedural bar do not preclude
federal habeas review of the claim at issue] is that the
decision of the last state court to which the petitioner
presented his federal claims must fairly appear to rest
primarily on federal law or to be interwoven with federal
law.” Id. at 735.
The court of appeals took up the issue of the trial court’s
jury instructions by first recounting the state-law precepts
that:
To preserve on appeal the issue of error in the
instructions to a jury, “an appellant must cite an
objection to the instruction on the trial record.” State v.
Powers (1995), 106 Ohio App.3d 696, 699. See also
State v. Underwood (1983), 3 Ohio St.3d 12, 13 (in the
absence of plain error, “the failure to object to
improprieties in jury instructions, as required by Crim. R.
30, is a waiver of the issue on appeal”). Further,
“[n]otice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage
14 Gulertekin v. Tinnelman-Cooper No. 01-3920
of justice.” State v. Long (1978), 53 Ohio St.2d 91,
paragraph three of the syllabus.
The court then embarked on a discussion of whether each
facet of the trial court’s supplemental instructions constituted
plain error. Although the court of appeals mentioned
“reversible error,” and cited occasionally to federal law, the
fact that it found the procedural problem (defense counsel’s
failure to object) paramount, and examined only whether this
holding would constitute plain error (or manifest injustice), is
sufficient to foreclose federal court review on habeas. The
court began discussion of the issue by citing the
contemporaneous objection rule, and returned to counsel’s
failure in this regard several times throughout the analysis.
The mentions of “reversible error” can fairly be read to
broach the question of whether there was, indeed, any error,
let alone one which would constitute manifest injustice if
uncorrected. This case properly falls under the rubric of
Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989),
wherein we observed:
The [state court of appeals] did not conduct the sort of
review of the jury instructions that presumably would
have been undertaken had there been a timely objection
to them; instead, the court inquired only whether
affirmance of the conviction would “result in manifest
injustice” because of the alleged instructional error. . . .
We would be loath to adopt an exception to the “cause
and prejudice” rule that would discourage state appellate
courts from undertaking the sort of inquiry conducted by
the [state] court, and we do not believe that the state
court’s explanation of why the jury instructions resulted
in no manifest injustice can fairly be said to have
constituted a waiver of the procedural default.
See also Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)
(“[W]e view a state appellate court’s review for plain error as
the enforcement of a procedural default”).

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 15
Gulertekin’s related assertion that the procedural bar at
issue was not an “adequate and independent” ground, separate
from federal law, relies on an unpublished Sixth Circuit
opinion, Knuckles v. Rogers, No. 92-3208, 1993 WL 11874
(6th Cir. Jan. 21, 1993). In Knuckles, this court
acknowledged Ohio’s contemporaneous objection rule and
the procedural default which resulted from a failure to object,
but found that since the Ohio appellate court which reviewed
the case conducted a plain error analysis, which gauges
whether a person has been denied a “fair trial” (which, in turn,
requires the application of federal constitutional law), the
decision was “not independent of federal law.” Id. at *3. We
have previously held Ohio’s contemporaneous objection rule
to constitute an adequate and independent state ground. See
Hinkle, 271 F.3d at 244 (“Ohio’s contemporaneous objection
rule constitutes an adequate and independent state ground that
bars federal habeas review absent a showing of cause and
prejudice”); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000) (objections to trial court’s jury instructions are
defaulted because “the court of appeals reviewed them only
for plain error due to Seymour’s failure to comply with
Ohio’s contemporaneous objection rule. . . .Controlling
precedent in our circuit indicates that plain error review does
not constitute a waiver of state procedural default rules.”);
and Scott v. Mitchell, 209 F.3d 854, 867 (6th Cir. 2000)
(“[T]he Supreme Court [has] specifically found that default
imposed for failure to object contemporaneously as required
by Ohio’s Rule 30 is an adequate and independent state
ground”).
In Scott, we criticized Knuckles, observing that:
In Coleman, the Court . . . very strongly implied its
continued disapproval of the rule . . . ascribe[d] to
Knuckles. As a preamble to its discussion of independent
state grounds, the Court acknowledged that it had
previously held Oklahoma’s review for “fundamental
trial error” before applying state procedural defaults “was
not independent of federal law so as to bar direct review
16 Gulertekin v. Tinnelman-Cooper No. 01-3920
because the State had made application of the procedural
bar depend on an antecedent ruling on federal law.”
Coleman, 501 U.S. at 741. . . .The Coleman Court then
distinguished that holding by observing simply that “Ake
was a direct review case. We have never applied its rule
regarding independent state grounds in federal habeas.
But even if Ake applies here, it does Coleman no good
because the Virginia Supreme Court relied on an
independent state procedural rule.” Id. The Supreme
Court, then, does not find the mere reservation of
discretion to review for plain error in exceptional
circumstances sufficient to constitute an application of
federal law.
. . . .
All in all, we think it is clear that Knuckles, an
unpublished decision of this court, cannot provide
persuasive authority to support a finding that the Ohio
Supreme Court did not rely on an independent state
procedural ground in disposing of Scott’s challenge to
the trial court’s penalty-phase instruction on jury
unanimity.
Id. at 867-68. Scott also noted that “Harris [v. Reed, 489
U.S. 255 (1989)] specifically instructed state courts that. . . .
‘By its very definition, the adequate and independent state
ground doctrine requires the federal court to honor a state
holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal
law.’” Scott, 209 F.3d at 866-67 (quoting Harris, 489 U.S. at
264 n.10 (citations omitted)). The Ohio appellate court in this
case invoked the procedural bar imposed by defense
counsel’s failure to lodge a contemporaneous objection
sufficiently to preclude federal court review of this claim on
habeas.
2. Remaining Claims
Gulertekin’s remaining claims on habeas are also
procedurally defaulted, in that she failed to raise them before

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 17
5Thus, she contends, it could not have been exp ected that he would
have raised the issue of his own ineffectiveness, nor was the evidence of
record ad equate on direct ap peal to dem onstrate the imp act of his failure
to retain med ical experts. Under Ohio law, when the same attorney
represents a defendant at trial and on direct appeal (as in this case), the
app ropriate forum in which to raise claims of ineffective assistance of trial
counsel is in a post-conviction action. In such a situation, res jud icata
the state courts. Her first claim alleges ineffective assistance
of counsel, for defense counsel’s alleged failure to retain or
consult with medical experts. While Gulertekin’s petition for
post-conviction relief made a general claim of ineffective
assistance of counsel, it did not include facts or argument
concerning this theory. At any rate, the state courts denied
this petition, which did specifically allege her third and fourth
claims on habeas (the government’s alleged violation of the
Vienna Convention on Consular Relations and prosecutorial
misconduct), without reaching the merits, because it was filed
late. In her briefs to this court, Gulertekin does not revisit the
imposition of this procedural bar, but proceeds to argue that
she can show cause and prejudice therefor.
B. Cause and Prejudice
Gulertekin contends that she can show cause and prejudice
because any procedural default associated with her habeas
claims is the result of ineffective assistance of counsel.
1. Ineffective Assistance of Counsel – Failure to
Consult Medical Experts
In this claim on habeas, Gulertekin asserts that her trial
counsel was ineffective in that he did not employ a medical
expert to investigate Patrick Lape’s medical records and to
refute the State’s expert testimony. Because this claim was
not presented to the state courts on direct appeal or in her
post-conviction proceedings, it is barred. Gulertekin points
out, however, that she was represented by her trial attorney
during the direct appeal,5 and that her attorney for the post-
18 Gulertekin v. Tinnelman-Cooper No. 01-3920
will not bar the ineffective assistance claim. State v. Co le, 443 N.E.2d
169 , 171 n.1 (O hio 1982 ).
conviction proceedings “rushed through” her petition
(spending 5.25 hours on it) and filed it one day late. As to the
prejudice element, Gulertekin presents the affidavit of Dr. Jan
Leestma, a physician who provides consultation in forensic
aspects of neuropathology, and whose opinions contradict that
of the physicians called by the state. Dr. Leestma’s ultimate
opinion is that “the conclusions of these witnesses (that the
injuries sustained by the infant could not have been caused
unintentionally and could have occurred only within a
temporal window of a few hours) cannot be established to a
reasonable degree of medical certainty.” Gulertekin also
presents two recent articles calling into question whether only
extreme violence results in shaken baby syndrome.
Gulertekin cannot use her post-conviction attorney’s
alleged ineffectiveness to establish cause for the procedural
default, however, because
[t]here is no constitutional right to an attorney in state
post-conviction proceedings. Consequently, a petitioner
cannot claim constitutionally ineffective assistance of
counsel in such proceedings. . . .[The] attorney’s error
that led to the late filing of [the] state habeas appeal . . . .
cannot be constitutionally ineffective; therefore
[Gulertekin] must bear the risk of attorney error that
results in a procedural default.
Coleman, 501 U.S. at 752-53 (internal citations and quotation
marks omitted). Accordingly, Gulertekin cannot establish
cause sufficient to excuse the procedural default on this claim.
2. Juror Coercion
While Gulertekin presented this claim to the state courts on
direct appeal, those courts found the claim procedurally

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 19
defaulted due to trial counsel’s failure to lodge a
contemporaneous objection. As cause for this default,
Gulertekin alludes only to “defense counsel’s ineffective
representation,” presumably in failing to object to the
allegedly coercive instructions to the jury. In Edwards v.
Carpenter, 529 U.S. 446, 451 (2000), however, the Supreme
Court held that “ineffective assistance adequate to establish
cause for the procedural default of some other constitutional
claim is itself an independent constitutional claim,” which can
be procedurally defaulted. Gulertekin has never presented
this claim (ineffective assistance of trial counsel) to the state
courts. Once again, her petition for post-conviction review
presented only a general ineffective assistance of counsel
claim, and was dismissed for having been untimely filed. To
the extent Gulertekin may assert ineffective assistance of her
post-conviction counsel as cause for the procedural default of
her claim for ineffective assistance of trial counsel, she is
barred by the fact that she has no constitutional right to such
counsel. Thus, she is unable to demonstrate cause for the
procedural default of this claim.
3. Violation of the Vienna Convention on Consular
Relations and Prosecutorial Misconduct
These habeas claims are likewise defaulted because
Gulertekin’s attorney filed her post-conviction petition one
day beyond the deadline, thus depriving the state court of
jurisdiction. Gulertekin asserts that the cause for this default,
however, is “clearly” ineffective assistance of counsel. Yet
again, as Gulertekin had no right to counsel in her post-
conviction proceedings, the alleged ineffectiveness of this
counsel cannot constitute cause.
C. Actual Innocence
Finally, Gulertekin asserts that the district court erred in its
finding that her claim of actual innocence did not excuse her
procedural default. In so arguing, she relies on the tenet that,
even without a demonstration of cause and prejudice, a
20 Gulertekin v. Tinnelman-Cooper No. 01-3920
federal habeas petitioner may obtain review of defaulted
claims by showing the failure to conduct such review will
result in a “fundamental miscarriage of justice.” Coleman,
501 U.S. at 750. See also Murray v. Carrier, 477 U.S. 478,
496 (1986) (“[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of
cause for the procedural default.”). In support, Gulertekin
cites Ring’s affidavit, in which Ring avers that, but for her
coercion by the trial court, she would have voted to acquit
Gulertekin. Ring also asserts:
During deliberations, the jurors did not really decide
whether the State proved Mrs. Gulertekin[] guilty beyond
a reasonable doubt. Instead, one of the jurors posed the
question as to whether any of us would hire Mrs.
Gulertekin to baby-sit our children. We went around the
room and offered our “vote” based on this question. All
the jurors except me and another young juror said they
would not hire Mrs. Gulertekin as a baby-sitter. After
the other juror joined the majority, many of the jurors
started pressuring me into voting to convict because they
wanted to go home for the Thanksgiving holiday.
Gulertekin also reiterates the conclusions of Dr. Leestma, as
contained in his affidavit, and the additional articles on
shaken baby syndrome.
Under Schlup v. Delo, 513 U.S. 298, 324 (1995), a
petitioner claiming actual innocence must “support his
allegations of constitutional error with new reliable
evidence--whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence--that was not presented at trial.” Further, “[t]o
establish the requisite probability, the petitioner must show
that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Id. at
327. Actual innocence, moreover, “means factual innocence,

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No. 01-3920 Gulertekin v. Tinnelman-Cooper 21
not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623-24 (1998). Thus, actual innocence “does not
merely require a showing that a reasonable doubt exists in the
light of the new evidence, but rather that no reasonable juror
would have found the defendant guilty.” Schlup, 513 U.S. at
329.
The government challenges the propriety of even
considering Ring’s affidavit, citing Fed. R. Evid. 606(b),
which provides that
a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or
to the effect of anything upon that or any other juror’s
mind or emotions as influencing the juror to assent to or
dissent from the verdict . . . or concerning the juror’s
mental processes therewith.
The rule contains an exception, however, that “a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear
upon any juror.” Id.
While Ring’s allegations regarding how the jurors began
their deliberations would clearly fall into the prohibited
category under Rule 606(b), Gulertekin maintains that the
trial judge’s alleged coercive tactics in rendering the
supplemental instruction regarding cell phones constituted an
impermissible “outside influence” about which Ring may
aver. United States v. Tines, 70 F.3d 891, 898 (6th Cir.
1995), however, makes clear that “[a] jury's interpretation and
application of the court's instructions is a part of the
deliberative process and [is] correctly excluded under Rule
606(b).” Thus, the trial judge’s admonition to the jury
instructing them to “go back and deliberate” and prohibiting
the use of cell phones is not considered an improper outside
influence. Moreover, while Gulertekin points out that the
district court considered Ring’s affidavit without mentioning
22 Gulertekin v. Tinnelman-Cooper No. 01-3920
Fed. R. Evid. 606(b), that court concluded that she had not
met the standards required by Schlup and Murray. That
conclusion is correct.
To answer Gulertekin’s reassertion of Dr. Leestma’s
affidavit, the government recounts the testimony of the three
physicians who testified against Gulertekin at trial. Dr.
Leestma’s opinions merely undermine this testimony, and do
not “show that it is more likely than not that no reasonable
juror would have convicted [her] in the light of the new
evidence.” Schlup, 513 at 327. Thus, this evidence fails to
meet the exacting standards of establishing actual innocence
pursuant to Schlup.
Similarly unavailing is Gulertekin’s argument pertaining to
an affidavit by Ian Heyman, an attorney who avers that
Buechner, the lead detective in Petitioner’s case, “volunteered
to [Heyman] that from the onset of his involvement [in the
case], he knew that the injuries sustained by the Lape child
were the result of an accident.” Heyman also asserts that
Buechner acknowledged the existence of a language barrier
in Gulertekin’s communications. This affidavit does not
constitute new reliable evidence, such as “exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence,” Schlup, 513 at 324, sufficient to
establish actual innocence.
AFFIRMED.

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