14
Per Curiam
tions and the sentences. State v. Esparza, 39 Ohio St. 3d 8, 529 N. E. 2d 192 (1988), cert. denied, 490 U. S. 1012 (1989).
On state postconviction review, respondent argued, for the first time, that he had not been convicted of an offense for which a death sentence could be imposed under Ohio law. Although the indictment charged him with aggravated murder in the course of committing aggravated robbery, it did not charge him as a "principal offender." 1 The Ohio Court of Appeals rejected his claim, holding that literal compliance with the statute was not required: "[W]here only one defendant is named in an indictment alleging felony murder, it would be redundant to state that the defendant is being charged as a principal offender. Only where more than one defendant is named need the indictment specify the allegation 'principal offender.' " State v. Esparza, No. L-90-235, 1992 WL 113827, *9 (May 29, 1992), cause dism'd, 65 Ohio St. 3d 1453, 602 N. E. 2d 250 (1992).
Respondent then filed a second petition for state postconviction relief alleging, inter alia, ineffective assistance of appellate counsel because his attorney did not argue that the State's failure to comply with its sentencing procedures violated the Eighth Amendment. The Ohio Court of Appeals in a conclusory opinion denied his claim, referring back to its previous decision. State v. Esparza, No. L-84-225, 1994 WL 395114, *5 (July 27, 1994), cause dism'd, 70 Ohio St. 3d
1 Ohio Rev. Code Ann. § 2929.04(A) (Anderson 2002) provides, in relevant part:
"Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment . . . and proved beyond a reasonable doubt:
. . . . . "(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit . . . aggravated robbery, . . . and 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."
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