*1 III. merged Alcan Alcan
When Ohio
Texas, by granted the license Cincom sole- Alcan
ly to Ohio transferred the surviv-
ing corporation, now known as Novelis. ex-
Because Novelis did not abide
press gain terms of Cincom’s license and approval, written prior
Cincom’s Novelis
infringed copyright. Cincom’s We there- affirm judgment
fore of the district
court. MONTGOMERY,
William T.
Petitioner-Appellee/Cross-
Appellant,
Margaret BAGLEY, Warden, Respon
dent-Appellant/Cross-Appellee. 07-3882,
Nos. 07-3893. Appeals,
United States Court of
Sixth Circuit.
Argued: June 2009.
Decided and Sept. Filed: *2 Maher, E. Stephen
ARGUED: Office Columbus, General, Attorney the Ohio Ohio, Appellant. Richard Marvin Ker- for Hartman, LLC, Toledo, ger, Kerger & Ohio, BRIEF: Appellee. for ON Charles Wille, Attorney L. Office of the Ohio Gen- Columbus, Ohio, eral, Appellant. Rich- Hartman, Kerger, Kerger & ard Marvin Ohio, McGinnis, LLC, Toledo, A. Lori Lou- donville, Ohio, Appellee. - MERRITT, CLAY, and
Before:
GIBBONS,
Judges.
Circuit
MERRITT, J.,
opinion
gomery,
the introduction of the
re-
delivered
J.,
court,
CLAY,
port would have made no difference
joined.
in which
Second,
of the trial.
GIBBONS,
458-456),
outcome
affidavits
(pp.
J.
delivered
*3
years
submitted to the habeas court 23
separate dissenting opinion.
jury
after the
trial and seven weeks after
OPINION
writ,
the court had issued the
the State
pretrial
now claims that several of the
MERRITT,
Judge.
Circuit
police-report witnesses have retracted
statements,
proves
their earlier
which now
Summary
I.
exculpatory report
that the
could neither
case,
penalty
this death
the State
effectively used in a new trial to cast
be
Ohio, through
Respondent,
Warden
case,
doubt on the state’s
nor could it have
Margaret Bagley, appeals
District
in
past.
led to such evidence
granting
Court’s new trial order
William
Montgomery argues that the evidence at
T. Montgomery’s petition for a writ of
co-defendant,
implicated
trial
his
Glover
§
corpus
habeas
under 28 U.S.C.
and
Heard,
trigger
as the
man so that intro-
subsequent
its
denial of
State’s motion
police report
duction of the withheld
would
Montgom
to reconsider that order. See
given
jury
reasonable doubt as to
ery
Bagley,
F.Supp.2d
v.
guilt. Alternatively,
his
on the issue of
(N.D.Ohio 2007). The
is
District Court
death, Montgomery also contends that the
finding
sued the writ based on a
that the
police report
probably
would
have created
State,
Maryland,
Brady
violation of
enough
juror’s
doubt
at least one
mind
373 U.S.
83 S.Ct.
The
issue for us to
(emphasis
resolve under
It directs
not
us
Brady
retry
is whether the withheld
re-
by weighing
existing
the case
port is “material” Montgomery’s jury
against
evidence,
the excluded
jury’s imposition
conviction or the
of the
but rather to determine whether the ex-
death sentence when
in light
reasonably
viewed
cluded evidence “could
tak-
presented
other evidence
trial.
put
The
en to
the whole case in such a different
argument
Warden’s
po-
light
as to undermine confidence in the
lice
is not “material”
Kyles Whitley,
has two com- verdict.”
514 U.S.
First,
ponents:
given
strength
On March in- [Montgomery] girls’ apartment. a two count indict- Jury returned Grand strueted Ogle’s Heard take car. jacket she had to clean the three times Heard took the car but then abandoned using a chemical cleaner. She could not it approximately one block from his resi- identify, however, what the stains were. [Montgomery] dence. returned to the Subsequently, jacket picked up. was girls’ apartment shortly thereafter days later, Several police officers ob- Cynthia left with Tincher her car. jacket tained the from Randolph Ran- After leaving apartment, [Montgom- dleman who jacket identified the ery] pull had Tincher to the side of the court as the one which he had loaned road thereupon shot her through [Montgomery]. range the head from a of twelve inches above, As stated on March 1986 at or less. Several witnesses testified that a.m., approximately 7:30 body Tincher’s they saw a man approximately [Mont- discovered her car at the corner gomery’s] height and weight leaving Angola. thereafter, Wenz and Soon Tincher’s car on the morning of March Ogle was missing. listed as The follow- at approximately 7:15. Those ing day, however, Ogle’s car was discov- testified, however, witnesses *5 ered behind an abandoned house at 1031 person they saw was wearing a dark Thereafter, Norwood. on March jacket with a pulled hood up around his 1986, Crime Stoppers a received tele- face. body Tincher’s was discovered in phone call from a Michael Clark who her car at the corner of Ango- Wenz and was at time incarcerated in the Toledo, la Roads approximate- Ohio at County Upon Lucas Jail. interviewing ly 7:30 a.m. March 1986. [Mont- Clark, officers obtained the name of Glo- gomery] approximately lives one-half ver Heard. Officers located Heard and mile from Thereafter, that location. they from Heard obtained the name of approximately 12:00 noon on March [Montgomery], gained Officers then 1986, [Montgomery], Heard and two permission from [Montgomery’s] mother friends, Sidney Armstead and Eric Wil- home, to search her appellant where son, also got together go to a mall. lived. That search revealed a black however, [Montgomery], carrying was jacket leather with a hood and the man- plastic bag and directed Armstead to ual to the Bursa semi-automatic hand- first drive him dry to a cleaner. Arm- gun. Subsequently, 12, 1986, on March stead appellant drove to One Hour Mar- officers went to Randolph tinizing Randleman’s where [Montgomery] got out of home in an attempt to locate [Montgom- the car with bag. Although they ery], noon, At approximately were identify unable to 12:00 [Montgomery], [Montgomery] employees arrived at the laundry of the home and testified that told officers that he March knew the black male officers showed were looking them a for him soaking wet dark and he pin- blue wanted to striped talk jacket suit about the that he homicide. He was then wanted cleaned in arrested and one hour. The taken to the employees station explained jacket questioning. During would interroga- have to dry tion, out before it [Montgomery] could initially be cleaned. stated that They then hung jacket dry. his, One Heard had killed both girls with employee dried, testified that [Montgomery’s], as it gun. He changed then jacket made a dripping story “brownish his ultimately mess but admitted that he on the floor.” She further gone testified that girls’ apartment for a jacket badly stained and that insist, ride home. He continued to how- successfully moved for State girls killed the ever, Heard had Court of body summary judgment. The Ohio Ogle’s know where he did not remanded, however, holding [Montgomery] Appeals reversed Finally, was. Mont- neglected give be able to show court might that he that the trial admitted body was and stat- Ogle’s opportunity to re- adequate where gomery officers remand, near a Hill Avenue it was on On ed that to the State’s motion. spond [Montgom- took then Montgomery market. Officers permitted the trial ultimately to a ery] to Hill Avenue reject claims for only to later his respond, appellant identified area that wooded Appeals time. The Ohio Court of a second began officers Several the location. relief, and the Ohio affirmed the denial Larry Sergeant the area while searching to review Court declined Supreme patrol in a vehicle stayed Przeslawski decision. the officers After [Montgomery]. a few wooded area for one searched Relief Post-Conviction C.
minutes, Sergeant told [Montgomery] in Federal Court the officers to to direct Przeslawski his available means Having exhausted area. Within wooded search different court, in state post-conviction relief minutes, the officers located five for a writ of petition filed a Ogle. body of Debra corpus Federal District Court. habeas trial, jury At the conclusion time, grounds alleged forty-eight he This aggra- [Montgomery] guilty found comprehensive review for relief. After Ogle with the murder of Debra vated matter, District denied all *6 said action involved that specifications except alleged Montgomery’s claims or more killing of two purposeful arising violation out State’s [Montgomery] was the and that persons police aforementioned withholding of the attempting while offender principal police re- pertinent part, report. jury The robbery. aggravated commit as follows: port read guilty of [Montgomery] further found of murder of included offense the lesser that and sev- Ingram] stated he [David At the conclusion Cynthia Tincher. apart- Hill friends were at the Oak eral jury recom- mitigation phase, they saw a Blue ments on Hill when [Montgomery] be sen- that mended driving Ogle with Debbie Ford Escort agreed The trial court to death. tenced they complex. again Later around the or- jury’s recommendation in the same auto. passenger her as a saw executed.... appellant that dered they to them as Ogle Debbie waved L-98-1026, 1999 Rogers High School. knew her No. Montgomery, State * (Ohio long with a white male with was Ct.App. Feb. She 1-3 WL omitted). 1999) (internal appear did not dis- sideburns. She citations tressed. Relief Post-Conviction B. at 2985. J.A. in State Court exculpatory in nature report The was up- was Montgomery’s conviction After sighting important because pursuing appeal, began he on direct held Wednesday, at 1:20 A.M. on place took court. Mont- relief state post-conviction days the State four March post- seventy claims gomery submitted after murdered court, argued but the state trial relief to conviction not District Court at 2984. The swiftly her. Id. denied for relief petition his only report concluded that the was excul- There are two questions distinct before patory First, but also found that there was no our court. was the District Court doubt the State had refused to dis- grant correct to petition? habeas And indeed, second, close the emerged was the District Court correct in — request after a formal police records refusing to consider the late-filed affidavits 59(e)? years Montgomery’s some six after trial. under Rule We answer both in the Finally, Id. at 2867. the District Court affirmative.
considered whether the was materi- III. The Habeas is, Petition Brady, al under that whether there was probability” “reasonable the out- The challenges State the issuance of the Montgomery’s come of trial would have First, writ on three grounds. the State been different privy had he been argues that the District Court give did not police report. Finding re- due deference to findings of the Ohio standard, port met this the District Court Second, state courts. argues State issued the writ. the police report did qualify “evidence” under because it would writ, After the District Court issued the third, have been inadmissible at trial. And a Toledo newspaper story ran a about the argues State the District Court case and noted that the District Court’s erred aas matter of in determining law decision was based on the withholding of that the withheld evidence was “material” police report. the 1986 The news soon Brady. under reached three of the people responsible for police report, including Ingram, David A. Deference the man who called in report shortly necessarily deference issue turns seeing a woman he and his friends upon adequacy of the review of Mont- said was Ogle. Debra Upon hearing the gomery’s Brady claim in state court. The news, each of the witnesses telephoned the Ohio Appeals Court of determined that Department Toledo Police to retract their such information developed during an “on- earlier They statement. claimed that the *7 going investigation” sufficiently was not they woman had seen turned out to be require to disclosure under Dianna Ogle, sister, younger victim’s Brady and limited its discussion to they claim had not made at the time of following conclusion: trial or subsequently. At the behest of the police, the witnesses quickly signed sworn [Montgomery] asserted that the state affidavits to this effect. The State wrongfully then withheld exculpatory evi- filed the affidavits in the District 12,1986 Court dence that on March approxi- 59(e) along with a Rule a.m., motion to mately reconsid- 1:30 Debra Ogle was seen er the writ based on this new evidence. alive in parking lot apartment of her passing Without on materiality complex by seven witnesses who went to police report in light of the high late-filed affi- school with [Montgomery] her. davits, the District Court denied the supports Rule this claim with a police report 59(e) motion. It held that the affidavits taken at approximately 2:30 a.m. on were properly not before the court time, because March 1986. At that Debra they did qualify not as newly discovered Ogle was still considered missing al- evidence under Rule and therefore the though her car had been discovered court could justify not altering or amend- abandoned behind a home several blocks ing a judgment final on the merits. from the home of the co-defendant Glo- clearly of es- application in rele- unreasonable That reads
ver Heard. law, but tablished federal rather con- part: vant of a de novo review the claim. ducts and sev- stated that he Ingram] “[David 436-37; Maples, Benge 340 F.3d at apart- Hill at the Mends were Oak eral Johnson, F.Supp.2d a Blue they saw Hill when ments on (S.D.Ohio 2004). driving Ogle with Debbie Ford Escort they again complex. Appeals Later ad- [Ohio] around the While claim, auto. failed passenger explain same to saw her as dressed they as why investigation waved them the fact that the Ogle Debbie Rogers High being pieced togeth- School. “ongoing” knew her from and “still side long for the was with white male er” was sufficient cause State’s She appear did not distressed.” failure to disclose the defense. burns. She cursory This not construed [sic] this iso- The court concluded that lower adequate explain as an its rea- [sic] information, in the course lated recorded Moreover, soning. to the extent investigation all of an when ongoing analysis of this Appeals’s the Court being together pieced still the facts were merits,” “adjudication an on claim is overwhelming evi- face of application finds its presented at trial that dence to be because it failed to unreasonable March did been killed on provide conclusory more than state- confidence in the outcome undermine regarding materiality ment agree conclude the trial. We report. dismissing not err in the trial court did claim for relief. fiftieth n. 44. at 976 Id. 55852, at *8. Montgomery, 1999WL The State attacks the District this re- characterized District Court ruling directing deference Court’s “cursory” Wilson, view commented attention our to Maldonado Mont- analysis.” (6th Cir.2005). “warrants detailed Maldonado, issue F.3d It then F.Supp.2d at 976. gomery, 482 we held where a state court decides “ question of defer- went to discuss constitutional issue ‘without extended ” Effec- the Antiterrorism and ence under discussion,’ court “must con the district (AEDPA) Act in a de- Penalty Death review,” tive independent but that its duct tailed footnote: “inquiry remains the AEDPA standard 2254(d)’s contrary court result is constrained standard whether state
Section adjudi unreasonably applies clearly estab only applies claims to or of review *8 476 (quoting federal law.” Id. at cated on the merits the state lished Carter, Stovall, 940, 212 375 Harris v. F.3d 943 proceeding. part Clinkscale v. Cir.2000)). (6th Cir.2004). (6th The District Court did not F.3d When 436 here. stray procedure not merits of After de state court does assess the claim, termining Appeals the defer that the Ohio Court of petitioner’s habeas unduly claim gave Montgomery’s the AEDPA does ence due under Million, shrift, Id.; rightly apply. 349 F.3d short the District Court Newton (6th Cir.2003); perform independent Maples v. Ste went on to an review. 878 Cir.2003). (6th that review led to different conclu gall, 340 F.3d 436-37 When sion, case, upheld court is not the District Court In such a habeas (as AEDPA) is under that deciding finding required that court’s limited to whether to the con- contrary an the state court’s determination decision to or involved was 448
trary represented objectively strong unreason- that any potential testimony of wit- clearly able fed- application claiming established nesses to have Ogle seen Debra eral law. alive on March 12 changed would not have respond-
the outcome. The District Court B. “Evidence” argument ed to this as follows: [Mjuch of the State’s case was made argument The State’s that through Heard, gave co-defendant who police report withheld not “evidence” police four different versions of his under because was inadmissible murders, knowledge of the and then tes- is not hearsay well taken. The re tified to a fifth version at trial. While have port would been inadmissible because theory the State’s was that Montgomery hearsay, affecting it was but “evidence committed murder Ogle, to rob credibility falls the general within rule” admittedly up Ogle’s Heard wound with requiring Giglio disclosure. v. United car and wallet and testified he that was States, U.S. S.Ct. planning Ogle’s to take car in the even (1972). L.Ed.2d 104 The evidence would absence of Montgomery’s instruction to seriously testimony have undermined the circumstances, so. do Under the where witness, of the State’s main Heard. Glover theory the State’s was that Tincher was face, years On report its would ago Ogle’smurder, killed to cover up ... have led to who witnesses would have cast police report revealing informa- doubt on serious the State’s case. Failure tion suggesting that was seen alive to disclose such “not reports only deprives days four after she allegedly was mur- evidence, the defense of certain but also would severely dered have undercut has effect of representing to the de credibility destroyed Heard’s fense evidence does not exist” State’s timeline of the case. causing defense counsel to “abandon lines defenses, of independent investigation, or Montgomery, F.Supp.2d at 978. This strategies trial might it otherwise conclusion police report makes sense. The pursued.” Bagley, United States v. strikes the heart of the State’s case in 667, 682-83, 473 U.S. 105 S.Ct. 87 directly contradicting testimony. Heard’s (1985) (“the L.Ed.2d 481 reviewing court sufficiently With impeached, Heard there may directly any consider adverse effect was a probability jury reasonable prosecutor’s might failure ... testimony have disbelieved his have had the preparation presenta or Montgomery was involved in the murders case.”). tion of the defendant’s The and, moreover, triggerman both qualifies exculpatory evidence, we, killings. police report was thus mate therefore, must possible assess the effect rial jury’s finding guilt, giving and its materiality at the right rise to violation of Montgomery’s — jury years time of the trial 23 when ago Bell, process. due See Cone defense counsel prepare try had to -, 1769, 1772, 173 129 S.Ct. L.Ed.2d 701 case. (2009); Brady, 373 U.S. at
1194. Materiality B. The was also to material the The challenges State jury’s the District later to impose decision the death finding materiality Court’s penalty, giving on two to rise Due Process and grounds. foremost, First and the State Eighth Amendment violations. Lockett argues Ohio, that 586, 604, its case in trial court was so v. 438 U.S. 98 S.Ct. 96-97, Green, (1978) at it. See 99 S.Ct. (plurality opinion), 57 L.Ed.2d 2150. Supreme the Court estab- its progeny, and guar- Eighth Amendment that the
lished
witness,
government’s star
Glover
The
to
right
capital defendant
the
antees a
Heard,
that
was the
testified
mitigating evidence
all relevant
introduce
damning
That
triggerman in both deaths.
noted
phase. The Court
the penalty
in
undoubtedly
a
testimony
played significant
Fourteenth Amend-
Eighth and
that “the
to
the
jury’s
impose
in the
decision
role
sentencer, in all but
require that the
ments
Had the
penalty Montgomery.
death
case, not be
capital
kind of
the rarest
testimony from the
jury heard
witnesses
considering,
mitigat-
from
a
precluded
they
Debbie
alive
the
that
saw
factor, any aspect of
defendant’s
ing
12, long
early hours of March
any of
circum-
record and
character or
killed by
contends she was
Mont-
State
the offense that the defendant
stances of
may have raised
doubt
gomery,
enough
than
a basis for a sentence less
proffers as
juror
sway
juror,
in the
one
to
that
mind of
(emphasis
original);
see
death.”
Id.
if
to
even
he or she had voted
convict
Oklahoma,
455 U.S.
Eddings
also
murders,
reject
to
Montgomery of
(1982).
concerning supports merely nature crime was this rule. that a holds place in in the first and offered state court did have to give a so-called by guilt the jury phase assessed the at of “residual instruction jury. doubt” 174, the trial. She does not notice that the Ohio Id. at 108 2320. There no S.Ct. statute, 2929.04(B), § Ohio ex- Rev.Code exculpatory involved in the requires sentencing that pressly at the Lynaugh No case. evidence was con- consider, cealed. jury Supreme trial ... Court there makes weigh shall ... it clear that trial placed the nature and circumstances of the “the [state] offense, history, petitioner’s character and back- no limitation op- whatsoever offender, ground portunity of the and all press the fol- ‘residual doubts’ lowing question factors: sentencing jury.” with the Id.
“Consequently, it
difficult to
see how the
rejection of these instructions
peti-
denied
(6) If
participant
in
offender was
any
tioner the benefit of
‘residual doubts’
principal
offense but not the
offend-
guilt.”
Supreme
about his
Id. The
er,
degree
partic-
of the offender’s
repeats
again
makes
clear that the
ipation in the
and the degree
offense
of
mitigating
mandatory:
evidence rule is
participation
the offender’s
in the acts
victim;
that,
case,
led to the
of the
death
Our
in
capital
edict
[is]
“
(7)
[may]
‘the
...
sentencer
not be
Any
pre-
other
factors
are relevant
considering,
cluded from
mitigating
as a
the issue of whether
the offender
factor, any aspect of a
should be
to death.
defendant’s char-
sentenced
acter
any
or record and
the circum-
(C)
given
The defendant
be
great
shall
of
”
stances
Eddings
presentation
latitude
of evidence
offense.’
Oklahoma,
104, 110,
455 U.S.
102 S.Ct.
(B)
of the factors listed in division
of this
869,
71
1
(quoting
L.Ed.2d
Lock-
section and
any
other factors in miti-
ett,
604,
2954)....
451 all upon to turn over incumbent the State as such evidence rely upon entitled It is not evidence. exculpatory convic favorable time of his at the mitigating factor must turned v. sole arbiter of what in 1986. State the See and sentence tion 40, Kyles, at 115 97 See 514 U.S. Watson, N.E.2d over. 572 61 Ohio St.3d 439— (“Residual capital of a defen S.Ct. doubt be considered may properly guilt dant’s the State con- secondary argument, As a time, fact, the at that mitigation”). the immateri- police tends residual recognized the Supreme to the not have led al because would “extremely effective strategy doubt For discovery of evidence. cases.” capital for defendants argument the three retraction support, relies on 162, 181, 106 McCree, 476 U.S. Lockhart years later. The affida- filed 23 affidavits Thus, (1986). 137 90 L.Ed.2d S.Ct. the claim vits do not undermine dissent use the language whatever eligible they become admissible and until re denigrate the concealed characterize or for consideration. it over the state to turn the failure of port, and is at the time law violated federal 59(e) Denial the Rule Motion IV. statute present the state inconsistent with to Alter or Amend 2929.04(B), above, enforcing § quoted District appeals State con sentencing of admissibility evidence 59(e) Rule motion denial of its Court’s and cerning “the nature circumstances affidavits. three late-filed based degree the offend “the the offense” and 59(e) amendment, permits the altera Rule participation.” er’s tion, judgment after its or vacation of Miller, Wright, A. & M.
entry. See C. Kane, Practice Procedure Federal the State took argument, At oral (3d ed.1998). § It is an “extraordi 2810.1 must prosecutors police position remedy” spar and is therefore “used nary pur- “material” for the what is determine 59(e) may be ingly.” Id. Rule motions moreover, and, disclosures poses upon showing “newly discov granted hind- is immune from this decision previously unavailable evidence.” ered or argu- the courts. At oral sight review ‘newly evi “To constitute discovered Id. place: ment, following exchange took dence,’ previ must have been evidence is position I State’s] think [the Court: GenCorp, Inc. v. ously unavailable.” prosecutor and it’s up Underwriters, F.3d Amer. Int’l whether such decide (6th Cir.1999). requires a show This police report] [the as this could not have been ing that depending And true or not true. previously diligence. with due discovered prosecutor decides whether Miller, Kane, A. & M. Wright, 11 C. See turns is true or true [evidence] § 2808 Practice and Procedure Federal Brady materiality. ed.1998) (“The (3d moving party must have Honor, say- I’m that’s Your what State: of the facts de excusably ignorant been position. ing. That’s to learn about using diligence due spite them.”); Bogart Chapell, see also 2009. The State Argument, June Oral Cir.2005) (4th (upholding F.3d proposition no support offers 59(e) “the motion where misunderstanding denial of Rule betrays a fundamental legitimate justifica no presented the law movant Attorney by the General timely the evi- failing submit Brady, it is tion must Under follow. State *12 452 correctly ... notice of the noted that each the
dence and had advance Minimed, issues.”); Res., Toledo, Ohio, affiants still lived in area. Inc. the Infusion Cir.2003) (5th Inc., 688, more, police report the 351 696-97 What is itself listed F.3d (“[A] 59(e) address, name, telephone to not the number motion reconsider should and ... alleged Ingram, principal ... facts of David the who granted be unless the affiant not been earlier called in the in this Although could have discovered 1986. outdated, diligence.”); First proper Committee contact information be it 962 Campbell, Ingram Amendment v. F.2d have could been used to locate (10th Cir.1992) (“[T]he and, him, movant must through the two others who now newly either that show evidence is sighting claim that was in error. their if avail- fact, discovered the evidence was [and] coupled This with the com- State’s being at able the time of the decision plete (despite Montgom- inaction notice challenged, diligent made a that counsel ery’s Brady challenge), is fatal. Without yet evi- unsuccessful effort to discover the having any made effort to determine the dence.”); Bowman, Chery v. 901 F.2d (or not) veracity police report, (11th Cir.1990) (same). 1057 n. 6 argue cannot now informa- State tion the affidavits could not been
The District Court denied the State’s diligence discovered with due before 59(e) motion finding Rule based on writ was issued. “newly did not qualify the affidavits as explained: discovered evidence.” It previously withheld Where evidence sur clearly ended, cannot establish that [The State] faces after the criminal trial has it diligence procuring exercised due examine duty [it] is the habeas court’s this apparent by evidence.... As is carefully to determine whether affidavits, addresses Brady. [the listed their is “material” under To the extent Toledo, three still affiants] reside State wishes to substantiate its material, area. Ohio has not shown claim that [The State] the evidence is any why reason these witnesses could the time so. It obviously wrong to do is prior not have been argue, here, contacted for the State to does court’s issuance of March it can first if a wait see court hands of Opinion [granting Memorandum opinion, down unfavorable Montgomery’s petition begin for a writ of ha- then to look into the issue.1 corpus], beas upon affidavits which the State
We review the District
de
Court’s
asked the District Court
revisit
judg-
its
59(e)
nial of the Rule
readily
motion
abuse
ment
issue were
discretion,
Corp.,
trial,
Betts Costco Wholesale
discoverable at the
time
at the
(6th
Cir.2009),
558 F.3d
petition
and find
long
time
habeas
was filed and
no such error in this case. The District
before the writ was issued. That the State
following exchange
place
1. The
took
oral
heard of before—that should have been de-
argument:
veloped at the time of trial
...
then
litigate
Court: So
wait
[the State] can
until
that issue
the writ of habeas
ruling is in the
ten
federal District Court
corpus
judi-
What
has been issued?
kind of
later,
years
and then come forward with
system
cial
would we have if that were the
whatever
[it
needs to
rebut
rule?
claim of a
now
violation]. Because
corpus, your
The State: That’s habeas
Hon-
that's
claim that’s attracted the District
Argument,
Oral
or.
June
2009.
Court's attention....
can
for-
You
come
Argument,
Oral
June
ward with the out-of-court evidence—never
GIBBONS,
SMITH
Circuit
“anticipate
going
that the writ was
JULIA
did not
claim,
dissenting.
Judge,
particular”
on that
granted
it, is not
investigate
did not
therefore
*13
police report
the
is not
Because
delay.
the
as
justification
a
for
Just
valid
material,
respectfully
I
dissent.
on
petitions based
new
successive habeas
In
to
a
of Bra-
dismissed
order
establish
violation
where the evidence
are
dy Maryland,
U.S.
S.Ct.
v.
373
83
previously
have
...
been discovered
“could
(1963), Montgomery
10
215
L.Ed.2d
must
diligence,” 28
the exercise of due
through
following
require-
that
the
three
show
2244(b)(2)(B)(I),
State,
§
the
under
U.S.C.
are
“The
at
ments
met:
issue
59(e),
procedurally
Rule
is
barred
accused,
must be favorable
either
petition
a
the
of habeas
challenging
grant
exculpatory,
it is
it is
because
or because
reasonably discoverable
based on facts
have
impeaching; that evidence must
been
the
was issued.
long before
writ
State,
willfully
either
or
suppressed
the
as
proceeding,
in the
point
At this
inadvertently;
prejudice must
have
explained,
proper
District Court
Greene,
527
ensued.” Strickler
U.S.
in which the State
introduce
venue
263, 281-82,
1936, 144
L.Ed.2d
affidavits is
state
the evidence
(1999). In
require-
terms of the first
the Supreme
retrial. As
ment,
pretrial
in-
police report —which
purpose
recently reemphasized,
has
that
dicated
several witnesses
seen
require
of “material
Brady is to
disclosure
Montgomery’s alleged
one
victims
alive
to the defendant be-
exculpatory evidence
days
argued
four
after the State
that he
Attorney’s
trial.” Dist.
to Montgomery
her—is favorable
be-
killed
Office for
fore
—
Osborne,
U.S.-,
Dist. v.
Third Jud.
theory
cause it casts doubt
the State’s
(2009)
2308, 2319, 174
L.Ed.2d
case.
for the
require-
S.Ct.
As
second
added).
ment,
pretrial
this
timing
ap-
undisputed
is
(emphasis
police report
suppressed by
designed
State.
plication
Brady
rule is
so
Indeed, Montgomery was
aware
any
ultimate
issues can be
years
trial,
until six
after his
when it was
by the fact-finders at
time
addressed
request
to a
pursuant
disclosed
formal
trial,
contemplated by
as
the Sixth
police
In terms of the
re-
records.
third
retains the
Amendment. Our Constitution
violation, however,
quirement
for a
I §
in Article
Corpus
Writ of Habeas
Montgomery
whether
parties dispute
require
function
but it is not its
to
prejudice
to
necessary
established the
“has
a later
federal habeas court
conduct
‘materiality’ inquiry.”
satisfy
Id.
constitutionally
of a
trial on the merits
I also would acted and that appropriately Although two claims. gomery’s additional convincing has failed to offer clear and opinion does not address majority claims, juror also evidence that the could not or did not remaining he Montgomery’s relief on the follow- the denial of appealed impartial. Bagley, remain See Williams v. (1) grounds: whether the trial (6th two ing Cir.2004) (noting F.3d disqualified juror who court should finding impartiality that a trial court’s court that she had advised the been correctness, presumption entitled to the and that she had seen psychiatric patient 2254(e)). required by as 28 U.S.C. twenty psychiatrist a dream the defense claim, As the second while case he years appeared earlier which pretrial publicity, did involve the relevant devil; whether the should *15 challenge in a question to the trial court’s change ordered a of venue account change decision not to venue is whether I publicity. agree of pretrial jurors judge impartially “could deny reasoning court’s and would district Yount, of the guilt as to two defendant.” Patton v. Montgomery’s petition these 1025, 1035, 2885, as claims well. 467 U.S. 104 S.Ct. 81 (1984). Supreme L.Ed.2d 847 The First, a Montgomery juror’s claims that has “trial findings stated court’s of disclosing psychiatrist to note juror impartiality be overturned biased, .that irration- demonstrates she Virginia, for manifest error.” Mu’Min v. al, incompetent. receiving After 415, 428, 1899, 500 114 juror, judge ques- the trial note (internal L.Ed.2d 493 citation and her juror impartiality tioned the about omitted). quotation Montgomery marks competence. judge The trial retained sentencing suppressed any any issue. The of relevance of the is irrelevant highlights necessarily juror sentencing implausibility majority's that a issue view is speculating suppressed of might persuaded by have been residual any could have affected the sentence. In guilt lingering phase doubts from doubt— event, Appeals Court of did not un- that, Ohio theory, juror's trial could affect a of reasonably apply because sentencing. At the time Mont- decision at of probability has not shown a reasonable sentencing, gomery’s conviction and defen- pro- suppressed evidence would have rely dants entitled to on residual doubt were guilt duced a different outcome either Watson, mitigating 61 factor. See State v. as sentencing phase. or 1, 97, (1991). 572 111 Ohio St.3d N.E.2d But, use, recognition illogic of the of its response to this observation about the unacceptable has deemed residual doubt been police report’s impact sentencing, of lack law, mitigating Ohio see factor under majority says that the dissent has created McGuire, 80 Ohio St.3d 686 State procedural rule would bar consider- (1997), a rule has N.E.2d 1122-23 police report ation in violation state applied retroactively, Bey, see State v. 85 been point and federal law. The I make has noth- (1999), 503 Ohio St.3d 709 N.E.2d ing admissibility do with or constitutionally required any evidentiary and is not because My point simply rule. considerations, sentencing police report is not relevant if the had been admitted and record, considered, namely or the defendant's character the likelihood that would have offense, any sentencing see is even less than the likeli- or circumstances affected 164, 174, Lynaugh, 108 would have affect- Franklin v. 487 U.S. hood that its consideration (1988). guilt. jury’s lack ed the verdict S.Ct. 101 L.Ed.2d has not demonstrated that there awas
“pattern deep prejudice and bitter present throughout
shown to be the com- Dowd,
munity,” Irvin v. 366 U.S. (1961) (inter- L.Ed.2d S.Ct. omitted),
nal quotation citation and marks findings
such that the trial im- court’s
partiality were manifest error. deny
Because I Montgomery’s pe- would corpus
tition for habeas on all three of grounds, I
these dissent. America,
UNITED STATES
Plaintiff-Appellee, *16 METCALFE,
Thomas Othellow
Defendant-Appellant.
No. 08-1812.
United Court Appeals, States Circuit.
Sixth April 23,
Submitted: 2009. Sept.
Decided and Filed: Turek,
ON BRIEF: A. Sharon Federal Office, Public Defender’s Western District of Michigan, Rapids, Michigan, Grand Courtade, Appellant. Mark V. Assistant Attorney, Rapids, United States Grand Michigan, Appellee.