*1 Jerry McMEANS, Petitioner-Appellant,

Anthony BRIGANO, Warden, J.

Respondent-Appellee.

No. 98-4096. Appeals,

United States Court

Sixth Circuit.

Argued: June

Decided and Filed: Oct. *3 Wendy an order stepfather, alleg-

with her edly Wendy followed. also asserted that initial encounter after this McMeans forced her to have sexual intercourse with him fellatio on him perform or several times, money. more sometimes for McMe- having any ans denies had sexual relation- ship Wendy. with Gallagher (argued R. William point during period, Wendy At some briefed), Cincinnati, Ohio, for Petitioner- Self, father, informed her Donald Appellant. *4 alleged McMeans’s sexual misconduct. Todd R. (argued), W. Harris Stuart Wendy’s Donald contacted mother and she (briefed), Attorney Office of Marti allegedly problem assured him that Columbus, Ohio, General, Respondent- for persist. Wendy would not later informed Appellee. alleged that Donald McMeans’s misbehav- thereafter, continued ior soon Donald RYAN, SILER, CLAY, and Before: sought County the assistance of Franklin Judges. Circuit (FCCS). Services At about the Children RYAN, J., opinion delivered the of the time, Wendy same also informed her fifth J., CLAY, court, SILER, joined. in which grade alleged teacher of McMeans’s abuse. 687-89), separate delivered a (pp. J. Wendy’s reported Wendy’s allega- teacher concurring part dissenting in and opinion tions to FCCS.

in part. receiving reports, After these FCCS custody. At Wendy approxi- took into its OPINION time, his mately the same McMeans lost

RYAN, Judge. Circuit job from his and evicted home us is the from the district appeal Before Columbus, He then moved with his Ohio. dismissing the habeas court’s order adopted the remainder of his wife and McMeans, Jerry prisoner an Ohio tion of family to Wisconsin. raping stepdaughter. convicted of County grand jury Franklin After a the district court McMeans asserts that rape, six counts of charged McMeans with proeedural- when it that he had erred held him in eventually authorities located Ohio Clause, ly defaulted on his Confrontation procured and his return to face Wisconsin Brady, juror and bias claims. He also charges. criminal court erred when it argues district “reasonably ap- held that the Ohio court dire alleges during McMeans that voir plied” deciding federal law two apparent prospective it became constitutionally adequate counsel rendered jurors According would be biased. assistance. will affirm. We McMeans, juror Hunt was the mother of juror daughter had Grey’s victim and I. murdered. McMeans also asserts been 1980s, Grey half was friends with the “chief During the latter of the wife, Twila, McMeans claims county prosecutor.” lived with his and McMeans objections to previous marriage, despite personal from a her children Jr., jurors, Ac- his trial counsel did not em- Jerry, Misty, Wendy. Donald and these re- challenges to cording Wendy, night ploy peremptory one in the sum- unused Grey. There is no record Wendy’s intoxicated mother move Hunt and mer of assertions, howev- support to a and for McMeans’s upstairs summoned her bedroom er, waived the his trial counsel ordered her to have sexual intercourse because dire right proceedings have voir tran- TIONS OF RAPE AGAINST OTH- scribed. ERS IN APPEL- VIOLATION OF TRIAL, LANT’S RIGHT TO A FAIR trial, Wendy At testified that McMeans AND TO DUE PROCESS OF LAW raped had her several times and McMeans AS GUARANTEED BY THE FIFTH charges. theory denied those AND FOURTEENTH AMEND- Wendy McMeans’s defense was that had THE MENTS TO UNITED STATES story fabricated a of sexual abuse order I, CONSTITUTION AND ARTICLE gain physical that her father would custo- SECTION 16 OF THE OHIO CON- dy testimony of her. Aside from the STITUTION. McMeans, Wendy and several other wit- [(3)] Wendy nesses testified had informed THE TRIAL COURT ERRED them of alleged McMeans’s misbehavior. BY OVERRULING APPELLANT’S MOTION TO DISMISS [THE only physical presented evidence CHARGES AGAINST HIM WHICH testimony trial was the of a doctor from VAGUE], WERE IMPERMISSIBLY Wendy. FCCS who had examined That [(4)] Wendy doctor testified that had scarring APPELLANT DENIED WAS “irregularities” hymen, on her which EFFECTIVE ASSISTANCE OF *5 possibly indicated sexual activity. COUNSEL IN THE VIOLATION OF AND SIXTH FOURTEENTH trial, day prosecu- On the second of AMENDMENTS TO THE UNITED gave tion trial judge portions of re- STATES AND CONSTITUTION AR- ports from FCCS for in camera review. I, TICLE SECTION 10 THE OF reports The that Wendy noted had accused OHIO CONSTITUTION. sexually two other men of assaulting her petitioner’s alleged after the abuse. After submitting After those arguments, McMe- file, reviewing judge the trial informed brief, se, supplemental ans filed a pro Wendy’s McMeans’s counsel of subsequent asserted, claims, which among other that accusations, rape but warned counsel that prosecution comply failed to with the he think did not such evidence was admis- recognized by duties Supreme Court in following day, sible under Ohio law. The Brady Maryland, when attempted McMeans’s counsel (1963). 10 L.Ed.2d 215 February On question Wendy and her father about the 21, 1989, the Ohio Court of Appeals struck accusations, subsequent rape the trial brief, McMeans’s noting that he had the judge ruled that such examination was im- option dismissing appointed his permissible under rape Ohio shield and relying upon pro. se brief. McMe- law. ans did not dismiss his appointed counsel. After the trial judge dismissed one of Appeals Ohio Court of affirmed McMeans, against the counts jury McMeans’s conviction August on 1990. guilty found McMeans of the five remain- As to McMeans’s contention that ing counts. The trial judge sentenced counsel should have been pur- allowed to McMeans to five life sentences. sue inquiry Wendy’s prior into rape accu- sations, court stated: timely appealed

McMeans his conviction with the assistance of appointed counsel. This court rape finds the [Ohio] argued: Counsel shield law is applicable not to this case [(1)] THE TRIAL COURT ERRED since the concerning evidence whether ...

IN ADMITTING ... EVIDENCE Wendy or not fabricated other OF BAD PRIOR ACTS.... charges any does not address aspect of [(2)] THE TRIAL COURT ERRED her sexual activity. The evidence mere-

BY EXCLUDING ly EVIDENCE OF addresses or Wendy whether is a However, PROSECUTRIX’S PRIOR ACCUSA- credible witness. before a tri- jurisdiction to exercise its over his declined may admit evidence al court prior appeal. made accusations had victim others, trial court must rape against In November McMeans filed his prior accusations be satisfied court, argu in federal petition first habeas fact, were, in false.... failed to disclose ing prosecution case, is no evidence In this there exculpatory evidence and that his Confron Wendy’s prior accusa- the record that rights tation Clause had been violated. appellant false.... Had tions were petition pending, the Ohio While falsity evidence of the proffer wished to ruled in v. Murna Supreme Court State accusations, could appellant the prior han, 63 Ohio St.3d 584 N.E.2d an in-camera availed himself of (Ohio 1992), that an ineffective assistance not, did hearing.... appellant Since counsel claim could be raised that the trial court this court cannot find delayed in a motion for reconsideration of in declining per- its abused discretion McMe- ruling, a direct Given this mit counsel to cross-examine appellant’s petition ans moved to dismiss his without rape. accusations of Wendy prior on her prejudice might order that he file a assign- second Accordingly, appellant’s court Mumahan motion. The district of error is not well-taken. ment granted request. McMeans’s ineffective assis- Regarding McMeans then submitted his Mumahan claim, that “none of the court held tance coun- argued motion and that his asserts as ineffective things appellant to raise his grossly failing sel erred ineffec- in and of themselves demonstrates Clause, juror Brady, Confrontation the face of the record tiveness on Appeals bias claims. Ohio Court certainly, most do not demonstrate *6 ruled, first, that not to raise the decision would have been different.” the result likely “appellate claim was juror bias for filed a motion reconsidera- McMeans prepared the court strategy” and was decision, which the court of tion of that tactical, As to gainsay that decision. 6,1990. appeals denied on November argument appellate that coun- McMeans’s a se pro appeal then filed McMeans claim, presented Brady have a sel should Court, four claiming Supreme the Ohio that court stated: the claim that including errors in his trial trial court in this case reviewed The guaranteed by the Confrontation rights his file and dis- the childrens’ services [sic] The had been violated. Ohio Su- Clause appropriate information closed to hear the preme Court declined of this parties. It was as result both appeal pending, direct was While his appellant that be- inspection in camera pro filed a se motion for a new McMeans he now aware of the information came trial, assistance of trial arguing ineffective provided to properly was not asserts prosecution failed to counsel and that the him.... Brady obligations. After the fulfill its previously addressed This court has Appeals affirmed his convic- Ohio Court and prior rape reports of the the issue tion, rejected McMeans’s the trial court in that the trial court did not err found motion, un- holding that such motion was from the tri- excluding this evidence aside, argu- that his

timely timing result, cannot al.... As a this court rejected and had been considered ments was ineffec- appellate find that counsel level. appel- to raise the issues failing tive unsuccessfully appealed the McMeans assignments of error lant now raises as The Ohio Court of trial court’s decision. previous appeal. in his affirmed, ruling that McMeans’s Appeals that court ruled Finally, ap- untimely. McMeans then motion had, fact, Court, raised a counsel Supreme which pealed to the Ohio sistance, Confrontation Clause claim McMeans’s prosecution failed to turn appeal direct and that claim had been exculpatory over evidence in a timely man- rejected. appealed McMeans that deci- ner, and that the limitation on cross-exami- which, Supreme sion to the Ohio Court Wendy rights nation of Self guar- violated time, for third declined to hear his anteed the Confrontation Clause. case. petition. district court dismissed the August In McMeans filed his sec- That court ruled that proce- McMeans had petition. ond federal habeas The district durally Brady juror defaulted on petition court dismissed McMeans’s with- bias claims. The court then held that prejudice out after respondent argued McMeans failed to demonstrate ineffective required McMeans should be to seek counsel, assistance of appellate which could relief under postconviction proce- Ohio’s serve as “cause” to review those claims. respondent presented dure. When the its As to McMeans’s ineffective assistance argument dismissal, in support of it noted claim, trial counsel the district court ruled if McMeans chose to file an Ohio state court rejecting “[t]he decision motion, postconviction respondent would petitioner’s claim of ineffective assistance argue that procedurally McMeans had de- of trial counsel contrary was neither to nor faulted on his constitutional claims. in light clearly unreasonable established 1995, McMeans, se, In April acting pro federal Finally, law.” the district court requested postconviction relief from the ruled that “fairly pre- McMeans had not Ohio courts. Ohio Rev.Code Ann. sented” the Confrontation Clause issue to motion, § 2953.21. In that ar- McMeans the Ohio courts. gued that appointed trial pro- McMeans filed a appeal notice of and a constitutionally vided ineffective assistance petition for certificate of appealability. by failing to remove allegedly the two bi- This court certified his ineffective assis- jurors. ased court denied McMe- counsel, juror, tance of trial Brady, biased “[Tjrial motion, ans’s stating: counsel’s de- and Confrontation Clause claims. cision not to jurors exclude these could upon been based other favorable an- jurors swers that gave. these Even bar- II. ring this claim should have been *7 presented With each issue by peti appeal raised on judicata.” and is now res tioner, the question critical is whether he The Appeals Ohio Court of affirmed. The committed default in the Ohio Supreme Court of Ohio declined to hear courts on the particular argu claims or the appeal. McMeans’s case, presents. ments he If that is the 1996, McMeans, In March acting still federal jurisdiction, courts do not have ab se,

pro “delayed filed a motion for new sent a showing of “cause” and “prejudice” evidence,” newly based on discovered Carrier, to consider those Murray claims. arguing that Ohio him denied his Sixth 478, 485, 77 4 right Amendment by impar- be tried (1986). L.Ed.2d 397 jury. tial The trial court denied this mo- tion, ruling that presented the evidence by A. McMeans did not demonstrate the necessi- ty of a new trial. The Ohio Court of error, In his assignment first of Appeals affirmed. petitioner claims he was denied his consti- 21, 1997, January McMeans,

On tutional right to now confront his accuser with counsel, represented by her subsequent rape filed his third fed- accusations. The dis- petition. eral habeas argued juror He trict court held that it could not consider trial, bias him denied a fair that trial and merits this claim because the provided ineffective as- tioner failed “fairly present” it to the significant actions this deemed the district of the court We hold courts. Ohio presentation” analysis “fair in did not err. court First, argues pre- Franklin. he that he do not have The federal courts by his claim sented Confrontation Clause a claim a habeas jurisdiction to consider Constitution, “due citing United States “fairly presented” that was petition process,” right and his to a “fair trial.” Rose, Franklin v. courts. the state Second, he notes that some of the state Cir.1987). (6th A claim F.2d 324-25 cited his brief con- precedent “fairly presented” only considered may be analysis tained the Confrontation the factual if asserted both petitioner Third, pre- Clause. he maintains that the state for his claim to the legal basis inquiry subsequent rape clusion of into the noted Id. at 325. This court has courts. have, itself, accusations should alerted can take which actions defendant four possible to a Appeals the Ohio Court wheth to the determination significant are violation of Confrontation Clause. (1) “fairly presented”: claim has been er a employing cases con upon rebanee federal that, finally petitioner argues The even (2) analysis; upon reliance state stitutional defaulted, if claim is this procedurally employing federal constitutional cases may court review the claim on merits (3) claim in terms of phrasing the analysis; the ineffective assistance because sufficiently in terms constitutional law or the “cause” of the appellate counsel was allege specific a denial of a particular to opinions from Citing unpublished default. (4) alleging facts right; or constitutional dealing with examination into this court constitution the mainstream of web within petitioner prior rape, accusations allegations id. at 326. General al law. See that his Clause contends Confrontation a “fair trial” and rights denial of of the bang claim was a “dead winner” and his “fairly process” present” do not “due counsel, therefore, committed a appointed rights specific claims that constitutional failing it. gross error assert Coombe, Petrucelli v. were violated. (2d Cir.1984). F.2d 688-89 the state- respondent argues The argues that the district opinion ment from the Mumahan-motion Court of court erred because Ohio therefore, best, is, ambiguous counsel as- Appeals “appebate stated that of the court should look to the substance signed issue as error [the confrontation] respondent direct that court ren- appeal]” direct when [on petition- appeal contends that on direct mo- its decision on the Mumahan dered judge that the trial errone- argued only er Nunnemaker, Citing Ylst v. tion. shield law ously applied the Ohio 115 L.Ed.2d 706 inquiry limited into the subse- when he (1991), in de- contends respondent accusations. The quent rape *8 courts reached the ciding whether the Ohio petitioner’s appebate that the also notes claim, federal the federal merits of his any precedent did not cite federal brief last state through courts must “look to the by cited most of the state cases that judgment” a on that claim. rendering court with Ohio evi- solely the dealt petitioner to take requires He asserts that Ylst us dence law. in the statement the Mumahan-motion literally and hold that the district opinion argu- petitioner’s As to the alternative erred. court assistance of ment that the ineffective procedural counsel excuses his appellate alternative, argues petitioner In the the default, ap- that respondent the contends that, discounting the Mumahan-mo- even strategic a valid counsel made pellate “fairly pre- opinion, appeal tion his direct excluding the choice in Confrontation main- petitioner that claim. The sented” took most Clause claim. appellate tains that his counsel

682 by opinion peti upon are of the the statement relied

We in “fairly present” opinion tioner did not his claim. tioner the Mumahan-motion is Consequently, a mistake. we hold that the appeal, petitioner In his direct focused has no entirely opinion Mumahan-motion effect on applicability on the Ohio’s petitioner our conclusion that the did not law. Ann. shield Ohio Rev.Code “fairly claim present” his to the Ohio any § pre 2907.02. He did not cite federal courts. only alleges cedent and his brief judge’s that the trial limitation on cross- alleged We hold next that examination denied him a “fair trial” and in failing error to raise recognized in process.” “due As this court petitioner’s Confrontation Clause claim

Franklin, this is not sufficient to alert a not constitute does “cause” excuse the asserting court that an appellant state is default. In petitioner’s procedural order specific the violation of a constitutional to succeed on a claim of ineffective assis right. While it is true that a few of the counsel, petitioner tance of by on petitioner state cases cited direct must show errors so serious that counsel contain to the appeal references Confron scarcely functioning as counsel at all Clause, majority tation those cases and that those errors undermine the relia were concerned with Ohio evidence law. bility of the defendant’s convictions. We do not think that a few brief refer 668, Washington, Strickland v. 466 U.S. ences to the Confrontation Clause in isolat (1984); 80 L.Ed.2d 674 S.Ct. enough put ed cases is state courts on (6th Zent, v. Rust 17 F.3d 161-62 notice that such a claim had been asserted. Cir.1994). counsel, Strategic by choices Thus, we hold failed to necessarily while not judge those federal “fairly present” his Confrontation Clause make, in hindsight might do not rise to the claim the Ohio courts. level of a Sixth Amendment violation. Barnes, 745, 750-54, Jones v. that, persuaded We are not pursu (1983). 3308, 77 S.Ct. L.Ed.2d 987 We Ylst, any ant to statements the Muma that, reversing note en route to an opinion opinion require han-motion a different court, Supreme from this Court has Giving conclusion. ben recently reemphasized just any “[n]ot doubt, say efit of the the most we can is deficiency in performance” counsel’s is suf that the Ohio Court of Appeals erred its default; ficient to excuse “the opinion. Mumahan we recognize While assistance so must been ineffective as Ylst, Supreme Court stated to violate the Federal Ed Constitution.” the last state court to be present “[i]f — —, —, wards v. Carpenter, U.S. particular ed with a federal claim reaches 1587, 1591, 146 L.Ed.2d 518 merits, it any removes bar to federal- (2000). court review that might otherwise have available,” Ylst, been see Contrary as sertions, we do not think this state his Confrontation Clause claim is ment is invitation to the federal courts bang not a “dead winner.” The unpub upon by seize mistakes state courts to lished cases cited the petitioner, which review procedurally force, defaulted claims. precedential We course have limited 94-4000, reach this conclusion partly Boggs Brigano, because of the No. 1996 WL (6th respect federal courts Apr.4, 1996), owe state courts Cir. and Lemmon *9 Ohio, 92-3284, which a responsibility equivalent to v. State No. 1993 WL (6th Jan.22, 1993), that of the guard federal courts to consti 15164 Cir. do not stand rights. tutional generally proposition preclusion See Rose v. for the that the 509, Lundy, 455 U.S. prior rape cross-examination into accusa (1982). Thus, 71 L.Ed.2d 379 per we think it tions is a se the violation of Confronta Moreover, prudent is both and accurate to recognize tion Clause. even if those cases maintains, heavy on United v. States we With reliance petitioner strong as were as (6th Cir.1992), the Minsky, 963 F.2d 870 appellate counsel petitioner’s note is argues prosecution that that the petitioner the benefit of have had not would exculpatory to disclose evidence petitioner’s required filed the when he precedent fact, the timely enough In when to allow defense in 1990. a fashion brief appellate was appeal, into the substance of those investigation his direct there petitioner filed in- precluding petitioner, the effect that According accusations. precedent to accusations does rape accu- quiry subsequent into unrelated the disclosure of the See¡ day the Confrontation Clause. of trial was not offend sations on second the Bartlett, F.2d v. States e.g., untimely gross United and it was a error plainly (8th Cir.1988). peti- The 1087-89 alleg- not to assert such an for his counsel well have may counsel appellate tioner’s edly obvious claim. that eases and these decided examined maintains that the respondent pre- The the arguments than stronger

there were Brady pro claim in the se sentation of the Thus, a while Clause claim. Confrontation not the appellate brief does excuse done other- lawyer might have different procedural According tioner’s default. wise, appel- petitioner’s of the the decision Appeals the Ohio Court of respondent, the his not to assert Confrontation late counsel of dismiss- gave petitioner option the the and was not unreasonable claim Clause relying on ing his to conclude that he no for us affords basis brief, option in his presented the claims in the functioning as “counsel” “made the considered deci- petitioner the Jones, See Amendment sense. Sixth sion” not to exercise. 750-54, 3308. Conse- 103 S.Ct. at next that McMe- respondent argues The jurisdiction to re- are without quently, we only an ineffective assis presented ans petitioner’s argu- of the the view merits in his counsel claim tance of ments. Citing Picard Con Mumahan motion. 275-76, nor, B. (1971), respondent argues the L.Ed.2d 438 next that dis- argues petitioner claim that one constitutional asserting that it held he erred when trict court predicate factual with shares a common on his claim. Brady defaulted procedurally presentation another is not sufficient purported three petitioner presents procedural previous the latter to excuse procedural court’s de- in the district flaws default. First, holding. proposes he fault contends that Finally, respondent right to sub- there a constitutional exists its complies with as a state cases such ap- brief on direct pro mit a se if the exculpatory evidence duty to disclose theory petitioner’s It is the peal. a confidential file judge trial reviews alleged right constitutes of this denial exculpatory evi- any camera and discloses default. procedural his “cause” to excuse during the point therein some dence Second, he argues respondent, According to the trial. in his Brady claim implicitly presented just that at the judge trial did He when motion. asserts Mumahan therefore, petitioner’s appel- Appeals ruled on the Ohio Court reasonable choice late counsel made ineffective assistance of his substance claim on direct a “feckless” present not to claim, that court had appellate counsel Brady claim. analyze merits of his proceedings, criminal state Third, In contends that under the Due obligated is prosecution appellate coun- assistance of his ineffective the Fourteenth Amend Process Clause of suf- “prejudice” “cause” and sel establishes favorable that is disclose evidence ment to default. ficient to overcome *10 684 “ ... guilt

to the accused and ‘material to tutional claims state courts would be ” Franklin, ... punishment.’ or United States v. meaningless. See 811 F.2d at 667, 674, We, therefore, Bagley, 473 U.S. 105 S.Ct. petition- 325. hold that the (citation (1985) omitted). 87 L.Ed.2d 481 argument pro- er’s lacks merit and he did if a rea- Evidence is “material” “there is cedurally on Brady default claim. that, probability sonable had the evidence defense, Regarding petitioner’s

been disclosed to the the result of conten proceeding would have been different.” tion that ineffective assistance of default, Id. at 105 S.Ct. 3375. Where state counsel excuses his we protects confidentiality pre- of records Appeals’ must defer to the Ohio Court of pared by protection agencies, child as does question. treatment of that Pursuant Ohio, Supreme the State of Court has 2254(d)(1), § 28 federal habeas re U.S.C. right held that defense counsel has no legal view of issues decided in state court inspect Pennsylvania those records. v. deciding is limited to whether the state Ritchie, 39, 59, 94 U.S. S.Ct. to, contrary court decision “was or in (1987). Instead, L.Ed.2d 40 it is sufficient of, volved an unreasonable application judge inspect for the trial records law, clearly established Federal as deter any exculpatory camera and disclose evi- by Supreme mined Court the United dence contained therein. Id. at 2254(d)(1). § States.” 28 U.S.C. “[A] 989. Generally, exculpatory S.Ct. evidence contrary state-court decision to [the is Su “in produced by prosecution must be if preme] precedent Court’s the state court Minsky, time for effective use at trial.” arrives at a conclusion opposite to 963 F.2d at 875. by question reached this Court on a law” ifor “the state court confronts facts Supreme Court has held materially indistinguishable that are from that a defendant has no constitutional Supreme precedent a relevant Court right represent himself on direct opposite arrives at a result to ours.” Appeal California, Martinez v. Court of — —, —, Taylor, Williams 152, —, 684, 692, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). Clearly, holding L.Ed.2d 597 (2000). “[A] state-court decision involves contradicts the assertion that application unreasonable of [the Su there exists a constitutional entitlement to preme] precedent Court’s if the state court a pro submit se brief on direct legal identifies the correct governing rule appeal in addition to the brief submitted from this but unreasonably Court’s cases Thus, by appointed reject counsel. we applies it to the particular facts of the petitioner’s argument that the Ohio Court prisoner’s state case” or “if the court state Appeals’ pro decision to strike his se unreasonably legal princi either extends a brief pro constitutes “cause” to excuse his ple from our precedent to a new context cedural default. apply unreasonably where it should not or persuaded by We are also not refuses that principle to extend to a new petitioner’s argument that the Ohio Court context apply.” where it should Id. at Appeals considered the merits of his —, 1520. The state court’s Brady claim when it heard his Mumahan decision cannot be contradicted under the motion. It cannot be the case application” prong “unreasonable of sec merely asserting alleged several constitu 2254(d)(1) tion unless that court’s decision tional violations which appellate counsel “objectively is unreasonable.” id. at See court, failed to raise to a state the federal —, 120 S.Ct. at 1521. jurisdiction courts have habeas to consider alleged merits of each error. If that argue does not case,

were the requirement prosecution that a ha exculpatory failed disclose Rather, petitioner “fairly present” beas consti- evidence. maintains *11 have ar C. appellate counsel should that his untimely. The that disclosure was gued that, petitioner contrary The contends to Appeals appellate held that Court Ohio court, opinion of the district the federal argu not raise this counsel’s decision jurisdiction courts habeas to review gross an error so as to ment was not juror In support bias claim. of that contention, petitioner to a Sixth Amendment violation. reasserts the de- amount nial alleged of his constitutional entitle- in particular alleged this case Because ment to a pro appellate submit se brief. appellate assistance of counsel is effective argues again He also that the Ohio Court “materially indistinguishable from not Appeals juror considered his bias claim Supreme precedent,” we relevant Court when it heard his Mumahan motion. For that the Ohio court’s deci hold discussed, already reject reasons we those “contrary clearly to ... es sion was not arguments. at —, See id. tablished Federal law.” alternative, petitioner argues, The in the omitted). (emphasis at 1519 We that his appellate counsel’s failure to as- opinion are also of the the Ohio juror appeal sert bias claim on direct is of the stan application court’s Strickland yet constitutionally another instance of in- “objectively not unreasonable.” dard was adequate representation, allowing this —, at at 1521. The See id. jurisdiction court to exercise over his judge trial disclosed the evidence of Ohio claim. subsequent accusations on the Finally, petitioner’s theory it is the day of trial after in camera review second respondent judicially estopped is from action of the FCCS file. This was essen procedural default to court. arguing Supreme in what the tially compliance with According petitioner, when re- Court has held the United States Constitu spondent petitioner’s moved to dismiss the in this. requires tion cases such as See petition second habeas for failure to ex- Ritchie, 59, 107 at S.Ct. 989. The remedies, haust his state respondent petitioner does not direct our attention to argued petitioner proce- that the had not (and any evidence in the record we have durally juror defaulted on his bias claim. none) indicating found that he did not have that, petitioner contends because the “effectively.” time to use this evidence respondent alleged argument made this Minsky, See 963 F.2d 875. The Ohio dismiss, it not support its motion should that, Appeals noted after receiv Court argue procedural be allowed to default ing reports, information the FCCS now. petitioner] could have availed himself “[the As to the contention that the had hearing” “[he] in-camera wished ineffective of his coun- assistance proffer falsity evidence of the of the default, procedural sel excuses his the re- [subsequent] petitioner, accusations.” The cor- spondent argues that “the state courts however, took no action to to the prove rectly held that ... counsel was judge subsequent rape accu there constitutionally adequate because Thus, the petitioner’s sations were false. grounds asserting were for not reasonable Brady claim has obvious weaknesses claim” and this court should defer to th[at] therefore, ap cannot conclude that his we main- ruling. respondent also pellate counsel’s service fell below that judicial if estoppel tains even should Amendment which Sixth demands. petitioner de- apply the situation Consequently, fails to show scribes, present did default, “cause” to excuse his juror bias claim his second habeas holding and we affirm the district court’s Therefore, according respon- tion. juris dent, that the federal do not have any misrepre- courts it could not have made regarding particular claim. diction to review the merits of this claim. sentation *12 Amendment, of “availab[ility]” postconviction a as to the Under Sixth relief, by Washington of could not is entitled to be tried the State state defendant See, e.g., Dennis v. jury. subsequently argue procedural an default impartial 171-72, States, 162, 339 U.S. federal courts. Id. at 1038. United (1950). 519, 94 L.Ed. 734 A defen respondent hold that is We juror must be af maintaining bias dant judicially estopped arguing proce from opportunity prove actual bias. forded if inclined to dural default. Even we were (6th Killinger, 169 F.3d Nevers methodology in follow the Ninth Circuit’s Cir.), denied, 119 S.Ct. cert. Russell, not, which we are this case is (1999). 2340, 144 L.Ed.2d 237 distinguishable. by respon As noted again hold that the Ohio Court We dent, petitioner did not even raise a Appeals’ appellate decision that of juror peti bias claim his second habeas in fail commit a Strickland error did not therefore, and, respondent tion did not juror petitioner’s bias ing to assert that the Ohio any misrepresentation make “objectively was not unreasonable.” claim juror courts could or would consider the at —, Williams, 529 U.S. 120 S.Ct. See postconviction pro claim in a state bias no fault of Through at 1521. Thus, ceeding. there is no inconsistent counsel, transcript pro no of the voir dire respondent must now position which petitioner’s because the ceedings existed adhere. transcription trial counsel waived of think that the proceeding. petitioner We D. successfully his right

could have asserted juror if prove only actual bias there was petitioner argues that he is entitled an infer support some credible evidence denied the habeas relief because he was bias. The potential ence of of trial effective assistance counsel. counsel, however, had no such by sole error of trial counsel asserted cannot fault Consequently, evidence. we petitioner is counsel’s failure to exercise his decision not to assert an unsubstantiat peremptory challenges unused to remove quarrel claim or with the Court of ed Ohio jurors. Accord- allegedly the two biased re Appeals’ decision ing petitioner, this inaction coun- constitutionally adequate assistance ceived perfor- sel demonstrates that “counsel’s Thus, counsel. way objective mance fell the ... below “cause” to adequate fails to demonstrate standard reasonableness.” The default there excuse that, jury also maintains because his tioner fore, we cannot review his claim. members, allegedly had two biased judicial estoppel The doctrine of cannot and conviction be deemed reliable in party taking position forbids a from has, therefore, “prejudice” he established un successfully consistent with one under the Strickland standard. by that equivocally party asserted same To establish a claim for ineffective proceeding. an earlier Warda v. Commis Revenue, counsel, sioner Internal 15 F.3d assistance of a defendant must (6th Cir.1994). Rolfs, performance In Russell v. show that his counsel’s was (9th Cir.1990), constitutionally F.2d 1033 the Ninth deficient and that counsel’s judicial applied performance prejudicial. the doctrine of es deficient was Circuit Strickland, it toppel Washington to the State of after 466 U.S. at 104 S.Ct. 2052. If an argued prisoner pur alleged “prejudicial],” had that a needed to error was not “adequate post- sue an and available” state federal court need not determine wheth remedy in er counsel’s seeking performance conviction before relief constitution ally court. Id. at 1037. That court deficient. See id. at federal ruled because of its earlier assertion 2052.

Although petitioner did raise a Petitioner claims prosecution’s claim of ineffective assistance trial coun failure to timely produce evidence of the sel on direct he did appeal, not refer to his victim’s prior rape allegations violated his trial counsel’s decision not to remove the Sixth Amendment right to confrontation. two allegedly jurors biased as an The majority instance concluded that Petitioner did He error. did not refer alleged to this not fairly present his Sixth Amendment error until he submitted subsequent mo *13 claim to the Ohio state courts and as a tions to time, the Ohio By courts. consequence, waived the claim for federal Ohio courts held that the issue of the habeas review. A prisoner state seeking ineffectiveness counsel ju was res federal habeas relief “fairly presents” the As with dicata. the rest of substance of each courts, claim to state as claims, we, therefore, may not review required, this by citing applicable provisions of argument petitioner unless the can Constitution, demon federal using decisions “cause” “prejudice” strate and to overcome analysis, constitutional or state decisions procedural default. See Murray, employing 477 constitutional analysis in simi- 485, 106 at U.S. S.Ct. 2639. lar fact patterns. See 28 U.S.C. 2254(b); § Bell, Carter v. 581, 218 F.3d petitioner, however, not pres- does (6th Cir.2000). 606-07 Because Petitioner any ent us with reason why we should not cited the Sixth Amendment in his state respect application judicata of res by court appeal, and because the Ohio Court the Ohio courts. After having thoroughly of Appeals understood that Petitioner was record, reviewed the we conclude that he asserting his Sixth right Amendment to cannot “prejudice” establish to excuse his confront a witness as evidenced procedural default. The against evidence language used in opinion, its I believe that both substantial for “fairly presented” Petitioner his confronta- the most part, We, therefore, credible. tion claim to the Ohio state courts. I fail to see how seating of two allegedly therefore believe the majority should jurors biased undermines the reliability of reached the merits of Petitioner’s Sixth the petitioner’s conviction. Consequently, Amendment claim. we jurisdiction have no to review the tioner’s argument. narrow Although the majority is in con correct

cluding that Petitioner procedurally de faulted claim, on his Brady a review of III. claim Petitioner’s is not so long foreclosed as he can “demonstrate cause reasons, For for de foregoing the order and fault and actual prejudice as a result of the opinion of the district court are AF- alleged violation of federal law.” Coleman FIRMED. 722,

v. Thompson, 501 U.S. 111 S.Ct. 2546, 115 (1991). L.Ed.2d 640 A petitioner CLAY, Judge, Circuit concurring part can generally demonstrate cause if he can dissenting part. and present a substantial reason to excuse the I agree with the majority’s Zent, conclusion default. See Rust v. 17 F.3d that Petitioner (6th procedurally Cir.1994). defaulted his Murray Carrier, In v. juror bias claim and did not demonstrate the Supreme Court stated that “the exis prejudice cause and proce- excuse the tence of procedural cause for default must However, dural default. I disagree with turn ordinarily on whether the prisoner the majority’s conclusion that can Petitioner objective show that some factor exter did not “fairly present” his Sixth nal to Amend- impeded defense ef counsel’s ment claim to courts, the Ohio state as comply well forts to with procedural the State’s as with the majority’s disposition of Peti- rule.” 486-89, Brady tioner’s claim. (1986). Thus, L.Ed.2d 397 inef- on direct Brady claim raise a can constitute of counsel assistance

fective ren thus counsel appellate Petitioner’s id. cause.1 See con of counsel assistance dered ineffective refusal of argues Petitioner See the default. to excuse stituting cause Brady violation raise a counsel appellate 1508, 1515 54 F.3d Reynolds, v. Banks in ineffective resulted appeal his direct on Cir.1995) (10th (holding thereby assistance Brady claim failed to raise counsel who de- for the constituting cause assistance ineffective rendered regarding choices Although tactical fault. Carrier, 477 counsel); see also properly left are appeal on issues raised 486-89, 106 2639. of coun- judgment professional the sound F.2d Perry, prong sel, prejudice actual Turning States see United standard, well (6th Cir.1990), the factu- it is upon based prejudice the cause case, and the lack failure prosecution’s al circumstances established *14 Petition- ma- against and overwhelming evidence that is favorable of disclose evidence of objective standard er, the a it was below violates defen- guilt issue of to the terial to counsel not Brady v. for process. reasonableness See to due right dant’s 1194, di- Petitioner’s Brady 83, 87, violation on a raise 83 S.Ct. Maryland, 373 U.S. Here, (1963). rect the record 215 10 L.Ed.2d of for a determination not allow does indicates, prior the two the record As actually prejudiced Petitioner was whether to light come rape of did not allegations Brady raise the failure to by his counsel’s vic- trial. The day of first until after the to is insufficient because the record claim raped by her had been alleged that she tim rape allega- prior whether the determine 1988 April in of and boyfriend girlfriend’s counsel did false. Defense tions were in of man June year old by thirty-eight a However, hearing. in camera request an untimely disclosure to the 1988. Due requested hearing been an camera had Petition- by government, the this evidence al- finding a the yielded it and had veracity of to determine er was unable two against allegations rape result, leged victim’s aAs allegations. the victim’s false, Brady viola- then were other men prior to allow the trial court refused de- Petitioner was because occurred tion impeach into evidence allegations that [could use of “evidence nied the under victim because credibility aof credibility impeach Law, used prior rape been] alle- Rape Ohio Shield States, witness[,]” v. United see Schledwitz at brought out trial not be gations could Cir.1999), (6th 1003, thus 1012 Rev. 169 F.3d See Ohio they were false. unless prejudice Petitioner. 2907.02(D). resulting in actual § Because Peti- Ann. Code to determine possible it is not Inasmuch as was aware of the appellate counsel tioner’s alle- prior rape veracity of the victim’s government untimely disclosure us, I record before would gations on repercussions resulting prejudicial and the court with instruc- the district remand to Petitioner, objectively it unreason- was hearing to evidentiary hold an tions to counsel not for Petitioner’s able grossly appellate counsel that his recently claim Supreme held when Court 1. The Brady to the failing claim upon to raise his ineffectiveness relies erred in proce court; appealed cause to excuse his decision as counsel claim he default, of counsel the ineffectiveness Appeals; applica dural filed an Ohio Court have been exhausted before claim must itself appeals appeal the court of leave to tion for comply with the in order to the state courts Court, Supreme to the Ohio but decision 478, Carrier, Murray v. commands Therefore, Carpenter application was denied. (1986). 2639, 397 91 L.Ed.2d 106 S.Ct. Petitioner exhausted has been satisfied U.S. Carpenter, 529 v. See Edwards seeking feder before court remedies his state 1591-92, — - —, L.Ed.2d 146 at —, 120 See habeas relief. al hand, (2000). pursuant to case In the S.Ct. at 1592. motion, presented he Murnahan Petitioner's prior rape allega- determine whether the so,

tions in fact false. If were Petitioner prejudiced by his counsel’s failure to claim, Brady

raise the violation thereby

providing a sufficient basis excuse his Coleman,

procedural default. See

U.S. at 2546. addition,

In if prior rape allegations false,

were found to have been I would find

Petitioner’s right Sixth Amendment to con-

front his accuser was violated but for this Collins, holding Boggs

Court’s recent (6th Cir.2000).

226 F.3d 735-40 In a this,

case such as physical where the evi-

dence is far compelling, from and the de- guilt

termination of or innocence turns

upon credibility of the victim and the

accused, it is all the more important that a right

defendant have the to confront his

accuser. reasons,

For foregoing I would con-

ditionally grant petition by the habeas or-

dering the Petitioner’s release unless the

State on remand evidentiary conducts an

hearing to determine whether prior

rape allegations actually were If false. false, allegations proven are Petition- application

er’s for the writ should be

granted and a new trial ordered. WASHINGTON,

Rufus Petitioner-

Appellant, HOFBAUER, Respondent-

Gerald

Appellee.

No. 98-2250. Appeals,

United States Court of

Sixth Circuit.

Argued: March

Decided and Filed: Oct.