Montgomery v. Bobby

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0228p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellee/Cross-Appellant, -
WILLIAM T. MONTGOMERY,
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Nos. 07-3882/3893
v.
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Respondent-Appellant/Cross-Appellee. -
DAVID BOBBY, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 00-07298—Solomon Oliver, Jr., Chief District Judge.
Argued: June 9, 2010
Decided and Filed: August 22, 2011
Before: BATCHELDER, Chief Judge; MERRITT, MARTIN, BOGGS, MOORE,
COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE,
GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.*
_________________
COUNSEL
ARGUED: Benjamin C. Mizer, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Richard M. Kerger, KERGER & HARTMAN, LLC,
Toledo, Ohio, for Appellee. ON BRIEF: Benjamin C. Mizer, Elisabeth A. Long,
Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
for Appellant. Richard M. Kerger, KERGER & HARTMAN, LLC, Toledo, Ohio, Lori
Ann McGinnis, Mount Gilead, Ohio, for Appellee.
GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
BOGGS, GILMAN, GIBBONS, ROGERS, SUTTON, MCKEAGUE, GRIFFIN, and
KETHLEDGE, JJ., joined, with BATCHELDER, C. J. (pp. 26–31), delivering a separate
concurrence and WHITE, J. (pp. 32–33), delivering a separate opinion concurring in the
judgment. MERRITT, J. (pp. 34–39), delivered a separate dissenting opinion, in which
Judge MARTIN joined, with MARTIN, J. (p. 40), also delivering a separate dissenting
opinion. CLAY, J. (pp. 41–69), delivered a separate dissenting opinion, in which
MOORE and COLE, JJ., joined.

*
The Honorable Deborah L. Cook, Circuit Judge, took no part in the consideration or decision
of the case.

1
Nos. 07-3882/3893 Montgomery v. Bobby Page 2

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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. In this death penalty case, Warden
David Bobby appeals the district court’s order granting William T. Montgomery’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and its denial of the
State’s subsequent motion to reconsider that order under Federal Rule of Civil Procedure
59(e). See Montgomery v. Bagley, 482 F. Supp. 2d 919 (N.D. Ohio 2007). Although
Montgomery asserted forty-eight grounds for relief in the petition, the district court
granted the writ based upon a single ground: the State’s non-disclosure of an
exculpatory pretrial police report, in which several witnesses claimed to have seen one
of the victims alive several days after her alleged murder, violated the Supreme Court’s
precedent in Brady v. Maryland, 373 U.S. 83 (1963). Montgomery, in turn, cross-
appeals the district court’s denial of his petition on several alternative grounds, including
the trial court’s retention of a juror undergoing psychiatric treatment, the trial court’s
denial of Montgomery’s motion to change venue in light of negative pretrial publicity,
and the State’s non-disclosure of other allegedly exculpatory evidence. For the reasons
that follow, we reverse the district court’s issuance of the writ of habeas corpus and
affirm the district court in all other respects.

I.

On the morning of March 8, 1986, the police found Cynthia Tincher’s body in
her car at the corner of Angola and Wenz Roads in Toledo, Ohio. She had been killed
by a single gunshot wound to the head. On the same morning, when Tincher’s
roommate, Debra Ogle, failed to appear for work, the police listed Ogle as missing. The
police located Ogle’s abandoned car the following day, although no sign of Ogle existed.
On March 11, 1986, acting on a tip from a jailhouse informant, Michael Clark, the police
located and questioned Glover Heard in connection with the murder of Tincher and the
disappearance of Ogle. At approximately 2:30 p.m. that afternoon, the police brought
Heard to the station house, where he provided an initial statement, offering the name of
Nos. 07-3882/3893 Montgomery v. Bobby Page 3

Edward Bruce Ellis as an alibi witness. When interviewed about Heard’s alibi on March
11, Ellis, in turn, gave the police the name of the petitioner, William Montgomery.

At about noon on March 12, 1986, while Ogle still remained missing, the police
located Montgomery at the home of his uncle, Randolph Randleman. Montgomery
stated that he knew the police were looking for him and that he wanted to discuss the
homicide. The police then arrested Montgomery pursuant to an outstanding forgery
warrant and brought him to the station house, where he was questioned about the death
of Tincher and disappearance of Ogle. During the interview, Montgomery admitted that
his gun, a Bersa .380-caliber semi-automatic pistol, was the murder weapon. In his
initial statement, Montgomery claimed that, following a night of drinking, he gave Heard
the pistol in the early morning hours of March 8 for Heard’s self-protection on his walk
home. Montgomery further claimed that Heard had returned the gun to him later that
morning with an empty six-round clip and told Montgomery that Heard had shot and
killed both Tincher and Ogle. Montgomery stated that Heard had not disclosed the
location of Ogle’s body. During subsequent questioning that afternoon, Montgomery
changed his statement, admitting that he and Heard had taken a taxi to Tincher and
Ogle’s apartment on Hill Avenue on the morning of March 8, where they asked Ogle for
a ride home. Montgomery stated that Ogle provided a ride to both men after she finished
getting ready for work and dropped Montgomery off at his apartment first. He
maintained, nevertheless, that Heard had killed both women with his Bersa .380, which
Heard had borrowed.

During questioning, Montgomery insisted that, if the police recovered his gun,
they would find that it was, in fact, the murder weapon that Heard had used. In an effort
to locate the gun, the police permitted Montgomery to make several phone calls. After
the calls, Montgomery’s mother, Caroline Jones, called the police station and arranged
to meet an officer at the Way-Lo gas station near the airport at approximately 6 p.m.
Upon meeting the officer, Jones turned over a bag containing a loaded .380-caliber semi-
automatic pistol.
Nos. 07-3882/3893 Montgomery v. Bobby Page 4

On the evening of March 12, 1986, the police formally charged Montgomery
with the aggravated murder of Tincher. At this point, Montgomery informed the police
that he could help them locate Ogle’s body near a market on Hill Avenue. Although he
continued to implicate Heard as the killer—and stated that Heard had driven him by the
location of Ogle’s body—Montgomery directed the police to a wooded area separated
by a field off of Hill Avenue, which he identified as the location. As Montgomery
waited in the patrol car with Sergeant Larry Przeslawski, officers began searching the
wooded area to the left of the field. Montgomery then told Sergeant Przeslawski to
instruct the officers to search the wooded area to the right of the field, where Ogle’s
body was recovered.

On March 25, 1986, the Lucas County Grand Jury returned a two-count
indictment charging Montgomery with the aggravated murders of Ogle and Tincher
while committing or attempting to commit aggravated robbery, in violation of Ohio Rev.
Code Ann. § 2903.01(B) (West 2002). On September 29, 1986, the case proceeded to
a jury trial, in which the State argued that Montgomery murdered Ogle while robbing
her with the use of a deadly weapon and, in a continuous criminal enterprise, then
murdered Tincher, as she was the only person who could place Montgomery with Ogle
that morning. To support this theory, the State presented thirty-two witnesses, including
several police officers and Heard, who had also been indicted for the aggravated murders
of Ogle and Tincher, but who pled guilty to one count of complicity to murder. At trial,
the State presented the following evidence through witness testimony and exhibits:

• Montgomery had purchased a .380 caliber semi-automatic pistol and
ammunition just weeks before the murders . . . [and] was wearing a dark
hooded jacket with the hood tied tight around his face when he entered
the gun shop to purchase the pistol;
• Montgomery and [Tincher and Ogle] were acquaintances . . . [and]
[b]oth young women were alive the night of March 7th and the early
morning hours of March 8th;
• Montgomery, Heard, another friend, Bruce Ellis, and Montgomery’s
then girlfriend, Louren, went out drinking on the night of March 7th;
....
Nos. 07-3882/3893 Montgomery v. Bobby Page 5

• Montgomery was wearing a blue pin striped suit jacket and jeans that
night;
• Later in the morning of March 8th, Montgomery, Louren, and Heard
went to Montgomery’s uncle’s house, where a very drunk Montgomery
was arguing with Louren until his uncle broke it up;
• After defusing the argument, Montgomery’s uncle, Randleman, took a
gun away from Montgomery and put it and its clip on top of the
refrigerator;
....
• Montgomery and Heard then left the Randleman residence, both
passing through the kitchen where the gun was on top of the refrigerator,
to get in a cab;
• Montgomery was armed with a .380 caliber pistol the morning of
March 8th;
• The cab took Montgomery and Heard to Ogle and Tincher’s apartment
on Hill Avenue at Montgomery's direction, [where] . . . [b]oth
Montgomery and Heard entered the apartment;
• Ogle was getting ready to go to work and Tincher, although she popped
out to say hello, was still in bed;
• Ogle agreed to give Montgomery and Heard a ride to Montgomery’s
mom’s apartment on Airport Road;
• Montgomery, sitting in the front seat, gave Ogle the directions and
eventually told her to stop on the side of the road on Hill Avenue;
• Ogle and Montgomery got out of her car and walked roughly forty
yards into a field or wooded area off Hill Avenue;
....
• Heard heard two gunshots [and] . . . saw Ogle’s body laying on the
ground;
• Montgomery rushed back to Ogle’s car and motioned for Heard to get
in the front passenger’s seat as Montgomery got into the driver’s seat . . .
[and] drove Ogle’s car back to the victims’ apartment complex;
• Montgomery picked a gun up off the floor of the car, exited the vehicle,
and told Heard to take the car;
• Heard then left in the car and took Ogle’s wallet as he abandoned the
car roughly one block from his home;
Nos. 07-3882/3893 Montgomery v. Bobby Page 6

• A black person wearing a dark hooded jacket with the hood tied tight
around her or his face left Tincher’s car the morning Tincher was found
at Angola and Wenz Roads;
• On March [8]th, Montgomery, with Heard and [friends Eric Wilson and
Sidney] Armstead, took the blue pin striped suit jacket he wore the night
before to the cleaners;
• The gun Randleman put on top of the refrigerator was not there the next
morning, March [8]th[,] [and] . . . [a] bullet, consistent with the type that
could be used in Montgomery’s gun which was identified as the murder
weapon, was found in Tincher’s room in Tincher and Ogle’s apartment;
• Ogle’s car was found roughly one block from Heard's home by police
on March 9th[,] [and] . . . Ogle’s wallet was found in Heard's dresser
drawer;
• A black hooded jacket and a semi automatic pistol manual were found
in Montgomery’s mother’s apartment;
• Tincher died from a gunshot wound to the head, which entered from the
right side (passenger side since Tincher was sitting in the driver’s seat of
her car)[,] [and] . . . Ogle died from a gunshot wound to the head;
• All the discharged bullets and casings at both scenes were fired from
the .380 caliber semi automatic pistol that Montgomery’s mother gave
police, which was the same gun Montgomery purchased just weeks
earlier—the .380 caliber Bursa [sic] semi automatic pistol; and
• Montgomery led the police to the wooded area where Ogle’s body was
discovered.

Montgomery, 482 F. Supp. 2d at 927–28 (internal record citations omitted).
Additionally, employees of One Hour Martinizing, the dry-cleaning business where
Montgomery allegedly deposited the pin-striped suit jacket for cleaning, testified for the
prosecution. State v. Montgomery, No. L-98-1026, 1999 WL 55852, at *2 (Ohio Ct.
App. Feb. 5, 1999). Although they could not identify Montgomery, the dry-cleaning
employees testified that on March 8, 1986, a black male brought in a soaking wet, dark
blue pin-striped suit jacket to be cleaned in one hour. Id. The employees hung the
jacket to dry, explaining that it would need to dry before it could be cleaned. Id. In her
trial testimony, one employee remarked that the jacket was stained on both the outside
and the lining, made a “brownish dripping mess on the floor,” and had to be cleaned
Nos. 07-3882/3893 Montgomery v. Bobby Page 7

three times with a chemical cleaner to remove the stains, which she could not identify.
Id. Police later obtained the jacket, which Randleman identified as the one that he had
loaned to Montgomery. Id.

In his defense, Montgomery’s counsel did not present any witnesses but rather
attempted to raise reasonable doubt as to Montgomery’s guilt by cross-examining and
impeaching the State’s witnesses. Defense counsel focused particularly on impeaching
Heard’s testimony, which counsel described as “the crux of the state’s case.” First, the
defense impeached Heard by demonstrating that he had pled guilty to complicity to
murder and agreed to testify pursuant to a deal, under which the State dropped two
aggravated murder charges and a charge of gross sexual imposition involving a five-year
old. Second, during the cross-examination of Detective Arthur M. Marx, the State’s
chief investigative officer, defense counsel elicited testimony that Marx had told Heard
that he could not have seen Ogle’s body from his position in the car following the
gunshots. Third, the defense emphasized during cross-examination that Heard had given
the police various, conflicting accounts of the murders: (1) he contended that he knew
nothing about the murders; (2) he implicated Montgomery as the killer; (3) he stated that
he had observed a drug dealer driving Ogle’s car down an alley; and (4) he said that an
unknown black male at a carwash mentioned that two white women had been killed.
Fourth, the defense noted that, although Heard testified as to having heard two gunshots
in connection with Ogle’s death, the coroner stated that Ogle’s body had three gunshot
wounds. Finally, as to the robbery motive, Heard admitted during cross-examination
that, due to the cold, he planned to take Ogle’s car regardless of Montgomery’s
instructions to do so and that they had not discussed robbing anyone that night. Sergeant
Przeslawski also testified that Ogle’s car was found behind an abandoned house near
Heard’s home and that Ogle’s wallet was recovered from Heard’s dresser drawer.

Beyond impeaching Heard, defense counsel highlighted several additional flaws
in the prosecution’s case. For example, defense counsel noted that none of the witnesses
who saw the person fleeing the area where Tincher’s body was found could determine
that person’s gender, nor could they ascertain the color of the hooded jacket. The
Nos. 07-3882/3893 Montgomery v. Bobby Page 8

defense also noted that Montgomery did not have a hooded jacket with him on the
evening of March 7, 1986, and that Montgomery had money with him that night, thus
calling into question his motive to steal Ogle’s car. Moreover, when leaving
Randleman’s home, both Montgomery and Heard passed through the kitchen where the
pistol that Randleman took from Montgomery was located. No fingerprints were found
on either the murder weapon or on the cars belonging to Ogle and Tincher. Finally,
notwithstanding other factual inconsistencies in his account of the murders, Montgomery
consistently implicated Heard as the killer and stated that Heard had shown him the area
where Heard had killed Ogle.

At the conclusion of the trial, the jury convicted Montgomery of the aggravated
murder of Ogle, with the specifications that the murder involved the purposeful killing
of two or more persons and that Montgomery was the principal offender while
attempting to commit aggravated robbery. The jury also convicted Montgomery of the
murder of Tincher. Following the mitigation phase, the jury recommended that
Montgomery be sentenced to death, and the trial court concurred with this
recommendation, ordering Montgomery’s execution.1

II.

After his conviction was upheld on direct appeal by the Ohio Supreme Court,
Montgomery submitted seventy claims for post-conviction relief in state court, which
were denied after the State successfully sought summary judgment. The Ohio Court of
Appeals reversed and remanded on the ground that the trial court failed to provide
Montgomery an adequate opportunity to respond to the State’s motion. Although
Montgomery was permitted to respond on remand, the trial court again denied his claims
for relief, and the Ohio Court of Appeals affirmed this decision. In particular, the Ohio
Court of Appeals rejected Montgomery’s fiftieth claim for relief, in which he argued that

1
The dissent challenges the majority’s recitation of the factual record and accuses the majority
of “glossing over the veracity and credibility problems affecting several pieces of inculpatory evidence.”
From there, the dissent undertakes a de novo review of the record, citing its obligation to “grapple with a
case’s relevant facts as found by the state court.” We have reviewed the record with due deference to the
state court and reject the dissent’s approach of reweighing evidence that was presented to and considered
by the jury—an approach that is not in accord with AEDPA’s constraints.
Nos. 07-3882/3893 Montgomery v. Bobby Page 9

the State wrongfully withheld an exculpatory pretrial police report concerning Ogle,
taken at a time when Ogle was still considered missing. See Montgomery, 1999 WL
55852, at *8. The police report, which indicated that it was taken on March 12, 1986,
at 2:30 a.m., stated that David Ingram and several other witnesses—who were all high
school classmates of Ogle—had seen her alive in her apartment complex parking lot at
approximately 1:20 a.m. on March 12. The report read in pertinent part:

[Ingram] stated that he and several friends were at the Oak Hill
apartments on Hill when they saw a Blue Ford Escort with Debbie Ogle
driving around the complex. Later they again saw her as a passenger in
the same auto. Debbie Ogle waved to them as they knew her from
Rogers High School. She was with [a] white male with long side burns
[sic]. She did not appear distressed.

Id.

The Ohio Court of Appeals rejected this claim, remarking that, although Ogle
was considered missing at the time of Ingram’s report, “her car had been discovered
abandoned behind a home several blocks from the home of the co-defendant Glover
Heard.” Id. The court further stated that:

The lower court concluded that this isolated information, recorded in the
course of an ongoing investigation when all of the facts were still being
pieced together and in the face of overwhelming evidence presented at
trial that Ogle had been killed on March 8, 1986, did not undermine
confidence in the outcome of the trial. We agree and conclude that the
trial court did not err in dismissing the fiftieth claim for relief.

Id. The Ohio Court of Appeals also rejected all other grounds for post-conviction relief,
and the Ohio Supreme Court declined review of that decision.

Having exhausted his avenues for post-conviction relief in state court,
Montgomery then filed a petition for a writ of habeas corpus in the United States District
Court for the Northern District of Ohio, in which he alleged forty-eight grounds for
relief. The district court reviewed each ground and eventually denied all of
Montgomery’s claims except for the alleged Brady violation, which was premised upon
the undisclosed police report. Montgomery, 482 F. Supp. 2d at 1000–02. In evaluating
Nos. 07-3882/3893 Montgomery v. Bobby Page 10

the Brady claim, the district court concluded that the State had indeed suppressed the
police report, which emerged six years after the trial and only pursuant to a Freedom of
Information Act request by the defense for police records. Id. at 971. Moreover, the
district court found the report exculpatory because the alleged sightings of Ogle on
March 12, 1986, undermined the prosecution’s theory that she had been murdered on
March 8 and could have impeached Heard’s testimony. Id. Finally, the district court
determined that Montgomery suffered prejudice, opining “that the withheld police report
could have undermined Heard’s testimony, which was the core of the State’s case.” Id.
at 978. Thus, finding the report material under Brady, the district court issued a
conditional writ of habeas corpus on this basis. Id. at 1002.

Following the issuance of the writ, a Toledo newspaper printed a story about the
case, which noted that the district court’s decision was based upon the undisclosed police
report. Upon hearing the news, three of the witnesses responsible for the report,
including Ingram, called the Toledo Police Department to retract their earlier statements.
They stated that the woman they had seen on March 12, 1986, was not Debra Ogle but
rather was her younger sister, Dianna Ogle. After the witnesses signed sworn affidavits
to this effect, the State filed the affidavits and a Rule 59(e) motion, requesting the district
court to reconsider Montgomery’s writ on the basis of newly discovered evidence. The
district court denied the Rule 59(e) motion, finding that the affidavits did not qualify as
newly discovered evidence under Rule 59 and thus were not properly before the court.

III.

Because Montgomery filed his petition for a writ of habeas corpus after the
effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we
review de novo the district court’s conclusions on issues of law and on mixed questions
of law and fact and review its factual findings for clear error. Armstrong v. Morgan, 372
F.3d 778, 781 (6th Cir. 2004). Pursuant to AEDPA, a federal court shall not grant a
habeas petition with respect to any claim that was adjudicated on the merits in the state
court unless the adjudication resulted in a decision that: (1) was contrary to, or involved
an unreasonable application of, clearly established federal law as determined by the
Nos. 07-3882/3893 Montgomery v. Bobby Page 11

Supreme Court; or (2) was based on an unreasonable determination of the facts in light
of the evidence presented to the state courts. See 28 U.S.C. § 2254(d); Irick v. Bell, 565
F.3d 315, 319–20 (6th Cir. 2009). “Under the ‘contrary to’ clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause,
a federal habeas court may grant the writ if the state court’s application of clearly
established federal law to the facts of the prisoner’s case was objectively unreasonable.
Id. at 409–11.

The Supreme Court has made clear that § 2254(d), as amended by AEDPA, is a
purposefully demanding standard. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(“If [§ 2254(d)] is difficult to meet, that is because it was meant to be.”). And, although
§ 2254(d) “reflects the view that habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems,” it does not function as a “substitute for ordinary
error correction through appeal.” Id. (internal quotation marks omitted). Rather, to
obtain relief, the state criminal defendant “must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786–87. This “highly deferential standard for
evaluating state-court rulings . . . demands that state-court decisions be given the benefit
of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal citation and
quotation marks omitted).

In construing the meaning of “unreasonable application” in § 2254(d)(1), the
Court has emphasized that “an unreasonable application of federal law is different from
an incorrect application of federal law.” Williams, 529 U.S. at 410; accord Harrington,
131 S. Ct. at 785; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). Moreover, the Court has
admonished that a reviewing court may not “treat[] the reasonableness question as a test
of its confidence in the result it would reach under de novo review” and that “even a
Nos. 07-3882/3893 Montgomery v. Bobby Page 12

strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Harrington, 131 S. Ct. at 786; Renico, 130 S. Ct. at 1862 (stating that
§ 2254(d)(1) “creates ‘a substantially higher threshold’ for obtaining relief than de novo
review” (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007))). It is with these
principles in mind that we review Montgomery’s claims.

A.

The State challenges the issuance of the writ of habeas corpus on three grounds:
(1) that the police report was not material to the disposition of Montgomery’s trial
because, even if he had been privy to the report, he cannot show a reasonable probability
that the result of his trial would have been different; (2) that the district court did not
properly defer to the state courts’ resolution of Montgomery’s Brady claim; and (3) that
the police report is not evidence within the meaning of Brady. As to the first claim, the
Ohio Court of Appeals determined that the undisclosed police report was not material
to Montgomery’s guilt or innocence because, “in face of [the] overwhelming evidence
presented at trial that Ogle had been killed on March 8, 1986,” the report did not
undermine confidence in the outcome of the trial. Montgomery, 1999 WL 55852, at *8.
This decision, the State argues, neither contravened nor unreasonably applied clearly
established federal law. In reply, Montgomery contends that habeas was properly
granted because the State withheld an exculpatory police report, and Montgomery
suffered prejudice.

Although Montgomery argues that the district court “correctly conducted a de
novo review of the [Brady] claim,” in a habeas case, as here, review by the federal courts
is limited. In this case, the State maintains that “[i]t is undisputable that the Ohio Court
of Appeals applied the proper constitutional standards” and that “there [do] not appear
to be any cases in which the Supreme Court has . . . reached a different result based on
materially indistinguishable facts.” Montgomery does not challenge this argument. Nor
do the parties contend that the state court’s decision was based upon an unreasonable
determination of the facts in light of the evidence. Thus, under AEDPA, our review of
the state court’s decision is limited to whether the Ohio Court of Appeals unreasonably
Nos. 07-3882/3893 Montgomery v. Bobby Page 13

applied Brady to the facts of Montgomery’s case. See Williams, 529 U.S. at 413 (“Under
the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle . . . but unreasonably applies
that principle to the facts of the prisoner’s case.”). We conclude that the Ohio Court of
Appeals did not unreasonably apply Brady when it rejected Montgomery’s claim based
upon the undisclosed police report.2

In Brady, the Supreme Court held that a criminal defendant’s due process rights
are violated if the prosecution suppresses exculpatory evidence that is material to the
defendant’s guilt or punishment. 373 U.S. at 87; Strickler v. Greene, 527 U.S. 263, 280
(1999). The law in Brady applies regardless of whether the defendant has expressly
requested such evidence and encompasses both exculpatory and impeachment evidence.
Strickler, 527 U.S. at 280 (internal citations omitted). In this respect, the Brady due
process rule complements the criminal defendant’s Sixth Amendment right to a trial by
an impartial jury and preserves the criminal trial as “the chosen forum for ascertaining
the truth about criminal accusations.” Kyles v. Whitley, 514 U.S. 419, 440 (1995).

In order to establish a violation of Brady, Montgomery must show that the
following three requirements are met: “The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler, 527 U.S. at 281–82. In terms of the first requirement, the
pretrial police report—which indicated that several witnesses had seen one of
Montgomery’s alleged victims alive four days after the State argued that he killed
her—is favorable to Montgomery because it casts doubt on the State’s theory of the case.
As for the second requirement, it is undisputed that this pretrial police report was
suppressed by the State. Indeed, Montgomery was not aware of it until six years after
his trial, when it was disclosed pursuant to a formal request for police records. In terms
of the third requirement for a Brady violation, however, the parties dispute whether

2
Because we conclude that Montgomery was not entitled to the writ of habeas corpus on the basis
of the alleged Brady violation, we need not, and therefore do not, address the State’s remaining two issues.
Nos. 07-3882/3893 Montgomery v. Bobby Page 14

Montgomery “has established the prejudice necessary to satisfy the ‘materiality’
inquiry.” Id. at 282.

“Prejudice (or materiality) in the Brady context is a difficult test to meet . . . .”
Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002). In order to establish prejudice,
“the nondisclosure [must be] so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at
281. But, the Brady standard is not met if the petitioner shows merely a reasonable
possibility that the suppressed evidence might have produced a different outcome; rather,
a reasonable probability is required.3 Id. at 291 (stating that “[t]he District Court was
surely correct that there is a reasonable possibility that either a total, or just a substantial,
discount of [the witness’s] testimony might have produced a different result” but that
“petitioner’s burden is to establish a reasonable probability of a different result” (citing
Kyles, 514 U.S. at 434)); see also United States v. Agurs, 427 U.S. 97, 109–10 (1976)
(“The mere possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish ‘materiality’
in the constitutional sense.”). “A reasonable probability is a ‘probability sufficient to
undermine confidence in the outcome.’” Wilson v. Parker, 515 F.3d 682, 701–02 (2008)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); see also Cone v. Bell, 129
S. Ct. 1769, 1783 (2009).

In Kyles, the Supreme Court elaborated upon the materiality standard set forth
in Brady and its progeny. 514 U.S. at 434–38. There, the Court explained that Brady
materiality “is not a sufficiency of evidence test.” Id. at 434. Nor does Brady “require
demonstration by a preponderance that disclosure of the suppressed evidence would have
resulted ultimately in the defendant’s acquittal.” Id. Ultimately, “[t]he question is not
whether the defendant would more likely than not have received a different verdict with

3
The dissent faults the majority for “contrast[ing] ‘probability’ with ‘possibility’” and suggests
that this comparison “tacitly chang[es] the meaning of the word ‘probability’ in the materiality context to
require a likelihood of a different result for Brady materiality.” As an appellate court, however, our
interpretation of Brady’s requirements is—as it must be—guided by Supreme Court precedent. In citing
Strickler, we have merely noted a distinction drawn by the Court and have not set forth a modified version
of Brady’s reasonable probability standard.
Nos. 07-3882/3893 Montgomery v. Bobby Page 15

the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id. “In making this determination, we
review the evidence ‘collectively, not item by item.’” Brooks v. Tenn., 626 F.3d 878,
892 (6th Cir. 2010) (quoting Kyles, 514 U.S. at 436). And, this circuit has repeatedly
acknowledged that “[e]vidence that is merely cumulative to evidence presented at trial
is not material for purposes of Brady analysis.” Id. at 893 (internal quotation marks
omitted).

The Supreme Court has also recently clarified the obligation of a reviewing court
to consider the totality of the evidence—and not merely exculpatory facts in
isolation—when evaluating a claim of error for its prejudicial effect. In Wong v.
Belmontes, the Supreme Court stated:

In evaluating th[e] question [of prejudice], it is necessary to consider all
the relevant evidence that the jury would have had before it if [the
defense] had pursued [a] different path—not just the mitigation evidence
[the defense] could have presented, but also the [other] evidence that
almost certainly would have come in with it.

130 S. Ct. 383, 386 (2009).4 On the facts of Wong, the defense counsel’s failure to
introduce certain favorable evidence was not prejudicial to Belmontes because the
introduction of that favorable evidence would have “opened the door” to unfavorable
evidence, which ultimately outweighed the favorable. Id. at 388–89. Likewise, in
Bobby v. Van Hook, 130 S. Ct. 13, 20 (2009), the Court stated that a reviewing court,
when considering a defendant’s claim of prejudice, must evaluate the weight of
mitigating and aggravating evidence regarding the defendant’s guilt, rather than simply

4
Although Wong is a case about Strickland prejudice, it is well settled that “the test for prejudice
under Brady and Strickland is the same.” Avila v. Quarterman, 560 F.3d 299, 314 (5th Cir. 2009) (internal
quotation marks omitted); see also Jennings v. McDonough, 490 F.3d 1230, 1243 (11th Cir. 2007); Snow
v. Sirmons, 474 F.3d 693, 725 n.34 (10th Cir. 2007); Joseph v. Coyle, 469 F.3d 441, 462 n.16 (6th Cir.
2006); Clay v. Bowersox, 367 F.3d 993, 1000 (8th Cir. 2004). The Supreme Court in Strickland
acknowledged this, stating that “the appropriate test for prejudice finds its roots in the test for materiality
of exculpatory information not disclosed to the defense by the prosecution.” 466 U.S. 668, 694 (1984)
(citing Agurs, 427 U.S. at 104); see also Kyles, 514 U.S. at 436 (noting that the standard for assessing
materiality in the context of Agurs and Brady was “later adopted as the test for prejudice in Strickland”).
Nevertheless, citing Strickland’s deficient-performance prong, the dissent maintains that we have
erroneously imported the presumption of reasonableness that applies to claims asserting ineffective
assistance of counsel. We have not done so. We have not suggested that Brady’s materiality requirement
mirrors the analysis of deficient performance under Strickland.
Nos. 07-3882/3893 Montgomery v. Bobby Page 16

tallying instances of mitigation. Guided by these principles, we must determine whether
the Ohio Court of Appeals unreasonably applied Brady and its progeny in concluding
that the undisclosed police report was not material to the outcome of Montgomery’s trial.

Montgomery argues that consideration of the content of the police report
undermines confidence in his conviction. The evidence at trial, however, strongly
implicated Montgomery as the triggerman in the deaths of Ogle and Tincher. First, both
victims were shot with a .380-caliber pistol that Montgomery bought approximately two
weeks before their deaths. Second, Montgomery’s uncle saw Montgomery drunk and
in possession of the murder weapon only a few hours before Tincher was found shot
dead approximately one-half of a mile from Montgomery’s home on March 8. Third,
Montgomery admitted to being at Ogle and Tincher’s apartment on March 8, and it is
undisputed that Ogle was reported missing sometime shortly after Montgomery’s
acknowledged visit. Fourth, Montgomery was wearing a dark blue pin-striped suit
jacket during the night in question, and a few hours after Tincher was found dead and
Ogle disappeared, Montgomery took a dark blue pin-striped suit to the dry cleaners that
was soaking wet and that made a “brownish dripping mess on the floor” as it dried.
Fifth, Heard testified that he was with Montgomery and witnessed Montgomery shoot
Ogle. Sixth, on the evening of March 12, Montgomery’s mother delivered the murder
weapon to Officer Marx at a nearby Way-Lo gas station. Finally, Montgomery showed
police officers where Ogle’s body was located on March 12.

Given this strong evidence that Montgomery shot Tincher and Ogle, the question
is whether the Ohio Court of Appeals unreasonably applied Brady in its determination
that the withheld police report is not material. The Ohio court found that the vague
police report does not undermine confidence in Montgomery’s conviction. The police
report stated that in the early morning of March 12, David Ingram and several friends
“saw a Blue Ford Escort with Debbie Ogle driving around . . . . Later they again saw her
as a passenger in [the] same auto. Debbie Ogle waved to them as they knew her from
Rogers High School. She was with [a] white male with long side burns. She did not
appear distressed.” Viewed alone, this police report could cast doubt on the State’s
Nos. 07-3882/3893 Montgomery v. Bobby Page 17

theory that Montgomery killed Ogle on March 8. However, when viewed—as Wong
directs—in the context of all the evidence, including the evidence supporting the State’s
theory that Montgomery did kill Ogle, the Ohio court was clearly not unreasonable in
its determination that the report’s nondisclosure does not undermine confidence in the
verdict.

It is true, as the dissent notes, that some evidence at trial also tended to implicate
Heard. Montgomery and Heard were together on the evening of March 8, and both men
visited Ogle and Tincher’s apartment. Ogle’s wallet was later found in Heard’s house,
and her abandoned car was recovered nearby. And, Heard’s multiple accounts of the
murders certainly undermined the credibility of his testimony. The jury was aware of
all of this. Although the dissent contends that the undisclosed police report might have
tipped the balance in Montgomery’s favor by “undermining the strength of an already
shaky verdict,” we are not persuaded that the report was material to the relevant issue
at trial: whether Montgomery or Heard was the triggerman. To the contrary, the report
exonerates Heard as Ogle’s shooter because he was imprisoned by the time of the
alleged sighting on March 12.

In reaching our conclusion that the report was not material under Brady, it is
worth emphasizing several points. Foremost, Montgomery led police to Ogle’s body the
same day of the alleged sighting described in the police report. At noon on March 12,
Montgomery voluntarily sought out the police and admitted to them that both Tincher
and Ogle had been killed with his gun, though he stated that Heard had shot them. In
other words, mere hours after the alleged sighting of Ogle, Montgomery had already
confessed to the police that he had been involved in their murders and that they had been
killed with his gun. Moreover, although Montgomery maintained that Heard was the
triggerman with respect to both victims, Montgomery’s account of events, given to the
police on March 12—after the alleged sighting of Ogle but before her body was
Nos. 07-3882/3893 Montgomery v. Bobby Page 18

found—placed the murder weapon in his hands on the morning of March 8. Finally, the
report does not suggest a plausible alternative theory of the case.5

Notwithstanding the considerable evidence of his guilt, Montgomery argues that
the police report was material to his case under Brady. In asserting prejudice, he accords
great weight to the argument that the police report could have impeached Heard’s
testimony and therefore undermined the State’s theory of the case. However, with
respect to impeachment, this Court has previously remarked: “[W]here the undisclosed
evidence merely furnishes an additional basis on which to challenge a witness whose
credibility has already been shown to be questionable or who is subject to extensive
attack by reason of other evidence, the undisclosed evidence may be cumulative, and
hence not material.” Byrd v. Collins, 209 F.3d 486, 518 (6th Cir. 2000) (quoting United
States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)). In Bell v. Bell, for example, we
concluded that an informant-witness was sufficiently impeached, and that undisclosed
impeachment materials concerning a meeting between that witness and a prosecutor
were nonmaterial for Brady purposes, where “[t]he jury was apprised of [the informant-
witness’s] status and the possible other reasons for his decision to testify, namely, that
he wished to secure early parole as a result of his participation in the . . . case.” 512 F.3d
223, 237 (6th Cir. 2008) (en banc). Likewise, in Brooks, we found that an “[informant-
witness’s] credibility was effectively impeached at trial” through evidence that the
witness “had an extensive criminal history,” was a “professional snitch,” and had
“received benefits from snitching.” 626 F.3d at 893–94. We therefore determined that
undisclosed “[e]vidence of his history of mental illness would have provided additional
reasons not to credit his testimony, but would have been cumulative to the evidence
already in the record.” Id. at 894; see also Doan v. Carter, 548 F.3d 449, 460 (6th Cir.

5
The report does not, for example, suggest that a third party beyond the primary suspects,
Montgomery and Heard, committed the crime. Nor does it offer an alternative explanation as to how the
murder weapon ultimately ended up in Montgomery’s hands. Nevertheless, the dissent suggests without
elaboration that “the report sheds light on additional potential defense theories that could have been
available to Petitioner.” Under Brady, however, we must ask whether the undisclosed evidence “could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435. Here, the evidence pointed to only two suspects, Montgomery and
Heard, and Montgomery consistently implicated Heard in his statements to the police. We therefore find
that the report did not undermine confidence in the verdict based upon an undescribed “additional potential
defense theor[y].”
Nos. 07-3882/3893 Montgomery v. Bobby Page 19

2008) (stating that, “[e]ven if . . . evidence was wrongly withheld by the prosecution,”
this evidence was cumulative for the purpose of discrediting a witness “because [the
witness] had already been impeached on his extensive criminal record and drug
problems”).

Here, as in Bell and Brooks, Heard’s testimony was amply impeached at trial,
during his cross-examination and through the cross-examination of other witnesses, such
as Officer Marx. As to Heard’s potential motive in testifying, defense counsel
emphasized that Heard initially had been charged in the murders of Tincher and Ogle but
had pled guilty to complicity to murder and was required to testify against Montgomery
pursuant to his plea bargain. Thus, the jury was aware that Heard’s testimony had been
procured for his own substantial benefit, namely, the opportunity to plead guilty to a
lesser charge and receive a concomitantly lower sentence. And, the jury was aware of
Heard’s significant motive to implicate Montgomery as the triggerman.

At trial, witness testimony also linked Heard to physical evidence in the case:
Sergeant Przeslawski testified that Ogle’s wallet was found within Heard’s dresser
drawer and that her car was found near his home. Officer Marx testified that, contrary
to Heard’s account of Ogle’s murder, Heard could not have seen Ogle’s body in the field
where Montgomery allegedly shot her based upon Heard’s position inside the vehicle.
Finally, defense counsel highlighted Heard’s multiple accounts of the murder, calling
into question Heard’s credibility. The jury was therefore apprised of Heard’s motive,
his relationship to the physical evidence, and the potential incredibility of his testimony.
Given this extensive impeachment of Heard’s account of the murders, the police report
is cumulative evidence to the extent that it would further cast doubt upon Heard’s
testimony. See Bell, 512 F.3d at 237.6

6
The dissent maintains that the police report was not cumulative for the purpose of impeaching
Heard’s testimony because it “presents entirely new information, factually unrelated to any of the evidence
available to [Montgomery] at the time of his trial.” This argument is beside the point. In Brooks, we found
evidence of an informant-witness’s history of mental illness nonmaterial under Brady—even though it
presented factually new information—because that witness had been “effectively impeached at trial.” 626
F.3d at 894. Here, evidence that Ogle was potentially alive on the morning of March 12 could have
provided an additional reason to discredit Heard’s testimony by undercutting his account of the murders.
But, for the reasons we have stated, Heard’s credibility as to the facts was already severely undermined
by his own multiple accounts of the murders. Thus, the report is cumulative to the extent it further
Nos. 07-3882/3893 Montgomery v. Bobby Page 20

Furthermore, Montgomery ignores the likely damaging evidence flowing from
the report. Most significantly, the report that several witnesses observed Ogle alive at
approximately 1:20 a.m. on March 12 undermines the defense theory that Heard, the
State’s primary witness, was the triggerman. Because it is undisputed that Heard was
in custody by March 11, Montgomery’s theory is plausible only if Ogle was killed before
Heard’s arrest. To the contrary, evidence that Ogle was alive on March 12 would
remove all suspicion from Heard regarding Ogle’s death, destroying Montgomery’s
defense theory.

It is similarly undisputed that Montgomery’s mother, Caroline Jones, telephoned
the police station on the afternoon of March 12; arranged to meet Officer Marx at a
Way-Lo gas station for the purpose of delivering Montgomery’s .380-caliber semi-
automatic pistol; and did, in fact, deliver the pistol—which was later confirmed to be the
murder weapon—to Officer Marx at approximately 6 p.m. Thus, if Ogle was alive at
1:20 a.m. on March 12, Montgomery must necessarily contend that someone other than
Heard had possession of his gun; killed Ogle on March 12 between the hours of 1:20
a.m. and noon, the time at which Montgomery was arrested and stated that Heard killed
both women; showed Montgomery the location of Ogle’s body before his noontime
arrest; and returned the weapon to Montgomery’s mother before 6 p.m. Yet, this time
line entirely subverts Montgomery’s defense theory that Heard was the killer. The
defense did not mention any other potential suspects and never suggested that anyone
other than Heard possessed Montgomery’s .380-caliber pistol.

Montgomery also ignores the fact that any witnesses who testified on his behalf
regarding the alleged March 12 sighting of Ogle would have been subject to cross-
examination, during which the State could have raised factual contradictions, namely:
that Ogle had been reported missing and was the subject of a search since March 8; that
her car had been found abandoned on March 9; that her wallet had been recovered from
Heard’s dresser drawer; and that both Montgomery and Heard had told the police that
Ogle had been murdered on March 8. Moreover, the State quite likely could have

impeaches Heard’s credibility.
Nos. 07-3882/3893 Montgomery v. Bobby Page 21

successfully obtained the witnesses’ admissions that they had in fact been mistaken
about the sighting of Ogle and had instead seen her sister.7

Nevertheless, in a final attempt to demonstrate the materiality of the police
report, Montgomery directs our attention to the coroner’s autopsy report, which lists
March 12, 1986, as the date of Ogle’s death. However, this date appears to be based
merely upon the fact that Ogle’s body was found—and thus officially pronounced
dead—on March 12, while from March 8 until this date she was officially considered
missing. Indeed, although the coroner’s verdict report notes that Ogle’s body was found
on March 12, 1986, it also lists March 8, 1986, as the date of the homicide and gunshot
wounds. Thus, coupled with evidence indicating that Ogle was missing from March 8,
the coroner’s autopsy report neither bolsters Montgomery’s argument nor establishes the
materiality of the police report with respect to his Brady claim.

In reaching our decision, we emphasize that “saying that a particular
nondisclosure was not a Brady violation in no way suggests that the prosecutor did not
have a duty to disclose the information.” Bell, 512 F.3d at 235 n.7. But, when
Montgomery’s case is considered both in light of recent Supreme Court precedent in
Wong and Van Hook, and with respect to the totality of the evidence, the State’s failure
to disclose the police report does not amount to constitutional error because Montgomery
has not shown that the evidence would have created a reasonable probability of a
different result at either the guilt phase of trial or at sentencing. See id. at 236.
Consequently, the Ohio courts did not unreasonably apply clearly established federal law
by denying Montgomery’s Brady claim.

7
Although the affidavits attesting that the witnesses actually saw Ogle’s sister were not signed
until six years after trial, the witnesses had no reason to come forward until the news account about the
report appeared. Nothing suggests that they did not recognize their error sooner or would not have
recognized it if questioned.
Nos. 07-3882/3893 Montgomery v. Bobby Page 22

B.

Montgomery also appeals the denial of habeas relief on the following two
grounds: (1) whether the trial court should have disqualified a juror who advised the
court that she had been a psychiatric patient and that she had seen the defense
psychiatrist in a dream twenty years earlier in which he appeared as the devil; and (2)
whether the court should have ordered a change of venue on account of pretrial
publicity. As to these claims, we agree with the district court’s reasoning and conclude
that the state court neither contravened nor unreasonably applied clearly established
federal law in denying Montgomery’s requested relief.

1.

First, Montgomery claims that a juror’s note to the court disclosing her previous
psychiatric treatment and describing her dream about the defense psychiatrist, in which
the psychiatrist resembled the devil, demonstrates that she was biased, irrational, and
incompetent. He claims that the trial judge erroneously failed to excuse this juror,
thereby violating his Sixth Amendment right to a fair trial by an impartial jury. When
presented with an allegation of bias, the question is “did a juror swear that [s]he could
set aside any opinion [s]he might hold and decide the case on the evidence, and should
the juror’s protestation of impartiality have been believed.” Williams v. Bagley, 380
F.3d 932, 944 (6th Cir. 2004) (quoting Patton v. Yount, 467 U.S. 1025, 1036 (1984)).
“A trial court’s finding of impartiality is a factual determination entitled to 28 U.S.C.
§ 2254(e)’s presumption of correctness, and may be overturned only for manifest error.”
Id. (internal citations and quotation marks omitted).

After receiving the note from the juror, the trial judge questioned the juror about
her impartiality and competence, and the following colloquy ensued:

The Court: Okay. Just let me ask you, would . . . the matter that you
have reported to me in the note . . . affect your consideration of the case
in such a way . . . that you could not be fair and impartial?
[Juror]: No, not when you use the word effect.
The Court: Would it have any effect?
Nos. 07-3882/3893 Montgomery v. Bobby Page 23

[Juror]: No because . . . this is in the past, 20 years ago this [dream]
happened.
The Court: Okay. Then would . . . what you have reported to me in this
note have any effect on your consideration of the matter that is before the
jury now?
[Juror]: No, no.
The Court: Okay, very good. You’ll be taken back to the jury room,
then, and the jurors will be instructed to proceed with their deliberations.

As reflected in this dialogue, the trial judge retained the juror only after she reassured
him that she could distinguish between her dream and reality, set aside her dream during
deliberations, and determine the case solely based on the evidence at trial. We therefore
conclude that the trial judge acted appropriately and that Montgomery has failed to offer
clear and convincing evidence that the juror could not or did not remain impartial.

2.

As for the second claim, Montgomery contends that the trial court’s denial of his
motion to change venue violated his constitutional right to a fair trial in light of
extensive pretrial publicity. However, although this case did involve pretrial publicity,
the relevant question in a challenge to the trial court’s decision not to change venue is
whether the jurors “could not judge impartially the guilt of the defendant.” Patton v.
Yount, 467 U.S. 1025, 1035 (1984). The Supreme Court has stated that a “trial court’s
findings of juror impartiality may be overturned only for manifest error.” Mu’Min v.
Virginia, 500 U.S. 415, 428 (1991) (internal citations and quotation marks omitted).
Although Montgomery has presented evidence that jurors were exposed to pretrial media
coverage, he has neither argued nor demonstrated that there was a “pattern of deep and
bitter prejudice shown to be present throughout the community,” Irvin v. Dowd, 366 U.S.
717, 727 (1961) (internal citations and quotation marks omitted), such that the trial
court’s findings of impartiality were manifest error. Accordingly, the trial court did not
unreasonably apply clearly established federal law in refusing to grant Montgomery’s
motion to change venue.
Nos. 07-3882/3893 Montgomery v. Bobby Page 24

C.

In his final argument, Montgomery seeks to expand his Certificate of
Appealability (“COA”) to include an additional Brady claim premised upon the State’s
alleged withholding of a plea bargain with informant Michael Clark in exchange for his
testimony against Montgomery and Heard, and upon the State’s subsequent decision not
to call Clark as a witness. As described above, the police were first alerted to Heard and
Montgomery through a Crime Stoppers tip in which inmate Clark stated that he had
received a telephone call from Heard, who reported having seen the murders of two
women. However, Montgomery did not assert a Brady violation based on withholding
this plea information in his habeas petition in the district court; rather, he argued that the
State suppressed evidence that there was no telephone call between Heard and Clark
because the telephone was not turned on at the alleged time of the call. See
Montgomery, 482 F. Supp. 2d at 974–75. The district court rejected the telephone claim
as meritless, finding that there was no evidence as to whether the prison phone was
turned on, that the phone was typically on by 9 a.m. on weekends, and that several
witnesses stated that Clark had confirmed the call. Id. The district court also denied a
COA as to the telephone claim because it was not debatable among jurists of reason, as
it did not “come[] close to presenting a federal constitutional or legal violation.” Id. at
1002.

Because Montgomery did not assert a Brady claim premised upon the State’s
plea bargain with Clark in the district court, we do not reach the merits of his request for
an expanded COA. His claim is not properly before this court. Indeed, “[i]t is a well-
established principle of appellate review that appellate courts do not address claims not
properly presented below.” Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987)
(collecting cases); see also Seymour v. Walker, 224 F.3d 542, 561 (6th Cir. 2000)
(“Although [petitioner] raised these claims in her state postconviction proceeding, she
did not raise them before the district court in the present habeas petition, and no
certificate of appealability was issued with respect to them. Therefore, we may not
consider them.”).
Nos. 07-3882/3893 Montgomery v. Bobby Page 25

IV.

For the foregoing reasons, we reverse the district court’s grant of the writ of
habeas corpus to Montgomery on the basis of a Brady violation and affirm the district
court in all other respects.
Nos. 07-3882/3893 Montgomery v. Bobby Page 26

_______________________

CONCURRENCE
_______________________

ALICE M. BATCHELDER, Chief Judge, concurring. I concur in the majority
opinion, and write separately only to address the Brady claim. I think more emphasis
needs to be given to the fact that the withheld police report on which Montgomery bases
his Brady claim could not have helped him at all. That is, neither the report itself nor the
substance of that report could have caused the jury to have a reasonable doubt about the
relevant issue here — whether Montgomery, rather than Heard, murdered Ogle. The
police report at issue is simply immaterial to that question.

The only matter that the police report even purports to address is whether at
approximately 1:20 a.m. on March 12, 1986, Ogle was already dead. The only evidence
that she was not is the statement in that police report that several of her classmates had
just seen her, alive and well, as the passenger in a blue Ford Escort, driving through the
parking lot of the Oak Hill Apartments where she shared an apartment with Tincher, the
other victim. When that report came in, the police were aware of the great body of
evidence that made the report wholly implausible. Within the next couple of days, the
police knew that the report was not only implausible but just plain wrong.

Ogle had not appeared as scheduled for work on the morning of March 8, and her
car was first noted that same morning, abandoned on the other side of town. The police
had been exhaustively looking for her since their discovery of Tincher’s body and their
further discovery that the door to the girls’ apartment was unlocked but no one was in
the apartment. By the end of that day, the police had determined that Ogle was missing,
and her parents began a series of daily appearances on television, pleading for
information about their daughter and for her safe return.

On Sunday morning, March 9, the local newspaper reported Tincher’s death.
Also that morning, the police recovered Ogle’s abandoned car. Her apartment keys and
purse were in the car, and her car key was in the ignition. That evening, Ogle’s parents
made another televised appeal for her safe return. By Monday, March 10, the police had
Nos. 07-3882/3893 Montgomery v. Bobby Page 27

begun to fear that, like Tincher, Ogle had been murdered. Detectives continued to
question suspects in the Tincher murder and searched a field near the place where
Tincher’s body had been found, hoping to find evidence that would lead them to Ogle.
And Ogle’s parents appeared on television again that evening.

On Tuesday, March 11, Michael Clark, an inmate at the Lucas County Jail, told
the police that on March 8, Glover Heard had bragged to him about witnessing the
murder of two white girls, aged 19 and 20. Another inmate confirmed that Clark had
told him about the March 8 conversation with Heard, and two corrections officers further
confirmed the story. The police began to look for Heard while continuing an intensive
search for Ogle. They did not find Ogle, but they did find Heard, and by 2:30 p.m. on
March 11, Heard was in police custody. By 3:30 p.m., Heard’s alibi witness had
implicated Montgomery and police went to look for him. At 4:35 p.m., Heard was
formally arrested and booked for Tincher’s murder; he was transferred to the Lucas
County Jail where he remained for all times relevant to this case. That evening, about
7:00 p.m., Montgomery’s mother consented to a police search of her residence — police
found a black, hooded jacket (consistent with witness descriptions) and a manual for a
.38 caliber handgun (consistent with the gun used to kill Tincher). Later that night, at
about 12:30 a.m. on March 12, police executed a warrant to search Heard’s residence
and found Ogle’s wallet, driver’s license, and credit cards.

By 1:20 a.m. on March 12, when the police received the call from David Ingram
that he and several friends had seen Ogle driving around in the Ford Escort, Ogle’s status
as a missing person had been in the newspapers and on television for three days. Had
Ogle been in the vicinity, she could hardly have escaped the knowledge that her
roommate had been murdered and that she herself was the object of an intensive and
very public search. But no one had heard a word from her. She had abandoned her job,
her boyfriend, and her family without a single word. She had also abandoned her
apartment, her car, and her wallet, including her driver’s license and credit cards.

By 11:30 p.m. on March 12, when Montgomery finally led them to Ogle’s body,
he had given the police several versions of the events of March 8, including that Heard
Nos. 07-3882/3893 Montgomery v. Bobby Page 28

had admitted to killing both girls on the morning of March 8; that Montgomery did not
know where Ogle’s body was; that Heard had killed the girls using Montgomery’s gun;
and that the body was “on Hill Avenue near a market.” Directed by Montgomery, the
police found the body in a wooded area near 4700 Hill Avenue. The following day, the
Lucas County Coroner performed an autopsy, noting in the report that the gunshot
wound that had caused Ogle’s death had been inflicted on March 8. The coroner also
told the newspaper that Tincher and Ogle had likely died the same day (Saturday, March
8), but that it “may not be possible to determine [Ogle’s] precise time of death.”

To establish a Brady v. Maryland, 373 U.S. 83 (1963), violation “[t]he evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the [prosecution], either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 282 (1999). A showing of prejudice need not mean that the evidence would
have led to an acquittal, but merely “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)).

Here, there is no reasonable probability that the withheld police report would
have made any difference whatsoever in the course or outcome of Montgomery’s trial.
The report itself is inadmissible hearsay, as even the now-vacated majority panel opinion
conceded. And if Montgomery had called as witnesses David Ingram or any of the
individuals who were with him when he reported seeing Ogle in the Ford Escort, there
is no basis upon which to claim that they would have stood behind that report. They, in
fact, realized that same night that they had seen Ogle’s sister and not Ogle riding around
in the Escort, and they recanted the report when they learned years later that it had been
the basis for granting habeas relief to Montgomery. But even if we were to assume that
the report could have been utilized at trial, and that it would have been unrefuted, we
cannot proceed to the assumption that it could have helped Montgomery in any way.
Nos. 07-3882/3893 Montgomery v. Bobby Page 29

First, the report had Ogle still alive in the wee hours of March 12, 1986. Heard
was in police custody at that time, and he remained in custody throughout that entire day
and for a long time thereafter. Montgomery’s claim is, and always has been, that it was
Heard who murdered Ogle and Tincher, not Montgomery. Heard, on the other hand,
pled guilty to his role in the murders and gave the police a detailed account of the events
leading up to the murders and the murders themselves. That is, Ogle could only have
been alive and well on March 12 if Heard had fabricated his part in the murders, falsely
confessed, and inexplicably accepted a prison term of 15 years to life.

And there has never been any serious claim that anyone other than Montgomery
or Heard was the killer. Rather, Montgomery and Heard agree entirely that one of the
two of them shot both girls. The point of disagreement is which of them did so, and as
to that, each of them simply points to the other. So if Ogle was not murdered until after
1:20 a.m. on March 12, for Heard to have done it, he would have had to commit the
murder from his jail cell. Not likely. And if Heard could not have murdered Ogle on
March 12, between 1:20 a.m. and 11:30 p.m. when Montgomery led the police to her
body, then that leaves Montgomery to have done it. All of this begs the question, “How
would using the information in the withheld police report, either as direct evidence or
to impeach Heard’s testimony, have helped Montgomery?” The answer, of course, is
“It wouldn’t.”

Second, there is simply no basis for the dissent’s suggestion that if he had known
about the report, Montgomery might have been able to construct “additional potential
defense theories.” With or without the report, such theories would have been
constructed out of whole cloth. Heard’s version of the murders was that he and
Montgomery went to the girls’ apartment early in the morning on March 8; they departed
with Ogle shortly thereafter; they drove around for a bit before going to a field near the
apartment; Montgomery ordered Ogle to park her car and get out; Montgomery took
Ogle across the field and into the woods; Montgomery shot Ogle; Montgomery and
Heard then left the scene in Ogle’s car and went back to the girls’ apartment;
Montgomery went into the apartment; Heard took Ogle’s car and drove it some five
Nos. 07-3882/3893 Montgomery v. Bobby Page 30

miles to a location about a block from where he lived and abandoned it, taking her wallet
and credit cards but leaving her purse and keys in the car. According to Heard,
Montgomery persuaded Tincher to leave the apartment with him in Tincher’s car;
Tincher drove a couple of miles to Angola Road and pulled over; Montgomery shot her
in the head and killed her; Montgomery then fled the car on foot and went to his
apartment about a quarter of a mile away. Despite numerous problems with Heard’s
version of the murders — lack of motive, discrepancies between the eyewitnesses’
description of what the man seen fleeing Tincher’s car was wearing and what
Montgomery was wearing, to name just a couple — what is important is that Heard sat
on the witness stand and told the jury than he and Montgomery had committed the
murders, that he had accepted punishment for his role, and that Montgomery had been
the shooter.

During extensive police questioning, Montgomery never mentioned anyone else
who might have been involved, or that Ogle might have been killed some time other than
the morning of March 8. According to Montgomery, Heard had possession of
Montgomery’s gun that morning because Montgomery was afraid of being checked by
police. Heard and Montgomery went to Ogle’s apartment and got Ogle so she could
drop them at Montgomery’s on her way to work. Montgomery says she dropped him off
at his apartment; that Heard asked to keep the gun, but gave no reason, and Montgomery
agreed; that Heard and Ogle left Montgomery’s apartment; that some time later, Heard
came back to Montgomery’s apartment and told Montgomery that he had killed Ogle;
and Heard either showed or described to Montgomery the location of Ogle’s body.
Montgomery says that Heard convinced him to go back to the girls’ apartment and
persuade Tincher S who did not know Heard as well as she knew Montgomery S to come
with them; that he did so; and that Heard and Tincher left the apartment in Tincher’s car
and Montgomery left in Heard’s mother’s car, heading home. Heard rode with Tincher
to the Angola Road location, shot her in the head, and ran across the field to
Montgomery’s apartment, where he gave the gun back to Montgomery; Heard took his
mother’s car and returned home; and Montgomery hid the gun.
Nos. 07-3882/3893 Montgomery v. Bobby Page 31

It is beyond dispute that, upon his arrest at approximately noon on March 12,
Montgomery knew the location of both the murder weapon and Ogle’s body. During a
telephone conversation, while in custody, Montgomery directed his mother to the
location of the hidden gun — she eventually retrieved it and delivered it to the police.
And after protesting for hours that he did not know the location of the body,
Montgomery eventually relented and led the police directly to it.

There are numerous holes and inconsistencies in the stories of both Heard and
Montgomery. And there is overwhelming evidence that both Tincher and Ogle were
murdered on the morning of Saturday, March 8. Moreover, the evidence is
uncontroverted that Heard or Montgomery (or both) murdered Tincher and Ogle. There
is not anywhere in this record any basis for theorizing that some third party happened
on the scene and murdered these two girls, or, for that matter, any other “potential
defense[s]” for Montgomery, no matter when Ogle died. All of this begs the question,
“Why did Montgomery need to know about the police report in order to come up with
some ‘additional potential defense theories’?” The dissent posits no answer to this
question, but I suggest the answer is “He didn’t.”

The issue before us with regard to this Brady claim is whether, using the standard
that we are required to use under AEDPA, and particularly as that standard has been
most recently elucidated in Harrington v. Richter, 131 S. Ct. 770 (2011), we can say that
the Ohio Court of Appeals unreasonably concluded that the withheld police report did
not undermine confidence in the outcome of the trial. It is important to emphasize that
a state court’s application of Supreme Court precedent cannot be unreasonable — nor
can the state court’s determination of the facts be unreasonable — simply because it is
not based on speculation about the possible benefit to the habeas petitioner had the jury
been able to consider an isolated piece of information that was overwhelmingly
demonstrated by the evidence to be false. The Ohio Court of Appeals neither
unreasonably applied Brady, nor unreasonably determined the facts in light of the
evidence before it.
Nos. 07-3882/3893 Montgomery v. Bobby Page 32

____________________________________

CONCURRING IN THE JUDGMENT
____________________________________

HELENE N. WHITE, Circuit Judge (concurring in the judgment). I join in the
dissenting opinions’ explications of the Brady standard and their emphasis on the need
to keep the standards for showing prejudice under Strickland v. Washington, 466 U.S.
668 (1984), and Brady v. Maryland, 373 U.S. 83 (1963), distinct. I also agree that the
evidence of Montgomery’s guilt was not overwhelming, and that the evidence points
equally (if not more) to Heard’s being the killer. Nevertheless, I cannot conclude that
the Ohio Court of Appeals unreasonably applied clearly established Supreme Court
precedent in determining that the improperly withheld evidence was not material within
the meaning of Brady.

The Ohio Court of Appeals recited the correct standard for prejudice under
Brady. See State v. Montgomery, No. L-98-1026, 1999 WL 55852, at *7 (Ohio Ct. App.
Feb. 5, 1999). It then stated:

The lower court concluded that this isolated information [in the withheld
police report], recorded in the course of an ongoing investigation when
all of the facts were still being pieced together and in the face of
overwhelming evidence presented at trial that Ogle had been killed on
March 8, 1986, did not undermine confidence in the outcome of the trial.
We agree and conclude that the trial court did not err in dismissing [this]
claim for relief.

Id. at *8.

Normally, one would think that withholding a report describing a sighting of the
deceased victim before her body was found but after the defendant allegedly committed
the crime would be enough to “undermine confidence in the outcome” of the trial. See
Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 682
(1985). But here, where Montgomery led police to Ogle’s body within hours after the
alleged sighting described in the police report; where the evidence indicates that Ogle
was missing from March 8, 1986, and was likely killed that day; where Montgomery’s
Nos. 07-3882/3893 Montgomery v. Bobby Page 33

own account of events, given to police after Ogle was allegedly sighted and before
Montgomery led police to her body, placed the murder weapon back in his possession
on the morning of March 8, before the alleged sighting; and where the withheld police
report does not suggest a plausible alternative theory of the case, I conclude that the
Ohio Court of Appeals reasonably determined that the improperly withheld evidence was
not material. Importantly, the withheld evidence was not material to the real issue at
trial — whether it was Montgomery or Heard who actually killed Ogle. And, to the
extent Montgomery argues that disclosure of the report would have allowed him to
investigate and develop another defense, such a defense would be so inconsistent with
all the evidence, including Montgomery’s statements, that it is reasonable to conclude
that it would have had little chance of affecting the outcome of the trial.

Looking at the totality of the evidence presented to the jury, the Ohio court
reasonably concluded that disclosure of the police report would not have created a
“reasonable probability of a different result” and did not “undermine confidence in the
outcome.” See Kyles, 514 U.S. at 434 (internal quotation marks omitted). Given the
confines of our review under AEDPA, 28 U.S.C. § 2254(d), the state court’s decision
must be upheld.
Nos. 07-3882/3893 Montgomery v. Bobby Page 34

_________________

DISSENT
_________________

MERRITT, Circuit Judge, dissenting. The majority in this case conflates the
standard applicable for materiality in Brady claims with the standard for prejudice in
Strickland claims, in order to import the prosecution-friendly presumptions of regularity
applicable to the latter. In so doing, it guts the Brady rule of any practical deterrent
effect in all but the most unconscionably severe cases. It provides a disincentive for
prosecutors to comply with the law. It has selected a particular inappropriate case for
this doctrinal shift because it should not agree with the state court’s view that it was
reasonable for the prosecutor to conceal the Ogle facts “in the face of overwhelming
evidence presented at trial” that Montgomery killed Ogle on March 8, 1986. The
evidence was not “overwhelming,” and the concealment was not reasonable. There is
no way to know what the outcome of this would have been had the Ogle report been
turned over to the defense promptly during the defense investigation, rather than
concealed. I, therefore, respectfully dissent.

The withheld evidence in this case, as the District Court found, is a police report
indicating that witnesses saw the victim, Debra Ogle, alive on March 12, 1986, four days
after the prosecutor claimed, and the jury ultimately found, that William Montgomery,
not Grover Heard, killed her. That evidence is clearly exculpatory and should not have
been concealed by the prosecutor for six years until post-conviction counsel found it by
accident in a group of documents obtained under Ohio’s version of the Freedom of
Information Act. In a case of blatant prosecutorial misconduct, no one has seriously
contested the fact that the prosecutor suppressed the evidence simply because it was
inconsistent with his theory of the case. The District Court concluded that the case
should be retried in state court. We should not retry it here on appeal, as my colleagues
suggest. Montgomery is entitled to a jury trial free of gross prosecutorial misconduct.

My colleagues in the majority, citing a series of ineffective assistance of counsel
cases, make it clear that in their opinion the constitutional test for this textbook Brady
Nos. 07-3882/3893 Montgomery v. Bobby Page 35

violation is the same as in an ineffective assistance of counsel case. Beginning with
Strickland v. Washington, 466 U.S. 668 (1984), the majority says that “guided by these
principles [of the ineffective assistance of counsel cases] we must determine whether the
Ohio courts unreasonably applied Brady . . . .” In a nutshell, the majority’s error is that
it adopts not the Brady principle’s strict rule but the more prosecution-friendly standard
of Strickland, with its presumption of trial regularity. The majority is confusing two
separate and distinct constitutional violations — a claim under the Sixth Amendment
concerning the conduct of counsel for the defense, and a clear, bright-line rule of Due
Process prohibiting counsel for the prosecution from concealing exculpatory evidence.
On the one hand, Strickland requires a “strong presumption” in favor of the state that no
irregularity took place. Harrington v. Richter, 131 S. Ct. 770, 787 (Jan. 19, 2011) (“A
court considering a claim of ineffective assistance must apply a ‘strong presumption’
that counsel’s representation was within the ‘wide range’ of reasonable professional
assistance.”) (quoting Strickland, 466 U.S. at 689). The Strickland-Richter language
says that “the standard for judging counsel’s representation is a most deferential one”
Richter, 131 S. Ct. at 788.

Contrast this with the latest Brady case from the Supreme Court, Connick v.
Thompson, 131 S. Ct. 1350 (Mar. 29, 2011). The majority in that case, relying on the
ABA Model Rules of Professional Conduct, said that:

Among prosecutors’ unique ethical obligations is the duty to produce
Brady evidence to the defense. An attorney who violates his or her
ethical obligations is subject to professional discipline, including
sanctions, suspension, and disbarment. . . . Prosecutors are not only
equipped but also ethically bound to know what Brady entails and to
perform legal research when they are uncertain.

Id. at 1362-63 (internal citations omitted). The Court then quotes from one state’s code
of professional responsibility that distinguishes between the strict requirements for
prosecutors and the quite different responsibility for private lawyers:

With respect to evidence and witnesses, the prosecutor has
responsibilities different from those of a lawyer in private practice: the
prosecutor should make timely disclosure to the defense of available
Nos. 07-3882/3893 Montgomery v. Bobby Page 36

evidence, known to him, that tends to negate the guilt of the accused,
mitigate the degree of the offense, or reduce the punishment. Further, a
prosecutor should not intentionally avoid pursuit of evidence merely
because he believes it will damage the prosecution’s case or aid the
accused.

Id. at 1362 n.8. The dissent in Connick agrees that Brady is a binding rule that is
“among the most basic safeguards” of a “criminal defendant’s fair trial right.” Id. at
1385 (Ginsburg, J., dissenting) (citing Cone v. Bell, 129 S. Ct. 1769, 1772 (2009)).

Thus, the majority in the instant case started its analysis by following a set of
presumptions and vague standards favoring the state. Strickland instructs us to presume
the absence of irregularity in the trial, but Brady — flatly forbidding the refusal to turn
over information favorable to the defendant — teaches that the withholding of evidence
is itself a grave irregularity. It is not only a legal requirement but a “unique ethical
obligation,” a moral duty unlike any of the duties imposed by Strickland.

In short, as to the test for the materiality of exculpatory evidence, the vocabulary
of the law is not and should not be the same as for ineffective assistance of counsel, as
my colleagues say they believe. This is because the concealment of evidence is the fault
of the state, not the defendant’s side of the case, as with ineffective assistance of counsel
where the presumption of regularity is with the state and against the defendant. For this
reason, and because there is no other significant deterrent to prosecutorial misconduct
of this type — which is widespread1 — there should not be a presumption of trial
regularity when it is discovered that exculpatory evidence has been withheld; if
anything, there should be a fairly strong inference of materiality that the prosecution

1
There are a plethora of law review articles and symposia recounting the widespread nature of
the prosecutorial malfeasance problem. See, e.g., Stephanos Bibas, Prosecutorial Regulation Versus
Prosecutorial Accountability, 157 U. Pa. L. Rev. 959 (2009); Charles Ogletree, Judging Justly? Judicial
Responsibility for Addressing Incompetent Counsel and Prosecutorial Misconduct in Death Penalty Cases,
20 T.M. Cooley L. Rev. 21 (2003); Welsh White, Curbing Prosecutorial Misconduct in Capital Cases,
39 Am. Crim. L. Rev. 1147 (2002); Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C.
L. Rev. 721 (2001); Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct:
Suppression, Dismssal, or Discipline?, 7 Geo. J. Legal Ethics 1083 (1994); Richard A. Rosen,
Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev.
693 (1987); see also Erwin Chemerinsky, Head in the Sand Over Prosecutorial Misconduct,
National Law Journal, Apr. 25, 2011, available at
http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1202491215314 (noting that “[s]tudy
after study has demonstrated serious prosecutorial misconduct at both the federal and state levels”).
Nos. 07-3882/3893 Montgomery v. Bobby Page 37

should have to overcome. If, as the Supreme Court states, prosecutors are bound to
know and follow the Brady rule, and in fact do know its meaning, and even so they then
conceal the exculpatory evidence from the defendant, the inference should be that they
concealed it because they believed it would hurt their case. This fact should normally
lead to a rebuttable presumption that the trial did not result “in a verdict worthy of
confidence” — the test for materiality that applies to violations of the Brady rule, as set
out in Kyles v. Whitley, 514 U.S. 419, 434 (1995), and repeated in Strickler v. Greene,
527 U.S. 263, 290 (1999) (the question is whether the evidence puts the case “in such
a different light [so] as to undermine confidence in the verdict”). As the Supreme Court
has explained, the “probability of a different verdict,” as required by the majority in this
case, is not the bottom line standard in Brady cases. See Strickler, 527 U.S. at 289-90
(“The question is not whether the defendant would more likely than not have received
a different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” (internal citations
omitted)).

The majority claims that when it says that it is following the principles of
Strickland in deciding this Brady case, it does not mean to follow Strickland’s general
presumption of reasonableness on the part of counsel. (Opinion, footnote 5.) But the
majority’s failure to recognize and condemn the prosecutor’s obvious disregard of the
Brady rule suggests a predisposition to find prosecutorial reasonableness in the face of
prosecutorial misconduct. This predisposition to discount prosecutorial wrongdoing is
like the presumption of reasonableness employed in Strickland. Instead, the court should
assume that the prosecutor concealed the exculpatory information because he believed
the jury verdict might well be different if it heard the undisclosed evidence. In a Brady
case of concealed, exculpatory evidence, Strickland’s presumption of reasonableness
should become a presumption of unreasonableness. We should not use Strickland’s
principles as a guide to deciding the standards to be followed in a Brady case.

While what remains of Brady after this case is difficult to discern, the message
sent by this case to prosecutors in our Circuit is crystal clear: where a spin can be put
Nos. 07-3882/3893 Montgomery v. Bobby Page 38

on the available evidence against a defendant that the evidence is “overwhelming,” feel
free to withhold evidence. It turns the jury trial from a search for the truth before
administering retributive justice into a search for an excuse for prosecutorial misconduct
after the jury trial is over. After all, even assuming that down the line the defendant
somehow contrives, from within prison walls, to obtain the withheld evidence, he must
overcome the presumption that his trial, absent the withheld exculpatory evidence, was
nonetheless fair. This should prove impossible in all but the most egregious Brady
cases, and the deterrent effect of Brady against prosecutorial malfeasance of this sort will
be practically eliminated. Because of the importance of the Brady rule, because of the
fact that it is a rule, not a set of vague standards or admonitions, and because of the need
for real deterrence of such prosecutorial concealment and the widespread nature of the
problem, the courts should not follow the lead of the majority in making the problem
worse and more widespread.

And finally, I would point out that the majority’s characterization of the facts
only serves to enhance the artificial presumption of this trial’s regularity. The majority
offers six reasons why the evidence that “Montgomery shot Tincher and Ogle” was
“overwhelming,” but none suffice definitively to establish Montgomery’s guilt,
particularly to the exclusion of Glover Heard. Montgomery may have bought the murder
weapon, but both men had access to it on the night in question. Both were seen by
Montgomery’s uncle hours before the crime. Both admitted being at the girls’ apartment
on March 8. Montgomery’s dripping jacket — which, incidentally, tested negative for
the presence of blood — does not by itself “overwhelming[ly]” prove that he as opposed
to Heard pulled the trigger. Montgomery may have ended up with the murder weapon,
but so too did Heard end up with the fruits of this alleged robbery. Pursuant to a plea
deal, Heard testified that he witnessed Montgomery shoot Ogle, but a detective testifying
for the state recalled telling Heard he physically could not have seen this take place from
the position Heard claimed to be within Ogle’s parked car. Montgomery showed police
officers where Ogle’s body was, but consistently maintained that he only knew the
body’s location because Heard told him.
Nos. 07-3882/3893 Montgomery v. Bobby Page 39

In sum, apart from Heard’s implausible testimony, the case against Montgomery
was entirely circumstantial. Montgomery had no motive at all — indeed, the prosecution
at times candidly conceded this fact, when not at other times inviting unsubstantiated and
racially charged speculation that this African-American defendant may have had some
sort of sexual interest in one of these white female victims. But his trial counsel put on
no defense, relying instead only on the cross-examination of the state’s witnesses. Much
of the defense’s closing argument was concerned with effectively apologizing for not
putting up a defense, and desperately admonishing the jury not to hold that fact against
Montgomery. One can only wonder whether, had his counsel known of the existence
of some affirmatively exculpatory evidence, such as the testimony of witnesses who saw
Ogle days after the prosecution claimed she was murdered — and perhaps combined it
with other evidence, such as the coroner’s report stating that Ogle died on the day she
was allegedly seen, not days before — a different result might have obtained in this case.
We will never know, because the state made sure that did not happen. With that
uncertainty in place, I cannot say that the jury’s verdict in this case is worthy of
confidence, and so I would find the withheld evidence material, and affirm the granting
of the writ by the District Court.
Nos. 07-3882/3893 Montgomery v. Bobby Page 40

________________

DISSENT
________________

BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I agree totally with Judge
Merritt’s dissent. The violation of Brady does not create an ineffective assistance of
counsel claim, but is a violation of the constitutional protection for a fair trial.
Nos. 07-3882/3893 Montgomery v. Bobby Page 41

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. This case presents our Court with the question
of whether certain exculpatory evidence, which we all agree was improperly kept from
Petitioner’s defense team, is material to Petitioner’s culpability or punishment and can
serve as the basis of a violation of Brady v. Maryland, 373 U.S. 83 (1963). The
majority’s conclusion that the state court did not unreasonably apply clearly established
federal law in finding that the evidence is not material is flawed in three principal
ways: first, the majority misstates the legal standard for demonstrating Brady
materiality; second, in its materiality analysis, the majority mischaracterizes the factual
record in this case; and third, principally because of these two problems, the majority
performs a faulty prejudice analysis, and incorrectly finds that the state court reasonably
held that the suppressed evidence is not material under Brady v. Maryland. I therefore
respectfully dissent.

STATEMENT OF FACTS

Petitioner William T. Montgomery was sentenced to death for the aggravated
murder of Debra Ogle, and sentenced to a term of years for the murder of Cynthia
Tincher. This habeas proceeding concerns a single piece of evidence that the
prosecution failed to disclose, namely a police report indicating that several witnesses
saw Ogle alive four days after the March 8, 1986 murders purportedly took place (the
“report”). The district court found the report material, and granted Petitioner’s petition
for a writ of habeas corpus, stating that “sufficient weaknesses exist . . . in the State’s
case, that [it] could have been undermined by the withheld police report.” Montgomery
v. Bagley, 482 F. Supp. 2d 919, 977 (N.D. Ohio 2007). The district court elaborated that
“the State’s case was not airtight and that it could have been undermined by sufficient
contradictory evidence.” Id. at 976. We are charged with evaluating whether the
suppressed report was in fact material, entitling Petitioner to a writ of habeas corpus.
Nos. 07-3882/3893 Montgomery v. Bobby Page 42

The majority adequately recites the basic facts of this case, and it is unnecessary
to repeat those here. Rather, my description of the facts will be limited to those
insufficiently developed by the majority, and will be interspersed throughout the
analysis.

DISCUSSION

I. Legal Framework

a. Brady v. Maryland

The Supreme Court held in Brady “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Brady, 373
U.S. at 87). Thus, to establish a Brady violation, Petitioner must demonstrate that the
evidence in question: (1) is “favorable to the accused, either because it is exculpatory,
or because it is impeaching;”(2) was “suppressed by the State, either willfully or
inadvertently;” and (3) was “material.” Id. at 281-82. Because in this case the
Respondent concedes that the report was exculpatory, and that the state suppressed it,
the report’s materiality is the only issue in the instant appeal.

The Supreme Court has explained that

favorable evidence is material, and constitutional error results from its
suppression by the government, if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different . . . . [A] showing of materiality
does not require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted in the defendant’s acquittal.

Kyles v. Whitley, 514 U.S. 419, 433-34 (1995); see also Strickler, 527 U.S. at 280. In
so explaining, the Supreme Court reasoned that the

touchstone of materiality is a “reasonable probability” of a different
result, and that adjective is important. The question is not whether [a]
defendant would more likely than not have received a different verdict
Nos. 07-3882/3893 Montgomery v. Bobby Page 43

with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. A
“reasonable probability” of a different result is accordingly shown when
the government’s evidentiary suppression undermines confidence in the
outcome of the trial.

Id. at 434 (internal quotations and citations omitted).

Furthermore, the Supreme Court indicated that “[o]ne does not show a Brady
violation by demonstrating that some of the inculpatory evidence should have been
excluded, but by showing that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.” Id.
at 435. We have similarly reiterated that “[t]he question [for Brady materiality is] not
whether it [is] likely that [the defendant’s] conviction would be overturned in light of
newly discovered evidence.” Jamison v. Collins, 291 F.3d 380, 388-89 (6th Cir. 2002).
Therefore, in assessing materiality under Brady, we consider “the withheld information
. . . in light of the evidence available for trial that supports the petitioner’s conviction.”
Jells v. Mitchell, 538 F.3d 478, 502 (6th Cir. 2008).

Nevertheless, the test for Brady materiality “is not a sufficiency of evidence test.”
Kyles, 514 U.S. at 434. As the Supreme Court explained,

A defendant need not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not have been
enough left to convict. The possibility of an acquittal on a criminal
charge does not imply an insufficient evidentiary basis to convict. One
does not show a Brady violation by demonstrating that some of the
inculpatory evidence should have been excluded, but by showing that the
favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.

Id. at 434-35. The Supreme Court has thus clarified that Brady materiality is not a
strictly quantitative inquiry. Rather, it is more of a qualitative inquiry in which a
reviewing court must ask whether the suppressed evidence casts sufficient doubt on a
petitioner’s conviction that it puts the case in “a different light.” Id. at 435.
Nos. 07-3882/3893 Montgomery v. Bobby Page 44

The relevant question for the instant Brady materiality analysis, therefore, is not
whether the report necessarily exculpates Petitioner, or discounts so much of the
incriminating evidence that Petitioner’s conviction beyond a reasonable doubt cannot
stand; rather, it is whether, after considering the relative strength and relevance of the
inculpatory and exculpatory evidence, including the report, Petitioner’s conviction is
“worthy of confidence.” Jells, 538 F.3d at 502 (quoting Kyles, 514 U.S. at 434).

b. Standard of Review

Petitioner filed his petition for a writ of habeas corpus in 2000, after the April 24,
1996 effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
amendments to 28 U.S.C. § 2254. Thus, because we are reviewing Petitioner’s Brady
materiality claim in the context of his petition for a writ of habeas corpus, this case does
not turn on a direct application of the Brady materiality standard. Rather, we must
evaluate the state court’s application of Brady to Petitioner’s case through AEDPA’s
deferential lens. Our disposition of Petitioner’s habeas claim hinges on the interplay
between Brady and AEDPA.

As amended, section 2254(d) states:

[a]n application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (1) resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d). A decision is “contrary to . . . clearly established federal law”
pursuant to § 2254(d)(1) if “the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court on a set of materially indistinguishable facts.”
Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006) (quoting Williams v. Taylor,
Nos. 07-3882/3893 Montgomery v. Bobby Page 45

529 U.S. 362, 413 (2000)). A state court decision “involve[s] an unreasonable
application of clearly established federal law” pursuant to § 2254(d)(1) if

the state court identifies the correct governing legal principle but
unreasonably applies that principle to the facts of the prisoner’s case.
Clearly established Federal law, as determined by the Supreme Court of
the United States, refers to the holdings, as opposed to the dicta, of the
Supreme Court’s decisions as of the time of the relevant state-court
decision.

Id. at 763 (quoting Williams, 529 U.S. at 412).

The Supreme Court recently decided a series of cases clarifying AEDPA’s
contours. See, e.g., Cullen v. Pinholster, 563 U.S. __, 131 S. Ct. 1388, 1398 (2011);
Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 787 (2011); Premo v. Moore, 562
U.S. __, 131 S. Ct. 733, 739 (2011); Renico v. Lett, 559 U.S. __, 130 S. Ct. 1855, 1862
(2010). This case is the first opportunity our en banc Court has had to apply AEDPA
subsequent to the Supreme Court’s most recent decisions. In these cases, the Court
explained that while AEDPA always requires habeas courts to accord state court
decisions significant deference, the nature of the deference is tailored to the legal rule
underlying the habeas claim. See Harrington, 131 S. Ct. at 786. (“Evaluating whether
a rule application [by a state court] was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.”).

These cases dealt with application of general rules, specifically, evaluating
whether counsel provided ineffective assistance, and determining whether the trial court
properly declared a mistrial. See, e.g., Cullen, 131 S. Ct. at 1403; Harrington, 131 S. Ct.
at 788 (“[t]he Strickland standard is a general one, so the range of reasonable
applications is substantial”); Premo, 131 S. Ct. at 740; see also Renico, 130 S. Ct. at
1865 (“the standard applied . . . [namely,] whether the [trial] judge exercised sound
discretion [in declaring a mistrial] – is a general one, to which there is no plainly correct
or incorrect answer in this case”). A habeas court considering alleged violations of those
general rules is reviewing two layers of discretionary action: (1) those of the initial actor
Nos. 07-3882/3893 Montgomery v. Bobby Page 46

– either counsel, or the state trial court; and (2) the state court’s evaluation of the
constitutional reasonableness of that conduct. See, e.g., id. at 1864.

Although the Supreme Court has not had occasion to describe AEDPA’s
application in the Brady context at issue in this case, by considering Brady with
reference to the legal rules which the Supreme Court has reviewed under AEDPA, we
can extrapolate how to apply AEDPA in the Brady context.

In contrast to the circumstances in which the Supreme Court recently applied
AEDPA, Brady is a narrow rule that mandates specific compliance with its requirements,
and does not involve discretion in its implementation. Brady requires that a reviewing
court reverse a conviction or sentence if a prosecutor suppresses exculpatory or
impeachment evidence that is material to a defendant’s guilt or sentence. See Strickler,
527 U.S. at 280; Brady, 373 U.S. at 87. Assessing whether a Brady violation entitles a
petitioner to relief does not involve a discretionary inquiry with multiple correct
answers. Rather, it involves a legal determination that considers the totality of a case’s
facts with reference to the excluded evidence in order to determine whether that
evidence “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434.
The Brady standard thus affords state actors little leeway in its implementation, and
cases with multiple correct answers, and multiple reasonable conclusions are bound to
be far less common in the context of Brady materiality than in cases assessing
discretionary action. See, e.g., Cullen, 131 S. Ct. at 1407. Therefore, because the
narrowness of Brady circumscribes state actors’ legitimate range of reasonable choices,
as compared to discretionary state determinations, state actions implicating Brady are
subject to relatively less deference on habeas review. See Harrington, 131 S. Ct. at 786
(stating that “[t]he more general the rule, the more leeway [state] courts have in reaching
outcomes in case-by-case determinations,” and explaining that this discretion is accorded
a commensurate amount of deference on habeas review).

The nuances of our Brady analysis under AEDPA are guided by the recent
Supreme Court cases highlighting AEDPA’s important role as “part of the basic
structure of federal habeas jurisdiction, designed to confirm that state courts are the
Nos. 07-3882/3893 Montgomery v. Bobby Page 47

principal forum for asserting constitutional challenges to state convictions.” Harrington,
131 S. Ct. at 787; see also Cullen, 131 S. Ct. at 1398; Walker, 131 S. Ct. at 1120; Premo,
131 S. Ct. at 733; Renico, 130 S. Ct. at 1855. The AEDPA standard “is a difficult to
meet, and highly deferential standard for evaluating [state court] rulings, which demands
that [state court] decisions be given the benefit of the doubt.” Cullen, 131 S. Ct. at 1398
(internal quotations and citations omitted). The Supreme Court has thus reiterated that
“[a] state court’s determination that a claim lacks merit precludes federal habeas relief
so long as fairminded jurists could disagree on the correctness of the state court’s
decision.” Harrington, 131 S. Ct. at 786.

Nonetheless, AEDPA does not foreclose federal habeas review of state court
convictions and sentences. As the Supreme Court emphasized, AEDPA “stops short of
imposing a complete bar on federal court relitigation of claims already rejected in state
proceedings.” Id. Rather, federal habeas review continues to serve the important role
of “guard[ing] against extreme malfunctions in the state criminal justice systems,” id.,
and in its recent decisions the Supreme Court counseled us regarding the precise
mechanics of AEDPA deference.

These cases explicating AEDPA yield several principles that guide our
application of AEDPA deference to Petitioner’s claim. First, the Supreme Court stressed
that a federal court must accord AEDPA deference to all state court adjudication of a
claim, even those disposed of by an unexplained summary order. In according a
summary order the requisite AEDPA deference, a federal court must review the case to
ensure that no reasonable legal argument exists in support of the state court’s decision.
In so doing, the habeas court must carefully examine the case’s factual record in its
entirety, taking care not to overlook any reasonable justifications for the state court’s
decision. See id. at 789-91. Second, the habeas court must not apply undue hindsight
to the case, see Premo, 131 S. Ct. at 745, but must analyze the habeas claims from a
contemporaneous perspective. See Harrington, 131 S. Ct. at 789.

Application of these AEDPA principles must be tailored to a case’s legal context,
and further tailored to a case’s factual context. See id. at 786; Renico, 130 S. Ct. at 1864.
Nos. 07-3882/3893 Montgomery v. Bobby Page 48

The degree of deference mandated by AEDPA varies depending on the degree of
legitimate discretion involved in the conduct under review. “When assessing whether
a state court’s application of federal law is unreasonable, the range of reasonable
judgment can depend in part on the nature of the relevant rule that the state court must
apply.” Renico, 130 S. Ct. at 1864. The more discretion possessed by the actor whose
conduct is under review on habeas, the more deference a federal habeas court must
accord the decision under AEDPA. Furthermore, “[b]ecause AEDPA authorizes federal
courts to grant relief only when state courts act unreasonably, it follows that the more
general the rule at issue – and the greater the potential for reasonable disagreement
among fair-minded judges – the more leeway state courts have in reaching outcomes in
case-by-case determinations.” Id. (internal quotations, citations and emphasis omitted).
Therefore, under AEDPA, “[e]valuating whether a rule application [by a state supreme
court] was unreasonable requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Harrington, 131 S. Ct. at 786; see also Renico, 130 S. Ct. at 1864.

Renico, Harrington, Premo, and Cullen all applied general rules that accorded
the actors under review significant discretion. Renico considered whether the state court
unreasonably applied the double jeopardy clause in finding that the trial court did not
abuse its discretion in granting a mistrial. The Supreme Court explained that the
standard for determining “whether the judge exercised sound discretion [in declaring a
mistrial] – is a general one, to which there is no plainly correct or incorrect answer.”
Renico, 130 S. Ct. at 1865. Harrington, Premo, and Cullen all evaluated habeas
petitions claiming ineffective assistance of trial counsel, and all turned on whether the
state court unreasonably applied Strickland in determining that counsel’s representation
did not fall below an objective standards of reasonableness. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). In analyzing the reasonableness of counsel’s
conduct, the Court highlighted that “[t]he Strickland standard is a general one . . . [and]
the range of reasonable applications is substantial.” Harrington, 131 S. Ct. at 788
(“There are . . . countless ways to provide effective assistance in any given case.”).
Thus, in deciding habeas petitions based on the trial court’s declaration of a mistrial, and
Nos. 07-3882/3893 Montgomery v. Bobby Page 49

whether counsel’s performance was deficient, in addition to the deference it accorded
the state court, the Supreme Court accorded the trial court and counsel significant
deference, corresponding to their significant discretion in determining their courses of
action. See, e.g., id. at 786-88.

The standards discussed above are general ones that afforded the actors
significant discretion, and could be satisfied through a range of potentially divergent
conduct. In contrast, the Brady standard at issue in our case constitutes a narrow rule
that mandates specific compliance from prosecutors. The AEDPA deference accorded
the state determinations in Brady cases is thus dissimilar from the AEDPA deference
accorded in Renico, Harrington, Premo, and Cullen. First, whereas those cases called
for a double layer of deference, in the instant case, only a single layer of deference to the
state court’s decision is required. Second, those cases involved general rules that could
be reasonably applied in several divergent ways according to the actor’s discretion,
accommodating multiple reasonable interpretations on review. See, e.g., Renico, 130 S.
Ct. at 1865. Brady, however, imposes a straightforward disclosure requirement with
fewer options for correct application, and correspondingly fewer reasonable outcomes
in any given set of factual circumstances when material evidence is not disclosed. See,
e.g., Kyles, 514 U.S. at 434.

Notwithstanding the foregoing discussion, these AEDPA principles, tailored to
the Brady materiality context, require that we accord the state court’s determination
deference in the instant case. Therefore, we may only grant habeas if, based on the facts
of this case, any reasonable jurist would agree that the Brady evidence was material. As
discussed below, AEDPA’s exacting standard is met in this case, entitling Petitioner to
relief.

II. State Court Opinion

In adjudicating Petitioner’s Brady claim, the last reasoned decision of the Ohio
state court found that Petitioner “asserted that the state wrongfully withheld exculpatory
evidence that on March 12, 1986 . . . Debra Ogle was seen alive in the parking lot of her
apartment complex by [several] witnesses who went to high school with her.”
Nos. 07-3882/3893 Montgomery v. Bobby Page 50

Montgomery, 482 F. Supp. 2d at 976 (quoting State v. Montgomery, 1999 Ohio App.
LEXIS 266, at * 8 (Ohio Ct. App. 1999)). The Ohio court concluded that “this isolated
information, recorded in the course of an ongoing investigation when all of the facts
were still being pieced together and in the face of overwhelming evidence presented at
trial that Ogle had been killed on March 8, 1986, did not undermine confidence in the
outcome of the trial.” Id.

As previously discussed, AEDPA mandates that in evaluating a petition for a writ
of habeas corpus, we

consider whether the [state court’s] decision applies a rule that contradicts such
law and how the decision confronts the set of facts that were before the state
court. If the state[]court decision identifies the correct governing legal principle
in existence at the time, a federal court must assess whether the decision
unreasonably applies that principle to the facts of the prisoner’s case,

Cullen, 131 S. Ct. at 1399, by “determin[ing] what arguments or theories supported, or
. . . could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of th[e Supreme] Court.” Harrington,
131 S. Ct. at 786.

In this case, in contrast to Harrington, the state court explained its basis for
denying Petitioner’s habeas claim. See id. (“Under § 2254(d), a habeas court must
determine what arguments or theories supported or, as here [where the state court
disposed of a claim in a summary order], could have supported the state court’s
decision.”) If the state court articulated its reasons, the habeas court must identify and
evaluate those reasons under § 2254(d); only if the state court did not articulate its
reasons must the habeas court hypothesize as to the state court’s reasoning, and evaluate
those hypothetical reasons. See id. In evaluating the state court decision in this case
pursuant to AEDPA, we need not hypothesize as to the state court’s reasoning. Instead,
we base our decision on the reasoning articulated by the state supreme court.
Nos. 07-3882/3893 Montgomery v. Bobby Page 51

As explained by the district court, the state court stressed, in dismissing
Petitioner’s Brady claim, that the report was immaterial “in the face of overwhelming
evidence presented at trial that Ogle had been killed on March 8, 1986.” Montgomery,
482 F. Supp. 2d at 976. This analysis constituted an unreasonable application of
Supreme Court precedent. It overlooked the Supreme Court’s admonition that Brady
materiality “is not a sufficiency of evidence test,” Kyles, 514 U.S. at 434, and missed
the relevant legal question under Brady and its progeny, namely, whether “the favorable
evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. at 435. By ignoring the nature of the
evidence, and focusing entirely on the quantum of available evidence, the state court
confused Brady materiality with a test for sufficiency of the evidence, thus unreasonably
applying the Brady materiality standard to the facts of this case.

Although the majority’s analysis attempts to explain that the state court’s
dismissal of Petitioner’s Brady claim was reasonable, as discussed more fully below, the
majority is unable to muster any persuasive arguments that the state court’s decision was
a reasonable application of established Supreme Court precedent. When the facts of this
case are assessed through the narrow Brady materiality rule, the state supreme court’s
determination falls short of satisfying even the exceedingly deferential AEDPA standard
of review applicable in this case. The majority’s argument, which relies on numerous
factual and legal errors to reach its conclusion that the state supreme court’s decision
was not an unreasonable application of federal law, does not demonstrate the contrary.

III. The Majority’s Factual Errors

Pursuant to AEDPA, we presume that the state court’s factual findings are correct
absent clear and convincing evidence to the contrary. See Lundgren, 440 F.3d at 763;
28 U.S.C. § 2254(e). Our deference to the state court’s factual findings notwithstanding,
a habeas court must, to some extent, grapple with a case’s relevant facts as found by the
state court. See Cullen, 131 S. Ct. at 1407. Specifically, we must review the factual
record before the state court in order to evaluate whether the state court unreasonably
applied clearly established federal law to the facts. See id. This prerequisite is never
Nos. 07-3882/3893 Montgomery v. Bobby Page 52

more significant than in a Brady case where “we consider [the suppressed evidence] in
light of the evidence available for trial that supports the petitioner’s conviction.” Jells,
538 F.3d at 502.

The majority implicitly acknowledges this requirement, and uses some of the
facts in analyzing the report’s materiality. (See Maj. Op. at 16-17, 19-22.) But, the
majority’s cursory examination of the relevant facts cannot provide an adequate basis
for assessing the reasonableness of the state court’s application of Brady to the facts
before it. Even considering the substantial deference that AEDPA mandates, the
majority’s perfunctory review is inadequate. See Harris v. Haeberlin, 526 F.3d 903, 910
(6th Cir. 2008) (“[E]ven in the context of federal habeas, deference does not imply
abandonment or abdication of judicial review.”) (quoting Miller-El v. Cockrell, 537 U.S.
322, 324 (2005)).

Had the majority thoroughly analyzed the factual record before the state court,
it would have apprehended the egregious mistakes that the state court made in denying
Petitioner’s Brady claim. Instead, the majority finds that the report is not material under
Brady by glossing over the veracity and credibility problems affecting several pieces of
inculpatory evidence, and ignoring the Supreme Court’s directives to look at the entire
case from all perspectives. See Harrington, 131 S. Ct. at 789-91. Therefore, prior to
discussing the state court’s unreasonable application of clearly established Supreme
Court precedent, and the majority’s equally deplorable misapplication of Brady in
denying Petitioner a writ of habeas corpus, it is necessary to identify the majority’s
factual missteps which handicap its ability to perform a proper AEDPA analysis of
Petitioner’s Brady claim.

As an initial matter, there are several problems with the majority’s recitation of
the facts. The majority recounts that “[Petitioner] had purchased a .380 caliber semi-
automatic pistol and ammunition just weeks before the murders and was wearing a dark
hooded jacket with the hood tied tight around his face when he entered the gun shop to
purchase the pistol.” (Id. at 4.) Although the majority represents its description of
Petitioner’s apparel as established fact, this detail is not as certain as the majority
Nos. 07-3882/3893 Montgomery v. Bobby Page 53

implies. In her testimony during Petitioner’s trial, Trisha M. Blackburn, the salesperson
working at Cleland’s Gun Shop when Petitioner purchased the gun, affirmed that
Petitioner “had on a windbreaker tied closely around his face” when he came to the gun
shop. (J.A. at 6114.) However, Blackburn admitted at trial that when she initially spoke
with police officers she was unable to “give[] them a description of how [Petitioner] was
dressed on that particular day.” (Id. at 6113-14.) Moreover, when pressed, Blackburn
stated that she did not remember either what “the other customer[s] ha[d] on that” day,
(id. at 6114-15), or what she was wearing that day. (See id. at 6115.) Nor did Blackburn
recall “how [any Cleland customers between March and July 1986] were dressed when
they came in.” (Id. at 6118-19.) Nevertheless, Blackburn maintained that she
“specifically recall[ed] what [Petitioner] was wearing on that particular day.” (Id. at
6115.) Far from being the ironclad fact represented by the majority, Blackburn’s
memory of Petitioner’s dress on that date is dubious at best.

Next, the majority notes that “[Petitioner] and Tincher and Ogle were
acquaintances.” (Maj. Op. at 4.) However, Albert Earl, Jr. testified at Petitioner’s trial
that Heard was also acquainted with both victims. (See J.A. at 5886-87.) Thus, contrary
to the majority’s intimation, because both Petitioner and Heard were acquainted with the
victims, this fact is not probative of the culprit’s identity.

Moreover, in repeating the pertinent facts for its analysis, the majority lists the
evidence implicating Petitioner as follows:

First, both victims were shot with a .380 pistol that [Petitioner] bought
approximately two weeks before [Ogle’s and Tincher’s] deaths. Second,
[Petitioner’s] uncle saw [Petitioner] drunk and in possession of the
murder weapon only a few hours before Tincher was found shot dead
approximately one-half of a mile from [Petitioner’s] home on March 8.
Third, [Petitioner] admitted to being at Ogle[’s] and Tincher’s apartment
on March 8, and it is undisputed that Ogle was reported missing
sometime shortly after [Petitioner’s] acknowledged visit. Fourth,
[Petitioner] was wearing a dark blue pin-striped suit jacket during the
night in question, and a few hours after Tincher was found dead and Ogle
disappeared, [Petitioner] took a dark blue pin-stripped suit to the dry
cleaners that was soaking wet and that made a “brownish dripping mess
on the floor” as it dried. Fifth, Heard testified that he was with
Nos. 07-3882/3893 Montgomery v. Bobby Page 54

[Petitioner] and witnessed [Petitioner] shoot Ogle. Sixth, on the evening
of March 12, [Petitioner’s] mother delivered the murder weapon to [a
police officer] at a nearby Way-Lo station. Finally, [Petitioner] showed
police officers where Ogle’s body was on March 12.

(Maj Op. at 16-17.)

Although the majority lists several of these facts to demonstrate Petitioner’s
opportunity to commit the crimes, because Petitioner and Heard were admittedly
together much of the evening, these facts are equally if not more demonstrative of
Heard’s opportunity to commit the crimes. The majority states that “[Petitioner]
admitted to being at Ogle[’s] and Tincher’s apartment on March 8.” (Id. at 16)
However, in his testimony at Petitioner’s trial, Heard admitted that he was also present
at Ogle’s and Tincher’s apartment on the night of March 8, 1986. (See J.A. at 6460-62.)
Therefore, Petitioner’s presence at the victims’ apartment does not indicate that he,
rather than Heard, committed the crimes.

The majority further states that Petitioner’s “uncle saw [Petitioner] drunk and in
possession of the murder weapon only a few hours before Tincher was found shot dead.”
(Maj Op. at 16.) First, it is noteworthy that Petitioner’s uncle, Randolph Randleman,
testified that when Petitioner and Heard arrived drunk and rowdy at Randleman’s house
in the early morning of March 8, Petitioner was carrying a .380 caliber semi-automatic
pistol. (See J.A. at 6155-56.) However, Randleman “took [the gun] from [Petitioner,
and] threw it on top of the refrigerator.” (Id. at 6156-57.) Randleman further testified
that both “Heard and [Petitioner] left [Randleman’s house] out of the kitchen . . . . So,
either one could have taken [the gun].” (Id. at 6179.) Therefore, contrary to the
majority’s suggestion, Randleman’s testimony indicates that both Petitioner and Heard
had the opportunity to take the gun off of the top of Randleman’s refrigerator on their
way out of his house that night. However, as Randleman himself admitted, he “d[idn’t]
know who took [the gun] . . . [he] never s[aw] anybody take the gun . . . . So, either
[Petitioner or Heard] could have taken it.” (Id.)

Furthermore, in its factual recitation, the majority lists the following facts that
were introduced at trial through Heard’s testimony:
Nos. 07-3882/3893 Montgomery v. Bobby Page 55

[Petitioner] was armed with a .380 caliber pistol the morning of March
8; [a] cab took [Petitioner] and Heard to Ogle[’s] and Tincher’s
apartment on Hill Avenue at [Petitioner’s] direction, where both
[Petitioner] and Heard entered the apartment; Ogle was getting ready to
go to work and Tincher, although she popped out to say hello, was still
in bed; Ogle agreed to give [Petitioner] and Heard a ride to [Petitioner’s]
mom’s apartment on Airport Road; [Petitioner,] sitting in the front seat,
gave Ogle the directions and eventually told her to stop on the side of the
road on Hill Avenue; Ogle and [Petitioner] got out of her car and walked
roughly forty yards into a field or wooded area off Hill Avenue; Heard
heard two gunshots and saw Ogle’s body laying on the ground;
[Petitioner] rushed back to Ogle’s car and motioned for Heard to get in
the front passenger’s seat as [Petitioner] got into the driver’s seat and
drove Ogle’s car back to the victims’ apartment complex; [Petitioner]
picked a gun up off the floor of the car, exited the vehicle, and told Heard
to take the car; Heard then left the car and took Ogle’s wallet as he
abandoned the car roughly one block from his home.

(Maj. Op. at 4-5 (internal modifications omitted).)

There are several reasons to question the credibility of Heard’s testimony.1
Foremost, Heard had a significant motive to implicate Petitioner. Initially Heard, like
Petitioner, was indicted and charged with two counts of aggravated murder that carried
three death penalty specifications. However, by agreeing to testify at Petitioner’s trial,
Heard was able to plead guilty to one count of complicity to murder, exposing Heard to
a term of imprisonment ranging between fifteen years to life, with the possibility of
parole after serving twelve and a half years of incarceration. (See J.A. at 6488-89.)

Additionally, at least two pieces of physical evidence tend to implicate Heard: it
is undisputed that Ogle’s car was found on the same block as Heard’s house (see id. at
6419-20); and officers testified at Petitioner’s trial that in the course of a search
conducted pursuant to a valid search warrant, police officers found Ogle’s wallet in
Heard’s bedroom. (Id. at 6431-32.)

1
The Chief Judge’s concurrence effectively disregards the flaws in Heard’s testimony, stating that
“[d]espite numerous problems with Heard’s version of the murders . . . what is important is that Heard sat
on the witness stand and told the jury that he and Montgomery had committed the murders, that he had
accepted punishment for his role, and that Montgomery had been the shooter.” (Batchelder, C.J. Con. at
30.) By cherry picking the facts favorable to her position, the Chief Judge oversimplifies the evidentiary
complexities inherent in this case, improperly skewing her analysis against a finding of materiality.
Nos. 07-3882/3893 Montgomery v. Bobby Page 56

There were also several discrepancies between Heard’s testimony and other
evidence presented at Petitioner’s trial. Whereas Earl testified earlier in Petitioner’s trial
that Heard was acquainted with both Tincher and Ogle (see id. at 5887), Heard denied
having any relationship with either victim. (See id. at 6460.) Moreover, in recounting
his version of Ogle’s murder on the witness stand, Heard stated that he “heard two
gunshots,” after which he “look[ed] back in [Petitioner’s] direction . . . and [Ogle] was
lying on the ground.” (Id. at 6465.) However, in his report of Ogle’s autopsy, the
coroner, Dr. Christopher Reed Desley, testified that the “main external findings” of the
autopsy “were the presence of three gunshot wounds.” (Id. at 6311.) Finally, Detective
Arthur M. Marx testified that Heard’s story was incredible because from Heard’s alleged
vantage point, “it was physically impossible to see what [Heard] said he saw,” namely
that Petitioner shot Ogle in the field. (Id. at 6556.)

The veracity of Heard’s testimony is further called into question by his
concession on cross-examination that he told police several different stories relating to
the crimes. (See id. at 6472-76.) “[T]he first thing he told [police was that he] didn’t
know anything about it.” (Id. at 6473.) The “second thing [Heard] told [police]” was
that he had “seen two white girls get killed.” (Id.) The “third thing [Heard] told police”
was that he “has seen a black male . . .that he knew as a dope dealer . . . driving the
[victim’s] car . . . [d]own [an] alleyway . . . [a]nd [that Heard] didn’t know who he was
. . . [or] what he had done with the car.” (Id. at 6474.) The fourth story Heard told
police was that he “had gone to a carwash and there an unknown black male told [him]
about two white girls being killed.” (Id. at 6475.) Thus, the version of the crimes that
Heard recounted on the witness stand at Petitioner’s trial, and that the majority
apparently credits, was his fifth story.

Heard’s testimony is therefore weak in several respects: (1) Heard had a strong
motive to implicate Petitioner in order to exculpate himself; (2) it is inconsistent with
several other pieces of trial evidence; and (3) Heard was proven untrustworthy, having
told the authorities five versions of the facts. In its recitation of the facts, the majority
does mention the credibility problems plaguing Heard’s testimony. (See Maj. Op. at 6.)
Nos. 07-3882/3893 Montgomery v. Bobby Page 57

However, although in analyzing the materiality of the report in conjunction with the facts
presented at trial, the majority acknowledges the aspersions cast on Heard’s testimony,
(see id. at 19-20), it ignores the probative value of this evidence. Instead, in its
discussion, the majority accords significant weight to facts introduced through Heard’s
testimony. This seemingly willful blindness to the weaknesses of Heard’s testimony
unduly tips the scales against a finding of materiality in contravention of AEDPA’s
requirement that a habeas court give comprehensive consideration to all potential factual
scenarios. See Harrington, 131 S. Ct. at 789-91.

The majority makes further factual errors in its materiality analysis by surmising
what may have happened had Petitioner been aware of the report at the time of his trial,
and finding, based on these conjectures, that the report would not have helped
Petitioner’s case. The majority states that “[Petitioner] ignores the likely damaging
evidence flowing from the report. Most significantly, the report . . . undermines the
defense theory that Heard . . . was the triggerman.” (Maj. Op. at 20.) The majority also
contends that the time line of events suggested by the report “entirely subverts
[Petitioner’s] defense theory that Heard was the killer.” (Id. at 21.) Thus, the majority
finds that the report would not have assisted Petitioner because it was not directly in line
with Petitioner’s defense theory at trial. However, in unreasonably narrowing its
analysis to the precise factual arguments actually presented at trial, the majority ignores
the equally plausible likelihood that the report could have led Petitioner to additional
information, witnesses and defense theories. Such one-sided conjecture by the majority
is not a persuasive basis for finding that the report is not material.

Similarly, the majority states that

[Petitioner] also ignores the fact that any witnesses who testified on his
behalf regarding the alleged March 12 sighting of Ogle would have been
subject to cross-examination, during which the State could have raised
factual contradictions . . . . [T]he State quite likely could have
successfully obtained the witnesses’ admissions that they had in fact been
mistaken about the sighting of Ogle and had instead seen her sister.
Nos. 07-3882/3893 Montgomery v. Bobby Page 58

(Id. at 21.) However, the fact that individuals retracted their statements six years after
Petitioner’s trial does not indicate that they would have done so six years earlier on the
eve of Petitioner’s trial.2 Moreover, whereas the individuals only retracted their
statements six years after Petitioner’s trial concluded, they initially made the statements
on March 12, 1986, just a month prior to Petitioner’s trial. Thus, if temporal proximity
is any indication, it is possible that the individuals who claimed that they saw Ogle on
March 12, 1986 would have stood by their account throughout Petitioner’s trial. The
majority’s contention that “the State quite likely could have successfully obtained the
witnesses’ admissions that they had in fact been mistaken” in stating that they saw Ogle
after she was allegedly murdered, (id.), is nothing more than pure speculation. There is
simply no way to evaluate whether the statements would have been retracted or
undermined at Petitioner’s trial.

The majority’s analysis in this case is riddled with factual problems, which in
their own right represent a failure to attempt a thorough reconstruction of the broad
range of potential factual scenarios at play in the case, and thus constitutes a
misapplication of AEDPA deference. See Harrington, 131 S. Ct. at 789-91. The
majority also glosses over several reliability issues affecting the evidence presented at
Petitioner’s trial, and makes numerous faulty factual suppositions. It is only based on
this faulty factual foundation that the majority arrives at its conclusion that the report is
not material.

IV. The Majority’s Legal Errors

The majority compounds its analytical problems, and wrongfully denies
Petitioner a writ of habeas corpus, by misconstruing the standard for Brady materiality
and applying its skewed legal framework to its unsupportable version of the facts.

2
Although the Chief Judge’s concurrence states as fact that “[w]ithin the next couple of days,”
after receiving the report, “the police knew that the report was not only implausible but just plain wrong,”
(Batchelder, C.J. Con. at 26), and that the individuals who reported seeing Ogle alive on March 12, 1986,
“in fact, realized that same night that they had seen Ogle’s sister and not Ogle,” (id. at 28), the Chief Judge
provides no record support for these curious factual assertions.
Nos. 07-3882/3893 Montgomery v. Bobby Page 59

The majority purports to review the state court’s adjudication of Petitioner’s
Brady claim to ensure that the state court did not “unreasonably appl[y] Brady to the
facts of [Petitioner’s] case.” (Maj. Op. at 13.) However, under the guise of according
the state court decision AEDPA deference, the majority abdicates its duty on habeas “to
search for constitutional error with painstaking care,” Kyles, 514 U.S. at 422, and rubber
stamps the state court’s opinion. Thus, the majority adopts the state supreme court’s
legal errors, and integrates them into its analysis of Petitioner’s Brady claim.

In formulating the requirements for Brady materiality, the majority states that

the Brady standard is not met if the petitioner shows merely a reasonable
possibility that the suppressed evidence might have produced a different
outcome; rather a reasonable probability is required . . . . In Kyles, the
Supreme Court elaborated . . . that Brady materiality is not a sufficiency
of evidence test. Nor does Brady require demonstration by a
preponderance that disclosure of the suppressed evidence would have
resulted ultimately in . . . a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence . . . . [T]he obligation of a
reviewing court [is] to consider the totality of the evidence– and not
merely exculpatory facts in isolation– when evaluating a claim of error
for its prejudicial effect.

(Maj. Op. at 14-15 (internal citations and quotation marks omitted) (emphasis in
original).) Furthermore, quoting Wong v. Belmontes, 558 U.S. __, 130 S. Ct. 383, 386
(2009), the majority states that

[i]n evaluating the question of prejudice, it is necessary to consider all
the relevant evidence that the jury would have had before it if the defense
had pursued a different path–not just the mitigation evidence the defense
could have presented, but also the other evidence that almost certainly
would have come in with it.

(Maj. Op. at 15 (internal modifications omitted).) Thus, according to the majority, “a
reviewing court, when considering a defendant’s claim of prejudice, must evaluate the
weight of mitigating and aggravating evidence regarding the defendant’s guilt, rather
than simply tallying instances of mitigation.” (Id. at 16 (internal emphasis omitted).)
After describing the facts implicating Petitioner, the majority applies this standard to
Nos. 07-3882/3893 Montgomery v. Bobby Page 60

conclude that because of the “considerable evidence of [Petitioner’s] guilt,” (id. at 18),
the report is not material under Brady and its progeny.

The majority makes three significant missteps in its materiality formulation.
First, by stating that “the Brady standard is not met if the petitioner shows merely a
reasonable possibility that the suppressed evidence might have produced a different
outcome; rather a reasonable probability is required,” (id. at 14), the majority distorts the
meaning of “reasonable probability.” The Supreme Court has stated that the “touchstone
of materiality is a ‘reasonable probability’ of a different result, and the adjective is
important. The question is not whether [a] defendant would more likely than not have
received a different verdict with the evidence.” Kyles, 514 U.S. at 434. Rather, “[a]
‘reasonable probability’ of a different result is accordingly shown when the
government’s evidentiary suppression undermines confidence in the outcome of the
trial.” Id. at 435. Kyles contrasted “reasonable probability” with “likely” to illustrate
that the materiality burden, while high, does not require a showing that disclosure of the
exculpatory evidence would “likely” have produced a different result. The majority,
however, contrasts “probability” with “possibility,” tacitly changing the meaning of the
word “probability” in the materiality context to require a likelihood of a different result
for Brady materiality.

Second, although the majority recites the correct legal standard for determining
Brady materiality, the majority nonetheless applies a sufficiency of the evidence
standard in assessing the report’s materiality. The Supreme Court stated unequivocally
in Kyles that Brady materiality “is not a sufficiency of evidence test,” and emphasized
that “[a] defendant need not demonstrate that after discounting the inculpatory evidence
in light of the undisclosed evidence, there would not have been enough left to convict.
The possibility of an acquittal on a criminal charge does not imply an insufficient
evidentiary basis to convict.” Id. at 434-35. Nevertheless, in finding that the report is
immaterial, the majority lists the inculpatory evidence presented at Petitioner’s trial, and
finds that the report alone does not affect the “considerable evidence of [Petitioner’s]
guilt.” (Maj. Op. at 18.) The majority simply tallies up the inculpatory pieces of
Nos. 07-3882/3893 Montgomery v. Bobby Page 61

evidence and pits them against what it regards as the single piece of exculpatory
evidence suppressed in this case, without evaluating the quality and strength of the
various pieces of evidence. In so doing, the majority ignores both the qualitative nature
of the Brady materiality inquiry, and the serious credibility issues undermining the
evidence against Petitioner. This constitutes legal error.

Third, in an attempt to bolster its finding of immateriality, the majority asserts
that the report is cumulative, and thus not material for Brady purposes, stating that
“[w]here the undisclosed evidence merely furnishes an additional basis on which to
challenge a witness whose credibility has already been shown to be questionable or who
is subject to extensive attack by reason of other evidence, the undisclosed evidence may
be cumulative, and hence not material.” (Id. at 18 (quoting Byrd v. Collins, 209 F.3d
486 (6th Cir. 2000).) The majority mistakes the report’s potential purpose. As discussed
further below, because the case against Petitioner was significantly weaker than the
majority suggests, the report casts further doubt on Petitioner’s guilt, and illuminates
additional avenues that the defense could have pursued, thereby highlighting the existing
difficulties with Petitioner’s conviction and sentence.3 Thus, contrary to the majority’s
contention, the report was far from cumulative.

3
The Chief Judge’s concurrence contends that the report is not material because “neither the
report itself nor the substance of that report could have caused a jury to have a reasonable doubt about the
relevant issue here – whether Montgomery, rather than Heard, murdered Ogle. The police report at issue
here is simply immaterial to that question.” (Batchelder, C.J. Con. at 26.) The Chief Judge’s analysis of
the Brady materiality requirement, for which no authority is cited, is excessively narrow.
The Brady materiality test, as framed by the Supreme Court, asks whether in the “absence” of the
suppressed evidence, a petitioner “received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.” Kyles, 514 U.S. at 434. The Supreme Court intended to avoid limiting the materiality
inquiry to asking merely, as does the concurrence, whether the suppressed evidence would likely have
prevented Petitioner’s conviction under the theory of the case developed by Petitioner without the benefit
of the suppressed information. See id. (“The question is not whether [a] defendant would more likely than
not have received a different verdict with the evidence”). Brady draws the materiality question more
broadly, asking whether “the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” Id.
Thus, for suppressed information to be material, it must constitute an important piece of evidence
highly relevant to the questions of Petitioner’s guilt or punishment. In evaluating materiality, we need not,
and indeed cannot, know the universe of evidentiary ramifications that a suppressed piece of evidence
could have had if timely disclosed. Rather, in assessing Brady materiality, a court’s task is to determine
whether “there is a reasonable probability” that had the suppressed evidence been timely disclosed, and
the petitioner’s counsel had appropriate opportunity to follow-up on the evidence, and properly use it to
the petitioner’s advantage, the result of the trial might have been different. This point is lost on both the
majority and the Chief Judge.
Nos. 07-3882/3893 Montgomery v. Bobby Page 62

In finding the report cumulative, the majority also misunderstands the legal
definition of cumulative evidence. Our Court has expressed frustration that “[o]ur cases
. . . do not tell us clearly when evidence becomes sufficiently different to no longer be
‘cumulative’ or at what level of generality one must compare the evidence.” Vasquez
v. Bradshaw, 345 F. App’x 104, 120 (6th Cir. 2009). However, we have most often
stated that “new evidence” is not cumulative if it “differs both in strength and subject
matter from the evidence actually presented at [trial].” Goodwin v. Johnson, 632 F.3d
301, 327 (6th Cir. 2011); see also Tibbetts v. Bradshaw, 633 F.3d 436, 444 (6th Cir.
2011) (finding that evidence that deals with “the exact same subject” as the evidence
presented at the petitioner’s trial was cumulative because “in order to establish prejudice,
the new evidence that a habeas petitioner presents must differ in a substantial way– in
strength and subject matter from the evidence actually presented . . . .” (internal
quotation marks and citations omitted)); Landrum v. Mitchell, 625 F.3d 905, 930-32 (6th
Cir. 2010) (finding undisclosed evidence cumulative when “[t]rial counsel presented
most of the same facts” because “[t]he petitioner must present new evidence that differs
both in strength and subject matter from the evidence actually presented . . . not
cumulative mitigation evidence”); Beuke v. Houk, 537 F.3d 618, 645 (6th Cir. 2008)
(“To establish prejudice, the new evidence that a habeas petitioner presents must differ
. . . in strength and subject matter – from the evidence actually presented at sentencing
. . . . evidence [that] mirrors the evidence introduced during the penalty phase” is
insufficient to meet this standard); Johnson v. Bagley, 544 F.3d 592, 603 (6th Cir. 2008)
(finding that petitioner’s trial counsel provided ineffective assistance by failing to
investigate mitigation evidence, and finding that “[c]ompetent counsel could have put
on evidence that differed in . . . strength and subject matter – from the evidence actually
presented at sentencing” (internal quotation marks and citations omitted)); Vasquez, 345
F. App’x at 120 (describing this as “our most skeptical formulation”). The degree of
difference necessary for new evidence to be non-cumulative may depend on the strength
of the evidence against a petitioner. See Vasquez, 345 F. App’x at 120.

The report presents entirely new information, factually unrelated to any of the
evidence available to Petitioner at the time of his trial, and which was untouched by the
Nos. 07-3882/3893 Montgomery v. Bobby Page 63

credibility problems affecting some of the trial evidence. No other piece of evidence
connected with Petitioner’s case suggested that Ogle was not killed on March 8, 1986,
and no other evidence came from Ogle’s high school classmates who were otherwise
uninvolved with Petitioner’s trial. Particularly because of the weakness of the case
against Petitioner – indeed the evidence against Petitioner was largely circumstantial
with only Heard’s substantially untenable testimony directly implicating Petitioner – the
report was not cumulative. See id. It is irrelevant that the report could have served a
similar purpose as evidence actually presented at Petitioner’s trial.

The majority opinion, therefore, commits three significant errors in its
formulation of the Brady materiality inquiry. It first raises the quantum of proof required
for a showing of materiality under Brady by misconstruing the meaning of “reasonable
probability,” and effectively defining it as a likelihood. The majority then compounds
its error by transforming its materiality inquiry into a sufficiency of the evidence test,
and finds that the report is not material because it does not discount the inculpatory
evidence presented at Petitioner’s trial. Third and finally, the majority hastily dismisses
the report as cumulative despite the wholly new evidence it contained.

V. Application

The majority’s review of the state court’s finding that the report is not material
is skewed by the majority’s misconception of the facts, as well as its misstatement of the
legal standard for Brady materiality. Moreover, although the majority states that “a
reviewing court, when considering a defendant’s claim of prejudice, must evaluate the
weight of mitigating and aggravating evidence regarding the defendant’s guilt, rather
than simply tallying instances of mitigation,” (Maj. Op. at 16), the majority’s prejudice
analysis is in fact no more than a tally, pitting the list of facts presented at trial against
the report. Based on its erroneous analysis, the majority finds that the report is not
material. However, when the totality of facts in this case are evaluated under the proper
legal standard, it becomes obvious that the state court unreasonably applied federal law
Nos. 07-3882/3893 Montgomery v. Bobby Page 64

in finding that the report is not material. It is therefore appropriate to perform a separate
materiality analysis here.4

In a Brady materiality inquiry, a reviewing court cannot just enumerate the facts
and reach a conclusion. Instead, it must evaluate any holes and weaknesses in the state’s
case against a defendant and determine whether, given this totality of the evidence,
inclusion of the suppressed exculpatory evidence creates a “reasonable probability” of
a different outcome.

As previously discussed, the Supreme Court has clearly explained that “the
touchstone of materiality is a ‘reasonable probability’ of a different result,” Kyles, 514
U.S. at 434, meaning that “the government’s evidentiary suppression undermines
confidence in the outcome of the trial.” Id. The Brady materiality inquiry assesses the
quality and strength of the evidence available during a defendant’s trial in light of the
suppressed evidence. See Jamison, 291 F.3d at 388-89. Brady does not test whether the
suppressed evidence left “an insufficient evidentiary basis to convict,” Kyles, 514 U.S.
at 435, but whether the suppressed evidence “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Id.

In this case, the report “undermine[s] confidence in the verdict,” compounding
the already numerous holes in the prosecution’s case. The state’s case against Petitioner
relied primarily on several pieces of circumstantial evidence allegedly connecting
Petitioner to the crimes, and Heard’s account of Petitioner shooting Ogle. However, the
probative value of several of those central pieces of circumstantial evidence is
questionable.

4
Although the majority accuses this dissent of “undertak[ing] a de novo review of the record,”
(Maj. Op. at 8 n.1), any fair reading clarifies that this dissent is careful to apply the proper deferential
standard required under AEDPA. Apparently the majority believes that only by “undertak[ing] a de novo
review” of a claim can a federal court grant a writ of habeas corpus. See, e.g., Doody v. Ryan, No. 06-
17161, 2011 U.S. App. LEXIS, at *38 (9th Cir. May 4, 2011) (en banc) (“Our colleagues in dissent
chastise us for reaching these conclusions, accusing the majority of ‘once more pay[ing] mere lip service
to AEDPA and then proceed[ing] as though it does not exist.’ The dissent would prefer that we simply
parrot the findings made during the state court proceedings and call it a day. However, if we succumb to
the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat
rubber stamp, pucker up, and kiss The Great Writ good-bye.” (internal citations omitted)).
Nos. 07-3882/3893 Montgomery v. Bobby Page 65

First, a number of pieces of evidence are used to suggest that Petitioner was the
man with a dark hooded jacket who was seen leaving Tincher’s car just before her body
was found, (see J.A. at 6094), but each piece of evidence suffers from some significant
defect. Specifically, the state presented evidence that the saleswoman at Cleland’s Gun
Shop testified that Petitioner “had on a windbreaker tied closely around his face” when
he came to the gun shop. (Id. at 6114). However, that same saleswoman admitted that
she could not remember what any other customer before or since was wearing. (See id.)
Moreover, while it is true that police officers found a dark hooded leather jacket during
a search of Petitioner’s apartment, (see id. at 6362), none of the witnesses who saw the
man leave Tincher’s car on the morning of March 8, 1986 could identify the jacket’s
color or fabric. That Petitioner owned a black hooded jacket thus means very little in
this context.

Second, the state also presented the following evidence in attempting to
demonstrate Petitioner’s opportunity to commit the crimes: Petitioner was acquainted
with Tincher and Ogle, (see id. at 5887); Petitioner was drunk in the early morning hours
of March 8, 1986, when he arrived at Randolph Randleman’s house, (see id. at 6155,
6171); Randleman disarmed Petitioner, and placed Petitioner’s gun on the top of
Randleman’s refrigerator, (see id. at 6157); Petitioner left Randleman’s residence in a
taxicab, passing through Randleman’s kitchen on his way out, and could have taken the
gun from the top of the refrigerator, (see id. at 6160, 6177-79); and the taxicab took
Petitioner to Tincher’s and Ogle’s apartment. (See id. at 6207-10). Heard and Petitioner
were, however, together the entire evening. Therefore, these facts demonstrate Heard’s
opportunity to commit the crimes to at least the same extent that they demonstrate
Petitioner’s opportunity.

Finally, the remaining circumstantial facts presented at Petitioner’s trial provide
conflicting suggestions of guilt. Some facts tend to implicate Petitioner, while others
tend to implicate Heard. These include the following: police officers found Ogle’s
wallet in Heard’s bedroom, (see id. at 6431-32); Petitioner was wearing a blue pinstripe
jacket on the night in question which he took to the dry cleaners “soaking wet” where
Nos. 07-3882/3893 Montgomery v. Bobby Page 66

“it was dripping . . . a yellowish brown, brownish . . . mess on the floor,” (id. at 6279-
80); Ogle’s car was found near Heard’s house, (see id. at 6419-20); Petitioner was
cooperative when interviewed by the police, (see id. at 6500-08); Petitioner arranged for
his mother to surrender the gun to police officers, (see id. at 6510-13, 6557); and
Petitioner led police to a wooded field where police eventually found Ogle’s body. (See
id. at 6544-47.) The circumstantial evidence against Petitioner presented at trial was
thus weak and inconclusive.

Heard’s testimony was also a critical element of the state’s case but his testimony
is riddled with credibility problems. Heard testified that Petitioner killed Ogle, ordered
Heard to drop Petitioner off at Tincher’s and Ogle’s apartment so that he could kill
Tincher as well, and instructed Heard to take Ogle’s car. (See id. at 6463-66.)

There were three principal problems with Heard’s account. First, Heard had pled
guilty to one count of complicity to murder, and in exchange for his testimony at
Petitioner’s trial, avoided risking conviction for aggravated murder and the possible
attendant death sentence. (See id. at 6488-89.) Heard therefore had a significant motive
to testify against Petitioner. Second, Heard’s testimony was inconsistent with several
other pieces of trial evidence: (1) Heard denied an acquaintance with either Ogle or
Tincher, (see id. at 6460), however, Earl testified that Heard was acquainted with both
Ogle and Tincher, (see id. at 5887); (2) whereas the coroner testified that Ogle’s body
bore three gunshot wounds, (see id. at 6311), Heard testified that he “heard two
gunshots,” (id. at 6465); and (3) Detective Arthur M. Marx testified that Heard could not
have seen the crime take place in the wooded field from his alleged vantage point inside
Ogle’s car which was parked on the side of the road. (See id. at 6556.) And, third, in
addition to the version of the crimes he described on the witness stand, Heard told
authorities four other stories regarding the crimes. (See id. at 6472-76.)

The questionable nature of the evidence against Petitioner is compounded by
Officer Keefe Snyder’s testimony regarding Petitioner’s version of the events. Snyder
testified that Petitioner “told [Snyder] that he was willing to talk . . . to prove it was not
[Petitioner] that had killed the two girls . . . . [Petitioner] told [Snyder] that [Petitioner
Nos. 07-3882/3893 Montgomery v. Bobby Page 67

and Heard] had been at [Randleman’s] house . . . [Petitioner] and Glover Heard . . . left
the house [at] approximately 5:30 in the morning . . . and were intending to go to
[Petitioner’s] apartment.” (Id. at 6499.) Petitioner admitted that “he had a loaded .380
caliber pistol with him at that time. [Petitioner] stated that he had Glover Heard carry
the pistol because [Petitioner] knew [there were outstanding] warrants on him and he
was afraid that he would be patted down by the police.” (Id. at 6499-500.) Snyder
explained that Petitioner then stated that

when he got in[to] the cab . . . he had only $10. So, [Petitioner and
Heard] took the cab as far as they could on the $10 . . . . So, [Petitioner]
stopped the driver and got out of the cab . . . [and Petitioner and Heard]
walked down to . . . the apartment of Debbie Ogle and Cindy Tincher
. . . . [Petitioner] stated that they knocked on the door, intending to get a
ride from the girls to his apartment . . . . Debbie Ogle answered the door.
They were allowed to enter the apartment. They asked for a ride.
Debbie Ogle informed them that she was getting ready for work and that
she would take them . . . . [Petitioner and Heard] waited there in the
apartment, and in the meantime, Cindy Tincher . . . came out if the
bedroom and said hi to them . . . . Cindy Tincher then returned back into
the bedroom. After [Ogle] was ready, [Petitioner], Debbie Ogle . . . and
Glover Heard left the apartment, leaving [Tincher] at the apartment . . . .
[T]hey then proceeded to [Petitioner’s] apartment . . . . And at that time
Glover Heard and Debbie Ogle dropped [Petitioner] off at . . . his
apartment . . . . When Debbie Ogle and Glover Heard dropped
[Petitioner] off at [Petitioner’s] apartment . . . [Heard] told [Petitioner]
that he wanted to keep the gun with him, but didn’t tell [Petitioner] what
for . . . . During the course of the [next] day, [Petitioner] state[d] that
[Heard] returned his pistol. Upon checking it, [Petitioner discovered]
that the clip [was] empty. And [Petitioner] stated [that] it was loaded
when [Petitioner] had given it to [Heard]. [Petitioner] asked [Heard]
what happened?

(Id. at 6501-04.) Petitioner then equivocated, and first stated that Heard responded “you
don’t even want to know.” (Id. at 6504.) However, later Petitioner told Snyder that

Heard told him, [Tincher] crossed [Heard], so [Heard] offed her . . . .
[Petitioner] stated that Glover Heard threw [Petitioner’s] pistol, the .380.
[Petitioner] . . . picked up the pistol and he pulled back the slide
intending to put one [bullet] into the chamber, but the pistol was empty.
[Petitioner] stated that at this point Glover Heard stated, don’t even try
it, and reached under the seat, [and] pulled out another pistol.
Nos. 07-3882/3893 Montgomery v. Bobby Page 68

(Id. at 6507.) Later, Petitioner told Officer Larry Przeslawski that “he may be able to
show [the police] where [Ogle’s] body” was because Heard had driven him past the
location, bragging about the crimes. (Id. at 6391.) However, Petitioner maintained that
“[Heard] was the one [who] killed both girls. [Petitioner was] only guilty of getting
[Tincher] out of the apartment so [Heard] could kill her because she was the only one
[who] could . . . tie them in with [Ogle].” (Id. at 6397.) The veracity of Petitioner’s
account, like much of the other direct evidence regarding the crimes in this case, is
questionable because Petitioner provided the police with at least two conflicting stories.
(See id. at 6505.) Nevertheless, as Petitioner’s version of the facts was evidence
introduced at trial, it must be accounted for in an analysis of the report’s Brady
materiality.

Although the majority characterizes the evidence against Petitioner as “strong,”
and “considerable,” as illustrated, it is anything but. Rather, as pointed out at
Petitioner’s trial, (see id. at 6493), Petitioner’s guilt hinges upon crediting Heard’s
incredible testimony against Petitioner’s equally problematic account. Even without the
report, proof of Petitioner’s guilt is dubious at best.

The exculpatory evidence contained in the report casts further doubt on the
state’s already weak case against Petitioner. The report “undermin[es] confidence in the
verdict” against Petitioner, and thus is material. Kyles, 514 U.S. at 435. A
comprehensive review of the facts and applicable law mandates that conclusion in this
case, and finding otherwise is patently unreasonable.

The majority’s contention that the report is immaterial because it undercuts
Petitioner’s defense theory entirely misses the mark. The relevant question for Brady
materiality is whether the suppressed evidence “put[] the whole case in such a different
light as to undermine confidence in the verdict.” Id. Any conflict that the report may
have with Petitioner’s defense theory notwithstanding, the report sheds light on
additional potential defense theories that could have been available to Petitioner, thus
further undermining the reliability of an already questionable verdict.
Nos. 07-3882/3893 Montgomery v. Bobby Page 69

Only by unreasonably applying Brady, and ignoring the deeply troubling lack of
proof implicating Petitioner, did the state court find that the report was not material.
Only by reprising those errors can the majority deny Petitioner a writ of habeas corpus.

CONCLUSION

For the foregoing reasons, the state court unreasonably applied clearly
established federal law by rejecting Petitioner’s claim under Brady v. Maryland, and we
should grant Petitioner a writ of habeas corpus on that ground. Because the majority
distorts the facts of this case, and misapplies Brady to find that the report is not material,
I respectfully dissent.