Darryl Gumm v. Betty Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0301p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

DARRYL GUMM, ┐
Petitioner-Appellee, │
│
│ No. 11-3363
v. │
>
│
BETTY MITCHELL, Warden, │
Respondent-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:98-cv-838—Walter H. Rice, District Judge.
Argued: November 20, 2013
Decided and Filed: December 22, 2014

Before: DAUGHTREY, MOORE and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Seth P. Kestner, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Kathleen McGarry, MCGARRY LAW OFFICE, Glorieta, New Mexico,
for Appellee. ON BRIEF: Seth P. Kestner, Charles L. Wille, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kathleen McGarry, MCGARRY
LAW OFFICE, Glorieta, New Mexico, Lawrence J. Greger, Dayton, Ohio, for Appellee.

CLAY, J., delivered the opinion of the court in which DAUGHTREY, J. joined, and
MOORE, J. joined in all but Part II.B.4.c. of the majority’s opinion and in the judgment.
MOORE, J. (pp. 49–50), delivered a separate concurring opinion.

1
No. 11-3363 Gumm v. Mitchell Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Petitioner Darryl Gumm is mentally retarded and has an IQ of
approximately 70. He was convicted by an Ohio jury for the kidnapping, attempted rape, and
murder of ten-year-old Aaron Raines. For these crimes, Petitioner was sentenced to death. His
convictions and sentences were affirmed on direct appeal, and his state post-conviction petition
was found to lack merit by the Ohio state courts. After he filed a petition for federal habeas
corpus, the United States Supreme Court decided in Atkins v. Virginia, 536 U.S. 304 (2002) that
persons who are mentally retarded cannot be executed. In Petitioner’s post-Atkins petition for
state post-conviction review, the Ohio courts adjudicated Petitioner mentally retarded and
reduced his sentence to thirty years to life in prison. In that second petition, the Ohio courts
rejected Petitioner’s non-Atkins claims.

On federal habeas review, the district court granted Petitioner a conditional writ of habeas
corpus on the four claims we have before us on appeal. These claims include (1) that the
government failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S.
82 (1963); (2) that Petitioner received an unfair trial due to the improper admission of incendiary
prior bad acts evidence; (3) that admission of a psychiatric report violated the Sixth
Amendment’s Confrontation Clause; and (4) that the prosecutor’s elicitation of inflammatory
testimony and admission of psychiatric reports constituted prosecutorial misconduct, causing a
denial of due process. Respondent Warden has appealed. For the following reasons, this Court
AFFIRMS the district court’s grant of the conditional writ of habeas corpus based on Petitioner’s
Brady and prosecutorial misconduct claims.1

1
Because we find that the district court properly granted habeas corpus relief on two of Petitioner’s claims,
we do not reach Petitioner’s fair trial and Confrontation Clause claims.
No. 11-3363 Gumm v. Mitchell Page 3

I.

BACKGROUND

A. Factual Background

The facts of the crimes in this case are not disputed and have been summarized by the
Ohio Supreme Court during its review of his convictions and sentences on direct appeal as
follows:

Early on the morning of May 12, 1992, the bludgeoned body of ten-year-old
Aaron Raines was found by police in the basement of an abandoned building in
the lower Price Hill section of Cincinnati. . . .
At 11:00 p.m. on May 11, 1992, Aaron Raines’s family reported Aaron as missing
to Cincinnati police. An extensive neighborhood search took place, culminating
in the discovery of Aaron’s body in the basement of an abandoned building
adjacent to a neighborhood park where Aaron had previously been playing.
Several weeks later Betty Gumm, a friend of the Raines family and defendant’s
sister through adoption, learned that her brother Darryl had been in the
neighborhood on the day of Aaron’s murder. Betty knew that her brother was
acquainted with Aaron, and was familiar with the abandoned buildings where
Aaron’s body was found, having stripped copper out of them many times at night.
Betty called the local “crime Stoppers” number to report her information.
On July 24, 1992, Cincinnati police interviewed appellant at his job site, a tobacco
farm in Brooksville, Kentucky. At that time, Gumm told police he hadn’t been in
Cincinnati since March 1992, and indicated his desire to cooperate with police.
On July 27, Cincinnati police returned to Brooksville to talk to Gumm again, and
Gumm accompanied them back to Cincinnati, ostensibly to clear himself of any
wrongdoing. After extensive questioning in which he changed his statement
several times, Gumm eventually confessed involvement in the murder of Aaron
Raines.
Gumm’s statement disclosed that he and one Michael Bies, a Kentucky
acquaintance, were driven to Cincinnati on May 11 by acquaintances and dropped
off around noon. Gumm told police that he and Bies went to a bar to drink beer,
and later went to the Price Hill park adjacent to two abandoned buildings, where
they encountered Aaron. Gumm and Bies were observed at approximately 7:00
p.m. sitting on a bench in the park in which Aaron last played. Gumm admitted
that he lured Aaron into the abandoned building for sexual purposes by telling
him he would be paid $10 to help strip copper from the buildings. According to
Gumm, after the three entered the first building and crossed over a walkway into
the second building, Bies asked Aaron to perform oral sex for money. When
Aaron refused, Gumm claimed that Bies punched Aaron several times, picked
No. 11-3363 Gumm v. Mitchell Page 4

him up and carried him downstairs to the basement. According to Gumm, Bies
there hit Aaron several additional times, once on the head with a “two by four.”
After that, Gumm stated that he and Bies fled the scene. Gumm claims that he
himself did not hit Aaron at all, but conceded that he might have stepped on his
body as he was attempting to flee from the basement.
When police found Aaron’s body at the crime scene, they noticed several objects
around the body that contained blood and hairs consistent with the victim’s.
These objects included a chunk of concrete, a pipe, pieces of wood, and twine
found wrapped around Aaron’s neck.
Amy Martin, M.D., a former deputy coroner of Hamilton County, examined
Aaron’s body at the crime scene and conducted the post-mortem exam at the
coroner’s office. Dr. Martin testified that Aaron sustained twenty-one lacerations
to the back of his head, representing twenty-one separate blows from an object,
and that some of these wounds manifested lines that matched the threading on the
pipe found next to the body. Five of Aaron’s ribs were broken, which Dr. Martin
found unusual for a boy of his age, since such bones are usually flexible. Dr.
Martin opined that “something like a kicking or stomping” would be the type of
force necessary to break a young boy’s ribs. Dr. Martin further testified that the
left side of Aaron’s face was completely crushed in a manner consistent with a
blow from the chunk of concrete found lying next to the body. Several “chevron
pattern” bruises consistent with the tread of a Nike gym shoe were found on
several areas of Aaron’s body. Gumm had told police that he thought Bies had
been wearing L.A. Gear gym shoes, and acknowledged that he had thrown his
own shoes away.
Dr. Martin testified that Aaron also sustained a broken jaw, chipped teeth and cut
lips, a deep laceration and bone chip on the underside of his jaw, compression
wounds and hemorrhages in the eyes probably caused by compression of twine
wrapped around his neck, and pattern bruises typical of injuries caused by being
struck with a stick or rod.
Dr. Martin found no evidence of any defensive wounds on Aaron’s body, and
opined that the absence of defensive wounds was consistent with Aaron having
been held or restrained while his injuries were being inflicted. Dr. Martin
determined that the cause of death was a combination of blunt impacts to the
head, chest and abdomen, as well as blunt injury to the neck.

State v. Gumm, 653 N.E.2d 253, 257-58 (Ohio 1995); see also State v. Bies, 658 N.E.2d 754,
756-57 (Ohio 1996) (discussing facts of the crime in the context of co-defendant Bies’ appeal).

B. Procedural History

Petitioner was indicted on the following counts: (1) aggravated murder with death penalty
specifications, in violation of Ohio Revised Code § 2929.04(A)(3) (offense committed to escape
No. 11-3363 Gumm v. Mitchell Page 5

detection, apprehension, or punishment for another offense) and Ohio Revised Code
§ 2929.04(A)(7) (murder committed while offender committed or attempted to commit
kidnapping and rape); (2) attempted rape, in violation of Ohio Revised Code § 2923.02; and (3)
kidnapping, in violation of Ohio Revised Code § 2905.01. A jury convicted Petitioner on all
counts.

Petitioner did not testify during the mitigation phase of his trial and called only one
witness—his sister, Karen Ridenour. The jury recommended imposition of the death penalty
after concluding beyond a reasonable doubt that the aggravating circumstances outweighed the
mitigating factors. The trial court imposed the death sentence for the aggravated murder count
and imposed consecutive terms of imprisonment for Petitioner’s attempted rape and kidnapping
convictions. State v. Gumm, 653 N.E.2d 253, 258 (Ohio 1995).

Petitioner’s convictions and sentence were affirmed by the Ohio Court of Appeals, see
State v. Gumm, Nos. C-020907, B-925608, 1994 WL 44411 (Ohio Ct. App. Feb. 16, 1994), and
by the Ohio Supreme Court, see Gumm, 653 N.E.2d, cert. denied, 516 U.S. 1177 (1996).

1. Trial
A number of issues on appeal concern evidence adduced during Petitioner’s trial.
Specifically, Petitioner raises claims relating to the testimony of Phyllis Thacker and Charlotte
Jean Baker, as well as psychiatric reports admitted during the testimony of Petitioner’s expert,
Dr. Henry Leland.

Following opening statements by each side, the prosecutor put on Thacker, whom
Petitioner had lived with on and off for a number of years. After establishing how Petitioner
came to live with Thacker, the prosecutor began questioning Thacker about Petitioner’s
“problem with alcohol.” (J.A. at 247.) This line of questioning drew an objection from
Petitioner’s counsel, but the objection was overruled. Thacker then testified about Petitioner’s
“hateful” nature when he was drunk, explaining that he would “quarrel[] and smart[] off to
people.” (Id. at 248.)

The prosecutor continued to press the issue and eventually focused his attention on a
situation that occurred sometime in January 1992—five months before the murder. Again,
No. 11-3363 Gumm v. Mitchell Page 6

Petitioner’s counsel objected, stating that the events of January 1992 had “nothing to do with the
event that supposedly occurred on May the 11th of ’92, and it’s really not relevant.” (Id. at 250.)
The prosecutor responded that the testimony from Thacker was “part of the background leading
up to the homicide.” (Id.) The trial court overruled the objection and allowed the questioning to
continue. The following exchange ensued:

Q. Mrs. Thacker, I think we were at the point where I asked you why
you became afraid of Junior and why you wanted him out of your
house. Was there anything specific that evening?
A. Junior’s personality changed. He talked crazy talk and he – he
acted strange to me and he said things that made me afraid to be
there with him, just me and my daughter by myself.
Q. What did he say to you that made you afraid?
A. Once he told us – we have a horse. Once he told us that the horse
told him that he was mad at – that she was mad at him because he
was mistreating him, and he was crying and he was serious that
that horse had actually talked to him and told him that.
Q. Did he tell you why the horse was mad at him?
A. She said he wasn’t taking care of him, that he was mistreating him
and that the horse told him that he didn’t love him anymore.
Q. Anything more specific than that? Do you remember what you
told me? . . . Did he tell you one time something he had done with
the horse?
A. (No response.)
Q. Is that difficult for you to tell us?
A. Yes.
Q. You’re going to have to.
[Petitioner’s counsel]: I’m going to object to the form of the
question. He’s leading the witness.
THE COURT: Overruled. Go on. You can tell us. Can you
answer?
A. I can’t say that. He told us that he did it to the horse and the horse
got mad at him.
Q. He did it to the horse?
A. (Indicate yes.)
Q. Is that the word he used or did he use a different word?
No. 11-3363 Gumm v. Mitchell Page 7

A. He used the other word.
Q. You can use the other word.
A. I can say the letter to the other word.
Q. Can you spell it?
A. That’s still cussing. F – he said he fucked the horse.

(Id. at 251-53.) After obtaining this answer about bestiality, the prosecutor moved on to another
topic.

Thacker’s testimony was not limited to the initial presentation. The prosecutor used the
inflammatory information in the rebuttal closing arguments to the jury:

Sex is the motive in this particular case, and it fits the profile. . . . Darryl likes to
shoot pool, and he likes to have sex. It’s probably a strange hobby, but it fits.
Sex is a hobby, and he likes to have it every day: Sex with a woman; sex with a
man, which he’s had on fifteen to twenty occasions according to the evidence; sex
with animals, according to Phyllis Thacker; and sex with little boys.

(Id. at 315 (emphasis added).)

The prosecutor used the second witness in the case, Charlotte Baker, to show that at the
time of the murder, Petitioner was “desperate for a woman . . . to have sex. And he wanted to do
it with anyone.” (Id. at 260 (during a sidebar).) Petitioner’s counsel objected, stating, “[I]t’s
prior acts, and when you get to prior acts, you’re going into some very dangerous evidentiary
grounds,” but the trial court overruled the objection. (Id.) The prosecutor asked Baker questions
as follows:

Q. [D]o you remember the conversations that you had with Junior back in
April or May of ’92?
A. Yes. Just mostly the same thing about he was, you know, coming back to
his girlfriend.
Q. Okay. What specifically did he say with regard to how he was feeling
about having sex?
A. . . . He said that he was going to go home and – he was going to go home
and get him some pussy and that he was going to fuck her until they both
was sore. . . .
Q. Did he say anything about being hard up for a woman?
No. 11-3363 Gumm v. Mitchell Page 8

A. Well, he didn’t say it. You could see it. . . . towards the way he looked at
any woman at all.
Q. Did he ever say that he’s so hard up he’d do it to anyone?
[Petitioner’s counsel]: Now there’s an objection to that, Judge.
THE COURT: Overruled, if you can remember.
A. No.

(Id. at 261-63.) Once again, after obtaining this inflammatory testimony and injecting his own
language, the prosecutor moved on.

The final episode of Petitioner’s trial that is relevant for this appeal concerned the
testimony of Petitioner’s sole witness: psychiatrist Dr. Leland, who opined that Petitioner
evinced “a mild to borderline level of mental retardation” as well as a difficulty “synthesiz[ing]
external stimuli.” (Id. at 281.) This condition would cause Petitioner to “confuse what he had
witnessed or experienced with what had been told to him,” (id. at 284), which, Dr. Leland
explained, made Petitioner’s statements to the police unreliable. Dr. Leland’s opinions were
based, in part, on court-compiled psychiatric reports.

At the close of Dr. Leland’s testimony, the prosecutor moved to strike the entirety of his
testimony unless the psychiatric reports were admitted into evidence. Petitioner’s counsel
objected to this based on hearsay. However, Petitioner’s counsel later stated that he had no
objection to admission of the reports “[e]xcept for whatever hearsay, prejudicial material the
Court is permitting the jury to hear which is not from witnesses who appeared in this case.” (Id.
at 299.) Petitioner’s counsel did not press his objection further because he did not want Dr.
Leland’s testimony stricken from the record.

The psychiatric reports contained bizarre statements and allegations, which were
summarized by the magistrate judge as follows:

[I]n her statement respecting her interview of Charles Bray, social worker Marilyn
Geeding states that “Charles recalls hearing a story from his wife of an incident
where [Petitioner] threw a raccoon into a 5-gallon bucket of paint.” . . . Similarly,
Geeding notes that Bray related [Petitioner]’s having tried to persuade a relative
to “suck him,” but that Bray did not know the date of the incident because it “was
never reported to him, simply the behavior.” . . . Betty Gumm, Petitioner’s
sister . . . “had a report that Darryl had crawled into bed with some woman and
No. 11-3363 Gumm v. Mitchell Page 9

her husband who lived in the apartment across the street from Betty.” . . . Betty
also described to Geeding an incident in which [Petitioner] threw a dog into a
space heater, killing it, and another in which [Petitioner] was barred from a
relative’s house because he had stolen from the relative. . . . Betty Gumm[]
report[ed] that [Petitioner] had tried to rape a friend of hers. Both Charles Bray
and Betty Gumm stated that [Petitioner] was frequently cruel to animals. Bray
reported that [Petitioner] would kick dogs and had planned to kick a neighbor’s
dog to death before he was stopped . . . . Betty Gumm told Geeding that
[Petitioner] had once heated a spoon on the stove, then pressed it against a
nephew’s arm, which left a permanent scar on the boy.

Gumm v. Mitchell, No. 1:98–cv–838, 2009 WL 7785750, *37-38 (S.D. Ohio Sept. 28, 2009)
(citations omitted).

Like Thacker’s testimony, the prosecutor used this evidence in the closing argument to
the jury as follows:

Charles recalls hearing a story from his wife of an incident where [Petitioner]
threw a raccoon into a five-gallon bucket of paint. Charles admits that
[Petitioner] was cruel to animals and would frequently kick them. On one
occasion he recalls [Petitioner] planning to kick the neighbor’s dog to death
before he was stopped by the dog’s owner. Begin to fit the personality?
After this offense occurred, he did report an incident where [Petitioner] attempted
to get one of their nephews to suck him. Begin to fit the pattern? These are from
people who are not police officers, not prosecutors. They’re people, if anything,
who should be in the defense. They interviewed Betty Gumm. You heard what
she said. . . . Betty recalls [Petitioner] tried to rape a friend of hers; however, there
was not enough evidence on this occasion to convict him. He was described as
rowdy, arguing, and fighting when he was drunk. Does that fit the pattern? Betty
recalls[Petitioner] as always being cruel to animals.
On one occasion, [she] recalls [Petitioner] throwing her sister Karen’s daughter’s
dog into a space heater and the dog dying. On another occasion, Betty recalls
[Petitioner] putting a spoon on the stove until it got hot and then putting it on their
nephew’s arm.

(J.A. at 308-09.)

2. State Court Post-Conviction and Federal Habeas Proceedings

On September 16, 1996, Petitioner filed a petition for state post-conviction relief. State v.
Gumm, No. C-960972, 1997 WL 752608, at *1 (Ohio Ct. App. Dec. 5, 1997). The common
pleas court found that all of Petitioner’s grounds for relief were barred by Ohio’s res judicata
No. 11-3363 Gumm v. Mitchell Page 10

rule, which “provides in relevant part that a final judgment of conviction bars a convicted
defendant from raising in any proceeding, except an appeal from that judgment, any issue that
was raised, or could have been raised, at trial or on appeal from that judgment.” Williams v.
Bagley, 380 F.3d 932, 967 (6th Cir. 2004) (citing State v. Perry, 226 N.E.2d 104, 105-06
(1967)). The court of appeals affirmed. Gumm, 1997 WL 752608, at *2-3. The Ohio Supreme
Court refused to hear an appeal. State v. Gumm, 691 N.E.2d 1057 (Ohio 1998) (table decision),
cert. denied, 525 U.S. 884.

Following his defeats in state court, Petitioner filed his federal petition for a writ of
habeas corpus on November 6, 1998. That petition was amended on October 20, 2000, and again
on April 20, 2001. While his federal petition was pending, the Supreme Court, on June 20, 2002,
held that the execution of mentally retarded criminals violates the Eighth Amendment’s
prohibition against cruel and unusual punishments. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
Based on that decision, Petitioner moved to stay his federal habeas proceedings to allow him to
return to state court to litigate the issue of his mental capacity. That motion was granted, and on
April 7, 2003, Petitioner filed a petition in Ohio state court seeking the resolution of his Atkins
claim. State v. Gumm, 864 N.E.2d 133, 135 (Ohio Ct. App. 2006).

The state trial court, using the standards set forth in State v. Lott, 779 N.E.2d 1011 (Ohio
2002), adjudged Petitioner mentally retarded, Gumm, 864 N.E.2d at 135, and reduced his
sentence to life imprisonment with the possibility of parole after thirty years on the aggravated
murder count, eight to fifteen years’ imprisonment on the attempted rape count, and ten to
twenty-five years’ imprisonment on the kidnapping count, Gumm v. Mitchell, No. 1:98-CV-838,
2009 WL 7785750, at *4 (S.D. Ohio Sept. 28, 2009). In addition to his Atkins claim, Petitioner
also presented “claims seeking relief from his conviction on an array of non-Atkins grounds,” all
of which were denied by the trial court.2 Gumm, 864 N.E.2d at 135. The Ohio Court of Appeals
affirmed the trial court’s determination that Petitioner was mentally retarded, id. at 136-40, as
well as the trial court’s dismissal of Petitioner’s non-Atkins claims based on Ohio Revised Code

2
While litigating his Atkins post-conviction petition, Petitioner also submitted an application to reopen his
state court direct appeal. This was denied by the court of appeals on January 16, 2004. The Ohio Supreme Court
affirmed that decision and denied Petitioner’s motion for reconsideration. Gumm, 2009 WL 7785750, at *4.
No. 11-3363 Gumm v. Mitchell Page 11

§ 2953.23, see id. at 140-42. Further appeal to the Ohio Supreme Court was denied. State v.
Gumm, 867 N.E.2d 884 (Ohio 2007) (table decision).

After his return to state courts, Petitioner’s federal habeas claim was reopened, and
Petitioner amended his petition for a third time on September 13, 2007. The petition was
referred to a magistrate judge, who recommended granting Petitioner a conditional writ on his
fair trial, Confrontation Clause, and prosecutorial misconduct claims, but not on his claim under
Brady v. Maryland, 373 U.S. 83 (1963). Gumm, 2009 WL 7785750.

On the Brady claim, the magistrate judge concluded that the Ohio Court of Appeals’
decision was not entitled to AEDPA deference because it was based on that court’s lack of
jurisdiction to entertain the claim under Ohio Revised Code § 2953.23(A)(1)(b). Id. at *18-19.
On de novo review, however, the magistrate judge recommended not granting habeas relief
because “[m]uch of the alleged Brady material is nothing more than rumor, hearsay, hearsay
upon hearsay, hearsay upon hearsay upon hearsay, or worse. Gumm has not explained how any
of that ‘evidence’ would have been rendered admissible in court, or how it would have led to
admissible evidence.” Id. at *25; see id. at *20-27.

Applying AEDPA deference to Petitioner’s fair trial claim, the magistrate judge found
that “the damaging testimony was elicited from the prosecutor’s first witness, tainting the trial
from the outset. The [“fucked a horse”] testimony was irrelevant to the offenses charged, highly
inflammatory, of exceedingly questionable veracity, and not counterbalanced by a limiting
instruction or overwhelming evidence of Gumm’s guilt to render its admission harmless.” Id. at
*28-34. The magistrate judge stated that Thacker’s testimony was “among the most
outrageously inflammatory evidence th[e] Court has ever read in a capital case transcript,” id. at
*30, and concluded that the Ohio Supreme Court’s denial of his claim was both “contrary to
federal law[] and was based on . . . an unreasonable determination of the facts,” id. at *34.

Construing Petitioner’s claim regarding the admission of the psychiatric reports as one
under the Confrontation Clause, the magistrate judge reviewed this claim de novo because
“[a]lthough Gumm did not present this part of his claim to the state supreme court, Respondent
does not advance a procedural default defense.” Id. at *34-35. The magistrate then found that,
under Ohio v. Roberts, 448 U.S. 56 (1980), the prosecutor failed to demonstrate either
No. 11-3363 Gumm v. Mitchell Page 12

unavailability of the witnesses or indicia of reliability, and recommended granting habeas on this
claim.

Finally, with respect to Petitioner’s prosecutorial misconduct claim, the magistrate judge
found that the only preserved portion of this claim regarded the “prosecutor’s elicitation of the
other acts evidence”—that is, the evidence of bestiality and Petitioner’s sexual drive and the
claims made in the psychiatric reports. Id. at *39-40. The magistrate judge found that the
prosecutor had deliberately elicited the testimony about bestiality without adequately informing
the trial court about the specifics of what he intended to bring out. See id. at *42. The
magistrate judge found similarly as to the introduction of the hearsay in the psychiatric reports
and further, the prosecutor “argued [it] as truth . . . in its closing argument.” Id. at *43. In sum,
the magistrate judge held, “the Court concludes that the prosecutors in Gumm’s trial did engage
in misconduct to the substantial prejudice of the defense. The state supreme court’s conclusion
[to the contrary] . . . is objectively unreasonable when evaluated under the governing federal law
as articulated by the United States Supreme Court.” Id. Therefore, the magistrate judge
recommended granting habeas on Petitioner’s prosecutorial misconduct claim as well.

The district court reviewed the report and recommendation and adopted it with respect to
Petitioner’s fair trial, Confrontation Clause, and prosecutorial misconduct claims but rejected it
with respect to Petitioner’s Brady claim. Gumm v. Mitchell, No. 1:98-CV-838, 2011 WL
1237572, at *1 (S.D. Ohio Mar. 29, 2011). On the claims that the magistrate judge
recommended granting relief, the district court essentially adopted the magistrate judge’s
reasoning in toto. See id. at *10-12. The district court disagreed with the magistrate judge’s
assessment of the Brady claim. Whereas the magistrate judge had found that the Brady claim
failed because most of the evidence complained of was inadmissible, the district court noted that
“does not necessarily mean that it would not lead to admissible evidence or that it was not
subject to disclosure.” Id. at *6. The district court was particularly bothered by the prosecutor’s
“failure to turn over tips, interview notes and other evidence concerning suspect Roger Cordray,”
which it believed could have led to reasonable doubt (especially given the prosecutor’s “not very
strong” case). See id. at *7-8. The district court therefore granted Petitioner habeas relief on his
Brady claim as well.
No. 11-3363 Gumm v. Mitchell Page 13

II.

DISCUSSION

A. Standard and Scope of Review

On appeal of a denial or grant of a petition for a writ of habeas corpus, this Court reviews
the district court’s conclusions of law de novo and its factual findings for clear error. Hanna v.
Ishee, 694 F.3d 596, 605 (6th Cir 2012). Such review is, however, subject to the standards set
forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104–132,
110 Stat. 1214 (1996). Id. “[AEDPA] modified a federal habeas court’s role in reviewing state
prisoner applications in order to prevent federal habeas retrials and to ensure that state-court
convictions are given effect to the extent possible under the law.” Bell v. Cone, 535 U.S. 685,
693 (2002) (internal quotation marks omitted). Under 28 U.S.C. § 2254(d), a petitioner may not
obtain federal habeas corpus relief 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.

A state court’s decision is “contrary to” clearly established law 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 (2000). An unreasonable
application of clearly established law occurs when “the state court identified the correct
governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413. “[R]elief is available under
§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could be no ‘fairminded disagreement’
on the question.” White v. Woodall, 134 S. Ct. 1697, 1706-07 (2014). In a case where “a habeas
court must extend a rationale before it can apply to the facts at hand, [] by definition the rationale
No. 11-3363 Gumm v. Mitchell Page 14

was not clearly established at the time of the state-court decision.” Id. at 1706 (internal quotation
marks omitted).

The Supreme Court has explained that “[f]or purposes of § 2254(d)(1), an unreasonable
application of federal law is different from an incorrect application of federal law.” Harrington
v. Richter, 131 S. Ct. 770, 785 (2011) (internal quotation marks omitted). Further, “[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.” Id. at 786
(internal quotation marks omitted). Lastly, “[e]valuating whether a rule application 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.” Id. (internal quotation
marks omitted). This deference reflects the view that § 2254 is only to be used to “guard against
extreme malfunctions in the state criminal justice systems.” Id. (internal quotation marks
omitted).

If, however, a claim was not “adjudicated on the merits in State court proceedings,”
pursuant to § 2254(d), then this Court applies pre-AEDPA standards and reviews any legal issue
de novo. See Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) (“The language of 28 U.S.C.
§ 2254(d) makes it clear that this provision applies only when a federal claim was adjudicated on
the merits in State court.”); Robinson v. Howes, 663 F.3d 819, 822-23 (6th Cir. 2011).

B. Petitioner’s Brady Claim

Petitioner asserts that the state prosecutor failed to honor its obligation under Brady v.
Maryland, 373 U.S. 83 (1963) to disclose information favorable to Petitioner during his trial.
Specifically, Petitioner claims that “[t]he State failed to disclose more than [170] pages of
evidence that detailed their investigation into the death of Aaron Raines.” (Pet’r’s Br. at 8.)

Petitioner’s Brady claim was presented to the Ohio Court of Appeals during his post-
Atkins petition for post-conviction review. That court addressed the Brady claim as follows:

In his fifth claim, Gumm sought relief from his conviction on the ground that the
state had failed to disclose exculpatory evidence in the form of information
developed by the police during their investigation. . . .
No. 11-3363 Gumm v. Mitchell Page 15

...
In support of his fifth claim, Gumm offered Crimestopper reports, lead and tip
sheets, and investigation notes and summaries memorializing information
received and gathered by the police during their investigation. These records
showed what the investigating officers had stated at Gumm’s trial: that the police
had initially had few leads and had cast a very wide net to find the killer. The
officers inquired about sex offenders known to live in or frequent the
neighborhood surrounding the abandoned building where the victim had been
found. They followed tips, often based on rumor and second- and third-hand
information, concerning individuals who had made incriminating statements or
had exhibited suspicious behavior, individuals who had been seen in or around the
abandoned building or the surrounding neighborhood, and individuals who had
been seen with the victim around the time of the murder. They also obtained
information that impeached the victim’s brother’s [Dallas Haynes] credibility and
contradicted the state’s theory concerning when the murder had occurred.
From our review of the record, we conclude that the undisclosed evidence, viewed
collectively, was not “material” in that it could not “reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict[s].”3
Therefore, the state’s failure to disclose the evidence did not deny Gumm his
constitutional right to a fair trial.4 Moreover, the record will not permit the
conclusion that, but for the state’s failure to disclose the evidence, no reasonable
factfinder would have found him guilty of the offenses of which he was
convicted. Thus, Gumm failed to satisfy the [Ohio Revised Code §] 2953.23
jurisdictional requirement of outcome-determinative constitutional error. We
therefore hold that the common pleas court properly declined to entertain his fifth
postconviction claim.5

Gumm, 864 N.E.2d at 133 (footnotes in original). While the Ohio Court of Appeals cited
relevant Brady case law and seems to have made a pronouncement on the merits of Petitioner’s
claim, the court ultimately held that it was without jurisdiction to “entertain” Petitioner’s Brady
claim because Petitioner failed to meet the requirements of Ohio Revised Code § 2953.23(A).

After reviewing this decision and relevant Ohio case law, the magistrate judge found that
§ 2953.23(A) requires “that petitioners demonstrate outcome-determinative constitutional error
by clear and convincing evidence as a prerequisite to the courts’ subject matter jurisdiction.”

3
“See Kyles v. Whitley, 514 U.S. [419,] 435 [(1995)].”
4
“See Brady v. Maryland, 373 U.S. [83,] 87 [(1963)].”
5
“See [Ohio Rev. Code §] 2953.23(A)(1)(b).”
No. 11-3363 Gumm v. Mitchell Page 16

Gumm, 2009 WL 7785750, at *18 (collecting cases). The magistrate judge went on: “Taken to
its logical conclusion, that interpretation leaves the state courts with jurisdiction only over
winning claims.” Id. The magistrate judge concluded that because the Ohio Court of Appeals
found that it lacked subject matter jurisdiction, and because “a judgment rendered by a court
lacking subject matter jurisdiction is void ab initio,” id. (quoting Patton v. Diemer, 518 N.E.2d
941, 944 (Ohio 1988)), the court of appeals’ conclusions on the merits of Petitioner’s Brady
claim were not entitled to AEDPA deference. The magistrate judge applied de novo review to
Petitioner’s Brady claim, and the district court adopted that analysis.

1. Standard of Review

Although the Ohio Court of appeals conducted a brief Brady analysis, it went on to
conclude that it did not have jurisdiction to entertain Petitioner’s second petition for post-
conviction relief. See Gumm, 864 N.E.2d at 133. De novo review is appropriate in this case
because the state court did not adjudicate this claim on the merits and did not address the issue in
an opinion in which the court had jurisdiction over the matter.6 This Court and others have held
that where a state court decides a petitioner’s claim on alternative grounds, one on the merits and
the other on a procedural bar ruling, a federal habeas court may still review that court’s merits
analysis and apply AEDPA deference to that adjudication. See Brooks v. Bagley, 513 F.3d 618,
624 (6th Cir. 2008); Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010), cert denied, 131 S.
Ct. 2117 (2011); Busby v. Dretke, 359 F.3d 708, 721 n. 14 (5th Cir. 2004), cert denied 541 U.S.
1087 (2004); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir. 2002), cert denied, 537 U.S.
1050 (2002). However, this case is not such a case. Instead, the Ohio courts have clearly
indicated that § 2953.23 denies courts subject matter jurisdiction over claims that cannot meet
the statute’s stringent requirements. The Ohio courts have interpreted their own law to conclude
that where a court lacks jurisdiction, any judgment on the merits is rendered void ab initio. This
Court should not reinterpret an issue of state law that has already been interpreted by the state
courts. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (explaining that “it is not the province of

6
It does not appear that the warden appeals the magistrate judge and district judge’s application of de novo
review or the conclusion that the claim is not procedurally defaulted.
No. 11-3363 Gumm v. Mitchell Page 17

a federal habeas court to reexamine state-court determinations on state-law questions.”).
Therefore, we apply de novo review to Petitioner’s Brady claim.

Relief on Petitioner’s Brady claim is warranted because there was an unquestionable and
egregious Brady violation in this case.

2. Clearly Established Law

The goal of the criminal justice system, as set forth in Brady and its progeny “is not
punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the
accused. Society wins not only when the guilty are convicted but when criminal trials are fair.”
Brady, 373 U.S. at 87. To achieve this goal, “Brady held ‘that the suppression by the
prosecution of evidence favorable to an accused . . . 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.” Kyles v. Whitley, 514 U.S. 419, 432 (1995) (quoting Brady, 373 U.S. at 87).
Because a Brady duty is triggered even if the “evidence [is] ‘known only to police investigators
and not to the prosecutor,’” compliance with Brady imposes a duty on the prosecutor “‘to learn
of any favorable evidence known to the others acting on the government’s behalf in this case,
including the police.’” Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (quoting Kyles, 514
U.S. at 437-38). In sum, “regardless of request, 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.” Kyles, 514 U.S. at 433 (internal quotation marks omitted). Or, put
another way, “[t]here are three components of a true Brady violation: [(1) t]he evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
[(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and
[(3)] prejudice must have ensued.” Strickler, 527 U.S. 281-82.

Taken together, the materiality and prejudice prongs do not require a defendant to show
that disclosure of the evidence would have ultimately led to an acquittal. Instead, the defendant
must establish only that in the absence of the evidence he did not receive a fair trial, “understood
as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. If the undisclosed
evidence “could reasonably be taken to put the whole case in such a different light as to
No. 11-3363 Gumm v. Mitchell Page 18

undermine confidence in the verdict,” then a Brady violation has occurred. See id. at 435. See
also Smith v. Cain, 132 S. Ct. 627, 630 (2012) (internal quotation marks omitted) (“[E]vidence is
material within the meaning of Brady when there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.”). “A
reasonable probability does not mean that the defendant would more likely than not have
received a different verdict with the evidence, only that the likelihood of a different result is
great enough to undermine[] confidence in the outcome of the trial.” Id. at 630 (internal
quotation marks omitted).

Significantly for this case, withheld information is material under Brady only if it would
have been admissible at trial or would have led directly to admissible evidence. United States v.
Ogden, 685 F.3d 600, 605 (6th Cir. 2012). “[Inadmissible] information ‘is not evidence at all’
for purposes of Brady and thus can have no ‘direct effect on the outcome of a trial.’”
Wogenstahl v. Mitchell, 668 F.3d 307, 325 n.3 (6th Cir. 2012) (quoting Wood v. Bartholomew,
516 U.S. 1, 6 (1995)). A federal habeas court’s conclusion that undisclosed inadmissible
evidence would lead directly to admissible evidence may not be based “on mere speculation.”
Wood, 516 U.S. at 6.

Importantly, when viewing the undisclosed evidence, courts are to focus on the
cumulative effect of the undisclosed evidence on the jury’s verdict. See Kyles, 514 U.S. at 436-
37 (holding that undisclosed evidence should be “considered collectively, not item by item”).

3. Evidence Withheld

Petitioner identifies several categories of evidence that the state failed to turn over prior
to his trial. This includes evidence regarding other suspects, some of whom confessed to having
committed the crime, evidence regarding the prosecutor’s implied timeline of the crime, and
impeachment evidence.

a. Other Suspects

The state failed to disclose a substantial collection of tips, leads, and witness statements
relating to other individuals who had been investigated for the murder of Aaron Raines. On its
face, the nondisclosure of the identities of these suspects—two of whom were reported to have
No. 11-3363 Gumm v. Mitchell Page 19

confessed to the murder—is an egregious breach of the state’s Brady obligations. See
D’Ambrosio v. Bagley, 527 F.3d 489, 498-99 (6th Cir. 2008); Jamison v. Collins, 291 F.3d 380,
390-91 (6th Cir. 2002). Prosecutors are not necessarily required to disclose every stray lead and
anonymous tip, but they must disclose the existence of “legitimate suspect[s],” D’Ambrosio,
527 F.3d at 499, especially when such information has been specifically requested by the
defendant, as it was in this case. “Withholding knowledge of a second suspect conflicts with the
Supreme Court’s directive that ‘the criminal trial, as distinct from the prosecutor’s private
deliberations, [be preserved] as the chosen forum for ascertaining the truth about criminal
accusations.’” United States v. Jernigan, 492 F.3d 1050, 1056-57 (9th Cir. 2007) (en banc)
(quoting Kyles, 514 U.S. at 440).

i. Roger Cordray

Police investigators amassed a number of reports that Cordray had confessed to the
murder of Aaron Raines, and witnesses told police that Cordray was known to sleep in the
abandoned building where Aaron’s body was found. One witness, George Putteet, told police
that he had seen Aaron in the vicinity of the abandoned building around 10:30 p.m. on the night
of the murder. Putteet further stated that a group of unidentified individuals “were messing with
drunks in the alley,” including Cordray, and were “calling him names & getting him to chase
them.” (J.A. at 55.) Although many of the witnesses’ statements were second-hand, it was
widely believed that Cordray had admitted to numerous people that he was guilty of the crime,
and indeed that he had bragged about it and was “glad Aaron was dead.” One witness reported
that another man “beat up” Cordray after he said that he and a friend had killed Aaron. Cordray
allegedly threatened a woman named Christine Robertson that he would harm her if she told
anyone about a coat belonging to him that was discovered in the abandoned building.

Anthony Steele and Theresa Wright-Steele told police that Cordray had approached them
and said, “I did it. I killed the little kid.” (Id. at 39.) They further reported that Cordray’s hands
and knuckles were “all scraped up,” and although Cordray was drunk and high on Valium at the
time, they believed him when he confessed to killing Aaron. (Id.) Police investigated Cordray
further, but they could not match his shoes to the footprints found at the crime scene. There were
“some similarities” between the ridge pattern of Cordray’s palm print and the prints found at the
No. 11-3363 Gumm v. Mitchell Page 20

scene, but the police were unable to make a positive identification. (Id. at 41.) Cordray denied
any involvement in Aaron’s murder when speaking with the police, and there was no further
investigation because the investigating officer drafting the report thought Cordray was being
truthful.

The magistrate judge described the overwhelming evidence pertaining to Cordray as
follows:

The “Crime-Stoppers” tips include information that an individual by the name of
Roger was known to sleep in the building where Aaron’s body was found. Roger
also frequently drank in the building next door. Another tip came from Barb
Desborough, who indicated that Roger Cordray confessed to the murder.
Desborough also informed police that Vivian Stimetz might know who heard
Roger confess, but the tip sheet stated that Vivian had not been located as of May
18, 1992. Barb Desborough reported hearing from people who attended Aaron’s
funeral that Roger Cordray was bragging that he had killed Aaron, and that he
was glad Aaron was dead. The police eventually found Vivian Stimetz, who was
Aaron’s aunt, and interviewed her. She stated that Betty Gumm, Petitioner’s
sister, communicated a rumor to Stimetz that Cordray was bragging about how he
had beaten Aaron. Stimetz also repeated the rumor that Cordray lived in the
abandoned building where Aaron’s body was found, but stated that she had never
seen him anywhere but on the street. There is a reference to Cordray’s having
been taken away by the paramedics after he said this, but the context of that
comment is unclear.
The police also interviewed Christine Robertson, who said that supposedly there
was a coat belonging to Cordray found in the building where Aaron’s body was
discovered. Robertson stated that she had been threatened by Cordray not to say
anything about the coat or he would harm her. Anthony Steele told the police that
Roger Cordray had confessed to him that he had killed the little kid. Steele
noticed that Cordray’s hands and knuckles were scraped up, too. Steele also
stated that Cordray had confided to him that Cordray was a suspect in the murder,
but that he could never do that because he loves kids.
In an investigative summary, a police officer described a meeting with Anthony
and Theresa Steele, who stated they were near the murder scene with Cordray on
an unspecified date when Cordray told them he had killed the little kid. Although
both Anthony and Theresa were under the influence of drugs or alcohol at the
time, both believed Cordray was being honest with them. The officers returned to
the Steele home to talk with Anthony and Theresa again. The Steeles repeated
their story with somewhat more detail during the second conversation.
The officers eventually located Cordray and took pictures of his shoes and
fingerprinted him. Cordray described his activities on the night of the murder and
denied knowing Aaron Raines or seeing him the night of the murder, and stated
No. 11-3363 Gumm v. Mitchell Page 21

he would never do anything to hurt a child. In addition, the tread on Cordray’s
shoes did not match from the crime scene. A comparison of Cordray’s palm print
to one found at the scene revealed similarities, but no points upon which an
identification of the found print as Cordray’s might be made. The author of the
investigative summary expressed his belief that Cordray was being truthful, and
skepticism that Cordray was involved in Aaron’s murder.
In notes from an interview of Betty Gumm, Petitioner’s sister, it stated that Donna
Jones heard Roger Cordray state that he killed Aaron. There is also a note
indicating that Paul Worthington heard Cordray “bragging to the cops + priest
that he had done the killing.” Talk around the neighborhood was that Cordray
had committed the murder. Another investigative summary basically repeats the
information gathered from Barb Desborough. A conversation with Roberta
Shinkle indicated that William O’Malley beat Cordray because Cordray said he
and a friend had killed Aaron. One story that traveled through several people
before reaching the police involved Rick Baker’s desire to have a pair of very
bloody jeans washed. Baker explained the blood on his jeans by stating that after
Cordray was beaten, he helped Cordray, getting Cordray’s blood on his jeans in
the process. An unidentified individual stated that he or she saw Aaron the night
he was murdered, and that he or she saw Cordray with two other men sitting on
some steps in the vicinity that same night.

Gumm v. Mitchell, No. 1:98–cv–838, 2009 WL 7785750, at *20-21 (S.D. Ohio Sept. 28, 2009).

ii. Raymond Moore

Police received numerous reports potentially implicating Raymond Moore, who had
apparently previously lived in the abandoned building where Aaron’s body was found. The
police records include a statement from a witness who saw Moore enter the abandoned building
around 7:00 p.m. on the night of the murder, which is around the same time that Petitioner and
Michael Bies were seen in the adjacent park. Moore stated that he knew Aaron and he had
looked for him for several hours after being asked to help search by a police officer around 9:00
p.m.; however, Aaron had not been reported missing until 11:00 p.m. Aaron’s uncle, William
Raines, told police that following Aaron’s murder, he noticed Moore acting strangely and that he
seemed to be avoiding Aaron’s mother. A police officer “looked at it and he said he didn’t feel
that [Moore’s palm print] matched what he had from the crime scene.” (Id. at 116.) After
speaking with Moore, the police determined that they “kind of” believed him and effectively
eliminated him as a suspect, particularly after Moore admitted that he had a “shot” memory and
his shoes did not match the prints found at the crime scene. (Id. at 118–19.)
No. 11-3363 Gumm v. Mitchell Page 22

iii. Other Potential Suspects

Although Roger Cordray and Raymond Moore were the most notable and talked-about
alternative suspects, the undisclosed police files are replete with references to other individuals
who may have had some involvement in Aaron’s murder. For example, a boy named Larry
Peters told the police that Reggie Hetsler approached him at a bus stop in Cincinnati and told
him that he killed and raped the little boy along with his brother, Steve Pence. Several
undisclosed documents concerned Garland Inman, an individual who had previously been
adjudicated a juvenile delinquent for the sexual assault of several family members. Inman had
recently been released from juvenile detention, was seen by a named, identified witness near the
scene of the crime on the night of the murder, and a number of individuals believed he might
have been involved in the crime. Another suspect was Claude Justice, who was the subject of a
“crime-stoppers” tip. An anonymous caller reported that Justice is a homosexual man who often
propositioned young boys for sex. The tipster stated that he had seen Justice on prior occasions
emerge from the building where Aaron was found, often followed by a boy. Several witnesses,
including Aaron’s uncle Clayton Raines, believed that a man named Luther Hatton had been
involved in Aaron’s murder because he had a violent criminal history, had been seen near the
abandoned building, and mysteriously disappeared after a night of drinking around 10:00 p.m. on
the night of the murder. Additionally, according to an ex-convict, word around a local prison
was that Hatton had killed Aaron. An anonymous tipster referenced Cody Duffey acting
strangely, harassing “neighborhood kids,” and carrying a crowbar. The tipster said that Duffey
had approached her after Aaron’s murder and asked her what she thought she might do if
someone had killed her child. Duffey’s cold demeanor led her to believe that Duffey knew
something about the murder. Raines also mentioned a man named Carl Miller to the police.
Raines believed Miller might have been involved because he wanted to get out of town quickly
on the night Aaron was murdered.

b. Impeachment of the State’s Witnesses

The state offered the testimony of Aaron’s brother, Dallas Hayes, but did not disclose that
he had failed a polygraph examination and that the polygraph operator believed that Dallas “was
lying on all questions that had to do with Aaron’s death.” (J.A. at 177.) However, as the district
No. 11-3363 Gumm v. Mitchell Page 23

court found, Ohio has long prohibited the admission of polygraph evidence unless both the
prosecutor and defendant agree to admission and numerous safeguards are observed by the trial
judge. See State v. Souel, 372 N.E.2d 1318, 1321-23 (Ohio 1978). Therefore, it is unlikely that
the polygraph evidence would have been admissible, even if the State had disclosed its existence
to Petitioner.

A Crime Stoppers tip sheet showed that an anonymous tipster believed the police should
look into Hayes because he had been playing in the abandoned building where Aaron’s body was
found only five days before the murder. Additionally, Petitioner asserts that he is entitled to
access to a statement by one of Hayes’ friends, who stated that Hayes wanted more freedom and
wished that his mother would spend more time with him. However, in that same statement, the
friend stated that Hayes loved his brother and would not let anything happen to him.

c. Evidence Undermining the State’s Theory of the Case

Petitioner also points to undisclosed evidence that Aaron had been seen in the abandoned
building in the past, which contradicts the state’s argument at trial that Aaron was afraid of the
dark and would not have entered the building unless coerced by another person. Although the
question of how Aaron entered the building appears largely irrelevant to Petitioner’s guilt or
innocence, it potentially undermines the state’s narrative of the crime and contradicts details
provided in Petitioner’s statements to the police.

Next, Petitioner argues that the state’s timeline of events is contradicted by undisclosed
evidence. Specifically, Petitioner identifies numerous witness statements placing Aaron at a
local ice cream stand as late as midnight on the night of the murder. This information was
garnered by the police from firsthand accounts of named, identified people in the neighborhood.
Although the state never definitively established a timeline of Aaron’s movements on the night
of the murder and the medical examiner could not determine a time of death, the state did present
evidence that Petitioner and Bies were last seen in the park adjacent to the abandoned building
around 7:00 p.m., and Aaron’s brother Hayes testified that he last saw Aaron in the evening
before it became dark outside. By suppressing evidence that numerous witnesses had seen
Aaron later that evening, the state likely reinforced its case against Petitioner by suggesting that
he and Aaron were last seen at approximately the same time. Therefore, this undisclosed
No. 11-3363 Gumm v. Mitchell Page 24

contradictory evidence could have been used by the defense to disrupt the state’s narrative of the
crime.

4. Analysis

a. Admissibility of Undisclosed Evidence

The state’s primary argument against the materiality of the undisclosed evidence in this
case is that much of it is inadmissible hearsay and could not have led to the discovery of
admissible evidence. As the Supreme Court and this Court have explained, without some
indication of admissibility, such evidence cannot be considered material for purposes of Brady.
See Ogden, 685 F.3d at 605. And this indication cannot be merely speculative. Wood, 516 U.S.
at 6. The magistrate judge concluded that “[m]uch of the alleged Brady material is nothing more
than rumor, hearsay, hearsay upon hearsay, hearsay upon hearsay upon hearsay, or worse.
Gumm has not explained how any of that ‘evidence’ would have been rendered admissible in
court, or how it would have led to admissible evidence.” Gumm, 2009 WL 7785750, at *24.
The district court did not adopt this portion of the magistrate judge’s report and instead
concluded that while it agreed that “much of the undisclosed evidence was itself inadmissible, . .
. that does not necessarily mean that it would not lead to admissible evidence or that it was not
subject to disclosure.” Gumm, 2011 WL 1237572, at *6.

In Wood, a habeas petitioner alleged that the state had violated Brady by failing to
disclose the results of a polygraph examination that could have been used to impeach a witness.
516 U.S. at 5-6. The Ninth Circuit granted the writ, finding that although the polygraph results
were themselves inadmissible, their disclosure could have led to admissible evidence or affected
defense counsel’s preparation for trial. The Supreme Court reversed, finding that neither the
Ninth Circuit nor the petitioner could identify precisely how the trial could have been affected, or
admissible evidence discovered, had the admittedly inadmissible polygraph results been
disclosed. Id. at 6-7. The Court further reasoned that the results would have had no material
effect under Brady because the remainder of the evidence against the petitioner was
overwhelming.
No. 11-3363 Gumm v. Mitchell Page 25

Courts applying Wood have rejected the writ when a single piece of inadmissible
evidence such as a polygraph examination or hearsay statement was not disclosed by the state,
concluding that the result of the trial could not have been altered by the nondisclosure of only
inadmissible evidence. See, e.g., Hutchison v. Bell, 303 F.3d 720, 743 (6th Cir. 2002)
(addressing a single hearsay statement). However, this case is not one where a petitioner is
complaining about the failure to disclose a single inadmissible statement or polygraph test. On
the contrary, Petitioner alleges that the state failed to disclose a small mountain of favorable
evidence that he and his counsel would have used to undermine the prosecution’s case. Some of
this evidence consists of rumors and double-hearsay statements which would likely have been
inadmissible at trial, but much of the evidence could very well have been admitted or clearly led
to the discovery of admissible evidence. To prevail on a Brady claim, a petitioner need only
show that the undisclosed evidence was “likely admissible under Ohio law.” Wogenstahl,
668 F.3d at 325 n.3. Of course, when subject to AEDPA deference, it must be that any
reasonable jurist would believe that the inadmissible evidence would lead to admissible
evidence. That is clear in this case.

First, Cordray’s various confessions would have come into evidence in some manner had
Petitioner known about the statements. Petitioner would have called Cordray to testify and three
things could have happened: (1) Cordray could have testified consistent with his prior
statements, thereby confessing in court to Aaron’s murder; (2) Cordray could have denied
murdering Aaron, in which case, his prior confessions could come in by way of impeachment, as
prior inconsistent statements under Ohio Rule of Evidence 613; or, perhaps most likely,
(3) Cordray would not have appeared or would have appeared but asserted his Fifth Amendment
privilege against self-incrimination. In this third scenario, Cordray would have been unavailable
under Ohio Rule of Evidence 804(A)(1) such that his prior confessions could have come in as
statements against interest under Ohio Rule of Evidence 804(B)(3). See State v. Landrum,
559 N.E.2d 710, 719-20 (Ohio 1990). Rule 804(B)(3) permits an unavailable declarant’s
statement to be admitted if it “tended to subject the declarant to civil or criminal liability . . . that
a reasonable person in the declarant’s position would not have made the statement unless the
declarant believed it to be true,” if that statement is accompanied by “corroborating
circumstances [which] clearly indicate the trustworthiness of the statement.” In Landrum, the
No. 11-3363 Gumm v. Mitchell Page 26

Ohio Supreme Court found sufficient corroborating circumstances where the declarant
“spontaneously” confessed shortly after a murder and there was additional evidence tying the
declarant to the murder. 559 N.E.2d at 720 (citing Chambers v. Mississippi, 410 U.S. 284, 300-
01 (1973)).

Like in Landrum, Cordray’s confessions were spontaneous: he walked up to the Steeles
and told them that he killed “the little kid” and bragged to others in the neighborhood about
killing Aaron. Additionally, other reports place Cordray near the scene of the crime and gave
him motive for killing Aaron. Therefore, a court would find that there were sufficient
corroborating circumstances to render Cordray’s confessions admissible. See Landrum,
559 N.E.2d at 720. Further, the fact that Cordray had a similar palm print to the one left at the
scene could have been admitted by calling the forensic investigator, and Petitioner could have
called Putteet to testify about witnessing Aaron teasing Cordray on the night in question.

Additionally, much of the evidence given to the police was in the form of eyewitness
statements from named, identified individuals whose testimony would be admissible at trial.
Had Petitioner known of the existence of these witnesses, he could have offered testimony of the
following: (1) Roger Cordray was known to sleep in the abandoned building where Aaron’s body
was found; (2) a group of people was seen on the night of the murder “messing with” Cordray in
a nearby alley; (3) Anthony Steele observed that Cordray’s hands and knuckles were scraped;
(4) there were “some similarities” between Cordray’s palm print and the print recovered at the
crime scene; (5) Raymond Moore lived in the abandoned building where Aaron’s body was
discovered at some point; (6) Moore was seen entering the building several times on the night of
the murder; (7) Moore was acting strangely and avoiding Aaron’s mother; (8) Garland Inman, a
convicted sex offender, was seen near the crime scene on the night of the murder; (9) Claude
Justice was known to use the abandoned buildings for sex; and (10) Luther Hatton had been seen
near the abandoned building and mysteriously disappeared around 10:00 p.m. on the night of the
murder. None of this was inadmissible as hearsay or for any other reason.

Although some of the evidence against the multiple other suspects might have been
inadmissible, the fact that police had received reports about multiple other suspects could have
been introduced at trial to call into question the thoroughness of the investigation. Therefore,
No. 11-3363 Gumm v. Mitchell Page 27

contrary to the magistrate judge’s conclusion that much of the evidence was immaterial for
Brady purposes, Petitioner has correctly identified a whole slew of undisclosed, material
evidence, much of which was admissible or could easily have led to admissible evidence.

b. Consideration of the Evidence in Context

When the prosecution fails to turn over numerous pieces of favorable evidence, the
proper focus of Brady’s materiality inquiry is on the cumulative effect of the unsuppressed
evidence on the jury’s verdict. See Kyles, 514 U.S. at 436-37. “[T]he omission[s] must be
evaluated in the context of the entire record.” United States v. Agurs, 427 U.S. 97, 112 (1976).

Considering the quality and quantity of the evidence that the state failed to disclose, the
potential for that evidence to have affected the outcome of Petitioner’s trial is inescapable. Even
armed with only the evidence implicating Roger Cordray, defense counsel would have easily
constructed an alternative narrative of the crime. Defense counsel would have been able to
establish through eyewitnesses that a group of people, which may have included Aaron Raines,
was taunting Cordray near the abandoned building around 11:00 p.m. on the night of the murder.
Witnesses place Aaron in the same area at approximately the same time. Cordray, who was
known to sleep in the abandoned building, later confessed to numerous people that he had
murdered Aaron. After the murder, a witness noticed that Cordray’s knuckles were scraped.
Even though the police identified “some similarities” between Cordray’s palm print and the print
found at the scene of the crime—a similarity they were unable to establish with Gumm’s print—
they eliminated Cordray as a suspect because they simply believed him when he denied
involvement in the crime. Taken together, these facts demonstrate that Cordray had the means,
motive, and opportunity to murder Aaron. These facts, had they been disclosed, would have
provided a compelling counter-narrative to the state’s theory of the case and would have called
into question the thoroughness of the police investigation.

The capacity for the undisclosed evidence to have affected the outcome of Petitioner’s
trial becomes even clearer when viewed in light of the small amount of evidence that the state
adduced at Petitioner’s trial. In fact, the prosecutor admitted in his opening statement to the jury
that “the police had very little concrete evidence” and that the case came down to what neighbors
had seen that night. (J.A. at 242-43.) The prosecutor framed the case as the neighbors
No. 11-3363 Gumm v. Mitchell Page 28

coalescing around Petitioner as the murderer, but the evidence regarding Cordray and the holes
that the neighbors could have poked in the police’s timeline would have been directly
contradictory to the prosecutor’s view of the crime. The state never discovered any physical
evidence linking Petitioner to the crime. Instead, the state focused on the fact that Petitioner was
seen in a park near the abandoned building around 7:00 p.m. on the night of the murder.
However, the relevance of this fact is clearly dubious given the numerous witnesses who saw
Aaron much later that night—evidence which was admissible but never disclosed to the defense.
Second, the state brought in inflammatory and prejudicial evidence, which this Court finds was
unrelated to the crimes and was of questionable validity. Additionally, much of that
inflammatory evidence was unreliable hearsay, hearsay upon hearsay, and hearsay upon hearsay
upon hearsay.

Finally, and most importantly, the state relied on Petitioner’s own confession to the
murder. Undoubtedly, a confession “is strong evidence of [] guilt,” Harbison v. Bell, 408 F.3d
823, 824 (6th Cir. 2005), but there are numerous reasons why a jury would have discounted
Petitioner’s statements to the police, taking into account Petitioner’s diminished mental capacity,
especially had it been presented with a compelling alternative theory of the crime based on this
mountain of exculpatory evidence. In fact, the only defense witness at Petitioner’s trial testified
regarding the weakness of Petitioner’s confession.

Petitioner’s statements to the police were far from overwhelming evidence of his guilt.
Petitioner had a questionable capacity to understand what was happening to him, and he likely
could not distinguish between what he was told during his encounters with the police and what
he actually remembered from the day of the murder. Although the jury was presented with
Petitioner’s recorded confession, the jury also listened to extensive testimony by the defense’s
expert witness, who provided strong reasons for discounting Petitioner’s confession. Some
excerpts from the trial transcript are particularly telling of Petitioner’s capacity to provide a
reliable confession in this case. Defense counsel asked Dr. Leland for his opinion regarding
whether petitioner “would be able to relate the same set of facts accurately two times in a row or
several times.” (J.A. Vol. II, at 284.) The following colloquy ensued:
No. 11-3363 Gumm v. Mitchell Page 29

A. He could relate the same type – the same type of facts consistently as long
as there was no other intrusion of new facts.
Q. What would happen if there was an intrusion of new facts?
A. Then he – then that would contaminate the original memory, and he
wouldn’t be sure which he was remembering and which he wasn’t; that is,
it would become jumbled sets of information because he at no time would
have been able to synthesize them to make them into a real idea.
Q. Do you have an opinion with reasonable psychological certainty as to
whether or not he would confuse what he had witnessed, he would get
them very confused.
A. Well, it would – if what he had been told concerned what he had
witnessed, he would get them very confused.

(Id.) Although the expert witness did not view the recordings of Petitioner’s confessions, Dr.
Leland did view a recording of Petitioner’s walk-through of the abandoned building in which
Aaron Raines’ body was found. Dr. Leland was questioned regarding his opinion as to the
reliability of the statement Petitioner made during that walk-through. He stated in response, “I
think it’s even less reliable . . . . Because, after watching the tape and comparing the two
programs, I find that Darryl primarily was agreeing with the policemen. As the policemen said
things, Darryl would shake his head, meaning yes, and occasionally add things. But the things
that he was asked and added had nothing to do with the testimony in this case.” (Id. at 285–86.)
Finally, Petitioner’s counsel asked Dr. Leland whether, based on his examination of Petitioner
and his review of the psychiatric reports, he had an opinion as to whether Petitioner had “the
ability to accurately describe an event or facts which occurred ten weeks prior to the time he
described them.” (Id. at 287.) In response, Dr. Leland responded, “I don’t think he has the
ability to accurately describe any series of events. I, for example, asked him what he had been
doing in jail for the last three, four days, and he couldn’t describe that.” (Id.) On cross-
examination, Dr. Leland also stated that he did not believe Petitioner “understands what the truth
is as you would define the word truth. You can’t judge a damaged brain the way you would
judge a normal brain.” (R. 170-8, Leland Testimony, at 895.) Dr. Leland also testified on cross-
examination that Petitioner “had difficulty synthesizing what he remembers. . . . [And t]he
problem with depending on that is if you introduce other isolated facts that relate the same
situation that he doesn’t know, he may remember them also, in which case he doesn’t know
which the real facts are and which are the ones you’ve introduced.” (Id. at 895–96.)
No. 11-3363 Gumm v. Mitchell Page 30

Upon his second petition for post-conviction relief, Petitioner was found to be mentally
retarded by the Ohio state courts. According to a psychological evaluation performed by
licensed psychologist Dr. David A. Ott, which was submitted to the district court during
Petitioner’s second evidentiary hearing, mentally retarded individuals use a “cloak of
competence” in an “attempt to present themselves as ‘normal’ (or at least more capable than they
actually are) as a means of avoiding the stigma of being identified as mentally retarded.” (R.
170-18, Ott Psych. Eval., at 7.) Dr. Ott explained that Petitioner’s behavior in response to the
officers’ questioning was consistent with this notion. (Id. (“Although the contact note indicates
the officer’s perception that ‘most of the conversation’ was ‘macho talk,’ Mr. Gumm’s apparent
efforts to present himself as a capable farmer and pool player despite the significant adaptive
deficits he exhibited are consistent with the notion of the cloak of competence. . . . Mr. Gumm
appeared to the officers as a follower, indicating the ineffectiveness with which he attempted to
portray himself as more competent.”).)

This observed behavior is very much consistent with the Supreme Court’s concerns
expressed in Atkins v. Virginia, 536 U.S. 304, 320 (2002) about the heightened possibility of
false confessions from mentally retarded individuals. The Court recognized that while mentally
retarded individuals “frequently know the difference between right and wrong,” their
impairments cause “diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand others’ reactions.” Id. at 318. Mentally
retarded individuals are particularly “susceptible to the perceived wishes of authority figures.”
Morgan Cloud et al., Words without Meaning: The Constitution, Confessions, and Mentally
Retarded Suspects, 69 U. Chi. L. Rev. 495, 511 (2002). This is true “[e]ven when no direct
pressure is exerted on them [because] they may be inclined to make false statements out of a
desire to please perceived authority figures.” Id. “If an authority figure such as a police officer
makes it clear to the individual that he wants a confession, even an innocent disabled person may
confess so a law enforcement officer will not become angry with him.” Id. at 512. Additionally,
“[w]hen faced with a coercive situation . . . mentally retarded persons generally have difficulty
finding refuge even in silence, as often they feel compelled to answer – even when the questions
are beyond their abilities.” Paul T. Hourihan, Earl Washington’s Confession: Mental
No. 11-3363 Gumm v. Mitchell Page 31

Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1493 (1995). This means that
“mentally retarded defendants are more likely to confess when placed in an interrogational
situation, less likely to give a truthful statement, and yet more likely to be found by a court to
have voluntarily, knowingly, and intelligently relinquished his or her constitutional right against
self-incrimination.” Id. at 1494. In fact, as the magistrate judge’s report and recommendation
recognized, numerous studies reveal that “the mentally retarded are disproportionately
represented in ‘false confession’ cases.” Gumm, 2009 WL 7785750, at *32 (citing Brandon L.
Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 88-89 (2008); Steven A. Drizin & Richard
A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 920,
971 (2008)).

While a jury could have accepted (and did accept in this instance) that Petitioner’s
confession was genuine, notwithstanding these problems, the jury was not presented with any
counter narrative of the crime. Instead, what was placed before the jury was a confession of
minimal reliability, inflammatory statements by the prosecutor, heavily prejudicial testimony
from Petitioner’s former housemates, and hearsay statements lacking any indicia of reliability
contained in the psychiatric reports. Although the jury likely viewed Petitioner’s confession with
some skepticism following this testimony, without a counter narrative of the crime and with all
of the egregious “bad acts” evidence that came into the record, the jury likely placed greater
weight in the confession than was warranted. In this context, the state’s failure to turn over this
evidence implicating other individuals in the murder and calling into question the state’s own
account of the crime can “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.

c. AEDPA Deference

Although AEDPA does not apply to Petitioner’s Brady claim, even if we were confined
by the stringent limitations in § 2254(d)(1), habeas relief is still appropriate because no
reasonable jurist could find that the disclosure of the small mountain of exculpatory evidence in
this case would not undermine confidence in the verdict. In its recent decision in Woodall, the
Supreme Court clarified application of § 2254(d)(1) as follows:
No. 11-3363 Gumm v. Mitchell Page 32

Section 2254(d)(1) provides a remedy for instances in which a state court
unreasonably applies [Supreme] Court[] precedent; it does not require state courts
to extend that precedent or license federal courts to treat the failure to do so as
error. Thus, if a habeas court must extend a rationale before it can apply to the
facts at hand, then by definition the rationale was not clearly established at the
time of the state-court decision.

134 S. Ct. at 1706 (internal citation and quotation marks omitted). Therefore, the Court held,
habeas relief is improper where a state court’s decision constituted an unreasonable failure to
extend clearly established federal law. This holding does not apply in the instant case because
Petitioner’s Brady claim falls directly under the Supreme Court’s clearly established law as
dictated in Brady and its progeny, and does not require an extension of current law. Therefore,
even under AEDPA deference, habeas relief is appropriate in this case.

This is not a difficult finding to make. In this case, there was no physical evidence
linking Petitioner to the crime. The police were unable to locate Petitioner’s shoes to match
those to the prints found at the crime scene. Police were also unable to match Petitioner’s palm
print to the palm print uncovered at the scene. As a result, the prosecutor made his case through
Petitioner’s demonstrably unreliable confession and egregiously prejudicial and unreliable
testimony and hearsay statements contained in the psychiatric reports. On the other hand, the
undisclosed evidence, much of which would have been admissible in some form at trial,
demonstrated that other suspects were near the scene at the approximate time of the crime. One
of those suspects confessed on at least two occasions to two different people. That same suspect
who confessed to the crime was seen in the area around the time of the crime, being harassed by
a group of kids. That same suspect’s palm print had some similarities with the palm print
obtained from the scene. Where the evidence against Petitioner was so weak in this case and the
undisclosed evidence so strong, it is impossible for this Court to conclude that reasonable jurists
could disagree as to whether the undisclosed evidence, when considered together, “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.

The Supreme Court found in Kyles that “[t]here was a considerable amount of [] Brady
evidence on which the defense could have attacked the investigation as shoddy.” Here, it is no
different. Even prior to anyone mentioning Petitioner as a possible suspect, the police had a
No. 11-3363 Gumm v. Mitchell Page 33

great deal of evidence, much of which would have been admissible in some form, showing that
other individuals could have been involved in the crime, yet police ended their investigations of
these individuals based on little more than a whim that the individuals were being truthful.

Two identified witnesses came forward stating that Cordray had confessed to the murder
and two additional people were believed to have heard Cordray confess. Cordray’s palm prints
were a partial match to the palm prints retrieved at the scene of the crime. Defense counsel
could have conducted additional investigation by interviewing Anthony and Theresa Steele,
Donna Jones, and Paul Worthington, and calling them during trial to ask about Cordray’s
confessions. Although the latter two individuals did not provide direct statements to the police,
the undisclosed evidence indicates that they overheard Cordray confessing that he killed Aaron
Raines. Despite all of this evidence amassed against Roger Cordray, the police officers merely
decided they believed his story and ended their investigation into that suspect. After locating
Cordray, photographing his shoes, and fingerprinting him, the police interviewed Cordray about
his activities on the night of the murder. When he denied knowing Aaron Raines or seeing him
that night and indicated that he would never hurt a child, “[t]he author of the investigative
summary expressed his belief that Cordray was being truthful, and skepticism that Cordray was
involved in Aaron’s murder.” Gumm v. Mitchell, No. 1:98–cv–838, 2009 WL 7785750, at *20-
21 (S.D. Ohio Sept. 28, 2009). Had all of this material been presented to the jury, Petitioner’s
defense counsel could have attacked as “shoddy” this decision to end the investigation.

Similarly, police received a number of reports implicating Raymond Moore in the crime,
including one from Aaron’s uncle. Apparently Moore lived in the abandoned building and a
witness saw him entering the building around 7:00 p.m. on the night of the murder. Moore made
a number of strange and questionable statements to the police regarding his conduct on the night
of the murder. Despite all of this evidence, the police simply determined that they “kind of”
believed Moore and eliminated him as a suspect, without pressing any further. This evidence
would have allowed Petitioner to “undermine the ostensible integrity of the investigation.”
Kyles, 514 U.S. at 447.

This Court is confident that even under AEDPA deference, Petitioner is entitled to habeas
relief. The Ohio Court of Appeals unreasonably applied clearly established federal law including
No. 11-3363 Gumm v. Mitchell Page 34

Brady, Kyles, and their progeny. A habeas petitioner need not demonstrate that undisclosed
Brady evidence would have rendered a different outcome in his trial or demonstrated that he was
factually innocent. To prevail under Brady, a petitioner need only establish that the undisclosed
evidence, when considered collectively, “could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” The Ohio Court of Appeals’ measly
statement regarding the merits of Petitioner’s Brady claim constituted an unreasonable
application of clearly established federal law because no reasonable jurist could have found that
the disclosure of this small mountain of exculpatory evidence, much of which was admissible or
would clearly have led to admissible evidence, would not have undermined confidence in the
verdict in this case.

C. Petitioner’s Prosecutorial Misconduct Claim

In addition to his Brady claim, Petitioner asserts that the admission of prior bad acts
evidence through testimony and the psychiatric reports and the manner by which the evidence
was used in argument constitute prosecutorial misconduct that require the grant of habeas relief.

1. Standard of Review

Before the Ohio Supreme Court, Petitioner asserted that the prosecution’s argument
pushing for admission of the full psychiatric reports as well as the use of material contained in
those reports constituted prosecutorial misconduct. In the same section of Petitioner’s merits
brief, he asserted a fair trial claim that the trial court improperly admitted Thacker and Baker’s
testimony. (J.A. at 206 (“It is submitted that the lower courts [sic] admission into evidence
testimony as to the Appellant’s drinking and sexual habits . . . was clearly prejudicial error.”).)
In response to those assertions, the Ohio Supreme Court concluded as follows:

Gumm first challenges the admissibility of testimony elicited from witnesses
Phyllis Thacker and Charlotte Baker. . . . Gumm asserts that his chance for a fair
trial was irretrievably lost after this testimony [sic]. . . .
We note that the prosecution did not revisit these factual disclosures in its
summation or emphasize them in any way thereafter. Even assuming, arguendo,
that the challenged evidence should have been deemed inadmissible, we find on
the basis of the record as a whole that Gumm received a fair trial . . . .
No. 11-3363 Gumm v. Mitchell Page 35

Second, Gumm asserts that the state engaged in prosecutorial misconduct in
connection with the testimony of defense witness Dr. Henry Leland. . . .
Gumm argues that admission of the entire packet of materials permitted the
prosecution to engage in further misconduct by allowing it to focus on prior bad
acts of defendant (past instances of cruelty to animals and an alleged attempt to
rape a friend of his sister).
This claim is without merit. Dr. Leland was called as the sole defense witness to
show that Gumm’s confession to police was not reliable. In response to the
prosecutor’s question whether the packet of information helped him form the
basis of his opinions on Gumm, Dr. Leland stated that the packet “presented the
major basis, because when I was able to compare that information with my
information, it became clear what the problem was.”
[Ohio Rule of Evidence] 703 provides that “[t]he facts or data in the particular
case upon which an expert bases an opinion or inference may be those perceived
by him or admitted in evidence at the hearing.” See State v. Jones, 459 N.E.2d
526 (1984), the syllabus of which provides: “Pursuant to [Ohio Rule of Evidence]
703, facts or data upon which an expert bases an opinion must be those perceived
by him or admitted in evidence at the hearing.” (Emphasis added).
While Gumm may have been forced to offer the Court Psychiatric Center packet
into evidence to save the testimony of his only witness, the motion by the
prosecutor does not constitute prosecutorial misconduct. The Rules of Evidence
and relevant precedent support the propriety of the prosecution’s motion in this
regard.

Gumm, 653 N.E.2d at 265-67. Therefore, the Ohio Supreme Court based its prosecutorial
misconduct decision solely on Petitioner’s asserted claim about the psychiatric reports, and we
apply AEDPA deference to this decision.

Petitioner did not argue before the Ohio Supreme Court that the prosecutor’s elicitation
of and argument concerning Thacker and Baker’s testimony constituted prosecutorial misconduct
denying him due process of law. Therefore, this claim has not been exhausted in state court.
Under normal circumstances, this failure to present the claim to the state court would constitute a
procedural default. Lovins v. Parker, 712 F.3d 283 (6th Cir. 2013) (“[A] claim is procedurally
defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no
longer available at the time the federal petition is filed because of a state procedural rule.”); see
also In re Abdur’Rahman, 392 F.3d 174, 186 (6th Cir. 2004) (en banc) (describing this situation
as “forfeiture by failure to exhaust”), vacated on other grounds by Bell v. Abdur’Rahman,
545 U.S. 1151 (2005). However, the state has explicitly waived the procedural default defense.
No. 11-3363 Gumm v. Mitchell Page 36

In its “Return of Writ,” the state “concede[d] that Gumm has not procedurally defaulted the
allegation of prosecutorial misconduct of introducing ‘other acts’ evidence” while also arguing
that “Gumm is procedurally defaulted on the remaining claims.” (R. 163, Return of Writ, at
206.) As this Court has acknowledged, “[p]rocedural default is normally a defense that the State
is obligated to raise and preserv[e] if it is not to lose the right to assert the defense thereafter.”
Arias v. Lafler 511 F. App’x 440, 444 (6th Cir. 2013). Therefore, although Gumm failed to
present his claims regarding testimony from Thacker and Baker, he has not procedurally
defaulted those claims. And as the Supreme Court has explained “[a] court of appeals is not
required to raise the issue of procedural default sua sponte. It is not as if the presence of a
procedural default deprived the federal court of jurisdiction, for [the Supreme] Court has made
clear that in the habeas context, a procedural default, that is, a critical failure to comply with state
procedural law, is not a jurisdictional matter.” Trest v. Cain, 522 U.S. 87, 89 (1997).

AEDPA deference is warranted only where “a federal claim was adjudicated on the
merits in State court.” Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) (emphasis in original).
“When the evidence leads very clearly to the conclusion that a federal claim was inadvertently
overlooked in state court [or never presented to the state court], § 2254(d) entitles the prisoner to
an unencumbered opportunity to make his case before a federal judge.” Id. “Consequently,
where a state court has not previously ruled on the merits of a claim, we apply the de novo
standard of review.” Murphy v. Ohio, 551 F.3d 485, 494 (6th Cir. 2009).

Therefore, this Court applies AEDPA deference to the state court’s determination
regarding the prosecutor’s motion to admit the psychiatric reports and the use of hearsay
statements contained in the reports in rebuttal closing arguments, but we apply de novo review to
Petitioner’s claims regarding testimony from Thacker and Baker because the state court never
considered those claims.

2. Clearly Established Law

A prosecutor “is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation . . . in a criminal prosecution is not that it shall win a case, but that
justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other
grounds by Stirone v. United States, 361 U.S. 212 (1960). To achieve this goal, the prosecutor
No. 11-3363 Gumm v. Mitchell Page 37

“may prosecute with earnestness and vigor . . . . But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Id. “It is fair to say that the average jury, in a greater or less degree, has confidence that these
obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed.
Consequently, improper suggestions, insinuations, and, especially, assertions of personal
knowledge, are apt to carry much weight against the accused when they should properly carry
none.” Id. In particular, statements meant to inflame the passions of the jury are often
considered improper. Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006). Additionally,

the State may not show defendant’s prior trouble with the law, specific criminal
acts, or ill name among his neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator of the crime. The
inquiry is not rejected because character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them as to prejudge one
with a bad general record and deny him a fair opportunity to defend against a
particular charge.

Michelson v. United States, 335 U.S. 469, 476 (1948).

At the same time, this Court recognizes that our review of alleged prosecutorial
misconduct is “the narrow one of due process, and not the broad exercise of supervisory power
that [we] would possess in regard to [our] own trial court.” Donnelly v. DeChristoforo, 416 U.S.
637, 642 (1974) (internal quotation marks omitted). See also Smith v. Phillips, 455 U.S. 209,
221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and
may intervene only to correct wrongs of constitutional dimension.” When this Court reviews a
prosecutorial misconduct claim, “it is not enough that the prosecutor’s [conduct was] undesirable
or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Instead,
that conduct must have “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. Further, the Supreme Court has noted that “the Darden standard is a
very general one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-case
determinations.’” Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
No. 11-3363 Gumm v. Mitchell Page 38

In Parker, the Supreme Court instructed that this Court may not consult its own
precedent to decide under AEDPA whether a state court’s adjudication on the merits was
contrary to clearly established federal law. 132 S. Ct. at 2155 (internal citation and quotation
marks omitted) (“[C]ircuit precedent does not constitute clearly established Federal law . . . . It
therefore cannot form the basis for habeas relief under AEDPA.”). The Court explained that its
“highly generalized standard for evaluating claims of prosecutorial misconduct set forth in
Darden bears scant resemblance to the elaborate, multistep test employed by [our Court].” Id.
Therefore, because our review of Petitioner’s claim regarding admission and argument of
hearsay statements in the psychiatric reports is subject to AEDPA deference, we must apply the
“highly generalized standard for evaluating [such claims] set forth in Darden” and its progeny,
not our own four-factor test. Id.

In Darden, 477 U.S. at 182, the Supreme Court held that the petitioner’s due process
right was not violated because “[t]he prosecutor’s argument did not manipulate or misstate the
evidence, nor did it implicate other specific rights of the accused such as the right to counsel or
the right to remain silent.” The Court was also convinced by the fact that many of the
prosecutor’s objectionable statements were responsive to arguments initially asserted by defense
counsel and the trial court properly instructed the jurors that the arguments of counsel were not
evidence. The Court also found particularly compelling the fact that the “weight of the evidence
against [the] petitioner was heavy.” Id. Similarly, in Donnelly, the Supreme Court found telling
the fact that “[c]onflicting inferences ha[d] been drawn from the prosecutor’s statement by the
courts below,” and concluded that it was “by no means clear that the jury did engage in the
hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it
would seize such a comment out of context and attach this particular meaning to it.” 416 U.S. at
643-44. Additionally, in Donnelly, the prosecutor emphasized that his own argument did not
constitute evidence and the trial judge admonished the jury to ignore the prosecutor’s improper
remark. The Court concluded that “[a]lthough some occurrences at trial may be too clearly
prejudicial for such a curative instruction to mitigate their effect, the comment in this case is
hardly of such character.” Id. at 644. “The consistent and repeated misrepresentation of a
dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact
on the jury’s deliberations. Isolated passages of a prosecutor’s argument, billed in advance to the
No. 11-3363 Gumm v. Mitchell Page 39

jury as a matter of opinion not of evidence, do not reach the same proportions. . . .” Donnelly,
416 U.S. at 646-47. See also Romano v. Oklahoma, 512 U.S. 1, 13-14 (1994) (concluding that a
prosecutor’s misconduct did not warrant reversal because the trial court provided clear
instructions to the jurors and the nature of the evidence made it “impossible to know how [it]
might have affected the jury.”).

3. Analysis

a. Prior Bad Acts Contained in the Psychiatric Reports

The Ohio Supreme Court concluded that the psychiatric reports were properly admitted
into evidence and that the prosecutor did not act improperly in arguing the information contained
in the reports. Even if this was proper under the Ohio Rules of Evidence, it does not mean that
the prosecutor was free to use the materials contained in that packet however he wished. The
manner in which he used those materials was improper in this case. The prosecutor aggressively
pushed to have the reports admitted into the record as support for the defense expert’s testimony,
and then turned around and argued the information contained in those hearsay statements as
though it was unrebutted, reliable fact. Unlike some of the Supreme Court’s cases described
above, this case does not concern unclear statements in a closing argument that can be
interpreted in different ways. Additionally, this case is not one in which the trial judge clearly
instructed the jurors regarding propensity evidence and the value of hearsay statements.

A portion of the prosecution’s closing argument bears repeating:

Charles recalls hearing a story from his wife of an incident where [Petitioner]
threw a raccoon into a five-gallon bucket of paint. Charles admits that
[Petitioner] was cruel to animals and would frequently kick them. On one
occasion he recalls [Petitioner] planning to kick the neighbor’s dog to death
before he was stopped by the dog’s owner. Begin to fit the personality?
After this offense occurred, he did report an incident where [Petitioner] attempted
to get one of their nephews to suck him. Begin to fit the pattern? These are from
people who are not police officers, not prosecutors. They’re people, if anything,
who should be in the defense. They interviewed Betty Gumm. You heard what
she said. . . . Betty recalls [Petitioner] tried to rape a friend of hers; however, there
was not enough evidence on this occasion to convict him. He was described as
rowdy, arguing, and fighting when he was drunk. Does that fit the pattern? Betty
recalls [Petitioner] as always being cruel to animals.
No. 11-3363 Gumm v. Mitchell Page 40

On one occasion, [she] recalls [Petitioner] throwing her sister Karen’s daughter’s
dog into a space heater and the dog dying. On another occasion, Betty recalls
[Petitioner] putting a spoon on the stove until it got hot and then putting it on their
nephew’s arm.

(App. at 308–09.) Although unrelated and removed in time from the crimes in this case, the
prosecution put forth unreliable hearsay statements regarding cruelty to animals and bizarre sex
acts to suggest that Petitioner had a propensity to commit acts like the crimes in question. This
evidence was clearly meant to “inflame the passions of the jury,” Slagle, 457 F.3d at 518, and
paint Petitioner as a sexual deviant and animal-killer who deserved to be removed from society.

While it is clear that the statements contained in the psychiatric reports were extremely
prejudicial and the prosecutor’s decision to argue the hearsay statements as fact to the jury ought
to be “universally condemned,” it is difficult to find under the highly restrictive standards set
forth by the Supreme Court’s interpretation of AEDPA that this misconduct rises to a level that,
given the “leeway” of the Darden standard, no “fairminded jurist” could have reached the
conclusion that the Ohio Supreme Court did in this case. See Richter, 131 S. Ct. at 786. The
magistrate judge and district court’s contrary result rested on the application of the multi-factor
prosecutorial misconduct test from this Court’s decision in Bowling v. Parker, 344 F.3d 487 (6th
Cir. 2003). See Gumm. 2009 WL 7785750, at *39, 43. Post-Matthews, this was clearly
erroneous. 132 S. Ct. at 1255-56. Further, the magistrate judge spent time analyzing the
propriety of the prosecutor’s motion to admit the psychiatric reports under the Ohio Rules of
Evidence. Gumm, 2009 WL 7785750, at *43. This was also erroneous because evaluation of a
state’s decision on its evidentiary rule is “no part of a federal court’s habeas review of a state
conviction.” Estelle, 502 U.S. at 67. In light of the fact that the Ohio Supreme Court (rightly or
wrongly) determined that the prosecutor’s motion was proper under Ohio evidentiary rules, it is
difficult to say, even considering the inflammatory items included in the report, that no
reasonable jurist could agree with the Ohio court’s conclusion that the prosecutor’s conduct did
not violate Petitioner’s due process rights. Therefore, this Court cannot find, subject to AEDPA
deference, that Petitioner is entitled to habeas relief based solely on the prosecutor’s motion to
admit hearsay statements contained in the psychiatric reports.
No. 11-3363 Gumm v. Mitchell Page 41

b. Testimony by Thacker and Baker

Because Petitioner’s claims regarding testimony by Thacker and Baker were not
presented to the Ohio courts, the state courts did not adjudicate those claims on the merits. As a
result, we review those claims de novo. See Robinson, 663 F.3d at 822-23. Therefore, this Court
must determine whether the prosecutor’s remarks and actions surrounding testimony by Thacker
and Baker, “in the context of the entire trial, were sufficiently prejudicial to violate respondent’s
due process rights.” Donnelly, 416 U.S. at 639.

Under this standard of review, this Court has “employ[ed its own] two-part test to
determine whether prosecutorial misconduct require[d] a new trial.” Cristini v. McKee, 526 F.3d
888, 899 (6th Cir. 2008). Again, “[w]e are well aware that we possess no supervisory powers
over state trial proceedings and that our scope of review over allegedly prejudicial arguments by
state prosecutors is narrow. Prosecutorial argument must be so egregious so as to render the
entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir. 1979).
On de novo review, our first step is to determine whether the challenged conduct and remarks by
the prosecution were improper. Boyle v. Billion, 201 F.3d 711, 717 (6th Cir. 2000); United
States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). If we find that the prosecutor’s conduct
was improper, “we then ‘look to see if [it was] flagrant and warrant[s] reversal.’” Boyle,
201 F.3d at 717 (quoting United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999)). To make
such a determination, we examine four factors: “1) whether the statements tended to mislead the
jury or prejudice the defendant; 2) whether the statements were isolated or among a series of
improper statements; 3) whether the statements were deliberately or accidentally before the jury;
and 4) the total strength of the evidence against the accused.” United States v. Francis, 170 F.3d
546, 549–50 (6th Cir. 1999). The first of these factors incorporates a consideration of “whether
the trial judge gave an appropriate cautionary instruction to the jury.” United States v. Monus,
128 F.3d 376, 394 (6th Cir. 1997). And when assessing these factors, “the court must view the
totality of the circumstances.” Hanna v. Price, 245 F. App’x 538, 544 (6th Cir. 2007).

i. Impropriety of the Prosecution’s Conduct

In the instant case, the prosecutor’s conduct was “so deplorable as to define the term
‘prosecutorial misconduct.’” Boyle, 201 F.3d at 717. Although this Court has previously stated
No. 11-3363 Gumm v. Mitchell Page 42

that “[a] prosecutor may rely in good faith on evidentiary rulings made by the state trial judge
and make arguments in reliance on those rulings,” Cristini, 526 F.3d at 900, this Court has also
held on a number of occasions that “[w]hen a prosecutor dwells on a defendant’s bad character to
prove that he or she committed the crime charged, we may find prosecutorial misconduct,” id. at
899. See also Walker v. Morrow, 458 F. App’x 475, 490 (6th Cir. 2012) (internal quotation
marks omitted) (“[T]his Court has concluded that a prosecutor commits misconduct by making
an animated recitation of properly-admitted character evidence . . . and by asserting that
members of the jury should be afraid to run into [the defendant] at night . . . .”).

In Cook v. Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1979), this Court concluded that a
prosecutor’s conduct was improper where the prosecutor’s closing argument constituted a
“persistent Ad hominem attack on the petitioner’s character.” The prosecutor’s attack on the
petitioner’s character was particularly egregious because it “pervade[d] the closing argument”
and “[t]he prosecutor continually portrayed the petitioner as a lowlife who had to be kept from
society.” Id. And in Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000), we confronted
a situation in which the prosecutor put forth a “bad character argument[] that the alleged criminal
acts ‘fit’ the evidence of [the defendant]’s character and lifestyle.” The Court concluded that
“while the evidence as to Washington’s character was admissible for certain limited purposes,
the prosecutor went far beyond the bounds of permitted conduct when presenting that evidence
to the jury” by “impl[ying] that the jurors should consider Washington’s unseemly character
when rendering their verdict; in his rebuttal closing argument, he explicitly urged them to do so.”
Id. at 699-700. Although it is not improper merely to direct a jury’s attention to properly
admitted evidence, it can be improper for a prosecutor to use that evidence to suggest that a
criminal defendant had a propensity to commit the charged crimes. Id. at 700 (finding that the
misconduct was severe and improper because the “character attack pervaded the closing
argument and rebuttal.”).7

7
On the other hand, in Flood v. Phillips, 90 F. App’x 108, 120 (6th Cir. 2004), this Court declined to find
that a prosecutor’s remarks pertaining to a habeas petitioner’s alleged homosexual tendencies were improper. The
Court found particularly compelling the fact that the prosecutor had qualified his statement about the petitioner’s
tendencies, “conced[ing] to the jury that his remarks were speculative and that he had no evidence, thereby
mitigating their harmful effect.” Id.
No. 11-3363 Gumm v. Mitchell Page 43

As the above-referenced case law demonstrates, the prosecutor’s acts and remarks in this
case were improper. Although the Ohio trial court overruled defense counsel’s objections to
admission of Thacker and Baker’s testimony, which was likely error in this case, the intentional
and deliberate manner by which the prosecutor obtained the testimony and the ultimate
propensity argument made during his rebuttal closing argument constitute improper conduct.
Here, the conduct was improper because the prosecutor intentionally elicited evidence of
questionable validity that is far more prejudicial than probative. The prosecutor knew what
testimony he was searching for and did not stop until he obtained the exact language he sought
from Thacker. Additionally, the prosecutor was aware of the questionable veracity of that
testimony because he knew Petitioner had not only discussed “fucking a horse” but had also
indicated that the horse was talking to him during that same conversation with Thacker. The
prosecutor followed the same pattern with Baker—he pushed Baker in an attempt to get the exact
statement he wanted on the record, even though Baker could not recall that statement ever having
been made by Petitioner. Just as he pushed for Thacker to say “fucked the horse,” the prosecutor
pushed Baker to say that Petitioner had previously stated he was “so hard up he’d do it to
anyone.” However, Baker was not willing to say those words and the prosecution pushed too
far. Instead, he improperly got them on the record through his leading question.

The prosecutor then used this evidence to depict Petitioner as an overly-confident sexual
deviant who has a propensity to have sex with little boys and commit crimes such as those in this
case. In fact, the prosecutor injected an implication in his rebuttal closing argument that was
inappropriate and unfounded on the record. While there was questionable evidence of
Petitioner’s sex with women, men, and a horse, there was absolutely no evidence on the record
that Petitioner ever had sex or was motivated to have “sex with little boys.” (J.A. at 315.) See
Walker, 458 F. App’x at 490 (internal quotation marks omitted) (“[A] prosecutor’s act of
misrepresenting facts in evidence is improper, since doing so may profoundly impress a jury and
may have a significant impact on the jury’s deliberations.”).
No. 11-3363 Gumm v. Mitchell Page 44

ii. Flagrancy of the Prosecution’s Conduct

Having found that the prosecutor’s remarks were improper, we move on to determine
whether the remarks were so flagrant as to warrant reversal, considering the four factors set forth
in Francis, supra, and Bowling, supra.

The only thing given AEDPA deference in this instance is the Ohio Supreme Court’s
decision that the prosecutor’s conduct with respect to the psychiatric reports does not constitute
prosecutorial misconduct. What the Ohio Supreme Court did not address, however, is whether
the prosecutor’s elicitation and use of Thacker’s and Baker’s testimony in isolation constitute
prosecutorial misconduct or whether the cumulative effect of those statements and the
prosecutor’s arguments regarding those statements amounts to prosecutorial misconduct. In fact,
on de novo review, this Court’s test directs us to consider a series of statements and actions to
determine the flagrancy of the prosecutor’s conduct. In this case, we are not left to guess
whether the prosecutor’s egregious acts, viewed in the context of the rest of the evidence
presented at trial, were flagrant and whether habeas is therefore an appropriate form of relief.

In the instant case, the prosecutor relentlessly pressed the witnesses to obtain specific
testimony, testimony which was highly inflammatory and unreliable. The prosecutor then used
the inflammatory information contained in Thacker and Baker’s testimony in the rebuttal closing
arguments to the jury to argue that Petitioner is a sexual deviant who likely committed the
crimes:

Sex is the motive in this particular case, and it fits the profile. . . . Darryl likes to
shoot pool, and he likes to have sex. It’s probably a strange hobby, but it fits.
Sex is a hobby, and he likes to have it every day: Sex with a woman; sex with a
man, which he’s had on fifteen to twenty occasions according to the evidence; sex
with animals, according to Phyllis Thacker; and sex with little boys.

(J.A. at 315 (emphasis added).)

It is clear that the prosecutor’s misconduct was flagrant and severe. Like the misconduct
in Bordenkircher and Hofbauer, the prosecutor intended to mislead the jury and prejudice the
defendant by using highly inflammatory and prejudicial evidence, much of which was known to
be of questionable reliability, to assert that Petitioner had a propensity to commit the acts in
No. 11-3363 Gumm v. Mitchell Page 45

question. Particularly, with regard to Thacker’s testimony, the statement that Petitioner had
mentioned having had sex with a horse was unreliable due to the fact that in that same
conversation with Thacker, Petitioner also stated that the horse had spoken to him. The
prosecutor then reminded the jury of this evidence by arguing its truth in his rebuttal closing
argument, which also included reference to the subject of Baker’s testimony. The prosecutor
intended to prejudice the jury against Petitioner by portraying him as a sexual deviant whose
character aligned with the crimes in this case.

These statements were neither isolated nor innocently placed before the jury. In
Bordenkircher, although this Court found that the prosecutor’s conduct was improper, the Court
concluded that the conduct was not so flagrant as to require reversal. The Court found
particularly compelling the fact that the prosecutor’s improper arguments were made in response
to arguments first asserted by defense counsel, “diminish[ing] the allegations made concerning a
due process violation.” Bordenkircher, 602 F.2d at 121. In this case, on the other hand, the
prosecutor’s elicitation of prejudicial testimony and propensity arguments were part of a series of
deliberate and improper statements that were used at multiple points throughout the trial to
convince the jury that Petitioner had a propensity to commit the alleged crimes. The
prosecution’s propensity-driven argument was deliberate and was not made in response to
defense counsel’s arguments. It was “part of a calculated effort used to evoke strong . . .
emotions” against Petitioner. United States v. Payne, 2 F.3d 706, 715 (6th Cir. 1993). Thacker’s
damaging testimony was one of the first things heard by the jury in this case and one of the last
things argued to the jury in the prosecution’s rebuttal. It is clear from the prosecutor’s line of
questioning that he had interviewed Thacker before trial and knew which stories from her
interview he wished to place before the jury. From the beginning, the prosecutor intended to
infect Petitioner’s trial with prejudicial and unreliable evidence. When Thacker was
uncomfortable using the harsh and damaging language sought by the prosecutor, he continued to
push. He pushed Thacker until she reluctantly stated to the jury that Petitioner told her that he
“fucked the horse.” Although the prosecutor moved on from that subject after obtaining the
language he was searching for, he pressed Baker in a similar manner, even putting words on the
record that she denied ever having heard Petitioner say. The discussion of irrelevant prior bad
acts did not end there, however. The prosecution’s rebuttal closing argument included an
No. 11-3363 Gumm v. Mitchell Page 46

express reference to Thacker’s testimony and indirect references to the subject of Baker’s
testimony. The prosecution did not simply move on from the damaging testimony; he reminded
the jurors of it through his propensity argument just before they left for deliberations.

Additionally, as explained above, the other evidence against Petitioner was weak. This
Court’s cases granting and denying prosecutorial misconduct claims seem to be distinguishable
largely on one ground: the total strength of the evidence against the accused. In Bordenkircher,
for example, this Court found particularly important the fact that “proof of guilt was
overwhelming. The petitioner was effectively caught red handed.” 602 F.2d at 120. In Cristini,
too, although this Court found that “some of the prosecutor’s opening and closing argument went
beyond the bounds of the ruling that permitted other acts evidence to establish Defendant’s
identity,” it concluded that any error in connection with the misuse of that evidence was harmless
because the rest of the evidence was so strong against the defendant that “the prior bad acts
evidence and the propensity arguments did not have a substantial or injurious effect on the jury’s
verdict. 526 F.3d at 900.

In the instant case, on the other hand, there was no physical evidence linking Petitioner to
the crime. There were no eyewitnesses to the murder. In fact, the only evidence outside of the
challenged improper bad acts testimony was Petitioner’s confession, non-probative statements by
Petitioner’s former female housemates that he began acting strange, looked at them in awkward
ways, frequently talked about sex with women, and became hateful when he drank alcohol, and
the psychiatric reports argued as fact in the prosecutor’s closing argument. Although we must
find under the stringent requirements of AEDPA that the prosecutor’s argument regarding the
psychiatric reports did not constitute prosecutorial misconduct, that does not prevent us from
viewing the hearsay statements to determine the credibility, reliability, and strength of this
evidence against Petitioner under the fourth factor of our test. The evidence contained in these
reports had little to no reliability due to the many layers of hearsay. For example, Charles Bray
relayed a story to a social worker about Petitioner having tried to convince a relative to “suck
him.” However, Bray could not provide additional information because he did not himself
observe the incident and was only told about the purported behavior by another individual. Bray
also recalled hearing a story from his wife about Petitioner throwing a raccoon into a bucket of
No. 11-3363 Gumm v. Mitchell Page 47

paint. The report, however, does not indicate whether Bray’s wife observed the incident herself
or heard about it from another party. Without more information and adequate indicia of
reliability, these hearsay statements provided very little support for the prosecution’s case.
Additionally, most of the information contained in the reports, such as the prejudicial stories of
cruelty to animals, is unrelated to the crimes in this case. Even if the stories were accompanied
by an adequate indicia of reliability, Petitioner’s cruelty to animals is unrelated to the attempted
rape and murder of a ten-year-old boy. As a result, the psychiatric reports do not provide strong
support for the prosecution’s case. Finally, the strongest evidence in the record supporting
Petitioner’s conviction is his taped confession. However, as explained above, Petitioner’s
confession is not reliable and cannot be given great weight in this case.

In Berger, 295 U.S. at 89, the Supreme Court was confronted with a situation in which
the conduct of the prosecuting attorney was not “slight or confined to a single instance, but one
where such misconduct was pronounced and persistent, with a probable cumulative effect upon
the jury which cannot be disregarded as inconsequential.” The Court concluded that “[i]f the
case . . . had been strong, or . . . the evidence of his guilt overwhelming, a different conclusion
might be reached.” Id. However, finding that the case against the petitioner was weak, the Court
granted habeas relief. Here, unlike Cristini and Bordenkircher, the case against Petitioner was so
weak and the prosecutor’s misconduct so “pronounced and persistent” that it too had a “probable
cumulative effect upon the jury which cannot be disregarded as inconsequential.” Id.

It is difficult for this Court not to conclude under de novo review that the prosecutor’s
conduct in this case was “calculated to incite the passion and prejudices of the jurors” and “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006) (internal quotation marks omitted).
Therefore, habeas relief is proper on Petitioner’s prosecutorial misconduct claim.

III.

CONCLUSION

We recognize that § 2254(d) is not “a substitute for ordinary error correction through
appeal,” but is, instead, a “guard against extreme malfunctions in the state criminal justice
No. 11-3363 Gumm v. Mitchell Page 48

systems.” Richter, 131 S. Ct. at 786 (internal quotation marks omitted). This is such a case in
which extreme malfunctions in the state criminal justice system prejudiced Petitioner and caused
him to suffer extreme violations of his constitutional rights. For the foregoing reasons, we
AFFIRM the district court’s grant of a conditional writ of habeas corpus.
No. 11-3363 Gumm v. Mitchell Page 49

____________________________________________________

CONCURRENCE IN PART AND IN THE JUDGMENT
____________________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and concurring in the
judgment. I concur in all but Part II.B.4.c. of the majority’s opinion. As the majority explains
and the magistrate judge extensively documented, Ohio courts consistently have interpreted Ohio
Revised Code § 2953.23(A) to deprive courts of subject-matter jurisdiction if its requirements
are not met. See Gumm v. Mitchell, No. 1:98-CV-838, 2009 WL 7785750, at *18 (S.D. Ohio
Sept. 28, 2009) (collecting cases). One of its requirements—that “[t]he petitioner shows by clear
and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would
have found the petitioner guilty of the offense of which the petitioner was convicted”—requires a
court to assess the merits of a claim. Ohio Rev. Code § 2953.23(A)(1)(b). This requirement
does appear to lead to an odd outcome. As noted by the magistrate judge, “[t]aken to its logical
conclusion, that interpretation [taken by the Ohio Court of Appeals] leaves the state courts with
jurisdiction only over winning claims.” Gumm, 2009 WL 7785750, at *18.

We are not in a position to question, however, Ohio’s interpretation of its own statute.
When interpreting federal statutes and rules, we have been directed by the Supreme Court to
look critically to determine whether a rule is actually jurisdictional or more accurately described
as claims-processing. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010). But
when a state court interprets a state statute as jurisdictional, we are bound by principles of
comity and federalism to defer to that interpretation. See, e.g., Vroman v. Brigano, 346 F.3d
598, 604 (6th Cir. 2003) (“This court, however, does not function as an additional state appellate
court reviewing state-court decisions on state law or procedure.”); Israfil v. Russell, 276 F.3d
768, 771 (6th Cir. 2001) (“Principles of comity require federal courts to defer to a state’s
judgment on issues of state law and, more particularly, on issues of state procedural law.
Because state courts are the final authority on state law, federal courts must accept a state court’s
interpretation of its statutes and its rules of practice.”) (internal citations omitted).
No. 11-3363 Gumm v. Mitchell Page 50

Ohio courts hold that “[i]f a court acts without jurisdiction, then any proclamation by that
court is void.” State ex rel. Tubbs Jones v. Suster, 701 N.E.2d 1002, 1007 (Ohio 1998). After
appearing to discuss briefly the merits of Petitioner’s Brady claim, the Ohio Court of Appeals
“h[e]ld that the common pleas court properly declined to entertain” the Petitioner’s Brady claim
because “Gumm failed to satisfy the R.C. 2953.23 jurisdictional requirement of outcome-
determinative constitutional error.” State v. Gumm, 864 N.E.2d 133, 142 (Ohio Ct. App. 2006).
Therefore, under Ohio law, the Ohio Court of Appeals’ discussion of the merits of Petitioner’s
Brady claim is void and is not a ruling “on the merits” for the purposes of AEDPA. See 28
U.S.C. § 2254(d). The State’s attempt to characterize the Court of Appeals’ brief merits
discussion as an alternate holding on federal grounds ignores this clearly established rule of Ohio
law, and improperly analogizes to alternate merits holdings when a court finds a claim
procedurally barred. Appellant Br. at 26. Declining to evaluate a claim that is procedurally
barred is manifestly different than determining that a claim cannot be evaluated because of a lack
of subject-matter jurisdiction. In the latter situation, a court cannot give an alternate merits
ruling under Ohio law that has any legal effect.

As I find that the Ohio Court of Appeals’ decision regarding Petitioner’s Brady claim was
not a ruling on the merits, and therefore it is subject to de novo review, I do not think it is
necessary to reach whether the Court of Appeals’ decision was unreasonable assuming AEDPA
deference applies.