dissenting.
Because the withheld police report is not material, I respectfully dissent.
In order to establish a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Montgomery must show that the following three requirements are met: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In terms of the first requirement, the pretrial police report — which indicated that several witnesses had seen one of Montgomery’s alleged victims alive four days after the State argued that he killed her — is favorable to Montgomery because it casts doubt on the State’s theory of the case. As for the second requirement, it is undisputed that this pretrial police report was suppressed by the State. Indeed, Montgomery was not aware of it until six years after his trial, when it was disclosed pursuant to a formal request for police records. In terms of the third requirement for a Brady violation, however, the parties dispute whether Montgomery “has established the prejudice necessary to satisfy the ‘materiality’ inquiry.” Id. at 282, 119 S.Ct. 1936. In order to establish prejudice, “the nondisclosure [must be] so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Id. at 281, 119 S.Ct. 1936. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Wilson v. Parker, 515 F.3d 682, 701-02 (2008) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 *454(1985)). I would find that Montgomery has not satisfied this third requirement.
Montgomery argues that disclosure of this pretrial police report undermines confidence in his conviction. The evidence at trial, however, overwhelmingly implicated Montgomery as the triggerman in the deaths of Ogle and Tincher. First, both victims were shot with a .380 pistol that Montgomery bought approximately two weeks before their deaths. Second, Montgomery’s uncle saw Montgomery drunk and in possession of the murder weapon only a few hours before Tincher was found shot dead approximately one-half of a mile from Montgomery’s home on March 8. Third, Montgomery admitted to being at Ogle and Tincher’s apartment on March 8, and it is undisputed that Ogle was reported missing sometime shortly after Montgomery’s acknowledged visit. Fourth, Montgomery was wearing a dark blue pinstriped suit during the night in question, and a few hours after Tincher was found dead and Ogle disappeared, Montgomery took a dark blue pin-striped suit to the dry cleaners that was soaking wet and that made a “brownish dripping mess on the floor” as it dried. Fifth, Heard testified that he was with Montgomery and witnessed Montgomery shoot Ogle. Finally, Montgomery showed police officers where Ogle’s body was on March 12.
Given this overwhelming evidence that Montgomery shot Tincher and Ogle, the question is whether the Ohio Court of Appeals unreasonably applied Brady in its determination that the withheld police report is not material. The Ohio court found that the vague police report does not undermine confidence in Montgomery’s conviction. The police report stated that in the early morning of March 12, David Ingram “and several friends ... saw a Blue Ford Escort with Debbie Ogle driving around.... Later they again saw her as a passenger in same auto. Debbie Ogle waved to them as they knew her from Rogers High School. She was with white male with long sideburns. She did not appear distressed.” Viewed alone, this police report could cast doubt on the State’s theory that Montgomery killed Ogle on March 8. However, when viewed in the context of the overwhelming evidence supporting the State’s theory that Montgomery did kill Ogle, the Ohio court was clearly not unreasonable in its determination that the report’s disclosure does not undermine confidence in the verdict. It is worth emphasizing that Montgomery led police to Ogle’s body the same day of this alleged sighting. At noon on March 12, Montgomery voluntarily sought out the police and admitted to them that both Tincher and Ogle had been killed with his gun, though he stated that Heard had shot them. In other words, mere hours after the alleged sighting of Ogle, Montgomery had already confessed to the police that he had been involved in their murders and that they had been killed with his gun. In light of this overwhelming evidence of Montgomery’s guilt, I would find that the withheld police report is not material.
“[S]aying that a particular nondisclosure was not a Brady violation in no way suggests that the prosecutor did not have a duty to disclose the information.” Bell v. Bell, 512 F.3d 223, 235 n. 7 (6th Cir.2008). However, in this case, I would find that failing to disclose the police report does not amount to constitutional error because Montgomery has not shown that the evidence would have created a reasonable probability of a different result at either the guilt phase of trial or at sentencing.1 *455Id. at 236. I would thus reverse the district court’s writ of habeas corpus on this ground.
I also would deny habeas relief on Montgomery’s additional two claims. Although the majority opinion does not address Montgomery’s remaining claims, he also appealed the denial of relief on the following two grounds: (1) whether the trial court should have disqualified a juror who advised the court that she had been a psychiatric patient and that she had seen the defense psychiatrist in a dream twenty years earlier in which he appeared as the devil; and (2) whether the court should have ordered a change of venue on account of pretrial publicity. I agree with the district court’s reasoning and would deny Montgomery’s petition as to these two claims as well.
First, Montgomery claims that a juror’s note to the court disclosing psychiatrist demonstrates .that she was biased, irrational, and incompetent. After receiving this note from the juror, the trial judge questioned the juror about her impartiality and competence. The trial judge retained the juror only after she reassured him that she could set aside her dream and determine the case solely based on the evidence at trial. I would find that the trial judge acted appropriately and that Montgomery has failed to offer clear and convincing evidence that the juror could not or did not remain impartial. See Williams v. Bagley, 380 F.3d 932, 944 (6th Cir.2004) (noting that a trial court’s finding of impartiality is entitled to the presumption of correctness, as required by 28 U.S.C. 2254(e)).
As for the second claim, while this case did involve pretrial publicity, the relevant question in a challenge to the trial court’s decision not to change venue is whether the jurors “could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). The Supreme Court has stated that a “trial court’s findings of juror impartiality may be overturned only for manifest error.” Mu’Min v. Virginia, 500 U.S. 415, 428, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (internal citation and quotation marks omitted). Montgomery *456has not demonstrated that there was a “pattern of deep and bitter prejudice shown to be present throughout the community,” Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (internal citation and quotation marks omitted), such that the trial court’s findings of impartiality were manifest error.
Because I would deny Montgomery’s petition for habeas corpus on all three of these grounds, I dissent.
. The majority opinion finds fault with focusing only on the guilt phase of trial in assessing the probability of a different result, overlooking the fact that the suppressed police report *455is irrelevant to any sentencing issue. The majority's view necessarily is that a juror might have been persuaded by residual doubt — lingering doubts from the guilt phase of trial that, in theory, could affect a juror's decision at sentencing. At the time of Montgomery’s conviction and sentencing, defendants were entitled to rely on residual doubt as a mitigating factor. See State v. Watson, 61 Ohio St.3d 1, 572 N.E.2d 97, 111 (1991). But, in recognition of the illogic of its use, residual doubt has been deemed unacceptable as a mitigating factor under Ohio law, see State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1122-23 (1997), a rule that has been applied retroactively, see State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484, 503 (1999), and is not constitutionally required because it is not relevant to sentencing considerations, namely the defendant's character or record, or any circumstances of the offense, see Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). The lack of relevance of the suppressed evidence to any sentencing issue highlights the implausibility of speculating that the suppressed evidence could have affected the sentence. In any event, the Ohio Court of Appeals did not unreasonably apply Brady because Montgomery has not shown a reasonable probability that the suppressed evidence would have produced a different outcome at either the guilt or sentencing phase.
In response to this observation about the police report’s lack of impact on sentencing, the majority says that the dissent has created a procedural rule that would bar consideration of the police report in violation of state and federal law. The point I make has nothing to do with admissibility of the report or any evidentiary rule. My point is simply that if the police report had been admitted and considered, the likelihood that it would have affected sentencing is even less than the likelihood that its consideration would have affected the jury’s verdict of guilt.