Opinion

Jamison v. Collins

100 F. Supp. 2d 647
2000 U.S. Dist. LEXIS 7330
2000 WL 575235

Court: District Court, S.D. Ohio
Filed: May 10, 2000
Status: Published
Author: Spiegel
On the bench: Spiegel
Cited by: 37 cases
Authority: More cited than 78.7%

holding that eyewitness statements that described suspect as approximately 5'6", when defendant was over 6', were favorable to defense under Brady; also holding that two statements that taller of two suspects was lighter-complected, when taller of two defendants was darker-complected, were favorable to defense under Brady

How later courts described this case

holding that eyewitness statements that described suspect as approximately 5'6", when defendant was over 6', were favorable to defense under Brady; also holding that two statements that taller of two suspects was lighter-complected, when taller of two defendants was darker-complected, were favorable to defense under Brady
finding a Brady violation where undisclosed eyewitness statements gave a physical description of the perpetrator that differed substantially from defendant’s physical appearance
reviewing the OAS, customary international law, and other international human rights treaties and concluding “that international law does not preclude the State of Ohio from establishing and carrying out a capital punishment scheme.”
“the Court finds no indication that the international obligations of the United States compel elimination of capital punishment”

Written by the judges who cited it.

The opinion

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Petitioner’s Amended Petition for a Writ of Habeas Corpus (doc. 94), Respondent’s Supplemental Return of Writ (doc. 95), and Petitioner’s Amended Traverse (doc. 96.)

INTRODUCTION

This is a capital case. Petitioner Derrick Jamison, an inmate in the custody of the Mansfield Correctional Institution, is under sentence of death in the State of Ohio. Petitioner seeks a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 on the grounds that both his conviction and his sentence are in violation of the

*667

United States Constitution. Because the Court concludes that the State of Ohio violated Petitioner’s constitutional rights by suppressing exculpatory evidence material to the questions of guilt and sentencing, the Court conditionally grants the petition and orders that a writ shall issue unless the State of Ohio retries Petitioner within 120 days. Execution of this judgment shall be stayed pending any appeal.

BACKGROUND

Petitioner was convicted of aggravated murder and sentenced to death by the Hamilton County Court of Common Pleas for the August 1, 1984 murder of Gary Mitchell at the Central Bar in Cincinnati, Ohio. The following factual background comes directly from the Ohio Supreme Court’s opinion in

State v. Jamison,

49 Ohio St.3d 182 , 552 N.E.2d 180 (1990), in which the court affirmed the conviction and sentence of Petitioner.

On August 1, 1984, Gary Mitchell was alone, tending bar at the Central Bar. The Central Bar, located near downtown Cincinnati, had been owned by Mitchell’s family for forty years. When two patrons came into the bar, around 2:00 p.m., they found the bar empty and Mitchell unconscious, lying face down behind the bar. The cash register was open and empty. One patron called the police and an ambulance.

Soon thereafter the police and an ambulance arrived. When the ambulance crew carried Mitchell out, he had a large bruise on the side of his head. Upon arrival at the hospital, Mitchell was found nearly brain dead by treating physicians. Eight days later, Mitchell died from multiple brain bruises and bleeding caused by a traumatic blunt injury.

Cincinnati police found few clues to solve this crime. They did find a gym shoe print on the top of the bar. After photographing the print, they lifted an impression of it, discovering it was made by a Pony gym shoe. One bystander described two males that he saw running from the area of the bar at approximately the time of the crime as being in their mid-twenties, one, 6'2" to 6'4", weighing approximately two hundred pounds, and the other, shorter, 5'3" to 5'9".

Police investigated other robberies similar in pattern to the Central Bar homicide. Two earlier robbery victims had suffered severe head injuries, requiring extensive hospitalization. After the Central Bar homicide, other similar robberies continued to occur.

On October 12, 1984, the police, after being alerted by an automatic alarm, arrested appellant, Derrick Jamison, shortly after he had robbed a Gold Star Chili restaurant. A hidden automatic camera photographed appellant when he robbed Gold Star Chili. Appellant was arrested and taken into custody. Police found on his person marked money from Gold Star Chili, jewelry from another robbery, and a gun taken from a third robbery. In addition, appellant was wearing Pony gym shoes, the soles of which were similar to the shoe print found at the Central Bar two and one-half months earlier. Appellant, 6'3" tall, twenty-three years old, and weighing one hundred seventy pounds, fit the earlier general description of one of the suspects running from the Central Bar on August 1, 1984. Appellant, while being a suspect, was not charged with the Central Bar incident at that time since he could not be positively identified. Police continued their investigation.

In January 1985, police apprehended Charles Howell, appellant’s accomplice in the Central Bar homicide. Police discovered Howell through a Crime Stopper tip. Howell told police he and appellant were playing basketball at about noon on August 1st and on the spur of the moment, they decided to rob the Central Bar. Howell acted as the lookout. It was appellant who attacked the bartender. Appellant took the cash from the register, later giving Howell $80. Howell agreed to testify against

*668

appellant and pled guilty to aggravated robbery. Howell testified before a grand jury, which indicted appellant for aggravated robbery and the felony murder of Gary Mitchell.

Jamison,

49 Ohio St.3d at 182-183 , 552 N.E.2d at 181-82 .

On October 12, 1985, a jury found Petitioner guilty of the aggravated robbery and felony murder of Mr. Mitchell. Five days later, on October 17, 1985, the same jury recommended that the Hamilton County Court of Common Pleas sentence Petitioner to death. Representing Petitioner at his trial were attorneys Calvin W. Prem and William E. Flax (Return of Writ, Ex. C). Petitioner pursued his direct appeals in the Hamilton County Court of Appeals and the Ohio Supreme Court, and both courts affirmed his conviction and sentence

(Id.,

Exs. E & H). Attorneys Albert J. Rodenberg, Jr. and Mr. Flax represented Petitioner in the Hamilton County Court of Appeals

(Id.,

Ex. D), while attorneys Peter Pandilidis and Mr. Flax represented Petitioner in the Ohio Supreme Court

(Id.,

Ex. F). The Ohio Supreme Court affirmed Petitioner’s convictions and death sentence on March 7, 1990

(Id.,

Ex. H).

Jamison,

49 Ohio St.3d at 193 , 552 N.E.2d at 190 . On April 11, 1990, the Ohio Supreme Court also denied Petitioner’s Motion for Reconsideration

(Id.,

Ex. I). The United States Supreme Court denied Petitioner’s Petition for Writ of Certiorari on October 9, 1990

(Id.,

Ex. K).

Petitioner pursued post-conviction relief in the Ohio courts. He filed his post-conviction petition on June 25, 1991 (Return of Writ, Ex. L). The Ohio courts denied post-conviction relief at all stages

(Id.,

Exs. N, Q, T & U). On August 28, 1992, Petitioner filed his Application for Delayed Reconsideration of his Direct Appeal with the Hamilton County Court of Appeals pursuant to Rules 14(B) and 26 of the Ohio Rules of Appellate Procedure and

State v. Murnahan,

63 Ohio St.3d 60 , 584 N.E.2d 1204 (1992), in order to assert a claim of ineffective assistance of appellate counsel (Return of Writ, Ex. V). The Hamilton County Court of Appeals denied Petitioner’s Application for Delayed Reconsideration as untimely

(Id.,

Ex. X). Thereafter, Petitioner filed a Notice of Appeal from the decision denying his Application for Delayed Reconsideration (State Court App., Vol. X, Tab A). The Ohio Supreme Court entered a decision on this appeal on April 14, 1993, dismissing the appeal

sua sponte

for the reason that no substantial constitutional question existed therein

(Id.

at Tab F). Petitioner also filed a Motion for Delayed Reinstatement of Direct Appeal as of Right in the Ohio Supreme Court

(Id.,

Vol. XI, Tab A). On October 27, 1993, the Ohio Supreme Court denied Petitioner’s motion without an opinion

(Id.,

Vol. IX, Tab G). On November 8, 1993, Petitioner filed a Motion for Rehearing

(Id.,

Vol. XI, Tab E). The Ohio Supreme Court denied Petitioner’s motion without an opinion on December 15, 1993

(Id.,

Vol. IX, Tab F).

Petitioner filed a petition for a writ of habeas corpus in federal court pursuant to Title 28 U.S.C. § 2254 on March 10, 1994 (doc. 3). Respondent filed his Return of Writ on April 2,1994 (doc. 9). On January 30, 1996, the Court granted Petitioner leave to conduct discovery to be completed within ninety days (doc. 66). Thereafter, on January 31, 1997, Petitioner filed an Amended Petition, which is the Petition currently before the Court (doc. 94). Respondent filed a Supplemental Return of Writ on March 3, 1997, arguing that the •Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter, the “AED-PA”) applies to Petitioner’s claims, that Petitioner’s claims are not entitled to a merits review because of various procedural defaults, that Petitioner’s claims lack merit, and that the Court is bound by the state courts’ findings of fact (doc. 95). Petitioner filed his Amended Traverse on May 2, 1997 in which he disputes all of Respondent’s arguments (doc. 96).

*669

The Court held oral argument on the procedural default questions and the merits of the Amended Petition on December 22 and 23, 1997. Transcripts of the hearing were filed on March 23, 1998 (docs. 121 & 122). The Parties submitted pre-hear-ing and post-hearing proposed findings of fact and conclusions of law as well as numerous notices of additional authority. On December 21, 1998, this Court issued an Order focusing on the procedural default questions (doc. 143). In the Order, the Court (1) held that Claims Two, Eight, Fourteen, Nineteen, and Twenty were waived in toto; (2) reserved ruling on Claim Six; (3) required that Petitioner show cause and actual prejudice for the-issues not procedurally defaulted in Claims One, Three, Four, Five, Seven, Nine, Eleven, Twelve, Sixteen, and Eighteen; and (4) granted Petitioner a hearing on the merits of Claim Seventeen.

On June 7, 1999, Petitioner and Respondent filed pre-hearing proposed findings of fact and conclusions of law (docs. 164

165). The Court heard oral argument on July 7-9, 1999 on the procedural default questions remaining in Claims One, Three, Four, Five, Seven, Nine, Eleven, Twelve and Sixteen, and on the merits of Claim Seventeen. Transcripts of this hearing were filed August 6, 1999 (docs. 180, 181

182). Petitioner then filed post-hearing findings of fact and conclusions of law on October 29, 1999 (doc. 188). Petitioner also requested a limited hearing to complete testimony on Claims Thirteen, Fifteen, and Twenty-One (doc. 179), which the Court granted (doc. 185). The Court thereafter heard oral argument on January 11, 2000 on Claims Thirteen, Fifteen and Twenty-One.

The Court notes that Betty Mitchell, who is currently the Warden of Mansfield Correctional Institution, was automatically substituted as the Respondent in place of Terry J. Collins pursuant to Federal Rule of Civil Procedure 25(d).

STANDARD OF REVIEW

Petitioner seeks relief pursuant to Title 28 U.S.C. § 2254 . Section 2254, Title 28 of the United States Code, provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a). The Court observes that our December 21, 1998 Order (doc. 143) concluded that pre-AEDPA law applies to Petitioner’s petition.

The following claims will be addressed in this Order: Claims One, Three, Four, Five, Six, Seven, Nine, Ten, Eleven, Twelve, Thirteen, Fifteen, Sixteen, Seventeen, Eighteen, and Twenty-One. As noted above, this Court previously held that Petitioner waived Claims Two, Eight, Fourteen, Nineteen and Twenty due to his procedural default in the state courts of the issues contained therein. This Order completes our findings on the procedural default issues arising in this case and analyzes the merits of the claims where required.

Procedural Default

Principles of comity necessary to a federal system narrow a federal court’s review of a petition for a writ of habeas corpus brought by a state prisoner.

See Coleman v. Thompson,

501 U.S. 722, 731-32 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The Supreme Court explains that “[ujnder our federal system, the federal and the state ‘courts [are] equally bound to guard and protect rights secured by the Constitution.’”

Rose v. Lundy,

455 U.S. 509, 518 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982) (quoting

Ex parte Royall,

117 U.S. 241, 251 , 6 S.Ct. 734 , 29 L.Ed. 868 (1886));

see Coleman,

501 U.S. at 731 , 111 S.Ct. 2546 (quoting same). Thus, to ensure the states an opportunity to protect these rights, the doctrine of procedural default requires that the state courts retain “the first op

*670

portunity to address and correct alleged violations of state prisoner’s rights.”

Coleman,

501 U.S. at 731 , 111 S.Ct. 2546 . The doctrine of procedural default provides that, if a state court previously dismisses a state prisoner’s federal claim on the grounds that the prisoner failed to comply with a state procedural rule, then a federal court ordinarily cannot consider the merits of that federal claim.

at 729-730, 111 S.Ct. 2546 .

This procedural default doctrine bars federal habeas review of a state court ruling only if the following requirements have been satisfied:

(1) the petitioner actually violated an applicable state procedural rule;

(2) the procedural violation provides an “adequate and independent state ground” for denying the petitioner’s federal constitutional claim; and

(3) the state court actually enforced the procedural violation; that is, the highest state court to rule on the claim clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim.

See generally Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 . However, the petitioner can excuse the procedural default by demonstrating either:

(a) that there was “cause” for the procedural default and actual prejudice by the alleged constitutional error;

(b) that the case falls within the category of cases considered “fundamental miscarriage of justice.”

See id.

(emphasis added);

Maupin v. Smith,

785 F.2d 135, 138 (6th Cir.1986);

Harris v. Reed,

489 U.S. 255, 260-62 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989);

Ylst v. Nunnemaker,

501 U.S. 797, 802 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991).

For the cause and prejudice standard, the petitioner must provide a “substantial” reason that is “external” to the petitioner as the cause for the procedural default.

See Murray v. Carrier,

477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);

Rust v. Zent,

17 F.3d 155, 161 (6th Cir.1994). In addition, the petitioner must show that the alleged trial errors “not merely ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.”

United States v. Frady,

456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982).

To demonstrate a “fundamental miscarriage of justice,” a petitioner must show that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent.

Murray,

477 U.S. at 496 , 106 S.Ct. 2639 . This exception applies only in “extraordinary cases.”

The standard requires a petitioner to show that he is “actually innocent.”

Schlup v. Delo,

513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). To establish a probability of innocence, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

We will discuss these requirements in greater detail as they apply to the various claims.

II. Presumption of Correctness

Once a claim is properly before a federal court on habeas corpus review, the federal court must “presume a state trial or appellate court’s conclusions as to facts are correct unless the petitioner demonstrates by convincing evidence that the facts are erroneous under one of the eight conditions enumerated in 28 U.S.C. § 2254 (d)(1)-(8).”

McQueen v. Scroggy,

99 F.3d 1302, 1310 (6th Cir.1996) (citing

Sumner v. Mata,

455 U.S. 591, 597 , 102 S.Ct. 1303 , 71 L.Ed.2d 480 (1982) (per curiam) (applying pre-AEDPA law)). Based on pre-AEDPA law, this presumption of correctness applies unless the petitioner can establish:

*671

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.

28 U.S.C. § 2254 (d)(1)-(8);

see Cooey v. Anderson,

988 F.Supp. 1066, 1074-76 (N.D.Ohio 1997).

The burden rests upon the petitioner to establish by convincing evidence that the state court’s factual determination is erroneous. 28 U.S.C. § 2264 (d);

McQueen,

99 F.3d at 1310 . The presumption of correctness does not apply to mixed questions of law and fact, but rather to “basic, primary or historical facts.”

Levine v. Torvik,

986 F.2d 1506, 1514 (6th Cir.1993). For example, the issue of ineffective assistance of counsel is a mixed question of law and fact.

Sims v. Livesay,

970 F.2d 1575, 1579 (6th Cir.1992). As explained by the Sixth Circuit, “[t]he presumption also applies to implicit findings of fact, logically deduced because of the trial court’s ability to adjudge the witnesses’ demeanor and credibility.”

McQueen,

99 F.3d at 1310 . The state court findings supported in the record must control even though the federal court may have rendered contrary findings that also would have been supported by the record.

Id.

(citing

Wainwright v. Goode,

464 U.S. 78, 85 , 104 S.Ct. 378 , 78 L.Ed.2d 187 (1983)). The Sixth Circuit further requires that:

If a federal district court does not defer to the state court findings of fact, it must provide a written justification and state which of the first seven factors under § 2254(d) are present, or it must provide reasons for concluding that the state court findings are not fairly supported by the record, pursuant to the eighth factor of § 2254(d).

Id.

(citing

Sumner,

449 U.S. at 551, 101 S.Ct. 764 ). Accordingly, this Court defers, where relevant, to the factual determinations reached by the Ohio courts in Petitioner’s case.

OVERVIEW OF OUR ANALYSIS

During our consideration of this case, the Court has understood that “ ‘[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.’ ”

Kyles v. Whitley,

514 U.S. 419, 422 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995) (quoting

Burger v. Kemp,

483 U.S. 776, 785 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987)). As Sixth Circuit Court of Appeals Judge Gilbert S. Merritt has observed, this process takes time:

It is not the function of the federal courts to kowtow to the political passions of the day that decree that we supply only a swift execution without

*672

regard to whether the accused is guilty or received a fair trial. In the judicial arena, there is no traditional social value or constitutional principle requiring rapid execution or extinction of human life....

It is our job to make sure that the traditional principles of federalism are honored. It is our job to see that a life is not taken in the absence of a fair trial in which the constitutional rights granted to the accused are observed or to allow an execution while there remains a serious unanswered question about whether the accused is in fact guilty of the crime charged. The process of deliberation, reflection, trial, review and the elimination of error and uncertainty takes time, including the time it takes to review new evidence when it becomes necessary. The traditional deliberative process must be fully complied with in order to insure that innocent life and the attributes of human dignity are preserved in the face of the biological passion and hostility in our species that lead us to kill each other without reason. If this traditional process of deliberation and reflection takes time, we must take the time. In light of the fallibility of human judgment, it is better that even the life of a guilty man be spared for a few years while we make sure that we are not making another fatal mistake.

O’Guinn v. Dutton,

88 F.3d 1409 , 1413 n. 1 (1996) (Merritt, C.J., concurring).

This Court addresses each of Petitioner’s claims properly before us to gain insight into the case and to provide a complete record for appellate review. As becomes apparent in the following sections, mistakes plagued the prosecution and defense of this case. Nonetheless, we realize that a criminal defendant “ “ ‘is entitled to a fair trial but not a perfect one,’ ” for there are no perfect trials.”

Brown v. United States,

411 U.S. 223, 231-32 , 93 S.Ct. 1666 , 36 L.Ed.2d 208 (1973) (quoting

Bruton v. United States,

391 U.S. 123, 135 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968)) (quoting L

utwak v. United States,

344 U.S. 604, 619 , 73 S.Ct. 481 , 97 L.Ed. 593 (1953)). Here the sole claim rising to a denial of constitutional rights involves the alleged suppression by the State of Ohio of exculpatory and material evidence. We reach the merits of this claim now.

CLAIM ONE

The State of Ohio failed to provide Petitioner with all relevant, material and exculpatory evidence at pretrial discovery proceedings. This failure violated Petitioner’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

The substance of Claim One is based on the rule announced in

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and explored in prominent cases such as

United States v. Agurs,

427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976),

United States v. Bagley,

473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), and

Kyles v. Whitley,

514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995). These cases held that the suppression by the prosecution of evidence favorable to the accused in a criminal case violates due process if the evidence is material to guilt or to sentencing and regardless of the degree of culpability of the prosecution.

Brady,

373 U.S. at 87 , 83 S.Ct. 1194 ;

see also Rust,

17 F.3d at 161 . The prejudice prong is not satisfied “if there is strong evidence of a petitioner’s guilt and a lack of evidence to support his claim.”

Rust,

17 F.3d at 161-62 . In the context of a

Brady

claim, the Supreme Court has held that a petitioner satisfies the prejudice, as well as the materiality, inquiry when he shows that “‘there is a reasonable probability’ that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.”

Strickler,

119 S.Ct. at 1952 (quoting

Kyles,

514 U.S. at 434 , 115 S.Ct. 1555 ).

In the case at bar, Petitioner argues that he was prevented from discovering the factual basis of Claim One because of the State’s withholding of evidence and the state court’s refusal to allow him an opportunity to conduct post-conviction discovery. These facts, he argues, demonstrate cause for the procedural default. In contrast, Respondent asserts that much of the alleged undisclosed

Brady

information was actually known and used by Petitioner’s trial counsel during the trial. For the most part, Respondent relies on citations to the trial transcript to attempt to prove that trial counsel did in fact have the information.

Certainly, the withholding of evidence by the state that precludes an individual from discovering the factual basis of a claim constitutes cause for the procedural default.

Amadeo,

486 U.S. at 222 , 108 S.Ct. 1771 ;

Strickler,

119 S.Ct. at 1949, 1952 . In

Amadeo ,

the petitioner' raised on direct appeal in the state court a challenge to the composition of the juries that had indicted, convicted, and sentenced him.

Amadeo,

486 U.S. at 218 , 108 S.Ct. 1771 . The state supreme court affirmed the convictions and sentences, rejecting his challenge on the ground that it should have been objected to before the indictment or voir dire.

Id.

at 219 , 108 S.Ct. 1771 . The basis of the challenge was a district attorney’s memorandum discovered nine months after the petitioner’s state court trial that composed the figures for the number of African-Americans and women to be placed on the master jury list in order to ensure their under-representation on juries.

Id.

at 217-18 , 108 S.Ct. 1771 .

The petitioner in

Amadeo

argued that his claim was not waived because he did not have an opportunity to discover the purposeful discrimination before the time he discovered the memo.

Id.

at 218 , 108 S.Ct. 1771 . The federal district court, after holding an evidentiary hearing, found cause for the procedural default and granted the writ of habeas corpus.

Id.

at 220 , 108 S.Ct. 1771 . The district court found that the petitioner’s claim was reasonably unknown to the petitioner’s attorneys because it was concealed by the county officials and that the concealment, rather than a tactical consideration, was the reason for the failure to ráise the challenge in state court.

Id.

at 220-21 , 108 S.Ct. 1771 . The Court of Appeals reversed the district court, reasoning that neither of the two factual predicates from the district court’s legal conclusion was adequately supported by the record. However, the Supreme Court concluded that the facts found by the district court did constitute cause for the procedural default.

Id.

at 222 , 108 S.Ct. 1771 . The Supreme Court reversed the appellate court, holding that the factual findings of the district court were not clearly erroneous.

Id.

at 224, 228 .

Likewise, in

Strickler ,

the Supreme Court found that the petitioner established cause for failing to raise his

Brady

claim prior to his federal habeas action because (1) the Commonwealth of Virginia withheld exculpatory impeachment evidence; (2) the

*676

petitioner’s defense counsel had reasonably relied on the prosecution’s open file policy; and (3) the Commonwealth had incorrectly asserted to defense counsel during state habeas proceedings that petitioner had already seen “ ‘everything known to the government.’ ”

Id.,

119 S.Ct. at 1952 . The Supreme Court in

Strickler

suggested that proof of only one or two of these facts “would be sufficient to constitute cause.”

Thus, the peculiar aspect about the

Brady

claim is that the procedural cause for failing to raise it before in state court is intertwined with the substantive basis for the claim. The Supreme Court explained:

In this case, cause and prejudice parallel two of the three components of the alleged Brady violation itself. The suppression of the [witness’s] documents constitutes one of the causes for the failure to assert a Brady claim in the state courts, and unless those documents were “material” for Brady purposes, their suppression did not give rise to sufficient prejudice to overcome the procedural default.

at 1949.

In keeping with Supreme Court precedent, this Court approaches the cause inquiry by focusing on whether the State of Ohio suppressed evidence and whether Petitioner’s trial counsel knew or reasonably could have known of the alleged undisclosed evidence.

See Strickler,

at 1951;

McCleskey v. Zant,

499 U.S. 467, 498 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) (stating the issue of cause as “whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim” at the first opportunity);

Fairchild v. Lockhart,

979 F.2d 636, 640 (8th Cir.1992) (finding cause for failure to bring a

Brady

claim by analyzing what evidence the prosecution disclosed, what defense counsel knew, and whether anything disclosed to defense counsel would have alerted him to the new evidence).

As far as determining what defense counsel knew, the Court cannot be certain of the contents of the prosecutor’s file or the “homicide book.” However, the Court observes that, before the trial began, the prosecution gave the defense counsel a pleading entitled “Discovery by State of Ohio” (doc. 103, Vol.l, Attach.2). The pleading listed the State’s witnesses as well as the criminal record of Co-Defendant Charles Howell and Petitioner. It farther indicated that the physical evidence was available for inspection in the prosecutor’s office and that the lab reports had already been provided. The pleading quoted a statement by Petitioner,

and it indicated that a statement by Co-Defendant Charles Howell had already been provided to defense counsel. According to the pleading, Mr. Howell’s grand jury testimony was “enclosed”

(Id).

Under the heading, “Evidence Favorable,” it listed as the response, “None known”

(Id).

Petitioner’s defense counsel also sought other evidence prior to or during the 1985 trial. In fact, the discovery issue raised in this federal habeas action is foreshadowed in a discussion between Petitioner’s defense counsel, the prosecutors, and the trial judge that occurred before Petitioner’s 1985 trial even began. During this discussion, Mr. Flax states, “[t]he problem we run into when we subpoena police records is the policemen get very uptight, they run right to the prosecutor, and we have to go through a series of baffles before we get what we subpoena ... We’re having difficulty getting the whole picture” (Tr. at 812)

Later in the discussion, however, Mr. Reif maintained that “[w]e have, in fact, complied with discovery”

(Id.

at 813).

*677

As we concluded in our December 21, 1998 Order (doc. 148), for the evidence that defense counsel was either aware of, or could reasonably have been aware of, there is no cause for failing to raise the

Brady

claim with respect to that issue. More specifically, the Court held in the December 21, 1998 Order that Petitioner failed to overcome his procedural default with respect to the evidence relating-to the cause of death of Gary Mitchell and with respect to certain evidence relating to Co-Defendant Howell (doc. 143). In the following sections, this Court examines the remaining pieces of evidence Petitioner alleges the State suppressed to determine, where necessary: (1) whether Petitioner can show cause as to why he did not raise a

Brady

claim in the state courts; and (2) whether the evidence was favorable to Petitioner, either as exculpatory direct evidence or impeaching evidence. The Court also explores Petitioner’s and Respondent’s arguments related to the prejudice, and materiality, inquiry. In our concluding section of this Claim, we decide whether the net effect of the suppressed evidence undermines our confidence in the outcome of the trial.

See Kyles,

514 U.S. at 435 , 115 S.Ct. 1555 .

I. Exploring the Allegedly Suppressed Evidence Where Cause Was Established by Petitioner

In our December 21, 1998 Order, this Court found that, with respect to the evidence below that was alleged to have been undisclosed to Petitioner’s trial counsel, the fact that Mr. Flax avers that he did not receive the documents from the Prosecution constitutes cause for failing to raise the

Brady

claim as to those documents prior to federal habeas review. Respondent does not argue that Petitioner did in fact receive these documents; rather, Respondent asserts that defense counsel actually knew the factual background of these documents. With one exception, the Court disagrees with Respondent for the reasons explained in more detail below. Accordingly, the Court now must determine whether the following evidence was favorable to Petitioner and the Court must explore Petitioner’s and Respondent’s arguments related to the prejudice, and materiality, inquiry.

Strickler,

119 S.Ct. at 1952 .

A. Petitioner alleges that his trial counsel did not receive this information: “Mr. Suggs selected from a police photo array photographs of individuals whom he identified as the taller and shorter of the perpetrators whom he had seen flee the Central Bar homicide. Neither of the photographs he selected depicted Mr. Jamison” (doc. 100).

A defense witness, Mr. Suggs testified on direct examination that “I seen a lot of pictures, but I was unable to identify” (Tr. at 2054). He restated on cross examination that he could not identify the individuals he saw on the day of the robbery/homicide (Tr. at 2058). In addition, Officer William Davis testified at trial that, while the police showed Mr. Suggs photographs of possible suspects, Mr. Suggs could not identify the assailants among them (Tr. at 1026, 1144).

Respondent still maintains that Mr. Suggs never identified another suspect and was fully cross-examined with the same information

*678

that Petitioner is now suggesting is exculpatory (doc. 124).

The undisclosed documents to which Petitioner refers are copies of photographs. The photographs are distorted due to the photocopying and, thus, the individuals that the photographs depict are unrecognizable. However, on the bottom of one of the photographs is written “picked by Mr. Suggs as a look-a-like for the taller suspect” (doc. 100, Tab 1 at 16). The other document, which is preceded in the record by a number of copies of photographs that are completely distorted, appears to be the criminal record of Eugene Vassar

(Id.

at 19-20). Handwritten on the record next to the name Eugene Vassar is “alias Charles Howell”

(Id.).

On the following page, which appears to be a continuation of the criminal record for Eugene Vassar, is the statement, “James Suggs picked this photo out of 7 photos and said he thinks it was the shorter of the 2 suspects in the Central Cafe Robbery — Just passed over picture of Greg Ivory”

(Id.).

Mr. Flax attached these documents to his affidavit and stated that they were among those not disclosed to him by the prosecution (doc. 103, Vol. 1, Aff. Flax W8(A), 10(A)). At the December 22-23, 1997 hearing, Respondent argued that a look alike is not an identification because it is not a positive identification.

Although Petitioner’s defense counsel apparently knew about the photo array,

Petitioner asserts that this evidence is exculpatory because the evidence that Mr. Suggs had actually picked two individuals out of that array was not known to his defense counsel at trial. Had his defense counsel reviewed this evidence, Petitioner argues, he could have used the evidence to (1) refresh Mr. Suggs’s memory during the trial and ultimately to raise further suspicion that another person committed the crime and (2) show that Officer Davis lied about whether Mr. Suggs ever identified anyone as an assailant in the Central Bar homicide. In support of his argument related to Officer Davis, Petitioner draws the Court’s attention to

Simos v. Gray,

356 F.Supp. 265, 270 (E.D.Wis.1973). In

Simos ,

the district court found that the prosecution should have disclosed identification evidence because it “bore not just upon the witness’ general trustworthiness but bore firsthand upon the reliability of his specific testimony.”

Id.; see also Simms v. Cupp,

354 F.Supp. 698, 700 (D.Or.1972) (holding that the failure of the prosecution to disclose a witness’s pretrial identification of her assailant violated due process).

The Court agrees with Petitioner that this evidence satisfies the first component of a

Brady

claim, namely that the evidence be favorable to Petitioner.

B. Petitioner alleges that the prosecution failed to disclose to Petitioner’s trial counsel other eyewitness statements about the Central Bar homicide that conflicted with the State’s theory that Charles Howell (6'1") and Petitioner (6'3"), both above average in height, were the assailants. “These eyewitness statements also contradicted Howell’s testimony at trial. These eyewitnesses saw and described two suspects who were seen ‘casing’ the Central Bar shortly before the homicide and fleeing from the Central Bar at the time of the murder. The suppressed statements make clear that one of the perpetrators was quite tall, and the other was significantly shorter” (doc. 100).

The eyewitnesses to which Petitioner refers are: Greg Mapp, Ellen Hall, Gene Martin, and George Richardson. Each of these persons provided statements to the police concerning the Central Bar

*679

robbery/homicide, although none of them testified at Petitioner’s 1985 trial. Petitioner argues that the duty to disclose exculpatory eyewitness statements applies regardless of whether an eyewitness testifies at the trial.

See Kyles,

514 U.S. at 435 , 115 S.Ct. 1555 (reiterating that the critical question is whether the undisclosed exculpatory evidence undermines confidence in the verdict). Petitioner further contends that each of the eyewitnesses’ descriptions of the assailants is exculpatory evidence that would have been material to the outcome of his trial. In general, Petitioner asserts that the statements of these eyewitnesses could have been used to impeach prosecution witness Mr. Howell and to cast suspicion away from Petitioner. Petitioner cites as support

Miller v. Angliker,

848 F.2d 1312, 1323 (2d Cir.1988), a case in which the Second Circuit concluded that suppressed evidence related to another suspect undermined the federal court’s confidence in the outcome of the state court proceeding. Respondent, however, argues that Mr. Howell was thoroughly impeached at trial and that any further impeachment evidence would have been cumulative. The following subsections examine in detail the eyewitness statements.

First, Petitioner alleges that his trial counsel did not receive this information: “Greg Mapp informed Officer Davis that he saw an individual flee the bar at the time of the homicide who was 5'7" to 5'9" and was carrying a brass pipe approximately one foot in length” (doc. 100). This information comes from the Investigative Summary, dated August 5, 1984, of Officer Davis. Petitioner’s summary of the report is correct (doc. 103, Vol. 1, Attach. 13, at 34). In the report, Officer Davis indicated that Mr. Mapp, who was 12 years old in 1984, was able to provide details about the crime scene, and Officer Davis wrote that “[h]e seems like a fairly decent young man and somewhat reliable at this point.” Mr. Flax attests that he did not receive this report.

During the July 7-9, 1999 Hearing, Respondent asserted that the C.P.D. later determined that Mr. Mapp lied about being at the Central Bar the day of the crime (1999 Hearing Tr. at 200-201, Respondent’s Ex. A). Petitioner countered that, if Mr. Mapp’s statements had been disclosed, his trial counsel would not have had to rely on the CJP.D.’s interpretation of Mr. Mapp’s credibility and instead could have investigated the story on their own

(Id.

at 220). Petitioner maintains that if Mr. Mapp was credible, his testimony would have been “of immense importance to the defense” (doc. 188;

see

1999 Hearing Tr. at 51-53,199).

In demonstrating the importance of Mr. Mapp’s statements, Petitioner points to the fact that Mr. Howell testified that a weapon was not used during the crime (Tr. at 1251-57). In addition, Dr. Paul N. Jolly, the chief deputy coroner for Hamilton County in 1985, testified that the victim died of a “blunt injury” to the head (Tr. at 959), but he did not state whether a weapon was used to cause the injury. Petitioner argues that testimony by Mr. Mapp about a brass pipe could have cast doubt on Mr. Howell’s testimony by contradicting his story that the victim’s fatal wound was caused by Petitioner’s repeated stomping on the victim’s head with his shoes. Mr. Mapp’s description also conflicts with the State’s theory that Mr. Howell (6'1") and Petitioner (6'3") committed the crime.

Secondly, Petitioner alleges that his trial counsel did not receive this information: “Ellen Hall, the cook at the Central Bar, told the C.P.D. that two African-Americans twice entered the bar just prior to robbery. One of the individuals was stocky and approximately 6'2" wearing a summer hat and the other individual was 5'5" and weighed between one hundred forty to one hundred fifty pounds” (doc. 100). This information comes from the C.P.D.’s Investigative Summary, dated August 12, 1984 (doc. 103, Vol.l, Attach.15). Petitioner’s above statement is a correct

*680

summary of the information contained in that report, with the exception that the second individual was identified as 5'6". Mr. Flax attests that he did not receive this report. Howell testified that he and the other accomplice had not entered the bar prior the robbery (Tr. at 1251-57).

Petitioner asserts that Ms. Hall’s statements were exculpatory in that the statements further raise doubt about Petitioner’s involvement in the Central Bar robbery/homicide. Ms. Hall provides descriptions of the assailants that match those of other eyewitnesses and she indicates that the two assailants entered the bar prior to the robbery. Petitioner contends that this information contradicts Mr. Howell, who testified that he and his accomplice did not enter the bar prior to the robbery (Tr. at 1251-57), and thus could have been used as impeachment evidence during Petitioner’s trial. Ms. Hall also stated that the taller suspect was light-complected, stocky, and wore a summer hat. According to Petitioner, this information would have cast suspicion in the direction of another suspect.

Thirdly, Petitioner alleges that his trial counsel did not receive this information: “Gene Martin, who was in the Central Bar just prior the robbery, described two African Americans who entered the bar — the taller individual as a ‘good size, 6' or over’ and the shorter individual as 5'7". He also stated that two African Americans ‘checked out’ the Central Bar twice prior to the robbery, also contradicting Howell’s trial testimony” (doc. 100). This information comes from the C.P.D.’s Investigative Summary dated August 12, 1984 (doc. 103, Vol.l, Attach.15). Mr. Flax attests that he did not receive this report. Petitioner’s above statement is a correct summary of the information contained in the report with one exception: the report does not state that Mr. Martin said the two individuals “checked out the Central Bar twice.” Mr. Martin said that the taller suspect came in the Bar to use the phone. One can infer from the report that Ms. Hall saw them twice in the Bar. Petitioner contends that Mr. Martin’s observations corroborate those of the other eyewitnesses and, at the same time, contradict the testimony of Mr. Howell.

Fourthly, Petitioner alleges that his trial counsel did not receive this information: “George Richardson, who lived across the street from the Central Bar, provided a ‘description of the suspects’ that ‘matches the description given by the other witnesses’ one suspect 6'2" and the other suspect much shorter in medium 5' range” (doc. 100). This information comes from an Investigative Summary Report of Officer Davis dated August 2, 1984 and Officer Davis’s deposition testimony (doc. 103, Vol. 1, Attach. 9; doc. 100, Tab 1 at 58-59). Mr. Flax attests that he did not receive this report. Petitioner asserts that, like the other eyewitnesses, Mr. Richardson indicated that the height difference between the two suspects amounted to more than the approximate two inches in height difference between Mr. Howell and Petitioner. In addition, Petitioner alleges that Mr. Richardson joined other eyewitnesses in his observation that one suspect wore a straw hat (see doc. 103, Vol. 1, Attach. 26).

The Court finds that Petitioner meets the requirements .of the first component of a

Brady

claim by establishing how this evidence would have been favorable to him at trial.

C. Petitioner alleges that his trial counsel did not receive this information: “David Anthony ... was found in possession of one of the wallets from one of the victims of the Sav-All Drug Store, one of the so-called similar offenses, immediately after the robbery in the area behind the store. He was wearing a straw hat. Two eyewitnesses (Suggs and Richardson) stated that one of the Central Bar assailants was wearing a straw hat” (doc. 100).

This information comes from an arrest report on August 7, 1984 charging

*681

David Anthony with “I.D. (trafficking in marijuana) (RSP over)” (doc. 103, Vol.l, Attach.24). The arresting officer observed Mr. Anthony “rooting thru wallet taken in Agg. Robbery Offense at 120 W. Elder Street”

(Id.).

Also, the arresting officer noted that Mr. Anthony wore a straw hat.

Additionally, there are photographs that state underneath them, “David Anthony; Suspect: Central Bar; 8-8-84” (doc. 103, Vol. 1, Attach. 21 at 49). There is also a sketch of a person wearing a straw hat with “Suspect # 1” written on top of it. The person depicted in the sketch is unidentifiable (doc. 103, Vol.l, Attaeh.25). There are handwritten notes, dated August 2, 1984, that have Mr. Richardson’s name and address on the top of the sheet, and the description of the two individuals he saw run from the Central Bar, including that the second person was 5'11" and was wearing a tan straw hat (doc. 103, Vol.1, Attach.26).

Mr. Flax attests that he did not receive the arrest report, photographs, or notes. Even though the defense indicated during trial that someone other than Petitioner could have committed the crime, Petitioner asserts that the aforementioned eyewitness statements relating to the straw hat, together with the fact that Mr. Anthony was caught going through a wallet from the Sav-All Drug Store robbery while wearing a straw hat, would have been important exculpatory evidence. This undisclosed evidence, Petitioner argues, would have tied Mr. Anthony, who was about 5'11", to both the Central Bar robbery/homicide and the Sav-All Drug Store robbery.

Respondent disputes the exculpatory nature and materiality of this evidence, contending that the existence in the early stages of the Central Bar homicide investigation of possible suspects does not constitute exculpatory evidence. Citing to

Jarrell v. Balkcom,

735 F.2d 1242, 1258 (11th Cir.1984), Respondent contends that “[t]he State has no obligation to release ‘ephemeral’ information on the possibility of other suspects pursuant to

Brady

and its progeny” (doc. 164). Petitioner in turn debates Respondent’s impression of this information as “ephemeral.” The Court notes that the record fails to demonstrate how long the C.P.D. considered anyone a suspect, including Mr. Anthony. Accordingly, the Court finds that Petitioner satisfies the first component of a

Brady

claim with relation to the evidence concerning the possibility of other suspects.

D. Petitioner alleges that his trial counsel did not receive this information: “Robert Jordan and Percy Tait [ ] previously lived in the neighborhood of the Central Bar and matched the eye witness descriptions” (doc. 100).

There are photographs in the record, which Mr. Flax attests he did not receive, that show an African American male wearing a straw hat. There is also an unidentifiable photograph with “Robt. Jordan, 2-12-64; 6'2%" 165; 8-17-84; Davis” written under it, and another unidentifiable photograph which reads “Percy Tait, 5'5 148 lbs, 8-12-84; lived across from_with Robt. Jordan” (doc. 103, Vol. 1, Attachs. 27

28). Petitioner asserts that this information is exculpatory as it points to suspects who fit the eyewitness descriptions and who live in the vicinity of the Central Bar. Petitioner also argues that he was unfairly prejudiced by the suppression of this evidence because he was prevented from demonstrating to the jury that suspects existed who better fit the eyewitness descriptions. After reviewing this information, the Court finds that Petitioner satisfies the first component of a

Brady

claim with relation to the evidence concerning the possibility of other suspects.

E. Petitioner alleges that the prosecution failed to disclose to trial counsel that Petitioner after his arrest refused to waive his

Miranda

rights.

Specifically, Petitioner alleges the prosecution failed to disclose the Noti

*682

fication of Rights/Waiver of Rights Form

(hereinafter, “Waiver Form”) that indicated Petitioner’s refusal to waive his

Miranda

rights in writing following his arrest for the Gold Star Chili robbery

(see

doc. 103, Vol. 1, Attach. 33 at 80). Mr. Flax attests that he did not receive this document (1999 Hearing Tr. at 69). Rather than dispute whether the State provided the Waiver Form, Respondent discounts the value of the form (doc. 164). Specifically, Respondent cites

United States v. Barahona,

990 F.2d 412, 418 (8th Cir.1993), and argues that a valid waiver can be inferred if a suspect refuses to sign a form and nonetheless talks with police. Therefore, Respondent contends, the suppression of this document had no effect on the outcome of the trial. Petitioner counters that this evidence would have been used to call into question the credibility of Officer Dennis Luken, who indicated during his testimony at trial that Petitioner did waive his rights (Tr. at 1521-22).

Although this Court concluded in our December 21, 1998 Order that Petitioner established cause for his procedural default of this portion of Claim One, the Court now finds it necessary to review that conclusion. The Court observes that the prosecution provided Petitioner’s trial counsel with a copy of Co-Defendant Howell’s Waiver Form (Tr. at 1090-91). In asking whether the trial counsel reasonably could have been alerted to the existence and suppression of Petitioner’s Waiver Form, the Court finds that the trial counsel reasonably could have known that such a routinely-used standard form also existed in the police file on Petitioner. In addition, during the cross-examination of Officer Davis, the police officer told the defense that “[i]t was my understanding that [Derrick Jamison] did not want to talk to anybody concerning any offense that he was being investigated for” (Tr. at 1111).

Therefore, because the trial counsel knew to ask Officers Davis and Luken about the police questioning of Petitioner at trial, and they knew that such a form was used during the police questioning of Mr. Howell, then trial counsel also reasonably could have known that a form pertaining to the police discussion of Petitioner’s

Miranda

rights existed and had been suppressed. Furthermore, the answer of Officer Davis indicates that perhaps Petitioner did not waive his rights, contrary to the later testimony of Officer Luken. Accordingly, the Court now revises our earlier conclusion and finds that Petitioner failed to establish cause as to Petitioner’s Waiver Form.

Nevertheless, even without reexamining our earlier finding of cause in relation to the Waiver Form, the Court concludes that Petitioner also fails to meet the prejudice or materiality component of a

Brady

claim in relation to the Waiver Form. Because the Waiver Form would not establish whether Petitioner orally waived his rights after refusing to sign the

*683

form, or, therefore, whether Officer Luken lied about Petitioner’s waiver of his rights, the form would not have been significant to the defense’s attempt to impeach Officer Luken’s testimony. Accordingly, the Court finds that the Waiver Form fails to add any persuasive value to the other evidence allegedly suppressed by the state.

II. Exploring the Allegedly Suppressed Evidence Where Cause Was Not Established by Petitioner Prior to July 1999 Hearing

For the following evidence, alleged to have been undisclosed by the Prosecution, the Court found in our December 21, 1998 Order that a question of fact existed as to whether Mr. Flax either knew of the evidence or documents or could have reasonably been aware of them. The Court heard oral argument on this matter on July 7-9, 1999. The following subsections complete our analysis of the cause element as to this evidence and examines the alleged importance of this evidence for Petitioner.

A. Petitioner alleges that the prosecution did not disclose the following information: “James Suggs saw two individuals flee the Central Bar. The taller individual was '23-25, 6'2" — 6'4" 200 lbs., brown pants, brown skin, and wearing a large brown hat (straw) and the shorter subject was "23-25, 5'9" 160 lbs., dark complexion, mustache, short Afro” (doc. 100).

Most of the above description allegedly undisclosed to the defense was included in the August 1, 1984 Investigative Summary prepared by Officer Joseph Hoffman

(doc. 100, Tab 1 at 10). Mr. Flax testified at the July 7-9, 1999 Hearing that the prosecution failed to disclose this document (1999 Hearing Tr. at 37-39). Nonetheless, the description of the two individuals that Mr. Suggs gave prior to the trial appears to be information about which the defense knew. At trial, Officer Davis testified that James Suggs told the officers that he observed two African American males in their twenties run from the area of the bar, that one was 6'2" to 6'4" and 200 pounds and the other was shorter, 5'3" to 5'9" (Tr. at 1123). Mr. Flax also elicited a similar description of the relative heights of the two individuals from Mr. Suggs at trial (Tr. at 2052).

However, Petitioner contends that the reference to the straw hat worn by the taller individual, which was not mentioned at trial, would have been exculpatory because it would have allowed the defense to direct suspicion onto Mr. Anthony. Mr. Anthony, mentioned in more detail above, was found in possession of a wallet from the Sav-All Drug Store robbery and arrested by the C.P.D. At the time of his arrest, Mr. Anthony was wearing a straw hat. Respondent does not assert that Petitioner’s defense counsel knew about the straw hat description. After reviewing the trial transcript, the Court also does not find any mention of a straw hat. Based on these factors, the Court concludes that Petitioner establishes cause for his procedural default of this evidentiary portion of Claim One. Petitioner also succeeds in showing the favorable aspects of the evidence related to the straw hat.

As for the prejudice or materiality component, Petitioner urges two reasons for the importance of this description by Mr. Suggs. Besides allowing Petitioner to cast suspicion on Mr. Anthony, Petitioner argues the information about a “signature item of clothing” would have been used to

*684

show that Petitioner had never been described as wearing such a hat in any of the so-called similar robberies (1999 Hearing Tr. at 39-41). Petitioner also points out that several other eyewitnesses to the Central Bar robbery/homicide corroborated Mr. Suggs’s observation about the straw hat

(Id.

at 38-40, 63-65).

B. Petitioner also alleges that his trial counsel did not receive this information: “On August 9, 1984, Officers Hoffman and Davis took James Suggs to several hat shops where he picked out the straw hat similar to that which Suggs saw the taller perpetrator wearing as he fled the Central Bar homicide” (doc. 100).

This information was included in the Investigative Summary of Officers Davis and Hoffman dated August 4, 1984 (doc. 100, Tab 1 at 14). Mr. Flax testified that the prosecution failed to disclose this document (1999 Hearing Tr. at 75). Respondent does not affirmatively state that the prosecution provided Petitioner’s trial counsel with this document. Furthermore, the Court does not find any mention of this particular police investigation in the trial transcript. Therefore, Petitioner establishes cause for the procedural default of this evidentiary portion of Claim One.

Petitioner argues that this evidence is exculpatory and he asserts that the failure to disclose this evidence prejudiced him because he was unable to show not only the existence of the straw hat description but also how seriously the C.P.D. took the description. As mentioned above, Petitioner maintains that the straw hat would have allowed the defense to cast suspicion on Mr. Anthony for both the Central Bar robbery/homicide and the Sav-All Drug Store robbery. Respondent counters that any questioning during the trial about the straw hat would have been, at most, cumulative impeachment evidence.

C. Petitioner alleges that the defense counsel were not informed that “Howell made two statements to the C.P.D. after his initial statement, both of which contradicted his initial statement. Initially, Howell stated that the robbery was unplanned, that he never jumped over the bar and that he never saw the victim lying on the floor. In his later statements, Howell stated that ‘this was a planned robbery’ and that ‘they went there with the intention of doing the robbery.’ He also stated that he jumped over the bar and saw a leg or shoe belonging to the victim” (doc. 100).

In the December 21, 1998 Order (doc. 143), the Court discerned that, according to Mr. Flax’s affidavit and the documents that were attached to Petitioner’s brief, there were apparently three statements made prior to the testimony Howell gave at the grand jury hearing.

(1) Officer Davis wrote the following on his Investigative Summary dated January 23, 1985: Howell “states that himself and this DERRICK JAMISON went into the Central Bar. He said it was not a planned thing. He states he went to the back of the bar into the bathroom and that DERRICK went up to the bar where the victim was standing and when he came out of the restroom, out of the men’s room, the victim was lying on the floor and JAMISON was going through the cash register.... At this point it seems like we’re going to charge this CHARLES HOWELL with Aggravated Robbery, with the agreement that he testify before the Grand Jury and at Common Pleas against DERRICK JAMISON” (doc. 103 at 19-20).

(2) A handwritten document dated January 24, 1985, reads, “States he has a tape statement from his client. States his client went into the Bar to use the bathroom along with Jamison. States

*685

he came out of the bathroom, Jamison was going through cash register. His client jumped over the bar, saw a shoe or leg belonging to the victim. Left the bar and received some of the money from Jamison while running on the street” (doc. 103 at 22).

(3) Officer Davis wrote the following on his Investigative Summary dated January 29, 1985: “[p]rior to him [Howell] going into the Grand Jury, he gave us another statement as to what occurred, this was in the presence of his attorney, TOM MILLER. He stated that this was a planned robbery. That they went in there with the intentions of doing the robbing and he still insists that he went to the bathroom and when he came out DERRICK JAMISON was at the register getting the money. He says he had already jumped over the bar and he jumped back over and DERRICK JA-MISON went over and started stomping on the deceased’s head_TOM MILLER in his plan is agreed to plead guilty to Aggravated Robbery charges so as it appears now, we’re in real good shape” (doc. 103 at 23).

(see

Tr. at 1112,1115).

Testimony during the July 7-9, 1999 Hearing sought to clarify which statements defense counsel did not receive. Mr. Flax asserted during the hearing that he did not receive any of the above-mentioned statements (1999 Hearing Tr. at 24-25, 28, 31). Respondent, however, maintains that the defense cross-examined Mr. Howell on inconsistencies in his grand jury testimony at trial and that defense counsel were provided with a copy of Mr. Howell’s taped statement to the police at trial. Respondent also argues that defense counsel were aware that Mr. Howell had spoken to the police after Howell had spoken to Prosecutor Reif during the grand jury proceedings, and defense counsel knew that Mr. Howell made a second statement to the police after testifying. Finally, Respondent argues that Mr. Howell was cross-examined by defense counsel on inconsistencies in his version of the events that took place at the Central Bar (doc. 124).

Although the prosecution stated that it gave defense counsel a transcript of the January 23, 1985 taped statement made by Mr. Howell at trial (Tr. at 1399), the defense counsel implied there may have been more than one taped statement because Mr. Howell testified on redirect that every time he gave a statement to the police it was taped

(Id.).

In answering the defense’s questions, Mr. Howell testified that he spoke to the investigating officers after he spoke to the prosecution following his grand jury testimony (Tr. at 1420-21). However, Mr. Howell’s testimony as to this point is unclear because he later stated that did not speak to the prosecution after testifying to the grand jury

(Id.).

Mr. Flax did mention at trial the inconsistencies of Mr. Howell’s statements, comparing the statements originally made to the officers, the statements made at the grand jury, and the statements at trial

(see

Tr. at 1320, 1340-50

1380-84). In two questions to Mr. Howell, Mr. Flax identified those inconsistencies as relating to the time of day of the robbery/homicide, whether Mr. Howell went behind the bar in the Central Bar, whether Mr. Howell saw the attack on Gary Mitchell, and the number of times Petitioner allegedly “stomped” on the victim’s head

(Id.).

Mr. Howell admitted to changing his story as between the time the officers first interviewed him and the testimony he gave during the grand jury proceedings

(Id.).

As we found in the December 21, 1998 Order (doc. 143), Respondent’s citations to the transcript do not support his position that Petitioner’s trial counsel knew of all the statements Mr. Howell made before trial. The transcript is unclear as to which statements the counsel are referring and as to the specific inconsistencies of Mr. Howell’s statements. The only time defense counsel attempted to detail the inconsistencies of Mr. Howell’s statements, they did so in the form of a statement or

*686

question that went unanswered. Further, because the statements Petitioner alleges were undisclosed occurred before the grand jury as evidenced by the dates and the comments within the police reports, the inconsistencies referred to at trial were not the ones that Petitioner is speaking about here. Rather, Petitioner is referring to the inconsistencies among the three statements given prior to the grand jury testimony; thus, Respondent’s argument is incorrect.

While Petitioner knew that Mr. Howell likely spoke to police more than once between his arrest on January 22, 1985 and the official taped statement he provided on January 23, 1985,

Petitioner did not know that any record was made of these conversations. Therefore, Petitioner succeeds in establishing cause for his failure to seek in state court the suppressed investigative summary prepared by Officer Davis on January 23, 1985.

See Strickler,

119 S.Ct. at 1950 (finding cause where trial counsel knew of interviews with the police but did not know that records existed of the interviews or that the records had been suppressed).

Furthermore, Mr. Howell testified at trial that he did not carry on any conversations with police between January 23, 1985 to January 29, 1985 (Tr. at 1366-68; 1371-72). A review of the state court record in this action also produces no evidence of any conversations between Mr. Howell and the police from the January 23, 1985 official statement to the January 29, 1985 grand jury testimony. Thus, Petitioner establishes cause for his failure to seek in state court the suppressed handwritten document dated January 24, 1985 and the suppressed investigative summary dated January 29, 1985.

Petitioner asserts that the suppressed statements show how dramatically Mr. Howell’s story changed and how he embellished on Petitioner’s alleged involvement over time (1999 Hearing Tr. at 23-26, 29, 36, Exs. 31-34). Had the trial counsel received these statements, Petitioner argues, they could have detailed the self-serving nature of the statements during the cross-examination of Mr. Howell. The grand jury testimony with which they compared Mr. Howell’s trial testimony was “far less detailed”, according to Mr. Flax

(Id.

at 36). For these reasons, the Court agrees with Petitioner that the evidence would have been favorable to Petitioner at trial. The Court also notes that Mr. Howell’s memory of the victim’s pleas for life was first expressed to the grand jury after he had spoken with police at least four times. Nevertheless, Respondent maintains that Petitioner’s trial counsel thoroughly cross-examined Mr. Howell about inconsistencies in his story and Respondent argues that any further questioning would have been “cumulative to the jury’s credibility determination” (doc. 164).

D. Petitioner alleges that the Prosecution did not disclose the teletype from the C.P.D. officers who initially responded to the Mitchell homicide scene indicating that two individuals were involved in the offense — the first individual was 6'4", weighed two hundred pounds, and wore a large brown straw hat. The second individual was 5'3" (doc. 100).

Mr. Flax testified at the July 7-9, 1999 Hearing that he did not receive this teletype (1999 Hearing Tr. at 75). Respondent does not dispute the suppression of this teletype. Accordingly, the Court finds that Petitioner establishes cause for his failure to seek this document prior to federal habeas review. As for why this document would be exculpatory and material to the outcome of Petitioner’s trial,

*687

Petitioner draws the Court’s attention once more to the description of a suspect who allegedly wore a straw hat. The possible significance of this detail is discussed above. In short, Petitioner argues that this evidence casts suspicion on another person, namely Mr. Anthony. Nonetheless, Respondent maintains that any questioning of witnesses about the straw hat would at most be cumulative impeachment evidence.

E. Petitioner alleges that his trial counsel did not receive the following information: Based upon the descriptions provided by the above witnesses, the Crime Stoppers Program at the direction of C.P.D. issued the following release for the week of August 14, 1984 concerning the description of the two assailants at the Central Bar: “The suspects are described as # 1 — a male/black, 25 years of age, 6'2" — 4" tall, 200 lbs., wearing brown pants and a brown straw hat; #2 — a male/black, 25 years of age, 5'3" tall, 160 lbs., wearing blue press pants and a mustache.”

Mr. Flax testified that he did not receive this particular Crime Stoppers Report describing the clothing of the suspects (1999 Hearing Tr. at 76). Respondent does not dispute this allegation. Accordingly, the Court finds that Petitioner establishes cause for his failure to seek this evidence in the state court. Petitioner next argues that this evidence is exculpatory due to its tendency to cast suspicion on another person, namely Mr. Anthony. Respondent, in contrast, refers to this evidence as cumulative impeachment evidence.

F. Petitioner alleges that the prosecution did not disclose evidence relating to pretrial statements of eyewitnesses of the so-called similar robberies who testified at the Central Bar trial.

Mr. Flax attests that he did not receive any of the following evidence related to the so-called similar robberies (1999 Hearing Tr. at 54-55, 62, 65, 76). Respondent, however, points out that the trials related to these so-called similar robberies took place prior to the Central Bar homicide trial, and Respondent argues that Petitioner retained the discovery and knowledge of the evidence that emanated from these trials (doc. 164). Nonetheless, Respondent fails to persuade this Court that Petitioner cannot establish cause as to any of the following evidence for this reason. Other than the fact that Petitioner’s trial counsel apparently obtained the transcripts of the prior criminal trials (Tr. at 18), the record in this federal habeas action does not indicate exactly what Petitioner’s trial counsel knew about the prior trials nor does the record here show what evidence was actually adduced at these prior trials.

As background, the Court notes that the trial judge admitted evidence related to these so-called similar robberies pursuant to Rule 404(B) of the Ohio Rules of Evidence and § 2945.59 of the Ohio Revised Code

to allow the prosecution to show

*688

the Central Bar robbery fit a pattern of other robberies allegedly committed by Petitioner.

The robberies occurred at: (1) Acres of Books; (2) Metropolitan Gallery; (3) Sav-All Drug Store; (4) Rensler Portrait Studio; (5) Kings News; (6) Curve Café; and (7) Gold Star Chili. Petitioner was convicted of committing all of the above robberies with the exception of the Kings News robbery (Tr. at 97, 102).

The prosecution presented evidence of the so-called similar robberies by calling as witnesses the victims of the robberies and by asking the police to detail any physical evidence that linked Petitioner to the scene of these so-called similar robberies. Petitioner now contends that the allegedly suppressed evidence relating to these so-called similar robberies is exculpatory in that it tends to impeach the credibility of the witnesses called to testify at the Central Bar trial. Petitioner further argues that the evidence would have allowed the defense to dilute the allegedly devastating in-court identifications of Petitioner made by these witnesses.

First, Petitioner alleges that his counsel did not know that Jack West, the victim of the Metropolitan Gallery robbery, provided a physical description of the assailant as 5'10", 150 lbs. with a stocky build. Petitioner asserts that this description did not match Petitioner’s physical appearance. Petitioner is 6'3" and thin (doc. 100). This description came from the August 4, 1984 Offense Report, which Mr. Flax attests he did not receive (doc. 103, Vol.l, Attach.34). The Court notes that Petitioner’s statement that Mr. West described the assailant as stocky is incorrect; Mr. West described the assailant as thin. Nonetheless, at trial, Mr. West positively identified Petitioner as the man who knocked him unconscious and robbed his antique store on June 27, 1984 (Tr. at 1772). Mr. West had also identified Petitioner in a police line-up prior to the trial after Officer Luken had shown him that the police had recovered property stolen from his store

(Id.

at 1776-77, 1788-91).

During the cross-examination of Mr. West, the defense asked Mr. West whether he provided the police any description of his assailant immediately following the June 27, 1985 robbery. The following testimony followed:

Mr. West: Yes, I did give a description of the assailant to Dennis Luken in June.

Defense: Do you recall that description?

Mr. West: Nigger faggot.

Defense: That was your description?

Mr. West: That was my description.

Defense: Whoever it was, did they make some kind of homosexual advance to you?

Mr. West: He had a very shrill-sounding voice, very feminine-sounding voice.

Defense: And you told Dennis Luken that?

Mr. West: Yes.

(Tr. at 1791-92).

As indicated by the above testimony, the defense became aware during trial that Mr. West had provided earlier descriptions of his assailant to police. However, nothing in this testimony would have necessarily alerted the defense to the existence, or the suppression, of the August 4, 1984

*689

Offense Report. Therefore, the Court finds that Petitioner establishes cause for his failure to seek this evidence at the state court level.

See Strickler,

119 S.Ct. at 1950 . Further, according to Petitioner, the exculpatory nature of this evidence is apparent in the fact that Mr. West describes an assailant much shorter than the 6'3" Petitioner. Thus, Petitioner argues that this evidence would have been valuable in impeaching the identification made by Mr. West both at the earlier police lineup and at trial.

Secondly, Petitioner alleges that, in the same Supplementary Offense Report dated August 4, 1984, Officer Luken wrote that there were varying descriptions of the possible suspects. Three young African American males, for instance, gave a description of the assailant as a young Caucasian male. Petitioner is African-American (doc. 103, Vol.l, Attach.34). As the Court concluded above, nothing exists in the record to show that Petitioner’s counsel could have known of the existence or suppression of this offense report. Petitioner asserts that this evidence would have been used to impeach Mr. West’s seemingly definitive identification of Petitioner at trial.

Thirdly, Petitioner asserts that his counsel did not receive a Supplementary Offense Report, dated August 7, 1984, that Petitioner alleges shows that JoAnne Davidson, the victim of the Sav-All Drug Store robbery, could not identify a suspect at the time of the robbery (doc. 121, Supp. Aff., Attach.48). Mr. Flax indicated at the July 7-9, 1999 Hearing that he did not receive this report (1999 Hearing Tr. at 54-55). After reviewing the record, the Court finds that Petitioner establishes cause for his failure to seek this suppressed evidence prior to federal habeas review. Petitioner asserts that this evidence would have allowed the defense to attack the credibility of Ms. Davidson’s in-court identification of Petitioner. Mr. Flax testified that her identification of Petitioner as the one who kicked in the orbital bone of her face was “the single most damaging moment in the trial”

(Id.

at 54). Mr. Flax also stated that the above report would have helped them show that her subsequent identification of Petitioner was “highly suspect”

(Id.

at 55).

Fourthly, Petitioner alleges that his counsel did not receive a composite drawing, which was prepared with the assistance of the victim at the Sav-All Drug Store robbery, that depicted one of the assailants as slender, 6' to 6'1", with a light brown complexion and a mustache. According to Petitioner, that physical description matched the physical description of Charles Howell. The document, which Mr. Flax attests to having not received, is a drawing of a man, who appears to be African-American, wearing a straw hat (doc. 103, Vol. 1, Attach. 25;