Genesis Hill v. Betty Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0281p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GENESIS HILL, ┐

Petitioner-Appellee/Cross-Appellant, │

│

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v. > Nos. 13-3412/3492

│

│

BETTY MITCHELL, Warden, │

Respondent-Appellant/Cross-Appellee. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:98-cv-00452—Edmund A. Sargus, Jr., Chief District Judge.

Argued: January 27, 2016

Decided and Filed: December 1, 2016

Before: COLE, Chief Judge; BATCHELDER and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Jocelyn S. Kelly, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,

Ohio, for Appellant/Cross-Appellee. Justin C. Thompson, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Columbus, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Jocelyn S.

Kelly, David M. Henry, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Appellant/Cross-Appellee. Justin C. Thompson, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Columbus, Ohio, Lawrence Bradfield Hughes, PORTER WRIGHT MORRIS

& ARTHUR LLP, Columbus, Ohio, for Appellee/Cross-Appellant. John A. Freedman,

ARNOLD & PORTER LLP, Washington, D.C., for Amicus Curiae.

McKEAGUE, J., delivered the lead opinion in which BATCHELDER, J., joined in all

but § III.D. BATCHELDER, J. (pp. 48–50), delivered a separate concurring opinion. COLE,

C.J. (pp. 51–62), delivered a separate dissenting opinion.

1

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OPINION

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McKEAGUE, Circuit Judge. An Ohio jury convicted Genesis Hill of kidnapping and

murdering his infant daughter and sentenced him to death. The district court held that the

prosecution violated the rule of Brady v. Maryland, 373 U.S. 83 (1963), by suppressing

favorable evidence—a police report and the baby’s mother’s grand jury testimony—and granted

a conditional writ of habeas corpus. However, Hill violated a congressionally mandated

procedural requisite to habeas relief by bringing his Brady claim well beyond AEDPA’s one-

year statute of limitations period. Because Hill’s Brady claim is procedurally barred and is

otherwise without merit, and because his other grounds for relief are also without merit, we

reverse the grant of habeas relief.

I

Factual Background. The Ohio Supreme Court provided a detailed background of the

events leading to Hill’s conviction and sentence:

On May 31, 1991, defendant-appellant, Genesis Hill, crept into his girlfriend’s

apartment in Cincinnati and surreptitiously removed their six-month-old daughter,

Domika Dudley. On June 2, police found Domika’s body, wrapped in trash bags,

in a vacant lot behind Hill’s house.

Hill, age nineteen, and Teresa Dudley, age eighteen, lived near each other and had

an on-going relationship. Their daughter, Domika Dudley, was born in November

1990. Around May 29, 1991, Barbara Janson, a neighbor, heard Teresa “making

silly little comments” to Hill that she was going to take him to court for child

support. Hill replied that “he’d kill that little bitch before he paid anything.”

Teresa recalled Hill saying,” I bet I don’t pay,” when she asked him about child

support.

On May 31, in the late afternoon, Hill and Teresa were together in Hill’s yard.

Teresa became upset, they argued, and Teresa went home. That evening, Teresa

went to sleep in her mother’s second-floor apartment in the same room as

Domika. Between 11:00 p.m. and midnight, Janson and another neighbor saw

Hill enter the front yard of Teresa’s apartment building, but they did not see Hill

leave. That front entrance was the only entry way to her apartment except for the

back yard, which was enclosed by a high wall. Ten to fifteen minutes after the

neighbors saw Hill, Teresa came out and said Domika was missing.

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Teresa went to Hill’s home, but was told that Hill was not there and did not have

the baby. Hill lived in the same building as did his uncle and two aunts. Just

then, Hill appeared, but he denied knowing where his daughter was.

A neighborhood search for Domika by police proved unsuccessful. Hill appeared

unconcerned, did not participate in the search, and was “snickering” and

“grinning” as Teresa talked to police about their missing baby.

Around 5:45 a.m., June 1, Teresa and one of Hill’s aunts found a distinctive blue

and pink barrette on the floor of Hill’s garage. That barrette was identical to one

used in Domika’s hair before she went to sleep.

On the afternoon of June 2, police found a suspicious SMA® baby formula carton

in an overgrown vacant lot behind Hill’s garage. That box was not there on the

day before when police searched the lot. Domika’s body was inside the carton.

A plastic shopping bag and three plastic trash bags had been successively

wrapped around her body. Black electrical tape was wrapped around the outer

trash bag.

A man’s blue shirt, with white and red stripes, was tied around Domika’s head.

Teresa and Janson identified this shirt as one that “looks like” a shirt Hill owned.

Domika died as a result of three skull fractures, and she had been dead for more

than twelve hours. Either a strong, blunt force had struck her head, or her head

had been crushed. She might have been injured in a fall, but it seems only if

another force had hit her during or after the fall. She was wearing only a diaper

and two barrettes.

The baby formula box, in which Domika was found, was similar to one that Hill’s

aunt had placed in the trash pile next to Hill’s garage. The box was in the trash on

June 1, but not on June 2. Batch numbers on an SMA® can from the aunt’s

pantry matched batch numbers on the box in which Domika was found. Hill’s

uncle was unable to find the black electrical tape that he kept in a tool box.

A forensic expert testified that the last trash bag wrapped around Domika had

once been directly attached to a trash bag found in Hill’s kitchen. Microscopic

grain, crease, and other distinctive marks made in the manufacturing process

matched exactly on the two trash bags.

At Teresa’s apartment, police found Hill’s right thumb print on a hallway light

bulb near where Teresa and Domika had slept. When Teresa went to sleep that

night, the hallway door had been partly open and the light had been on. When she

awoke and discovered Domika missing, the light bulb was unscrewed.

On the evening of June 2, the day Domika’s body was found, a Cincinnati bus

driver overheard a conversation on his bus. One young man, crying and upset,

told another, “he could not believe what he had done to a little baby.” The man

further stated, “he thought he might get the chair for it.” After the bus driver

heard the news about a dead baby, police were called. The bus driver picked Hill

out of a photo array as the young man crying on the bus.

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A grand jury indicted Hill on two felony-murder counts in violation of [Ohio

Revised Code] 2903.01: murder during an aggravated burglary (Count I) and

during a kidnapping (Count II). Each aggravated murder count contained two

death-penalty specifications under R.C. 2929.04(A)(7) (murder during an

aggravated burglary and murder during a kidnapping). Count III charged

aggravated burglary in violation of R.C. 2911.11, and Count IV charged

kidnapping in violation of R.C. 2905.01. Hill pled not guilty.

At trial, numerous friends and relatives testified for Hill and described his

activities on the evening of May 31. Defense witnesses suggested that only two

trash bags had been in the kitchen; that Teresa was not a good mother; that she

had been aggressive towards Hill on May 31; that she had access to the trash bags

in Hill’s kitchen; and that she may have “planted” the barrette on the garage floor.

Hill testified as to his activities on May 31. He admitted he had been in the

hallway, outside Teresa’s door, around 11:00 p.m., and had unscrewed the light

bulb. He claimed he only “whistled” to Teresa. When she did not answer, he left

and went out the front, the same way he came in. He said he then “[w]ent on

about [his] business” (drinking with friends). In his narrative testimony, Hill

implicitly denied taking Domika, but he did not explicitly do so. Cross-

examination revealed discrepancies between his testimony and his statements to

police and two mental health professionals.

The jury found Hill guilty as charged.

State v. Hill, 661 N.E.2d 1068, 1072–74 (Ohio 1996).

During the penalty phase, numerous relatives and friends testified regarding Hill’s

character and upbringing and Dr. Nancy Schmidtgoessling testified regarding Hill’s mental

health and background. Hill also submitted an unsworn statement, where he said, “I feel hurt.

Growing up was hard. A lot of things wasn’t right for me,” and he “struggled to survive.” Id. at

1074. He was “sorry that you all have to be here,” “sorry that the baby [was] gone, and “sorry

for the family.” Id. He did not admit or deny killing Domika. After hearing the evidence, the

jury recommended the death penalty.

Procedural Background. The Ohio Court of Appeals and the Ohio Supreme Court

affirmed Hill’s convictions and sentence. State v. Hill, Nos. C-910916, C-940487, 1994 WL

721580, at *15 (Ohio Ct. App. Dec. 21, 1994), aff’d, 661 N.E.2d 1068, 1085 (Ohio 1996), cert.

denied, 519 U.S. 895 (1996). Hill sought post-conviction relief in state court on various grounds,

including alleged unrelated Brady violations, but was unsuccessful. State v. Hill, No. C-100554,

2011 WL 3477183, at *7–8 (Ohio Ct. App. Aug. 10, 2011), perm. app. denied, 974 N.E.2d 112

Nos. 13-3412/3492 Hill v. Mitchell Page 5

(table decision) (third petition); R. 263, Ohio Ct. App. Decision, Page ID 6849, perm. app.

denied, 808 N.E.2d 398 (Ohio 2004) (table decision) (second petition); State v. Hill, 740 N.E.2d

282, 283 (Ohio 2001) (denying motion to reopen petition for post-conviction relief); State v. Hill,

No. C-961052, 1997 WL 727587, at *2 (Ohio Ct. App. Nov. 21, 1997), perm. app. denied,

690 N.E.2d 1288 (Ohio 1998) (table decision) (first petition).

Hill filed a habeas petition in the district court in June 1998 raising numerous grounds for

relief, including a Brady claim alleging that the State suppressed favorable evidence. He filed an

amended petition in April 1999, raising a Brady claim alleging that the prosecution “failed to

disclose . . . exculpatory evidence in its possession which, if disclosed, would have been material

to the outcome of [Hill’s] trial.” App. R. 42, Am. Habeas Petition at ¶ 87, J.A. Vol. 2 at 396.

Hill then filed a second amended petition in December 2005. R. 137-1, Second Am. Habeas

Petition, Page ID 85–103. In that petition, Hill asserted a three-part Brady claim as his fourth

ground for relief. Id. at 27–32, ¶¶ 77–97, Page ID 111–16. The district court dismissed the first

two parts of Hill’s Brady claim on the merits. In sub-part (c) (referred to as (Claim 4(c)), Hill

made only the sweeping assertion that “[t]he State likely has still more Brady material that it is

refusing or unable to produce.” R. 137-1, Second Am. Habeas Petition at 31, Page ID 115. Hill

did not identify any Brady evidence to support Claim 4(c), leading the district court to dismiss it

because “the utter lack of substance to the claim makes any procedural default analysis not only

impossible, but also unnecessary.” Hill v. Mitchell, No. 1:98-CV-452, 2006 WL 2807017, at *63

(S.D. Ohio Sept. 27, 2006).

In December 2007, Hill discovered a suppressed police report from the night Domika

went missing. R. 219-3, Jim Silvania Decl., Page ID 2296–97 (averring that Silvania obtained

report on December 17, 2007 and sent it to Hill’s counsel via overnight mail on December 18,

2007). In March 2011, he moved the district court to reconsider its finding that Claim 4(c) was

procedurally defaulted and to find that the report established cause and prejudice to excuse the

procedural bar. The district court agreed and granted the motion for reconsideration. Hill v.

Mitchell, No. 1:98-cv-452, 2012 WL 995280, at *14 (S.D. Ohio Mar. 23, 2012).

In September 2012, Hill moved the district court to expand the record to include a

transcript of Teresa Dudley’s grand jury testimony, also in support of Claim 4(c). R. 237,

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Motion to Expand at 7–8, Page ID 2573–74. It appears that the State disclosed the testimony in

October 2010. Id. at 4, Page ID 2570.

In March 2013, the district court granted habeas relief on Claim 4(c) based on

suppression of the police report. Hill v. Mitchell, No. 1:98-cv-452, 2013 WL 1345831 (S.D.

Ohio Mar. 29, 2013). The court also granted Hill’s motion to expand the record to include

Dudley’s grand jury testimony as further Brady evidence in support of Claim 4(c). The district

court denied Hill’s remaining grounds for relief and issued a conditional writ of habeas corpus

directing the State to either release Hill or grant him a new trial. The State timely appealed on

the Brady claim, and Hill cross-appealed on five issues: sufficiency of the evidence, ineffective

assistance of trial counsel at the penalty phase, ineffective assistance of counsel on direct appeal,

the constitutionality of Ohio’s system of proportionality review, and cumulative error.

II

We review the district court’s decision to grant a petition for a writ of habeas corpus de

novo. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Our review of state court decisions is

normally governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.

§ 2254(d). Under AEDPA, we review a state-court merits adjudication only to determine

whether it “resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court.” Id. To prevail, a

habeas petitioner must “‘show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.’” Woods v. Donald, 135 S. Ct.

1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

AEDPA’s deferential standard applies only to claims that have been “adjudicated on the

merits in State court proceedings.” Cullen v. Pinholster, 563 U.S. 170, 186 (2011). If the state

courts have not addressed a claim on its merits, “federal habeas review is not subject to the

deferential standard that applies under AEDPA.” Cone v. Bell, 556 U.S. 449, 472 (2009).

“Instead, the claim is reviewed de novo.” Id. (citing Rompilla v. Beard, 545 U.S. 374, 390

(2005); Wiggins v. Smith, 539 U.S. 510, 534 (2003)). Regardless of the standard of review,

Nos. 13-3412/3492 Hill v. Mitchell Page 7

however, we may not review claims at all unless the petitioner satisfies AEDPA’s procedural

requirements—including the requirement that a petitioner bring his claims within AEDPA’s one-

year statute of limitations period.

III

The district court granted habeas relief on Claim 4(c) for violations of Brady, 373 U.S.

83. The State argues that the district court erred because (1) Hill did not bring his Brady claim

within AEDPA’s one-year statute of limitations period; (2) the claim was procedurally defaulted;

and (3) the claim fails on the merits. For the reasons that follow, we agree that Hill’s claim is

barred by AEDPA’s statute of limitations.

A. Background

Hill first raised Claim 4(c) in his second amended habeas petition in October 2005.

R. 137-1, Second Am. Habeas Petition at 31, Page ID 115. Claim 4(c), in its original form, did

not cite any specific Brady material, making only the sweeping assertion that “[t]he State likely

has still more Brady material that it is refusing or unable to produce.” Id. Hill based this vague

allegation on other cases in which the Hamilton County Prosecutor’s Office was found to have

violated Brady. Id. Hill also asserted that he asked to review the prosecutor’s and investigating

officers’ files, but was not allowed to do so. Id. at 32, Page ID 116. On September 27, 2006, the

district court dismissed the original Claim 4(c) as procedurally defaulted because “the utter lack

of substance . . . makes any procedural default analysis not only impossible, but also

unnecessary.” Hill v. Mitchell, 2006 WL 2807017, at *63. Hill ultimately discovered Brady

evidence, but did not assert his amended Brady claim in a timely fashion.

Police Report. In December 2007, Hill obtained Officer James Givens’ police report

through a private investigator’s public record request. R. 219-4, Police Rep., Page ID 2298–99.

Givens was the first officer on the scene after Teresa Dudley called to report Domika missing. In

the report, Givens wrote, “Investigate why the mother ran from police and asked for the police to

check the alley behind the house (several times).” R. 219-4, Police Rep. at 1, Page ID 2298.

Despite his current argument that this report is a smoking gun entitling him to relief, Hill waited

over three years to bring the report to the district court’s attention. In March 2011, Hill moved

Nos. 13-3412/3492 Hill v. Mitchell Page 8

the court to reconsider its finding that Claim 4(c) was procedurally defaulted, citing the police

report as the Brady evidence that was missing from the original catch-all version of Claim 4(c).

R. 219, Am. Motion for Reconsideration at 21–28, Page ID 2280–87. The district court was

“displeased by [Hill]’s waiting three years to file the instant motion” and found “his reasons

explaining the delay wholly wanting.” Hill v. Mitchell, 2012 WL 995280, at *14. The court

explained that, “[u]nder most circumstances, that delay would present an insurmountable (and

self-imposed) hurdle to a request for reconsideration.” Id.

Nevertheless, the district court found “that equitable principles [do not] require or justify

a refusal to consider [Hill]’s request because the new evidence at issue strikes at the heart of a

case that landed [Hill] on death row.” Id. To avoid AEDPA’s one-year limitation period, the

court treated Hill’s motion as one to reconsider under Fed. R. Civ. P. 60(b)(2) and granted it. Id.

at *3. The court found that even if it alternatively considered Hill’s motion as one to amend his

habeas petition under Fed. R. Civ. P. 15, Hill could still avoid AEDPA’s statute of limitations

because his motion related back to the original Claim 4(c). Id. at*10. The district court then

granted habeas relief on the basis of the police report. Hill v. Mitchell, 2013 WL 1345831, at

*11.

Grand Jury Testimony. In October 2010—before moving the district court to reconsider

its ruling that Claim 4(c) was procedurally defaulted—Hill obtained a transcript of Teresa

Dudley’s grand jury testimony. R. 237, Motion to Expand at 4, Page ID 2570. For unexplained

reasons, Hill did not include the grand jury testimony in his motion to reconsider Claim 4(c).

Instead, he waited another eighteen months, until September 2012, to move the district court to

expand the record to include the grand jury testimony. Id. The State did not object, and the

district court granted the motion. Hill v. Mitchell, 2013 WL 1345831, at *13. While the court

granted habeas relief on the basis of the police report, it noted that the grand jury testimony

“bolster[ed]” its conclusion that Hill was entitled to relief. Id. at *13.

B. Motion for Reconsideration—Fed. R. Civ. P. 60(b)(2)

The district court granted Hill’s motion as one for reconsideration under Fed. R. Civ. P.

60(b)(2). We review that decision for abuse of discretion. Landrum v. Anderson, 813 F.3d 330,

Nos. 13-3412/3492 Hill v. Mitchell Page 9

334 (6th Cir. 2016) (citing Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014); Frontier Ins.

Co. v. Blaty, 454 F.3d 590, 596 (6th Cir. 2006)). The district court “‘necessarily abuse[s] its

discretion if it based its ruling on an erroneous view of the law.’” Highmark Inc. v. Allcare

Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 n.2 (2014) (quoting Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990)); see Schenck v. City of Hudson, 114 F.3d 590, 593 (6th Cir.

1997).

Rule 60(b) allows a habeas petitioner to move the district court to reconsider a judgment

or order “under a limited set of circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).

These limited circumstances include “newly discovered evidence,” such as the police report or

the grand jury testimony, under Rule 60(b)(2). Id. But the Supreme Court has consistently

explained that the Federal Rules of Civil Procedure apply in habeas cases only “to the extent that

they are not inconsistent with any statutory provisions or [the habeas] rules.” Mayle v. Felix, 545

U.S. 644, 654 (2005) (quoting Habeas Rule 12); see also Gonzalez, 545 U.S. at 531–32.

Because using Rule 60(b)(2) here would directly contravene AEDPA’s one-year statute of

limitations, the district court’s decision is “inconsistent with [a] statutory provision” and the

court abused its discretion in granting the motion. Mayle, 545 U.S. at 654.

The district court’s approach is also inconsistent Rule 60(b)’s own internal restrictions

that “limit the friction” with AEDPA. Specifically, Rule 60(b) includes a “1-year deadline for

asserting three of the most open-ended grounds of relief (excusable neglect, newly discovered

evidence, and fraud).” Gonzalez, 545 U.S. at 534–35 (citing Fed. R. Civ. P. 60(b)(1)–(3))

(emphasis added). If Hill’s motion was indeed a Rule 60(b)(2) motion based on “newly

discovered evidence,” then regardless of AEDPA, Hill was required to make the motion “no

more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R.

Civ. P. 60(c)(1) (emphasis added). But Hill made his motion more than three years after he

discovered the police report, and more than four years after the district court’s order dismissing

Claim 4(c). By characterizing Hill’s motion as one for reconsideration, the district court not only

improperly circumvented AEDPA’s time-bar, but also misapplied the very rule used to evade it.

Because the district court’s decision was a misapplication of the law, we hold that the court

abused its discretion in granting Hill’s motion as a motion to reconsider under Rule 60(b)(2).

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C. Motion to Amend—Fed. R. Civ. P. 15

Because Hill cannot use Rule 60(b) to avoid AEDPA’s statute of limitations, he can only

prevail if we characterize his motion as one to amend his initial habeas petition under Fed. R.

Civ. P. 15. The district court alluded to this alternative, holding that Hill’s motion, even if

viewed as a motion to amend, was not time-barred because it relates back to the first catch-all

iteration of Claim 4(c). Hill v. Mitchell, 2012 WL 995280, at *10–14. We again review for

abuse of discretion. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998).

AEDPA imposes a one-year limitation period on habeas applications under 28 U.S.C.

§ 2244(d). Fed. R. Civ. P. 15(c)(1) creates an exception: “when a prisoner files an original

petition within the one-year deadline, and later presents new claims in an amended petition filed

after the deadline passes, the new claims relate back to the date of the original petition if the new

claims share a ‘common core of operative facts’ with the original petition.” Cowan v. Stovall,

645 F.3d 815, 818 (6th Cir. 2011) (quoting Mayle, 545 U.S. at 650); see 28 U.S.C. § 2242

(providing that habeas applications “may be amended . . . as provided in the rules of procedure

applicable to civil actions”). Rule 15(c)(1) provides that an amendment relates back when it

“asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading[.]” If a petition raises a new claim that does not

relate back, however, AEDPA’s statute of limitations bars consideration of the new claim.

Mayle, 545 U.S. at 656–57.

The contours of the relation-back doctrine have not been fully developed. In Mayle, the

Supreme Court rejected the proposition that an amended petition asserting new habeas claims

relates back simply because the new claims arise from the same “trial, conviction, or sentence”

as the original petition. Id. at 663–64. The Court noted that “the key words [in Rule 15(c)(1)]

are ‘conduct, transaction, or occurrence,’” and that the rule “relaxes, but does not obliterate, the

statute of limitations.” Id. at 656, 659 (citing Rule 15(c)). It then explained that “relation back

depends on the existence of a common ‘core of operative facts’ uniting the original and newly

asserted claims.” Id. at 659. The Court concluded that applying relation back for any trial,

conviction, or sentence was too broad a rule, as it would allow “virtually any new claim

introduced in an amended petition [to] relate back[] for federal habeas claims.” Id. at 657.

Nos. 13-3412/3492 Hill v. Mitchell Page 11

Instead, the court held that “[a]n amended habeas petition does not relate back (and thereby

escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts

that differ in both time and type from those in the original pleading.” Id. at 650, 663 (rejecting

an “unconstrained reading” of Rule 15(c)(1)).1

The Court also explained that an overly broad relation-back doctrine would contravene

Congress’s intent in enacting AEDPA “to advance the finality of criminal convictions.” Id. at

661 (citing Rhines v. Weber, 544 U.S. 269, 276 (2005)). That is, Congress intentionally

“adopted a tight time line, a one-year limitation period,” and “[i]f claims asserted after the one-

year period could be revived simply because they relate to the same trial, conviction, or sentence

as a timely filed claim, AEDPA’s limitation period would have slim significance.” Id. at 662.

From Mayle, then, we know that relation back in those circumstances is not appropriate.

Mayle provided additional guideposts for applying the relation-back doctrine, citing two

decisions from our sister circuits as examples of proper applications of the relation-back

doctrine. Id. at 664 n.7 (citing Mandacina v. United States, 329 F.3d 995, 1000–01 (8th Cir.

2003); Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001)). In Mandacina, the

original habeas petition raised a Brady claim alleging that the government failed to disclose

exculpatory evidence that would have supported the theory that someone other than the

petitioner murdered the victim. 328 F.3d at 1001. Specifically, the original claim alleged:

[T]he Government failed to properly disclose . . . any and all information related

by Mr. Strada prior to his death in which Mr. Strada implicated any other person

in any criminal activity, including any organized crime-related activity. Such

information constitutes favorable and exculpatory information in that it

established a motive for others besides Movant Mandacina to have killed or

conspired to kill Mr. Strada . . . [T]here is a strong factual basis to support a

defense theory . . . that Mr. Strada was killed not because of any statements he

may have made regarding Movant Mandacina, but instead was killed by others

who had a much stronger motive to retaliate against Mr. Strada.

Id. at 1000. Mandacina’s original Brady claim was thus quite specific, in terms of the

information alleged to have been suppressed and its materiality to the defense. The original

1

Although the Mayle Court referred to Rule 15(c)(2), the relevant language is now contained in Rule

15(c)(1).

Nos. 13-3412/3492 Hill v. Mitchell Page 12

claim did not mention the “Borland Report” by name, but the Eighth Circuit recognized the

report of detectives’ interview of Donna Borland, which had been disclosed to defense counsel,

as the “strong factual basis” for the defense theory alluded to in the claim. Id. at 998. And while

the original Brady claim was based on suppression of “any and all information” relating to

criminal activity and persons implicated by Strada who may have had a motive to kill him, the

amended Brady claim alleged that the prosecution had failed “to disclose the names of all

suspects with strong motives to murder Strada, as well as all facts developed in the investigation

of these suspects.” Id. at 1001. In other words, the amended Brady claim was a slightly more

specific iteration of the original Brady claim, premised more specifically on the suppression of

names of suspects identified by Borland. And because the amended claim was deemed to “have

arisen out of the same set of facts as the original claim[ ],” it was properly deemed to relate back.

Id. at 1000 (citing United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).2

Similarly, in Woodward, the Tenth Circuit “upheld relation back where the original

petition challenged the trial court’s admission of recanted statements” and “the amended petition

challenged the court’s refusal to allow the defendant to show that the statements had been

recanted.” Mayle, 545 U.S. at 664 n.7 (citing Woodward, 263 F.3d at 1142). The amended

claim was thus deemed to relate back because, in the language of Rule 15(c), it clarified or

amplified a claim alleged in the original petition. That is, the amended claim, pertaining to and

amplifying the trial court’s error in admitting the same recanted statements, arose out of the same

set of operative facts as the original claim.

Since Mayle, we have allowed relation back in similar circumstances, such as when a

motion to amend under Rule 15(c) expands on the facts supporting a claim in the original

petition. See Cowan, 645 F.3d at 819. In Cowan, the original petition alleged a claim for

2

The dissent’s characterization of Mandacina is markedly different, but erroneous. The dissent accurately

quotes language from the opinion describing Mandacina’s original petition as containing “only generalized

assertions that evidence obtained by the Gladstone Police Department was withheld.” Dissent at 11 (quoting

Mandacina, 328 F.3d at 1000) (emphasis added in dissent). But this language represents the district court’s

rationale for denying relation back—a ruling the Eighth Circuit reversed precisely because this description of

Mandacina’s original claim was not accurate. The Eighth Circuit recognized that Mandacina’s original claim was

actually sufficiently specific, as explained above, to both give the government notice and enable the court to

determine that the amended claim arose out of the same set of facts as the original. The same cannot be said of

Hill’s original Brady claim.

Nos. 13-3412/3492 Hill v. Mitchell Page 13

ineffective assistance of counsel because counsel failed to interview witnesses to support the

petitioner’s defense that she was not present during the drug transaction that led to her

conviction. Id. The motion to amend expanded on that claim, “describ[ing] the witnesses whom

[trial counsel] could have interviewed, and how [they] could have shown” that the petitioner was

not present. Id. We held that the amendment related back because “[t]he facts recited in the two

documents differed not in kind, but in specificity.” Id.

Hill’s case, however, is markedly different from Cowan, Mandacina, and Woodward.

Hill’s motion to amend deals with a Brady claim, just like the original Claim 4(c), but the

original Claim 4(c) was completely bereft of specific fact allegations or evidentiary support and

was not tied to any particular theory of relief. Although Hill asserted grounds for suspicion that

a Brady violation may have occurred—the Hamilton County Prosecutor’s Office’s history of

Brady violations—his original Claim 4(c) merely speculated that the State had Brady material,

nothing more. The original claim did not identify, even in general terms, the nature of any

suppressed information believed to be exculpatory or impeaching or how such suppressed

information was material to the defense. A claim that the State was suppressing an unspecified

something is much different from a claim regarding what, specifically, the State was suppressing

and how it would have benefitted Hill at trial had it been disclosed.

The “utter lack of substance” in Hill’s original Brady claim, as the district court put it,

separates this case from Cowan and the examples cited in Mayle. Hill v. Mitchell, 2006 WL

2807017, at *63. In each of those cases, the original claim presented an actual theory for relief,

and the amendments only “set forth certain particulars of that claim.” Cowan, 645 F.3d at 819;

see also Mandacina, 328 F.3d at 1001; Woodward, 263 F.3d at 1142 (“This amendment simply

‘clarifies or amplifies a claim or theory in the original’ petition[.]”). Hill’s original Claim 4(c),

by contrast, did not even raise a potential claim for relief. Even though Hill asserted that the

prosecution was suppressing evidence, the basis for a Brady claim is the evidence that was being

suppressed—not a suspicion that something was being suppressed. Hill did not refer to a single

piece of Brady evidence in the original, catch-all version of Claim 4(c). His amended Brady

claim cannot be deemed to share a “common core of operative facts” with the original Claim

Nos. 13-3412/3492 Hill v. Mitchell Page 14

4(c), as required for relation back, because the original Claim 4(c) alleged no operative facts out

of which the amended claim could also be deemed to have arisen. Mayle, 545 U.S. at 650.

Applying the relation-back doctrine to such a broad, unsupported claim would also create

a greater problem: if a catch-all Brady claim, devoid of Brady material or specific factual

allegations, were sufficient to justify relation back under Rule 15(c), then habeas petitioners

could routinely circumvent AEDPA’s statute of limitations on Brady claims. All a petitioner

would need to do is include a catch-all Brady claim in his original petition (with no Brady

evidence) and hope that evidence eventually turns up. If evidence did turn up, the petitioner

could then file an amended petition at any time, because any subsequent amendment would

relate back and skirt AEDPA’s statute of limitations. It would not matter if Hill, or a future

petitioner, waited five, ten, or even twenty years to present Brady evidence, even after its

discovery. Such a result would eviscerate AEDPA’s statute of limitations for Brady claims and

would run directly contrary to Congress’s intent.

We understand the rationale behind the district court’s decision, which was largely based

on equitable principles and the fact that the State did suppress evidence. Hill v. Mitchell, 2012

WL 995280, at *13–14. The district court concluded that Claim 4(c) was not a “new” claim

because Hill based the original Claim 4(c) on the prosecution’s history of suppressing evidence.

Id. at *13. The district court’s point is well taken; we agree that Hill had a colorable basis to

suspect the State had suppressed evidence, and we agree that the State “is hardly in a position to

invoke equitable principles.” Id. at *14. We also recognize that Hill could not have included a

Brady claim based on the undiscovered police report or grand jury testimony in his original

habeas petition.

But that is exactly why Hill had one year from the discovery of the new evidence (under

AEDPA or Rule 60(b)) to bring it to the district court’s attention. Our disapproval of the State’s

actions does not excuse Hill’s unexplained failure to present the police report for over three years

after he discovered it.3 We do not have the authority to simply ignore AEDPA’s congressionally

3

While we have said that “[d]elay by itself is not sufficient reason to deny a motion to amend,” Brooks v.

Celeste, 39 F.3d 125, 130 (6th Cir. 1994), we did so before AEDPA was passed and in the context of a lawsuit

brought under 42 U.S.C. § 1983—meaning AEDPA’s statute of limitations was not a concern. Our subsequent

Nos. 13-3412/3492 Hill v. Mitchell Page 15

mandated requirements based on notions of equity.4 Again, we may apply the Federal Rules of

Civil Procedure only “to the extent that they are not inconsistent with any statutory provisions or

[the habeas] rules.” Mayle, 545 U.S. at 654. Hill asks us to do the opposite and use Rule 60(b)

or Rule 15(c) to circumvent AEDPA’s one-year limitations period, a request we cannot grant.

See Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 2016) (“Rule 60(b) motions and [Rule

15(c)] motions to amend may not be used as vehicles to circumvent the limitations that Congress

has placed upon the presentation of claims in a second or successive application for habeas

relief.”). We therefore hold that the district court abused its discretion in bypassing AEDPA’s

statute of limitations to grant Hill’s motion to amend (or reconsider) his Brady claim.5 Because

the claim is time-barred, the district court’s award of conditional relief on Claim 4(c) must be

reversed.

D. Merits of the Brady Claim

Yet, even if we were to hold the Brady claim properly before the court, it should be found

wanting on the merits, even on de novo review. See Jalowiec v. Bradshaw, 657 F.3d 293, 305

(6th Cir. 2011) (where the state courts did not address the merits of the claim, the habeas court

may review de novo).

cases quote this language from Brooks almost exclusively outside the habeas context. While we have quoted it with

approval in the habeas context at least once, see Coe, 161 F.3d at 342, the petitioner in Coe filed his habeas petition

and his amendments before AEDPA became effective, and thus AEDPA did not apply to the case. As there was no

one-year statute of limitations for habeas claims prior to AEDPA, see Lonchar v. Thomas, 517 U.S. 314 (1996), Coe

has no bearing here.

4

The Supreme Court has held that AEDPA’s statute of limitations is subject to equitable tolling, Holland v.

Florida, 560 U.S. 631, 649 (2010), but the district court did not invoke equitable tolling and Hill does not argue that

it would apply to his case. Amici mention equitable tolling in passing, see Amici Br. at 24, but the argument is

wholly unpersuasive, and “[w]hile an amicus may offer assistance in resolving issues properly before a court, it may

not raise additional issues or arguments not raised by the parties.” Cellnet Commc’s, Inc. v. FCC, 149 F.3d 429, 443

(6th Cir. 1998) (internal citations omitted).

5

The district court also noted that its original decision dismissing Claim 4(c) was “best characterized as an

interlocutory order,” which the court “ha[s] the inherent power to reconsider.” Hill v. Mitchell, 2012 WL 995280, at

*3. Fed. R. Civ. P. 54(b) provides that “any order or other decision . . . that adjudicates fewer than all the claims . . .

may be revised at any time before the entry of a judgment adjudicating all the claims.” As with Rule 60(b) and Rule

15(c), however, courts may not apply Rule 54(b) in a manner inconsistent with AEDPA. Because the court’s prior

decision was interlocutory, the court had the prerogative to revisit it, but it still lacked authority to disregard or

circumvent AEDPA’s period of limitation.

Nos. 13-3412/3492 Hill v. Mitchell Page 16

To succeed on a Brady claim, a petitioner must establish: (1) the existence of favorable

evidence, either exculpatory or impeaching; (2) that the evidence was suppressed; and (3) that

the suppression resulted in prejudice. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). There

is no question that the State suppressed Officer Givens’ police report and Teresa Dudley’s grand

jury testimony, and all agree that these materials could potentially have been favorable to the

defense. However, we remain unpersuaded that the nondisclosure of these materials resulted in

cognizable prejudice.

To show cognizable prejudice, Hill must establish that the suppressed evidence is

material—that “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

(emphasis added). The question is whether “‘the favorable evidence could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the verdict.’”

Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435). Speculation about a different

outcome is not enough; “‘[t]he likelihood of a different result must be substantial, not just

conceivable.’” LaMar v. Houk, 798 F.3d 405, 416 (6th Cir. 2015) (quoting Harrington v.

Richter, 562 U.S. 86, 112 (2011)). That is, the likelihood of a different result must be great

enough to undermine confidence in the verdict. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016)

(citing Smith v. Cain, 132 S. Ct. 627, 630 (2012)).

Hill’s Brady claim rests on two items of marginal, speculative significance:

(a) ambiguous comments in a preliminary police report; and (b) grand jury testimony given by

Teresa Dudley that was not precisely consistent with her trial testimony.

1. Preliminary Police Report

Officer Givens was the first officer to arrive after Dudley called the police to report that

Domika was missing, and he prepared the police report the next morning. R. 219-4, Police Rep.

at 1, Page ID 2298. One of the questions in the report asked, “Do you believe that this case

could be solved with some additional investigative time?” Id. Givens circled “YES” and wrote

“[i]nvestigate why the mother ran from police and asked for the police to check the alley behind

Nos. 13-3412/3492 Hill v. Mitchell Page 17

the house (several times).” Id. The report then asked for additional comments, and Givens

wrote:

Received radio call regarding family trouble. When we arrived Mother and

Grandmother were lying on ground crying. The mother then told us she thinks

the father took the baby. We searched the house and surrounding area. Notified

Lieutenant, we then went to father’s house. Gave consent to search. During

search found nothing. Notified CIS they responded and had the Mother,

Grandmother, and father come down for Question[.] CIS interviewed the above.

Id. at 2, Page ID 2299.

At trial, Givens testified that he arrived at Dudley’s house around 12:15 a.m. on the night

Domika disappeared and “saw a Teresa Dudley and her mother. They were laying on the ground

crying. It was dispatched as family trouble. I got there and asked them what the problem was.

And they said—Teresa said her baby was missing.” Trial Tr. Vol. VIII, Givens Testimony at

1038. Givens then testified that he and another police officer searched the area, including the

alley behind Dudley’s house, and found nothing. Id. at 1038–39.

Two items in the police report are said to have potential impeaching value: (1) Givens’

reference to an otherwise unsupported notion that Dudley ran from police; and (2) Givens’

statement that Dudley asked the police to check “the alley behind the house” “several times.” R.

219-4, Police Rep. at 1, Page ID 2298. The district court held that the report was material Brady

evidence because it “casts far more suspicion on Teresa Dudley than any evidence at trial did.”

R. 226, Dist. Ct. Op. at 9, Page ID 2393. A closer look, however, reveals that the report has

much less probative value than the district court surmised.

Dudley Running from Police. The district court inferred from the report that “Dudley

fled from police when they first approached her . . . . [I]nformation that a young mother who

frantically called police when her baby went missing actually fled from police when they first

approached her constitutes vital, powerful evidence as to her credibility.” Id. at 10, Page ID

2394 (emphasis added). But this comment in the police report is hardly “evidence” at all; it

reflects a question in Givens’ mind. And the inference drawn by the district court is directly

contradicted both by the contents of the report itself and by Givens’ trial testimony. The district

court’s assumption that Dudley ran when police first approached her is otherwise unsupported in

Nos. 13-3412/3492 Hill v. Mitchell Page 18

the record. The comment suggests someone told Givens that Dudley “ran from police;” it does

not indicate when she may have run, or who reported her running. Givens, the first officer on the

scene, wrote that “[w]hen we arrived [Dudley] and Grandmother were lying on [the] ground

crying.” R. 219-4, Police Rep. at 2, Page ID 2299. Givens confirmed this account at trial,

testifying that Dudley and her mother were lying on the ground crying when police first arrived.

Trial Tr. Vol. VIII, Givens Testimony at 1038. If Dudley ran, there is no evidence she did so

when the police first approached.

Certainly, Hill’s counsel could have asked Givens about the “ran from police” comment,

its source, and whether he did investigate the matter. Counsel also could have asked Dudley

whether she actually ran and, if so, why. But the notion that those questions would have yielded

answers tending to exculpate Hill or impeach either Givens or Dudley is a matter of sheer

speculation. Several witnesses and police officers were with Dudley that night, and not a single

one of them testified that she ran from police. The report, at most, suggested only a potential

line of questioning that might have led to something impeaching. Standing alone, the “ran from

police” comment is not nearly as incriminating of Dudley as the district court suggested and its

impeachment value is wholly speculative. That is, the likelihood that inquiry would have led to

any evidence favorable to the defense at all is speculative. Even more remote is the likelihood

that inquiry would have led to evidence so exculpatory or impeaching as to undermine

confidence in the outcome.

Dudley Asking Police to Check the Alley. The second item in the report is the reference

to Dudley’s asking police to “check the alley behind the house.” Id. at 1, Page ID 2298. The

district court used this comment to conclude that the report “gives rise to a reasonable suspicion

that Dudley had knowledge not only that her baby was dead but also about where the baby’s

body was—before the body was found and at a time when Dudley was purporting to search for

her missing daughter”—“giv[ing] rise to at least an inference that Dudley was responsible for the

baby’s death.” R. 226, Dist. Ct. Op. at 10, Page ID 2394.

Again, the district court’s sweeping conclusion rests on inferences and assumptions that

simply are not reasonably supported in the record. The court pointed out that Domika’s body

was found in a formula box in a vacant lot behind Hill’s house, and that the formula box had

Nos. 13-3412/3492 Hill v. Mitchell Page 19

previously been located in an alley behind Hill’s house. Id. From these facts, the court inferred

that Dudley’s reference to the alley behind the house indicates she knew exactly where Domika

was, that she knew Domika was dead, and that she was giving the police the location of her

body. But the record provides a simple, more likely explanation for Givens’ statement: Dudley

was asking the police to search the alley behind her own house, and for good reason.

When Dudley realized Domika was missing, she ran out of her house screaming that

Domika was gone. Trial Tr. Vol. VIII, Janson Testimony at 980; Dudley Testimony at 1009.

Her friends Barbara Sue Janson and Pamela Lewis told her that they had just seen Hill enter her

house through the front, but did not see him leave. Trial Tr. Vol VIII, Janson Testimony at 980,

Lewis Testimony at 994–95, Dudley Testimony at 1003. The only exit aside from the front door

is through an alley behind Dudley’s house. See Trial Tr. Vol. VIII, Janson Testimony at 980,

Lewis testimony at 991, Dudley Testimony at 1014–15; see also R. 237-1, Officer Hennekes

Grand Jury Testimony at 3–4, 6, Page ID 2583–84, 2586 (“There is an alley that runs in the rear

of [Dudley’s house] that is accessible from that address. . . . You can walk back the side [of the

house] and get to the alley without ever coming back out front.”). Dudley thus likely asked the

police to check the alley behind her own house because (1) her baby was missing, (2) her friends

told her that Hill had just been in her house, and (3) the only way he could have left without

being seen was through the alley behind her house.6

The actual events of the evening support this explanation, because the police did check

the alley behind Dudley’s house. The report itself notes that police “searched the whole [of

Dudley’s] house which includes the attic[,] the alley behind the house[,] and the father’s house.”

R. 219-4, Police Rep. at 1, Page ID 2298 (emphasis added). Officer Givens then testified at trial,

consistent with the report, that the police searched the alley behind Dudley’s house the night

Domika disappeared. Trial Tr. Vol. VIII, Givens Testimony at 1038–39. He added that the

police did not search outside Hill’s house that night. Id. at 1044. If, as the district court

assumed, Dudley repeatedly asked police to check the alley behind Hill’s house, why didn’t they

6

Additional evidence in the record supports the conclusion that Dudley was telling police to check behind

her own house. The police report itself refers to “the house” numerous times, each instance referring to Dudley’s

house. See R. 219-4, Police Rep. at 1, Page ID 2298 (noting that witnesses saw Hill “around the house” and saw

him “enter[] the house”). And when the report refers to Hill’s house, it does so explicitly. See id. (noting that police

“searched the house and surrounding area,” and only “then went to father’s house”).

Nos. 13-3412/3492 Hill v. Mitchell Page 20

look there? Because, to use Occam’s razor, Dudley did not ask police to check the alley behind

Hill’s house; she asked them to check the alley behind her own.7 It follows that the potential

impeaching value of this comment in the police report is practically nil. If Hill’s counsel had

asked Dudley what she meant, her explanation would likely have been totally innocuous. There

is no reason in the record to assume as the district court did.

What we are left with, after excising the district court’s assumptions, is a police report

that alludes to two items of ambiguous significance: first, that Dudley might have run from

police at some point; and second, that Dudley asked the police to check the alley behind

someone’s house for evidence relating to Domika’s disappearance—most likely her own house,

because she thought Hill took her baby and left through that alley. Yet, despite the obvious

ambiguity of the two items, the district court granted habeas relief without even conducting an

evidentiary hearing on the materiality of the police report. In fact, Hill did not even request one.8

From this, it is hard to avoid the conclusion that Hill’s counsel realized the police report was

more significant for its speculative value. That is, counsel likely realized that an evidentiary

hearing posed the risk that entirely innocent explanations for both comments would be exposed;

better to let the police report speak for itself and hope that its nondisclosure by the police is

deemed to justify an adverse inference. The strategy apparently worked in the district court, but

careful scrutiny reveals that Hill has failed to meet his burden of showing materiality. The police

report comments simply do not carry the weight the district court assigned to them.

2. Grand Jury Testimony

Dudley’s grand jury testimony is even less helpful to Hill’s case. Before the grand jury,

Dudley was asked whether Domika had barrettes in her hair the night she disappeared. She

testified:

7

“[O]f two competing theories, the simpler explanation . . . is to be preferred.” Occam’s Razor,

ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/topic/Occams-razor (last visited June 21, 2016); see also

OXFORD ENGLISH DICTIONARY (3d ed. 2004) (defining Occam’s razor as “[t]he principle that in explaining

anything, no more assumptions should be made than are necessary”).

8

Hill requested an evidentiary hearing to show ineffective assistance of counsel, R. 229, Motion at 11–12,

Page ID 2427–28, but Hill’s counsel admitted at oral argument that Hill never requested an evidentiary hearing on

either the police report or the grand jury testimony.

Nos. 13-3412/3492 Hill v. Mitchell Page 21

A. She had three in her hair. She had a pink one on one side with some teddy

bears, then she had a pink one with a blue teddy bear, and she had a yellow one at

the top.

When we went down there that morning, me, Denise and Ranisha, we went

looking up towards my house. And we came back down. They started looking in

the garage and I was standing outside the garage. And I looked down. There was

a barrette right there . . . I was like, there, that is her barrette right there. Ranisha

looked up, picked it up and gave it to me.

R. 237-1, Dudley Grand Jury Testimony at 18, Page ID 2598. At trial, Dudley testified:

A. Me, Barbie, and Pam, we went down there, and Ruby was standing

outside, and Denise. Then Denise give me a shirt and I set down there. And they

say “We help her look for her, if you want me to.” Denise and Ronessa, they had

helped me look for her that night.

We had went up in our park, where I live, and we came back down, we started

looking in the garages. And I went down and her barrette was right there and I

found it. They say “You sure this is your baby barrette?” And I was like,

“Yeah.”

Q. How many barrettes? How many barrettes was your baby wearing—

A. Three.

Q. —when she went to bed that night?

A. Three.

Q. Do you remember what color they were?

A. Yeah, yellow, and there was a blue one with a pink teddy bear. I forgot

the other color, I know it was three barrettes.

Q. Okay. I will show you, you said you found a barrette in the garage at

[Hill]’s house that morning?

A. Yeah.

Q. I will show you what’s been marked as State’s Exhibit Number 13, and

ask you if you have ever seen this little blue barrette with the pink teddy b[e]ar on

it before?

A. Yeah, it was in her hair.

Nos. 13-3412/3492 Hill v. Mitchell Page 22

Q. Was it in her hair when she was asleep with you that night?

A. Yeah, because I had did her hair earlier.

Q. And you saw, found that in [Hill]’s garage?

A. Just sitting there.

Trial Tr. Vol. VIII, Dudley Testimony at 1012–14.

Hill points to two inconsistencies between Dudley’s grand jury testimony and her trial

testimony: (1) the identity of Dudley’s companions when she searched the garage and found the

barrette; and (2) the barrette’s location when Dudley found it. These inconsistencies—to the

extent they even exist—are inconsequential and disclosure of the grand jury testimony would

have had no impact at Hill’s trial.

Who Searched the Garage? At trial, Dudley testified that Denise (Hill’s aunt) and

Ronessa—Denise’s daughter and Hill’s cousin—helped her look for Domika that night. Id. at

1012. Denise and Ronessa confirmed this account at trial, testifying that they were helping

Dudley search in the garage when Dudley found the barrette. Trial Tr. Vol. X, Denise Hill

Testimony at 1247–49; Ronessa Hill Testimony at 1366–67. Before the grand jury, Dudley

testified that Denise and “Ranisha,” rather than “Ronessa,” helped her search the garage. Dudley

explained that “Ranisha” is Hill’s cousin, and her last name is Hill. R. 237-1, Dudley Grand Jury

Testimony at 19, Page ID 2599.

This “inconsistency”—calling Hill’s cousin “Ranisha” instead of “Ronessa”—again has a

simple explanation: Dudley incorrectly called Ronessa by the name “Ranisha” before the grand

jury.9 There is no person named “Ranisha” involved in this case, and Dudley, Denise, and

Ronessa all testified at trial that they were searching the garage when Dudley found the barrette.

Trial Tr. Vol. VIII, Dudley Testimony at 1012; Trial Tr. Vol. X, Denise Hill Testimony at 1247–

48; Ronessa Hill Testimony at 1373–74. While there may be a nominal discrepancy in the grand

9

Alternatively, the court reporter may have made an aural transcription error. Either way, the discrepancy

is immaterial.

Nos. 13-3412/3492 Hill v. Mitchell Page 23

jury testimony, there is no substantial reason to believe Dudley identified two different

persons.10

Whether the Barrette was Inside or Outside the Garage. The second alleged

inconsistency is similarly overblown. Before the grand jury, Dudley testified that she was

“standing outside the garage” and saw the barrette when she “looked down.” R. 237-1, Dudley

Grand Jury Testimony at 18, Page ID 2598. At trial, she testified that she “started looking in the

garage[,] [a]nd I went down and her barrette was right there and I found it.” Trial Tr. Vol. VIII,

Dudley Testimony at 1012–13. The district court inferred that Dudley’s grand jury testimony

indicated she found the barrette outside the garage, while her trial testimony indicated she found

it inside the garage. R. 240, Dist. Ct. Op. at 19, Page ID 2685. Hill makes the same argument on

appeal.

But Dudley did not testify that she found the barrette outside the garage before the grand

jury. She only said that she was standing outside the garage when she saw it. That is not

inconsistent with her trial testimony, as she testified that the barrette was “[r]ight in the opening”

of the garage. Trial Tr. Vol. VIII, Dudley Testimony at 1027. Dudley also testified before the

grand jury that Ronessa (“Ranisha”) was the one who picked up the barrette, and Ronessa was

inside the garage. As all of the record evidence indicates the barrette was inside the garage, there

is no inconsistency between Dudley’s grand jury testimony and her trial testimony. To the extent

the district court imagined or inferred a material discrepancy, again, the appropriate recourse was

to conduct an evidentiary hearing. That none was conducted or even requested is telling.

After we again eliminate the unsupported assumptions in the district court’s analysis, the

only “inconsistency” in the grand jury testimony is the mix-up with Ronessa’s name. This is a

minor discrepancy. If it had been disclosed to Hill prior to trial, it would almost certainly have

10

In reasoning to the contrary, the district court made two incorrect assumptions. First, the court assumed

that Dudley testified at trial that “Barbie and Pam,” rather than Denise and Ronessa, were with her when she found

the barrette. While Dudley testified that “Barbie and Pam” accompanied her to Hill’s house, Dudley, Denise, and

Ronessa all confirmed that they searched the garage. Second, the court appeared to assume, as Hill now argues, that

Dudley testified before the grand jury that “Denise and Ranisha” were her own cousins. R. 240, Dist. Ct. Op. at 19,

Page ID 2685. That conclusion is unsupported in the record, as Dudley actually testified before the grand jury that

Ranisha (Ronessa) was Hill’s cousin, and the only Denise involved in this case is Hill’s aunt. R. 237-1, Dudley

Grand Jury Testimony at 19, Page ID 2599.

Nos. 13-3412/3492 Hill v. Mitchell Page 24

been easily explained away. There is no reason to believe that Hill would have been able to use

it to so effectively impeach Dudley’s credibility as to undermine confidence in the outcome of

the trial.

3. Collective Impact

Still, despite the limited probative value of the police report comments and the grand jury

testimony, we must “consider the effect of the suppressed evidence collectively, rather than item

by item.” Jalowiec, 657 F.3d at 305 (citation and internal quotation marks omitted).

Collectively, then, we have a police report suggesting Dudley may have run from police at some

point and that she told police to check an alley behind someone’s house, and we have grand jury

testimony suggesting Dudley was heard to pronounce Hill’s cousin Ronessa’s name differently

than she did during Hill’s trial. Hill contends the nondisclosure of these items was prejudicial

because he could have used them to undermine the credibility of the prosecution’s most powerful

witness, the only person tying Hill to Domika’s murder.

Hill’s argument fails to account for the substantial evidence against Hill from witnesses

other than Teresa Dudley. Barbara Janson and Pamela Lewis both testified that they saw Hill

enter Dudley's house, but did not see him leave. Trial Tr. Vol VIII, Janson Testimony at 980,

Lewis Testimony at 994–95. Hill admitted at trial that he entered Dudley’s home the night

Domika disappeared. Trial Tr. Vol. X, Genesis Hill Testimony at 1405–06. Officer Givens

testified that Hill lied initially about being in Dudley’s house, denying that he had been there at

all the night Domika disappeared. Trial Tr. Vol. VIII, Givens Testimony at 1051. Officers

Robert Steinher and Charles Beaver testified that they found Domika’s body in a vacant lot

behind Hill’s house. Id., Steinher Testimony at 1084, Beaver Testimony at 1097–98. Officer

Robert Hennekes testified that police found her body in a formula box that was traced back to

Hill’s house. Id., Hennekes Testimony at 1065–67. A forensic expert testified that the trash

bags wrapped around Domika’s body matched trashed bags from Hill’s home. Trial Tr. Vol. IX,

William Dean Testimony at 1170–71. Officer Steinher testified that those trash bags were

secured with electrical tape, and that Hill’s uncle was unable to find the electrical tape he

normally kept in his tool box. Trial Tr. Vol. VIII, Steinher Testimony at 1088. Finally, a bus

driver picked Hill out of a photo array and testified that he saw a passenger matching Hill’s

Nos. 13-3412/3492 Hill v. Mitchell Page 25

description who said he “could not believe what he had done to a little baby” and feared he

would “get the chair for it.” Trial Tr. Vol. IX, Patrick Ormond Testimony at 1138–40.

Now consider the evidence Dudley provided. Yes, she testified that she found the

barrette in Hill’s garage, but that is the only evidence for which Dudley is the sole link. Trial Tr.

Vol. VIII, Dudley Testimony at 1012–14. Other witnesses independently tied everything else to

Hill. Dudley testified that Hill told her “I bet I don’t pay” child support—but Barbara Sue

Janson also testified that she overheard a conversation between Hill and Dudley about child

support where Hill said he’d “kill that little bitch before he paid anything.” Id., Janson

Testimony at 981–82. Dudley testified that Hill once threw a brick through her window—but

Hill also admitted doing so at trial. Compare Trial Tr. Vol. VIII, Dudley Testimony at 1005,

with Trial Tr. Vol. X, Hill Testimony at 1415–16. Dudley testified that the lightbulb outside her

bedroom was unscrewed right after Domika disappeared—but Hill also admitted unscrewing it.

Compare Trial Tr. Vol. VIII, Dudley Testimony at 1008, with Trial Tr. Vol. X, Hill Testimony at

1411. Dudley testified that Hill did not look worried when she told him Domika was missing—

but Officer Givens independently testified that Hill was “snickering” and “grinning” at Dudley

when the police asked him if he took the baby. Trial Tr. Vol. VIII, Givens Testimony at 1050–

51. Finally, Barbara Sue Janson, the State’s first witness, testified that she was “positive” she

had seen Hill wear the shirt in which Domika’s body was found wrapped, or one that “look[ed]

just like it.” Trial Tr. Vol. VIII, Janson Testimony at 980–81, 987–88.

Hill also fails to explain how the availability of the police report and the grand jury

testimony would have changed anything at Hill’s trial when set against this substantial evidence.

Even if we give some limited weight to the suppressed evidence, it would, at most, have been

used to marginally impeach the credibility of Teresa Dudley. It would have had no impact on

nearly all of the evidence—evidence from witnesses other than Dudley. Speculation about

whether Dudley told police to check in an alley does not give rise to such a substantial likelihood

of a different result as to “undermine confidence in the jury’s verdict.” Wearry, 136 S. Ct. at

1006. Such speculation certainly does not rise to the level of a “reasonable probability that . . .

the result of the proceeding would have been different.” Kyles, 514 U.S. at 433. The late-

disclosed items are simply not material.

Nos. 13-3412/3492 Hill v. Mitchell Page 26

In summation, Hill brought the suppressed evidence to the district court’s attention well

outside AEDPA’s one-year statute of limitations period, and we cannot cast aside AEDPA’s

procedural bars using our own considerations of equity. And even if Hill’s Brady claim were

properly before the court, it would fail on the merits. On the present record—absent unsupported

assumptions and unfounded speculation—Hill has fallen far short of carrying his burden of

showing a reasonable probability that disclosure of the police report or Dudley’s grand jury

testimony would have altered the jury’s verdict. Because Brady evidence must be material to

warrant relief, and because this evidence is not material, the district court’s award of relief on

this claim must be reversed.

IV

Having determined that habeas relief was improperly granted on Hill’s Brady claim, we

must now address the five claims of error Hill presents on cross-appeal, challenging the district

court’s denial of his other habeas claims. Hill brings claims based on (a) sufficiency of the

evidence; (b) ineffective assistance of counsel at the penalty phase; (c) ineffective assistance of

counsel on direct appeal; (d) an argument that Ohio’s proportionality review is unconstitutional;

and (e) a claim for cumulative error. We find each unpersuasive.

A. Ninth Ground: Sufficiency of the Evidence

Hill first challenges the sufficiency of the evidence supporting his conviction. “[T]he

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard is

even more exacting on habeas, as we are reviewing the Ohio Supreme Court’s decision denying

Hill’s claim on the merits and must do so through AEDPA’s deferential lens. Under this

standard, even if we were to “conclude that a rational trier of fact could not have found the

petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state

appellate court’s sufficiency determination as long as it is not unreasonable.” Brown v. Koteh,

567 F.3d 191, 205 (6th Cir. 2009) (citing 28 U.S.C. § 2254(d)(2)).

Nos. 13-3412/3492 Hill v. Mitchell Page 27

Hill’s appeal focuses on the lack of direct evidence implicating him and asserts that the

circumstantial evidence was insufficient to support a conviction. However, “[c]ircumstantial

evidence may support a conviction, and such evidence need not remove every reasonable

hypothesis except that of guilt.” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006)

(citations omitted). Hill also attacks the credibility of many witnesses who testified, but we

cannot substitute our own determination of guilt in place of the jury’s, and we cannot reweigh

the evidence. See Herrera v. Collins, 506 U.S. 390, 401–02 (1993); Brown, 567 F.3d at 205.

The evidence against Hill was substantial, even if largely circumstantial. Teresa Dudley,

Domika’s mother, testified that Hill told her “I bet I don’t pay” child support. Trial Tr. Vol.

VIII, Dudley Testimony at 1012–14. Barbara Sue Janson testified that she heard Hill tell Dudley

he would “kill that little bitch before he paid anything.” Id., Janson Testimony at 981–82. Two

witnesses testified that they saw Hill enter Dudley’s house the night Domika disappeared, but did

not see him leave. Trial Tr. Vol. VIII, Janson Testimony at 980, Lewis Testimony at 994–95.

Hill admitted at trial that he entered Dudley’s home the night Domika disappeared and

unscrewed the lightbulb in the hallway outside her room. Trial Tr. Vol. X, Genesis Hill

Testimony at 1405–06. The next morning, Dudley searched Hill’s garage with Hill’s aunt and

cousin and found one of the barrettes she placed in Domika’s hair the night before. Trial Tr.

Vol. VIII, Dudley Testimony at 1012–14. Officers Robert Steinher and Charles Beaver testified

that they found Domika’s body in a vacant lot behind Hill’s house. Trial Tr. Volume VIII,

Steinher Testimony at 1084, Beaver Testimony at 1097–98. Officer Robert Hennekes testified

that the police found Domika’s body in a formula box that was traced back to Hill’s house. Id.,

Hennekes Testimony at 1065–67. A forensic expert testified that the trash bags wrapped around

Domika’s body matched trash bags from Hill’s home. Trial Tr. Vol. IX, William Dean

Testimony at 1170–71. Officer Steinher testified that those trash bags were secured with

electrical tape, and that Hill’s uncle (who he lived with) was unable to find the electrical tape he

normally kept in his tool box. Trial Tr. Vol. VIII, Steinher Testimony at 1088. Dudley and

Janson testified that Domika’s body was wrapped in a shirt that “look[ed] just like” one Hill

owned. Trial Tr. Vol. VIII, Dudley Testimony at 1005, Janson Testimony at 980–81, 987–88.

Finally, a bus driver picked Hill out of a photo array, though at trial the driver clarified he

identified Hill based on size and height and “could not really honestly say that it would be him or

Nos. 13-3412/3492 Hill v. Mitchell Page 28

not.” Trial Tr. Vol. IX, Patrick Ormond Testimony at 1138–41. The driver testified that he saw

a passenger matching Hill’s physical description say he “could not believe what he had done to a

little baby” and feared he would “get the chair for it.” Id. Under the doubly deferential standard

of Jackson v. Virginia and AEDPA, this evidence was sufficient for a rational trier of fact to find

the essential elements of Hill’s crimes beyond a reasonable doubt. We therefore affirm the

district court’s denial of Hill’s challenge to the sufficiency of the evidence.

B. Twelfth Ground: Ineffective Assistance of Trial Counsel—Penalty Phase

Hill next raises a three-part claim for ineffective assistance of trial counsel (IATC) during

the penalty phase of his trial. He asserts counsel was constitutionally ineffective for (1) failing to

obtain a mitigation expert; (2) failing to hire an independent mental health expert; and (3) failing

to adequately prepare lay witnesses (referred to as sub-parts (1), (2), and (3)).

1. Background

Direct Appeal. Following his conviction, Hill raised an IATC on direct appeal based on

trial counsel’s alleged failure to object to misconduct by the prosecution. R. 42, Direct Appeal at

46–52, Page ID 4139–45. The Ohio Court of Appeals and the Ohio Supreme Court denied the

claim on the merits. Hill, 661 N.E.2d at 1083. Hill did not, however, bring any claims based on

counsel’s alleged failure to hire a mitigation expert (sub-part (1)), failure to hire a mental health

expert (sub-part (2)), or failure to adequately prepare witnesses (sub-part(3)).11

First State Post-Conviction Petition. Hill filed his first petition for state post-conviction

relief on September 20, 1996, raising a version of sub-parts (1), (2), and (3) for the first time. In

that petition’s second claim for relief, Hill argued that trial counsel was ineffective for failing to

conduct an adequate search for an expert and failing to obtain an independent mental health

expert. R. 47, First State Post-Conviction Petition at ¶¶ 41–60, Page ID 5384–90. He primarily

argued that trial counsel was ineffective for relying on court clinic psychologist Dr. Nancy

Schmidtgoessling during the mitigation phase. Id. To support these allegations, Hill included

two affidavits from attorney “experts” and a transcript of Dr. Schmidtgoessling’s deposition

from an unrelated habeas case. R. 47, Affidavits of Steven R. Keller and Gerald G. Simmons,

11

Hill’s federal habeas petition had five parts, but sub-parts (4) and (5) are not at issue in this appeal.

Nos. 13-3412/3492 Hill v. Mitchell Page 29

Page ID 5470–81; Schmidtgoessling Dep., Page ID 5482–5627. Hill also noted that

Schmidtgoessling’s office did not have mitigation specialists, which he argued would have been

“[o]f critical importance” to his case. R. 47, First State Post-Conviction Petition at ¶ 47, Page ID

5385–86.

In another claim for relief, Hill argued that trial counsel did not conduct an adequate

investigation or prepare mitigation witnesses to testify. Id. at ¶¶ 56–57, Page ID 5388–89. To

support these allegations, Hill cited the attorneys’ affidavits but also included affidavits from his

mother and three aunts. R. 47, Affidavits of Keller and Simmons, Page ID 5470–81; Affidavits

of Mary E. Hill, Denise Hill, Jennifer Clark, and Ruby Hill, Page ID 5637–44.

The trial court denied Hill’s petition on the merits without a hearing, finding that Hill’s

claims were “unsupported by evidentiary documents.” R. 48-2, Trial Ct. Op. at 4–5, 13, Page ID

5981–82, 5990. The Ohio Court of Appeals affirmed on procedural grounds, holding that “[a]ll

the ineffective-assistance claims that Hill asserts in his postconviction petition could have been

brought on direct appeal.” Hill, 1997 WL 727587, at *1. The Ohio Supreme Court denied

discretionary review. State v. Hill, 690 N.E.2d 1288.

Second State Post-Conviction Petition. Hill filed a second state post-conviction petition

on February 18, 2000, over three years after his first petition. As his third ground for relief in

that petition, he asserted another claim that trial counsel was ineffective for failing to retain an

independent mental health expert. R. 262, Second State Post-Conviction Petition at 18–20, Page

ID 6458–60. His primary evidentiary support was an affidavit from Dr. Michael Gelbort, who

recounted a number of events Hill reported from his upbringing and concluded that Hill had

“long-standing” “organic brain impairment” that “would have been in effect at the time of the

criminal act in question.” R. 262, Gelbort Aff. at 6, ¶ 25, Page ID 6505.

The trial court denied the petition on procedural grounds because it “d[id] not meet or

address the criteria required by [Ohio Revised Code] 2953.23 for a second petition.” R. 262,

Entry Declining to Entertain Second Petition to Vacate, Page ID 6765. The Ohio Court of

Appeals affirmed, concluding that section “2953.23(A) precluded the [trial] court from

entertaining [Hill’s] tardy and successive petition.” R. 263, Ohio Ct. App. Judgment Entry at 2,

Nos. 13-3412/3492 Hill v. Mitchell Page 30

Page ID 6849. The Ohio Supreme Court again denied discretionary review. State v. Hill, 808

N.E.2d 398.

2. Procedural Default

The district court denied sub-part (1) (failure to hire a mitigation specialist), sub-part (2)

(failure to hire an independent mental health expert), and part of sub-part (3) (failure to prepare

witnesses) as procedurally defaulted. Hill v. Mitchell, 2006 WL 2807017, at *59. We review

whether a petitioner’s federal habeas claim is barred by procedural default de novo. Hodges v.

Colson, 727 F.3d 517, 530 (6th Cir. 2013).

Ohio’s Procedural Bar—Res Judicata. Ohio has two forms of IATC claims. McGuire v.

Warden, 738 F.3d 741, 751 (6th Cir. 2013), cert. denied, McGuire v. Robinson, 134 S. Ct. 998

(2014). Claims based on evidence wholly within the trial record must be brought on direct

appeal, while claims based on evidence outside the trial record cannot be brought on direct

review and must be raised in a petition for state post-conviction relief. Id. (citing State v. Cole,

443 N.E.2d 169, 171 (Ohio 1982)). In this dual-track system, res judicata bars an IATC claim

brought in a state post-conviction petition that relies on evidence within the trial record, because

such a claim could have been brought on direct appeal. Id. (citing State v. Perry, 226 N.E.2d

104, 108 (Ohio 1967). While a claim based on evidence outside the record must be brought in a

petition for post-conviction relief, Ohio courts require extra-record evidence to satisfy “some

threshold standard of cogency” before allowing the claim to proceed. Wogenstahl v. Mitchell,

668 F.3d 307, 341 (6th Cir. 2012) (quoting State v. Lawson, 659 N.E.2d 362, 367 (Ohio Ct. App.

1995)). Ohio imposes this minimum threshold because otherwise “it would be too easy to defeat

the [res judicata bar] by simply attaching as exhibits evidence which is only marginally

significant and does not advance the petitioner’s claim beyond mere hypothesis and a desire for

further discovery.” Id.

Hill did not raise the arguments in sub-parts (1), (2), or (3) on direct appeal in state court.

When Hill brought them in his first petition for state post-conviction relief, the Ohio Court of

Appeals held that they were procedurally barred by res judicata because Hill could have brought

them on direct appeal. Hill, 1997 WL 727587, at *1. The district court agreed on sub-parts

Nos. 13-3412/3492 Hill v. Mitchell Page 31

(1) and (2) because Hill’s only extra-record evidence were unpersuasive attorney “expert”

affidavits and Dr. Schmidtgoessling’s deposition testimony from an unrelated case. Hill v.

Mitchell, 2006 WL 2807017, at *55–56. As for sub-part (3), the district court found that it could

not consider the allegations in Hill’s second post-conviction petition because Hill did not include

them in his first petition. Id. at *57. The court then found that some of the allegations of Hill’s

first state post-conviction petition relied on evidence outside the trial record and concluded that

the Ohio Court of Appeals incorrectly applied res judicata because Hill could not have raised

them on direct appeal. Id. (citing Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001)).

Neither Hill nor the State contests these findings. Hill argues that we should excuse any

procedural default—and so address the merits of his claims—because he can show cause and

prejudice on the basis of ineffective assistance of post-conviction counsel under Martinez v.

Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013).

3. Cause and Prejudice

“There is no constitutional right to an attorney in state post-conviction proceedings.”

Coleman v. Thompson, 501 U.S. 722, 752 (1991). Therefore, ineffective assistance of counsel in

those proceedings generally cannot serve as a cause for procedural default. Id. In Martinez,

however, the Supreme Court carved out a “narrow exception,” holding that “[i]nadequate

assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance of counsel at trial,” but only when “state

law requires that an ‘ineffective assistance of trial counsel [claim] . . . be raised in an initial-

review collateral proceeding.’” Trevino, 133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at

1315, 1320). The Supreme Court expanded this exception in Trevino, holding that it applied in

Texas even though Texas criminal procedure “on its face appears to permit (but does not require)

the defendant to raise the claim of [ineffective assistance of trial counsel] on direct appeal.” Id.

The Supreme Court concluded “that the Texas procedural system—as a matter of its structure,

design, and operation—does not offer most defendants a meaningful opportunity to present a

claim of ineffective assistance of trial counsel on direct appeal.” Id. at 1921. Thus, the Trevino

Court held that the Martinez exception applied because the petitioner’s first real opportunity to

present the claim was in an initial-review collateral proceeding. Id.

Nos. 13-3412/3492 Hill v. Mitchell Page 32

Hill argues that Trevino and Martinez apply in Ohio because, like Texas, “Ohio’s

procedural framework fails to provide a meaningful opportunity to litigate claims of ineffective

assistance of counsel on direct review.” Hill Br. at 71. Hill’s assertion is incorrect on its face

and belied by his own case, as he was able to (and did) raise IATC claims on direct appeal, albeit

on different grounds. See R. 42, Direct Appeal at 46–52, Page ID 4139–45. And prior to

Trevino, we held that Martinez does not apply in Ohio because Ohio permits (in fact, requires)

that defendants bring within-record IATC claims on direct appeal. Moore v. Mitchell, 708 F.3d

760, 785 (6th Cir. 2013). We have yet to decide whether Trevino applies in Ohio, but we have

suggested it may not on multiple occasions. See, e.g., Landrum v. Anderson, 813 F.3d 330, 336

(6th Cir. 2016); Henness v. Bagley, 766 F.3d 550, 556–57 (6th Cir. 2014); McGuire, 738 F.3d at

752.

Ohio’s dual-track system for IATC claims complicates matters with respect to Trevino.

In McGuire, we noted that “one could argue that the category requiring evidence outside the

record must be brought on collateral review in order for review to be meaningful,” suggesting the

possibility that the Martinez exception could apply for that category of IATC claims. 738 F.3d at

751–52. But we also explained that, in the “‘ordinary’” Ohio case, “‘ineffective assistance of

counsel at mitigation, just like ineffective assistance at trial, is an issue that can be brought on

direct appeal.’” Id. at 752 (quoting State v. Combs, 652 N.E.2d 205, 212 (1994) (collecting Ohio

cases)). “Arguably, then, the review of trial counsel ineffectiveness claims in Ohio is more

‘meaningful’ than Texas, because in Ohio there is ‘ordinarily’ the availability of direct review

with a constitutionally required counsel, with the back-up of collateral attack where evidence

outside the record is required.” Id. We chose not to answer the question in McGuire, as our

discussion merely “show[ed] that the application of Trevino to Ohio ineffective-assistance claims

is neither obvious nor inevitable.” Id. We have not answered it since. See Williams v. Mitchell,

792 F.3d 606, 615 (6th Cir. 2016). We do not do so today, because even if Trevino applies, Hill

cannot satisfy the requirements of the Martinez exception.12

12

Both parties’ briefing regarding the applicability of Trevino and Martinez in Ohio left much to be

desired.

Nos. 13-3412/3492 Hill v. Mitchell Page 33

4. Ineffective Assistance of Trial Counsel

To establish cause to excuse his procedural default, Hill must satisfy all four

requirements of Martinez, as explained in Trevino:

(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;

(2) the “cause” consisted of there being “no counsel” or only “ineffective”

counsel during the state collateral review proceeding; (3) the state collateral

review proceeding was the “initial” review proceeding in respect to the

“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an

“ineffective assistance of trial counsel [claim] . . . be raised in an initial-review

collateral proceeding.”

Trevino, 133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at 1318–21). To excuse his procedural

default, then, Hill must show that he has a “substantial” claim of ineffective assistance of trial

counsel at the penalty phase. Substantial claims are those that a petitioner shows have “some

merit” under Strickland v. Washington, 466 U.S. 668 (1984). Morrow v. Tennessee, 588 F.

App’x 415, 422 (6th Cir. 2014) (quoting Martinez, 132 S. Ct. at 1318–19). Even then, to prevail,

Hill must show that trial counsel actually was constitutionally ineffective. He cannot do so.13

Because sub-parts (1), (2), and (3) of Hill’s IATC claim were denied based solely on

procedural grounds, we review the merits de novo. Barton v. Warden, S. Ohio Correctional

Facility, 786 F.3d 450, 459–63 (6th Cir. 2015).14 “To prevail on a claim of ineffective assistance

of counsel, a petitioner must show that counsel’s performance was deficient and that it

prejudiced him.” McGuire, 738 F.3d at 752 (citing Strickland v, 466 U.S. at 687. This standard

has two prongs:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

13

Our analysis of whether Hill can show a “substantial” IATC claim is identical to whether Hill can

actually prevail on his IATC claim.

14

Although the state trial court denied a version of sub-parts (1), (2), and (3) of Hill’s claim on the merits,

our precedent indicates that the decision is not entitled to AEDPA deference. Barton, 786 F.3d at 462. To receive

AEDPA deference, the state courts must have “adjudicated [the claim] on the merits.” 28 U.S.C. § 2254(d). To

determine whether a state court adjudicated the claim on the merits, “federal courts [are] to ‘look through’ and defer

to the ‘last reasoned state-court opinion’ that addressed the matter.” Barton, 786 F.3d at 462. In Barton, we

explained that, even if a trial court decides a claim on the merits, that decision is “stripped of any preclusive effect

under the last-reasoned decision rule” when the state appellate court affirms the trial court’s decision “entirely based

on a procedural bar.” Id. at 463.

Nos. 13-3412/3492 Hill v. Mitchell Page 34

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. With respect to the first prong, our scrutiny of defense counsel’s

performance must be “highly deferential.” Id. at 689. “Because of the difficulties inherent in

making the evaluation, [we] must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id. As for the second prong, a

petitioner must demonstrate that there is a reasonable probability that, but for counsel’s errors,

the result of the proceedings would have been different. Id. at 694. However, if we determine

that a petitioner has failed to satisfy one prong, we need not consider the other. Id. at 697. Here,

Hill cannot show that his trial counsel’s performance at the penalty phase was deficient.

Under Strickland, “counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Id. at 691. A petitioner

may show trial counsel was ineffective for failing to conduct an adequate investigation of a

defendant’s family background and mental health history. See Poindexter v. Mitchell, 454 F.3d

564, 577–78 (6th Cir. 2006) (collecting cases). “Our circuit’s precedent has distinguished

between counsel’s complete failure to conduct a mitigation investigation, where we are likely to

find deficient performance, and counsel’s failure to conduct an adequate investigation, where the

presumption of reasonable performance is more difficult to overcome.” Beuke v. Houk, 537 F.3d

618, 643 (6th Cir. 2008) (citing Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001); Moore v.

Parker, 425 F.3d 250, 255 (6th Cir. 2005). A comparison of the mitigation evidence presented

with the evidence Hill argues effective counsel would have found demonstrates that counsel did

conduct an adequate investigation and that counsel’s performance was not deficient.

(a) Evidence Presented in Mitigation

The district court provided a thorough analysis of the substantial mitigation evidence

Hill’s trial counsel presented during the penalty phase of his trial. Hill v. Mitchell, 2013 WL

1345831, at *62–65. Hill’s counsel presented evidence from eight of Hill’s family members,

two friends, Hill’s former juvenile probation officer, Hill himself, and Dr. Schmidtgoessling, a

Nos. 13-3412/3492 Hill v. Mitchell Page 35

psychologist who served as a mental health expert to assist in Hill’s mitigation case. Id. at *62.

These witnesses provided a full picture of Hill’s mitigation case, as recounted by the district

court:

From [Hill]’s relatives and friends, defense counsel elicited evidence that [Hill]

had numerous relatives from both sides of his family with whom he was close-

many of whom expressed disbelief that [Hill] had done what he was accused of;

that [Hill] had had some run-ins with the law as a juvenile and grew up in a bad

neighborhood rife with gangs and drugs; that [Hill] became involved with drugs

to survive and to obtain things he needed; that [Hill] was kind, gentle, and helpful;

that [Hill] had a good but sometimes troubled relationship with his mother,

stemming from the fact that she could not always provide for her children, that

none of the fathers of her children provided support, and that she suffered severe

bouts with depression due to several lost pregnancies; that [Hill] and his father

professed to love each other even though they had virtually no relationship and

very little contact—a matter that often left [Hill] sad and depressed; that [Hill]’s

mother and father never lived together or had a relationship; that [Hill]’s father

had served five years in prison; that [Hill] had struggled in school, particularly in

math, despite sometimes demonstrating a desire to finish school and find a job;

that [Hill] had spent some time at Hillcrest school for troubled boys; that [Hill]

had subsequently spent time at Millcreek juvenile mental health facility due to

suicidal thoughts, a drug overdose, severe depression with psychotic features, and

hearing voices that told him to harm himself. The record demonstrates that much

of the information provided by [Hill]’s relatives was pried from them by specific,

probing questions by defense counsel—demonstrating counsel's familiarity with

the information those relatives possessed but were not always prepared to divulge.

From juvenile court social workers, defense counsel presented more detailed

evidence about [Hill]’s stay at Hillcrest; the efforts (albeit failed) that [Hill] made

to stop abusing drugs and alcohol and maintain a job; [Hill]’s respectful

disposition; the struggles that [Hill]'s brother Marcus also experienced with the

law and severe depression; the effect that [Hill]’s noisy, wild, chaotic

neighborhood had on [Hill]; the manner in which [Hill] had to align himself with

gangs and/or drug dealers for protection; [Hill]’s abuse or at least use of alcohol

and drugs beginning in his teens; [Hill]’s receipt of treatment at the Millcreek

juvenile mental health facility due to severe depression, auditory hallucinations,

and suicidal thoughts; and [Hill]'s potential for rehabilitation, to further his

education, and to develop vocational skills. [Hill] himself testified in an unsworn

statement that growing up was hard and that he struggled to survive; that he had

“done things” just to be someone, just to have friends, and just to get clothes; that

he had done these things to try to take the pressure off “them” (his parents); that

he drank and smoke because he was depressed but that he tried to stop because

those things only made him hurt more; that he had wanted to end his life; that he

used to hear voices telling him to “go ahead” and kill himself; that he had tried

Nos. 13-3412/3492 Hill v. Mitchell Page 36

many times to end his life; that at school, he felt considerable pressure from not

having the right clothes; that he had had problems especially with math; that when

he went to Millcreek, he had told them all that he wanted help; that his mother’s

loss of the baby was bad, that she lived through bad circumstances, but that she

had never left him and had always done the best she could to make sure they had

what they needed; that although his father had not been around, they knew that

they both loved each other; and that he was sorry the jury had to be there, sorry

that the baby was gone, and sorry for the family.

Defense counsel’s final mitigation witness was Dr. Schmidtgoessling. She

testified that she had met with [Hill] initially on September 4, 1991, that

subsequently a social worker had met with [Hill] three times, and that Dr.

Schmidtgoessling had then met with [Hill] again on October 25, 26, and 28, 1991.

Dr. Schmidtgoessling testified that their collective investigation revealed very

much a struggling nuclear family, an extended family that was protective but

struggling itself; a heavy exposure to drug trafficking and use, as well as to

violence and intimidation; and a personal ([Hill]’s) and family history of

psychological problems. She explained that [Hill]’s mother had had a number of

serious psychological and emotional losses—stemming from her loss of two

pregnancies and her difficult relationships with the fathers of her children—that

[Hill]’s mother suffered severe depression from the time that [Hill] was fourteen-

years-old; and that [Hill] had as a result many feelings of being overlooked and

neglected, and of loss that his mother was not available to him. Dr.

Schmidtgoessling further testified that [Hill]’s father was never active in [Hill]’s

family, that [Hill] had grown up very much wanting a father, and that [Hill]’s self-

worth was damaged by the absence of a relationship with his father. To that

point, Dr. Schmidtgoessling also testified that the man to whom [Hill] was the

closest—his maternal grandfather—died when [Hill] was fourteen, at which point

[Hill] began experiencing problems, struggling in school, and increasing his

substance abuse. By age seventeen, Dr. Schmidtgoessling testified, [Hill] was

experiencing problems with serious depression. He was admitted to Millcreek,

where records described how painful [Hill]’s family situation was for him and

where another brother was also hospitalized with serious depression. Dr.

Schmidtgoessling proceeded to testify that [Hill] had a large extended family of

relatives who tried to look out for each other but who had problems of their own

and were protective and less than forthcoming as a result. As Dr.

Schmidtgoessling explained:

. . . First off as a normal factor, it’s not unusual that some people

know [their] families better than others, so they have different

perceptions of them.

Our experience here is that some of the family have not been very

open about sharing information. One family member would say

this was a problem, the other would say no, it wasn’t. So some of

Nos. 13-3412/3492 Hill v. Mitchell Page 37

them, we believe, are simply being protective of each other, which

is also typical for families. Families don’t like to see their family

members subjected to what they feel might be painful or

humiliating circumstances.

Sometimes families don’t see what's going on because they’re in

denial, they can’t or don’t want to see at a psychological level not

deliberately lying, don’t know how to see problems because they

don’t know how to solve the problems. We believe that’s also

taking place in this family.

Dr. Schmidtgoessling went on to testify about [Hill]’s struggles in school, noting

that they had not been able to pinpoint why [Hill] struggled as he did and

remarking that psychologically, school is an important area where kids determine

their self-worth and is important for developing the skills kids need to succeed

later in life. Thus, Dr. Schmidtgoessling explained, [Hill]’s lack of success in

school not only held him back in other areas of development but also made him

more vulnerable to “street” influences as an alternative place for him to find his

“niche.” To that point, Dr. Schmidtgoessling testified about [Hill]’s heavy

exposure, from a young age, to drug trafficking and drug use. She explained that,

although they ascertained that [Hill] had begun using drugs and alcohol around

age fourteen, they were not able to determine with certainty from their

investigation the extent of [Hill]’s use of alcohol and drugs. The neighborhood

where [Hill] was raised additionally exposed him to violence, to the point, Dr.

Schmidtgoessling explained, that he became habituated to it. Further, according

to Dr. Schmidtgoessling, [Hill] was exposed to violence in his own family, with

[Hill]’s father having admitted to Dr. Schmidtgoessling that he had been

physically abusive toward [Hill]’s mother. All this affected [Hill] as following,

according to Dr. Schmidtgoessling:

Basically it caused the defendant to become used to seeing

violence. Additionally in his case he became—in an environment

like that you’re either a victim of violence or you become aligned

with the people, like gangs, to protect himself. And in his case

what he did is became more involved with people who were more

violent so as to protect himself. We know he’s been doing that

since he’s been approximately fourteen or fifteen years old, from

what we’ve been able to put together.

The last area of testimony that Dr. Schmidtgoessling covered detailed [Hill]’s

history of psychological treatment. Dr. Schmidtgoessling testified about [Hill]

receiving treatment at Millcreek for one month during 1988. Records revealed,

according to Dr. Schmidtgoessling, that [Hill] was suffering from major

depression with psychotic features, that [Hill] reported hearing voices that told

him to harm himself, that [Hill] was treated with antidepressant medication, after

Nos. 13-3412/3492 Hill v. Mitchell Page 38

which he improved after a month, was released, and was recommended for

follow-up treatment at the Central Community Health Board. Dr.

Schmidtgoessling was unable to confirm whether [Hill] actually availed himself

of that after-care treatment. Dr. Schmidtgoessling reiterated that during the same

time period, a brother of [Hill]’s also was hospitalized at University Hospital for

depression. Dr. Schmidtgoessling proceeded to explain that [Hill], who was

twenty years of age, was diagnostically young. Because younger people are “not

considered to have a fully crystallized personality or fully set personality,”

according to Dr. Schmidtgoessling, “it’s usually—late twenties is when you

usually start applying diagnoses that you feel have reliability.” That said, Dr.

Schmidtgoessling emphasized that the depression from which [Hill] was suffering

was not just “average” depression that everyone may experience; rather, it was

much more severe, affecting [Hill]’s functioning in a significant fashion. Dr.

Schmidtgoessling also testified that notwithstanding the foregoing, as well as the

offenses of which [Hill] was convicted, she was of the view that [Hill] possessed

the capacity to develop job skills, to better himself academically, and to benefit

from individualized attention that prisons often offer in the way of vocational and

educational programs.

In closing arguments, defense counsel emphasized why [Hill]’s youth was a

mitigating factor; all the reasons that [Hill]’s family life and violent surroundings

mitigated in favor of a sentence less than death; Dr. Schmidtgoessling’s

observations and conclusions; the many positive programs from which [Hill]

could benefit in prison; and [Hill]’s sincerity in his unsworn statement.

Hill, 2013 WL 1345831, at *62–65. Based on this evidence, we cannot possibly conclude that

trial counsel failed to investigate or present mitigating evidence, and “the presumption of

reasonable performance is more difficult to overcome.” Beuke, 537 F.3d at 643 (citing

Campbell, 260 F.3d at 552. Accordingly, “we must closely evaluate whether [Hill’s counsel]

exhibited specific deficiencies that were unreasonable under prevailing professional standards.”

Id. (citing Dickerson v. Bagley, 453 F.3d 690, 701 (6th Cir. 2006)). Hill cites three alleged

deficiencies: failure to present lay witnesses; failure to hire an independent mental health expert;

and failure to hire a mitigation specialist.

(b) Failure to Prepare Lay Witnesses

As sub-part (3) of his IATC claim, Hill asserts that trial counsel was ineffective for

failing to adequately prepare lay witnesses for their testimony at mitigation. But, as shown

above, Hill’s family members testified extensively at his trial and presented a full picture of his

upbringing. Hill does not explain why counsel’s actions were deficient, and he cites little

Nos. 13-3412/3492 Hill v. Mitchell Page 39

additional evidence that counsel should have elicited from witnesses. Hill’s mother and three

aunts each submitted affidavits containing the exact same paragraph:

When asked about [Hill] and his childhood, I tried to focus on any positive

memories that I had, and I did not understand that all of the difficulties of [Hill]’s

upbringing should have been discussed as a potential basis for mitigating

circumstances. I did not understand this because nobody ever talked to me about

the type of information that is important to bring out in the mitigation phase of a

death penalty trial.

R. 47, Affidavits of Mary E. Hill, Denise Hill, Jennifer Clark, and Ruby Hill, Page ID 5637–44.

Despite the lack of evidentiary support, Hill suggests that counsel’s failure to adequately prepare

witnesses gave the jury “a severely misleading picture of Hill’s life.” Hill Br. at 68.

Hill’s argument is unpersuasive and does not match the record. Hill’s brief on appeal

cites a number of facts and pieces of information that he alleges counsel should have discovered.

He suggests the jury never heard about Hill’s troubled relationship with his father or his mother’s

inability to fully care for him and provide the things he needed. Hill Br. at 64–65. He asserts

that counsel failed to discover that he attempted suicide, that he abused drugs and alcohol, or that

he heard voices telling him to kill himself. Id. But Hill’s counsel did, in fact, present these facts

during mitigation. While it is true that Hill’s family presented varying, sometimes-conflicting

accounts of Hill’s life and upbringing, “that was not the result of deficient investigation and

preparation on the part of defense counsel. Rather, it was the product of reality.” Hill, 2013 WL

1345831, at *68. As Dr. Schmidtgoessling testified, family members are often protective or in

denial regarding a family member’s shortcomings, and may be unwilling to discuss them or to

even believe that their loved one is capable of committing the crimes for which he was

convicted. See Trial Tr. Vol. 12, Schmidtgoessling Testimony at 1713–14; see, e.g., Trial Tr.

Vol. 12, Mary Thompson Testimony at 1609–10. But that does not amount to ineffective

assistance of trial counsel. What Hill truly argues, as the district court suggested, is that counsel

was deficient for “failing to guide family members into uniformly emphasizing everything

negative about [Hill]’s upbringing and uniformly omitting anything positive about [it.]” Hill,

2013 WL 1345831, at *68. We agree with the district court that this argument is not well taken.

Nos. 13-3412/3492 Hill v. Mitchell Page 40

With regard to the failure to adequately prepare witnesses, Hill cites only one piece of new

information: that Hill was born as a result of his father raping his mother. Even if counsel’s

performance was deficient for failing to elicit this one fact from Hill’s witnesses, Hill cannot

show prejudice. “A petitioner does not establish prejudice if he shows only that his counsel

failed to present ‘cumulative’ mitigation evidence, that is, evidence already presented to the

jury.” Beuke, 537 F.3d at 645 (quoting Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)).

The jury heard about the realities of Hill’s upbringing, including that Hill’s father was abusive

toward his mother and that that abuse made Hill accustomed to witnessing violence. While this

particular fact is not entirely cumulative, “[it] is not powerful mitigating evidence” that, standing

alone, “is reasonably likely to have changed the jury’s recommendation of death.” Beuke,

537 F.3d at 645. Accordingly, Hill cannot show that counsel’s performance was deficient for

failing to adequately prepare lay witnesses.

(c) Failure to Hire an Independent Mental Health Specialist

Hill asserts as sub-part (2) of his IATC claim that counsel was constitutionally ineffective

for failing to hire an independent and competent mental health expert. Hill argues that Dr.

Schmidtgoessling acted as an agent of the State and that she was wrong in her assessment of his

mental health. Neither argument carries much weight.

Hill cites no authority to support the notion that he was entitled to a particular mental

health expert. We have held that a capital defendant is entitled to a mental health expert during

mitigation to assist in preparing an insanity defense, Powell v. Collins, 332 F.3d 376, 392 (6th

Cir. 2003). But even if Hill were entitled to an expert, “[t]he Constitution does not require that

an indigent criminal defendant be able to retain the expert of his choosing, only that a competent

expert be made available.” Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006) (citing Ake

v. Oklahoma, 470 U.S. 68, 83 (1985)).

Hill received the assistance of an expert in Dr. Schmidtgoessling. The trial court granted

Hill’s “Motion to Employ Expert” to retain Dr. Schmidtgoessling, a clinical psychologist and the

associate director of the Court Psychiatric Center, “to assist counsel in preparing for mitigation

for sentencing purposes.” R. 40, Entry Granting Motion, Page ID 3352. Hill asserts this is

Nos. 13-3412/3492 Hill v. Mitchell Page 41

irrelevant because Dr. Schmidtgoessling worked for the government and was not independent.

But the record does not support his assertion, as the court found that Dr. Schmidtgoessling could

“maintain a relationship of confidentiality [with Hill] until said privilege is waived by [Hill],

subject to the Rules of Discovery.” Id. Dr. Schmidtgoessling testified extensively in mitigation

on Hill’s behalf, and absent any evidence to support the idea that she did not maintain

confidentiality or testify truthfully to support Hill’s mitigation case, Hill’s argument fails. See

Miller v. Colson, 694 F.3d 691, 696 (6th Cir. 2012) (“In psychiatric assistance claims,

‘independent’ has become a term of art referring to a psychiatrist assigned exclusively to assist

the accused in his defense.”).

As for Hill’s second argument, trial counsel was not constitutionally ineffective just

because Hill disagrees with Dr. Schmidtgoessling’s assessment. “A licensed practitioner is

generally held to be competent, unless counsel has good reason to believe to the contrary.”

Lundgren, 440 F.3d at 772. And “[a]bsent a showing that trial counsel reasonably believed that

[the expert] was somehow incompetent or that additional testing should have occurred, simply

introducing the contrary opinion of another mental health expert during habeas review is not

sufficient to demonstrate the ineffectiveness of trial counsel.” McGuire, 738 F.3d at 758 (citing

Black v. Bell, 664 F.3d 81, 104–05 (6th Cir. 2011)); see Fautenberry v. Mitchell, 515 F.3d 614,

625–26 (6th Cir. 2008) (concluding, in another case involving Dr. Schmidtgoessling, that in the

absence of any evidence that Dr. Schmidtgoessling was incompetent, “any inadequacies in [her]

expert assistance—assuming there were any—cannot be the basis for a meritorious ineffective-

assistance claim”).

Hill relies heavily on the affidavit of Dr. Gelbort, particularly his statement that “there

was evidence of long-standing organic brain impairment, consistent with the fact that Hill had

very high levels of lead in his blood during the first year of his life.” Hill Br. at 65 (citing R.

262, Gelbort Aff., Page ID 6500–06. Nothing in Dr. Schmidtgoessling’s testimony, on the other

hand, suggested that Hill had organic brain impairment. Hill suggests that Dr. Schmidtgoessling

incorrectly assessed his mental health, but whether Dr. Schmidtgoessling (at the time of

mitigation) or Dr. Gelbort (almost a decade later) was correct is irrelevant. Dr. Schmidtgoessling

met with Hill several times, began preparing for mitigation eleven weeks in advance, and

Nos. 13-3412/3492 Hill v. Mitchell Page 42

testified extensively on his behalf as a confidential expert. Without evidence that Dr.

Schmidtgoessling was incompetent (or that trial counsel knew such a fact), Hill cannot show that

trial counsel was deficient for relying on Dr. Schmidtgoessling.

(d) Sub-Part (1): Failure to Hire a Mitigation Specialist and Investigate

Finally, Hill argues that counsel was deficient for failing to hire a mitigation specialist

and failing to conduct an adequate investigation of his background and mental health history. He

cites a number of new facts that he claims counsel should have discovered, all from Dr. Gelbort’s

affidavit. As before, however, Hill cites no authority to suggest that counsel was constitutionally

required to hire a mitigation specialist beyond Dr. Schmidtgoessling.15 And the new facts that

Hill contends are particularly relevant—that his father’s friends sexually abused him, that his

mother beat him regularly, and so on—came from Dr. Gelbort’s conversations with Hill himself.

Hill provides no explanation for how his trial counsel could have discovered these facts unless

Hill had told him or Dr. Schmidtgoessling, and Hill never suggests that he told either of them.

Because Hill has not provided any evidence to support his assertion that trial counsel should

have discovered these things, counsel’s performance was not deficient simply because Hill

waited several years to reveal these facts to Dr. Gelbort.

5. Conclusion

Hill must show a “substantial” claim of ineffective assistance of counsel to excuse the

procedural default of his IATC claim, and he must actually demonstrate that counsel was

constitutionally ineffective to prevail on the merits. He has not done so. “Because we find that

trial counsel’s performance was not deficient, we need not address whether [Hill] was prejudiced

by that performance. [Hill] is not entitled to habeas relief for this claim.” Hodges, 727 F.3d at

545. We therefore affirm the denial of relief on Hill’s IATC claims.

15

Hill cites the ABA Guidelines, but they do not establish a constitutional right to a mitigation specialist—

in addition to a mental health expert—during the mitigation phase.

Nos. 13-3412/3492 Hill v. Mitchell Page 43

C. Eighteenth & Nineteenth Grounds: Ineffective Assistance of Counsel—Direct

Appeal

Hill next argues that he received ineffective assistance of counsel on direct appeal. The

district court denied the claim. Hill v. Mitchell, 2013 WL 1345831, at *109.

To demonstrate ineffective assistance of appellate counsel, Hill must satisfy the same

requirements prescribed in Strickland for ineffective assistance of trial counsel. Smith v.

Robbins, 528 U.S. 259, 285 (2000).16 Hill asserts that his counsel on direct appeal was

ineffective for: (1) failing to raise a Brady claim regarding the prosecution’s suppression of

evidence that Hill told probation officer Lynda Phillips that Domika’s death was an accident; and

(2) failing to raise various claims regarding the adequacy of Hill’s trial counsel during the

penalty phase.

1. Failure to Raise Brady Claim

During Hill’s sentencing hearing, but after the jury recommended the death penalty,

Phillips testified that Hill told her Domika’s death was an accident. App. R. 47, Hill App’x at A-

431. Phillips, a juvenile court probation officer, had approached her supervisor before the trial

regarding this evidence, but her supervisor told her not to divulge the information. R. 146-3,

Phillips Aff., Page ID 486–87. Hill himself had also forbidden Phillips from testifying because

he believed it would make “no difference.” App. R. 47, Phillips Testimony, Hill App’x at A-

432. Hill’s appellate counsel did not preserve a Brady claim regarding Phillips’ statement on

direct appeal.

Appellate counsel’s failure to raise a Brady claim regarding Phillips’ conversation with

Hill was not ineffective assistance of counsel because Hill, not the prosecution, withheld the

contents of the conversation. Hill knew what he said to Phillips, and Brady “‘only applies to

evidence that was known to the prosecution, but unknown to the defense, at the time of trial.’”

Abdur’Rahman v. Colson, 649 F.3d 468, 474 (6th Cir. 2011) (quoting Apanovitch, 466 F.3d at

474). Hill’s trial counsel was aware of the conversation—and Hill was obviously aware—so the

16

The parties contest whether AEDPA applies, but the standard of review is ultimately immaterial because

Hill’s claims have no merit.

Nos. 13-3412/3492 Hill v. Mitchell Page 44

evidence was known to the defense and Brady was inapplicable. See Henness, 644 F.3d at 325

(“[Petitioner] already knew of his own contact with the police at the time of trial, so the

prosecution’s failure to provide this information was not a Brady violation.”). Appellate counsel

cannot be ineffective for failing to raise a meritless claim.

2. Failure to Raise Ineffective Assistance of Trial Counsel in Penalty Phase

Hill argues his appellate counsel should have raised claims that trial counsel was

ineffective for failing to (a) retain an independent mental health expert; (b) provide necessary

records to Dr. Schmidtgoessling; (c) object to mitigation phase errors; and (d) request essential

jury instructions, including an instruction regarding a “presumption of life.” His arguments are

without merit.

Failing to Retain an Independent Mental Health Expert. We have already rejected the

merits of the underlying IATC claim for trial counsel’s reliance on Dr. Schmidtgoessling. Hill

therefore cannot demonstrate prejudice based on appellate counsel’s failure to raise the claim.

Failing to Provide Records to the Court Psychologist. Hill argues that appellate counsel

was ineffective for failing to raise an IATC claim regarding trial counsel’s failure to provide

certain records to Dr. Schmidtgoessling. However, as the district court pointed out, and as Hill

concedes, this claim “necessarily relies on evidence outside the trial record.” Hill, 2013 WL

1345831, at *100. Under Ohio law, this claim was required to be brought on collateral review.

State v. Cole, 443 N.E.2d at 171. Appellate counsel could not have brought this claim on direct

appeal and did not perform deficiently by complying with Ohio law.

Failing to Object to Mitigation Phase Errors. In his appellate brief, Hill simply argues

that “[t]rial counsel’s mitigation-phase representation was extremely weak.” Hill Br. at 86. He

does not point to any specific errors trial counsel should have objected to during mitigation, nor

does he explain how appellate counsel was ineffective for failing to raise an IATC claim on that

basis. Hill is not entitled to relief on this undeveloped argument.

Failure to Request Essential Jury Instructions. Hill’s final ineffective-assistance

argument is that appellate counsel should have raised an IATC claim because trial counsel failed

Nos. 13-3412/3492 Hill v. Mitchell Page 45

to request jury instructions regarding a “presumption of life,” the merger of both counts of

aggravated murder and the aggravated circumstances, the lack of unanimity needed to consider

mitigating factors, and the additional sentences Hill would have received to “provide[] the jury

with an accurate picture of the lengthy sentence Hill faced if a life verdict was returned.” Hill

Br. at 85–86.

But “[c]ounsel’s failure to raise an issue on appeal could only be ineffective assistance if

there is a reasonable probability that inclusion of the issue would have changed the result of the

appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). The jury instructions stated

that if the jury did not unanimously find, beyond a reasonable doubt, that the aggravating

circumstances outweighed the mitigating factors, it was not to recommend the death penalty.

Trial Tr. Vol. XII, Jury Charge at 1783. This instruction is consistent with Ohio Revised Code

§ 2929.03(D)(2) and it is not unconstitutional. See Buell v. Mitchell, 274 F.3d 355–56 (6th Cir.

2001). Hill does not even attempt to argue that he was prejudiced by trial counsel’s failure to

request these jury instructions. He also does not argue that he would have prevailed on appeal if

appellate counsel had made this argument. We therefore reject this argument.

3. Conclusion

Because Hill has not shown that appellate counsel’s performance on direct appeal was

deficient or that he was prejudiced by counsel’s performance, we affirm the denial of Hill’s

ineffective-assistance-of-appellate-counsel claims.

D. Twentieth Ground: Proportionality Review

Hill contends that the Ohio Court of Appeals and the Ohio Supreme Court failed to

conduct meaningful proportionality review on direct appeal. He argues that the state courts did

not consider “similar cases” because they only compared his case to cases where courts imposed

the death penalty. However, the Ohio Supreme Court has held that Ohio’s proportionality

review “is satisfied by a review of those cases already decided by the reviewing court in which

the death penalty has been imposed.” Ohio v. Steffen, 509 N.E.2d 383, 395 (Ohio 1987). Thus,

the district court denied the claim. Hill v. Mitchell, 2013 WL 1345831, at *113.

Nos. 13-3412/3492 Hill v. Mitchell Page 46

We agree that the state courts did not unreasonably apply clearly established federal law

here. The Constitution does not require a trial court to conduct proportionality review following

the imposition of a death sentence. Pulley v. Harris, 465 U.S. 37, 50–51 (1984). “Since

proportionality review is not required by the Constitution, states have great latitude in defining

the pool of cases used for comparison.” Williams v. Bagley, 380 F.3d 932, 962 (6th Cir. 2004).

We have therefore “held repeatedly that Ohio’s system of proportionality review complies with

the dictates of the due process clause,” even when “limiting proportionality review to other cases

already decided by the reviewing court in which the death penalty has been imposed.” Id. 962–

63 (citing seven prior Sixth Circuit cases that have upheld Ohio’s limited proportionality review

against constitutional challenges). Hill cites no authority to convince us to reconsider these

decisions, and we therefore affirm the district court’s decision to deny the claim.

E. Twenty-Fourth Ground: Cumulative Error

Finally, Hill argues that the cumulative effect of the errors he alleges deprived him of his

right to a fair trial and sentencing. Under AEDPA, we do not recognize claims of cumulative

error. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011).

V

Our decision should not be viewed as condoning in any way law enforcement officials’

suppression of information that may have been favorable to Hill’s defense. To the contrary, we

reiterate our disapproval of Hamilton County’s consistent history of suppressing evidence.17 But

AEDPA requires habeas petitioners to bring their claims within its one-year limitations period.

Hill did not bring the police report to the district court’s attention for over three years, and he did

not bring the grand jury testimony forward for almost two years. Hill’s failure to comply with

this congressionally mandated procedural bar resulted in “an insurmountable (and self-imposed)

hurdle” to habeas relief. Hill v. Mitchell, 2012 WL 995280, at *14. Moreover, as explained

above, even if we were to consider the merits of Hill’s Brady claim, he would not be entitled to

relief. Hill’s claims on cross-appeal are also without merit. Accordingly, and for the foregoing

17

See, e.g., Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014); Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014);

Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002).

Nos. 13-3412/3492 Hill v. Mitchell Page 47

reasons, we REVERSE the conditional grant of habeas relief on Claim 4(c). We AFFIRM the

denial of habeas relief on the remaining grounds for relief, and REMAND to the district court

for entry of an order denying the petition for writ of habeas corpus.

Nos. 13-3412/3492 Hill v. Mitchell Page 48

_________________

CONCURRENCE

_________________

ALICE M. BATCHELDER, Circuit Judge, concurring. I join all but § III.D of the lead

opinion. Considering the totality of the evidence, I believe the withheld police report satisfies

the standard for materiality of impeachment evidence under Brady v. Maryland, 373 U.S. 83, 87

(1963). See Smith v. Cain, 565 U.S. --, 132 S. Ct. 627, 630 (2012); Kyles v. Whitley, 514 U.S.

419, 450 (1995). But it is clear that the claim is time barred.

In the lead opinion, Judge McKeague aptly explains that Hill discovered the withheld

police report in December 2007, but did not assert this report as an amended Brady claim until

March 2011, over three years later. Although this assertion was beyond AEDPA’s one-year

limitation period, the district court held that the new claim related back to Claim 4(c) of Hill’s

original, timely filed petition. In that petition, Hill had raised a three-part Brady claim:

Fourth Ground for Relief: Prosecutors’ failure to provide exculpatory evidence

during pretrial discovery denied Genesis Hill a fair trial.

a. Withholding Linda Phillips’s exculpatory evidence violated Mr. Hill’s due

process rights.

b. The State withheld mitigating polygraph evidence.

c. The files of the prosecutor and investigating officer contain Brady

material.

Hill v. Mitchell, 2006 WL 2807017, *40 (S.D. Ohio, Sept. 27, 2006) (record citation omitted).

Originally, the district court had dismissed Claim 4(c):

Regarding [Hill]’s blanket assertion in sub-part (c) that there must be more Brady

information in the files of the prosecution and the investigating officer, given the

history of the Hamilton County Prosecutor’s Office of committing Brady

violations, the [district] [c]ourt is not persuaded that there was sufficient evidence

on the trial record from which [Hill] could have raised that argument on direct

appeal. But the utter lack of substance to the claim makes any procedural default

analysis not only impossible, but also unnecessary.

Nos. 13-3412/3492 Hill v. Mitchell Page 49

Id. at *63; see Lead Op. § III.A. But the district court treated Hill’s subsequent assertion that the

withheld police report violated Brady as a motion to amend his original Claim 4(c), resurrected

that claim, and held that this specific new assertion related back to the vague original claim.

Judge McKeague analyzed and distinguished the two predominant cases, Mayle and

Mandacina, and concluded, succinctly and correctly, that Hill’s amended Brady claim cannot be

deemed to share a “common core of operative facts” with his original Claim 4(c), as required for

relation back, because his original Claim 4(c) alleged no operative facts out of which the

amended claim could be deemed to have arisen. Moreover, it is the very fact—that Hill could

not have included in his original habeas petition a Brady claim based on the undiscovered police

report—that entitled him, under AEDPA or Rule 60(b), to one year from the discovery of that

newly discovered evidence to bring it to the district court’s attention. See Lead Op. § III.C.

That is the key to this: relation back is unnecessary and inapplicable in the context of

newly discovered evidence, for which the statute of limitations does not begin to run until the

evidence is discovered. If a petitioner suspects a Brady violation but has no hard evidence to

support that suspicion (or even begin to identify exactly what it might be), the proper approach is

not to include a specious, all-encompassing Brady-based accusation in the original petition and

then attempt to amend that petition in the event of some later discovery of evidence. The proper

approach is to continue to demand discovery from the State and pursue it through other avenues

(exactly as Hill’s habeas counsel did here, in fact); then, upon finding such evidence, file the

specific Brady claim within one year of obtaining it. AEDPA anticipated this: “The limitation

period shall run from … the date on which the factual predicate of the claim … could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

Under Hill’s limitless catch-all Claim 4(c), any and all withheld evidence would relate

back. This approach not only circumvents the AEDPA statute of limitations, it does so by

unacceptably circumventing the fundamental theory of the relation-back rule.

[T]he relation back rule ‘is intimately connected with the policy of the statute of

limitations.’ See Advisory Committee Notes to Fed. R. Civ. P. 15(c). It is

designed to operate equably with that statute, to accommodate the statute of

limitations policies that prevent stale claims from being litigated, and permit their

Nos. 13-3412/3492 Hill v. Mitchell Page 50

repose. Clearly the relation back rule was not designed to provide a means either

to circumvent or to expand the limitations period.

In re Allbrand Appliance & Television Co., 875 F.2d 1021, 1025 (2d Cir. 1989).

Elsewhere, courts considering this in the ineffective-assistance-of-counsel context have

held that a petitioner does not satisfy the Rule 15 relation-back standard by raising a catch-all

accusation of ineffective assistance in the original petition and then amending the petition later to

assert a particular claim of attorney deficiency. See United States v. Ciampi, 419 F.3d 20, 24 (1st

Cir. 2005); Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir. 2000); United States v.

Duffus, 174 F.3d 333, 337 (3d Cir. 1999). This reasoning applies equally to Brady claims.

Finally, in a False Claims Act case, the D.C. Circuit offered this rather insightful and

different analysis, emphasizing the plaintiff’s failure to plead sufficiently at the outset.

[The plaintiff]’s allegations … were nothing more than ‘naked assertions’ devoid

of ‘further factual enhancement,’ the existence of a price-fixing ‘club,’ and that

discovery would reveal other rigged contracts. Allowing such broad and vague

allegations to expand the range of permissible amendments after the limitation

period has run would circumvent the statutory requirement in the FCA that the

amendments arise out of the conduct, transactions, or occurrences in the original

complaint; it would also, we note, circumvent the recent teachings of Iqbal and

Twombly by allowing amendments to relate back to allegations that were

themselves nothing more than ‘naked assertions.’

U.S. ex rel. Miller v. Bill Harbert Int’l Const., Inc., 608 F.3d 871, 882 (D.C. Cir. 2010) (editorial

marks, certain quotation marks, and citations omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).

Because Hill raised his new Brady claim well over two years too late and because there is

no justification for its relation back to his original claim, it is now time barred and must be

dismissed. Whether that claim might have had merit is immaterial. For these reasons, I join the

lead opinion in reversing the judgment of the district court.

Nos. 13-3412/3492 Hill v. Mitchell Page 51

_________________

DISSENT

_________________

COLE, Chief Judge, dissenting. Today a grim game of “prosecutor may hide, defendant

must seek” plays out in the federal courts. Genesis Hill was convicted of murder and sentenced

to death in Hamilton County, Ohio. At nearly every chance since, in both state and federal post-

conviction proceedings, Hill has maintained that the state withheld favorable evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). His claims proved prophetic: Sixteen years

after Hill’s conviction, a private investigator learned that the Cincinnati Police Department,

through its infamous practice of creating “homicide books,” Bies v. Sheldon, 775 F.3d 386 (6th

Cir. 2014), suppressed a report which pointed to a key prosecution witness as a suspect in the

murder investigation. The district court granted a conditional writ of habeas corpus. But the

majority reverses, concluding that the claim is time barred, since Hill failed to come forward

with the long-suppressed report at his earliest convenience. Because the rule of Brady should

encourage disclosure, not deception, I respectfully dissent.

I.

In Brady, the Supreme Court held that the suppression of evidence that is favorable to the

accused and material to his guilt or punishment denies due process of law. 373 U.S. at 87.

“Society wins,” the Court explained, “not only when the guilty are convicted but when criminal

trials are fair.” Id. For more than a half century, that rule of fundamental fairness has allowed

“the search for truth” to prevail in our criminal justice system. See Strickler v. Greene, 527 U.S.

263, 281 (1999).

Hill’s claim centers on two documents that emerged during federal habeas proceedings:

(1) Officer Givens’s Preliminary Investigation Report and (2) Teresa Dudley’s Grand Jury

Testimony. Considering the “cumulative effect” of that suppressed evidence, see Kyles v.

Whitley, 514 U.S. 419, 421 (1995), I am convinced that Hill was deprived of his right to a fair

trial, and has satisfied the procedural prerequisites to obtaining relief in federal court. But first, a

few words on the standard of review and procedural default.

Nos. 13-3412/3492 Hill v. Mitchell Page 52

A.

As the Supreme Court has made clear, federal habeas review is “sharply limited by

established principles of deference.” Cone v. Bell, 556 U.S. 449, 476 (2009) (Roberts, C.J.,

concurring in judgment). To obtain relief under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Hill would ordinarily need to show, for instance, that the state court’s

“adjudication” of his claim “involved an unreasonable application” of clearly established

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). So unreasonable in fact that the error

was “well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” See Harrington v. Richter, 562 U.S. 86, 103 (2011).

I remain cognizant of AEDPA’s limitations in that regard. See, e.g., Woods v. Etherton,

136 S. Ct. 1149 (2016) (per curiam); White v. Wheeler, 136 S. Ct. 456 (2015) (per curiam);

Rapelje v. Blackston, 136 S. Ct. 388 (2015) (Scalia, J., dissenting from denial of certiorari);

White v. Woodall, 134 S. Ct. 1697 (2014).

But this case, the majority appears willing to concede, arises in a different posture. Ante,

at 7. Section 2254(d), by its terms, can only apply to claims that have been “adjudicated on the

merits in State court proceedings.” Cullen v. Pinholster, 563 U.S. 170, 186 (2011). And the

Ohio courts did no such thing here. See State v. Hill, No. C-961052, 1997 WL 727587, at *1

(Ohio Ct. App. Nov. 21, 1997) (concluding, instead, that Hill’s Brady claim was “barred by res

judicata” because it “could have been brought on direct appeal”). Federal habeas review is thus

freed from the “deferential standard that applies under AEDPA,” and the merits of Hill’s Brady

claim may be “reviewed de novo.” See Cone, 556 U.S. at 472.

With that conclusion comes an attendant limitation. On direct appeal, federal courts have

no authority to review decisions that “rest on adequate and independent state grounds.” Herb v.

Pitcairn, 324 U.S. 117, 125 (1945). So too on collateral review: claims that have not been raised

in compliance with state procedural rules are barred in federal court. Wainwright v. Sykes,

433 U.S. 72, 86–87 (1977); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991) (noting

that “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical

Nos. 13-3412/3492 Hill v. Mitchell Page 53

requirements for exhaustion” because “there are no state remedies any longer ‘available’ to him”

under 28 U.S.C. § 2254(b)(1)).

Hill’s claim is, by all accounts, procedurally defaulted. The Ohio Court of Appeals

concluded, in 1997, that Hill’s claims were “barred by res judicata.” Hill, 1997 WL 727587, at

*1. The state has consistently argued, since at least June 1999, that Hill’s Brady claims are

procedurally defaulted under Ohio law. And the district court reached the same conclusion, on

the state’s motion, back in September 2006. Hill v. Mitchell, No. 1:98-CV-452, 2006 WL

2807017, at *61–66 (S.D. Ohio Sept. 27, 2006). Hill’s Brady claim is accordingly barred

“absent a showing of cause and actual prejudice.” See Engle v. Isaac, 456 U.S. 107, 129 (1982).

As the Supreme Court has recognized, however, the cause-and-prejudice standard dovetails with

the elements of a meritorious Brady claim. Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler,

527 U.S. at 282. So I consider those issues in tandem.

B.

This case thus presents a simple question: Did the state violate the rule of Brady? It is

beyond debate that Officer Givens’s preliminary investigation report and Teresa Dudley’s grand

jury testimony were suppressed by the state, and that those documents were favorable to Hill.

I would also conclude that this evidence qualifies as “material” for Brady purposes.

The relevant standard has crystalized in recent years: “Evidence qualifies as material

when there is any reasonable likelihood it could have affected the judgment of the jury.” Wearry

v. Cain, 136 S. Ct. 1002, 1006 (2016) (per curiam) (internal quotation marks omitted).

A defendant need not show that he “more likely than not” would have been acquitted; only that

the suppressed evidence could reasonably be taken to “undermine confidence” in the verdict. Id.

(internal quotation marks omitted). And, by that measure, a defendant can prevail “even if . . .

the undisclosed information may not have affected the jury’s verdict.” Id. at 1006 n.6.

The Court has consistently recognized the value of evidence bearing on the credibility of

a key prosecution witness. See, e.g., id. at 1006; Smith v. Cain, 132 S. Ct. 627, 630 (2012);

Dretke, 540 U.S. at 700–01; Strickler, 527 U.S. at 293–94; United States v. Agurs, 427 U.S. 97,

112 n.21 (1976); Giglio v. United States, 405 U.S. 150, 154–55 (1972); Napue v. Illinois,

Nos. 13-3412/3492 Hill v. Mitchell Page 54

360 U.S. 264, 269 (1959). In Giglio, for example, the Court held that the failure to disclose a

promise of immunity made to the government’s “key witness” was prejudicial because the case

“depended almost entirely” on his testimony. 405 U.S. at 151, 154. Similarly, in Dretke, the

Court ruled that the state’s concealment of evidence discrediting “two essential prosecution

witnesses” amounted to prejudice because their testimony was the “centerpiece” of the

prosecution’s case. 540 U.S. at 675, 701. And just this term, in Wearry, the Court concluded

that suppressed evidence undermining the credibility of the prosecution’s “star witness” was

material because the case resembled a “house of cards” built upon his account of the crime.

136 S. Ct. at 1003, 1006.

This case is of a piece with Giglio and its progeny. To appreciate why, consider the facts

of Hill’s trial, paying close attention to Teresa Dudley’s role as a prosecution witness and the

state’s reliance on her testimony to build its case:

Domika Dudley, the six-month-old daughter of Genesis Hill and Teresa Dudley, resided

with her mother’s side of the family in Cincinnati, Ohio. The teenage parents lived just down the

street from each other and, despite some quarrels, appeared to have an ongoing relationship. But

on May 31, 1991, just past midnight, Dudley awoke to find her daughter missing. Officer

Givens, who was the first investigator to arrive on the scene, combed the neighborhood that night

to no avail. The next morning, however, Dudley found one of Domika’s barrettes on the garage

floor of the Hill-family home. And the next day, after re-focusing their investigation

accordingly, police discovered Domika’s lifeless body in a wooded lot nearby. The infant’s skull

had been fractured. She was wrapped up in a shirt, several plastic trash bags, and electrical tape,

and then placed in an empty formula carton. State v. Hill, 661 N.E.2d 1068, 1072–74 (Ohio

1996).

The Hamilton County Prosecutor’s Office charged Hill with aggravated murder and

sought the death penalty. See Ohio Rev. Code §§ 2903.01(B), 2929.04(A)(7). The state’s theory

of the case hinged on Hill and Dudley’s supposedly tumultuous relationship: according to the

prosecution, Hill broke into Dudley’s home while she slept, kidnapped Domika undetected,

murdered her, and then disposed of the body, all in a grievous attempt to avoid “pay[ing] any

child support.” (Trial Tr., Vol. VII, p. 956.) But there was no smoking gun—say, a confession,

Nos. 13-3412/3492 Hill v. Mitchell Page 55

or matching blood and hair samples—linking Hill to the actual killing. Rather, to demonstrate

that Hill had motive to kill, access to Domika, and the implements needed to dispose of the body,

the state pieced together an assortment of, as the majority puts it, “largely circumstantial”

evidence. Ante, at 31.

The most powerful testimony on that score came from Teresa Dudley, who was (in the

prosecution’s words) an “essential witness.” (Id., Vol. VIII, p. 1019.) Dudley began by

testifying that she had recently “got into it” with Hill over child support. (Id. at 1003.) When

confronted about making those payments, Hill apparently “started going off,” said “I bet I don’t

pay,” and threw a brick at Dudley’s window. (Id. at 1004–05.) The prosecution then asked

Dudley to identify various pieces of physical evidence, directly linking Hill to the crime. Take,

for example, the clothing wrapped around Domika’s body. Dudley was certain that this was

Hill’s shirt because she “kn[ew] him long enough to know his wardrobe.” (Id. at 1026.) The

prosecution also asked her to identify Domika’s barrette. Dudley testified that she found the

distinctive clasp (it was “blue” with a “pink teddy bear” on it) “[j]ust sitting there” inside Hill’s

garage. (Id. at 1013–14.) The barrette caught her eye because she “did [Domika’s] hair earlier”

that evening. (Id. at 1013.) The prosecution concluded by asking Dudley to identify a picture of

Domika’s body, ostensibly in effort to “show[] the barrettes and . . . the shirt she identified.” (Id.

at 1020.) But Dudley broke down at this sight, “became hysterical,” and started “crying very

loudly.” (Id. at 1017–18.) The jury was then removed from the courtroom. Defense counsel

moved for a mistrial, but the judge determined that the outburst “was [not] anything particularly

out of the ordinary.” (Id. at 1019.)

Hill’s defense began—and ended—with an attempt to undermine Dudley’s credibility.

As the Ohio Supreme Court recognized, defense counsel’s strategy was to suggest that Dudley

had in fact committed the crime, and Hill was the perfect patsy. See Hill, 661 N.E.2d at 1074

(“At trial, numerous . . . [d]efense witnesses suggested . . . that Teresa was not a good mother;

that she had been aggressive towards Hill on May 31; that she had access to the trash bags in

Hill’s kitchen; and that she may have ‘planted’ the barrette on the garage floor.”).

But on cross-examination, Hill’s attorney was wary of further “upset[ting]” Dudley in

front of the jury. (Id. at 1025.) And more debilitating still, the defense lacked any means to

Nos. 13-3412/3492 Hill v. Mitchell Page 56

seriously undermine Dudley’s account. As the proceeding ran its course, it became clear that

Hill’s attorney could accomplish little beyond quibbling over minor factual details, poking

insubstantial holes in the timeline, and casting aspersions on Dudley’s maternal fitness. The

prosecution even boasted, in its closing argument, that the defense’s effort to “pin it on someone

else” and “plant [a] seed of doubt in [the jurors’] minds” was rather feeble. (Id., Vol. XI, p.

1471.) Instead, the state successfully cast Dudley as Hill’s antithesis, contrasting the father’s

“remorse[less]” expression with “[t]he way [the mother] reacted at the pictures of the baby.” (Id.

at 1542–43.) And in the end, the jury accepted Dudley’s version of these events, convicted Hill

of aggravated murder, and sentenced him to death.

No wonder the district court ruled as it did. Given this context, the court thought that the

impact of the suppressed evidence on Dudley’s credibility “would have crippled the

prosecution’s case against [Hill].” Hill v. Mitchell, No. 1:98-CV-452, 2012 WL 995280, at *10

(S.D. Ohio Mar. 23, 2012). I unequivocally agree. Dudley’s testimony was the thread that kept

the prosecution’s case from coming apart at the seams, see Wearry, 136 S. Ct. at 1006, and she

provided the “only evidence” directly tying Hill to the murder, see Smith, 132 S. Ct. at 630.

Query, as the prosecution did during closing arguments, “[w]hat [were] the things that

tie[d] the defendant into this case?” (Id. at 1543–44.) At one point, for example, the prosecution

picked up the shirt that was found wrapped around Domika’s body and “thr[e]w the exhibit[] [at]

the defendant.” (Id. at 1544.) This piece of clothing was significant, the state explained to the

jurors, because Dudley “identified . . . [it] as being [Hill’s] shirt.” (Id.) The prosecution also

reminded the jury that the “little barrette [was] a big deal”—only a mother would “remember

what the . . . barrette[] looked like,” the state surmised, “especially if this was [her] only child”

and she had “just put [it] in [the] little baby’s hair five or six hours earlier.” (Id. at 1543; id.,

Vol. X, at 1269–70). The relevant question, it seems, is “who tied the defendant to this case?”

And the state, for good reason then, described Teresa Dudley as its “essential witness.” (Id., Vol.

VIII, p. 1019.)

True, Officer Givens’s report and Dudley’s grand jury testimony do not exonerate Hill

outright. But speculation of that sort is irrelevant: one establishes Brady materiality, not through

the “possibility of an acquittal,” but by “showing that the favorable evidence could reasonably be

Nos. 13-3412/3492 Hill v. Mitchell Page 57

taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Kyles, 514 U.S. at 435 (emphasis added). A defendant can prevail on a Brady claim, that is,

“even if . . . the undisclosed information may not have affected the jury’s verdict.” Wearry,

136 S. Ct. at 1006 n.6.

These suppressed documents are material because they build up Hill’s defense, provide a

compelling means to undermine the state’s most powerful witness, and thus call into question the

reliability of the jury’s verdict. Here, the preliminary investigation report, in no roundabout way,

suggests that Dudley was a potential suspect in the state’s murder investigation. According to

the report, Officer Givens thought that he could “solve[]” the crime by “[i]nvestigat[ing] why

[Dudley] ran from the police” and directed them to search “behind the house (several times).”

(Givens Report, R. 219-4, PageID 2298–99.) And the grand jury testimony shows that the

discovery of Domika’s barrette, a critical event, was uncertain in Dudley’s mind: she told the

grand jury she found a specific barrette outside Hill’s garage, but later told the jury at trial that

she found a different barrette inside Hill’s garage. (Compare Dudley Grand Jury Test., R. 237-1,

PageID 2598, with Trial Tr., Vol VIII, p. 1013–14.)

Would anything have changed if Dudley was thoroughly impeached in that regard?

Maybe, maybe not. But whatever the ultimate evidentiary significance of those facts, the

suppressed evidence is surely enough to undermine confidence in the outcome of this trial.

See Kyles, 514 U.S. at 435 n.8 (“[N]one of the Brady cases has ever suggested that sufficiency of

evidence (or insufficiency) is the touchstone.”). For the jury was otherwise rudderless—no

reason to disbelieve Dudley’s testimony, no reason to discount the weight of the remaining

circumstantial evidence, and no reason to doubt that Hill kidnapped and murdered Domika. In

fact, Hill’s trial attorney testified that, but for the state’s nondisclosure, he “would have

conducted further investigation,” “questioned the state’s witnesses about these matters,” and

could have presented a “much more effective[] defen[se].” (Krumbein Aff., R. 215-12, PageID

2237.)

What is more, the state’s remaining circumstantial evidence is not “strong enough to

sustain confidence” in the capital verdict. See Smith, 132 S. Ct. at 630. The state touted various

eyewitnesses at trial: for example, Barbara Sue Janson, a neighbor, testified that she saw Hill

Nos. 13-3412/3492 Hill v. Mitchell Page 58

enter Dudley’s home about 10 minutes before Domika’s disappearance. But that is all she saw.

Janson knew nothing of what happened inside the Dudley residence, nor did she see Hill depart.

Janson further claimed that she could “positive[ly]” identify Hill’s shirt, and that she once

overheard him say “he’d kill that little bitch before” paying child support. (Trial Tr., Vol. 8, p.

981–82.) But it later came out that Janson had “bad blood” with the Hill family, that she only

believed the shirt wrapped around Domika’s body “look[ed] like” one Hill owned, and that Hill

never “threaten[ed] little Domika or ever [said] he would hurt her.” (Id. at 988, 989, 1004.) The

state also marshalled the testimony of a local bus driver named Patrick Ormond, who apparently

overheard a young man on his bus say that “he thought he might get the chair” for “what he had

done to a little baby.” (Id., Vol. IX, p. 1138.) But despite that vivid recollection, Ormond could

not identify Hill in the courtroom.

The prosecution also called several police officers and forensic experts to introduce

circumstantial physical evidence. For instance, the prosecution established that Hill’s latent

fingerprint was on a lightbulb at Dudley’s home, and that Hill’s uncle was missing some

electrical tape. The state also matched serial numbers from the formula box in which Domika’s

body was found, with formula cans found inside the Hill-family home. And a forensic expert for

the state opined, based on an unusual “wood grain” and “jigsaw” pattern analysis, that one of the

trash bags in which Domika’s body was wrapped came from a roll inside the Hill household.

(Id., Vol. IX, p. 1160, 1165.) But that evidence was not unassailable. For example, Hill

admitted that he went to Dudley’s house that night, but explained that he only “turned out the

[light] bulb” as a “signal” he was “call[ing]” on her, then simply left when she did not respond.

(Id., Vol. X, p. 1413.) And the electrical tape, formula box, and trash bags were readily

accessible to others, which “suggests, at most, that someone in [Hill’s family or] group of friends

may have committed the crime, and that [Hill] may have been involved in events related to the

murder after it occurred.” See Wearry, 136 S. Ct. at 1006. Hardly an open-and-shut capital case.

All in all, I would conclude that the suppressed evidence is sufficient to undermine

confidence in the jury’s verdict, and that Hill has simultaneously established cause and prejudice

to excuse his procedural default. Because the appropriate remedy is a new trial, I would not

reach Hill’s remaining claims on cross-appeal.

Nos. 13-3412/3492 Hill v. Mitchell Page 59

II.

The majority also takes issue with the timing of Hill’s amended petition. AEDPA

imposes a stringent one-year limitations period on federal habeas applications. 28 U.S.C.

§ 2244(d)(1). But the Federal Rules of Civil Procedure create “an exception to that rule,” Cowan

v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011), for amended habeas petitions that “assert[] a claim

or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be

set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B) (emphasis added).

The issue, at this crossroads, is whether Hill’s amended habeas petition “relates back” to

his original petition, or whether his Brady claim is time barred. The majority opts for the latter

course, ante, at 7, concluding that the district court abused its discretion in applying the relation-

back doctrine. See Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998). I cannot agree. Respectfully,

the majority’s ruling is based on a mistaken reading of the Supreme Court’s decision in Mayle v.

Felix, 545 U.S. 644 (2005), and directly conflicts with the Eighth Circuit’s well-reasoned

opinion in Mandacina v. United States, 328 F.3d 995 (8th Cir. 2003).

The law is clear. In Mayle, the Supreme Court held that Rule 15 only allows relation

back when “the original and amended petitions state claims that are tied to a common core of

operative facts”; not “simply because they relate to the same trial, conviction, or sentence as a

timely filed claim.” 545 U.S. at 662, 664. To further clarify, the Court offered Mandacina as an

ideal application of the relation-back doctrine in habeas proceedings. Id. at 664 n.7; see also

Cowan, 645 F.3d at 819. There, Mandacina’s timely original petition “contained only

generalized assertions that evidence obtained by the Gladstone Police Department was

withheld,” while his untimely amended petition—“filed three years later,” as it happens—related

to the suppression of a particular report favorable to his defense. Mandacina, 328 F.3d at 999,

1000 (emphasis added). That degree of specificity was sufficient to satisfy the rationale of Rule

15, the court reasoned, because “a party who has been notified of litigation concerning a

particular occurrence has been given all the notice that statutes of limitations were intended to

provide.” Id. at 1000; see also Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 n.3

(1984) (per curiam). And the Supreme Court endorsed that view: “Both pleadings related to

Nos. 13-3412/3492 Hill v. Mitchell Page 60

evidence obtained at the same time by the same police department,” so relation back was

appropriate in the Brady context. Mayle, 545 U.S. at 664 n.7 (emphasis added).

If this fact pattern feels familiar, that is because it describes Hill’s case to a T. Hill’s

first-in-time petition generally alleged that “[t]he files of the prosecutor and investigating

officer” likely contain “more Brady material that it is refusing or unable to produce,” while his

second-in-time petition set forth the precise details of later-uncovered evidence. (Compare

Second Am. Petition, R. 137-1, PageID 115, with Hill Am. Mot. for Recons., R. 219, PageID

2274–82.) Both petitions (pre- and post-amendment) concerned the same “congeries of facts

supporting the grounds for relief,” i.e., the pre-trial suppression of evidence by the Hamilton

County Prosecutor’s Office. See Mayle, 545 U.S. at 661. To be precise, Hill’s defense counsel

sought pre-trial discovery of “all information obtained during the course of [the] investigation,”

and the Hamilton County Prosecutor’s Office replied that “[t]he State of

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