The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0024p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
DAVEL CHINN,
│
Petitioner-Appellant, │
> No. 20-3982
│
v. │
│
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Dayton.
No. 3:02-cv-00512—Sarah Daggett Morrison, District Judge.
Argued: October 27, 2021
Decided and Filed: February 4, 2022
Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Erin Gallagher Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbus, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Rachel Troutman, Melissa Jackson,
OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Brenda S.
Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Davel Chinn, an Ohio prisoner sentenced to death, appeals the
district court’s judgment denying his petition for writ of habeas corpus filed under 28 U.S.C.
§ 2254.
No. 20-3982 Chinn v. Warden Page 2
I.
On the evening of January 30, 1989, Chinn finished a midterm exam at Cambridge
Technical Institute in Dayton, Ohio. Later that evening, fifteen-year-old Marvin Washington
was in downtown Dayton, where he claims he saw Chinn, whom he had met a year earlier and
only knew by the nickname, “Tony.” According to Washington, he and Tony proceeded to drink
beer and walk around the downtown area until around 11:00 p.m., when Tony showed him a .22
caliber revolver and suggested they look for someone to rob. Eventually, they happened upon
Brian Jones and Gary Welborn, who were parked in a lot and chatting through their driver’s side
windows. While Washington snuck up to Jones’s car, Tony approached Welborn’s window and
pressed his revolver against Welborn’s head. Tony demanded their money, and after he emptied
both of their wallets, he and Washington decided to steal their cars. Although Welborn made a
quick escape, Washington was able to force Jones into the passenger’s seat of Jones’s Chevrolet
Cavalier. Tony climbed into the back seat and held a gun to Jones’s neck, while Washington
drove them away.
At some point during the drive, Tony told Washington to pull the car over. Tony and
Jones then got out and walked to the rear of the car. At the same time, Stacy Dyer was parked in
her driveway when she saw the silhouette of a person exiting a parked Chevrolet Cavalier. Dyer
saw two people walk to the rear of the car, at which point she heard a gunshot and a scream. She
then saw a person run through her yard and collapse and the car speed away. Washington
explained what had happened: once Tony and Jones walked to the rear of the car, Tony shot
Jones in the arm, and Washington and he drove away. While they were driving, Tony told
Washington that he shot Jones because Jones did not have enough money and could have
identified them.
Meanwhile, Dyer ran inside her home to tell her family what had happened. While her
sister called the police, Dyer went outside to check on the person collapsed in her yard.
Paramedics eventually arrived to find Jones unconscious, and he was pronounced dead upon
arrival at the hospital. Later that night, around 12:30 or 1:00 a.m., Washington drove Tony to
meet an acquaintance of his in Dayton, named Christopher Ward. Ward recalled that
Washington arrived in a black Chevrolet Cavalier and introduced the passenger as “Tony.”
No. 20-3982 Chinn v. Warden Page 3
Washington and Ward spoke for about half-an-hour before Washington and Tony left. Later that
night, Washington met with Ward again, but without Tony, and told him how Tony had shot
someone earlier in the evening.
The autopsy report showed that Jones died as a result of a gunshot to his arm, which
perforated his main pulmonary artery. The investigation also recovered a .22 caliber bullet near
Jones’s heart, which a firearms expert determined was fired from a revolver at close range.
A few days after the incident, on February 5, police arrested Washington upon information
obtained from Ward. Washington confessed and named “Tony” as the killer but could not
provide Tony’s last name or address. Washington helped police prepare a composite sketch,
which a local newspaper printed on February 22.
The next day, Shirley Cox was at her husband’s law office, where she worked as a
receptionist. Two men walked into the office, and one identified himself as “Tony Chinn.” The
man named Tony insisted on seeing Cox’s husband, but Cox explained that he was unavailable,
and the men eventually left. Later that night, while Cox was home reading her newspaper, she
gasped to her husband: “My God, I don’t believe this.” Cox had just seen the composite sketch
in the newspaper and recognized the image as the same man who had come to the office earlier.
The next day, Cox followed the instructions in the newspaper and called the police.
After speaking with Cox, police obtained a photograph of Chinn and on February 24,
presented it to Washington and Ward in a photo array of five other men. Washington identified
Chinn as the man who shot Jones, and Ward identified Chinn as the man Washington introduced
to him on the night of the murder. Later that day, police arrested Chinn. A few days later, police
conducted a lineup for Washington, Ward, Cox, Dyer, and Welborn to identify the suspect. Out
of the five, Ward, Cox, and Washington were able to identify Chinn. Washington initially
indicated “Tony” was not in the lineup. After leaving the room, however, Washington explained
to police that he recognized Chinn but that he was afraid to identify him because he believed that
Chinn could see him.
For his part, Chinn presented an alibi. His classmate and instructor testified that Chinn
was present for the midterm on the night of the murder, and his classmate testified that Chinn
No. 20-3982 Chinn v. Warden Page 4
rode home on a bus with her. Chinn’s mother testified that he was at home by 9:30 p.m. and
stayed home the entire evening of the murder. Some witnesses also considered the shooter to be
taller than Chinn.
In August 1989, an Ohio jury convicted Chinn of aggravated murder, kidnapping,
abduction, and three counts of aggravated robbery. The jury recommended the death penalty,
and the trial court adopted the recommendation. After multiple appeals, the Ohio Court of
Appeals affirmed the sentence, and the Ohio Supreme Court affirmed the sentence and
convictions. Chinn filed a state petition for post-conviction relief in 1996, which the trial court
dismissed as premature. In 1997, Chinn filed another state petition, and after the trial court
denied his claims, the Ohio Court of Appeals affirmed on all but two claims. On remand, the
trial court conducted an evidentiary hearing and again dismissed the two claims; this time the
Ohio Court of Appeals affirmed. The Ohio Supreme Court denied further review.
In 2002, Chinn filed a § 2254 petition that raised nineteen claims for post-conviction
relief. The district court eventually denied Chinn’s petition and issued a certificate of
appealability (COA) on three claims: (1) whether the prosecution suppressed evidence in
violation of Brady; (2) whether the trial court improperly admitted irrelevant and prejudicial
testimony; and (3) whether Chinn was denied his right to present mitigating evidence to the
sentencer on remand and was sentenced to death without a valid recommendation from a jury.
Chinn moved to alter or amend the judgment regarding his Brady claim, and the court denied the
motion on August 18, 2020. Chinn appealed, and moved to expand the COA which we denied
on February 11, 2021. Chinn does not address the third issue for which he received a COA, and,
therefore, has waived consideration before us. See Hodges v. Colson, 727 F.3d 517, 526 (6th
Cir. 2013).
II.
This habeas petition is governed by 28 U.S.C. § 2254(d) (AEDPA). It instructs that
federal courts shall not grant a habeas petition filed by a state prisoner with respect to any claim
adjudicated on the merits by a state court, absent applicability of either of two specific
exceptions. The first exception is when a state court issues “a decision that was contrary to, or
No. 20-3982 Chinn v. Warden Page 5
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court[.]” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000). The
second exception applies when a state court decision “was based on an unreasonable
determination of the facts” in light of the record before it. § 2254(d)(2).
“AEDPA’s requirements reflect a ‘presumption that state courts know and follow the
law[,]’” Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam) (quoting Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam)), and its “highly deferential standard for evaluating state-
court rulings . . . demands that state-court decisions be given the benefit of the doubt,” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford, 537 U.S. at 24). The Supreme Court
has repeatedly held it is not enough to show the state court was wrong. See, e.g., Renico v. Lett,
559 U.S. 766, 773 (2010) (“[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” (citation omitted)); Schiro v. Landrigan,
550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes
the state court’s determination was incorrect but whether that determination was unreasonable—
a substantially higher threshold.”). Rather, AEDPA forecloses relief unless the petitioner can
show the state court was so wrong that the error was “well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Shoop v. Hill, 139 S. Ct. 504,
506 (2019) (per curiam) (citation omitted). Thus, when we review a state court decision under
§ 2254(d), we must ask whether it is “beyond the realm of possibility that a fairminded jurist
could” agree with the state court. Woods v. Etherton, 578 U.S. 113, 118 (2016) (per curiam).
“If this standard is difficult to meet, that is because it was meant to be.” Harrington v.
Richter, 562 U.S. 86, 102 (2001). By requiring that federal courts give deference to state courts,
AEDPA appreciates “principles of comity, finality, and federalism.” Woodford v. Garceau,
538 U.S. 202, 206 (2003) (citation omitted). Sensitivity is critical. Federal habeas review of
state court convictions is one of our most intrusive exercises of power over our state-court
counterparts. Harrington, 562 U.S. at 103. It “frustrates both the States’ sovereign power to
punish offenders and their good-faith attempts to honor constitutional rights.” Id. (citation
omitted). Thus, under § 2254(d), federal habeas review is a safeguard against “extreme
No. 20-3982 Chinn v. Warden Page 6
malfunctions in the state criminal justice systems, not a substitute for ordinary error correction
through appeal.” Id. at 102–03 (cleaned up).
We review the district court’s factual findings for clear error and its legal conclusions de
novo. Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008). The state court’s factual findings
enjoy a presumption of correctness and will only be disturbed upon clear and convincing
evidence to the contrary. Id.
III.
A. Brady Violation
Chinn’s central claim is that the prosecution withheld exculpatory impeachment evidence
regarding Washington’s identification testimony at trial. This evidence came to light after
Chinn’s conviction, when an investigator with the Office of the Ohio Public Defender requested
Washington’s records from the juvenile court. The records included reports that showed
Washington suffered from mental disabilities, which raised questions about his ability to
accurately identify Chinn as “Tony.” After these records were discovered, Chinn brought an
ineffective assistance of counsel and Brady claim in his state petition for post-conviction relief.
The Ohio trial court dismissed the petition, but the Ohio Court of Appeals remanded for an
evidentiary hearing to determine whether, considering the withheld records, Chinn’s trial counsel
was ineffective for failing to call expert witnesses on eyewitness identification and the effects of
“mental retardation.” The trial court also considered whether withholding these records
constituted a Brady violation. It dismissed Chinn’s petition, and the Court of Appeals affirmed.
Under Brady v. Maryland, “suppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material either to guilt or to punishment
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). The
Supreme Court has stated that “[t]here are three components of a true Brady violation: [t]he
evidence at issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82
(1999). The defendant has the burden of proving a Brady violation. Id.
No. 20-3982 Chinn v. Warden Page 7
The only issue before the Ohio Court of Appeals, and therefore before us, is whether
prejudice ensued. Prejudice depends on whether the suppressed evidence is material. See id.
Evidence is “material,” if it creates a “reasonable probability of a different result,” Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (cleaned up), such that its suppression “undermines
confidence in the outcome of the trial,” United States v. Bagley, 473 U.S. 667, 678 (1985). We
have held that Strickland’s “reasonably-likely” prejudice standard is the same as Brady’s
prejudice standard. See Montgomery v. Bobby, 654 F.3d 668, 679 n.4 (6th Cir. 2011) (en banc).
And in Harrington, the Supreme Court explained that the difference between Strickland’s
“reasonably likely” standard and a “more-probable-than-not standard is slight and matters only in
the rarest case.” 562 U.S. at 111–12 (cleaned up). Thus, “reasonable probability” for Brady’s
purposes is effectively the same as a more-probable-than-not standard. The Brady question now
is whether it is more probable than not that the withheld evidence would have created a different
result. The caveat is that there is a “slight” difference between more-probable-than-not and
“reasonable probability” and judges can decide for themselves how slight is “slight” enough. Id.
In determining whether a reasonable probability exists, we must consider the undisclosed
evidence collectively. See England v. Hart, 970 F.3d 698, 717 (6th Cir. 2020), cert. denied,
141 S. Ct. 1691, 209 L. Ed. 2d 467 (2021). Yet we still evaluate “the tendency and force of the
undisclosed evidence item by item.” Kyles, 514 U.S. at 436 n.10.
The Supreme Court has also told us that we must examine Chinn’s claim through the dual
lens of AEDPA and Brady. The two standards work “in tandem.” Harrington, 562 U.S. at 105.
So, we do not ask whether the new evidence creates “a reasonable probability of a different
result.” Kyles, 514 U.S. at 434. Instead, we ask whether any fairminded judge could agree with
the state court’s Brady assessment. Furthermore, “so long as the state courts reach a decision
that reasonably applies Supreme Court precedent—however deficient some of the court’s
reasoning might be—we must deny the writ.” Davis v. Carpenter, 798 F.3d 468, 475 (6th Cir.
2015).
During the state evidentiary hearing, Chinn called Dr. Caroline Everington, Ph.D., to
provide an opinion on the import of the newly disclosed records. Dr. Everington explained that
the records showed that Washington had a congenital cranial abnormality, which caused
No. 20-3982 Chinn v. Warden Page 8
neuropsychological impairments, and that Washington had moderate range “mental retardation.”
These records showed that Washington had an IQ of either 54 or 48, which placed him in the
lowest one-to-two percent of the population. Furthermore, Dr. Everington noted that the records
indicated Washington could become easily distracted and swayed by others, he exhibited some
recognition and memory problems, and he had poor vision but refused to wear glasses. In her
professional opinion, Dr. Everington believed that Washington had significant deficiencies in his
memory at the time of the murder and that his memory would have been questionable.
Furthermore, Chinn called Dr. Solomon M. Fulero, Ph.D., J.D., who testified that persons with
Washington’s disabilities are more likely to exhibit signs of “suggestibility, [a] desire to please
authority, or desires to mask or hide mental retardation.” Dr. Fulero explained that eyewitnesses
who suffer from intellectual disabilities are less likely to identify people accurately.
Despite this evidence, the trial court found the juvenile records were immaterial, and the
Ohio Court of Appeals affirmed. Chinn argues the Ohio Court of Appeals unreasonably applied
Brady and failed to properly consider the exculpatory evidence in conjunction with the defense’s
evidence at trial. In light of the deferential standards with which we must judge the state court’s
decision, the Ohio Court of Appeals reasonably applied Brady. Other witnesses at the
evidentiary hearing controverted Chinn’s evidence and, considering the evidence at trial that
supported Washington’s version of events, the Court of Appeals reasonably concluded there was
not a reasonable probability the outcome would have been different had the juvenile records been
disclosed.
For example, Lieutenant David Lantz, the chief investigator of the murder, testified at the
hearing about how he had interviewed Washington soon after the crime. In Lantz’s opinion,
Washington understood his questions and gave an internally consistent story. In opposition to
Dr. Everington, Lantz believed that Washington’s trial testimony was consistent with his original
story, and ultimately, nothing about his interactions with Washington led him to believe that
Washington had been unable to give a truthful account. Furthermore, Dr. Thomas O. Martin, a
clinical psychologist, testified that little can be known by looking solely at a person’s IQ scores,
and that they do not give information about a person’s level of adaptive functioning. For
instance, Dr. Martin explained that a person with moderate “mental retardation” would not be
No. 20-3982 Chinn v. Warden Page 9
expected to drive a car, write checks, read books, make change with money, or hold down
unsupervised jobs. Yet, Washington could drive, had a job, and graduated valedictorian of his
high school class. Similarly, although the juvenile records showed that he exhibited some
recognition and memory problems, Washington had no trouble identifying people while he was
at the juvenile detention facility.
Notably, because Washington was murdered before the evidentiary hearing, Dr.
Everington never met him. By contrast, Barbara DeVoss, a social worker at Washington’s
juvenile facility, had. She testified that, after she read Washington’s personal report, her first
thought was “I have got a blooming idiot. What can I do but get him directed to a sheltered
workshop[?]” But DeVoss explained how she changed her mind after meeting Washington, how
she was “very pleasantly surprised” by her interactions with him, and that she “didn’t think that
[Washington] had as a low an IQ as was stated in the report . . . .”
Likewise, evidence at trial illustrated Washington’s ability to remember events. He was
able to identify Chinn in the courtroom and describe Chinn’s outfit on the night of the murder.
Washington remembered with precision details about the night of the murder, like the address of
where a bus dropped him off, where he walked, and when he met Chinn. Other witnesses also
supported Washington’s version of events. For example, not only did Washington remember the
color and make of Tony’s gun, but he recalled that Tony shot Jones only once in the arm, which
Dyer and the autopsy report corroborated. Similarly, Washington’s version of the robbery was
corroborated by Welborn’s story, and Washington accurately remembered the model of car Jones
drove—even that it had a digital clock and dome light. Ward’s testimony also supported
Washington’s story. Although Ward never saw who shot Jones, Ward met “Tony” the night of
the murder—whom he identified as Chinn—in a car that matched the one Washington and Tony
stole from Jones, around the same time the murder occurred. Furthermore, the jury heard
testimony that Washington had met Chinn prior to the night of the murder and had spent several
hours with the shooter on that evening, both of which are strong indicators of a reliable
identification.
Chinn argues that regardless of any disputes at the evidentiary hearing, “material
impeaching Washington’s credibility was evident from the records without expert testimony.”
No. 20-3982 Chinn v. Warden Page 10
But the jury had heard impeachment testimony that Washington could not read or write. And
although the records indicated Washington may have blacked out, he had already testified that he
was drinking the night of the murder. Similarly, Chinn’s counsel also had attempted to impeach
Washington by questioning him about his failure to initially identify Chinn at the lineup. In the
end, while the withheld records would have showed the jury that Washington suffered from a
degree of mental disability, the undisclosed evidence would have been cumulative, and hence
immaterial. See Hall v. Mays, 7 F.4th 433, 447 (6th Cir. 2021).
We acknowledge the serious nature of the state’s failure to disclose Washington’s
juvenile records. But the Supreme Court has admonished habeas courts not to “treat[] the
unreasonableness question as a test of its confidence in the result it would reach under de novo
review” and that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Harrington, 562 U.S. at 102. When assessing whether a state
court’s application of federal law is unreasonable, “the range of reasonable judgment can depend
in part on the nature of the relevant rule that the state court must apply.” Renico, 559 U.S. at 776
(cleaned up). As such, “the more general the rule at issue—and thus the greater the potential for
reasoned disagreement among fair-minded judges—the more leeway state courts have in
reaching outcomes in case-by-case determinations.” Id. (cleaned up). Just as in Strickland, the
Brady materiality standard is a general one, and “so the range of reasonable applications is
substantial.” Harrington, 562 U.S. at 105 (citation omitted). Under such a standard, “a state
court’s decision can’t be ‘contrary to’ federal law for purposes of AEDPA review if the Supreme
Court has never issued a holding that confronts the specific question presented by the case.”
Cassano v. Shoop, 10 F.4th 695, 704 (6th Cir. 2021) (Thapar, J., dissenting) (cleaned up). After
all, “if a habeas court must extend a rationale before it can apply to the facts at hand, then by
definition the rationale was not ‘clearly established at the time of the state-court decision.’”
White v. Woodall, 572 U.S. 415, 426 (2014) (citation omitted).
As for Supreme Court precedent, Chinn relies on Wearry v. Cain, 577 U.S. 385, 388
(2016), in which Wearry was convicted of capital murder and sentenced to death. For Supreme
Court precedent to be “clearly established,” it must have been decided prior to the state-court
decision at issue. Hill, 139 S. Ct. at 506–07. Wearry was not. But we may consider later
No. 20-3982 Chinn v. Warden Page 11
decisions as “illustrative of the proper application” of existing law so long as the later decision
does not announce a new rule. Wiggins v. Smith, 539 U.S. 510, 521–22 (2003). Like Chinn,
Wearry was accused of carjacking and killing his victim. Wearry, 577 U.S. at 387. Like
Washington, the state’s key witness, “Scott,” had accompanied the defendant during the events
leading up to and including the murder. Id. Furthermore, during the evening, while they were
driving the victim’s car, Wearry and Scott stopped to meet another acquaintance, “Brown,” who
testified at trial about seeing them together in the car—like Ward did here. Id. After his
conviction, Wearry discovered the state had withheld exculpatory evidence that undermined
Scott’s story at trial. See id. at 389. Chinn likens his case to Wearry because in that case the
state relied heavily on the credibility of one witness—Scott—weighed against the defendant’s
alibi. Chinn argues the Court recognized that Scott’s credibility had already taken blows at
trial—like Washington’s—yet did not consider the additional exculpatory evidence immaterial.
But there are key differences between Chinn’s case and Wearry, and Chinn fails to
identify a logical extension of Wearry’s holding to his facts. In Wearry, the Brady evidence
included three categories of information. Id. at 389–91. First, undisclosed police records
showed that while Scott was imprisoned for an unrelated offense, he told another inmate that he
wanted to “make sure Wearry gets the needle. . . .” Id. at 389 (cleaned up). Furthermore, Scott
had orchestrated a meeting between an inmate and the police, for the inmate to make up a story
in Scott’s favor about witnessing the murder. Id. at 389–90. Second, Brown, who testified about
seeing Scott and Wearry in the victim’s car, had twice sought a deal with the state before
testifying to reduce his prison sentence—contrary to the prosecution’s consistent assurances to
the jury. See id. at 390. Third, although Scott had testified that another person ran into the street
to stop the victim’s car and shoved the victim into the cargo space, undisclosed medical records
showed that this person had recently undergone serious knee surgery. Id.
Importantly, Wearry did not deal with evidence that might have affected the key
witness’s accuracy—only his veracity. The difference is that despite the juvenile records that
call into question the accuracy of Washington’s testimony, evidence at Chinn’s trial could, and
did, support Washington’s version of events. And “a reviewing court [must] consider the totality
of the evidence—and not merely exculpatory facts in isolation—when evaluating a claim of error
No. 20-3982 Chinn v. Warden Page 12
for its prejudicial effect.” Montgomery, 654 F.3d at 679. Similarly, the exculpatory evidence did
not undermine Ward’s credibility—as it had Brown’s—or render Washington’s story about the
robbery unlikely—as it had Scott’s story about the carjacking. To put a fine point on it: neither
Wearry nor any case from the Supreme Court controls with sufficient granularity. Under
AEDPA, we must ask whether there is any Supreme Court precedent that would compel every
fairminded jurist to hold that the State committed a Brady error here. As there is none,
fairminded jurists could debate whether the “clearly established rule” does or does not apply to
the “set of facts” at hand. White, 572 U.S. at 427. “If such disagreement is possible, then the
petitioner’s claim must be denied.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018) (per
curiam).
Chinn also devotes considerable effort to challenging the factual findings of the Ohio
Court of Appeals. The Ohio Court of Appeals’ factual determinations are presumed correct,
unless Chinn can rebut this presumption by clear and convincing evidence. See § 2254(e)(1);
Railey, 540 F.3d at 397. While Chinn challenges different factual conclusions of the state court,
his arguments merely reflect disagreements with the inferences reached by that court, rather than
showing by clear and convincing evidence that those factual findings were erroneous. As we
have made clear, in the absence of clear and convincing evidence, we have no power on federal
habeas review to revisit the state court’s factual findings. See, e.g., Matthews v. Ishee, 486 F.3d
883, 895 (6th Cir. 2007) (“Under AEDPA, we are bound by [the state court’s] finding unless [the
petitioner] can rebut it with clear and convincing evidence to the contrary.”). Chinn’s argument
is, therefore, without merit.
B. Prejudicial Testimony
Chinn’s second claim is that the Ohio trial court erred by admitting irrelevant and
prejudicial testimony at trial concerning Chinn’s visit to the law office of Cox’s husband. Chinn
argues that Cox could have simply testified about speaking with a man named Tony, who
resembled the man depicted in Washington’s composite sketch, without ever mentioning that her
encounter with Chinn occurred in a law office, where Chinn persistently requested to see an
attorney. Every reviewing court has thus far agreed, and the Warden does not dispute these
No. 20-3982 Chinn v. Warden Page 13
conclusions. Instead, the question is whether the admission of Cox’s testimony was harmless
error.
In determining whether any state court error was harmless, we may not grant habeas
relief unless the state court’s error resulted in actual prejudice to the defendant. Davis v. Ayala,
576 U.S. 257, 267 (2015); see also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); O’Neal v.
Balcarcel, 933 F.3d 618, 624 (6th Cir. 2019). We must be “in grave doubt about whether the
trial error of federal law had substantial and injurious effect or influence in determining the
jury’s verdict.” Reiner v. Woods, 955 F.3d 549, 555 (6th Cir. 2020) (citation omitted); see also
O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “[G]rave doubt . . . mean[s] that, in the judge’s
mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.” O’Neal, 513 U.S. at 435 (cleaned up).
Ultimately, Chinn has not met his burden of showing actual prejudice. Davis, 576 U.S. at
267; Cooper v. Chapman, 970 F.3d 720, 732 (6th Cir. 2020). Cox’s testimony was relevant to
establish her identification of Chinn from Washington’s composite sketch in the newspaper.
While the law firm setting permitted an inference that Chinn was seeking legal help, Cox’s
testimony did not address the nature of Chinn’s inquires nor the field of law practiced by Cox’s
husband. Furthermore, as Chinn recognizes, the central evidence against him was Washington’s
testimony and, once the jury believed Washington, a guilty verdict was “inevitable.” See State v.
Chinn, 85 Ohio St.3d 548, 561, 709 N.E.2d 1166, 1178 (1999). In light of the evidence at trial,
the Ohio court’s error in admitting Cox’s testimony did not result in actual prejudice to Chinn.
PETITION DENIED.