Jalowiec v. Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0257p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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STANLEY JALOWIEC,

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Petitioner-Appellant,

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No. 08-3249

v.

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Respondent-Appellee. -

MARGARET BRADSHAW,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 03-00645—Donald C. Nugent, District Judge.

Argued: June 9, 2010

Decided and Filed: September 7, 2011

Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Kimberly S. Rigby, OFFICE OF THE OHIO PUBLIC DEFENDER,

Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Kimberly S.

Rigby, Gregory W. Meyers, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,

Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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McKEAGUE, Circuit Judge. This is an appeal from a denial of habeas relief.

Petitioner Stanley Jalowiec was convicted of murder and sentenced to death. After the

Ohio courts denied Jalowiec’s requests for appellate and post-conviction relief, the

district court denied all forty-seven claims of error asserted in Jalowiec’s petition for

1

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writ of habeas corpus. We certified five claims for appeal. In these claims, petitioner

contends that he was denied a fair trial due to the prosecution’s wrongful suppression of

Brady material; that he was denied effective assistance of counsel at trial by virtue of

defense counsel’s undisclosed conflict of interest and, in the penalty phase, because

counsel failed to object to hearsay evidence and failed to adequately prepare and present

mitigation evidence; and that he was denied effective assistance of counsel on appeal,

because counsel failed to assert claims based on trial counsel’s conflict of interest and

wrongful admission of hearsay evidence at trial. For the reasons that follow, we

conclude that none of the claims warrants habeas relief and we therefore affirm the

judgment of the district court.

I. BACKGROUND

The body of Ronald Lally was found on a cemetery roadway in Cleveland on

January 19, 1994. Lally had suffered a gunshot wound to the head and other blunt force

injuries causing death. Lally had been expected to testify for the prosecution in a

criminal trial set to begin later that day. The criminal trial involved drug-trafficking

charges against Raymond Smith and his son Danny Smith. After an extensive

investigation, Stanley Jalowiec was indicted in March 1995 in Lorain County, Ohio,

charged with murdering Lally. Raymond Smith was also charged with the murder. In

a separate trial, Raymond Smith was found guilty in December 1995 and sentenced to

death in January 1996. Jalowiec’s trial began in March 1996.1

The indictment charged Jalowiec with aggravated murder for causing Lally’s

death purposely and with prior calculation and design, and included specifications for

killing Lally to prevent his testimony in a criminal proceeding, and for firearm

possession. The prosecution’s case was based largely on the testimony of Raymond

Smith’s other son, Michael Smith, who testified that he had been present at the time of

Lally’s murder, but had not participated. The defense introduced no proofs in the guilt

1

Danny Smith was also charged with Lally’s murder, was tried separately following Jalowiec’s

trial, and was acquitted.

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phase of the trial. The facts shown by the trial proofs were summarized by the Ohio

Supreme Court in State v. Jalowiec, 744 N.E.2d 163 (Ohio 2001), as follows:

On the morning of January 19, 1994, a partially clad male body was

found in Woodland Cemetery in Cleveland. Two weeks later, the body

was identified as that of Ronald Lally of Elyria. Over a year later, the

grand jury indicted defendant-appellant, Stanley E. Jalowiec, for

aggravated murder, with firearm and death-penalty specifications. The

indictment alleged that Jalowiec purposely killed Lally to prevent him

from testifying in criminal proceedings, which had been scheduled to

begin on January 19, 1994. Subsequently, a jury found Jalowiec guilty

as charged, and he was sentenced to death.

In June 1993, Ron Lally contacted the Elyria police to volunteer as a

police informant. Lally signed an agreement to become a confidential

informant for the Elyria police and agreed to make controlled drug buys.

On June 7, 1993, with the assistance of Officer Scott Ashley and

Detective Alan Leiby, Lally made a controlled drug buy of crack cocaine

from Danny Smith and his father Raymond Smith while wired with a

hidden monitoring device. As a result of the controlled buy, police

arrested both Raymond Smith and Danny Smith in August 1993 and

charged them with aggravated drug trafficking. Both cases were

eventually set for trial on January 19, 1994.

On January 18, 1994, the evening before the murder, Brian Howington

and Jalowiec went to several bars in downtown Elyria. (Howington knew

Jalowiec because Jalowiec used to visit Howington’s aunt, Joann Corrine

Fike, when Howington lived with her.) Jalowiec then asked Howington

to accompany him to a friend’s house on Middle Avenue. There,

Howington met Ron Lally and his roommate, and the four of them

smoked crack cocaine. Around 11:30 p.m., Jalowiec, Howington, and

Lally went to Fike’s house and “[s]hot pool, partied some more.”

About an hour later, Jalowiec got a page and asked Howington if he

could borrow Fike’s car, a Chrysler LeBaron convertible. Though

Howington was hesitant, he relented after Jalowiec persisted. Around

1:00 a.m., Jalowiec and Lally left Fike’s house in the LeBaron. The next

time Howington saw the car was around 5:00 a.m. when Jalowiec and

Raymond Smith returned it to Fike’s apartment. At that time, the car was

covered with ice, and Jalowiec and Smith told Howington that the car

had been washed. Fike testified that Jalowiec told her that he had washed

the car because there was blood on it as a result of a fight he had had

with someone at Mom’s Open Kitchen.

Sharon Hopkins testified that she was at Razzle’s bar in Elyria one night

in January 1994 with her brother, Terry Hopkins, Raymond Smith,

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Danny Smith, Michael Smith (another son of Raymond), and several

others, including Jalowiec. The group stayed at Razzle’s until it closed

and then, without Jalowiec, went to eat at Mom’s Open Kitchen until

around 2:45-3:00 a.m.

After leaving Mom’s, Sharon Hopkins rode in Danny Smith’s car with

several people including Raymond, Danny, and Michael Smith. They

traveled on Middle Avenue past the railroad tracks just outside the Elyria

city limits and dropped Raymond and Michael Smith off by a wooded

area. They drove back over the tracks and pulled into a parking lot.

Approximately five to ten minutes later, a convertible drove over the

tracks to where they had dropped off Raymond and Michael Smith.

Danny Smith said, “That is it.”

Several minutes later, the convertible drove by again heading toward

town, and Danny Smith’s car began to follow it. Shortly thereafter,

Danny Smith signaled the convertible to pull over and ducked down in

the front passenger seat while telling Sharon Hopkins to get out and ask

the people in the convertible whether they had picked up Michael Smith.

Sharon Hopkins saw Jalowiec get out of the driver’s seat of the

convertible. Jalowiec responded that Michael Smith was in the car.

Although Sharon Hopkins could not see the other occupants, she could

tell that there were four people inside the convertible. Danny Smith then

drove Sharon Hopkins home.

Later that morning, at around 3:30-4:00 a.m., Danny Smith arrived back

at his apartment. Terry Hopkins arrived a little later and noticed that

Danny Smith was “nervous and said he was feeling sick to his stomach.”

Danny Smith told Hopkins that “they had done it, they did it.” Hopkins

then went back to his sister’s apartment across the street from Danny

Smith’s apartment. Later, Hopkins visited Danny Smith again and also

saw Jalowiec, Raymond Smith, and Michael Smith. Jalowiec said, “They

stomped him and ran him over with a car.” The others there indicated

that “they shot him and cut him.” According to Hopkins, they were

“[k]ind of like bragging about it.” Danny Smith told Hopkins they

wanted this person killed because he had worn “a wire on him on a drug

sale.”

At approximately 9:55 a.m. on January 19, 1994, Cleveland homicide

detective Michael Beaman was summoned to Woodland Cemetery. A

male body had been found on a cemetery roadway. Some of the victim’s

clothing was nearby in a snow bank. There was no identification on or

near the victim and police did not learn the identity of the victim, Lally,

until a few weeks later.

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Dr. Heather Raaf, a forensic pathologist with the Cuyahoga County

Coroner’s Office, performed the autopsy on Lally. Dr. Raaf testified that

teeth in Lally’s mouth had been knocked out by a gunshot. Dr. Raaf

estimated that Lally had sustained at least eleven blows to his head and

that his injuries were consistent with being stomped or struck by a

vehicle several times. Dr. Raaf determined that Lally’s death resulted

from a gunshot wound to the head and multiple blunt impacts to the head.

The drug trafficking cases against Danny and Raymond Smith were

subsequently dismissed because Lally, the primary witness in both cases,

was dead.

After an extensive police investigation, the grand jury indicted Jalowiec

on March 8, 1995, for aggravated murder with a firearms specification.

In addition, a death-penalty specification alleged that Jalowiec purposely

killed Lally in order to prevent his testimony as a witness in a criminal

proceeding.

At trial, the key witness for the prosecution was Michael Smith, son of

Raymond Smith and brother of Danny Smith. Michael Smith contacted

Detective Leiby in April 1994 because he was bothered about having

witnessed the Lally murder. During Raymond Smith’s murder trial,

Michael Smith had been unavailable to testify, and the prosecution

proffered testimony from him that had been elicited in a deposition. State

v. Smith (2000), 87 Ohio St.3d 424, 428, 721 N.E.2d 93, 102. However,

at Jalowiec’s trial, Michael Smith testified as a prosecution witness.

Michael Smith testified that, purely by chance, he had met his father and

brother at Mom’s Open Kitchen around 2:30 a.m. on the night of the

murder. Raymond Smith had made a phone call and indicated to Michael

Smith that he was going to leave. Michael agreed to go with his father

and left with him and his brother, Danny Smith. The Smiths and Danny

Smith’s girlfriend got in Danny Smith’s car and both Raymond and

Michael Smith were dropped off on Middle Avenue. Raymond and

Michael waited outside in the cold, even though Michael had no idea

what they were waiting for. The LeBaron driven by Jalowiec with Lally

as a passenger pulled up to them and stopped. Raymond Smith told Lally

to get in the back seat, and Michael Smith got in the back seat on the

driver’s side. Raymond Smith sat in the passenger side front seat and

made introductions.

Shortly thereafter, Raymond Smith brandished a gun and told Lally,

“Don’t make any sudden moves.” The group stopped to buy gas, beer,

and cigarettes, then drove on Route 2 toward Cleveland. Raymond Smith

asked Lally, “Why did you set my son up?” Lally denied doing so, but

No. 08-3249 Jalowiec v. Bradshaw Page 6

appeared to be scared. Smith then told Lally, “We are going to give you

some money, get you a bus ticket, you are going to get out of town.”

During the trip into Cleveland, all four men were smoking crack cocaine.

Lally agreed to leave town, and they drove to East Cleveland to buy

some crack for Lally’s trip. However, they saw police cars and fire trucks

in the neighborhood and decided to drive back towards downtown

Cleveland. As they drove, Raymond Smith directed Jalowiec to pull the

LeBaron into a Cleveland cemetery.

Inside the cemetery, Raymond Smith got out of the car, put the gun to

Lally’s face, and ordered him out of the car. He then told Lally, “You

will never snitch on nobody again.” Michael Smith heard a gunshot and

then heard Lally exclaim: “You shot me in my head, you shot me in my

head.” Raymond then told Michael and Jalowiec to get out and assist

him. Jalowiec got out of the car, but Michael remained inside the car and

did not look out. He heard “thumps like hitting” and heard Lally plead,

“I won’t tell nobody, please don’t kill me, please don’t kill me.”

Michael Smith testified that after about two to five minutes of quiet, he

could tell that the trunk had been opened and that his father and Jalowiec

were trying to put something in the trunk. He heard someone say, “He

ain’t going to fit, * * * he is too stiff,” then he heard something drop.

Then Raymond Smith and Jalowiec got back in the car, and Jalowiec

started the car and put it in reverse. According to Michael Smith, when

Lally’s body stopped the car from going any further, Jalowiec drove

forward a short distance and then put the car into reverse. Michael Smith

could feel the car hit something. Jalowiec did this three times and then

drove out of the cemetery.

As they drove from the cemetery, Raymond Smith began arguing with

Michael Smith: “This is for your brother, why didn't you get out and

help?” While driving back to Elyria, Raymond took his gun apart and

threw it out the window, piece by piece. Upon arriving in Elyria, they

dropped Michael Smith off at Danny Smith’s apartment.

Linda Luke, a forensic serologist in the coroner’s office, conducted tests

on stains found on the trunk liner of the Chrysler LeBaron. Luke testified

that the DNA in Lally’s blood sample was consistent with the blood

found on the trunk liner.

After deliberation, the jury found Jalowiec guilty as charged.

At the mitigation hearing, Jalowiec made an unsworn statement. Other

witnesses also testified on Jalowiec’s behalf, including his former live-in

girlfriend and several family members, including both of his parents. The

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prosecution presented seven witnesses in rebuttal. The jury

recommended death, and the court sentenced Jalowiec to death.

Id. at 168-70 (footnote omitted).

Jalowiec’s various and persistent efforts to obtain appellate relief and post-

conviction relief from the Ohio courts proved unsuccessful.2 He filed his petition for

writ of habeas corpus in the Northern District of Ohio on July 2, 2003. In his amended

petition, filed on November 21, 2005, Jalowiec asserted forty-seven claims for relief.

In a lengthy and comprehensive opinion issued January 31, 2008, the district court

denied all forty-seven claims. Jalowiec v. Bradshaw, No. 1:03-CV-645, 2008 WL

312655 (N.D. Ohio). Jalowiec timely filed notice of appeal. We granted a certificate

of appealability as to the following five claims:

I. (Claim 20) Whether the prosecution violated Jalowiec’s rights

under Brady v. Maryland, 373 U.S. 83 (1963), by withholding prior

statements made to police by state witnesses and information regarding

plea bargains and other inducements for testimony by such witnesses;

II. (Claim 31) Whether Jalowiec was deprived of the effective

assistance of counsel due to an alleged conflict of interest, by which

counsel simultaneously represented a state witness for whom counsel

obtained a sentencing benefit in return for the witness’s testimony at

Jalowiec’s trial;

III. (Claim 35(d)) Whether trial counsel performed ineffectively

during the penalty phase by failing to object to the admission of a

hearsay statement of a co-defendant;

IV. (Claim 36) Whether trial counsel performed ineffectively by

failing to adequately investigate and prepare mitigation evidence for the

penalty phase; and

V. (Claim 42(a) and (c)) Whether appellate counsel performed

ineffectively on direct appeal by failing to raise the claims that

Jalowiec’s trial counsel had a conflict of interest and that hearsay

evidence was improperly admitted at trial.

2

These efforts are outlined in detail in the district court’s opinion. Jalowiec v. Bradshaw, No.

1:03-CV-645, 2008 WL 312655, at *4-14 (N.D. Ohio).

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The district court determined that federal habeas review of three of these

claims—claims 20, 31 and 36— was barred by procedural default. Nonetheless, the

court addressed and rejected all five claims on their merits as well.

II. STANDARD OF REVIEW

A. AEDPA Review

We review the district court’s legal conclusions and rulings on mixed questions

of law and fact de novo, and review factual findings for clear error. Boykin v. Webb, 541

F.3d 638, 642 (6th Cir. 2008). Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), the federal courts may not grant habeas relief on any claim that was

adjudicated on the merits in the state courts unless the adjudication resulted in a decision

that: (1) was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court; or (2) was based on an unreasonable

determination of the facts in light of the evidence presented to the state courts. 28

U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the

writ only if the state court arrived at a conclusion opposite to that reached by the

Supreme Court on a question of law, or if the state court decided the case differently than

the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 412-13 (2000). Under the “unreasonable application” clause, a federal

court may grant the writ only if the state court identified the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applied that principle to

the facts of the petitioner’s case. Id. “[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.” Id.

at 411. Rather, to warrant habeas relief, the application must be found to be “objectively

unreasonable.” Id. at 409. “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (quoting

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

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In analyzing whether a state court decision is contrary to or an unreasonable

application of clearly established Supreme Court precedent, a federal court may look

only to the holdings of the Supreme Court’s decisions as of the time that the petitioner’s

state-court conviction became final. Williams, 529 U.S. at 390; Miller v. Stovall,

608 F.3d 913, 919 (6th Cir. 2010). However, the court may look to lower courts of

appeals’ decisions to the extent they illuminate the analysis of Supreme Court holdings

in determining whether a legal principle had been clearly established by the Supreme

Court. Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010). Finally, where factual

findings are challenged, the habeas petitioner has the burden of rebutting, by clear and

convincing evidence, the presumption that the state court’s factual findings are correct.

See 28 U.S.C. § 2254(e)(1); Landrum, 625 F.3d at 914.

AEDPA’s deferential standard of review applies only to state-court adjudications

on the merits. Cone v. Bell, 129 S.Ct. 1769, 1784 (2009). Where AEDPA deference does

not apply, state-court adjudications of legal issues are reviewed de novo and state-court

fact findings are reviewed only for clear error. Id.; Evans v. Hudson, 575 F.3d 560, 564

(6th Cir. 2009). Here, the district court concluded that many of Jalowiec’s habeas

claims, including some of those before us now, were procedurally defaulted—that is,

denied on the basis of a state procedural rule. We review the district court’s procedural

default rulings de novo. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010).

B. Procedural Default

Where the state courts have declined to reach the merits of a state prisoner’s

federal claims due to application of “an independent and adequate state procedural rule,

federal habeas review of the claims is barred unless the prisoner can demonstrate cause

for the default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage

of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A habeas petitioner’s

claim will be deemed procedurally defaulted if each of the following four factors is met:

(1) the petitioner failed to comply with a state procedural rule; (2) the state courts

enforced the rule; (3) the state procedural rule is an adequate and independent state

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ground for denying review of a federal constitutional claim; and (4) the petitioner has

not shown cause and prejudice excusing the default. Guilmette v. Howes, 624 F.3d 286,

290 (6th Cir. 2010). In determining whether a state procedural rule was applied to bar

a claim, a reviewing court looks to the last reasoned state-court decision disposing of the

claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Guilmette, 624 F.3d at 291.

Even if the first three factors are satisfied, the petitioner may still avoid the

procedural bar and obtain merits review of his habeas claim if he demonstrates there was

“cause” for his noncompliance with the procedural rule and he was actually prejudiced

by the alleged constitutional error. Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir.

2007). The “cause” standard requires the petitioner to show that “some objective factor

external to the defense impeded counsel’s efforts to comply with the State’s procedural

rule.” Id. at 690-91 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). This may

be satisfied, for instance, by a showing of interference by officials that makes

compliance with the procedural rule impracticable, or attorney error rising to the level

of ineffective assistance of counsel, or a factual or legal basis for a claim that was not

reasonably available. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

III. ANALYSIS

A. Nondisclosure of Brady Materials

Jalowiec contends the prosecution violated his rights under Brady v. Maryland,

373 U.S. 83 (1963), by failing to disclose evidence potentially favorable to him prior to

trial. He contends the prosecution wrongly withheld evidence of prior inconsistent

statements made to the police by various state witnesses as well as plea-agreement deals,

grants of immunity, and other inducements given to such witnesses. In Beuke v. Houk,

537 F.3d 618, 633 (6th Cir. 2008), we summarized the requirements of Brady as follows:

Brady requires the prosecution to disclose exculpatory and impeachment

evidence that is “material either to guilt or to punishment.” Strickler v.

Greene, 527 U.S. 263, 280 (1999) (quoting Brady, 373 U.S. at 87). “The

evidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Bagley, 473 U.S. 667, 682

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(1985). A Brady violation has three elements: (1) the evidence “must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching”; (2) the “evidence must have been suppressed by the state,

either willfully or inadvertently”; and (3) “prejudice must have ensued.”

Strickler, 527 U.S. at 281-82.

The district court determined that Jalowiec had failed to properly present his

Brady claim (Claim 20) to the state courts and concluded that the claim was procedurally

defaulted and subject to dismissal. Jalowiec, 2008 WL 312655, at *32-33. Yet, “in an

effort to promote judicial efficiency and preserve judicial resources,” id. at *50, the court

nonetheless addressed the merits of the claim, concluding ultimately that the prosecution

ought to have disclosed some materials, but that its failure to do so was harmless error.

Id. at *66-73.

1. Procedural Default of Brady Claim

The procedural history of Jalowiec’s post-conviction relief efforts is convoluted

and confused. To the extent Jalowiec’s Brady claim is based on the prosecution’s failure

to disclose the agreement pursuant to which Michael Smith testified, the district court

determined that the claim was presented to the state trial court in Jalowiec’s Third

Amended Petition for Post-conviction Relief (seventh claim for relief). Id. at *32-33.

Observing that the Ohio Court of Appeals affirmed the dismissal of this claim as an

improper successive petition (because the third amended petition succeeded an original

petition and two subsequent amendments), the district court held that this ruling

represented enforcement of an independent and adequate state procedural bar that

foreclosed federal habeas review of the merits. Yet, inasmuch as Jalowiec’s motion to

strike his original petition and first two amendments was never addressed by the state

courts—a point apparently overlooked by the Ohio Court of Appeals—there appears to

be no good reason to treat the third amended petition as a successive petition, rather than

as a permissible amendment of his original petition.3 The Ohio courts’ enforcement of

the procedural bar was therefore, to this extent, erroneous and represents no obstacle to

3

Although the timeliness of Jalowiec’s original petition was once in question, counsel for the

Warden conceded the point at oral argument.

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our review of this portion of Jalowiec’s Brady claim. See Cone v. Bell, 129 S.Ct. 1769,

1780-81 (2009) (holding that state court application of procedural bar resting on false

premise creates no bar to habeas review of merits); Richey v. Bradshaw, 498 F.3d 344,

359-60 (6th Cir. 2007) (declining to find procedural default where procedural bar was

improperly enforced by state courts); Durr v. Mitchell, 487 F.3d 423, 434-35 (6th Cir.

2007) (holding that incorrect application of state procedural bar was not reliance on

“adequate and independent” state rule). We independently review this issue on the

merits below. See Part III.A.2(f).

To the extent the Brady claim is based on the prosecution’s failure to disclose

prior statements of Raymond Smith, Danny Smith, Terry Hopkins, Sandra Williams,

Lynne Altpater and Tammie Green, the district court held that the claim was never

presented to the state courts and is therefore unexhausted and unreviewable in habeas.

See 28 U.S.C. § 2254(b) (making exhaustion of state-court remedies prerequisite to

federal habeas relief ). Jalowiec contends this ruling is in error. First, he contends that

although he did not specifically assert a Brady claim concerning the prosecution’s

nondisclosure of prior statements by these witnesses in his third amended petition, the

petition did include, in his fourteenth claim for relief, allegations of fact implicating

undisclosed statements by Raymond Smith, Michael Smith, Sandra Williams and Lynne

Altpater.

Jalowiec thus impliedly argues that he adequately presented the “substance” of

his Brady claim to the state courts to satisfy the exhaustion requirement. See Picard v.

Connor, 404 U.S. 270, 275-78 (1971); Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th

Cir. 2006). Yet, because of the important federal-state comity concerns served by the

exhaustion doctrine, a state prisoner is required to present the state courts with the same

claim, or a claim “substantially equivalent” to the claim, urged upon the federal courts.

Picard, 404 U.S. at 275-78. Otherwise, the state courts are not given the opportunity to

apply the controlling legal principles to the facts bearing on the constitutional claim. Id.

Jalowiec’s fourteenth claim for relief asserted two different theories of relief, i.e.,

that the prosecution violated his due process right to a fair trial by suborning perjury, and

No. 08-3249 Jalowiec v. Bradshaw Page 13

that his trial counsel’s failure to conduct a more thorough pre-trial investigation

amounted to ineffective assistance of counsel. Both of these theories of relief implicated

prior statements made by prosecution witnesses, but neither gave the state courts the

opportunity to apply the legal principles governing Jalowiec’s present Brady claim. It

is not enough that these different claims implicated some of the same facts that are

integral to Jalowiec’s Brady claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982). It

is not enough that the claims actually presented to the state courts were “somewhat

similar” to the Brady claim in some respects. Id. Nor is it enough to say that the Brady

“ramifications” of Jalowiec’s arguments were “self-evident.” Id. at 7. The bottom line

is that the state courts were not called upon to apply the legal principles governing the

constitutional claim now presented to the federal courts.

Accordingly, we find no error in the district court’s conclusion that Jalowiec’s

Brady claim concerning the prosecution’s nondisclosure of prior statements by these

witnesses was not, by virtue of the claims asserted in the fourteenth claim for relief in

his third amended petition, properly exhausted. It follows that because any attempt to

now exhaust the Brady claim in the state courts would be dismissed as untimely, the

claim is, to this extent, procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S.

838, 848 (1999) (holding that failure to timely exhaust habeas claim amounts to

procedural default).

Jalowiec challenges the district court’s lack-of-exhaustion ruling on a second

basis. To the extent his Brady claim is based on suppressed evidence that remained

undisclosed until after the habeas proceedings were commenced, he contends the

exhaustion requirement should be excused. Indeed, inasmuch as Jalowiec’s failure to

timely assert certain bases for his Brady claim is shown to be attributable to the

prosecution’s wrongful withholding of information, he has “cause”—i.e., some objective

factor external to the defense—excusing his procedural default. Strickler, 527 U.S. at

283-89; Beuke, 537 F.3d at 634. The Warden does not dispute that materials relevant

to Jalowiec’s Brady claim were disclosed only during discovery in the district court

habeas proceedings. Jalowiec has therefore adequately shown “cause.” The challenge

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is to determine which items are relevant to the Brady violations asserted in Claim 20 and

whether their non-disclosure is shown to have resulted in such “prejudice” as to excuse

the procedural default.

To satisfy the prejudice requirement, Jalowiec must show there is a reasonable

probability that the outcome of the trial would have been different had the materials been

timely disclosed to the defense. Strickler, 527 U.S. at 289. He must show that the

withholding of materials “worked to his actual and substantial disadvantage, infecting

his entire trial with errors of constitutional dimensions.” Beuke, 537 F.3d at 634

(quoting Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002)). This prejudice inquiry

mirrors the Brady materiality analysis implicated by the merits of the claim. Id. We

therefore look to the district court’s assessment of the merits of Claim 20 as our starting

point in determining whether Jalowiec has shown prejudice excusing his procedural

default of his claim to the extent it is based on nondisclosure of witness statements. We

also look to the district court’s assessment of the merits in regard to Jalowiec’s claim

that the prosecution failed to disclose an agreement pursuant to which Michael Smith

testified because that aspect of his claim was not procedurally defaulted.

2. Prejudice: Materiality of Withheld Information

Because the state courts did not address the merits of the Brady claim, we are not

constrained by AEDPA deference; like the district court below, we undertake de novo

review of materiality and prejudice. See Cone v. Bell, 129 S.Ct. 1769, 1784 (2009).

Again, in order to make out a Brady violation, Jalowiec must show that (1) evidence

favorable to the defense, (2) was suppressed by the government, and (3) the defense was

prejudiced. In determining whether “withheld information was material and therefore

prejudicial,” a reviewing court considers “it in light of the evidence available for trial

that supports the petitioner’s conviction.” Jells v. Mitchell, 538 F.3d 478, 502 (6th Cir.

2008). “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable

probability that, had the evidence been disclosed, the result of the proceeding would

have been different.” Cone, 129 S.Ct. at 1783. “[A] showing of materiality does not

require demonstration by a preponderance that disclosure of the suppressed evidence

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would have resulted ultimately in the defendant’s acquittal.” Kyles v. Whitley, 514 U.S.

419, 434 (1995). Favorable evidence is material if it “could reasonably be taken to put

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

Cone, 129 S.Ct. at 1783 (quoting Kyles, 514 U.S. at 435). If materiality of the

suppressed evidence is established, making out a Brady violation, harmless-error inquiry

does not apply. Kyles, 514 U.S. at 435. In reviewing for materiality, we consider the

effect of the suppressed evidence “collectively,” rather than “item by item.” Cone, 129

S.Ct. at 1785 (quoting Kyles, 514 U.S. at 436). Nonetheless, we begin, like the district

court, by considering each item asserted in Claim 20 individually.

(a) Danny Smith

Danny Smith, one of the defendants (along with Raymond Smith) against whom

Ronald Lally had been set to testify in connection with drug-trafficking charges just

before he was killed, gave a recorded statement to police during custodial interrogation

on January 7, 1995. Danny Smith told Elyria Police Detective Alan Leiby, investigating

the Lally murder, that he “never really suspected of [sic] Stan [Jalowiec] would do

something like that until everything started coming in and people start [sic] bringing up

his name.” This statement was not disclosed to Jalowiec prior to or at the time of his

trial. Although Danny Smith, as a suspected co-conspirator, was “unavailable” to testify

at Jalowiec’s trial, Jalowiec argues the statement should have been disclosed as Brady

material because it tended to exonerate him, refuting the prosecution’s theory that he was

involved in a suspected conspiracy to kill Lally. The district court summarily held that

Danny Smith’s January 7, 1995 statement was “material” because, had it “been disclosed

prior to trial or at trial, the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.” Jalowiec, 2008

WL 312655, at *67. However, the court ultimately concluded that this “Brady

violation,” viewed in light of all the evidence implicating Jalowiec, was harmless beyond

a reasonable doubt. Id. at *73.

On appeal, Jalowiec correctly contends the district court’s reasoning is self-

contradictory. He contends the district court, having once found that the statement was

No. 08-3249 Jalowiec v. Bradshaw Page 16

“material,” and its nondisclosure a “Brady violation,” was not at liberty to engage in

harmless-error review to deny habeas relief. Indeed, the district court expressly

recognized earlier in its opinion that “once a Brady violation is found, there is no need

for further harmless-error review[;] . . . [a] Brady violation is never harmless.” Id. at *67

(citations omitted). The Warden does not deny the facial inconsistency. However, in

view of the court’s unambiguous denial of habeas relief, the Warden contends the

opinion should be construed as concluding that Danny Smith’s statement was potentially

exculpatory and should have been disclosed per Brady, but was not, ultimately,

“material.”

The Warden’s position finds support not only in a common-sense reading of the

opinion as a whole, but also in the Supreme Court’s recognition that “not every violation

of [the prosecution’s duty of disclosure] necessarily establishes that the outcome was

unjust.” Strickler, 527 U.S. at 281. As the Strickler Court further observed:

[T]he term “Brady violation” is sometimes used to refer to any breach of

the broad obligation to disclose exculpatory evidence—that is, to any

suppression of so-called “Brady material”—although, strictly speaking,

there is never a real “Brady violation” unless the nondisclosure was so

serious that there is a reasonable probability that the suppressed evidence

would have produced a different verdict.

Id. Consistent with this observation, we read the district court’s opinion, despite its

misleading language, as concluding that the prosecution breached its duty of disclosure

under Brady, but that the Danny Smith statement was not so “material” that its timely

disclosure to the defense would have given rise to a reasonable probability of a different

verdict.

This is a conclusion that we also reach de novo. We find no error in the district

court’s determination that the January 7, 1995 statement should have been disclosed.

Yet, the statement is arguably as incriminating as it is exculpatory. Jalowiec has not

demonstrated—even assuming he could have found a way of introducing Danny Smith’s

hearsay opinion about a friend’s character—that he could have made such effective use

of it as would put the whole case in such a different light as to undermine confidence in

No. 08-3249 Jalowiec v. Bradshaw Page 17

the verdict. Nor has he explained how the statement might have led to other admissible

exculpatory evidence. The statement is therefore not “material” for Brady purposes, and

its nondisclosure was not so prejudicial as to amount to a “Brady violation.”

In addition to the January 7, 1995 statement, the prosecution withheld recorded

conversations between Danny Smith and prosecution witness Carl Hartman in which

Danny attempted to bribe Hartman and influence him as a witness. Jalowiec contends

that Danny’s statements could have been used to cross-examine Hartman and to

undermine the prosecution’s theory that Jalowiec conspired to kill Lally by tending to

show Danny Smith’s greater involvement and culpability. The district court held this

evidence was neither exculpatory nor material. Jalowiec, 2008 WL 312655 at *68. On

appeal, Jalowiec has failed to demonstrate that the district court erred in either respect.

Jalowiec has not demonstrated how he could have effectively used such evidence of

Danny Smith’s efforts to influence Hartman to undermine confidence in the jury’s

assessment of the evidence against him.

(b) Terry Hopkins

Terry Hopkins was staying in an apartment with Danny Smith at the time of the

Lally murder. He was out drinking with Danny Smith and others in the early morning

hours on the day of the murder, January 19, 1994. He gave inconsistent recorded

statements to officers on January 4 and 6, 1995, concerning conversations he had with

Danny Smith, Raymond Smith and Jalowiec in the hours after the murder. Although

Hopkins first stated that Jalowiec admitted shooting Lally, he later stated that Jalowiec

identified Raymond Smith as the shooter. The district court concluded that these

statements should have been provided to Jalowiec, but that they were not material

because Hopkins also made various inconsistent statements at trial and was subject to

effective cross-examination. Jalowiec, 2008 WL 312655, at *68.

We find no error in the district court’s assessment. On cross-examination,

Hopkins readily admitted that he gave multiple statements to the police. He

acknowledged that he was not very cooperative on one occasion because he “didn’t want

to get involved.” He did not deny that he subsequently gave a “revised” statement.

No. 08-3249 Jalowiec v. Bradshaw Page 18

Hopkins seemed unable to remember when he gave specific statements to the police.

He admitted he had drunk heavily the night Lally was killed and was “pretty drunk”

when he heard the conversations he reported on. Thus, it is apparent that even without

the benefit of specific inconsistent statements from undisclosed police interviews,

Jalowiec’s counsel managed to effectively cross-examine Hopkins, highlighting

weaknesses in his testimony. Although we agree with the district court’s determination

that Hopkins’ prior inconsistent statements should have been disclosed, Jalowiec has not

demonstrated that his efforts to impeach Hopkins would have been so significantly aided

by the statements as to create a reasonable probability that the outcome of the trial would

have been different. The nondisclosure of these statements was therefore not material

under Brady.

(c) Lynne Altpater

Lynne Altpater was an acquaintance of Jalowiec and Danny Smith who testified

for the prosecution in Jalowiec’s trial. She testified that she was working at a doctor’s

office in December 1993 when Danny Smith approached her and asked if she could get

him some poison to “take care of a person” who could cause him to be in a lot of trouble.

She had previously given recorded statements to the police on January 6, 1995 and

January 19, 1995—statements that were not disclosed to the defense. Her testimony was

consistent with her prior statement of January 19, but inconsistent with her January 6

statement, when she told Detective Leiby that Danny Smith wanted the poison to kill

some cats that had crawled on his car at work. Although Jalowiec could have used the

January 6 version as a prior inconsistent statement to impeach Altpater, the district court

concluded that the statement was not material for Brady purposes. The court reasoned

that Altpater’s testimony was not that damaging to Jalowiec, considering (a) there was

no evidence that he was privy to the conversation between Altpater and Danny, and

(b) “poison was not used to kill Lally.” Jalowiec, 2008 WL 312655, at *69.

We find no error in this assessment. Altpater’s testimony was useful to the

prosecution to show that Danny Smith, one of the persons Jalowiec was suspected of

conspiring with, had explored at least one other way of preventing Lally from testifying

No. 08-3249 Jalowiec v. Bradshaw Page 19

against him and his father on the then pending drug-trafficking charges. Otherwise, it

had no tendency to incriminate Jalowiec. Further, even if Jalowiec could have used the

January 6 statement to attack Altpater’s credibility, the prosecution could have used the

January 19 statement to rehabilitate her by showing that Altpater had gradually become

more cooperative and forthcoming. Considering the broader context, the January 6,

1995 statement was not so material as to warrant a finding that its disclosure to the

defense would have made a difference.

Jalowiec asserts a second Brady violation in relation to witness Altpater. At

Danny Smith’s trial, subsequent to Jalowiec’s, prosecution witness Lynne Altpater

testified that Detective Leiby had offered her husband, Richard Altpater, assistance with

drug charges pending against him in exchange for his cooperation with the prosecution

of Danny Smith. That is, according to a statement recorded by attorney Michael Duff

on October 23, 1995, Richard Altpater said Detective Leiby asked him to corroborate

information obtained from other witnesses to the effect that Danny Smith had offered

him, Richard Altpater, money to kill a person or take him out of town. Richard Altpater

purportedly told Leiby he would cooperate, even though, in truth, Danny Smith had not

offered him money, but had only asked if he knew anyone who could hurt someone for

money. In his recorded statement, Richard Altpater went on to explain that he “used to

whoop people’s ass for money,” but that he’s “getting too old for that.” As it turned out,

Richard Altpater was not called to testify and Leiby did not provide assistance with

Richard Altpater’s pending charges. Nonetheless, Jalowiec argues that the prosecution

should have disclosed evidence of Leiby’s offer to induce Richard’s cooperation for his

use in impeaching Lynne Altpater’s testimony in his trial. The district court held that

information relating to Leiby’s offer should have been disclosed to Jalowiec, but that the

nondisclosure did not result in cognizable prejudice. Jalowiec, 2008 WL 312655, at

*72-73.

Although the district court carelessly referred to the nondisclosure of the

information as a “Brady violation,” Jalowiec has not otherwise demonstrated error by

the district court. Jalowiec has failed to identify evidence that Lynne Altpater’s

No. 08-3249 Jalowiec v. Bradshaw Page 20

testimony in his case was actually induced or influenced by any promise or offer of

assistance with her husband’s charges. Even though she actively participated in the

statement recorded on October 23, 1995, the statement includes no suggestion that she

was influenced by Leiby’s offer to her husband. Moreover, as indicated above, Lynne

Altpater’s testimony in Jalowiec’s trial about Danny Smith’s request for

poison—irrespective of whether he couched his request in terms of a need to kill a cat

or a person—was of marginal relevance in establishing Jalowiec’s guilt. There is no

reasonable basis to conclude that the disclosure of Leiby’s offer would have affected the

verdict.

(d) Joann Fike

Joann Fike was the owner of the Chrysler LeBaron that Jalowiec borrowed on

the night of Lally’s murder. She testified for the prosecution that her nephew Brian

Howington let Jalowiec borrow the car, and that it was covered with ice and had blood

on it when Jalowiec and Raymond Smith returned it several hours later. After the

LeBaron was impounded in connection with the murder investigation, Detective Leiby

helped Joann Fike find another car, gave her $200 for a set of four tires, and helped her

obtain the car’s return. Jalowiec contends Leiby’s help represents evidence that he

induced Fike’s cooperation, evidence that should have been disclosed. The district court

acknowledged that the help Leiby gave may or may not have been usual protocol, but

concluded that this information should have been disclosed to Jalowiec. Jalowiec, 2008

WL 312655, at *73. Nonetheless, the district court concluded the error was “harmless.”

Id.

Jalowiec argues that any inducement given to Fike was important because she

was a key witness who placed Jalowiec in her car on the night of the homicide. The

Warden concedes that the economic consideration Fike received was relevant to her

credibility, but argues that the evidence would not have altered the outcome of the trial

if it had been given to the defense. We agree. Fike’s testimony was corroborated by

other witnesses. There is no good reason to question her credibility. Even though the

evidence of help Fike received should have been disclosed, Jalowiec has presented no

No. 08-3249 Jalowiec v. Bradshaw Page 21

reason to believe the information could have been used to so impeach Fike as to call the

fairness of the trial and its outcome into question.

We also find no error in the district court’s determination that evidence that Fike

was granted transactional immunity in exchange for her cooperation with the

investigation of Lally’s death was not material for purposes of Brady. Again, the grant

of immunity should have been disclosed, but inasmuch as Fike did not reveal any self-

incriminating information, the impeachment value of the immunity agreement was

minimal. See Marshall v. Hendricks, 307 F.3d 36, 56 (3d Cir. 2002) (recognizing that

“the impeachment value of the immunity agreement is inextricably tied to the self-

incriminating evidence that was provided after the immunity agreement was executed.”).

(e) Sharon Hopkins

Jalowiec contends the prosecution withheld evidence that Sharon Hopkins’s

testimony was induced by Detective Leiby’s having obtained a signature bond for her

boyfriend after he turned himself in on misdemeanor warrants. The district court

concluded that this information was not material because the charges were minor and the

boyfriend would have “more than likely” obtained a bond without Leiby’s help.

Jalowiec, 2008 WL 312655, at *72.

Sharon Hopkins’s testimony was important to the prosecution. She corroborated

Michael Smith’s description of the transfer of passengers (Raymond and Michael Smith)

from Danny Smith’s car to Fike’s LeBaron (containing Jalowiec and Lally) in the middle

of the night, a transfer that linked Howington’s and Fike’s testimony about the LeBaron

and linked Jalowiec to Lally throughout the night. Although the prosecution improperly

withheld the information that Leiby assisted Hopkins’s boyfriend, we affirm the district

court’s assessment that the information would not have undermined confidence in the

outcome if it had been made available to Jalowiec. Considering that the benefit accrued

to a boyfriend and not Sharon Hopkins herself, that minor charges were involved, and

that Jalowiec has not disputed that the boyfriend might well have received the bond

regardless of Leiby’s intercession, Jalowiec has not shown that the information was

material under Brady.

No. 08-3249 Jalowiec v. Bradshaw Page 22

(f) Michael Smith

Michael Smith was the prosecution’s star witness. Jalowiec contends that the

prosecution withheld: evidence that Michael called Detective Leiby in 1993 or 1994 and

tried to take the blame for the drug charges then pending against Danny Smith and

implied that he might “do something” when Leiby rejected his story; evidence that

Michael called Leiby in February 1996 and told him that he knew nothing about a

conspiracy between Danny and Raymond Smith relating to Lally; and comments in

police files reflecting belief that Michael had a “violent nature.” Jalowiec also contends

the prosecution withheld information suggesting a connection between Michael’s

testimony against Jalowiec and lenient sentencing treatment Michael received on an

unrelated offense.

The district court discounted the supposedly withheld information that Michael

Smith had been granted favorable treatment in exchange for his testimony at Jalowiec’s

trial. See Jalowiec, 2008 WL 312655, at *72. The court noted that on November 22,

1994—long before Jalowiec’s trial—Michael was given shock probation on a five-to-

fifteen-year prison sentence for a crime unrelated to the events of Jalowiec’s case. Then,

after Michael testified, he received an early discharge from probation. Id. The district

court correctly found there was no evidence, only speculation, linking the two.

Further, as the district court determined, id. at *69, Michael Smith’s telephonic

denial of knowledge of any conspiracy between his brother and father was completely

consistent with his trial testimony, in which he expressed shock and surprise at what was

happening during the early morning hours of January 19, 1994. The statement thus had

little if any impeachment value and was not otherwise exculpatory of Jalowiec.

Similarly, the cited comments about Michael’s suspected violent nature were

unsubstantiated and, even if admissible, bore little if any exculpatory or impeachment

significance. They can hardly be considered material under Brady.

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(g) Tammy Green (Castro)

Jalowiec contends that Tammy Green, Danny Smith’s girlfriend, was given

transactional immunity for her grand jury testimony and that this fact was not disclosed

to the defense. The district court correctly concluded that, even if Tammy Green was

given immunity for her grand jury testimony, the prosecution was under no obligation

to disclose it because she did not testify at Jalowiec’s trial. Jalowiec, 2008 WL 312655,

at *72 (citing United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir. 1994) (observing

that because the prosecution did not call the agreement’s beneficiary as a witness at trial,

“there was no one to impeach.”)).

Further, Jalowiec maintains that Green’s grand jury testimony was contrary to

Sharon Hopkins’s trial testimony and that he could have used it to impeach Hopkins if

it had been disclosed to him. The district court reasoned that the prosecution had no

duty to disclose the grand jury testimony, despite its potential impeachment value,

because there is no showing that Jalowiec could not have obtained Green’s story from

her directly and called her as a witness. Id. (citing Carter v. Bell, 218 F.3d 581, 601

(6th Cir. 2000) (holding there was no Brady violation where the defendant should have

known of the information and it was available from another source)). See also Doan v.

Carter, 548 F.3d 449, 460 (6th Cir. 2008) (same).

On appeal, Jalowiec argues the district court’s reasoning is flawed. He contends

he had no reason to know Green’s version of the events on January 19, 1994 was

different than Sharon Hopkins’s and Michael Smith’s. Yet, Green’s presence among

those involved in the events of January 19 was attested to by others. Her recollection

of the events should have been readily discoverable with minimal investigation by

defense counsel. Under such circumstances, “the Brady rule does not assist a defendant

who is aware of essential facts that would allow him to take advantage of the exculpatory

evidence at issue,” such as when the evidence in question “would have been

discoverable with minimal investigation by [defense] counsel.” Coleman v. Mitchell,

268 F.3d 417, 438 (6th Cir. 2001); see also Benge v. Johnson, 474 F.3d 236, 243 (6th

Cir. 2007).

No. 08-3249 Jalowiec v. Bradshaw Page 24

Moreover, in her grand jury testimony, Green testified not only that she did not

know who Sharon Hopkins was, but also that Michael Smith was not in the car with her

and Danny that night. She also stated that she did not see Fike’s LeBaron that night.

Her version of events before she and Danny and Raymond and Jalowiec parted ways on

January 19, read in isolation, would have assisted Jalowiec’s defense insofar as it

contradicted the testimony of two prosecution witnesses on some background details.

Generally, however, Green made clear her unwillingness to get involved. She admitted

that she wanted to remain “willfully ignorant” of Danny’s criminal activities. Hence,

even if the prosecution ought to have disclosed the substance of her grand jury

testimony, it is unlikely that the account of such a reluctant witness would have

effectively impeached the testimony of Michael Smith and Sharon Hopkins.

Accordingly, we find no error in the district court’s ruling.

(h) Alternate-Suspects Evidence

Jalowiec contends that the prosecution withheld “significant, credible evidence

regarding alternate suspects—suspects who actually had a motive to kill Lally.”

Jalowiec identifies several trial witnesses, including all three Smiths, Terry Hopkins, and

Vernard Berry, who, unlike him, were “involved in the drug world.” Jalowiec also refers

to an undisclosed transcript of a November 29, 1995 interview with a Melissa Arroyo,

who told officers that Danny Smith had told her that he, Danny, had killed Lally.

Finally, Jalowiec refers to several potential suspects named in various police reports as

being close to Danny Smith or having involvement with Lally.

These bases for Jalowiec’s Brady claim were not asserted in his amended habeas

petition, but only in his traverse. It is apparently for this reason that the district court

properly declined to address these asserted grounds for relief. See Tyler v. Mitchell, 416

F.3d 500, 504 (6th Cir. 2005) (holding that district court did not err in declining to

address claim first raised in traverse rather than in habeas petition). Even if we were to

find these grounds properly presented, they would be unavailing. Jalowiec’s

identification of trial witnesses as “alternate suspects” is based largely on their trial

testimony and is not undisclosed Brady evidence at all. Further, the mere fact that these

No. 08-3249 Jalowiec v. Bradshaw Page 25

witnesses were allegedly “involved in the drug world” is insufficient to render them

“suspects” in Lally’s murder. According to Melissa Arroyo’s statement, Danny Smith

told her that he killed somebody in “the fall season;” that “they beat the crap out of him

and then um, they tied his feet to the bumper and they drove him up and down the street,

and then they ran him over.” Danny did not tell her who the person was and she had no

idea whether Danny was referring to Lally. Although this statement might be deemed

Brady material, Jalowiec has not shown how it could have been used, in view of the

other trial evidence, to call the integrity of the verdict into question. The remaining

alternate-suspects “evidence” Jalowiec cites is so vague or peripheral to the facts of the

Lally murder that it can hardly be deemed exculpatory, much less material.

(i) Jailhouse Informant Evidence

Jalowiec contends that the prosecution revealed only after trial that Detective

Leiby had arranged for the placement of “snitches,” including Danny Smith, in his pre-

trial cell “in a vain attempt to procure admissions.” He contends that he made no

incriminating statements and that he should have been able to use this information at trial

to discredit the prosecution. This theory of relief was not asserted in Jalowiec’s petition

either, but only in his traverse. It was not addressed by the district court and is not

properly before us. See Tyler, 416 F.3d at 504. The claim is patently meritless in any

event because Jalowiec has offered no rationale whereby his asserted silence or failure

to make an incriminating statement could be deemed exculpatory “evidence” that the

prosecution was obliged to disclose under Brady.

(j) Sentencing Evidence

In support of his claim that the prosecution violated his Brady rights at

sentencing, Jalowiec cites an undisclosed police report showing that prosecution witness

Jeff Hicks gave inaccurate testimony in the penalty phase. In his testimony, Hicks said

that as he left a bar in Elyria on the night of January 27-28, 1994, he was struck by

Jalowiec “with a bat, fist, or some type of club,” that he was knocked out, and that,

according to a friend, Jalowiec kicked him in the face while he was unconscious. This

account differed from the statement he made to the police two days after the assault only

No. 08-3249 Jalowiec v. Bradshaw Page 26

in that Hicks then reported that as he exited the bar, he was “either pushed, or fell to the

ground, and passed out” before Jalowiec kicked him in the face, fracturing his jaw.

Nonetheless, the police report shows that the focus of the ensuing investigation was on

Jalowiec’s having kicked Hicks in the face while he lay unconscious and defenseless.

The district court concluded that the police report could “not reasonably be taken

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

Jalowiec, 2008 WL 312655, at *70. This handling of the Hicks evidence was clearly

appropriate. The most damning aspect of Hicks’s sentencing testimony was not so much

the manner in which he was initially knocked out, but that Jalowiec kicked him in the

face and fractured his jaw while he was lying defenseless on the ground. Given that

Hicks’s testimony suggested that he was “blindsided,” and that the police report

indicated Hicks did not know how he fell unconscious to the ground, the police report

would have had little impeachment value to Jalowiec and can hardly be deemed material

under Brady.

(k) Materiality of Withheld Information: Conclusion

Accordingly, we hold that none of the allegedly suppressed items of information

is so “material” for Brady purposes as to give rise to a reasonable probability that the

outcome of the trial would have been different if it had been disclosed to Jalowiec prior

to trial. In assessing materiality, however, we must consider the effect of the suppressed

evidence “collectively.” Cone, 129 S.Ct. at 1785. The sheer number of undisclosed,

potentially exculpatory items in this case suggests a troubling disregard by the

prosecution of its Brady obligation, which we do not condone. Our role on habeas

review, however, is not to police the prosecution, but to ascertain whether the

prosecution’s failure to disclose Brady material compromised Jalowiec’s right to a fair

trial.

Almost all of the undisclosed information identified by Jalowiec has potential

impeachment value; it is not directly exculpatory. Exculpatory evidence is not

inherently more valuable, because the Brady materiality prong is not a sufficiency-of-

the-evidence test, but there are relevant distinctions between impeachment and

No. 08-3249 Jalowiec v. Bradshaw Page 27

exculpatory evidence for Brady purposes. For instance, “[w]here the undisclosed

evidence merely furnishes an additional basis on which to challenge a witness whose

credibility has already been shown to be questionable or who is subject to extensive

attack by reason of other evidence, the undisclosed evidence may be cumulative, and

hence not material.” Robinson v. Mills, 592 F.3d 730, 736 (6th Cir. 2010) (internal

quotation marks omitted).

Defense counsel thoroughly cross-examined several of the prosecution witnesses

who are the subjects of Brady impeachment evidence in this case. Weaknesses and

inconsistencies in the prosecution’s case were exposed. The jury was well aware that

most of the prosecution witnesses were not model citizens and many were under the

influence of intoxicants at the time of the events they testified about. The undisclosed

evidence Jalowiec relies on could have been used to further impugn the credibility of

some witnesses, but most of the potentially impeaching evidence was of marginal

significance. It could hardly have been used to undermine the prosecution’s core

showing of Jalowiec’s guilt.

The ultimate question is whether there is a reasonable probability that the

disclosure of such evidence, cumulatively, would have put the whole case in such a

different light as to undermine confidence in the verdict. Evidence withheld by the

prosecution “must be evaluated in the context of the entire record.” United States v.

Agurs, 427 U.S. 97, 112 (1976). “If there is no reasonable doubt about guilt whether or

not the additional evi[de]nce is considered, there is no justification for a new trial.”

Id. at 112-13. Because the evidence as a whole reflects that most of the trial witnesses

were thoroughly and effectively cross-examined, the undisclosed impeachment evidence

would have been of marginal value to Jalowiec. It follows that Jalowiec has failed to

establish a reasonable probability that the outcome of the case would have been

different, even if all the additional impeachment evidence had been disclosed to the

defense.

In reaching this conclusion, we hold both that Jalowiec has not shown

“prejudice” excusing the procedural default of some aspects of his Brady claim and that,

No. 08-3249 Jalowiec v. Bradshaw Page 28

if we were to nonetheless address the merits of all aspects of the claim de novo, he has

not shown that the undisclosed impeachment evidence is sufficiently “material” to

warrant habeas relief. We therefore affirm the district court’s denial of Claim 20.

B. Ineffective Assistance of Counsel: Counsel’s Conflict of Interest

Jalowiec contends in Claim 31 that he was denied effective assistance of counsel

because his trial counsel, Joseph Grunda, was burdened by a conflict of interest.

Jalowiec alleges that Grunda “concurrently” represented Terry Hopkins, and obtained

a sentence reduction for him in an unrelated case in return for Hopkins’s agreement to

testify against Jalowiec. Jalowiec argues that Hopkins was a “critical” witness who

testified to Jalowiec’s own admissions that he was involved in Lally’s murder. Although

Hopkins was subject to cross-examination by Grunda’s co-counsel, Jalowiec contends

the cross-examination was ineffective to purge the adverse effects of the conflict. The

Warden insists that attorney Grunda could not have been hampered by any divided

loyalties because Hopkins received his sentencing benefit months before Jalowiec’s trial

began. Further, the Warden argues, Jalowiec was not prejudiced because the sentencing

benefit Hopkins received was disclosed to Jalowiec’s jury.

The district court deemed this conflict-of-interest claim procedurally defaulted,

even though it was asserted in Jalowiec’s third amended petition, because the state courts

dismissed the third amended petition as a successive petition. Jalowiec, 2008 WL

312655, at *38. For the reasons set forth above, we disagree. The Ohio Court of

Appeals’ enforcement of this procedural bar was erroneous. It therefore represents no

bar to habeas review of the merits of Jalowiec’s claim. See Cone v. Bell, 129 S.Ct. at

1780-81 (holding that state court application of procedural bar resting on false premise

created no bar to habeas review of merits).

In its alternative line of reasoning, the district court denied this claim on the

merits. The court concluded that Jalowiec (1) failed to show a quid pro quo relation

between the lenient sentencing treatment Hopkins received and his testimony against

Jalowiec; and (2) failed to show that attorney Grunda’s prior representation of Hopkins

No. 08-3249 Jalowiec v. Bradshaw Page 29

had any adverse effect on his representation of Jalowiec. Jalowiec, 2008 WL at 312655,

at *59, 89.

Ordinarily, to prevail on an ineffective-assistance-of-counsel claim, a petitioner

must show that his counsel’s performance was deficient and that the deficiency so

prejudiced his defense that there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687, 694 (1984). However, prejudice is presumed if counsel is shown to have

been burdened by an actual conflict of interest. Id. at 692 (citing Cuyler v. Sullivan, 446

U.S. 335, 345-50 (1980)). Yet, even in the case of such a conflict of interest,

“[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively

represented conflicting interests’ and that ‘an actual conflict of interest adversely

affected his lawyer’s performance.’” Id. (quoting Sullivan, 446 U.S. at 350).

In Stewart v. Wolfenbarger, 468 F.3d 338, 350 (6th Cir. 2006), we noted that the

Supreme Court has thus far applied the Sullivan prejudice presumption only in the case

of a conflict of interest arising from multiple concurrent representation of defendants,

and has left open the question whether the presumption could apply in the case of a

conflict arising from successive representation. Id. (citing Mickens v. Taylor, 535 U.S.

162, 175-76 (2002)). Multiple concurrent representation, also referred to as joint or dual

representation, occurs where a single attorney simultaneously represents two or more co-

defendants in the same or separate proceeding(s), whereas successive representation

occurs where defense counsel has previously represented a co-defendant or trial witness.

Moss v. United States, 323 F.3d 445, 455, 459 (6th Cir. 2003).

In Moss, the applicability of the Sullivan presumption was considered in the case

of “an atypical form of successive representation.” Stewart, 468 F.3d at 351 (citing

Moss, 323 F.3d at 462-63). Among the unique circumstances considered in Moss were

the facts that (a) the same attorney represented defendant Moss in pre-indictment

proceedings, but represented Moss’s co-defendant in all post-indictment proceedings;

(b) the two co-defendants were tried together and collaborated in the defense; and

(c) defendant Moss paid for his co-defendant’s legal representation. See id. The Moss

No. 08-3249 Jalowiec v. Bradshaw Page 30

court determined that counsel’s “successive and intertwining representations” created

a conflict of interest, satisfying the first prong of the Sullivan standard. Id. at 465.

Subsequently, the Stewart court took pains to limit the reach of Moss to its unique facts,

noting that later Sixth Circuit rulings have declined to apply the Sullivan presumption

in cases of successive representation. Id. (citing Gillard v. Mitchell, 445 F.3d 883, 891

(6th Cir. 2006); Lordi v. Ishee, 384 F.3d 189, 193 (6th Cir. 2005)). Hence, a threshold

question posed by Jalowiec’s claim is whether attorney Grunda’s representation of Terry

Hopkins, followed by his representation of Jalowiec, bore indicia of multiple concurrent

representation, triggering consideration of the Sullivan standard, or rather was more akin

to typical successive representation that did not pose an actual conflict of interest.

Hopkins was represented by Grunda in the Lorain County Common Pleas Court

when he pleaded guilty in October 1994 to several offenses (attempted aggravated

burglary, attempted felonious assault, domestic violence, and criminal damage) unrelated

to the charges later brought against Jalowiec. Hopkins first implicated Jalowiec in

Lally’s murder in statements given to the police in early January 1995. Later that month

Hopkins was sentenced by Judge Kosma J. Glavas to concurrent prison terms of five to

fifteen years, three to ten years, six months, and ninety days. Jalowiec was indicted on

capital murder charges in March 1995. This case, too, was assigned to Judge Glavas.

Attorneys Joseph Grunda and Edward Cleary were appointed to represent Jalowiec. In

August 1995, Grunda filed a motion on behalf of Hopkins to place him on “shock

probation” and suspend his prison sentence. The motion set forth seven grounds for

relief, but did not refer to any agreement by Hopkins to cooperate with authorities in the

investigation and prosecution of Jalowiec.4 Judge Glavas granted the motion one month

later. Hopkins was released from prison after serving less than eight months.

4

The motion asserted the following seven factors as warranting shock probation: (1) the offense

was the result of circumstances unlikely to recur; (2) the victim of the offense induced or facilitated it (i.e.,

the offender found his girlfriend and mother of his child in bed with another man); (3) there are substantial

grounds tending to excuse or justify the offense; (4) the offender acted under strong provocation; (5) the

offender has no history of delinquency or criminal activity; (6) the offender is likely to respond quickly

to correctional or rehabilitative treatment; and (7) the offender is likely to respond affirmatively to any

“diversion” incorporated into the probation order. J.A. vol. IV, pp. 1557-58.

No. 08-3249 Jalowiec v. Bradshaw Page 31

Hopkins testified for the prosecution in Jalowiec’s trial in March 1996. Although

Grunda had apparently not disclosed his prior representation of Hopkins to Jalowiec,

cross-examination of Hopkins was conducted by co-counsel Edward Cleary. During

cross-examination, Cleary asked Hopkins about the circumstances leading to the grant

of shock probation. Hopkins stated that no promises were made, but Detective Leiby

told him, even before he was sentenced, that if he gave a statement, Leiby “would see

what could be done about getting [him] probation.” Hopkins insisted his statement “was

not in exchange for nothing.” Hopkins explained that he gave his statement to Leiby

before he was sentenced in January 1995. He was then sentenced to prison. After he

had served six months’ imprisonment, the statutory prerequisite to a motion for shock

probation, attorney Grunda filed the motion on his behalf. Hopkins said he did not know

whether Leiby supported the motion.5 Hopkins testified that he was not required to

testify for the prosecution in the Jalowiec case as a condition of probation.

Jalowiec contends that Grunda’s representation of Hopkins was concurrent with,

rather than successive to, Grunda’s representation of him. He maintains this claim is

thus subject to analysis under Cuyler v. Sullivan and that Strickland prejudice is

presumed. Indeed, Grunda’s representation of the two overlapped for several months.

Grunda’s representation of Hopkins appears to have been all but concluded at the time

of his sentencing in January 1995. However, Grunda had been representing Jalowiec for

five months when he filed the motion for shock probation on behalf of Hopkins in

August 1995. This appears to have been Grunda’s final act in representing Hopkins,

coming eight months after Hopkins’s sentencing. The filing of this motion was

consistent with the “consideration” offered by Leiby when Hopkins first made a

statement in January 1995 implicating Jalowiec in the Lally murder. In other words,

Grunda’s last act on behalf of his first client, Hopkins, had some relation to the

prosecution—and thus also to the defense—of his second client, Jalowiec, whose trial

5

When Detective Leiby testified in Jalowiec’s trial, he confirmed that he spoke with Judge Glavas

when the motion for shock probation was filed. Leiby advised Judge Glavas that Hopkins might be a

witness in a case, and said he would appreciate “any consideration” if the judge felt Hopkins was a good

candidate for probation. Leiby also noted that Hopkins’s attorney was not present during these

conversations.

No. 08-3249 Jalowiec v. Bradshaw Page 32

would commence seven months later. Grunda simultaneously represented both clients

at a time when his representation of the one potentially touched on his representation of

the other.

These facts do not make out the classic sort of multiple concurrent representation

of co-defendants in the same criminal prosecution that was addressed in Sullivan. But

neither was Grunda’s representation of Hopkins and Jalowiec strictly successive either.

Despite the fact that Jalowiec and Hopkins were not co-defendants, Grunda’s

temporarily overlapping representation of them in two factually unrelated matters

nonetheless arguably posed some concerns akin to those identified in cases where the

first prong of the Sullivan standard was deemed satisfied.

But we need not decide whether the fact pattern here is closer to a traditional case

of multiple concurrent representation or to a typical case of successive representation,

because the ultimate outcome of our analysis would be the same irrespective of how we

characterized the representation. Recall that in Sullivan the Court held that Strickland

prejudice is presumed where counsel was burdened by an actual conflict of interest, but

“only if the defendant demonstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s

performance.’” Strickland, 466 U.S. at 692 (quoting Sullivan, 446 U.S. at 350). In

Mickens, the Court explained that “the Sullivan standard is not properly read as requiring

inquiry into actual conflict as something separate and apart from adverse effect.”

Mickens, 535 U.S. at 172 n.5. Rather, “[a]n ‘actual conflict,’ for Sixth Amendment

purposes, is a conflict of interest that adversely affects counsel’s performance.” Id.

Thus, even though the Moss court held that counsel’s successive representation of the

co-defendants triggered application of the Sullivan standard, it did not simply hold that

Strickland prejudice was presumed. The court went on to ascertain whether an “actual

conflict” and “adverse effect” had been shown. See Moss, 323 F.3d at 463-70.

To meet this standard, the petitioner had to show that “counsel was influenced

in his basic strategic decisions by the interests of the former client.” Moss, 323 F.3d at

466 (quoting Wheat v. United States, 486 U.S. 153, 160 (1988)). That is, the petitioner

No. 08-3249 Jalowiec v. Bradshaw Page 33

had to show that his attorney “made a choice between possible alternative courses of

action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful

to the other.” Id. (quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987); see also

Boykin, 541 F.3d at 644. Because the “adverse effect” prong of this standard was not

met in Moss, the Sullivan presumption of prejudice was not applied after all. Neither has

Jalowiec satisfied this adverse effect requirement here.

The existence of an adverse effect is “more likely to be evident in cases in which

an attorney takes positive steps on behalf of one client prejudicial to another than in

cases in which the attorney’s actions are based on inaction and are passive.” McFarland

v. Yukins, 356 F.3d 688, 706 (6th Cir. 2004) (quoting United States v. Gambino, 864

F.2d 1064, 1070 (3d Cir. 1988)). Here, Grunda took a “positive step” on behalf of Terry

Hopkins when he applied for shock probation for Hopkins. This step was allegedly

prejudicial to Jalowiec insofar as the grant of shock probation may have influenced

Hopkins to testify in Jalowiec’s trial. Yet, Hopkins had made statements to the police

incriminating Jalowiec months before Grunda began representing Jalowiec and months

before the motion for probation was filed. Further, there is no evidence that the grant

of probation influenced Hopkins’s decision to testify in Jalowiec’s trial. The motion for

probation did not mention this as a factor and Hopkins specifically denied that agreeing

to testify was a condition of probation. The notion that Hopkins would not have testified

but for the grant of probation is purely speculative.

Jalowiec’s contention that the conflict of interest induced a more “passive” cross-

examination of Hopkins is also unsupported. Cleary cross-examined Hopkins

specifically about the role the grant of probation had on his testimony. Cleary also cross-

examined Detective Leiby on the subject. Because of this cross-examination, the

implication that the grant of probation may have influenced Hopkins to testify cannot

have been lost on the jury. Hence, Jalowiec has failed to demonstrate that attorney

Grunda was burdened by a conflict of interest that adversely affected his representation.

It follows then, consistent with the holdings of both Moss and Stewart, that the

Sullivan presumption of prejudice is not applicable. Nor has Jalowiec otherwise shown,

No. 08-3249 Jalowiec v. Bradshaw Page 34

as ordinarily required under Strickland, that any conflict of interest contributed to such

deficiencies in Grunda’s performance that there is a reasonable probability that, but for

the deficiencies, the outcome of the trial would have been different. We thus affirm the

district court’s denial of relief on the Claim 31 ineffective-assistance-of-counsel claim.

C. Ineffective Assistance of Counsel: Penalty Phase Hearsay

Jalowiec contends in Claim 35(d) of his amended habeas petition that trial

counsel performed ineffectively at the penalty phase by failing to object to the admission

of two recorded telephone conversations between Raymond Smith and Detective Leiby.

The conversations included statements by Raymond Smith implicating Jalowiec in

Lally’s murder. The Ohio Supreme Court concluded on direct review that the tapes

were inadmissible hearsay, but that their admission was harmless. State v. Jalowiec, 744

N.E.2d 163, 178 (Ohio 2001). Consequently, counsel’s failure to object to the admission

of the statements was deemed not to have resulted in Strickland prejudice. Id. at 179.

The district court concurred in this determination. Jalowiec, 2008 WL 312655, at *54,

105-08.

It is undisputed that this ineffective-assistance claim was exhausted in the state

courts and properly preserved for habeas review. Our review is therefore limited under

AEDPA. See 28 U.S.C. § 2254(d)(1). Jalowiec contends the Ohio Supreme Court’s

holding that counsel’s error did not result in prejudice is contrary to or an unreasonable

application of Strickland.

In a taped telephone conversation with Detective Leiby on July 5, 1995,

Raymond Smith told Leiby that Jalowiec was the other person with him in the cemetery

when Lally was killed. The tape was introduced during the penalty-phase testimony of

Detective Leiby, who was put on the stand to rebut Jalowiec’s claim during his unsworn

statement that he was not involved in Lally’s murder. During his statement, Jalowiec

had asserted that “he had no reason to kill that man” and that Leiby had “set him up.”

When this hearsay evidence was admitted, the jury had already found Jalowiec

guilty of Lally’s murder beyond a reasonable doubt. The tape was not admitted as

No. 08-3249 Jalowiec v. Bradshaw Page 35

substantive evidence of Jalowiec’s guilt, but as evidence to rebut Jalowiec’s effort to

establish residual doubt as a mitigating factor. By that time, the jury had already heard

substantial evidence that Jalowiec was involved in the murder, such as the detailed

account of Michael Smith, evidence of Lally’s blood in the trunk of Joann Fike’s

LeBaron, and an abundance of testimonial and circumstantial evidence that placed

Jalowiec and Lally together in the LeBaron on the night that Lally was killed. Viewing

the record as a whole, there is no reasonable probability that the sentencing verdict

would have been different had counsel objected to this hearsay evidence and managed

to have it excluded.

The Ohio Supreme Court’s resolution of this claim, finding no Strickland

prejudice, was not contrary to or an unreasonable application of clearly established

federal law.

D. Ineffective Assistance of Counsel: Mitigation Investigation and

Presentation

In Claim 36, Jalowiec contends that trial counsel performed ineffectively at the

penalty phase by failing to adequately investigate and present mitigation evidence. He

contends that his attorneys left undiscovered many types of humanizing details that

would have significantly enhanced his mitigation case. The district court deemed the

claim procedurally defaulted based on the Ohio Court of Appeals’ holding that

Jalowiec’s third amended petition was successive. See Jalowiec, 2008 WL 312655, at

*41. Again, for the reasons set forth above, the Ohio Court of Appeals’ enforcement of

this procedural bar was erroneous. It therefore represents no bar to habeas review of the

merits of Jalowiec’s claim. See Cone, 129 S.Ct. at 1780-81. In evaluating the merits of

the claim, the district court correctly summarized the governing standards and

determined that counsel’s investigation may have been deficient, but concluded that

Jalowiec had not shown Strickland prejudice. Jalowiec, 2008 WL 312655, at *91-94.

The district court correctly compared the mitigation case that was presented with the

evidence that could have been presented if a more thorough investigation had been

conducted. The court concluded that the evidence adduced in post-conviction

No. 08-3249 Jalowiec v. Bradshaw Page 36

proceedings was of marginal value, either because it was cumulative or because it was

not strongly mitigating.

Counsel’s failure to reasonably investigate a defendant’s background and present

mitigating evidence at sentencing can constitute ineffective assistance. Wiggins v. Smith,

539 U.S. 510, 522-23 (2003); Williams, 529 U.S. at 395-96. In assessing the

reasonableness of an attorney’s mitigation investigation, the court considers “not only

the quantum of evidence already known to counsel,” but also whether that evidence

should have led “a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527.

Counsel cannot make a fully informed decision with respect to sentencing strategy where

the investigation into mitigating factors is abandoned at an unreasonable juncture. Id. at

527-28. Nor is counsel permitted to rely solely on information provided by the

defendant and his family in determining the extent of a proper mitigation investigation.

Rompilla v. Beard, 545 U.S. 374, 388-89 (2005). Nonetheless, “reasonably diligent

counsel may draw a line when they have good reason to think further investigation

would be a waste.” Id. at 383.

In determining whether the performance was constitutionally deficient, we ask

whether the mitigation investigation was reasonably complete and whether the

mitigation information the attorneys did discover should have prompted them to inquire

further. See Haliym v. Mitchell, 492 F.3d 680, 712 (6th Cir. 2007). To demonstrate

Strickland prejudice, Jalowiec is required to show that the additional evidence turned up

in post-conviction proceedings differs “in a substantial way—in strength and subject

matter—from the evidence actually presented at sentencing.” Fautenberry v. Mitchell,

515 F.3d 614, 626 (6th Cir. 2008) (quoting Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.

2005)). However, failing to introduce additional mitigation evidence that is only

cumulative of that already presented does not amount to ineffective assistance. Nields

v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007).

Here, in his unsworn statement, Jalowiec testified that he had dyslexia and failed

first grade, but said little more about school other than that he had perfect school

attendance from kindergarten through fifth grade. He testified that he was diagnosed

No. 08-3249 Jalowiec v. Bradshaw Page 37

with rheumatoid arthritis at a young age, which made it difficult for him to do school

work and caused him to drop out of high school. Jalowiec’s grandfather, Edward

Jalowiec, Sr., testified that Jalowiec used to help him with work around the house and

the golf course run by the family until Jalowiec’s arthritis limited him. Jalowiec’s sister,

Tammy, testified briefly about hardships caused by Jalowiec’s arthritis. She explained

that Jalowiec was the victim in a bar fight, not the aggressor. She did not think he was

capable of murder. Jalowiec’s father, Edward Jalowiec, Jr., testified that he and

Jalowiec’s mother, Sarah, divorced when Jalowiec was a teenager. Jalowiec’s father

moved out of state. He was not aware that Jalowiec was involved in fighting or drugs.

Sarah Jalowiec testified that Jalowiec “always had been a fun loving kid” and that he

loved animals. She testified that his arthritis became a significant problem when he was

in fifth or sixth grade, affecting his school attendance and his attitude. She said he

continued to suffer from the condition. She was unaware that he used drugs. Aside from

these matters, the defense offered no mitigation evidence regarding Jalowiec’s family

background and history.

We concur in the district court’s assessment that this mitigation case is not

suggestive of a thorough and competent mitigation investigation. Defense counsel did

obtain a psychological evaluation of Jalowiec, but apparently decided against using the

results. In a two-page report issued approximately one week before the penalty phase,

but not introduced at trial, psychologist Deborah Koricke, Ph.D., discussed her

impressions after a three-hour examination of Jalowiec. She noted his history of

dyslexia, hyperactivity, and arthritis, and that he had been “hospitalized psychiatrically

at age 16 for suicidal ideation.” Dr. Koricke also noted that Jalowiec reported no

mistreatment during childhood and that his IQ score of 98 was within the average range.

Jalowiec’s Minnesota Multiphasic Personality Inventory results, “within admissible

validity limits,” were deemed to evidence limited insight into his effect on others, naïve

defensiveness, overuse of repression, narrow lifestyle, mediocre ability to operate under

stress, and paranoid features. Yet, in her summary, Dr. Koricke identified only three

mitigating circumstances that should be considered in sentencing: (a) signs of a

“psychiatric disorder,” based on Jalowiec’s “delusional belief” that a monkey is his best

No. 08-3249 Jalowiec v. Bradshaw Page 38

friend; (b) a history free of seriously violent acts and demonstrated ability to form

positive long-term relationships with others; and (c) Jalowiec’s relatively young age.

Thus, Dr. Koricke’s assessment offered little compelling support for mitigation.

In post-conviction proceedings, Jalowiec presented additional evidence regarding

his family background and history, but it is not significantly different in kind or strength

from what was presented in trial. Jalowiec also submitted an affidavit from psychologist

James Eisenberg, Ph.D., critical of the superficiality of Dr. Koricke’s evaluation, and

critical of defense counsel’s reliance on it in formulating their mitigation strategy.

However, Dr. Eisenberg apparently did not examine Jalowiec at all and offered no

further substantive evidence, mitigating or otherwise.

In sum, Jalowiec has made no persuasive argument on appeal that the district

court erred in holding that he failed to show Strickland prejudice. The mitigation

evidence that Jalowiec gathered subsequent to his 1996 trial is not compelling. Jalowiec

has not identified evidence so substantially different in strength or subject matter from

what was presented at trial to support the conclusion that a more complete mitigation

investigation and presentation would have given rise to a reasonable probability of a

different outcome sufficient to undermine confidence in the jury’s verdict. Cf. Porter

v. McCollum, 130 S.Ct. 447, 455-56 (2009). We therefore affirm the district court’s

denial of this claim.

E. Ineffective Assistance of Appellate Counsel

In his final claim, Claim 42(a) and (c), Jalowiec contends that appellate counsel

performed ineffectively by failing to raise appellate challenges to Jalowiec’s trial

counsel’s conflict of interest and to the admission of allegedly unconstitutional hearsay

evidence. Because Jalowiec has failed to show prejudice resulting from his trial

counsel’s previous representation of Terry Hopkins, see supra, Part III.B, he cannot

demonstrate prejudice in connection with his appellate counsel’s failure to raise this

claim and we need not further address Claim 42(a). He acknowledges that counsel did

raise an appellate hearsay claim, but he complains that counsel’s claim addressed the

testimony of only four trial witnesses while overlooking more egregious hearsay

No. 08-3249 Jalowiec v. Bradshaw Page 39

testimony by other witnesses. Most of the hearsay testimony identified by Jalowiec

concerns statements attributed to Danny and Raymond Smith, especially Danny Smith’s

statements showing his intent to harm or kill Lally. His primary objection to this

testimony is that the prosecution purportedly offered it under Ohio R. Evid.

801(D)(2)(e)’s exception for a co-conspirator’s statements without showing the

existence of a conspiracy and defendant’s participation therein. He notes that counsel

repeatedly objected on this basis, but Jalowiec argues that none of the testimony at issue

actually connected him to Danny Smith’s conspiracy to kill Lally.

The parties do not dispute that this ineffective-assistance claim was fully

exhausted in the state courts and properly preserved for habeas review and that our

review is governed by AEDPA. The Ohio Supreme Court summarily rejected the claim,

holding Jalowiec had failed to raise a genuine issue as to whether he was deprived of

effective assistance of counsel on appeal. State v. Jalowiec, 751 N.E.2d 467, 468 (Ohio

2001). In rejecting the claim, the court noted that many of Jalowiec’s hearsay objections

were rejected on direct appeal. Id. (citing Jalowiec, 744 N.E.2d 163). In its earlier

ruling, the court reasoned that independent evidence established that a conspiracy to kill

Lally existed on the night of his murder based on the testimony of Michael Smith,

Sharon Hopkins and Brian Howington, and that Jalowiec had earlier been associated

with threatening Lally. Jalowiec, 744 N.E.2d at 172-73. Accordingly, the court

concluded that the prosecution had adequately established the existence of a conspiracy,

justifying the introduction of hearsay statements under Rule 801(D)(2)(e). Id. The

district court denied habeas relief, finding that the Ohio courts’ disposition of the claim

was not contrary to or an unreasonable application of clearly established federal law.

Jalowiec, 2008 WL 312655, at *110-13.

Failure of appellate counsel to raise an issue on appeal can amount to

constitutionally ineffective assistance. McFarland, 356 F.3d at 710. Yet, counsel has

no obligation to raise every possible claim and “the decision of which among the

possible claims to pursue is ordinarily entrusted to counsel’s professional judgment.” Id.

An appellate attorney is not required to raise a non-meritorious claim. See Wilson v.

No. 08-3249 Jalowiec v. Bradshaw Page 40

Mitchell, 498 F.3d 491, 514-15 (6th Cir. 2007). In addition, of course, to warrant habeas

relief, a petitioner must demonstrate that any deficiency in appellate counsel’s

performance resulted in Strickland prejudice. Evans v. Hudson, 575 F.3d 560, 564-65

(6th Cir. 2009).

Considering the bases on which the Ohio courts rejected Jalowiec’s challenge to

the admissibility of co-conspirator hearsay on direct appeal, it is practically

inconceivable that he would have prevailed if appellate counsel had raised the argument

more completely and less “ineptly.” The same independent evidence of a conspiracy

that justified admission of other hearsay statements also justified admission of statements

that appellate counsel did not specifically challenge. Jalowiec continues to quarrel with

the adequacy of the independent evidence that was deemed to show his involvement in

the conspiracy. Yet, the Ohio Supreme Court concluded that the trial testimony was

more than sufficient to establish that a group of men conspired to kill Lally and that

Jalowiec participated in that conspiracy. See Jalowiec, 744 N.E.2d at 172-73. The court

further noted that once such a conspiracy was established, Rule 801(D)(2) permitted the

admission of “‘a statement by a coconspirator of a party during the course and in

furtherance of the conspiracy upon independent proof of the conspiracy.’” Id. at 172.

The Ohio courts’ resolution of this evidentiary question has not been shown to

be erroneous, such that Jalowiec’s right to a fair trial was compromised. Nor has

Jalowiec shown that the Ohio Supreme Court’s rejection of his ineffective-assistance-of-

appellate-counsel claim was an objectively unreasonable application of Strickland.

Jalowiec has not shown there is a reasonable probability that the outcome of his appeal

would have been different but for appellate counsel’s deficiency in challenging the

hearsay statements. We affirm the denial of habeas relief on this claim as well.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court denying petitioner

Jalowiec’s petition for writ of habeas corpus is AFFIRMED.