# Appendix — Houk v. Joseph, 127 S. Ct. 1827 (2007) (No. 06-961)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

Supre S.
upreme Court, U.S

@)
06-961 JANS - 2007
No.
? ~ QFFICE OF THE CLERK

In the Supreme Court of the Gnited States

MARC HOUK, Warden,

Petitioner,
Vv.

RICHARD JOSEPH,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APPENDIX

JIM PETRO
Attorney General of Ohio

STEPHEN P. CARNEY*
Senior Solicitor

* Counsel of Record
ELIZABETH T. SCAVO
Assistant Solicitor
CHARLES L. WILLE
Assistant Attorney General
30 E. Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax

Counsel for Petitioner

TABLE OF CONTENTS
Page
Appendix A: Opinion, United States Court of Appeals for the

Sixth Circuit, Case Nos. 05-3111/3113,
I .... cesuneesurseososvgeroese la

Appendix B: Opinion, United States District Court, Northern
District of Ohio, Case No. 98-CV-527,
ES ._ caseuepececoenecenscsscese 58a

la

APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0418p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RICHARD JOSEPH,
Petitioner-Appellant/
Cross-Appellee,

Y.

RALPH COYLE, Warden,
Respondent-Appellee/
Cross-Appellant.

Nos. 05-3111/3113
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 98-00527—-Lesley Wells, District Judge.
Argued: June 8, 2006
Decided and Filed: November 9, 2006

Before: MOORE, COLE, and CLAY, Circuit Judges.

COUNSEL

ARGUED: Edmund W. Searby, SCOTT & SCOTT, Chagrin
Falis, Ohio, for Appellant. Charles L. Wille, ATTORNEY

2a

GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for
Appellee.

ON BRIEF: Edmund W. Searby, Jennifer I. Cupar, SCOTT
& SCOTT, Chagrin Falls, Ohio, for Appellant. Charles L.
Wille, ATTORNEY GENERAL’S OFFICE OF OHIO,
Columbus, Ohio, for Appellee.

OPINION

KAREN NELSON MOORE, Circuit Judge. An Ohio jury
convicted Richard Joseph of aggravated murder. The jury
also-convicted Joseph of a single capital specification, which
made him eligible for the death penalty, and, after a
mitigation hearing, recommended a sentence of death. The
trial court accepted this recommendation and imposed the
death penalty, which was upheld on direct and state post-
conviction review. Asserting twenty grounds for relief,
Joseph petitioned the district court for a writ of habeas
corpus. The district court granted the writ on four grounds
relating to a fundamental error in the capital specification:
although the specification required Joseph to be the principal
offender in the commission of the aggravated murder,
everyone at trial proceeded under the mistaken view that the
specification required Joseph to be the principal! offender in
the commission of the kidnapping. The district court denied
Joseph’s remaining claims. Joseph appeals the denial of six
of his sixteen unsuccessful claims, while the state cross-
appeals the grant of the writ.

For the reasons discussed below, we AFFIRM the grant
of a writ of habeas corpus.

3a

I. BACKGROUND
A. Factual Background

Because this case turns not on factual disputes but on
issues of law, we present the following account of the facts
from the Ohio Supreme Court’s decision:

During the fall of 1989, . . . Joseph, began dating
Cara M. Wireman. They began to date steadily until
sometime in February 1990. Cara decided to end the
relationship because she did not like the way [Joseph]
treated her and she attended her senior prom with
someone else. In April, Cara started dating the victim,
Ryan Young, a student at the same high school. Ryan
and jJoseph] knew each other from playing together
on the school football team.

Cara testified that [Joseph] was jealous of Ryan’s
relationship with her. [Joseph] wanted her to stop
seeing Ryan so they could renew their relationship.
This was evidenced by several letters [Joseph] wrote
to Cara indicating his jealousy and desire to continue
dating Cara. In one letter, he indicated he had been
secretly watching Cara and Ryan together for three
hours. Cara knew that martial arts played a big part in
[Joseph’s] life and she had previously seen him with
_guns and knives.

On Monday, June 25, 1990, the day prior to the
kidnapping, Cara and Ryan observed [Joseph] driving
around in the area where Cara and Ryan both lived.
Cara indicated she did not normally see [Joseph]
driving in this area.

On Tuesday, June 26, 1990, Ryan asked his
mother if he could go to Cara’s house, and he left

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around seven o’clock that evening driving his father’s
1981 Oldsmobile. Ryan’s mother received a
telephone call from Ryan about 10:30 p.m. that
evening and, during that conversation, she told him he
could stay and finish watching the movie and then
come straight home.

Cara’s next-door neighbor, Rose Fetter, was
outside walking her dog at about 11:15 p.m. that
night, when she observed a clean white car driving
slowly down Thayer Road. There were two occupants
in the car. Fetter indicated she first saw the car being
driven north up Thayer Road. About ten minutes later
she observed the car heading south on Thayer Road.
The car pulled into a dirt driveway leading to property
owned by a local kennel club and parked for a few
minutes. Just prior to Fetter’s going into her home she
observed the car back out of the driveway and head
north for a second time. Fetter testified she and her
husband took care of the property for the kennel club
and that she mowed around the driveway earlier in the
day and did not observe any tire tracks at that time.
However, the next morning she noticed there were
tire tracks in the driveway.

Ryan, Cara, and Cara’s friend, Michelle Rumer,
were at the same time watching the movie at Cara’s
house. The movie ended at approximately 11:30 p.m.,
at which time Michelle left to go home. Ryan stayed
about fifteen or twenty minutes after Michelle left.
Ryan and Cara walked out of Cara’s house and into
the driveway. As Ryan got into the car, Cara heard
Ryan remark, “That looks like the White Cutlass that
[Joseph] drives.” Cara responded, “I doubt that. He
wouldn’t be out here.” Ryan said, “I'm pretty sure that
was him.”

Sa

Ryan was wearing a baseball hat turned
backwards on his head that night. Cara saw Ryan
back out onto Thayer Road into a position that would
permit him to drive north on Thayer. Just as Ryan
backed onto the roadway, she saw the dome light in
his car illuminate and heard a voice when the dome
light came on. Cara also saw Ryan’s head turn toward
the passenger side door.

Cara went back into the house and watched
television for about fifteen minutes. She decided to go
to bed, so she went to shut the front door and saw the
tail end of a white car drive by slowly heading south
on Thayer Road. She saw the tai! lights on the car and
heard the brakes squeak. The subject car repeatedly
turned around after passing Cara’s residence and
passed in front of her house approximately ten to
twelve times. Cara testified the car matched the
description of the car belonging to Bill Forest, a
friend of [Joseph]. Cara testified [Joseph] and Jose
Bulerin, [Joseph’s] friend and roommate, often
borrowed Forest’s car. Cara became upset and called
Michelle concerning the car that had passed in front
of her house. At about 12:35 a.m., Cara called the
residence shared by [Joseph] and Bulerin. She spoke
with [Joseph’s] cousin, April Joseph, who testified
neither [Joseph] nor Bulerin was home to answer the
call. Cara again called Michelle and talked for a while
before calling [Joseph’s] residence a second time at
1:00 a.m. [Joseph] and Bulerin still had not returned
home.

Cara went to sleep and was awakened by a phone
call from Ryan’s mother, Sharon Young, at
approximately 4:00 a.m. that morning. At about that
time, Ryan’s father, Rick Young, awoke and
discovered that neither his son nor the car Ryan had
been driving was home. The Youngs drove down

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Thayer Road toward Cara’s house in search of their
son. They found the 1981 Oldsmobile Cutlass Ryan
had been driving abandoned just north of the bridge
on Thayer Road. Rick entered the car and nothing
apparently was out of place. The keys were still in the
ignition and the car was still in gear. There were no
indications of a robbery, as Ryan’s wallet and money
were, respectively, left on the seat and console tray of
the car. A wet spot and char marks were found on the
passenger seat of the car. The seat had not been wet
or dirty the day before.

Inspector William Dailey took a material sample
of a burnt log located across the road opposite from
Cara’s house on the morning of June 27, 1990. The
inspector observed that the vegetation there was
trampled down so that it led him to believe that
someone may have been sitting in that area. The
vegetation still had its color and the breaks in the
leaves appeared to be fresh. He also took a sample of
the blackened stain area on the front seat of Ryan’s
car for purposes of comparison with the burned log.
Chemical analysis performed later revealed that the
samples were consistent with one another.

The sheriff's department was notified and a search
began. After talking with Cara, Deputy Gene King of
the Allen County Sheriff's Office proceeded to
[Joseph’s] residence to question him concerning
Ryan’s disappearance. King arrived at [Joseph’s]
residence at approximately 5:10 a.m. on the moming
Ryan was discovered missing and observed a white
Cutlass in the driveway. King testified that the hood
and radiator of the car were warm to the touch. There
was also a dirty hand print on the trunk lid of the
vehicle.

7a

King spoke with [Joseph] and Bulerin. [Joseph]
was hesitant to respond to questioning, as he
persistently stared at the ground and his answers were
invariably inaudible. The deputy testified that in spite
of the early morning hour, [Joseph] did not appear to
have been asleep. The deputy also noticed fresh
blisters on [Joseph’s] right hand.

[Joseph] was questioned both later that morning
and about a week afterwards by law enforcement
officers. [Joseph] disclaimed any knowledge of
Ryan’s disappearance. [Joseph] told the sheriff's
detectives that on the day of the disappearance he
reported to work at Frank’s Car Wash. He then left
with Forest to go to work at Indian Lake in Logan
County. Forest testified that they had been building a
deck in order to install a hot tub adjacent to a house.
[Joseph], Bulerin, and Forest were using Visqueen to
cover up the deck to protect against the rain.

[Joseph] told detectives that the trio worked until
about 6:30 p.m. before starting back to Lima to attend
karate class. According to Forest, the karate class was
taught by Bulerin with [Joseph] helping out as a co-
instructor. [Joseph] and Bulerin then left karate class
in Forest’s car, the white Cutlass. Forest testified he
left class with his girlfriend and did not see either
[Joseph] or Bulerin again that night. [Joseph] and
Bulerin went home, got cleaned up, and then left to
get something to eat. [Joseph] stated that, afterwards,
the pair drove around in Forest’s car for several hours
before returning home and going to bed at
approximately 2:30 a.m. [Joseph] also stated that the
brakes on Forest’s car did squeak on that night.

Although Forest’s car had new tires on it, Bulerin
took Forest’s car and changed the tires the day
following Ryan’s disappearance. Three of the tires

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that had been on Forest’s car the night of Ryan’s
abduction were recovered by Detective Sergeant
James Ketchum, who testified the tread pattern on one
of the tires was similar to the tire prints found in the
driveway to the kennel club located on Thayer Road.

Forest had kept a knife clipped to the sun visor in
his car that was identical to another knife owned by a
friend of his. The knife of Forest’s friend was
subsequently turned over to Lieutenant Van Horn by
Forest for the investigation. Forest’s knife had been in
Forest’s automobile on June 26, 1990; however, it
had not been seen since. Forest testified that [Joseph]
and Bulerin had used his car, had access to it, and
traveled in it together frequently. [Joseph] and
Bulerin also kept articles in his car, and he had
observed a piece of material described as plastic,
vinyl, or Visqueen and a shovel in his trunk. Forest
had observed the same shovel before at [Joseph’s]
house. Forest also testified that he had watched a lot
of movies with [Joseph] and Bulerin, many of which
dealt with the martial arts. He also knew that [Joseph]
had a black mask.

Monte Stinebuck worked at Frank’s Auto Wash
with [Joseph], Forest, and Bulerin. He testified that he
saw [Joseph] and Bulerin on Thursday, June 28, 1990,
and it was rainy that day. A discussion ensued
regarding hauling some trash from the car wash and
taking it to Joseph’s Sand and Gravel Pit. They had
never taken trash there before and the truck was
loaded a quarter full.

Throughout the week following Ryan’s
disappearance, an extensive search was conducted.
On July 4, 1990, the Allen County Sheriff's
Department acted upon the information provided by
Stinebuck and instituted a search at Joseph’s Sand

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and Gravel Pit located in Auglaize County and owned
by Joseph’s grandparents. Mary Joseph, [Joseph’s]
grandmother, testified that she owned the sand and
gravel pit and that [Joseph] was familiar with it, as he
had spent a lot of time there growing up.

Ryan’s body was discovered in a shallow grave.
The body was wrapped in Visqueen, the jagged edge
of which was matched positively with Visqueen
recovered from the job site at Indian Lake where
[Joseph] had been working. Under the body, a black
ninja mask was recovered. An autopsy revealed that
Ryan had superficial lacerations in the area of the
throat. Further, Ryan had been stabbed two times in
the back — one to the right flank and one at the base
of the skull.

State v. Joseph, 653 N.E.2d 285, 287-90 (Ohio 1995), cert.
denied, 516 U.S. 1178 (1996).

B. Procedural Background

Joseph and Bulerin were jointly indicted for “purposely
caus[ing] the death of another, to wit: Ryan R. Young, while
committing or while fleeing immediately after committing
kidnapping,” 3 Joint Appendix (“J.A.”) at 962 (Indictment),
which is a type of aggravated murder. See OHIO REV. CODE §
2903.01(B) (1987). The indictment contained an incorrect
version of the capital specification of being the principal
offender in the commission of the aggravated murder. See id.
§ 2929.04(A)(7). (Much more on this error below.) Joseph
was tried alone before a jury,’ which found him guilty of

' Bulerin was tried separately before a three-judge panel, which convicted
him of both the aggravated murder and the capital specification. The
panel found that the aggravating circumstances did not outweigh the
mitigating factors, so Bulerin was sentenced to life imprisonment. State v.
Bulerin, No. 1-91-24, 1992 WL 136182, at *1 (Ohio Ct. App. June 11,
1992) (unpublished opinion).

10a

both the aggravated murder and the specification. In the
penalty phase, the jury found that the aggravating
circumstances outweighed the mitigating factors and
recommended a sentence of death. After conducting an
independent review, see id. § 2929.03(D)(3), the trial court
accepted this recommendation and imposed a death sentence.
Joseph’s conviction and sentence were affirmed by both the
Ohio Court of Appeals, State v. Joseph (Joseph I), No. 1-91-
11, 1993 WL 531858 (Ohio Ct. App. Dec. 23, 1993)
(unpublished opinion), and the Ohio Supreme Court, State v.
Joseph (Joseph II), 653 N.E.2d 285 (Ohio 1995), and the
United States Supreme Court denied certiorari, Joseph v.
Ohio, 516 U.S. 1178 (1996). The Ohio courts denied
postconviction relief. State v. Joseph, No. 1-96-90, 1997 WL
404252 (Ohio Ct. App. July 17, 1997) (unpublished opinion)
(affirming denial of relief), appeal denied, 686 N.E.2d 276
(Ohio 1997) (table decision).

Asserting twenty grounds for relief, Joseph petitioned the
district court for a writ of habeas corpus. in a thorough 218-
page opinion and order, the district court determined four
claims to be meritorious: (1) Joseph was denied due process
because the capital specification included in the indictment
was incorrect; (2) Joseph was denied due process because the
jury instructions regarding the capital specification were
incorrect; (3) Joseph was denied the effective assistance of
counsel because his trial attorney failed to object to the
flawed indictment and jury instructions and otherwise
misunderstood the capital specification; and (4) Joseph’s
death sentence was imposed in the absence of a valid capital
specification, in violation of the Eighth Amendment’s
narrowing requirement. Based on these claims, the district
court issued the following order:

[T]his Court issues a writ of habeas corpus ordering
that Mr. Joseph’s death sentence be set aside and that
he be re-sentenced according to the statutory
guidelines for aggravated murder in the absence of a

lla

capital specification, as set forth in O.R.C. §
2929.03(A), which mandates a sentence of life
imprisonment with parole eligibility after serving
twenty years of imprisonment. Unless Mr. Joseph is
resentenced within 180 days from the effective date
of this Order, the respondent shall release him from
custody. On this Court’s own motion, execution of
this Order and hence, its effective date, is stayed
pending appeal by the parties.

2 J.A. at 831 (Dist. Ct. Memo. of Op. & Order at 218). The
district court rejected the remaining sixteen grounds for
relief, but it issued a certificate of appealability as to all
issues. Joseph now appeals the denial of six of the sixteen
claims rejected by the district court: two of these attack the
sufficiency of the evidence of the capital specification, while
the remaining four challenge the aggravated murder
conviction. The state cross-appeals the issuance of the writ.

Il. STANDARD OF REVIEW

We review de novo a district court’s decision to grant or
deny a petition for a writ of habeas corpus. Burton v. Renico,
391 F.3d 764, 770 (6th Cir. 2004), cert. denied, — U.S. —,
126 S. Ct. 353 (2005). Because Joseph filed his habeas
petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), its
rovisions apply to his case. Woodford v. Garceau, 538 US.
202, 210 (2003); Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Under AEDPA, a federal court may grant a writ of
habeas corpus with respect to a “claim that was adjudicated
on the merits in State court proceedings” if the state court’s
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. §

12a

2254(d)(1).” A state-court decision is contrary to clearly
established federal law “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme
Court’s] cases” or “if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [that] precedent.” Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A state-court decision is an unreasonable
application of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case,” id. at 407-08, or if
it “either unreasonably extends or unreasonably refuses to
extend a legal principle from Supreme Court precedent to a
new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th
Cir. 2000), cert. denied, 532 U.S. 989 (2001); see also
Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (plurality
opinion).

As the text of the statute makes clear, however, §
2254(d)(1)’s limits on habeas relief apply only if there is a
state-court “adjudicat[ion] on the merits” of a given claim.
For reasons we discuss at greater length in Part IV.C,
Joseph’s Brady claim was not “adjudicated on the merits in
State court proceedings” and therefore is not governed by the
strictures of § 2254(d)(1). Joseph’s remaining claims were,
however, “adjudicated on the merits” by the state courts, so §
2254(d)(1)’s limits apply. For each of these claims, the
decision we review is that of “the last state court to issue a
reasoned opinion on the issue.” Payne v. Bell, 418 F.3d 644,
660 (6th Cir. 2005), cert. denied, — U.S. —, 2006 WL
732193 (U.S. June 26, 2006) (No.. 05-9829); see also, e.g.,
Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (“{A]
federal court reviewing a habeas petition should examine the

? A habeas petition may also be granted if the state court’s decision “was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C. §
2254(d)(2), but this avenue of relief is not relevant to the instant case.

13a

decision of the last state court to rule on the merits of the
issue.”), cert. denied, 538 U.S. 1057 (2003); Franklin v.
Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) (“This
court . . . must look to the last reasoned decision of the state
court as the basis of the state court’s judgment.”); Barrientes
v. Johnson, 221 F.3d 741, 779 (Sth Cir. 2000) (“When the
last state adjudication-of the claim is silent or ambiguous, the
federal court should look through to the last clear state
decision on the matter.” (internal quotation marks omitted)),
cert. dismissed, 531 U.S. 1134 (2001). For Joseph’s
indictment, jury-instruction, and sufficiency-of-the-evidence
claims, the last reasoned decision is that of the Ohio Supreme
Court. With respect to the Miranda, pretrial-publicity,
prosecutorial-misconduct, ineffective-assistance, and Eighth
Amendment claims, which the Ohio Supreme Court declined
to address, the last reasoned decision is that of the Ohio
Court of Appeals.

lif. CLAIMS RELATING TO THE CAPITAL
SPECIFICATION

Joseph attacks his death sentence on several grounds,
arguing that the state violated his constitutional rights under
the Due Process Clause (in three different ways), the Sixth
Amendment, and the Eighth Amendment. Yet the facts
underlying these claims are really just variations on the same
theme: every participant in the trial — the prosecution,
Joseph’s counsel, the trial judge, and the jurors — operated
under a mistaken view of the single capital specification with
which Joseph was charged. Thus, before addressing Joseph’s
individual claims, we present the following brief summary of
the specification and how it was misconstrued during the
state proceedings.

Ohio law makes a defendant convicted of aggravated
murder eligible for the death penalty only if one or more
specifications is included in the indictment and proved

14a

beyond a reasonable doubt.’ Onlo REV. CODE ANN. §
2929.04(A) (1987); see also id. § 2929.03(A). The statutory
text of the capital specification at issue in this case provides
in relevant part:

The offense was committed while the offender was
committing, attempting to commit, or fleeing
immediately after committing or attempting to
commit kidnapping, rape, aggravated arson,
aggravated robbery, or aggravated burglary, and
either the offender was the principal offender in the
commission of the_aggravated murder or, if not the
principal offender, committed the aggravated murder
with prior calculation and design.

Id. § 2929.04(A)(7) (italics and underline added). As will be
discussed further below, the Ohio Supreme Court has
interpreted the element of being “the principal offender in the
commission of the aggravated murder” to mean that the
defendant “actually killed” the victim.

Joseph’s indictment included the following
specification:

. The specification(s) must be made “pursuant to section 2941.14.” OHIO
REV. CODE ANN. § 2929.04(A) (1987). Section 2941.14 provides in
relevant part:

A specification to an indictment . . . charging aggravated murder
shall be stated at the end of the body of the indictment . . . , and
may be in substantially the following form:

“Specification .. . . The Grand Jurors further find and specify
that (set forth the applicable aggravating circumstance listed in
divisions (A)(1) to (8) of section 2929.04 of the Revised Code.
The aggravating circumstance may be stated in the words of the
subdivision in which it appears, or in words sufficient to give the
accused notice of the same).”

Id. § 2941.14(C).

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The Grand Jurors further find and specify that the
offense was committed while the offenders were
committing, attempting to commit, or fleeing
immediately after committing or attempting to
commit kidnapping, and the offenders were the
principal offenders in the commission of the

kidnapping ....

3 J.A. at 962 (Indictment) (italics and underline added).* To
be explicit, the indictment substituted the word “kidnapping”
in place of the word “aggravated murder” in the “principal
offender” phrase. Thus, although the statute requires that the
defendant be the principal offender in the commission of the
aggravated murder, Joseph’s indictment alleged that Joseph
was the principal offender in the commission of the
kidnapping. In other words, the indictment’s version of the
capital specification did not include the critical requirement
that Joseph “actually killed” the victim. Joseph’s counsel did
not object to the error in the indictment.

During the guilt-phase trial, counsel for both the state and
Joseph adopted the indictment’s mistaken formulation of the
specification. In its opening statement, the state said the
following:

This case is an aggravated murder case with a
specification of kidnapping. That makes it a capital
case. The State of Ohio needs to prove to you folks
that Jose Bulerin and Richard Joseph jointly
purposely caused the death of another, to wit: Ryan R.
Young, while committing or while fleeing
immediately after committing kidnapping. The State
of Ohio needs to prove these elements beyond a
reasonable doubt.

* The indictment did not allege the “prior calculation and design” prong
of the statutory specification.

l6a

8 J.A. at 3107-08 (Trial Tr. at 1201-02) (emphases added).
Thus, in explaining the specification that it “need[ed] to
prove” in order to “make[] it a capital case,” the state
mentioned the kidnapping element but omitted the
requirement that Joseph be the principal offender in the
commission of the aggravated murder. The state referred to
“a specification of kidnapping” again in its rebuttal. 11 J.A.
at 3980 (Trial Tr. at 2049) (emphasis added).

The state’s failure to understand the specification was
perhaps most evident in the following part of its closing

argument:

Another thing the State of Ohio doesn’t know and
can’t tell you, and it doesn’t make any difference as
long as you find the two people, Jose Bulerin and
Richard E. Joseph, jointly committed these crimes, or
this crime, the law is very clear in Ohio that if one
person is an aider and abetter, no matter what part he
has in it, if he plays a part in the commission of that
crime then he’s as guilty as the other guy. The State
of Ohio can’t tell you. I wish I could. I wish I could
tell you exactly what happened. I don’t know who
struck the death blow. But, I believe the evidence is
very clear that it was one of the two that’s charged
here. If you find one of them did it, or the other one
did it, they’re both just as guilty as if each of them
had their hands around the hilt of that knife when it
was stuck in Ryan Young.

11 J.A. at 3907 (Trial Tr. at 1976). The state made the same
point in its rebuttal: “We don’t have to show that this
defendant was the one who administered the fatal blows. He
was with him. We don’t know which one did it. We don’t
have to prove that.” 11 J.A. at 3973 (Trial Tr. at 2042). In
other words, the state conceded that it could not prove that
Joseph actually killed Young, but it also erroneously told the
jury that this shortcoming did not matter. Joseph’s counsel

17a

did not object to any of these statements by the state. In fact,
Joseph’s counsel made the same mistake in his own opening
statement and closing argument, referring to the
“specification of kidnapping” without mentioning the
principal-offender-in-the-aggravated-murder (i.e., actual-
killer) requirement. 9 J.A. at 3128, 3130, 3963 (Trial Tr. at
1222, 1224, 2032) (emphasis added).

The incorrect specification also found its way into the
trial court’s instructions to the jury at the close of the guilt
phase. The court incorrectly described the specification as
requiring that Joseph be “the principal offender[] in the
commission of the kidnapping.” 11 J.A. at 3998 (Trial Tr. at
2067) (emphasis added). On several other occasions, the
court did not explicitly recite the incorrect specification, but
it referred to the specification in the indictment, which was,
of course, independently incorrect as discussed above. 11
J.A. at 3996-97, 4003, 4004 (Trial Tr. at 2065-66, 2072,
2073). The court also once read from the verdict form, which
included a correct version of the specification. 11 J.A. at
4005-06 (Trial Tr. at 2074-75). At no point did the court
instruct the jury that the principal-offender provision of the
specification requires that the defendant “actually killed” the
victim.” Joseph’s counsel did not object to the incorrect
aspects of the jury instructions.

The penalty phase also saw numerous instances of the
erroneous capital specification. The trial court began the
mitigation hearing by reminding the jury that it had found

* Instead, the court simply said that “[a] principal offender or offenders is
defined as that person or persons primarily responsible for the alleged
illegal conduct involved.” 11 J.A. at 3998 (Trial Tr. at 2067). This
instruction obviously does not clarify that the relevant “illegal conduct” is
the murder, not the kidnapping. Thus, the instruction is even vaguer than
one that the Ohio Supreme Court has held to be insufficient. See State v.
Skatzes, 819 N.E.2d 215, 240-41 (Ohio 2004) (deeming erroneous a
principal-offender instruction that the defendant “ha[d] hands-on
involvement in a homicide” (emphasis added)).

18a

Joseph guilty of the specification and instructing them that
this specification was the only aggravating circumstance. In
doing so, the court read the incorrect version of the
specification, using the phrase “principal offender[] in the
commission of the kidnapping.” 11 J.A. at 4069 (Mitigation
Tr. at 26) (emphasis added). The state equated the
aggravating circumstance with kidnapping in both its closing
and rebuttal arguments.° 11 J.A. at 4333 (Mitigation Tr. at
282); 12 J.A. at 4366, 4371 (Mitigation Tr. at 315, 320). In
its instructions to the jury at the close of the penalty phase,
the court read the correct version of the specification. 12 J.A.
at 4377 (Mitigation Tr. at 326). However, the court also
referred to the specification in the indictment, which was, of
course, incorrect. 12 J.A. at 4375 (Mitigation Tr. at 324).
Moreover, throughout its instructions, the court consistently
used some version of the phrase “the aggravating
circumstance which the defendant was found guilty of
committing” (during the guilt phase). 12 J.A. at 4371-72,
4373, 4374, 4377, 4380 (Mitigation Tr. at 320-21, 322, 323,
326, 329). This phrase was also used in the verdict forms,
which the court read to the jury. 12 J.A. at 4381-82
(Mitigation Tr. at 330-31). Thus, the jury instructions and the
verdict form implicitly incorporated the erroneous version of
the specification that had been repeatedly invoked during the
guilt phase. Joseph’s counsel did not object to either the
court’s or the state’s statements. Instead, Joseph’s counsel
himself referred to the aggravating circumstance as
kidnapping — three times during his opening statement, 11

° In its closing argument, the state used the correct phrase, “principal
offender in the commission of the aggravated murder.” 11 J.A. at 4333
(Mitigation Tr. at 282). However, immediately before using this
language, the state referred to the “aggravating circumstance . . set out in
the indictment,” and immediately afterward it said, “[y]ou need in your
deliberations to think about the evidence that you heard involving the
kidnapping and weigh that with the mitigation evidence that you heard.”
Id. Thus, we count the overall statement as another erroneous recitation
of the specification/aggravating circumstance.

19a

J.A. at 4073-74 (Mitigation Tr. at 30-31), and twice during
his closing argument, 12 J.A. at 4353-54 (Mitigation Tr. at
302-03).

Finally, during the trial court’s independent review of the
jury’s death-penalty recommendation, see OHIO REV. CODE
ANN. § 2929.03(D)(3) (1987), both Joseph’s counsel and the
court referred to the aggravating circumstance of
kidnapping.’ 12 J.A. at 4411, 4412, 4414, 4416 (Mitigation
Tr. at 360, 361, 363, 365).

A. Sufficiency of the Evidence

We first address Joseph’s sufficiency-of-the-evidence
claim. See, e.g., United States v. Aarons, 718 F.2d 188, 189
n.1 (6th Cir. 1983) (“Where the sufficiency of the evidence is
properly before us, we consider that issue first because it is
determinative of whether the appellant may be retried.”). In a
due-process challenge to the sufficiency of the evidence,
clearly established Supreme Court precedent provides that
“the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979).

Joseph argues that the state court unreasonably applied
Jackson in that there was no evidence of the critical element
of the capital specification: being the principal offender in
the commission of the aggravated murder. In the habeas
context, “[t]he Jackson standard must be applied ‘with
explicit reference to the substantive elements of the criminal -
offense as defined by state law.’” Brown v. Palmer, 441 F.3d

” Without elaboration, the state simply asked the court to follow the
jury’s recommendation. 12 J.A. at 4411 (Mitigation Tr. at 360). Thus, it
did not have the opportunity to repeat the erroneous version of the
specification/aggravating circumstance.

20a

347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324
n.16). Thus, we turn to the Ohio courts’ definition of the
capital specification at issue here.

As we have already noted, the correct version of the
single capital specification with which Joseph was charged
requires the defendant to be “the principal offender in the
commission of the aggravated murder.” OHIO REV. CODE
ANN. § 2929.04(A)(7) (1987). The Ohio Supreme Court has
consistently interpreted this element to require the defendant
to be “the actual killer.” State v. Taylor, 612 N.E.2d 316, 325
(Ohio 1993); State v. Wiles, 571 N.E.2d 97, 122 (Ohio 1991),
cert. denied, 506 U.S. 832 (1992); State v. Penix, 513 N.E.2d
744, 746 (Ohio 1987); see also Mitchell v.Esparza, 540 U.S.
12, 18 (2003) (acknowledging this interpretation). Other
formulations of “actual killer” are that the defendant
“personally performed every act constituting the offense of
aggravated murder,” State v. Sneed, 584 N.E.2d 1160, 1168
(Ohio 1992), cert. denied, 507 U.S. 983 (1993); see also
State v. Goodwin, 703 N.E.2d 1251, 1264-65 (Ohio)
(approving a similar instruction), cert. denied, 528 U.S. 846
(1999); State v. Getsy, 702 N.E.2d 866, 884 (Ohio 1998)
(same), cert. denied, 527 U.S. 1042 (1999), or “directly
caused the death,” State v. Stallings, 731 N.E.2d 159, 173
(Ohio 2000), cert. denied, 534 U.S. 836 (2001). However, it
is not enough that the defendant simply “ha[d] hands-on
involvement in a homicide.” State v. Skatzes, 819 N.E.2d
215, 240-41 (Ohio 2004); see also State v. Skatzes, No.
15848, 2003 WL 24196406, at *40 (Ohio Ct. App. Jan. 31,
2003) (unpublished opinion) (explaining that it is not enough
for the defendant to be “an escort or a mere provider of a
weapon.”).

There have been many cases where the evidence has been
sufficient to show that the defendant was the actual killer.
When the victim died of gunshot wounds, there was evidence
that the defendant fired the shots. See, e.g., State v. Jackson,
839 N.E.2d 362, 370, 377 (Ohio 2006); State v. Noling, 781

2ia

N.E.2d 88, 96-97, 105 (Ohio 2002), cert. denied, 539 U.S.
907 (2003); State v. Gross, 776 N.E.2d 1061, 1073, 1093
(Ohio 2002), cert. denied, 538 U.S. 1037 (2003); State v.
Yarbrough, 767 N.E.2d 216, 241 (Ohio), cert. denied, 537
U.S. 1023 (2002); Stallings, 731 N.E.2d at 173; State v.
Chinn, 709 N.E.2d 1166, 1177 (Ohio 1999), cert. denied, 528
U.S. 1120 (2000). When the victim died of head trauma,
there was evidence that the defendant struck the blows. See
Skatzes, 819 N.E.2d at 231-32, 241. When the victim died of
knife wounds, there was evidence that the defendant stabbed
the victim. See State v. Stojetz, 705 N.E.2d 329, 337 (Ohio),
cert. denied, 528 U.S. 999 (1999). Thus, the Ohio Supreme
Court has consistently interpreted the principaloffender/
actual-killer element to mean that the' defendant personally
inflicted the death blow(s).*

In rejecting Joseph’s Jackson claim, the Ohio Supreme
Court cited the following evidence. Joseph IT, 653 N.E.2d at
293. First, there was evidence of motive, as Joseph was
jealous of the relationship between Wireman and Young.
Second, Joseph admitted that he and Bulerin were out driving
Forest’s white Cutlass on the night of the murder, and a
matching vehicle was seen near Wireman’s house. Third,
Young’s body was found buried on Joseph’s grandparents’
property, wrapped in material (Visqueen) available to Joseph,
near a mask like one owned by Joseph. Fourth, “[Young]
suffered two stab wounds, either of which could have been
fatal, and the knife always kept in the car was missing the
morning of the disappearance.” The state points to no
additional evidence in its briefs before this court, and there is
none apparent in the record.

® This proposition is consistent with the fact that there may be multiple
principal offenders corresponding to multiple fatal blows. See Stojetz, 705
N.E.2d at 337; State v. Keene, 693 N.E.2d 246, 256 (Ohio), cert. denied,
525 U.S. 936 (1998).

22a

It is immediately apparent, however, that none of this
evidence shows that Joseph personally inflicted either stab
wound. This fact does not present an obstacle to conviction
in a case where the defendant was the only person either
present when the victim was murdered or otherwise involved
in the crime, the logic being that he is the only person who
could have actually committed the murder. But when the
defendant and a coconspirator are present at the time and
place of the murder, there must be evidence showing that the
defendant struck the fatal blow(s). See State v. Cunningham,
824 N.E.2d 504, 512, 531 (Ohio 2004), cert. denied, — U.S.

—, 126 S. Ct. 110 (2005); Taylor, 612 N.E.2d at 325.

All indications are that Joseph was neither alone with
Young on the night of the murder nor the only person
involved in the crime; Bulerin was both present and involved
in other ways. Indeed, the very evidence cited by the Ohio
Supreme Court t¢ implicate Joseph also implicates Bulerin.
The evidence that placed Joseph at the scene (witnesses saw
Forest’s car in front of Wireman’s home) also put Bulerin at
the scene, as the two men were driving around together in
Forest’s car the night of Young’s disappearance and murder.”
Joseph II, 653 N.E.2d at 289. The fact that Young’s body
was wrapped in Visqueen implicates Bulerin as well as
Joseph, as both had access to the material. Jd. at 289. And the
fact that Young’s body was discovered on Joseph’s
grandparents’ property also implicates Bulerin as well as
Joseph, as two days after the murder, both men talked to a
coworker about hauling trash to that property. /d. at 290.
There was other evidence of Bulerin’s involvement, too: both
Joseph and Bulerin often borrowed Forest’s car and kept
items in it, id. at 288, 289, and Bulerin changed the tires of

* As we discuss below in the context of the Brady claim, there was also
evidence that Forest was with Joseph and Bulerin that night. However,
because the state failed to disclose this evidence, it was not before the
jury, so we do not consider it here.

23a

Forest’s car the day after Young’s disappearance even though
they were new, id.

There was also evidence that Joseph and Bulerin, who
shared a residence, id. at 288, were close. As Chief Justice
Moyer demonstrated in dissent, their relationship supplied
Bulerin with ample motive to kill Young:

[T]estimony was presented that the co-defendant
Bulerin . . . was highly involved with martial arts, and
protective of “his kid” (Joseph). Forest confirmed that
Bulerin had indicated that he would “either snap your
neck or put a bullet through your head and throw you
out alongside the road” if you ever “screwed with or
messed with” him or Joseph. Joseph’s mother
testified that, on one occasion when her son was ill,
Bulerin told her not to “waste [her] time” in
attempting to take Joseph home with her because she
“wasn't going to get [her] son.” She testified that
Bulerin had threatened to break into her home and
take something, or kill her dogs. At Joseph’s
mitigation hearing, Bulerin’s ex-wife testified that,
while she could not believe Joseph actually killed
Young, she could believe that behavior of Bulerin.

Id. at 301 (Moyer, C.J., dissenting) (second and third
alterations in original).'® In light of all this evidence
connecting both Joseph and Bulerin to the murder, it is not
surprising that the two men were jointly indicted. /d. at 290.
Indeed, the state’s entire theory of the case was that the two
acted together.

Of course, the evidence of Bulerin’s presence at the scene
and other involvement does not rule out the possibility that
Joseph was the actual killer. It means, however, that actual

” Acting Justice Deshler and Justice (now U.S. Circuit Judge) Cook
agreed with Chief Justice Moyer’s sufficiency analysis, making the vote
4-3 on this issue.

24a

killing cannot be attributed to Joseph simply because he was
involved and present at the scene. See Cunningham, 824
N.E.2d at 512, 531; Taylor, 612 N.E.2d at 325. Because
either of the two knife wounds in Young may have been
fatal, the state had to prove that Joseph personally inflicted at
least one of the wounds, but it offered no evidence of this
whatsoever. In fact, the state conceded this very point during
its closing argument: “The State of Ohio can’t tell you. I
wish I could. I wish I could tell you exactly what happened. I
don’t know who struck the death blow.” 11 J.A. at 3907
(Trial Tr. at 1976). Thus, the evidence showed at most that
Joseph “ha[d] hands-on involvement in a homicide,” Skatzes,
819 N.E.2d 215, 240-41, which is insufficient to prove that
he was the actual killer.

In light of the clear line of precedent requiring proof that
Joseph was the actual killer, the equally clear precedent that
the actual-killer element requires proof that the defendant
personally inflicted the death blows in a situation where (as
here) the defendant and a coconspirator are both present at
the scene, and the total absence of such proof (accompanied
by the state’s concession that it could not offer such proof, to
boot), we conclude that the Ohio Supreme Court’s decision
was an unreasonable application of the due-process standard
of Jackson v. Virginia."

B. Eighth Amendment Narrowing Requirement

Joseph also claims that his death sentence violates the
Eighth Amendment, which forbids the infliction of “cruel
and unusual punishments.” U.S. CONst. amend. VIII.
Specifically, Joseph contends that because he was not

'! In support of his Jackson claim, Joseph also argues that there was
insufficient evidence of another element of the capital specification: that
the aggravated murder occurred in relation to a kidnapping. Because we
have already concluded that there was insufficient evidence of the
principal-offender element of the capital specification, we need not
address the sufficiency of the kidnapping element.

25a

properly convicted pursuant to a correct capital specification,
his death sentence fails to satisfy the Eighth Amendment’s
narrowing requirement. The Supreme Court has summarized
this requirement as follows:

To pass constitutional muster, a capital sentencing
scheme must “genuinely narrow the class of persons
eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence on
the defendant compared to others found guilty of
murder.” Zant v. Stephens, 462 U.S. 862, 877 (1983);
cf. Gregg v. Georgia, 428 U.S. 153 (1976). Under the
capital sentencing laws of most States, the jury is
required during the sentencing phase to find at least
one aggravating circumstance before it may impose
death. Jd, at 162-164 (reviewing Georgia sentencing
scheme); Proffitt v. Florida, 428 U.S. 242, 247-250
(1976) (reviewing Florida sentencing scheme). By
doing so, the jury narrows the class of persons
eligible for the death penalty according to an
objective legislative definition. Zant, supra, 462 US.,
at 878 (“[S}tatutory aggravating circumstances play a
constitutionally necessary function at the stage of
legislative definition: they circumscribe the class of
persons eligible for the death penalty”).

Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). The Ohio
Court of Appeals, which was the last state court to issue a
reasoned opinion on the issue, rejected Joseph’s claim
because it concluded that the jury had properly found Joseph
guilty of the principal-offender specification. Joseph I, 1993
WL 531858, at *23-*24.

We recently granted habeas relief on the basis of a
violation of the Eighth Amendment narrowing requirement.
In Esparza v. Mitchell (Esparza I), 310 F.3d 414 (6th Cir.
2002), we reviewed an Ohio conviction in which a death
sentence was imposed even though the indictment did not

26a

charge a capital specification, the trial court did not instruct
the jury on a capital specification, and the jury did not return
a verdict on a capital specification. Jd. at 416. Instead, “the
state courts, on their own initiative, after the jury trial and
verdict, found the petitioner Esparza guilty of the
[specification] that made him eligible for the death penalty,
i.ec., being the ‘principal offender’ in committing an
aggravated murder while committing a robbery.”!? Jd. at 417.
We concluded that imposing a death sentence even though
“the jury never found the statutorily required [capital
specification] . . . . is unquestionably a violation of the Eighth
Amendment.” Jd. at 420. We further held that the Eighth
Amendment error was not subject to harmless-error analysis.
Id. at 421-22.

The thrust of Joseph’s argument is that his case is
materially indistinguishable from Esparza J. We agree. Given
the pervasive misunderstanding of the capital specification at
Joseph’s trial, it is clear that Joseph’s death sentence was
imposed pursuant to a jury verdict that he was “the principal
offender in the commission of the kidnapping” rather than a
jury verdict that he was “the principal offender in the
commission of the aggravated murder.” In other words,
Joseph’s death sentence was imposed pursuant to a jury
finding of an invented-on-the-fly capital specification that
does not exist in Ohio’s statutory code rather than a jury
finding of the statutory capital specification in OHIO REV.
CopE § 2929.04(A)(7). As in Esparza I, “the jury never
found the statutorily required [capital specification],” so the
imposition of the death penalty “is unquestionably a violation
of the Eighth Amendment.” 310 F.3d at 420.

We recognize, of course, that the Supreme Court reversed
Esparza I. See Mitchell v. Esparza (Esparza II), 540 U.S. 12

'2 Note that this was the same specification — § 2929.04(A)(7) — at
issue in the instant case.

27a

(2003). Yet that reversal was in response to our holding that
the Eighth Amendment violation was not subject to
harmless-error analysis. See Esparza II, 540 U.S. at 16-17.
The Supreme Court did not disturb our conclusion that a
constitutional violation occurred. Thus, we follow Esparza
I’s Eighth Amendment analysis and conclude that the
narrowing requirement was violated here.

We now turn to the harmless-error analysis mandated by
the Supreme Court in Esparza II. The Court’s analysis in that
case is instructive. The Court reasoned that the jury “would
surely have” returned a guilty verdict on a principal-offender
specification because Esparza “was the only defendant
charged in the indictment” and “([t]here was no evidence
presented that anyone other than [Esparza] was involved in
the crime or present at the [scene of the murder].” Esparza II,
540 U.S. at 18. Thus, the state court’s conclusion that the
errors were harmless was not objectively unreasonable under
AEDPA. Id. at 19; accord Biros v. Bagley, 422 F.3d 379, 388
(6th Cir. 2005) (stating in dictum that an Eighth Amendment
violation was harmless because it was undisputed that the
petitioner acted alone), cert. denied, 75 U.S.L.W. 3167 (U.S.
Oct. 2, 2006) (No. 05-11394). Both factors in the Court’s
analysis cut the other way here: another person (Bulerin) was
charged in the indictment, and there was significant evidence
that another person (Bulerin) was involved in the crime and
present at the scene of the murder. Thus, Esparza II itself
strongly supports the conclusion that the Eighth Amendment
error was not harmless in the instant case.

Accordingly, we conclude that the state court
unreasonably applied clearly established federal law in
concluding that Joseph’s sentence satisfied the Eighth
Amendment narrowing requirement.

28a

C. Flawed Indictment, Erroneous Jury Instructions, and
Ineffective Assistance of Counsel

In addition to the Jackson claim already discussed above,
Joseph argues that his due process rights were violated in two
other ways: by being tried pursuant to an indictment and jury
instructions that incorrectly stated the only capital
specification with which he was charged. Joseph did not,
however, object at trial to either the indictment or the jury
instructions. Accordingly, the Ohio Supreme Court deemed
these claims waived and reviewed only for plain error.
Joseph IT, 653 N.E.2d at 291, 294. We recently held in
similar circumstances that a prisoner had procedurally
defaulted his claims. See Biros, 422 F.3d at 386-87. Thus,
Joseph has procedurally defaulted his indictment and jury-
instruction claims, and “federal habeas review of the claims
is barred unless [Joseph] 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).

1. Cause and Prejudice/Ineffective Assistance of
Counsel

We note at the outset that “[s]o confident is the
government of the correctness of its [cause-and-prejudice]
argument that it has not deigned to respond to the merits of
the appeal. This was a tactical error. The government’s
confidence is unwarranted.” Pasha v. Gonzales, 433 F.3d
530, 532 (7th Cir. 2005). For the following reasons, Joseph
has established cause and prejudice to excuse his procedural
default.

Constitutionally “[{i]neffective assistance of counsel . . . is
cause for a procedural default.” Murray v. Carrier, 477 U.S.
478, 488 (1986); see also Edwards v. Carpenter, 529 U.S.
446, 451 (2000) (“Not just any deficiency in counsel’s
performance will do . . . ; the assistance must have been so

29a

ineffective as to violate the Federal Constitution. In other
words, ineffective assistance adequate to establish cause for
the procedural default of some other constitutional claim is
itself an independent constitutional claim.” (citation
omitted)). Joseph argues that his procedural default should be
excused because his trial counsel provided constitutionally
ineffective assistance by failing to object to the flawed
indictment and erroneous jury instructions. Joseph also
claims the ineffective assistance of counsel (“IAC”) as an
independent claim for habeas relief.'? Although Joseph must
satisfy the AEDPA standard with respect to his independent
IAC claim, he need not do so to claim ineffective assistance
for the purpose of establishing cause. See Fischetti v.
Johnson, 384 F.3d 140, 154-55 (3d Cir. 2004). For the
reasons discussed below, Joseph has established his IAC
claim under the AEDPA standard, which necessarily means
that he has also established ineffective assistance for the
purpose of establishing cause.

IAC claims are governed by the test enunciated in the
clearly established Supreme Court precedent of Strickland v.
Washington, 466 U.S. 668 (1984). “First, the defendant must
show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Jd. at 687. Performanee is measured
against “an objective standard of reasonableness,” “under
prevailing professional norms.” Jd. at 688. The second
component of a Strickland claim is a “show[ing] that the
deficient performance prejudiced the defense.” Jd. at 687.
“The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the

'3 It is undisputed that Joseph presented this independent claim to the
Ohio courts. He has therefore satisfied the “general[} require{ment] that a
claim of ineffective assistance be presented to the state courts as an
independent claim before it may be used to establish cause for a
procedural default.” Carrier, 477 U.S. at 489.

30a

result of the proceeding would have been different.” /d. at
694. A reasonable probability is less than a preponderance of
the evidence, as “a defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in
the case.” Jd. at 693. Instead, “[a] reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Jd. at 694.

The Ohio Court of Appeals, which was the last state court
to issue a reasoned opinion on the issue, gave the following
reasons for rejecting the argument that Joseph’s counsel was
ineffective for failing to object to the flawed indictment and
erroneous jury instructions:

The flaw in the specification is very technical in
nature, albeit the effect of this flaw has been an issue
of significant importance to the case. This flaw in the
precise wording of the specification was so subtle that
neither the attorneys for the State nor the trial judge
noticed it. Defense counsel’s failing to notice this
flaw does not rise to the level of deficient
performance.

.. . Simply failing to object to an alleged error is
insufficient to sustain a claim of ineffective assistance
of counsel, unless it is also shown that counsel
violated an essential duty owed the client. The [failure
to object to the jury instructions] do[es] not amount to
deficient conduct resulting in prejudice affecting the
fairness of [Joseph’s] trial.

Joseph I, 1993 WL 531858, at *26.'*

'4 ‘The state court appears to have (briefly) addressed both Strickland
prongs with respect to the failure to object to the jury instructions, but
only the performance prong with respect to the failure to object to the
indictment. Thus, the AEDPA standard applies to these analyses but not
to the Strickland prejudice issue with respect to the failure to object to the

3la

A number of recent cases have emphasized that defense
attorneys have a constitutional duty to conduct adequate
factual investigations. See, e.g., Rompilla v. Beard, 545 U.S.
374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003). Yet it
can hardly be doubted that defense lawyers have a
constitutional obligation to investigate and understand the
law as well. See, e.g., Williams, 529 U.S. at 395 (noting that
counsel “failed to conduct an investigation . . . not because of
any strategic calculation but because they incorrectly thought
that state law barred access to such records.”); Strickland,
466 U.S. at 690 (“[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable . . . .” (emphasis added)); Smith
v. Dretke, 417 F.3d 438, 442-43 (Sth Cir. 2005) (“[Defense
counsel] failed to achieve a rudimentary understanding of the
well-settled law of self-defense in Texas. By doing so, he
neglected the central issue in his client’s case. . . . This
misunderstanding could have been corrected with minimal
legal research.” (footnote omitted)).

Here, the principal-offender specification was the only
capital specification with which Joseph was charged and
therefore was the only reason Joseph faced the death penalty.
Thus, it was obviously the critical issue in the case. Simply
reading the statute would have revealed that the specification
requires the defendant to be the principal offender in the
commission of the aggravated murder, not of the kidnapping.
And minimal case research would have revealed that being
the principal offender in the commission of the aggravated

indictment. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“{Ojur
review is not circumscribed by a state court conclusion with respect to
prejudice, as neither of the state courts below reached this prong of the
Strickland analysis.”); Maples v. Stegall, 340 F.3d 433, 437 (6th Cir.
2003). Nevertheless, because Joseph’s claim succeeds under either de
novo or AEDPA review, for the sake of simplicity we conduct the entire -
analysis under the § 2254(d)(1) standard.

32a

murder means that the defendant must have “actually killed”
the victim. Yet Joseph’s trial counsel failed to grasp either of
these two basic points, as evidenced by his failure to object to
the flawed indictment and erroneous jury instructions. The
complete lack of understanding was further confirmed by
counsel’s own repeated misstatements of the specification.
And it was topped off by his failure to notice that the state
conceded that it could not prove that Joseph actually killed
the victim.

Understanding the elements of the specification that
makes a defendant eligible for the death penalty is perhaps
the most basic aspect of representing a capital defendant. We
think this proposition obvious, but in any event it finds
support in “the standards for capital defense work articulated
by the American Bar Association (ABA) — standards to
which [the Supreme Court] long ha[s] referred as ‘guides to
determining what is reasonable.’” Wiggins, 539 U.S. at 524
(quoting Strickland, 466 U.S. at 688). The ABA Guidelines
provide that “[c]ounsel should conduct independent
investigations relating to the guilt/innocence phase and to the
penalty phase of a capital trial.” ABA GUIDELINES FOR THE
APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH
PENALTY CASES § 11.4.1(A) (1989). Counsel must procure
“{slources of investigative information,” the first of which
are the “charging documents,” which “should be obtained
and examined in the context of the applicable statutes and
precedents, to identify . . .. the elements of the charged
offense(s), including the element(s) alleged to make the death
penalty applicable... .” Jd. § 11.4.1(D)(1)(A).’? In failing to
understand even the basic elements of the principal-offender

'5 The most recent version of the ABA Guidelines is substantially
similar. See ABA GUIDELINES FOR THE APPOINTMENT AND
PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES § 10.7(A) & cmt.
(rev. ed. 2003).

33a

specification, the performance of Joseph’s trial counsel was
constitutionally deficient.

The state court attempted to diminish the failures of
Joseph’s counsel by calling the error in the specification
“technical” and “subtle.” We think it inconceivable that a
reasonable criminal defense attorney would find the
difference between “kidnapping” and “aggravated murder”
too technical and subtle, especially when this distinction
provides the sole basis for receiving the “death penalty”
rather than a “life sentence.” Under the state court’s
unreasonably low performance standard, criminal defense
lawyers might also be permitted to confuse “misdemeanor”
and “felony,” the “Fourth” and “Fifth” Amendments, or even
“guilty” and “not guilty.” Fortunately for Joseph and other
criminal defendants, the prevailing professional norms under
which Strickland performance is judged are not as low as the
state court would have them.

The state court also attempted to minimize the deficiency
of Joseph’s counsel by noting that he was not the only one to
misunderstand the specification — the prosecution and the
trial judge similarly erred. We fail to see how the
pervasiveness of the error excuses Joseph’s counsel’s
performance. After all, Joseph was represented — and
consequently was owed a constitutionally sufficient level of
performance — by his counsel, not by the prosecution or the
trial judge. Furthermore, when the prosecution and the trial
judge are operating under a mistaken view of the law, the
performance of defense counsel becomes more important,
because he is then the only one left to correct the
misunderstanding. Accordingly, we conclude that the state
court unreasonably applied Strickland in concluding that the
performance of Joseph’s trial counsel was constitutionally
adequate.

The prejudice inquiry is similarly straightforward. If
Joseph’s trial counsel had objected to the flawed indictment

34a

and erroneous jury instruction, then the players at trial would
not have labored under an incorrect understanding of the
capital specification, and there is a reasonable probability
that the outcome would have been different (i.e., that Joseph
would not have received a death sentence), in at least three
identifiable ways. First, there is a reasonable probability that
the prosecution, which conceded that it could not prove that
Joseph actually killed the victim, would have declined to
charge Joseph with the specification. Second, there is a
reasonable probability that, given the prosecution’s
concession that it could not prove that Joseph actually killed
the victim, a properly instructed jury would have found
Joseph not guilty of the specification. Third, even if the jury
still found Joseph guilty of the specification, there is a
reasonable probability that a trial judge with a proper
understanding of the specification would have intervened,
either by setting aside the verdict after the guilt phase or by
rejecting the jury’s recommendation of a death sentence after
the penalty phase. Thus, we have little trouble concluding
that Joseph’s defense was prejudiced by his trial counsel’s
deficient performance, and that the state court unreasonably
applied Strickland in concluding otherwise.

Having determined that habeas relief is warranted on
Joseph’s independent IAC claim, it necessarily follows that
Joseph has established cause to excuse the procedural default
of his indictment and jury-instruction claims. Of course,
Joseph must also establish the prejudice component of cause
and prejudice. The Supreme Court has declined to provide a
general definition of “prejudice” for purposes of cause and
prejudice. United States v. Frady, 456 U.S. 152, 168 (1982).
Nevertheless, the Court has given some instructive content to
the term by explaining that one way to establish the prejudice
component of cause and prejudice is to establish Brady
materiality. Banks v. Dretke, 540 U.S. 668, 691, 698 (2004);
Strickler v. Greene, 527 U.S. 263, 282 (1999). Given that
Strickland prejudice is governed by a standard worded

35a

similarly to the Brady materiality standard, compare Kyles v.
Whitley, 514 U.S. 419, 433 (1995) (“[F]avorable evidence is
material, and constitutional error results from its suppression
by the government, if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” (internal
quotation marks omitted)), with Strickland, 466 U.S. at 694
(“The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”),'® it
follows that establishing Strickland prejudice likewise
establishes prejudice for purposes of cause and prejudice.
Mincey v. Head, 206 F.3d 1106, 1147 n.86 (11th Cir. 2000),
cert. denied, 532 U.S. 926 (2001); Prou v. United States, 199
F.3d 37, 49 (1st Cir. 1999). Thus, Joseph has established
cause and prejudice to excuse his procedural default.

We may now tur to the merits of Joseph’s indictment
and jury-instruction claims. As we noted above, the state
declined to argue the merits of these claims. Therefore, it is
not clear that the state is even appealing the district court’s
resolution of the merits in Joseph’s favor. Accordingly, we
discuss the merits (which we affirm) only briefly.

2. Flawed Indictment

“No principle of procedural due process is more clearly
established than that notice of the specific charge, and a
chance to be heard in a trial of the issues raised by that

'© This similar wording is, of course, no coincidence. The Court explicitly
acknowledged in Strickland that its “test for prejudice finds its roots in
the test for materiality of exculpatory information not disclosed to the
defense by the prosecution.” 466 U.S. at 694 (citing United States v.
Agurs, 427 U.S. 97, 104, 112-13 (1976)). A majority of the Court then
imported “the Strickland formulation of the Agurs test for materiality”
back into Brady doctrine. United States y. Bagley, 473 U.S. 667, 682
(1985) (opinion of Blackmun, J., joined by O’Connor, J.); see also id. at
685 (White, J., jomed by Burger, C.J., and Rehnquist, J., concurring in
part and concurring in the judgment) (agreeing with the standard).

36a

charge, if desired, are among the constitutional rights of
every accused in a criminal proceeding in all courts, state or
federal.” Cole v. Arkansas, 333 U.S. 196, 201 (1948); see
also Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005)
(“[A]Jn indictment is only [constitutionally] sufficient if it (1)
contains the elements of the charged offense, (2) gives the
defendant adequate notice of the charges, and (3) protects the
defendant against double jeopardy.”).'’ “These fundamental
principles of procedural fairness apply with no less force at
the penalty phase of a trial in a capital case than they do in
the guilt-determining phase of any criminal trial.” Presnell v.
Georgia, 439 U.S. 14, 16 (1978). Joseph claims that he was
denied due process because the flawed indictment failed to
give him adequate notice of the capital specification. The
Ohio Supreme Court acknowledged the error in .the
indictment, but it concluded that Joseph had received
sufficient notice of the correct capital specification and that
the error had not prejudiced his defense. Joseph II, 653
N.E.2d at 291-92.

Joseph principally relies on Lucas v. O’Dea, 179 F.3d
412 (6th Cir. 1999). There, a person was shot and killed in
the course of a robbery committed by Lucas and two other
men. Lucas was indicted for intentional murder, which
required proof that he shot the victim. The only witness
testified that he did not know which of the robbers fired the
fatal shot, and Lucas’s entire defense was that he did not
shoot the victim. Despite the intentional-murder charge in the
indictment, the jury was given instructions for wanton
murder, for which it was immaterial who fired the shot. The
State supreme court upheld the conviction, characterizing it
as a conviction for wanton murder. We concluded that in

17

It seems clear that Joseph’s indictment fails the requirement of
containing the elements of the charged offense, as the capital
specification omitted the element of being the principal offender in the
commission of the aggravated murder. Nevertheless, Joseph has not made
this claim, so we do not reach it. ;

37a

these circumstances, Lucas had been “deprived . . . of his
Fourteenth Amendment right to notice of the charges against
him.” Jd. at 417. We conclude likewise here: much as Lucas
was indicted for one crime (intentional murder) but convicted
of another (wanton murder), Joseph, too, was indicted for one
asserted capital specification (being the principal offender in
commission of the kidnapping) but convicted of another
(being the principal offender in the commission of the
aggravated murder). Indeed, the lack of notice is arguably
even worse here, as Joseph was initially indicted under a
specification that did not even exist.

In granting relief on this claim, the district court, relying
on United States v. Ford, 872 F.2d 1231, 1235-36 (6th Cir.
1989) (explaining that an amendment to an indictment is
prejudicial per se), cert. denied, 498 U.S. 843 (1990), held
that the error in Joseph’s indictment was not subject to
harmless-error review. The district court held in the
alternative that the error was not harmless in this case. Given
the Supreme Court’s decision in Esparza II (discussed
above), we think it prudent to engage in the harmless-error
analysis.'® For the reasons similar to those that have already
been discussed above, we conclude that the due-process
violation “had substantial and injurious effect or influence in
determining the jury’s verdict,” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (internal quotation marks omitted), and
therefore was not harmless. Moreover, it was objectively
unreasonable for the state court to conclude otherwise.

'8 We note that the Supreme Court recently granted certiorari with respect
to “[w]hether the omission of an element of a criminal offense from a
federal indictment can constitute harmless error.” United States v.
Resendiz-Ponce, — U.S. —, 126 S. Ct. 1776 (2006). The outcome of
Resendiz-Ponce might affect whether defective state indictments like the
one here are subject to harmless-error analysis, although even that is not
certain because federal and state indictments are not necessarily subject to
the same requirements. See Apprendi v. New Jersey, 530 U.S. 466, 477
n.3 (2000) (noting that the Fifth Amendment’s Indictment Clause has not
been incorporated against the states).

38a

3. Erroneous Jury Instructions

Supreme Court precedent clearly establishes that “[i]n a
criminal trial, the State must prove every element of the
offense, and a jury instruction violates due process if it fails
to give effect to that requirement.” Middleton v. McNeil, 541
U.S. 433, 437 (2004) (citing Sandstrom vy. Montana, 442 U.S.
510, 520-21 (1979)). “The only question . . . is ‘whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’ It is well
established that the instruction ‘may not be judged in
artificial isolation,’ but must be considered in the context of
the instructions as a whole and the trial record.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (citations omitted) (quoting
Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Joseph’s jury-
instruction claim is- based, of course, on the erroneous
principal-offender instruction.

The Ohio Supreme Court’s rejection of Joseph’s claim
was premised on the idea that because the trial court read the
correct specification once, it cured any error in the
instructions. Joseph IT, 653 N.E.2d at 294-95. We conclude
that this decision is both contrary to and an unreasonable
application of clearly established federal law. The decision is
contrary to Supreme Court precedent in that it ignored the
approach that the Court has explicitly articulated for this type
of claim. See Williams, 529 U.S. at 405 (“A state-court
decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the
governing law set forth in our cases.”). By excusing the error
solely on the basis of the single instance in which the trial
court read the correct specification, the state court “judged in
artificial isolation” that one correct reading, virtually
ignoring “the context of the instructions as a whole and the
trial record,” i.e., the countless times that the incorrect
specification was stated or referenced. McGuire, 502 U.S. at
72 (internal quotation marks omitted).

39a

The state court also unreasonably applied clearly
established federal law. The jury instructions repeatedly and
incorrectly stated (either explicitly or by reference to earlier
misstatements) that the capital specification required proof
that Joseph was the principal offender in the commission of
the kidnapping. Thus, the instructiors omitted the element of
being the principal offender in the commission of the
aggravated murder, i.e., that Joseph “actually killed” the
victim, which means that they “fail[ed] to give effect to th[e]
[due-process] requirement” that “the State must prove every
element of the offense.” McNeil, 541 U.S. at 437. The rest of
“the trial record,” McGuire, 502 U.S. at 72, compounded the
error in the jury instructions, as both the prosecution and
Joseph’s counsel repeatedly misstated the specification in
their opening statements and closing and rebuttal arguments.
The single instance in which the trial court correctly read the
specification to the jury was insufficient to cure the pervasive
errors elsewhere in the instructions and the rest of the
proceedings. See Francis v. Franklin, 471 U.S. 307, 322
(1985) (“Language that merely contradicts and does -not
explain a constitutionally infirm instruction will not suffice
to absolve the infirmity. A reviewing court has no way of
knowing which of the two irreconcilable instructions the
jurors applied in reaching their verdict.”); Laird v. Horn, 414
F.3d 419, 427-28 (3d Cir. 2005) (“[W]e can not conclude that
such a brief reference to the required mens rea for first-
degree murder remedies the incorrect and misleading portion
of the instruction.”’), cert. denied, — U.S. —, 126 S. Ct. 1143
(2006); Everett v. Beard, 290 F.3d 500, 512 (3d Cir. 2002)
(“The mere fact that the law was correctly stated in one part
of the charge will not automatically insulate the charge from
a determination of error.”), cert. denied, 537 U.S. 1107
(2003). Once again, for reasons that have been discussed at
length, the due-process violation was not harmless. See
Brecht, 507 U.S. at 623.

40a

IV. CLAIMS ATTACKING THE AGGRAVATED-
MURDER CONVICTION

The district court denied each of Joseph’s claims
attacking the underlying aggravated-murder conviction.
Joseph pursues four of these claims on appeal, arguing that
(1) the trial court admitted statements obtained by the police
in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (2)
the refusal to grant a change of venue on the grounds of
pretrial publicity resulted in the denial of Joseph’s Sixth
Amendment right to an impartial jury; (3) the prosecution
suppressed material exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963); and (4) the
prosecution made numerous improper statements amounting
to misconduct in violation of the Due Process Clause. For the
reasons below, we affirm the district court’s denial of these
claims.

A. Miranda

Before the state courts, Joseph challenged the admission
of four statements on Miranda grounds. The Ohio Court of
Appeals, which was the last state court to issue a reasoned
opinion on this claim, gave the following account of the
circumstances surrounding these statements:

At approximately 5:00 a.m. on June 27, 1990, the
morning Ryan was discovered missing, three deputy
sheriffs went to [Joseph’s] residence. [Joseph] and
Bulerin came to the door, where [Joseph] was
questioned. [Joseph] disclaimed any knowledge of the
disappearance. [Joseph] was then transported to the
sheriff's office by one of the deputies. At the sheriffs
office [Joseph] waited for the arrival of Detective
Cheney. He was read his Miranda rights and signed a
waiver of rights form prior to any questioning. This
interview lasted approximately twenty minutes, after
which time [Joseph] left. Later that morning he was
again taken to the sheriff's office by a deputy who

4la

picked him up from work. [Joseph] voluntarily agreed
to go with the deputy to the sheriff's office where he
was questioned a third time at approximately 10:15
a.m. [Joseph] was not under arrest and no Miranda
warnings were given. Detective Ketchum, the deputy
who interviewed [Joseph] this time, _ testified
[Joseph's] statements were voluntary and he was free
to leave at any time. A fourth interview with [Joseph]
was conducted after his arrest on the evening of July
4, 1990. He was informed of his rights which he
chose to waive, and consented to the interview.

Joseph I, 1993 WL 531858, at *31 (emphasis added). Before
this court, Joseph challenges only the third statement, the
facts of which are emphasized in the quoted passage.

Miranda “held that certain warnings must be given before
a suspect’s statement made during custodial interrogation
could be admitted in evidence.” Dickerson v. United States,
530 U.S. 428, 431-32 (2000). There is no doubt that Joseph
was interrogated by Detective Ketchum for purposes of
Miranda. See Rhode Island vy. Innis, 446 U.S. 291, 300-01
(1980) (“[T]he Miranda safeguards come into play whenever
a person in custody is subjected to either express questioning
or its functional equivalent. That is to say, the term
‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” (footnote
omitted)). And it is undisputed that Joseph was not given
Miranda warnings before being interrogated. The critical
question in the instant case, then, is whether Joseph was in
custody, which under clearly established Supreme Court
precedent depends on “whether there [was] a ‘formal arrest
or restraint on freedom of movement’ of the degree
associated with a formal arrest.” California v. Beheler, 463
U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429

42a

U.S. 492, 495 (1977)); see also Thompson v. Keohane, 516
U.S. 99, 112 (1995) (“[W]ould a reasonable person have felt
he or she was not at liberty to terminate the interrogation and
leave[?]”). The state court answered this question in the
negative.

Joseph first argues that the state court’s decision was
contrary to Berkemer v. McCarty, 468 U.S. 420 (1984), and
Stansbury v. California, 511 U.S. 318 (1994). Under these
cases, along with Beckwith v. United States, 425 U.S. 341
(1976), “the initial determination of custody depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being questioned.” Stansbury, 511 U.S. at 323
(explaining that Beckwith and Berkemer make _ this
proposition clear).'? According to Joseph, the state court’s
decision was contrary to these precedents because the court
applied a subjective test for custody (based on Detective
Ketchum’s views) rather than the objective test mandated by
the Supreme Court. See Williams, 529 U.S. at 405 (“A state-
court decision will certainly be contrary to our clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.”). Yet
the state court explicitly relied on Berkemer and stated the
governing standard in objective terms: “the Supreme Court
held the relevant inquiry regarding a custodial interrogation
to be how a reasonable person in the suspect's position
would have understood his situation.” Joseph I, 1993 WL
531858, at *31 (emphasis added). Furthermore, the court
principally discussed objective facts in applying the custody
standard to the facts. See id. at *31-*32. Finally, to the extent
that some of the facts mentioned by the court arguably

'9 It is unproblematic that Joseph relies on Stansbury — a case that
postdates the decision of the Ohio Court of Appeals — because Stansbury
simply applied the clearly established precedents of Beckwith and
Berkemer, both of which predated the Ohio court’s decision. See
Stansbury, 511 U.S. at 323 (“Our decisions make clear... .”).

43a

indicate the subjective views of the officers, it appears that
they were either simply given as background or can also be
read as indicating the subjective impressions of the officers
that were made known to Joseph. Thus, we conclude that the
state court’s decision was not contrary to clearly established
federal law.

Joseph next argues that the state court unreasonably
applied clearly established federal law. In Yarborough v.
Alvarado, 541 U.S. 652 (2004), the Supreme Court recently
reviewed a state court’s application of the Miranda custody
test under AEDPA’s unreasonable-application prong, so we
naturally begin our analysis there. The Court explained that
whether a state court’s application of clearly established
federal law is “unreasonable” is a context-sensitive inquiry:

[T]he range of reasonable judgment can depend in
part on the nature of the relevant rule. If a legal rule is
specific, the range may be narrow. Applications of the
rule may be plainly correct or incorrect. Other rules
are more general, and their meaning must emerge in
application over the course of time. Applying a
general standard to a specific case can demand a
substantial element of judgment. As a result,
evaluating whether a rule application was
unreasonabie requires considering the rule’s
specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case by
case deter:nifiations.

Id. at 664. Within this framework, the Court gave the state
court considerable “leeway” because Miranda’s “custody test
is general.” Jd. at 665. The Court noted that “certain facts
weigh[ed] against a finding that [the defendant] was in
custody” while “[o]ther facts point{[ed] in the opposite
direction.” /d. at 664-65. Given “{[t]hese differing
indications,” the Court concluded that “the state court’s
application of [clearly established federal] law fit[] within the

44a

matrix of [the Court’s] prior decisions” and therefore was
reasonable. /d. at 665.

Here, too, there are “differing indications” of whether
Joseph was in custody. On the one hand, Joseph was
transported from his workplace to the sheriff's office by a
deputy; Joseph had already been questioned by the police
twice earlier that day; and Detective Ketchum never told
Joseph that he was free to leave. On the other hand, Joseph
went voluntarily with the deputy to the sheriff's office;
Detective Ketchum never told Joseph that he was not free to
leave; and the interview with Detective Ketchum was brief,
lasting only twenty-five minutes. Were we reviewing
Joseph’s Miranda claim de novo, this might very well be a
close case. That is not, however, the posture of this appeal.
What the Supreme Court said in Yarborough is applicable
here:

We cannot grant relief under AEDPA by conducting
our own Independent inquiry into whether the state
court was correct as a de novo matter. “[A] federal
habeas court may not issue the writ simply because
that court concludes in its independent judgment that
the state-court decision applied [the law] incorrectly.”
Relief is available under § 2254(d)(1) only if the state
court’s decision is objectively unreasonable. Under
that standard, relief cannot be granted.

541 U.S. at 665-66 (alterations in original) (citations omitted)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)).

B. Pretrial Publicity

Joseph argues that he was denied his Sixth Amendment
right to be tried by an impartial jury because the jury in his
case was infected by pretrial publicity surrounding the
murder. We have explained that “there is clearly established
Supreme Court precedent distinguishing between cases
involving presumed prejudice — when the ‘setting of the

45a

trial [is] inherently prejudicial,” — and actual prejudice —
when review of both the jury voir dire testimony and the
extent and nature of the media coverage indicates ‘a fair trial
[was] impossible.’” Nevers v. Killinger, 169 F.3d 352, 364
(6th Cir. 1999) (alterations in original) (citations omitted)
(quoting Murphy v. Florida, 421 U.S. 794, 798, 803 (1975)),
abrogated on other grounds by Harris v. Stovall, 212 F.3d
940, 942-43 (6th Cir. 2000). The Ohio Court of Appeals,
which was the last state court to issue a reasoned opinion on
this issue, rejected both types of claims, principally on the
basis of the jurors’ responses during voir dire and the trial
court’s instructions to the jury. See Joseph I, 1993 WL
531858, at *6-*7.

Joseph makes a very narrow argument to this court,
basically contending that “the trial court failed to perform a
searching voir dire” and did not “determin{e] the specific
influences on the jurors.” Petitioner-Appellant First Br. at 83,
96; see also id. at 85 n.32, 94-95. In Mu’Min v. Virginia, 500
U.S. 415 (1991), the Supreme Court rejected the similar
argument that a trial court must ask questions regarding the
content of the news reports (i.e., what Joseph calls “the
specific influences”) to which potential jurors may have been
exposed. /d. at 424-25. The Court explained that “8 of the 12
jurors who sat answered that they had read or heard
something about the case, but none of those 8 indicated that
he had formed an opinion «sto guilt, or that the information
would affect his ability to judge petitioner solely on the basis
of the evidence presented at trial.” /d. at 428. In the instant
case, all twelve jurors had heard about the case, but each
stated that he or she had formed no opinion on the case,
could disregard the media accounts, and could decide the
case based solely on the evidence presented at trial. Given
that Mu’Min forecloses Joseph’s argument, we cannot
conclude that the state court’s decision was contrary to or an
unreasonable application of clearly established federal law.

46a

C. Brady
1. Stawdard of Review

The Ohio Supreme Court rejected Joseph’s Brady claim,
which was principally based on the delayed disclosure of a
grant of immunity that had been given to William Forest, a
key witness for the prosecution. Joseph IJ, 653 N.E.2d at
292-93. If Joseph were now bringing the same Brady claim,
i.e., one premised on the same suppressed evidence, then it
would be a “claim that was adjudicated on the merits in State
court proceedings,” and we would review the state court’s
decision only for whether it “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). However, Joseph’s current Brady
claim is not the same as tHe one he brought before the state
courts: he now relies on a different mix of suppressed
evidence that includes some items discovered only during
federal habeas proceedings. Thus, Joseph argues, his Brady
claim was not “adjudicated on the merits in State court
proceedings,” and AEDPA’s strict standard of review does
not apply. We agree. In Williams v. Coyle, 260 F.3d 684 (6th
Cir. 2001), cert. denied, 536 U.S. 947 (2002), we reviewed a
Brady claim based on evidence disclosed during federal
habeas proceedings “under pre-AEDPA standards because no
State court reviewed the merits of that claim.” /d. at 706; see
also Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir.
2003) (collecting cases); Holland v. Jackson, 542 U.S. 649,
653 (2004) (noting that “[w]here new evidence is admitted,
some Courts of Appeals have conducted de novo review on
the theory that there is no relevant state-court determination
to which one could defer” and “[a]ssuming . . . that this
analysis is correct and that it applies where . . . the evidence
does not support a new claim but merely buttresses a
previously rejected one”). Because AEDPA’s standard of
review does not apply here, we review. the district court’s
factual findings for clear error, while whether a Brady

47a

violation occurred is a mixed question of law and fact that we
review de novo. Williams, 260 F.3d at 706.

2. Merits

The Supreme Court recently provided the following
concise summary of Brady doctrine:

In Brady, this Court held “that the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process where the evidence is
material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” 373
U.S., at 87. We have since held that the duty to
disclose such evidence is applicable even though
there has been no request by the accused, United
States v. Agurs, 427 U.S. 97, 107 (1976), and that the
duty encompasses impeachment evidence as well as
exculpatory evidence, United States v. Bagley, 473
U.S. 667, 676 (1985). Such evidence is material “if
there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the
proceeding would have been different.” /d., at 682;
see also Kyles v. Whitley, 514 U.S. 419, 433-434
(1995). Moreover, the rule encompasses evidence
“known only to police investigators and not to the
prosecutor.” /d., at 438. In order to comply with
Brady, therefore, “the individual prosecutor has a
duty to learn of any favorable evidence known to the
others acting on the government’s behalf in this case,
including the police.” Kyles, 514 U.S., at 437.

Strickler v. Greene, 527 U.S. 263, 280-81 (1999). The Court
also distilled the “three components of a true Brady violation:
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”
Id. at 281-82.

48a

a. Favorable to the Accused

We first address whether the evidence on which Joseph
relies was favorable to him:”°

1. Forest’s immunity agreement. This item, which was
disclosed belatedly at trial, was obviously favorable to
Joseph, as it could have been used to impeach Forest. As
Seventh Circuit has explained:

The prosecution’s giving a witness benefits —
leniency, cash, or anything else — can be used by a
cross-examining defense counsel to undermine the
witness in two. . . distinct ways. The first and most
common is by showing that the benefits were given in
return for the witness’s providing testimony that
would help the prosecution. He might have told the
prosecutor what he would testify to if called and the
prosecutor might have explicitly agreed to give him
specified benefits if he testified consistently with his
proffer. Or there might have been a. tacit
understanding that if his testimony was helpful to the
prosecution, the state would give him a break on
some pending criminal charge. . . . Express or tacit,
either way there would be an agreement, it would be
usable for impeachment, and it would have to be
disclosed to the defense.

Joseph also refers to various items that are not in the record and
therefore presumably cannot be located. The district court acknowledged
some of these materials, but it did not include them in its analysis,
apparently because they “b[ore] no consequence on the Court’s decision
with respect to this claim.” 2 J.A. at 794 n.53. This statement appears to
reflect the belief that a due process claim cannot be based on evidence
that has not been located, which is incorrect because such a claim is
cognizable under the failure-to-preserve-evidence doctrine of Arizona v.
Youngblood, 488 U.S. 51 (1989), and California vy. Trombetta, 467 U.S.
479 (1984). However, Joseph did not invoke this doctrine in his habeas
petition and does not now do so on appeal, se he has not properly raised
this claim.

49a

Wisehart v. Davis, 408 F.3d 321, 323-24 (7th Cir. 2005)
(citations omitted), cert. denied, — U.S. —, 126 S. Ct. 1617
(2006).

2. Transcript of Ketchum’s post-arrest interview of Forest
on July 4, 1990. In this interview, which was disclosed
belatedly at trial, Forest stated that on the morning after the
murder, Bulerin bought tires for a client’s car. At trial, Forest
testified that on the morning after the murder, Bulerin bought
and changed the tires on Forest’s car. Although these two
statements are not directly contradictory, they are somewhat
inconsistent. Accordingly, the evidence could have been used
to impeach Forest and is favorable to Joseph.

3. Transcript of Dailey and Van Horn’s interview of
Forest on July 7, 1990. In this interview, which was disclosed
belatedly at trial, Forest was asked, “When is the last time
you’re sure that knife was in your car?” In response, Forest
said:

Um... I’ve really never use - it usually rattles on my
car, as I’m driving down the road. I haven’t driven
my car too much lately - but I know I’ve not seen it
since . . . at least maybe - before . . . they claimed it
was lost. I’ve just never really paid attention to it -
plus I never have my car to drive it.

21 J.A. at 8340 (omissions in original). (The phrase “before .
. . they claimed it was lost” refers to Bulerin telling Forest on
Thursday, June 28, 1990 or Friday, June 29, 1990 that the
knife was lost. 21 J.A. at 8339-40.) The import of this
statement is that Forest could not precisely pinpoint when he
last saw the knife in his car. Yet at trial, Forest definitively
testified that the knife was in the car on June 26, 1990. Thus,
the evidence could have been used to impeach Forest and is
favorable to Joseph.

4. Notes of Cheney’s interview of Forest on June 28,
1990. On its face, the single page of interview notes, which

50a

was discovered during the federal habeas proceedings below,
does not appear to contain any favorable information. Nor
does Joseph explain how these notes are favorable to him.

5. Transcript of Van Horn’s interview of Thad Randall
Staley on June 27, 1990. In this interview, which was
discovered during the federal habeas proceedings below,
Staley (who knows Forest) stated that he saw a car that
looked like Forest’s being driven on Thayer Road —
Wireman’s residence was on Thayer Road — at about 1:50
AM on the night/morning of the murder. According to
Staley, there were two or more people in the car, and the
driver “kind of looked like” Forest. 21 J.A. at 8365.
Although this evidence does not exculpate Joseph (he might
have been one of the other people in the car), it suggests that
Forest was involved in the murder by placing him in the car
seen at the scene of the murder at approximately the right
time. Thus, it could have been used to impeach Forest and is
favorable to Joseph.

6. Notes of a statement made by Tony Newland on June
30, 1990. In this statement, which was discovered during the
federal habeas proceedings below, Newland asserted that he
saw Forest at a car wash “cleaning a car that matched the
description . . . ‘too’ thoroughly.” 21 J.A. at 8361. Whether
this evidence is favorable to Joseph is a close question. On
one hand, it does not exculpate Joseph and it is quite vague.
On the other hand, it suggests that Forest was “covering up”
evidence and therefore was involved in the murder. On
balance, it probably could have been used to impeach Forest.

b. Materiality/Prejudice

There is no dispute as to the fact that these items were
suppressed, so we proceed directly to the issue of
materiality/prejudice. We conduct this inquiry mindful of the
Supreme Court’s admonition that “suppressed evidence
[must be] considered collectively, not item by item,” when

Sla

determining materiality/prejudice.*’ Kyles, 514 U.S. at 436;
accord, e.g., Castleberry v. Brigano, 349 F.3d 286, 291 (6th
Cir. 2003). All five items of suppressed evidence that were
favorable to Joseph were favorable in the sense that they
would have impeached Forest. And viewed collectively,
these items would have strongly impeached Forest, who was
clearly a crucial triai witness for the prosecution.”” We have
little trouble assuming that, if all five items had been
completely undisclosed, they certainly would have been
material/prejudicial under Brady.

As we have already indicated, however, the three most
strongly impeaching items — the immunity agreement, the

2! The district court instead took a bifurcated approach: it first determined
with respect to the delayed disclosures that Joseph was not prejudiced by
the delay before then concluding that the completely undisclosed
evidence was not material/prejudicial. This approach arguably finds some
support in our statements to the effect that Brady does not apply to
delayed disclosures unless the delay itself causes prejudice. E.g., United
States v. Bencs, 28 F.3d 555, 560-61 (6th Cir. 1994), cert. denied, 513
U.S. 1117 (1995). Yet these cases are not quite on point, as they involved
only delayed disclosures rather than a mix of belatedly disclosed and
completely undisclosed evidence. We think the better approach is to
apply the Supreme Court’s command that “suppressed evidence [must be]
considered collectively, not item by item,” when determining
materiality/prejudice, Kyles, 514 U.S. at 436, no matter whether the
collection of evidence includes only completely undisclosed items, only
belatedly disclosed items, or a mixture of the two. This is especially so
given that the question of whether a delay causes prejudice is really just a
type of inquiry into materiality. See Norris v. Schotten, 146 F.3d 314, 334
(6th Cir.), cert. denied, 525 U.S. 935 (1998).

22 Forest testified that Joseph and Bulerin had access to Visqueen (the
material in which Young’s body was found) at the sand and gravel lot,
that Joseph’s and Bulerin’s demeanors were unusual the morning after the
kidnapping, that Bulerin changed the tires on Forest's car the morning
after the murder, that a knife was kept in Forest’s car and was in the car
on the day of the murder, that Joseph and Bulerin kept a shovel in
Forest’s car, and that Joseph owned a black ninja mask like the one
discovered near Young’s body.

52a

statement about Bulerin changing the tires, and the statement
about the knife — were belatedly disclosed during trial rather
than completely undisclosed. Thus, we must consider as part
of the collective materiality inquiry the extent to which the
delay prejudiced Joseph. E.g., United States v. Bencs, 28
F.3d 555, 560-61 (6th Cir. 1994), cert. denied, 513 U.S. 1117
(1995). Here, the trial court implemented several measures to
remedy the delay. The court gave the defense several days to
review the belatedly disclosed documents and to conduct a
deposition of Forest. The court also gave the defense the
opportunity to re-call Forest at trial. The defense declined to
do so, but there is no suggestion that this decision was the
result of insufficient time to prepare; if the defense needed
more time, it could have asked for a continuance. See, e.g.,
United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir.)
(“[C]Jounsel for [the defendant] made no request for... a
continuance. In such a circumstance, we conclude that the
timing of the disclosure did not prejudice [the defendant].”),
cert. denied, 469 U.S. 1021 (1984); United States v. Osorio,
929 F.2d 753, 758 (Ist Cir. 1991) (“Generally, we have
viewed the failure to ask for a continuance as an indication
that defense counsel was himself satisfied he had sufficient
opportunity to use the evidence advantageously.”). In fact, it
appears that the defense declined to re-call Forest for
strategic ,easons, 10 J.A. at 3795 (Trial Tr. at 1871), so that
choice cannot now be used to attempt to magnify the
prejudice of the delay. See United States v. Davis, 306 F.3d
398, 421 (6th Cir. 2002) (holding that there was no prejudice
from a delayed disclosure where the “[d]efendant was given
every Opportunity to review the [newly disclosed] tapes and
to recall [the witness] if necessary, but he refused to do so”),
cert. denied, 537 U.S. 1208 (2003). Furthermore, the defense
emphasized in its closing argument that “Forest was given
immunity and released from jail for his testimony” and that
his testiiomy therefore should be viewed “very cautiously.”
11 J.A. at 3956 (Trial Tr. at 2025). Finally, the trial court
instructed the jury at the close of trial: “If you find that

53a

immunity has been granted to any witness, the credibility of
such testimony must be examined with greater scrutiny than

testimony of an ordinary witness.” 11 J.A. at 3988-89 (Trial
Tr. at 2057-58). These remedial measures reduced the
potential materiality/prejudice of the delay in disclosing these
three pieces of evidence.”

Finally, we add the two completely undisclosed items to
the mix. These items were only weakly impeaching, and they
would have added little to the impeachment of Forest if
Joseph had taken advantage of the ample opportunity to use
the belatedly disclosed evidence. Given that Joseph could
have (but declined) to make use of the items that would have
strongly impeached Forest after they were belatedly
disclosed and that the completely undisclosed items would
have only weakly impeached Forest, we cannot conclude that
“there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” Kyles, 514 U.S. at 433-34.

” Joseph argues that if not for the delay, he would have prepared
differently for voir dire, opening statements, and cross-examination of
other witnesses. In other words, he claims that he was prevented from
preparing a coordinated defense centered around attacking Forest's
credibility. Some circuits have phrased the delayed-disclosure tests in
terms of the defendant’s ability to prepare for trial. See United States v.
Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986); United States v. Pollack.
534 F.2d 964, 973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976); United
States v. Miller, 529 F.2d 1125, 1128 (9th Cir.), cert. denied, 426 U.S.
924 (1976). This court has not, however, endorsed such a formulation.
Rather, we have expressly recognized the Supreme Court’s explicit
rejection of the argument that “the [materiality] standard should focus on
the impact of the undisclosed evidence on the defendant’s ability to
prepare for trial,” United States vy. Agurs, 427 U.S. 97, 112 n. 20 (1976).
See Norris, 146 F.3d at 334; Bencs, 28 F.3d at 560.

54a

D. Prosecutorial Misconduct

Joseph’s final claim is that the prosecution violated his
right to due process by committing misconduct. The Ohio
Court of Appeals, which was the last state court to issue a
reasoned opinion on the issue, rejected Joseph’s various sub-
claims because the prosecution’s conduct was either not
improper or did not prejudice Joseph. Joseph I, 1993 WL
531858, at *16-*18. We review Joseph’s claim using the
following approach:

On habeas review, claims of prosecutorial misconduct
are reviewed deferentially. To be cognizable, the
misconduct must have “‘so infected the trial with
unfairness as to make the resulting conviction a denial
of due process.’” Even if the prosecutor's conduct was
improper or even “universally condemned,” we can
provide relief only if the statements were so flagrant
as to render the entire trial fundamentally unfair.
Once we find that a statement is improper, four
factors ate considered in determining whether the
impropriety is flagrant: (1) the likelihood that the
remarks would mislead the jury or prejudice the
accused, (2) whether the remarks were isolated or
extensive, (3) whether the remarks were deliberately
or accidentally presented to the jury, and (4) whether
other evidence against the defendant was substantial.

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003)
(citations omitted) (quoting Darden v. Wainwright, 477 U.S.
168, 181 (1986)), cert. denied, 543 U.S. 842 (2004). We
discuss the propriety of each complained-of statement before
considering the effect of improper ones (if any) collectively.

Joseph first argues that the prosecution commented on
Joseph’s failure to take the stand when it said, “[Joseph’s
counsel] would have you infer that there was no kidnapping.
Well, you, ladies and gentiemen of the jury, heard all of the
evidence. You heard each and every thing that would go to

55a

show kidnapping. Uncontroverted. Uncontroverted from that
witness stand.” 11 J.A. at 3971 (Trial Tr. at 2040). “The law
is clear that the prosecution cannot comment on a
defendant’s decision not to testify at trial.” Bowling, 344
F.3d at 514 (citing Griffin v. California, 380 U.S. 609, 615
(1965)). However, “‘[gjeneral references to evidence as
uncontradicted, while not recommended, may not reflect on
the defendant’s failure to testify where witnesses other than
the defendant could have contradicted the evidence.’” Byrd v.
Collins, 209 F.3d 486, 534 (6th Cir. 2000) (quoting Raper v.
Mintzes, 706 F.2d 161, 164 (6th Cir. 1983)), cert. denied, 531
U.S. 1082 (2001). Moreover, the comment was neither
flagrant nor repeated. Finally, the trial court instructed the
jury about Joseph’s right not to testify.

Joseph next contends that the prosecution shifted the
burden of proof to him when it asked, “What evidence do we
have, ladies and gentlemen, that this defendant didn’t do it?”
11 J.A. at 3977 (Trial Tr. at 2046). “[I]t [is] improper for the
prosecutor to suggest that the defendant ha[s] the burden of
proof or any obligation to produce evidence to prove his
innocence.” United States v. Clark, 982 F.2d 965, 968-69
(6th Cir. 1993). However, the trial court immediately
sustained an objection to the question and instructed the jury
to disregard it. The court also instructed the jury about the
state’s burden of proof.

Joseph also claims that the prosecution improperly
expressed personal opinions. Specifically, the prosecution
vouched for Forest’s credibility and otherwise repeatedly
prefaced statements with “I believe” or “I think.” These
comments certainly were improper, see United States v.
Young, 470 US. 1, 18-19 (1985); Bates v. Bell, 402 F.3d 635,
644 (6th Cir.), cert. denied, — U.S. —, 126 S. Ct. 163
(2005), but they did not rise to the level of a due-process
violation. With respect to the vouching for Forest, the
prosecution was arguably simply noting the consistency
between his testimony and other evidence, and in any event

56a

the vouching was isolated. With respect to the repeated use
of “I believe” and “I think,” it does not appear that the
prosecution was acting intentionally in an attempt to
influence the jury; instead, the phrases appeared to be the
result of a nervous habit. Furthermore, the trial judge
repeatedly chastised the prosecution for its locution and
instructed the jury to disregard expressions of personal belief.

Joseph next asserts that the prosecution elicited testimony
from two witnesses that was inconsistent with prior
statements they had made prior to trial: Forest testified
definitively at trial that the knife was in the car on June 26,
1990, even though he had previously given a statement that
he could not precisely pinpoint when he last saw the knife in
his car; and the coroner testified at trial that she could not
definitively say whether the cuts on Young’s neck were
inflicted pre- or postmortem, even though she had previously
given a statement that the cuts were probably inflicted
postmortem. “Misrepresenting facts in evidence can amount
to substantial error because doing so ‘may profoundly
impress a jury and may have a significant impact on the
jury’s deliberations.’” Washington v. Hofbauer, 228 F.3d
689, 700 (6th Cir. 2000) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 646 (1974)). “For similar reasons, asserting
facts that were never admitted into evidence may misiead a
jury in a prejudicial way.” Jd. (citing Berger v. United States,
295 U.S. 78, 84 (1935)). The difficulty with Joseph’s
argument is that neither of these claims apply. The
prosecution did not “assert[] facts that were never admitted
into evidence”: it elicited trial testimony from witnesses, so
the facts in their testimony were admitted into evidence. Nor
did the prosecution “[m]isrepresent[] facts in evidence”: after
eliciting trial testimony from witnesses, it simply relied on
those facts in its arguments. Joseph’s real quarrel is that the
prosecution possessed but did not disclose prior statements
that were inconsistent with the testimony elicited at trial. But

57a

that claim sounds in a different type of prosecutorial
misconduct: Brady doctrine.”

Finally, Joseph complains that when mitigation witnesses
testified about Joseph’s childhood and learning disability, on
a few occasions the prosecution cross-examined them by
asking what hose topics had to do with the kidnapping.
Joseph argues that in doing so, the prosecution improperly
suggested that the jury could not consider certain mitigating
evidence. Although it is unconstitutional for “a prosecutor’s
comments . . . to “constrain the manner in which the jury was
able to give effect’ to mitigating evidence, DePew v.
Anderson, 311 F.3d 742, 748 (6th Cir. 2002) (quoting
Buchanan v. Angelone, 522 U.S. 269, 277 (1998)), cert.
denied, 540 U.S. 888 (2003), the prosecution’s questions
here did not rise to that level. In any event, the trial court
gave the jury a proper instruction on the consideration of
mitigating evidence.

It is clear that the prosecution made some improper
statements and other questionable ones. Viewed collectively,
they very well may have violated due process as a de novo
matter. However, because some comments were isolated,
inadvertent, or not flagrant, and because the trial court
consistently gave curative instructions, we conclude that the
state court’s rejection of Joseph’s prosecutorial misconduct
claim was neither contrary to nor an unreasonable application
of clearly established federal law.

V. CONCLUSION

For the reasons set forth above, we AFFIRM the grant of
a writ of habeas corpus.

Joseph relied on Forest’s but not the coroner’s prior statement in
support of his Brady claim, which we rejected for the reasons above. We
express no opinion as to whether Joseph’s Brady claim would have
succeeded had he also relied on the coroner’s statement.

58a

APPENDIX B
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD JOSEPH : CASE NO. 1 :98 CV 527
Petitioner
7 : | MEMORANDUM OF
RALPH COYLE, Warden . OPINION AND ORDER
Respondent
UNITED STATES
DISTRICT JUDGE

LESLEY WELLS

zi

59a

TABLE OF CONTENTS
FACTUAL AND PROCEDURAL BACKGROUND .....3
A. The Murder. Investigation. and Trial .................cee 3
FP ae ee ennchehisrssescetintaiccreoteteneseambeesioneinna 3
bs POT FUR iscsi rctesntcicstetnesissricmiienres 11
De OE ei inasisnicissiasibinipiciadianiigusadeisiadisieiiibansdiaiel 15
4. The Guilt/Innocence Phase of the Trial.............. 26
5. The Penalty Phase of the Trial ................cc-sesrees 33
BR es siiiicccnciscmncacinteitgiesnepvicaiiniiapiiniinainiés 42
_1. Third District Court of Appeals..............cceseeees 42
be BU CE OE CIRO cccenercenenccnsessesnizersorensemane 47
3. United States Supreme Coutt ...............ccssrcsseres 54
C. Ohio Post-Conviction Proceedings ...........:.cccceeeee 55
b. COME OE CUNO FIIGE ccccrsvescesencssssssesessotinssnses 55
a. Petition for Post-Conviction Relief.............. 55
De Pi cecesccssantessusihnsecisnctadtiliaseanniin ponies 56
c. Decision Dismissing Petition for Post-
CI TITIOE, sseitciscnsincrcesessacincssarivataniness 58
2. Third District Court of Appeals .............::cceseeee 59
De I CUE EID va srsccsitecivtiecacanscasiccteonncnss 60
D. Federal Petition for Writ of Habeas Corpus ............ 61
Kp TINT NINO extcitnnccdendlicenissisinnidsnesmibsensisisenioes 62
2. Discovery and Supplemental Record ............... 65

a. Petitioner’s First Motion for Leave to Conduct
Discovery and _ Related Motions to
Supplement the Record .............cscssssrssssereees 65

b. Respondent’s Motion to Expand the Record 69

c. Petitioner’s Motion for Supplemental
Be vinsinsesccditasvadssagadiedaesentsesintelanidinnsass 69

d. Petitioner’s Third Motion to Supplement the

a 70 >

SUNN tiiocck candi uascoGuleaca ds dordiaieenbueasibedsmnaeiiest 70

le ae SU Str Te TIED cnsendceidetcinascnsstenscenniveineniinamniens 71
A. The Applicability of AEDPA 0.0.0.0... ce cceecceeseeeeteeees 71
B. AEDPA Standard of Review...............ccccccccesseeesseeees 71
C. Prerequisites to Section 2254 Habeas Relief............ 75
D. Petitioner Joseph’s Motion for an _ Evidentiary-

STII sidinnetiahdcesninsestedaineniddincsecentaniaedadecelanenpensineiedatenn 76
1. Standard for an Evidentiary Hearing ................. 76
Bes IIIT ‘cshasssesestiseeatnevntieniserncseninanitennnnivonieanns 78
a. First Ground for Relief ................sccccccssseseees 78

b. Fourth Ground for Relief ...................:cecc00ees 79

c. Fifth Ground for Relief .......................csreceees 81

I ae 82

I a seniiinunbaanelen 82
1. General Law of Procedural Default ................... 82
2. Specific Grounds for Relief Involving Procedural
TEST AS A IO We TOO aE ON TEER 86

a. First Ground for Relief ..............:ccccccssceeeseees 86

b. Second Ground for Relief .................:::ccceeees 89

c. Eighth Ground for Relief .............:.c:ccccceee 92

d. Eighteenth Ground for Relief ...................... 98
EEE LERNER eR ee eR Ae 101
1. Improper Death Penalty Specification: First and
Second Grounds for Relief ................::cccceeseeees 101

a. Defective Indictment (Ground One)........... 101

b. Improper Jury Instruction on the Death
Penalty Specification (Ground Two).......... 114

2. Voir Dire: Seventh and Eleventh Grounds for
| SETTER LE eae eS a ea 120

a. Improper Denial of Challenges for Cause
5 EE See 120

b. Improper Voir Dire on the Death Penalty
EERIE CnC 121

3. Alleged Trial Errors: Sixth, Ninth, Thirteenth,
Fourteenth, Fifteenth, Seventeenth, and
Eighteenth Grounds for Relief .................:008 123
a. Improper Denial of Change of Venue (Ground

eee EEN ae Eo Na en ERE 124

6la

Miranda Violation (Ground Nine) ............. 129

b.

c. Improper Admission of Evidence (Grounds
Thirteen, Fourteen, and Seventeen)............ 133

d. Denial of Right to Be Present at All
Proceedings (Ground Fifteen).................... 150

e. Failure to Properly Conduct Jn Camera
Inspection of Witness Statements (Ground

SINNED sscccusciacsscionesipsodeanensgetinininininienisnies 155

4. Ineffective Assistance of Counsel: Eighth Ground
a ee ieicibtienicieitesiinisssciennicteinnciseatnbanpinniuasindie 155

i: Re EE ticinneticnsncercnineaieianiteemmeneninaned 157

b. Disparaging Remarks ...............c:ccssecsseees 158

| EE Sitters ae

d. Invalid Specification in the Indictment and
Ee siiceentcnsicnininiodiccenineiisnininee 160

5. Prosecutorial Misconduct: Fourth and Fifth
gE eT 164

a. Failure to Disclose Exculpatory and
Impeachment Evidence .............::ssseseeeee 164

b. Prosecutorial Misconduct ................csseeeee 179

6. Sufficiency of Evidence: Third and Tenth
SI TF Pie cnisscrcccsvennetcnnnenstuniancineenninsin 196

a. Insufficient Evidence that Mr. Joseph was the
FE Be settvecacieniccepeaninnctionniinmessnnnt 197

b. Insufficient Evidence that Mr. Young was
IIIT nuiiiinscencieiaintciepnansteitedtennsiguntasnainintis 200

7. Improper Sentence: Twelfth, Sixteenth, and
Nineteenth Grounds for Relief .....................:00 201

a. Improper Imposition of Death Sentence by the
Trial Court (Ground Twelve) .............:.00 201

b. Disproportionate Sentence of Death (Ground
RNIN icclsicidushiencnhsnneaininimemeiedaimaianiainis 205

c. Ohio’s Death Penalty System is
Unconstitutional (Ground Nineteen) ......... 208

8. Cumulative Error: Twentieth Ground For Relief 212

By A IN vnbicscennininncinctasenecnvnaiisiianintansaiiaabioaiaupies 213

62a

On 22 January 1991, a jury found Richard Joseph guilty
of the aggravated murder of Ryan Young with a capital
specification. On 30 January 1991, the same jury
recommended imposition of the death penalty, and the state
trial judge adopted this recommendation, sentencing Mr.
Joseph to death. Mr. Joseph’s direct appeals and petition for
post-conviction relief to the Ohio courts were unsuccessful.

Before the Court is Mr. Joseph’s Second Amended
Petition for a writ of habeas corpus. (Docket #83). A Second
Amended Return of Writ and Second Amended Traverse
have been filed. (Docket #85 and #89). Mr. Joseph’s Third
Motion to Supplement the Record and Amended Motion for
an Evidentiary Hearing also are pending. (Docket #87 and
#88). Although the State has not filed a response to the
motion to supplement the record, it has filed an opposition to
the motion for an evidentiary hearing. (Docket #90).

A federal court’s review of a habeas corpus petition is
very different from a state court’s review on direct appeal.
The Antiterrorism and Effective Death Penalty Act of 1996
limits a federal district court’s ability to grant a writ of
habeas corpus where a state court considered the federal
claim on the merits. When a federal court examines a state
court’s legal decision, the question is not whether the state
court’s decision was incorrect, but whether the decision was
contrary to, or involved an unreasonable application of,
Clearly established federal law, as determined by the
Supreme Court of the United States. 28 U.S.C. § 2254(d). It
is not enough that a federal court disagrees with a state court
decision; to grant a petition for a writ of habeas corpus, the
federal court must find that the state court’s decision was
objectively. unreasonable. In order to assess. the
reasonableness of a state court decision, a federal district
court must examine the entire state record for itself.

63a

For the reasons discussed below, upon full review of the
record, this Court will grant in part and deny in part Mr.
Joseph’s petition for a writ of habeas corpus. Finding Mr.
Joseph’s challenges to the constitutionality of the imposition
of the death penalty well-taken, the Court grants Mr.
Joseph’s petition based on his first, second, and portions of
his eighth and nineteenth grounds for relief. Because the
Court concludes that Mr. Joseph’s remaining grounds for
relief lack merit, it will not disturb his underlying conviction
for aggravated murder.

Accordingly, the Court will issue a writ of habeas corpus
ordering that Mr. Joseph’s sentence of death be vacated and a
new sentence of life imprisonment be imposed, as mandated
by O.R.C. § 2929.03(A).

I. FACT L BA
A. The nv a l
1. Facts of the Crime

The Supreme Court of Ohio began its opinion on direct
appeal with a statement of facts. State v. Joseph, 73 Ohio
St.3d 450 (1995). This statement of facts is set forth below,
interspersed as noted with additional details and clarification.

During the fall of 1989 . . . Richard E. Joseph, began
dating Cara M. Wireman. They began to date steadily
until sometime in February 1990. Cara decided to end
the relationship because she did not like the way
[Joseph] treated her and she attended her senior prom
with someone else. In April, Cara started dating the
victim, Ryan Young, a student at the same high
school. Ryan and [Joseph] knew each other from
playing together on the school football team.

Cara testified that [Joseph] was jealous of Ryan’s
relationship with her. [Joseph] wanted her to stop
seeing Ryan so they could renew their relationship.
This was evidenced by several letters [Joseph] wrote

64a

to Cara indicating his jealousy and desire to continue
dating Cara. In one letter, he indicated he had been
secretly watching Cara and Ryan together for three
hours. Cara knew that martial arts played a big part in
[Joseph’s] life and she had previously seen him with
guns and knives.

On Monday, June 25, 1990, the day prior to the
kidnapping, Cara and Ryan observed [Joseph] driving
around in the area where Cara and Ryan both lived.
Cara indicated she did not normally see [Joseph]
driving in this area.

Ms. Cara Wireman had been driving Mr. Ryan Young from
his house. (Tr. 1290). When she stopped at a stop sign on
Thayer Road

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2016%3A2. Public record. Not legal advice.