                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0101p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                            Petitioner-Appellant, -
 ROMELL BROOM,
                                                     -
                                                     -
                                                     -
                                                         No. 03-4370
          v.
                                                     ,
                                                      >
 BETTY MITCHELL,                                     -
                            Respondent-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
             No. 99-00030—Kathleen McDonald O’Malley, District Judge.
                                   Argued: November 30, 2005
                               Decided and Filed: March 17, 2006
               Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY,
Cleveland, Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL,
Cleveland, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY
FARRELL SWEENEY, Cleveland, Ohio, S. Adele Shank, LAW OFFICE OF S. ADELE SHANK,
Columbus, Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL,
Cleveland, Ohio, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
         KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Romell Broom (“Broom”)
appeals the district court’s denial of his petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254. Broom was sentenced to death in Ohio in 1985 for aggravated murder. We
review the following six issues raised by Broom: Brady violation, admission of other acts
testimony, ineffective assistance of counsel at the mitigation phase, prosecutorial misconduct, denial
of a continuance, and denial of the suppression of a “show-up” identification. Broom’s Brady claim
is based upon the fact that certain police reports were not made available to Broom’s counsel prior
to the trial but were later obtained as a result of Ohio Public Records Act requests and as a part of
federal habeas discovery. The State argues that Broom’s Brady claim is procedurally defaulted due
to the fact that the police reports were not used and the Brady claim was not presented during
Broom’s state postconviction relief proceedings. Broom responds that Ohio case law prevented him


                                                  1
No. 03-4370           Broom v. Mitchell                                                       Page 2


from using the police records at issue and that he has demonstrated the requisite cause and prejudice
such that his claim may be reviewed in spite of the procedural default.
       For the reasons discussed below, we AFFIRM the district court’s judgment denying Broom
habeas relief.
                                       I. BACKGROUND
         On September 21, 1984, Tryna Middleton (“Middleton”), Tammy Sims (“Sims”), and Bonita
Callier (“Callier”) were at a high school football game. Middleton was fourteen years old at the
time, and she was a ninth-grade student at the high school. After the football game, the three girls
began walking home, and they noticed a car that they thought looked suspicious. They walked away
from the car and down a different street. A car without its lights on then came towards the girls and
stopped in front of them; the driver exited the car and ran past the girls. Once the girls passed by
the parked car, they heard footsteps behind them and then an assailant tried to grab all of them. In
the course of the struggle with the girls, the assailant said, “Come here, bitch,” and he pulled out a
knife. Middleton was not able to get away from the assailant, but Sims and Callier escaped. They
ran to a nearby house, where the homeowner allowed them to call their mothers and the police. Sims
and Callier described the car and the assailant to the police. Approximately two hours later,
Middleton’s body was found in a parking lot; she had been stabbed in the chest and abdomen and
there were sperm cells found in her rectum and vagina. Sims and Callier were shown a series of
photographs, but were unable to identify a suspect at this point.
        There were two other incidents in the same area involving young girls. On September 18,
1984, Venita McKenney (“McKenney”) was walking home when a car passed her and then stopped.
When McKenney walked past the car, the driver got out and grabbed her. He also threatened
McKenney with a knife, and he called her a “bitch.” Residents who lived nearby heard the noise,
and McKenney was able to escape into their home. The other incident occurred on December 6,
1984, involving Melinda Grissom (“Grissom”). A car was following Grissom as she was walking
home, and as she turned a street corner, a man passed her and then grabbed her from behind. The
assailant began hitting Grissom, and he threw her into his car. Grissom’s younger sister observed
what happened and summoned the girls’ mother, who ran outside and grabbed the car door. As her
mother held on to the car, Grissom was able to escape through the passenger door. Two witnesses
were able to get the license plate number of the car, which the police traced to William Broom,
Broom’s father. When the police arrived, Broom admitted that he had been driving the car. The
police then took Broom to the hospital, where both Grissom and her mother identified him as the
assailant. The other two witnesses to the incident also identified Broom in a line-up.
        The similarities between these three incidents led the police to bring in the witnesses from
the McKenney and Middleton cases to view a line-up. The victims and witnesses each
independently identified Broom from the line-up; Sims and Callier also identified him in a photo
array. The police discovered that Broom had been driving his girlfriend’s car before it was wrecked
on November 6, 1984, and Sims identified Broom’s girlfriend’s car as the one from the night of the
Middleton incident. Callier stated that it was the same kind and color as the car used during the
incident. Tests revealed that the sperm discovered in Middleton’s vagina belonged to a person with
type B blood, which is the blood type of approximately twelve percent of the population; Broom’s
blood is type B.
        A Cuyahoga County grand jury issued an indictment charging Broom with the following:
(1) aggravated murder of Middleton with specifications for murder committed during the course of
a kidnaping and rape; (2) rape of Middleton; (3) kidnaping of Middleton; (4) kidnaping of Sims;
(5) kidnaping of Callier; (6) kidnaping of Grissom; (7) kidnaping of McKenney; and (8) felonious
No. 03-4370              Broom v. Mitchell                                                      Page 3


assault of Grissom. II1 Joint Appendix (“J.A.”) at 511-17 (Indictment). Counts Six through Eight
were severed, and Broom was tried on the first five counts in proceedings that began on
September 16, 1985. The jury found Broom guilty on each of the charges, and at the end of the
penalty phase, recommended a sentence of death. II J.A. at 528-30 (Op.). The state trial judge
sentenced Broom to death in October 1985, for aggravated murder. II J.A. at 537 (Journal Entry).
In addition, Broom was sentenced to 54-80 years of incarceration for the remaining counts. II J.A.
at 537 (Journal Entry). The state appellate court affirmed Broom’s conviction, State v. Broom, No.
51237, 1987 WL 14401 (Ohio Ct. App. July 23, 1987), and the state supreme court affirmed the
appellate court’s judgment, State v. Broom, 533 N.E.2d 682 (Ohio 1988). Broom filed a petition for
postconviction relief, which was dismissed on April 24, 1997. IV J.A. at 1374-87 (J. Entry). The
state court of appeals affirmed the dismissal, State v. Broom, No. 72581, 1998 WL 230425 (Ohio
Ct. App. May 7, 1998), and the state supreme court denied Broom leave to appeal, State v. Broom,
699 N.E.2d 946 (Ohio 1998) (Table).
        On June 21, 1999, Broom filed a federal habeas petition in the United States District Court
for the Northern District of Ohio. I J.A. at 17-151 (Pet’r Romell Broom’s Pet. for a Writ of Habeas
Corpus). The district court held an evidentiary hearing in January 2002 on the ineffective-
assistance-of-counsel claim and the Brady claim. XVIII J.A. at 8126-517 (Evidentiary Hr’g Tr.).
The district court filed an order and opinion on August 28, 2002, in which it denied habeas relief as
to each of the issues presented. I J.A. at 165-296 (Mem. & Order at 1-132). A certificate of
appealability was granted as to the following issues: admission of other acts testimony, ineffective
assistance of counsel during the mitigation phase, Brady violation, inadequate time for Broom’s
counsel to prepare for trial, and denial of the suppression of the “show-up” identification by the
Grissoms. I J.A. at 296-300 (Mem. & Order at 132-36). Broom filed a timely notice of appeal. We
issued a certificate of appealability for the additional issue of prosecutorial misconduct.
                                              II. ANALYSIS
A. Standard of Review
         We review de novo the district court’s findings of law, and we review for clear error its
findings of fact. Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000), cert. denied, 532 U.S. 989
(2001). Broom filed his habeas petition after April 24, 1996 — the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) — and the provisions of that
act thus apply in this case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). If a claim was “adjudicated
on the merits in State court proceedings,” a writ of habeas corpus may be granted pursuant to
AEDPA if the adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or if it “resulted in a decision that 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). In applying
§ 2254(d), we adhere to the following guidelines set forth by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 412-13 (2000):
       Under the “contrary to” clause, a federal habeas court may grant the writ if the state
       court arrives at a conclusion opposite to that reached by this Court on a question of
       law or if the state court decides a case differently than this Court has on a set of
       materially indistinguishable facts. Under the “unreasonable application” clause, a
       federal habeas court may grant the writ if the state court identifies the correct
       governing legal principle from this Court’s decisions but unreasonably applies that
       principle to the facts of the prisoner’s case.


       1
           The number preceding “Joint Appendix” indicates the volume number.
No. 03-4370                 Broom v. Mitchell                                                                         Page 4


“A federal habeas court may not find a state adjudication to be ‘unreasonable’ ‘simply because that
court concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.’” Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.
2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 947 (2001).
B. Brady
       Broom claims that the State violated his due process rights according 2
                                                                                 to the doctrine set forth
in Brady v. Maryland, 373 U.S. 83 (1963), by failing      to reveal material   gathered  by the police in
the course of investigating the Middleton case.3 Brady established 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.” Id. at 87. The Supreme Court has explained that there are “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.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Broom did not present his4 Brady claim to the
Ohio state courts, and the State asserts that the claim is procedurally defaulted. Appellee Br. at 25.
Before we can analyze the merits of this issue, we must first determine whether Broom’s failure to
raise the claim in the state court proceedings precludes federal court review.
         1. Exhaustion
       Broom first argues that his Brady claim should not be barred because “Ohio did not have an
available corrective procedure for presenting a Brady claim revealed for the first time in public
records obtained under the Ohio public records statute.” Br. Appellant at 35. This argument is
based on the Ohio Supreme Court case State ex rel. Steckman v. Jackson, 639 N.E.2d 83, 96 (Ohio
1994), which held that “a defendant in a criminal case who has exhausted   the direct appeals of his
or her conviction may not avail herself or himself of R.C. 149.435 to support a petition for
postconviction relief.” It is true that a failure to exhaust will not prevent a federal court from
addressing a claim in a habeas case if “there is an absence of available State corrective process.”
28 U.S.C. § 2254(b)(1)(B)(i). However, Broom’s argument conflates exhaustion and procedural


         2
          The material at issue included evidence that the three girls had been known to accept rides from men they did
not know, that they had used drugs on the night of the incident, that the girls did not make any noise while Middleton
was taken away, and that “Warren Hill [the resident who let Sims and Callier use his telephone] did not believe the girls’
‘abduction’ story when they first came to his house.” Appellant Br. at 49. This evidence was contained in East
Cleveland Police Department (“ECPD”) Reports. XII J.A. at 5435-594 (ECPD Documents).
         3
        Three departments worked on the Middleton case: the Cleveland Police Department, the East Cleveland Police
Department, and the Federal Bureau of Investigation. I J.A. at 177-79 (Mem. & Order at 13-15).
         4
             Broom concedes that he “did not first present his Brady claim to the Ohio state courts.” Appellant Br. at 30.
         5
          Section 149.43(B)(1) of the Ohio Revised Code states as follows:
         Subject to division (B)(4) of this section, all public records shall be promptly prepared and made
         available for inspection to any person at all reasonable times during regular business hours. Subject
         to division (B)(4) of this section, upon request, a public office or person responsible for public records
         shall make copies available at cost, within a reasonable period of time. In order to facilitate broader
         access to public records, public offices shall maintain public records in a manner that they can be
         made available for inspection in accordance with this division.
No. 03-4370                Broom v. Mitchell                                                                          Page 5


default, and it fails to recognize that procedural default may prevent him from raising his claim in
federal court even if exhaustion does not technically bar the claim.
        The Supreme Court has explained that “the problem of waiver is separate from the question
whether a state prisoner has exhausted state remedies.” Engle v. Isaac, 456 U.S. 107, 125 n.28
(1982); see also Thomas v. Woolum, 337 F.3d 720, 731 (6th Cir. 2003) (“Procedural default is . . .
distinct from the exhaustion requirement, an additional requirement added on top of exhaustion.”).
The Court explained that “Section 2254(b) requires habeas applicants to exhaust those remedies
‘available in the courts of the State.’ This requirement,       however, refers only to remedies still
available at the time of the federal petition.”6 Engle, 456 U.S. at 125 n.28. In Engle, the
respondents were in essentially the same position as Broom, because they “completed their direct
appeals” and they were prevented by Ohio law from raising a claim “that could have7been litigated
before judgment or on direct appeal.” Id. (citing Ohio Revised Code § 2953.21(A) ). The Court
concluded as follows: “Since respondents could have challenged the constitutionality of Ohio’s
traditional self-defense instruction at trial or on direct appeal, we agree with the lower courts that
state collateral relief is unavailable to respondents and, therefore, that they have exhausted their state
remedies with respect to this claim.” Id. The Engle opinion instead analyzed whether or not there
was cause and prejudice to excuse the petitioner’s procedural default. Id. at 124-35. As in Engle,
Broom is unable to satisfy the narrow requirements to bring a second postconviction       petition in the
Ohio state courts, and there is no longer an available state court remedy.8 I J.A. at 207-08 (Mem.


         6
           Justice Stevens elaborated on the difference between the two doctrines in his dissenting opinion in O’Sullivan
v. Boerckel, 526 U.S. 838 (1999). The exhaustion doctrine “requires federal courts to ask whether an applicant for
federal relief could still get the relief he seeks in the state system. If the applicant currently has a state avenue available
for raising his claims, a federal court, in the interest of comity, must generally abstain from intervening.” Boerckel, 526
U.S. at 851 (Stevens, J., dissenting). Justice Stevens concluded that
          The presence or absence of exhaustion, in sum, tells us nothing about whether a prisoner has defaulted
          his constitutional claims. Exhaustion is purely a rule of timing and has played no role in the series of
          waiver decisions that foreclosed challenges to the composition of the grand jury, evidentiary rulings
          at trial, instructions to the jury, and finally, counsel’s inadvertent error in failing to file a timely appeal
          from a state court’s denial of collateral relief. The Court’s reasons for progressively expanding its
          procedural default doctrine were best explained in the cases that arose in a trial setting. By failing to
          raise their constitutional objections at trial, defendants truly impinge state courts’ ability to correct,
          or even to make a record regarding the effect of, legal errors.
Id. at 856 (Stevens, J., dissenting). See also id. at 848 (majority) (“[W]e do not disagree with [Justice Stevens’s]
description of the interplay of these two doctrines.”).
         7
           Section 2953.21(A)(1)(a) states:
          Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who
          claims that there was such a denial or infringement of the person's rights as to render the judgment
          void or voidable under the Ohio Constitution or the Constitution of the United States . . . may file a
          petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the
          court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner
          may file a supporting affidavit and other documentary evidence in support of the claim for relief.
Subsection (A)(4) explains that “[a] petitioner shall state in the original or amended petition filed under division (A) of
this section all grounds for relief claimed by the petitioner. Except as provided in section 2953.23 of the Revised Code,
any ground for relief that is not so stated in the petition is waived.”
         8
          According to Ohio Revised Code § 2953.23(A)(1), Broom is unable to submit a second petition for relief
unless the following two requirements are satisfied:
         (a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the
                facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the
                period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of
                an earlier petition, the United States Supreme Court recognized a new federal or state right that
                applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim based
                on that right.
         (b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial,
No. 03-4370                 Broom v. Mitchell                                                                       Page 6


& Order at 43-44). Thus, exhaustion is not an issue before us, and we need only analyze Broom’s
Brady claim with regard to procedural default.
        2. Procedural Default
        We have explained the doctrine of procedural default as follows:
        When a habeas petitioner fails to obtain consideration of a claim by a state court,
        either due to the petitioner’s failure to raise that claim before the state courts while
        state-court remedies are still available or due to a state procedural rule that prevents
        the state courts from reaching the merits of the petitioner’s claim, that claim is
        procedurally defaulted and may not be considered by the federal court on habeas
        review.
Seymour, 224 F.3d at 549-50 (citing Wainwright v. Sykes, 433 U.S. 72, 80 (1977)). Broom was
entitled to raise his Brady claim in the Ohio state courts pursuant to Ohio Revised Code
§ 2953.21(A)(1)(a), and because he did not do so, the claim is procedurally defaulted. Procedural
default may be avoided “only by showing that there was cause for the default and prejudice resulting
from the default, or that a miscarriage of justice will result from enforcing the procedural default in
the petitioner’s case.”9 Seymour, 224 F.3d at 550 (citing Sykes, 433 U.S. at 87).
         The Sykes opinion “plainly implied that default of a constitutional claim by counsel pursuant
to a trial strategy or tactical decision would, absent extraordinary circumstances, bind the habeas
petitioner even if he had not personally waived that claim.” Murray v. Carrier, 477 U.S. 478, 485
(1986) (citing Sykes, 433 U.S. at 91 n.14). The Carrier Court elaborated on the meaning of “cause”:
“we think that the existence of cause for a procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Id. at 488. The Court “not[ed] that a showing that the
factual or legal basis for a claim was not reasonably available to counsel, or that ‘some interference
by officials,’ made compliance impracticable, would constitute cause under this standard.” Id.
(internal citations omitted). Ineffective assistance of counsel may constitute cause, but “a claim of
ineffective assistance [must generally] be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” Id. at 488-89.
       Broom offers several arguments as to why there was cause for the procedural default of his
Brady claim. We will discuss each of these arguments in turn below.




               no reasonable factfinder would have found the petitioner guilty of the offense of which the
               petitioner was convicted or, if the claim challenges a sentence of death that, but for
               constitutional error at the sentencing hearing, no reasonable factfinder would have found the
               petitioner eligible for the death sentence.
The district court concluded that Broom could not satisfy part (a) of this test. I J.A. at 207 (Mem. & Order at 43).
Neither party has contested this determination.
        9
            Broom does not argue that a miscarriage of justice will result from enforcing the procedural default in his case.
No. 03-4370                  Broom v. Mitchell                                                                        Page 7


                     a. Steckman
        First, Broom argues that the Ohio Supreme Court’s decision in Steckman foreclosed the use
of records that were obtained while Broom’s petition for state postconviction relief was pending.10
In Steckman, the Ohio Supreme Court analyzed various aspects of public-records litigation in the
context of criminal proceedings; one of the issues in the case involved a defendant’s effort to acquire
police records for purposes of seeking postconviction relief. Steckman, 639 N.E.2d at 95-96. The
court stated that the records in question were “exempt from disclosure based upon the work product
exception” of the public-records statute. Id. at 96. Steckman concluded that “a defendant in a
criminal case who has exhausted the direct appeals of her or his conviction may not avail herself or
himself of R.C. 149.43 to support a petition for postconviction relief.” Steckman, 639 N.E.2d at 96.
        There are two Ohio Court of Appeals decisions interpreting Steckman’s rule to be a strict bar
against any use of public records in the course of seeking postconviction relief; these cases therefore
support Broom’s assertion that Steckman prevented his use of the police records in his possession.
See State v. Walker, 657 N.E.2d 798, 800 (Ohio Ct. App. 1995) (“[T]he police reports which figure
prominently in Walker’s second petition could not have been considered by the trial court even had
it elected to entertain Walker’s petition because Walker had obtained those reports through the
Public Records Act.”); State v. Storer, No. 94-CA-07, 1994 WL 667186, at * 2 (Ohio Ct. App. Nov.
4, 1994) (“[W]e believe that the rule of [Steckman] requires us to reject materials obtained through
an R.C. 149.43 public records request as a basis for a motion for new trial.”). As the district court
noted, “[b]oth Walker and Storer, out of the Second District, cursorily rejected any use of these
public records to support a petition for post-conviction relief.” I J.A. at 209 (Mem. & Order at 45).
         However, the State contends that Steckman did not preclude Broom from using the records
in his postconviction relief proceedings for several reasons, namely that Broom had received all of
the relevant records prior to the decision in Steckman and that Ohio case law did not bar claims
based on records obtained prior to Steckman. Appellee Br. at 26-32. With regard to the first of these
arguments, the State claims that Steckman is irrelevant because “Broom still fails to account for the
pre-Steckman accumulation of 1,485 pages of public records that he had an unquestionable right to
use.” Appellee Br. at 31. However,  11
                                         only 19 pages of this were the relevant East Cleveland Police
Department (“ECPD”)         reports,   and these pages were apparently received a matter of months
before Steckman.12 Broom argues that he “cannot be held to have defaulted his Brady claim, for
failing to file it in the substantially smaller window of opportunity left to him once the State began
to trickle out the discoverable records.” Appellant Br. at 39. Broom may be correct that he should




         10
              Broom filed a petition for state postconviction relief in 1990. III J.A. at 993-1114 (Pet. to Vacate or Set Aside
Sentence).
         11
            Both parties agreed at oral argument in this court that only 19 pages of the 165 total pages of ECPD reports
were in the possession of Broom’s counsel prior to Steckman. See also Appellant Br. at 21 n.3. The pages that Broom’s
counsel received include reports based on interviews with individuals who knew the three girls or who had seen them
on the night of the murder; these reports provide evidence that the girls may have been drinking alcohol and smoking
marijuana on the night of the murder, that Middleton may have gotten into cars with men she did not know on previous
occasions, and that there were rumors that all three of the girls initially got in the car with Broom but that Callier and
Sims later escaped. V J.A. at 2153-58, 2410-19 (ECPD Supplementary Reports).
         12
             At the evidentiary hearing held at the district court, Broom’s trial counsel Richard Vickers (“Vickers”)
testified that the ECPD reports were received in 1993-1994. XVIII J.A. at 8148 (Evidentiary Hr’g Tr. at 23) (Vickers
Test.). At oral argument in this court, Broom’s attorney stated that Vickers only had these records for a “few months”
before Steckman was decided in September 1994.
No. 03-4370               Broom v. Mitchell                                                                       Page 8


not be penalized for failing to file another petition based on the police reports prior to Steckman;13
however, we are still left with the question of whether Steckman was sufficient cause for his failure
to do so at a later point. The State asserts — and the district court agreed — that Ohio law was
unsettled as to the question of whether or not Broom could have filed another petition (or amended
his pending petition)14 post-Steckman, and we turn now to that key issue.
         The State and the district court both relied on State v. Apanovitch, 667 N.E.2d 1041 (Ohio
Ct. App. 1995)  as support for the fact that Broom was not barred from bringing his claim in the Ohio
state courts.15 Appellee Br. at 29-30; I J.A. at 209 (Mem. & Order at 45). In Apanovitch, the
petitioner argued that the state trial court had improperly prevented him from seeking further
discovery in the course of his postconviction relief, and the state court of appeals found that
Apanovitch’s previous public-records request pursuant to § 149.43 barred him from seeking the
same materials because the issue had already been litigated. Apanovitch, 667 N.E.2d at 1051. The
Apanovitch court noted the Steckman and Walker decisions, but concluded that “[w]e have no
occasion to consider the import of these decisions, since the successor petition for postconviction
relief predated Steckman, and then-applicable law permitted the use of the Public Records Act.”
Apanovitch, 667 N.E.2d at 1051-52. Broom distinguishes Apanovitch on the basis that the petitioner
in that case had already filed his claim based on public records at the time that Steckman was
decided, whereas Broom had not filed a claim based on the police records at that time. Appellant
Br. at 37 n.9. The State responds that “the timing of Apanovitch’s filing does not necessarily show
that it predated the Ohio Supreme Court’s September 7, 1994 Steckman decision.” Appellee Br. at
29. This statement is based upon testimony of a prosecutor, who worked        on the Apanovitch case,
that was given during the federal evidentiary hearing in Broom’s case.16 XVIII J.A. at 8503-04
(Evidentiary Hr’g Tr. at 378-79) (Frey Test.).
        Regardless of the timing of the filing in the Apanovitch case, that case supports the general
proposition that Steckman may not bar the use of records already in the petitioner’s possession.
Rather, Steckman may only bar efforts to obtain new information pursuant to the public-records
statute during postconviction proceedings. Because Steckman does not directly address this issue,
there was a reasonably available “legal basis” for Broom either to file another petition for
postconviction relief or to amend the petition that he had already filed. Carrier, 477 U.S. at 488.
A 2003 Ohio Court of Appeals decision highlights the ambiguity of the Steckman rule because it
held that “Steckman ‘addresses only the duty to respond to defendant’s request for certain
documents, it addresses not at all, the admissibility of information contained in these documents at
hearing.’” State v. Larkins, No. 82325, 2003 WL 22510579, at *3 (Ohio Ct. App. Nov. 6, 2003).



         13
             Prior to 1995, Ohio law imposed no time limits for filing a petition for postconviction relief. OHIO REV. CODE
§ 2953.21(A). Broom was thus under no obligation to have filed his petition prior to Steckman. In 1995, however, the
statute was amended, and the current version imposes a 180-day deadline for such filings. § 2953.21(A)(2). If the
“direct appeal involves a sentence of death,” the 180-day period commences on “the date on which the trial transcript
is filed in the supreme court.” § 2953.21(A)(2).
         14
           Section 2953.21(F) states as follows: “At any time before the answer or motion is filed, the petitioner may
amend the petition with or without leave or prejudice to the proceedings. The petitioner may amend the petition with
leave of court at any time thereafter.”
         15
          Apanovitch was decided in the Eighth District of the Ohio Court of Appeals, the same district in which
Broom’s case was litigated.
         16
           The prosecutor stated that Anthony Apanovitch filed a second successor petition for postconviction relief
in August 1995 that contained Cleveland police records and that was considered on the merits by the courts. XVIII J.A.
at 8505 (Evidentiary Hr’g Tr. at 380) (Frey Test.).
No. 03-4370               Broom v. Mitchell                                                                      Page 9


In Larkins, the petitioner’s request for a writ of mandamus seeking police records was denied,17 but
a third party obtained the relevant records through a public-records request. Id. at *2. The petitioner
then used the police records to file a motion for a new trial, and after the motion was granted, the
State argued that this was incorrect in light of Steckman. Id. The court of appeals affirmed the trial
court, explaining that “Steckman is inapplicable to the instant case.” Id. at *3. Although Broom
argues that “[r]easonable counsel, like the Ohio Courts of Appeal that applied it, read Steckman as
a prohibition,” Appellant Br. at 38, the Supreme Court has stated that “the mere fact that counsel
failed to recognize   the factual or legal basis for a claim, or failed to raise the claim despite
recognizing it,18 does not constitute cause for a procedural default,” Carrier, 477 U.S. at 486. We
thus conclude that the Steckman decision does not constitute cause for Broom’s procedural default
of his Brady claim.
                  b. State delay
        Broom argues that “[t]imely release by the State would have allowed discovery of the Brady
issue long before Steckman was decided.” Appellant Br. at 39. Broom had 19 pages of the relevant
material in his possession prior to Steckman, even if by only a few months. XVIII J.A. at 8148
(Evidentiary Hr’g Tr. at 23) (Vickers Test.). Broom’s counsel conceded at our oral argument that
the relevant information was present in the 19 pages, but he asserted that Broom’s postconviction
counsel did not realize the extent of the evidence available. The fact that there might have been
more information available is insufficient to establish cause for failing to bring a Brady claim in the
state courts. Furthermore, we note that because Steckman should not have prevented Broom’s
counsel from filing a claim on his behalf, the19fact that the pertinent information was received shortly
before the Steckman decision is irrelevant.
                  c. Postconviction judge’s instructions
        The lawyers involved in Broom’s postconviction proceedings testified at the evidentiary
hearing to the fact that state trial “Judge Matia clearly expressed his displeasure over the fact that
Broom’s postconviction counsel had filed a number of pleadings in the case.” Appellant Br. at 40;
see also IV J.A. at 1857 (Vickers Aff.) (“It appeared to me that Judge Matia seemed distressed that
we had filed numerous pleadings. The inference that I drew from this meeting was that Judge Matia
was displeased with the manner in which we were litigating Mr. Broom’s case. Based on the
meeting I formed the opinion that it would be futile for us to file any future legal documents on Mr.
Broom’s behalf.”). Broom concedes that Judge Matia’s remarks may have been “merely


         17
        Larkins’s mandamus request was one of the three cases consolidated in the Steckman opinion. Larkins, 2003
WL 22510579, at *2.
         18
            The State raised the idea at oral argument before this court that Broom’s trial counsel may have deliberately
chosen not to file the Brady claim, and that Steckman was offered as a belated excuse for the failure to do so. Vickers
first mentioned at the federal evidentiary hearing that the Steckman decision was a motivating factor for not filing a
Brady claim with the state courts. XVIII J.A. at 8162-63 (Evidentiary Hr’g Tr. at 37-38) (Vickers Test.). Prior to the
federal evidentiary hearing, Vickers filed at least one affidavit stating that he did not file a claim because he believed
that Judge Matia — who was the state trial judge in Broom’s case — would not have been receptive to further filings.
XVIII J.A. at 8161-62 (Evidentiary Hr’g Tr. at 36-37) (Vickers Test.). Vickers also testified that he thought that the
documents might be of more use to Broom during his federal habeas litigation. XVIII J.A. at 8154-55 (Evidentiary Hr’g
Tr. at 29-30) (Vickers Test.).
         19
            Broom’s postconviction counsel received the documents by 1994, at which point there was no time limitation
on filing a petition for postconviction relief pursuant to § 2953.21(A). Vickers testified that when the law changed in
1995 to impose a deadline for such filings, the public defenders went through “the files of all existing post-conviction
cases in the office,” including Broom’s files. XVIII J.A. at 8150 (Evidentiary Hr’g Tr. at 25) (Vickers Test.). Thus,
Broom’s counsel had ample time to file the Brady claim after Steckman was decided.
No. 03-4370             Broom v. Mitchell                                                               Page 10


informative.” Appellant Br. at 40. Even if such remarks could constitute cause for failing to present
a claim to the state court, this argument is precluded by the fact that Judge Matia had left the state
court to take a position on the federal bench by 1992, well before the relevant records were received
in 1993-1994. XVIII J.A. at 8153 (Evidentiary Hr’g Tr. at 28) (Vickers Test.).
                 d. Due diligence of counsel
         Finally, Broom argues that “[d]ue diligence does not require counsel to file pleadings or seek
relief in direct contradiction of the law.” Appellant Br. at 41. This is merely a restatement of the
Steckman argument, which we discussed above.
        As Broom has not shown the requisite cause to excuse the procedural default of this claim,
we will not examine whether he has shown the requisite prejudice, nor will we proceed to the merits
of Broom’s Brady claim. See Smith v. Murray, 477 U.S. 527, 533 (1986) (“We need not determine
whether petitioner has carried his burden of showing actual prejudice from the allegedly improper
admission of Dr. Pile’s testimony, for we think it self-evident that he has failed to demonstrate cause
for his noncompliance with Virginia’s procedures.”). We affirm the district court’s judgment
denying habeas relief as to this issue.
C. “Other Acts” Evidence
       The state trial court permitted the introduction of evidence regarding the incidents involving
Venita McKenney and Melinda Grissom; Broom asserts that this admission of “other acts” evidence
denied him his constitutional rights to due process and a fair trial. Appellant Br. at 59.
       In Huddleston v. United States, 485 U.S. 681, 691 (1988), the Supreme Court discussed the
circumstances under which the admission of other acts evidence is proper:
        We share petitioner’s concern that unduly20prejudicial evidence might be introduced
        under [Federal Rule of Evidence 404(b)]. We think, however, that the protection
        against such unfair prejudice emanates not from a requirement of a preliminary
        finding by the trial court, but rather from four other sources: first, from the
        requirement of Rule 404(b) that the evidence be offered for a proper purpose;
        second, from the relevancy requirement of Rule 402 — as enforced through Rule
        104(b); third, from the assessment the trial court must make under Rule 403 to

        20
            Federal Rule of Evidence 404(b) states:
         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order
         to show action in conformity therewith. It may, however, be admissible for other purposes, such as
         proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
         accident, provided that upon request by the accused, the prosecution in a criminal case shall provide
         reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause
         shown, of the general nature of any such evidence it intends to introduce at trial.
Ohio Rule of Evidence 404(B) is substantially similar to the federal rule:
         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order
         to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such
         as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
         or accident.
Ohio Rule of Evidence 404(B) and Ohio Revised Code § 2945.59 together “codify an exception to the common law with
respect to evidence of other acts of wrongdoing.” Broom, 533 N.E.2d at 689-90. Section 2945.59 states:
         In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on
         his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the
         defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or
         the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are
         contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or
         tend to show the commission of another crime by the defendant.
No. 03-4370               Broom v. Mitchell                                                                   Page 11


         determine whether the probative value of the similar acts evidence is substantially
         outweighed by its potential for unfair prejudice; and fourth, from Federal Rule of
         Evidence 105, which provides that the trial court shall, upon request, instruct the jury
         that the similar acts evidence is to be considered only for the proper purpose for
         which it was admitted.
Huddleston, 485 U.S. at 691 (internal citations omitted). In reviewing this claim, we note that
“[t]rial court errors in state procedure and/or evidentiary law do not rise to the level of federal
constitutional claims warranting relief in a habeas action unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment.”
McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.) (citing Estelle v. McGuire, 502 U.S. 62, 69-70 (1991)),
cert. denied, 543 U.S. 892 (2004). “Generally, state-court evidentiary rulings cannot rise to the level
of due process violations unless they ‘offend[ ] some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.’” Seymour, 224 F.3d at 552 (quoting
Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
         The Ohio Supreme Court began its discussion of this issue by stating as follows:
         We note that appellant was positively identified either in a lineup or a showup and
         in the courtroom by both of the victims and numerous witnesses to those two
         incidents. The jury was given a carefully drafted limiting instruction to explain that
         the evidence concerning those two incidents was admitted only for the purpose of
         considering whether those acts tended to show intent, motive, scheme, plan or system
         for the September 21 and 22 kidnapping, rape, and murder21   of Tryna Middleton and
         attempted kidnapping of Tammy Sims and Bonita Callier.
Broom, 533 N.E.2d at 689. At trial, Broom asserted that this was a case of “mistaken identity
because he allegedly was with someone else the night that Tryna died.” Broom, 533 N.E.2d at 690.
The state supreme court explained that “[i]f the other act does in fact ‘tend to show’ by substantial
proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident, then evidence of the other act may be
admissible.” Id. “The issue of identity, although not listed in [§ 2945.59], has been held to be
included within the concept of scheme, plan, or system.” Id. at 689 (citing State v. Curry, 330
N.E.2d 720, 725-26 (Ohio 1975)). In Curry, the Ohio Supreme Court explained that:
         One recognized method of establishing that the accused committed the offense set
         forth in the indictment is to show that he has committed similar crimes within a
         period of time reasonably near to the offense on trial, and that a similar scheme, plan
         or system was utilized to commit both the offense at issue and the other crimes.
Curry, 330 N.E.2d at 726. In Broom’s case, the state supreme court applied the test set forth in
Curry and concluded as follows:
         All three incidents occurred within a few months of each other, within a few miles
         of each other, and all involved young girls between the ages of eleven and fourteen
         walking along a street after dark. The method in all three incidents was identical:


         21
           The state trial judge instructed the jury that
        Evidence has been introduced of other acts by the Defendant. Such evidence, if true, has a limited
        purpose. You may consider the Defendant’s other acts if and when those other acts tend to show his
        intent or motive, or his scheme, plan, or system in doing the acts charged in this trial. Such evidence
        of other acts must not be considered for any other purpose.
XVII J.A. at 7914 (Tr. at 1823).
No. 03-4370               Broom v. Mitchell                                                                    Page 12


         a lone driver in a car passed the victims, parked the car and then attacked them from
         behind, trying to get the victims into the car while using the same scurrilous
         language. Two of the incidents involved the same car and a knife. We view the
         evidence of the other incidents as admissible because it is relevant to the issue of
         appellant’s defense of mistaken identity.
Broom, 533 N.E.2d at 690.
        The district court stated that “[w]hile the [c]ourt has some concerns about the decision to
admit this evidence, the [c]ourt cannot say that the state court’s view of it — that it was directly
probative of the credibility of Broom’s alibi defense — was unreasonable.” I J.A. at 204 (Mem. &
Order at 40). In addition, the district court found that “in light of the substantial other direct
evidence tying Broom to the Tryna Middleton murder — including eyewitness identification — the
admission of this other act evidence did not so materially affect the outcome of the trial as to render
it fundamentally unfair.” I J.A. at 204 (Mem. & Order at 40) (citing Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)). We agree with the district court that the state court’s decision was not
objectively unreasonable, and we affirm the district court’s judgment denying habeas relief as to this
issue.
D. Ineffective Assistance of Trial Counsel
        Broom argues that his trial counsel was constitutionally ineffective during the mitigation
phase of his trial.22 Appellant Br. at 65. As support for this claim, he states that his counsel did not
adequately investigate his background; that the mitigation expert assigned to his case did not provide
any services for him; that no effort was made to secure further psychiatric evaluation after Broom
did not open up to the psychiatrist who was sent to interview him; that his counsel “made him appear
dishonest and predatory” by allowing evidence of his prior convictions to be introduced through
cross-examination of his father; and that his counsel attempted to use “residual doubt” as a
mitigating factor even after it no longer made sense to do so. Appellant Br. at 65-70.
        “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.”23 Strickland v. Washington, 466 U.S. 668, 686 (1984). In
Strickland, the Supreme Court articulated a two-part test for determining whether counsel was
constitutionally ineffective:
         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.
         Second, the defendant must show that the deficient performance prejudiced the
         defense. This requires showing that counsel’s errors were so serious as to deprive
         the defendant of a fair trial, a trial whose result is reliable.


         22
             It appears that Broom raised an ineffective-assistance-of-counsel claim in his state postconviction petition,
but that it was rejected on the basis of res judicata. See IV J.A. at 1389, 1406 (Merit Br. of Appellant) (noting that the
state trial court dismissed Broom’s postconviction case on October 31, 1996, and arguing that the “trial court erred in
dismissing Mr. Broom’s claims of ineffective assistance of counsel during both phases of his capital trial”); State v.
Broom, No. 72581, 1998 WL 230425, at *1-2 (Ohio Ct. App. May 7, 1998) (upholding the dismissal on the basis of res
judicata). However, the State did not argue that the claim was procedurally defaulted, and the district court thus
addressed it on the merits. I J.A. at 271 (Mem. & Order at 107).
         23
          The same test is applied to the sentencing phase of a capital case as to the guilt phase. Strickland v.
Washington, 466 U.S. 668, 686 (1984).
No. 03-4370               Broom v. Mitchell                                                                   Page 13


Strickland, 466 U.S. at 687. “A counsel’s failure to make a reasonable investigation of a defendant’s
psychiatric history and family background, and to present mitigating evidence to the jury at
sentencing, can constitute ineffective assistance.” Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir.
2005) (citing Wiggins v. Smith, 539 U.S. 510, 522-23 (2003)).
        The district court — applying the Strickland standard — concluded that “although Broom
may have benefitted from some psychiatric explanation of the impact of his upbringing on his
psyche, his counsel were not objectively unreasonable in failing to present this testimony because
most, if not all, was presented in some form during mitigation.” I J.A. at 274 (Mem. & Order at
110). The district court elaborated that “[w]ith the exception of parental drug and alcohol abuse, all
other factors — the physical violence, marital infidelities, the inconsistent forms of discipline, and
the fact that Broom was24forced to drop out of school to care for his younger siblings — were all
presented during trial.” I J.A. at 274 (Mem. & Order at 110). Furthermore, during the federal
evidentiary hearing, “Broom’s habeas counsel were unable to articulate what further factual
mitigation would have been proferred.” I J.A. at 274 (Mem. & Order at 110). The district court
concluded that the state postconviction court did not        unreasonably deny Broom’s claim of
ineffective assistance of counsel pursuant to Strickland.25 I J.A. at 277 (Mem. & Order at 113). We
agree with this conclusion.
        “To establish deficient performance, a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of reasonableness.’” Wiggins, 539 U.S. at 521
(quoting Strickland, 466 U.S. at 688). “In assessing the reasonableness of an attorney’s
investigation . . . a court must consider not only the quantum of evidence already known to counsel,
but also whether the known evidence would lead a reasonable attorney to investigate further.” Id.
at 527. In preparation for Broom’s trial, Broom’s attorneys set up an appointment for Broom to
meet with a psychiatrist, they spoke with members of Broom’s family, and they collected records
from the welding school that Broom attended as well as from the prison. XVIII J.A. at 8212-15
(Evidentiary Hr’g Tr. at 87-90) (Brusnahan Test.). One of Broom’s trial attorneys explained that
the main goals of the defense at mitigation were to keep the fact of Broom’s prior rape conviction
from the jury, and to establish that
         Romell was the product of a very dysfunctional familiarly [sic] background; that he
         had a very difficult early childhood; that he had witnessed a number of things that
         were very unpleasant to say the least about the relationship between his mother and
         his father when he was growing up; that he was quite a reserved young man; that he
         did very well when he applied himself.



         24
            Ella Mae Broom (Broom’s mother) testified that her children were aware that her husband had numerous
extramarital affairs, that they witnessed fighting and abuse between her and her husband, and that Broom dropped out
of school in the tenth grade and cared for his siblings. XVIII J.A. at 8033-38 (Trial Tr. at 1942-47) (Ella Mae Broom
Test.). She also stated that Broom’s sister was stabbed and killed in 1984. XVIII J.A. at 8031 (Trial Tr. at 1940) (Ella
Mae Broom Test.).
         25
              The district court cited the following statement from the state postconviction court:
           The record, specifically the trial court’s opinion, clearly shows that counsel had presented ample
           evidence of petitioner’s family history and social background by testimony from petitioner’s father,
           mother and teacher. Petitioner himself gave an unsworn statement during the penalty phase of the
           trial. Counsels [sic] breached no essential duties to their client; in fact, their presentation of the
           defendant’s witnesses prior to the mitigation phase demonstrated their dedication to the defendant’s
           case. Nothing in the record demonstrates that trial counsels’ [sic] efforts in this regard were below
           “an objective standard of reasonableness.” Strickland, supra.
I J.A. at 276 (Mem. & Order at 112) (quoting State v. Broom, No. CR196643, slip op., at 18-19 (Ohio Ct. Common Pleas
Apr. 24, 1997)).
No. 03-4370                Broom v. Mitchell                                                                     Page 14


XVIII J.A. at 8217-18 (Evidentiary Hr’g Tr. at 92-93) (Brusnahan Test.). To that end, the jury heard
testimony from Broom’s mother, father, and a counselor from the welding school. XVIII J.A. at
8017-8062 (Tr. at 1926-71). One of his attorneys testified at the federal evidentiary hearing that
there were more sources of information to explore, but that there was no time to do so in light of the
state trial court’s denial of their request for a continuance. XVIII J.A. at 8215 (Evidentiary Hr’g Tr.
at 90) (Brusnahan Test.).
        It is clear, as stated above, that Broom’s counsel could have gathered additional information
in order to present a more complete picture of Broom’s difficult background. However, we are not
convinced that his counsel’s performance was constitutionally inadequate. This is not a case in
which counsel was or should have been alerted to additional probative evidence about the petitioner,
and the counsel then failed to research the evidence. See, e.g., Rompilla v. Beard, 125 S. Ct. 2456,
2467 (2005) (“Counsel fell short here because they failed to make reasonable efforts to review the
prior conviction file, despite knowing that the prosecution intended to introduce Rompilla’s prior
conviction not merely by entering a notice of conviction into evidence but by quoting damaging
testimony of the rape victim in that case.”). A comparison to our decision in Harries v. Bell, 417
F.3d 631, 638 (6th Cir. 2005), illustrates this difference as well. In Harries, we held that
         [W]e cannot escape the conclusion that Harries’s counsel failed to conduct a
         constitutionally adequate investigation. Counsel limited their investigation to
         contacting by telephone Harries’s mother and brother, sending requests for
         information to some of the institutions in which Harries had been confined, and
         interviewing Harries, Harries’s codefendant, and two state witnesses. Although
         counsel requested two court-ordered competency evaluations, they declined to seek
         the assistance of a mental health expert or conduct a thorough investigation of
         Harries’s mental health, even after Harries’s mother alerted them that Harries
         suffered from mental illness. Nor did counsel adequately investigate Harries’s
         family background, despite indications of Harries’s troubled childhood.
Id. Broom’s counsel did not do a great deal more than counsel in Harries, but they also did not
refuse expert assistance or ignore signs of mental illness. Rather, Broom’s counsel attempted to
obtain psychological testimony26 as well as the services of a mitigation expert, in addition to
contacting his family members, his school, and the prison. Their actions were not objectively
unreasonable.
         Even if Broom’s counsel’s performance at the mitigation phase of his trial was deficient, he
cannot satisfy the prejudice prong of the Strickland test. “To satisfy the prejudice prong, a petitioner
must prove that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Harries, 417 F.3d at 637. The additional
evidence27that Broom identifies elaborates his difficult childhood as was described by his mother at
the trial. We have held that the failure to present additional mitigating evidence that is “merely
cumulative” of that already presented does not rise to the level of a constitutional violation. Clark,
425 F.3d at 286; Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.), cert. denied, 126 S. Ct. 744 (2005);
Smith v. Mitchell, 348 F.3d 177, 202 (6th Cir. 2003), cert. denied, 543 U.S. 1016 (2004). “[T]o
establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial

         26
           While ideally Broom’s counsel would have attempted to secure another psychological expert when Broom
refused to open up to the first expert, it is not clear that Broom would have cooperated with another psychiatrist or
psychologist even if one had been available.
         27
            This additional evidence includes the fact that Broom was placed in a juvenile detention facility as a teenager,
that a close friend of Broom’s was shot and killed, and that Broom’s father was a pimp. Appellant Br. at 67.
No. 03-4370               Broom v. Mitchell                                                                     Page 15


way — in strength and subject matter — from the evidence actually presented at sentencing.” Clark,
425 F.3d at 286 (quoting Hill, 400 F.3d at 319).
          Broom argues that “[a] psychological evaluation, social history, and thoughtful preparation
would have allowed a mitigation case to be presented that explained Broom’s prior28conviction [for
rape] and the other acts evidence admitted at trial in the context of his life history.” Appellant Br.
at 68. In Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir.), cert. denied, 537 U.S. 1004 (2002), the
“defense counsel did not produce expert testimony to draw conclusions from the facts presented by
. . . two witnesses [family members],” but we noted that the underlying “facts and occurrences” were
all presented to the jury and the petitioner’s counsel was therefore not constitutionally ineffective.
We agree that Broom’s counsel should have taken greater pains to provide some context for the jury;
however, the additional evidence that could have been presented simply does not substantially differ
from29the evidence actually presented so as to undermine confidence in the outcome of Broom’s
trial.
        The district court also noted that Broom’s claim of ineffective assistance of counsel with
regard to the examination of his father and Broom’s prior rape conviction is without merit because
of the court’s conclusion that there was “no constitutional violation in the trial court’s decision to
permit cross-examination of William Broom.” I J.A. at 277, 204 (Mem. & Order at 113, 40). The
State points out that the jury was already aware that Broom had spent time in prison, and Broom
himself referenced his prior rape conviction in his unsworn statement given during the mitigation
phase. XVIII J.A. at 8053, 8065 (Tr. at 1962, 1974). Regardless of whether or not it was error for
Broom’s counsel to “open[] the door” to this testimony,” Appellant Br. at 68, Broom cannot satisfy
the prejudice prong of the Strickland test because the information regarding his prior rape conviction
was independently revealed to the jury.
E. Prosecutorial Misconduct
       Broom claims that “[t]he prosecutorial misconduct in this case was egregious, pervasive and
prejudicial.” Br. Appellant at 70. He first lists several examples of statements from the guilt30
                                                                                                phase
of his trial, including a statement that the 31prosecutor was not withholding evidence, the
characterization of Broom as a “serial killer,” the description of the sexual conduct evidence as
“proof of the victim’s rape,” and a false statement that Middleton was raped “vaginally and

         28
           At the federal evidentiary hearing, one of Broom’s trial attorneys discussed the admission of the evidence
regarding Broom’s prior rape conviction: “[I]t was such a damning piece of evidence that I think at that point, whatever
mitigation we were putting forward, was pretty much a futile effort. I don’t think there was any question in anybody’s
mind once that came out that this mitigation was going nowhere.” XVIII J.A. at 8346 (Evidentiary Hr’g at 221)
(Rossman Test.).
         29
            Broom submitted an expert report by Dr. Nancy Schmidtgoessling at the federal evidentiary hearing that
provides further details about his family life. III J.A. at 1227 (Schmidtgoessling Aff.). Dr. Schmidtgoessling concluded
that “[Broom] was profoundly [a]ffected, and early on began to learn to isolate his feelings, learn not to become invested
in close relationships because they are so painful, developed a very ambivalent attitude towards women, and struggled
with a sense of personal importance and direction.” III J.A. at 1230 (Schmidtgoessling Aff.). While this statement
certainly provides more information about Broom’s development, background, and personality, there is no apparent
connection drawn in Dr. Schmidtgoessling’s report between these factors and the crimes committed.
         30
           This statement was made during pretrial proceedings. See XIII J.A. at 5992 (Pretrial Tr. at 56) (“I see nothing
we are withholding that would help this individual in any way.”). Broom’s Brady claim is discussed above, and we do
not need to discuss this statement further.
         31
            During the closing argument, the prosecutor stated that “He killed the little girl, and he probably would have
killed the mother and father. He kills in the community, and it’s going to go on and on and on.” XVII J.A. at 7901 (Trial
Tr. at 1809).
No. 03-4370                Broom v. Mitchell                                                                     Page 16


anally.”32 Appellant Br. at 70-72.   Broom then lists a variety of improper statements made during
the sentencing phase of his trial.33 Appellant Br. at 73.
         In analyzing a claim of prosecutorial misconduct, the “relevant question is whether the
prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). In order to satisfy the standard for prosecutorial
misconduct, the conduct must be both improper and flagrant. Bates v. Bell, 402 F.3d 635, 641 (6th
Cir.), cert. denied, 126 S. Ct. 163 (2005). In determining whether the statements listed above were
proper, there are several guidelines available. First, “[a]dvocates have an obligation to . . . put forth
only proper arguments based on the evidence in the record.” Id. Also, they must obey “the cardinal
rule that a prosecutor cannot make statements ‘calculated to incite the passions and prejudices of the
jurors.’” Gall v. Parker, 231 F.3d 265, 315 (6th Cir. 2000) (quoting United States v. Solivan, 937
F.2d 1146, 1151 (6th Cir. 1991)), cert. denied, 533 U.S. 941 (2001). Finally, we have held that a
prosecutor may not make improper comments “designed to completely undercut the defendant’s sole
mitigation theory, effectively denying him fair jury consideration.” DePew v. Anderson, 311 F.3d
742, 749 (6th Cir. 2002), cert. denied, 540 U.S. 938 (2003). Once conduct is held to be improper,
there are four factors that we consider in determining flagrancy:
         (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or
         prejudice the defendant; (2) whether the remarks were isolated or extensive;
         (3) whether the remarks were deliberately or accidentally made; and (4) the total
         strength of the evidence against the defendant.
Bates, 402 F.3d at 641. We must adhere to the harmless error standard in reviewing the state court’s
determination regarding prosecutorial misconduct. See id. (“An error is found to be harmless unless
it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”) (quoting
Brecht, 507 U.S. at 638).
      With regard to the statements in the course of the prosecutor’s closing argument, the Ohio
Supreme Court held as follows:
         Generally, parties have been granted wide latitude in closing arguments. Although
         we can hardly approve of comments such as, ‘He kills in the community and it’s
         going to go on and on and on,’ they do not constitute a denial of due process. A
         complete review of the prosecutor’s closing remarks belies the conclusion that the
         state’s improper arguments in any way affected the jury’s verdict.


         32
            During the closing argument, the prosecutor stated that “After he raped her and abused her vaginally and
anally, he killed her outside of the car.” XVII J.A. at 7899 (Trial Tr. at 1807). Broom explains that the prosecutor
acknowledged that two different men were responsible for the sperm found in Middleton’s body, and that Middleton’s
boyfriend was probably the source of the sperm found in Middleton’s rectum. XIII J.A. at 5964 (Pretrial Tr. at 28).
         33
            The following statements were made during the mitigation phase: “If on the other hand, the aggravating
circumstances of the Defendant, the kidnapping, rape and the cold-blooded annihilation of Tryna Middleton . . .” XVIII
J.A. at 8003 (Trial Tr. at 1904); “Now, he is telling you ‘Send me back for 20 years, so I can come back and do it
again.’” XVIII J.A. at 8081 (Trial Tr. at 1990); “Do you think for one moment, do you believe for one moment that any
one of you would think that this absurd demonstration of mitigation would outweigh that (indicating)?” XVIII J.A. at
8082 (Trial Tr. at 1991); “After she was out of the car, after he raped her anally and vaginally.” XVIII J.A. at 8082 (Trial
Tr. at 1991); and “These ridiculous mitigating circumstances that were put on before you which insult your intelligence,
actually insult your intelligence . . .” XVIII J.A. at 8084 (Trial Tr. at 1993). In addition, Broom claims that the
prosecutor “commented improperly on Broom’s unsworn statement as not being under oath and not being subject to
cross-examination” and “he called for Broom’s execution based in part on his prior rape conviction.” Appellant Br. at
73; XVIII J.A. at 8080-81 (Trial Tr. at 1989).
No. 03-4370              Broom v. Mitchell                                                                 Page 17


Broom, 533 N.E.2d at 693-94 (internal citations omitted). The state supreme court also concluded
that the statements made during the mitigation phase did not deny Broom due process. Id. at 694.
The court noted that the prosecutor’s comment about Broom’s unsworn      statement was impermissible
in light of an Ohio Supreme Court case decided after Broom’s trial;34 however, the court concluded
that “the totality of the prosecutor’s remarks is harmless error in light of the overwhelming nature
of the aggravating circumstances compared to the mitigation factors.” Id.
        Several of the improper remarks were made during the prosecutor’s closing argument at the
mitigation phase. “Importantly, in the death penalty context, we must distinguish between evidence
of the defendant’s guilt of the underlying criminal charge and evidence of any attendant aggravating
and mitigating circumstances.” Bates, 402 F.3d at 648. “When a prosecutor’s actions are so
egregious that they effectively foreclose the jury’s consideration of . . . mitigating evidence, the jury
is unable to make a fair, individualized determination as required by the Eighth Amendment.” Id.
at 649 (quoting DePew v. Anderson, 311 F.3d 742, 748 (6th Cir. 2002)) (internal quotation omitted).
        The prosecutor’s behavior was clearly improper in this case. However, we do not believe
that the comments were sufficiently flagrant to justify reversing the Ohio Supreme Court’s
determination. Our conclusion is supported by a comparison of the comments made in Broom’s case
to those made in Bates. The prosecutor’s remarks in Broom’s case could certainly have prejudiced
Broom or misled the jury, especially with regard to the misrepresentation of the rape evidence;
moreover, the statements appear to have been made deliberately. However, most of the prosecutor’s
comments were general attacks on Broom’s overall mitigation case rather than pointed attacks at his
witnesses or the defense attorneys as in Bates. Id. at 637. Also, the prosecutor in Broom’s case
improperly discussed the circumstances of the rape as well as implied that Broom would commit
future rapes if he was released from prison, but he did not appeal to the jury’s fears and emotions
to the same extent as in Bates. In Bates, for example, the prosecutor went on at great length and
detail as to why a vote for life imprisonment would make the jurors “accomplices” to future
murders. Id. at 643-44.
        The statements were also not as frequent as in Bates, where “both [prosecutors] laced their
entire closing argument with personal opinion, attacks on opposing counsel, and undignified and
unprofessional appeals to hatred and fear.” Id. at 648. Finally, we do not believe that the improper
remarks were so egregious as to “preclude the jury’s proper consideration of mitigation.” Id. at 649.
We do not in any way condone the clearly improper remarks that were made in this case, but we do
not think that these improper statements “injected such vitriol into the proceedings, as to question
the fairness of the entire sentencing hearing.” Id.
        In sum, we agree with the district court’s conclusion that “[t]he Ohio Supreme Court’s
analysis is not an unreasonable application of Darden and Donnelly. . . . [W]hile some of the
comments were certainly undesirable, they were not frequent or flagrant enough to undermine a
court’s confidence in the outcome of the trial.” I J.A. at 243 (Mem. & Order at 79).




        34
            In State v. DePew, 528 N.E.2d 542, 554 (Ohio 1988), cert. denied, 489 U.S. 1042 (1989), the state supreme
court held that
         [W]here the defendant chooses to make an unsworn statement in the penalty stage of a capital trial,
         the prosecution may comment that the defendant’s statement has not been made under oath or
         affirmation, but such comment must be limited to reminding the jury that the defendant’s statement
         was not made under oath, in contrast to the testimony of all other witnesses.
The state supreme court concluded that the prosecutor’s statement “exceed[ed] the narrowed scope” of the DePew rule.
Broom, 533 N.E.2d at 694.
No. 03-4370                Broom v. Mitchell                                                                        Page 18


F. Denial of Continuance
         Broom claims that the state trial judge’s denial of a continuance was unreasonable and that
his counsel was unable to advocate effectively on his behalf because of the lack of time allowed for
preparation. Appellant Br. at 75-76. Broom’s trial counsel were appointed in July 1985, after his
previous counsel withdrew. XVIII J.A. at 8193 (Evidentiary Hr’g Tr. at 68) (Brusnahan Test.). The
trial court granted a continuance to move the trial from August to September 1985. XIII J.A. at 5951
(Pretrial Tr. at 15). At this point, the trial judge stated that “[t]here will be no more continuances.”
XIII J.A. at 5952 (Pretrial Tr. at 16). Nonetheless, Broom’s counsel sought another continuance on
September 5, 1985, which the trial court denied. XVIII J.A. at 8200-01 (Evidentiary Hr’g Tr. at 75-
76) (Brusnahan Test.).
       The Supreme Court addressed the issue of continuances in Ungar v. Sarafite, 376 U.S. 575,
589 (1964), which states:
         The matter of continuance is traditionally within the discretion of the trial judge, and
         it is not every denial of a request for more time that violates due process even if the
         party fails to offer evidence or is compelled to defend without counsel. Contrariwise,
         a myopic insistence upon expeditiousness in the face of a justifiable request for delay
         can render the right to defend with counsel an empty formality. There are no
         mechanical tests for deciding when a denial of a continuance is so arbitrary as to
         violate due process. The answer must be found in the circumstances present in every
         case, particularly in the reasons presented to the trial judge at the time the request is
         denied.
(internal citations omitted). We have held that “[t]he denial of a defendant’s motion for continuance
‘amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.’” United States v. King, 127 F.3d 483,
486-87 (6th Cir. 1997) (quoting United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir. 1985) (internal
quotation marks omitted)), cert. denied, 528 U.S. 1055 (1999). “To demonstrate reversible error,
the defendant must show that the denial resulted in actual prejudice to his defense.” Id. at 487
(quoting Gallo, 763 F.2d at 1523) (internal quotation marks omitted).
         In requesting the continuance, Broom’s attorneys informed the state trial court that they “had
difficulty in obtaining records and other information, which is necessary for a mitigation hearing,”
XVIII J.A. at 8211 (Evidentiary Hr’g Tr. at 86) (Brusnahan Test.), and that they were also having
difficulty in establishing a “working relationship” with Broom, XVIII J.A. at 8201 (Evidentiary Hr’g
Tr. at 76) (Brusnahan Test.). Both the Ohio Supreme Court and the district court found that Broom
failed to demonstrate how he was actually prejudiced in the mitigation phase of his trial by the denial
of the continuance. Broom, 533 N.E.2d at 695; I J.A. at 245-46 (Mem. & Order at 81-82).35
Furthermore, the district court stated that “[t]he trial court is not required to grant multiple trial
continuances where the need for those continuances is prompted solely by the defendant’s own
refusal to cooperate with counsel’s trial preparation efforts.” I J.A. at 245 (Mem. & Order at 81);
see also United States v. Crawford, 60 F. App’x 520, 527 (6th Cir. 2003) (“Because Crawford
contributed significantly to his own counsel’s lack of preparedness, and because counsel represented
that he was in fact prepared to provide Crawford with a defense, the district court did not abuse its
discretion in denying Crawford’s motion to continue the trial date.”). The Ohio Supreme Court
reasonably applied Ungar in concluding that Broom “was not denied due process when his motion


         35
           The district court pointed out that “[t]rial counsel stated at the conclusion of the guilt phase that six additional
days would be sufficient time to prepare [for mitigation].” I J.A. at 246 (Mem. & Order at 82); XVII J.A. at 7958 (Trial
Tr. at 1867).
No. 03-4370                 Broom v. Mitchell                                                                   Page 19


for a continuance was denied,” and we affirm the district court’s judgment as to this issue. Broom,
533 N.E.2d at 695.
G. “Show-Up” Identification
       Immediately after the incident involving Melinda Grissom, the police took Broom for
purposes of identification to the hospital where Grissom was being treated. Appellant Br. at 77.
Because Broom was the only suspect presented to the Grissoms at the hospital, he argues that this
“‘show up’ procedure used with both Melinda Grissom and Janet        Grissom was ‘unnecessarily
suggestive and conducive to irreparable mistaken identification.’”36 Appellant Br. at 77 (quoting
Kirby v. Illinois, 406 U.S. 682, 691 (1972)).
         In analyzing this issue, the Ohio Supreme Court stated:
         We agree that the showup of the defendant at the hospital, where he was identified
         by the Grissoms, was both unnecessary and suggestive. . . . Therefore, our concern
         with the reliability of the identification, deterrence of police misconduct, and the
         effect on the administration of justice requires us to examine the totality of the
         circumstances to determine whether the confrontation was so suggestive that there
         was “a very substantial likelihood of irreparable misidentification.”
Broom, 533 N.E.2d at 692 (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). The Supreme Court
has set forth the following factors to be considered in determining whether there was in fact such
a likelihood of misidentification: “the opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the time between the crime and the
confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Ohio Supreme Court found
that all of these factors “were favorable in this case”: “Both Grissoms had ample time to view
appellant and their attention was completely focused as the mother tried to rescue her daughter. The
descriptions given to the police prior to the confrontation matched the appellant. Finally, the
identification was emphatically positive, and it occurred very shortly after the crime.” Broom, 533
N.E.2d at 692.
       Broom’s contention that the Ohio Supreme Court’s application of Manson and Neil was
unreasonable is without merit, and we affirm the district court’s judgment denying relief as to this
claim.
                                                III. CONCLUSION
       For the reasons discussed above, we AFFIRM the district court’s judgment denying Broom
habeas relief.




         36
              We note that this statement quoting Kirby is the full extent of Broom’s argument as to this claim. Appellant
Br. at 77.
