                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0553n.06

                                            No. 14-4002

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                              FILED
JOSEPH REDDY,                                             )                Sep 28, 2016
                                                          )            DEBORAH S. HUNT, Clerk

       Petitioner-Appellant,                              )
                                                          )     ON APPEAL FROM THE
v.                                                        )     UNITED STATES DISTRICT
                                                          )     COURT FOR THE NORTHERN
BENNIE KELLY, Warden,                                     )     DISTRICT OF OHIO
                                                          )
       Respondent-Appellee.                               )
                                                          )

BEFORE: BOGGS, WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. After a bench trial, Joseph Reddy was convicted

of the aggravated murder of his mother, Gloria Reddy, in Ohio state court. At sentencing,

Reddy’s attorney asked the court to consider evidence that Reddy suffered from post-traumatic

stress disorder (PTSD), which had not been introduced at trial. Reddy appealed his conviction,

arguing that the evidence was insufficient to support aggravated murder, and that counsel was

ineffective for not introducing the PTSD evidence at trial (“IAC/PTSD claim”). The Ohio

appellate court modified Reddy’s conviction from aggravated murder to murder, but did not

address the IAC/PTSD claim. Reddy then brought this petition for federal habeas relief on

ineffective-assistance grounds, and the district court denied the petition.

       Because the state court did not adjudicate Reddy’s IAC/PTSD claim on the merits, we

review de novo. We conclude that Reddy received ineffective assistance, and accordingly,

REVERSE the judgment of the district court, CONDITIONALLY GRANT Reddy’s habeas

petition, and REMAND to the district court with instructions to order Reddy’s release from
No. 14-4002, Reddy v. Kelly


custody unless the state grants a new trial within 180 days from the date that the mandate issues

from this court.

                                        I. Background

       A. Facts

       The Ohio Court of Appeals set forth the relevant facts:

               Reddy had a troubled relationship with his mother, Gloria. In a statement
       to police, Reddy stated that when he was 14 years old, he was removed from
       Gloria’s care after she physically assaulted him. He was placed in a group home,
       where he lived for four years. When Reddy turned 18 years old, he left the group
       home and moved in with his girlfriend, Michelle Dahlberg. He lived with
       Dahlberg until January 2007, when he and Dahlberg ended their relationship.
       Reddy, 21 years old, moved in with his mother, who lived in a multifamily house
       located at 1432 West 112th Street, Cleveland, Ohio, where his 17–year–old
       brother, Andrew, also lived.

              Reddy further stated that Gloria suffered from mental illness, as well as
       drug and alcohol problems, and she became increasingly violent toward Reddy
       and Andrew. On July 26, 2007, due to the fact that Gloria was in jail and there
       had been increasing discontent and violence in the home, Andrew moved out and
       went to live with a neighbor, Donna Amato, who lived a few houses down, at
       1422 West 112th Street, in Cleveland, Ohio. According to Amato, she took
       Andrew into her home after he arrived at her son’s birthday party bruised and
       bloodied and stated that Reddy had physically assaulted him.

              On December 24, 2007, at approximately 4:00 a.m., according to the
       statement Reddy gave to police, Gloria came into his bedroom and told him that
       he had to leave the house. Reddy refused to leave because it was Christmas Eve
       and he had nowhere to go. He alleged that the argument escalated and Gloria
       went to her bedroom and returned with a dagger, pushed Reddy’s bedroom door
       in, and threatened to kill him. Reddy punched Gloria in the face several times,
       tackled her to the ground, and then choked her until she stopped moving. Reddy
       maintained that the entire event occurred in his bedroom.

               Reddy wrapped Gloria’s body in a blanket, placed it in a basement storage
       locker, took Gloria’s ATM card, and left the house. Reddy used the ATM card
       several times to withdraw cash from an ATM machine at Fred’s Deli, located at
       11119 Detroit Avenue, in Cleveland.

              On December 31, 2007, Andrew contacted his uncle, Theodore Reddy
       (“Theodore”), and informed him that he could not find Gloria. The following
       day, Theodore met Andrew outside Gloria’s house. The two entered together and
       walked throughout the house looking for Gloria, but did not find her.

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               On January 2, 2008, Theodore met Andrew again at Gloria’s house. After
       they were still unable to find her, Theodore contacted the Cleveland police.
       Lieutenant James Plent responded to the call and arrived at Gloria’s house. Plent
       stated that he noticed bloodstains on the walls, and Andrew informed him that the
       key to the basement storage area was missing.

              Plent believed that Gloria’s body could have been in the basement storage
       area. Theodore kicked in the locked door to the basement storage area. Plent
       entered the storage area and discovered Gloria’s body, at which point he
       contacted the homicide unit.

              On January 9, 2008, Reddy arrived at the house of Jason Pagan (“Jason”),
       appearing dirty and distraught. Reddy confessed to Jason’s brother, Jonathan
       Pagan (“Jonathan”), that he had killed his mother during an argument before
       Christmas. Reddy showed the brothers a dagger he had brought with him and
       made several references to going to Dahlberg’s residence to give her and her
       boyfriend a “Christmas present.”

               Fearing that Reddy might harm Dahlberg, Jonathan called police as soon
       as Reddy left and told them that Dahlberg might be in danger. Cleveland police
       officers responded to Dahlberg’s residence. When Dahlberg did not answer the
       door, Cleveland police officer Robert Nagy entered the residence through a
       window.      Several other officers subsequently entered, and Reddy was
       apprehended in the basement.

State v. Reddy, 948 N.E.2d 454, 458–59 (Ohio Ct. App. 2010).

       B. Trial and conviction

       An Ohio grand jury indictment charged Reddy with one count of aggravated murder, in

violation of Ohio Rev. Code § 2903.01. Aggravated murder is one of three homicide offenses at

issue in this case: aggravated murder, murder, and voluntary manslaughter. As relevant here,

Ohio defines the crime of murder as “purposely caus[ing] the death of another,” Ohio Rev. Code

§ 2903.02(A), while aggravated murder requires additional proof that the defendant acted “with

prior calculation and design.” Id. § 2903.01(A). A defendant tried for either crime may produce

mitigating evidence to obtain an instruction on voluntary manslaughter, an “inferior degree of

murder.” State v. Rhodes, 590 N.E.2d 261, 264 (Ohio 1992). Voluntary manslaughter is defined

as “knowingly caus[ing] the death of another” while “under the influence of sudden passion or in
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No. 14-4002, Reddy v. Kelly


a sudden fit of rage, either of which is brought on by serious provocation occasioned by the

victim that is reasonably sufficient to incite the person into using deadly force.” Ohio Rev. Code

§ 2903.03(A).

       Reddy waived his right to trial by jury, and the case was tried to the bench in the Court of

Common Pleas over two days in February 2009. At trial, there was no dispute that Reddy killed

his mother. Reddy’s counsel, Harvey Bruner, opened by conceding that Reddy had committed a

homicide offense but asked the court to find Reddy “guilty of something less than aggravated

murder.” R. 5-5, PID 175–76. Thus, the state focused its case on demonstrating the “prior

calculation and design” required for an aggravated murder conviction.          Prosecutors called

seventeen witnesses: Reddy’s friends, family, and neighbors testified about his relationship with

his mother, including purported threats Reddy had made; the coroner testified about the

condition of Gloria Reddy’s body, including extensive bruising around her head indicating blunt

force trauma; and investigators testified about the crime scene—including the bloodstains on

walls in three rooms of the house—as well as Reddy’s statement to police. During cross-

examination, Bruner adduced testimony from the state’s witnesses about Gloria Reddy’s abusive

treatment of Reddy.

       At the close of the state’s evidence, Bruner moved to acquit on the aggravated murder

charge, arguing that the evidence was insufficient to support prior calculation and design.

Bruner asserted that it was “for the Court to decide whether or not a straight murder is

appropriate or under the circumstances possibly manslaughter is appropriate, but certainly prior

calculation and design was not proven beyond a reasonable doubt by the State,” leading to the

following colloquy with the trial court:




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       THE COURT:             Am I hearing you say that if we were in front of a jury you
                              would be asking the Court for a voluntary manslaughter
                              charge?

       MR. BRUNER:            Probably, Your Honor, yes, you are.

       THE COURT:             Well, you would actually be saying since the jury might
                              find all the elements of aggravated murder except prior
                              calculation and design you should instruct on murder, and
                              since there is evidence supporting the emotional element,
                              that the jury should be charged on the inferior offense of
                              voluntary manslaughter. Wouldn’t that be the analysis?

       MR. BRUNER:            Certainly, Your Honor, under the circumstances in view of
                              the evidence in this case, that would be the analysis. I
                              would certainly ask for a voluntary manslaughter charge as
                              well as the murder charge.

       THE COURT:             I mean, that’s my whole point. You don’t go from agg
                              murder to voluntary.

       MR. BRUNER:            That’s why I’m asking the Court to dismiss the aggravated
                              murder charge at this point.

Id. at PID 903–04.

       The trial court denied the motion to acquit on aggravated murder, concluding that there

was evidence to support prior calculation and design, and Bruner rested the defense without

calling additional witnesses. In closing, Bruner argued that the state had not proven prior

calculation and design, and that the question for the court was “more an issue between murder

and manslaughter, voluntary manslaughter.” R. 5-8, PID 933. “You don’t kill your mother

under any circumstances,” Bruner told the court, “but under these circumstances [Reddy] was

acting in a fit of rage, it was brought on by serious provocation.” Id. Bruner asked the court “to

find [Reddy] guilty of voluntary manslaughter.” Id. at PID 934.

       The trial court found Reddy guilty of aggravated murder, explaining:

               The trouble the Court has in interpreting this evidence as being something
       other than prior calculation and design stems from the physical damage to the

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       victim and the presence of blood splattering, not only in Joseph Reddy’s bedroom,
       but also in both walls of the hallway walls [sic], as well as the living room. . . .

               The defendant’s rendition of what happened never mentions any of the
       head injuries and when you combine the evidence of the head injuries and all
       those blood splatters, it strikes the Court as consistent with the beating of the
       victim as having occurred prior to any choking, so the pattern the evidence
       presents to the Court and of which I’m convinced beyond a reasonable doubt is
       whatever the victim may have done to incite or enrage her assailant, Mr. Reddy,
       the plain fact of the matter is that the sequence of events had to have occurred
       with the beating of the victim’s head in rooms—in various rooms, hallway, living
       room, Joseph’s bedroom. And that had to have been—that had to be preceded by
       her choking. . . .

               So all of the evidence to this Court points in the direction of a purposeful
       killing, and not a killing that is in reaction to an assault instigated by the victim,
       even though she may have, in fact, instigated it with a knife or some other objects
       in the course of this argument, but the circumstances of the body and the physical
       evidence both on the decedent’s body as well as the blood and the other
       surrounding evidence indicates that she was attacked in numerous locations, and
       only after that she was strangled and died.

               So the Court is convinced beyond a reasonable doubt this defendant is
       guilty of aggravated murder as charged in count 1.

Id. at PID 946–48.

       Before adjourning, the trial court scheduled sentencing, and Bruner asked that the court

review a report authored by Dr. John Fabian, a forensic and clinical psychologist, before

sentencing. Bruner had retained Dr. Fabian before trial to assess Reddy’s psychological and

psychiatric state at the time of the offense as part of an investigation into Reddy’s competency to

stand trial. However, the parties subsequently stipulated to competency after the court reviewed

two separate evaluations conducted by doctors at the court’s psychiatric clinic, one of which was

at Bruner’s request. During the competency hearings, Bruner mentioned that he had retained Dr.

Fabian, but did not discuss the contents of Dr. Fabian’s report.

       In the report, Dr. Fabian explains that, among other things, he administered the Detailed

Assessment of Posttraumatic Stress (DAPS) “to assess for posttraumatic stress disorder

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No. 14-4002, Reddy v. Kelly


symptoms.” R. 7-3, PID 1714. Reddy “scored in the clinically significant range for significant

emotion [sic] or cognitive distress at the time of the traumatic event and posttraumatic

symptomatology based on his traumatic event,” namely “the significant and consistent abuse by

his mother.” Id. Dr. Fabian diagnoses Reddy with “Posttraumatic Stress Disorder, provisional.”

Id. at PID 1715. He explains: “I . . . believe [Reddy] has qualified for Posttraumatic Stress

Disorder. He reports a significant history of abuse and based on interview and psychological

testing, he presents as qualifying for many of the symptoms of PTSD.”            Id.   The report

concludes: “It is my opinion, with reasonable psychological certainty, that Mr. Joseph Reddy is

a mentally ill individual. He qualifies for Major Depression, Posttraumatic Stress Disorder,

Cannabis Abuse or Dependence and Borderline and Antisocial Personality Disorder.” Id. at PID

1717. Further, Dr. Fabian explains that “there is a nexus between Mr. Reddy’s mental illness,

his abusive history with his mother, and his homicidal behavior.” Id. at PID 1718.

       Bruner provided Dr. Fabian’s report to the court shortly after the announcement of the

verdict. The court did not address Dr. Fabian’s report at sentencing, other than acknowledging

having “reviewed” it. R. 5-8, PID 954. The court imposed a sentence of 20 years to life

imprisonment and appointed new counsel, James Valentine, to handle the appeal.

       C. Direct appeals

       Reddy appealed his conviction to the Ohio Court of Appeals, filing his principal brief

through counsel and a separate pro se supplemental brief. In the principal brief, counsel argued

that the evidence was insufficient to support the aggravated-murder conviction, among other

issues. In the pro se brief, Reddy raised seven assignments of error, including an argument that

trial counsel was ineffective in failing to “present relevant and available psychiatric testimony”

regarding Reddy’s “state of mind,” specifically Dr. Fabian’s diagnosis of “PTSD stemming from

physical childhood abuse.” R. 5-18, PID 1166–68. Reddy asserted that the “only issue at trial
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was the mens rea,” and the only “plausible line of defense in this type of case” was “to present

psychiatric testimony.” Id. at PID 1167.

       The Ohio Court of Appeals issued its decision in State v. Reddy, No. 92924, 2010 WL

3351428 (Ohio Ct. App. Aug. 26, 2010), but later granted reconsideration and issued a

superseding opinion in State v. Reddy, 948 N.E.2d 454 (Ohio Ct. App. 2010). In the decision on

reconsideration, the court of appeals agreed that the evidence presented at trial was insufficient

to support that Reddy acted with prior calculation and design:

               In the instant case, there was no evidence to suggest that Reddy had
       planned to kill his mother. In fact, the only evidence presented at trial indicates
       that it was a spontaneous act that occurred during yet another argument between
       Reddy and Gloria. It was Gloria who confronted Reddy in his bedroom. This is
       in sharp contrast to [a case where the defendant] sought out the victims.

               Detective Ignatius Sowa of the Cleveland Police Department testified that
       he interviewed Gloria’s neighbor, Alecia Hughley, shortly after the discovery of
       Gloria’s body. Hughley told Sowa that she had heard Reddy and Gloria arguing
       shortly before Gloria disappeared and, specifically, that she heard Reddy yelling
       at Gloria to put her knife down.

                Numerous witnesses testified that Reddy and his mother had a troubled
       relationship and that Reddy had been physically and verbally abused by his
       mother for years. These facts support Reddy’s contention that he did not plan to
       kill his mother and that she was killed during an instantaneous eruption of events.
       Reddy’s uncle, Theodore, as well as his two longtime friends, Jonathan and Jason
       Pagan, all testified that Reddy told them that Gloria came into his bedroom with a
       knife and threatened him.

Reddy, 948 N.E.2d at 461–62. The court of appeals specifically rejected the trial court’s reliance

on evidence of blood stains on the walls of the house:

               In concluding that Reddy’s attack on Gloria was a drawn-out event, the
       trial court relied heavily on pictures that depicted blood throughout the house.
       The trial court stated that blood was present not only in Reddy’s room, where he
       alleges the incident took place, but also in the hallways and living room.
       However, there was no testing performed on the alleged blood stains to determine
       whether the substance was in fact blood and, if so, whose blood it was and how
       long the blood had been there. There is evidence of a history of violent behavior



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       in the home, and the blood depicted in the photographs could have been there
       from prior physical violence.

                Gloria had been increasingly violent with Andrew during the last year of
       her life. Andrew testified to numerous instances of violence within the home. He
       stated that his mother chased him with a hammer and, on one occasion, bruised
       his rib. Andrew also stated that shortly before he moved out of Gloria’s house to
       live with his neighbor, Amato, Reddy punched his fist into one of the walls,
       drawing blood. Thus, the blood could have come from any one of the individuals
       in the house, during one of the numerous instances of violence within the house.
       We find that the trial court erred in relying exclusively on the presence of blood
       throughout the home as the critical factor in determining that there was prior
       calculation and design.

Id. at 460–61.

       Although the evidence was insufficient to convict Reddy of aggravated murder, the court

of appeals concluded that the evidence supported a murder charge, and modified his conviction

to find him guilty of murder rather than ordering a new trial. Id. at 462. The court of appeals did

not address lesser-included or inferior-degree offenses other than murder when modifying the

conviction. See id. However, Reddy’s pro se brief separately raised the question whether the

trial court abused its discretion by “refusing to consider [a] lesser degree of homicide” and

“committed reversible error by failing to consider convicting him of voluntary manslaughter.”

Id. at 468. The court of appeals overruled the assignment of error, having “already found that the

evidence in the record, while insufficient for aggravated murder, was sufficient to convict Reddy

of murder,” based on the presumption that “the trial court considered all lesser and included

offenses as well as inferior degree offenses, unless the record shows otherwise.” Id.

       The court of appeals also addressed Reddy’s separate pro se assignments of error on

ineffective-assistance grounds. In response to Reddy’s claim that trial counsel was ineffective

for failing to present evidence of PTSD, the court of appeals wrote:

              Reddy also argues that trial counsel was ineffective in failing to present
       evidence that Gloria had abused him as a child. However, a review of the record

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No. 14-4002, Reddy v. Kelly


       indicates that that is not accurate. The past abuse Reddy suffered was the crux of
       his defense. In closing argument, Reddy’s counsel stated:

               How could there be any question after all of the people that
               testified, his girlfriend, Rachel, was the first one, [then] Michelle
               Dahlberg, and Donna Amato * * * [H]ow could the court believe
               anything other than the fact that this woman abused her children. *
               * * Can there be any doubt that after years of abuse, on Christmas
               Eve when he was attacked by his mother under the influence of
               sudden passion or a fit of rage, he fought back and attacked her?

               From the record, it is clear that trial counsel placed considerable emphasis
       on the fact that Gloria had abused Reddy.

Id. at 467. Reddy’s other assignments of error, both pro se and through counsel, were rejected or

held moot, and the court of appeals remanded for resentencing in light of the modified

conviction. Id. at 468.

       Reddy appealed the initial decision of the Ohio Court of Appeals, moved to withdraw the

appeal after the Ohio Court of Appeals granted reconsideration, and then appealed the decision

on reconsideration. Reddy’s memoranda in support of jurisdiction claimed, among other things,

that counsel was ineffective for failing to present psychiatric testimony. The Ohio Supreme

Court denied leave to appeal and denied the motion to withdraw as moot. State v. Reddy, 942

N.E.2d 386 (Ohio 2011) (table); State v. Reddy, 939 N.E.2d 1267 (Ohio 2011) (table). Reddy

also filed an application in the Ohio Court of Appeals for reconsideration of the decision on

reconsideration, arguing that appellate counsel had been ineffective for failing to argue that the

case should be remanded for a new trial rather than modification of the conviction. State v.

Reddy, 2011 WL 1744528, at *1 (Ohio Ct. App. May 3, 2011). The court of appeals concluded

that the application was time barred, and would have been barred by res judicata in any event

because the court had already considered and denied a new trial, which Reddy had sought in his

pro se supplemental brief during the earlier proceeding. Id. at *1–2.



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       D. Proceedings on remand

       The trial court held a resentencing hearing where Reddy was represented by Valentine,

his appellate attorney. Valentine acknowledged that given the appellate court’s ruling modifying

Reddy’s conviction to murder, there was “only one potential penalty,” but inquired whether Dr.

Fabian’s report had been entered into the record for purposes of a later collateral challenge. R.

5-9, PID 983. The trial court was unsure.

       Valentine provided a copy of Dr. Fabian’s report, which the trial court reviewed from the

bench. Valentine drew the court’s attention to Dr. Fabian’s conclusions, quoting the passage that

identified “a nexus between Mr. Reddy’s mental illness, his abusive history with his mother, and

his homicidal behavior.” Id. at PID 986. The court remarked:

               Well, the court has had an opportunity now to review this very thorough
       report and I agree with your quotation. The last sentence does read that way.
       And I agree that Dr. Fabian spends a great deal of this evaluation supporting that
       conclusion, the fact and having been trier of the facts in Mr. Reddy’s trial [sic], I
       don’t think there is a lot of issue to take with that. . . .

               [I]t does say to a reasonable medical certainty Mr. Reddy is a mentally ill
       individual with major depression, post-traumatic stress disorder, abuse and/or
       dependence upon marijuana and borderline anti-social personality disorder
       features.

              Sadly, it would appear to the court that Dr. Fabian attributes the cause of
       Mr. Reddy’s diagnosis as being the very sad childhood that he experienced at the
       hands of his mother.

Id. at PID 986–87. The trial court marked the report as a defense exhibit and entered it on the

record, noting: “Let me just state that even though that appears to have been prepared for trial, I

don’t believe that that was put into evidence at the trial. I don’t think that was touched on in any

way.” Id. at PID 988. Valentine agreed that “it wasn’t in the actual trial.” Id. The trial court

remarked that the report “was not shared with the court at the time of sentencing. I think I would

recollect that.” Id. After Reddy pointed out that the trial court had acknowledged reviewing the


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report at sentencing, which had taken place more than a year earlier, the trial court explained: “I

really—I don’t remember that at all, but then that’s the way my memory can be.” Id.

        Returning to the issue of sentencing, Reddy acknowledged that he could only be

sentenced to 15 years to life imprisonment on a murder charge. However, he also raised the

issue of voluntary manslaughter:

                But if you recall in the trial motion, Criminal Rule 29 motion for acquittal
        when I was facing aggravated murder with prior calculation and design, we asked
        you, your Honor, if you could acquit of the mens rea prior calculation and design
        and amend it to murder and that from the murder we would be able to present the
        mitigation circumstances for voluntary manslaughter. And you said, quote, if
        there was a jury in here, then you would be asking for a manslaughter instruction.
        You said [sic] yes, yes, your Honor, I certainly would. You said, well that’s the
        whole point. You don’t go from aggravated murder to manslaughter. I wasn’t
        able to really go from aggravated murder to manslaughter because of the
        aggravated murder.

               Well, now, the Court of Appeals decided that I should not have the
        aggravated murder with prior calculation and design, but they are not going to
        give me a new trial, so I am precluded from ever arguing manslaughter and
        having a meaningful consideration of it.

Id. at PID 997. The trial court responded:

                I do understand the legal problem that you are pointing out to the court,
        that if you as a defendant go forward with evidence tending to show that the
        killing occurred in a sudden fit of rage provoked by your victim, et cetera, that
        whether you are found guilty of murder or not guilty of murder, the court has to
        go on, the trier of fact has to go on to consider that. Yes.

               By the court rejecting the argument that it was murder as opposed to
        aggravated murder, you were prevented from going on to what’s called an inferior
        offense, going on to talk about the inferior offense, the voluntary manslaughter.

Id. at PID 998–99. The trial court went on to explain that the appellate court’s mandate had been

limited to resentencing on a murder charge. Thus, the trial court found Reddy guilty of murder,

in violation of Ohio Rev. Code § 2903.02(A), and imposed a sentence of life imprisonment with

parole eligibility after 15 years.



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         Reddy appealed from the newly entered murder conviction, arguing that trial counsel had

been ineffective for failing “to present psychiatric testimony regarding [Reddy’s] mental state

and/or perception of danger based on the diagnosis of post-traumatic stress disorder,” among

other claims. R. 5-48, PID 1542. The Ohio Court of Appeals concluded that Reddy’s claims had

“previously been considered or could have been considered” in the court’s earlier decisions, and

were therefore “barred by the doctrine of res judicata.” State v. Reddy, No. 95814, 2011 WL

2436596, at *3 (Ohio Ct. App. June 16, 2011). Reddy appealed, again raising the PTSD issue,

R. 5-63, Mem., PID 1686, but the Ohio Supreme Court denied leave to appeal. State v. Reddy,

955 N.E.2d 387 (Ohio 2011) (table).

         E. Postconviction review

         While the direct appeals were pending, Reddy filed a petition for postconviction relief in

the Court of Common Pleas, pursuant to Ohio Rev. Code § 2953.21. The trial court granted the

state’s motion for summary judgment and denied postconviction relief without a hearing,

concluding that Reddy’s claims were barred by res judicata because he had not presented

“competent, relevant, and material evidence outside the record that was not in existence and

available to [Reddy] in time to support the direct appeal.” R. 5-36, PID 1490–91 (citing State v.

Lawson, 659 N.E.2d 362 (Ohio Ct. App. 1995)). Reddy appealed, but the Ohio Court of Appeals

dismissed the appeal sua sponte for failure to file the state-court record, pursuant to Ohio Rules

of Appellate Procedure 3(A) and 10(A). After Reddy had been resentenced for murder, he

moved for leave to amend his postconviction petition in the Court of Common Pleas. The court

denied the motion on the ground that the petition had already been denied, leaving nothing to

amend.

         Reddy filed the instant petition for a writ of habeas corpus in the United States District

Court for the Northern District of Ohio in January 2010. Among several grounds for relief,
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No. 14-4002, Reddy v. Kelly


Reddy argued that trial counsel had been ineffective for failing to present PTSD evidence. The

magistrate judge recommended denial. Reddy objected, but the district court overruled his

objections, adopted the magistrate judge’s recommendation, dismissed the petition, and denied a

certificate of appealability. Reddy timely appealed, and we issued a certificate of appealability

limited to the question whether Reddy’s “trial attorney was ineffective for not presenting

evidence that Reddy suffered from PTSD.” R. 18, PID 1857.

                                      II. Standard of review

       We review de novo the district court’s denial of Reddy’s habeas petition, Barton v.

Warden, 786 F.3d 450, 460 (6th Cir. 2015) (per curiam), and our review of Reddy’s state-court

conviction is governed by the deferential standards set forth in the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.

       Where a state prisoner’s claim was “adjudicated on the merits” in state court, AEDPA

bars relitigation of the claim in federal court unless the state-court adjudication (1) “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 (2) “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); see also Harrington v. Richter,

562 U.S. 86, 98 (2011) (“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the

merits’ in state court, subject only to the exceptions in § 2254(d)(1) and (2).”). However, where

a claim was fairly presented to the state courts but not “adjudicated on the merits,” the claim is

“given plenary review by a federal habeas court.” Jackson v. Smith, 745 F.3d 206, 209 (6th Cir.

2014); see also Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) (“The language of 28 U.S.C.

§ 2254(d) makes it clear that this provision applies only when a federal claim was ‘adjudicated

on the merits in State court.’”); Jackson v. Houk, 687 F.3d 723, 731 (6th Cir. 2012) (“[W]hen a
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No. 14-4002, Reddy v. Kelly


claim has not been adjudicated on the merits in State court proceedings, and has not been

procedurally defaulted, we look at the claim de novo rather than through the deferential lens of

AEDPA.”) (citing Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005)).

       The Supreme Court has explained that federal habeas courts must “presume[] that the

state court adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption “is a strong

one that may be rebutted only in unusual circumstances,” Williams, 133 S. Ct. at 1096, but “may

be overcome when there is reason to think some other explanation for the state court’s decision is

more likely.” Richter, 562 U.S. at 99–100. For example, “[i]f a federal claim is rejected as a

result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of

the matter.” Williams, 133 S. Ct. at 1097. Further, we have concluded that a claim was not

adjudicated on the merits where a state court “misconstrued” and “did not reach the core” of a

fairly presented argument. Campbell v. Bradshaw, 674 F.3d 578, 596 (6th Cir. 2012); see also

Jells v. Mitchell, 538 F.3d 478, 505 (6th Cir. 2008). This assessment is based on the “language

used by the state court in its discussion of the claim at issue and the context of that discussion.”

Barton, 786 F.3d at 460.

       We conclude that the Ohio Court of Appeals, the highest state court to consider Reddy’s

PTSD claim, did not adjudicate his claim on the merits. On appeal from the aggravated murder

conviction, Reddy argued that “Appellant received ineffective assistance of counsel when

counsel failed to present relevant and available psychiatric testimony regarding Appellant’s state

of mind and of mental illness[,] specifically post-traumatic stress disorder.” R. 5-18, PID 1166.

In the decision on reconsideration, the Ohio Court of Appeals clearly misconstrued this claim:

“Reddy also argues that trial counsel was ineffective in failing to present evidence that Gloria



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had abused him as a child.” Reddy, 948 N.E.2d at 467. Reddy did not argue that Bruner failed

to present evidence of abuse; he argued that Bruner failed to present psychiatric of evidence of

PTSD, which is meaningfully different. In explaining its denial of relief, the court of appeals

focused exclusively on the question whether Bruner had presented evidence of abuse, and did not

address psychiatric evidence. See id. Reddy raised his PTSD claim again on appeal from his

modified conviction of murder, but the Ohio Court of Appeals denied relief, relying on its earlier

decision in the appeal from the aggravated murder conviction. Reddy, 2011 WL 2435696, at *2–

3.

       Thus, although the Ohio Court of Appeals purported to address Reddy’s claim, it “did not

reach the core” of the argument, Campbell, 674 F.3d at 596, perhaps out of “sheer inadvertence.”

Williams, 133 S. Ct. at 1097.      This case presents “the unusual circumstances” where the

presumption of adjudication is rebutted, id. at 1096, because “there is reason to think some other

explanation for the state court’s decision is more likely”—namely, that the decision of the Ohio

Court of Appeals misconstrued the claim and addressed a different argument. Richter, 562 U.S.

at 99–100. We therefore review Reddy’s ineffective-assistance claim de novo.

                                         III. Discussion

       The Sixth Amendment guarantees the right to effective assistance of counsel. Strickland

v. Washington, 466 U.S. 668, 686 (1984). “An ineffective assistance claim has two components:

A petitioner must show that counsel’s performance was deficient, and that the deficiency

prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003).

       A. Performance

       To establish deficient performance, Reddy “must identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment.”

Strickland, 466 U.S. at 690.       Then, we “must determine whether, in light of all the
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circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.” Id. Specifically, Reddy “must show that counsel’s representation fell

below an objective standard of reasonableness” where reasonableness is assessed “under

prevailing professional norms.”    Id. at 689.   We must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance,” and that

“under the circumstances, the challenged action might be considered sound trial strategy.” Id.

       Reddy argues that Bruner’s performance was deficient because he failed to present

evidence that Reddy suffered from PTSD. As the Ohio Court of Appeals explained, “trial

counsel’s entire trial strategy” was based on demonstrating voluntary manslaughter, Reddy, 948

N.E.2d at 467, which required proof that Reddy acted “under the influence of sudden passion or

in a sudden fit of rage,” brought on “by serious provocation occasioned by the victim that is

reasonably sufficient to incite the person into using deadly force.”           Ohio Rev. Code

§ 2903.03(A). Because a defendant on trial for murder bears the burden of establishing the

mitigating circumstances necessary to show voluntary manslaughter, Rhodes, 590 N.E.2d at 264,

Bruner’s trial strategy evidently was to adduce testimony to support that Gloria Reddy had

sufficiently provoked Reddy, and that Reddy was under the influence of a sudden passion or fit

of rage when he killed her.

       Bruner obtained Dr. Fabian’s report evaluating Reddy’s psychiatric condition before trial.

In the report, Dr. Fabian wrote that his administration of the DAPS—the PTSD assessment—

revealed that Reddy “scored in the clinically significant range for significant emotion or

cognitive distress at the time of the traumatic event and posttraumatic symptomatology based on

his traumatic event.” R. 7-3, PID 1714. Dr. Fabian noted that Reddy “reported significant

hyperarousal” and “irritability or outbursts of anger” associated with “a significant history of



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abuse,” and provisionally diagnosed Reddy with PTSD, explaining that Reddy “presents as

qualifying for many symptoms of PTSD” and “qualified for Posttraumatic Stress Disorder.” Id.

at PID 1714–16. Further, Dr. Fabian asserted that there was “a nexus between Mr. Reddy’s

mental illness, his abusive history with his mother, and his homicidal behavior.” Id. at PID

1717–18. When the state trial court reviewed the report at resentencing, the court noted that Dr.

Fabian concluded to “a reasonable medical certainty [that] Mr. Reddy is a mentally ill individual

with . . . post-traumatic stress disorder.” R. 5-9, PID 987.

       Despite obtaining this report, Bruner offered no evidence of PTSD—or any psychiatric

evidence—at trial. Evidence of PTSD would have been vital to Reddy’s defense. As amicus

curiae, the National Association of Criminal Defense Lawyers, explain, PTSD is a mental illness

listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental

Disorders (5th ed. 2013) (“DSM-5”). According to the DSM-5, the diagnostic criteria for PTSD

include “[m]arked alterations in arousal and reactivity associated with the traumatic event(s),

beginning or worsening after the traumatic event(s) occurred, as evidenced by,” inter alia,

“[i]rritable behavior and angry outbursts (with little or no provocation) typically expressed as

verbal or physical aggression toward people or objects,” “[r]eckless or self-destructive

behavior,” “[h]ypervigilance,” and “[e]xaggerated startle response.”       App’x at 4.    Further,

“PTSD is often characterized by a heightened sensitivity to potential threats, including those that

are related to the traumatic experience,” and “[i]ndividuals with PTSD may be quick tempered

and may even engage in aggressive verbal and/or physical behavior with little or no provocation

(e.g., yelling at people, getting into fights, destroying objects).” App’x at 7. Lastly, the DSM-5

notes that “[f]ollowing prolonged, repeated, and severe traumatic events,” including “childhood

abuse,” a person suffering from PTSD “may additionally experience difficulties in regulating



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emotions or maintaining stable interpersonal relationships, or dissociative symptoms.” App’x at

8. Here, Dr. Fabian’s report linked Reddy’s PTSD diagnosis to the childhood abuse by his

mother.

       The record establishes that Bruner’s decision not to present PTSD evidence was not

sound trial strategy. Bruner was clearly aware of Reddy’s PTSD diagnosis; he obtained Dr.

Fabian’s report before trial, and brought it to the court’s attention immediately after the court

announced its verdict. It is also clear that Bruner thought Dr. Fabian’s report was important; he

raised the issue unprompted. Further, Bruner would have asked the court to review Dr. Fabian’s

report for sentencing purposes only if he believed it was favorable to Reddy and supported a

more lenient sentence. Given the defense that Bruner chose to pursue, there could be no

reasonable strategy in presenting PTSD evidence at sentencing and not at trial, especially given

that the same finder of fact—the state trial court—determined both guilt and the sentence.

Although we must “indulge a strong presumption” that Bruner’s conduct fell “within the wide

range of reasonable professional assistance,” Strickland, 466 U.S. at 690, we conclude that

Bruner’s decision not to present PTSD evidence at trial falls below an objective standard of

reasonableness in light of the unusual factual circumstances presented by this case.

       These unusual circumstances—Bruner’s failure to present known, persuasive PTSD

evidence in support of his express trial strategy—distinguish this case from other decisions

denying relief where trial counsel failed to present PTSD evidence. For example, in Campbell v.

Coyle, 260 F.3d 531 (6th Cir. 2001), a habeas petitioner claimed trial counsel was ineffective for

“failing to discover and present” evidence of “possible” PTSD during the guilt and penalty

phases of his trial, arguing that his childhood medical records should have alerted counsel to a

possible PTSD diagnosis. Id. at 546. We concluded that the state court’s decision denying relief



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was not unreasonable, in part because the petitioner had “never been diagnosed or treated for

PTSD,” and could not point to medical evidence that he had PTSD. Id. at 555. Further, counsel

had obtained an evaluation from a clinical psychologist who did not diagnose the petitioner with

PTSD, and the petitioner’s argument suggested that “trial counsel’s failure to independently

diagnose PTSD” was unreasonable. Id. Here, in contrast, Reddy was diagnosed with PTSD by

the psychiatrist that Bruner retained before trial, and Bruner evidently recognized the import of

Dr. Fabian’s report but nonetheless failed to present any psychiatric evidence. Other PTSD cases

addressing a failure to discover PTSD are similarly distinguishable on this basis. E.g., Payton v.

Cullen, 658 F.3d 890, 893–94 (9th Cir. 2011); Easley v. Dretke, 122 F. App’x 124, 128–30 (5th

Cir. 2005); Pruett v. Thompson, 996 F.2d 1560, 1573 (4th Cir. 1993).

       The warden argues that Bruner’s decision not to present PTSD evidence was objectively

reasonable because Ohio does not recognize the partial defense of diminished capacity. This

argument is misplaced. True, “the partial defense of diminished capacity is not recognized in

Ohio,” State v. Fulmer, 883 N.E.2d 1052, 1058 (Ohio 2008), and an Ohio defendant therefore

“may not offer expert psychiatric testimony, unrelated to the presentation of an insanity defense,

to show that [h]e lacked the mental capacity to form the specific mental state required for a

particular crime or degree of crime.” Wong v. Money, 142 F.3d 313, 323 (6th Cir. 1998)

(applying Ohio law). However, Reddy does not argue that he lacked the mental capacity to form

the mental state necessary for aggravated murder or murder; rather, Reddy asserts that PTSD

evidence would affirmatively establish the mitigating elements necessary to present a voluntary-

manslaughter defense. State v. Deem, 533 N.E.2d 294, 298 (Ohio 1988) (“[A]n offense is an

‘inferior degree’ of the indicted offense where its elements are identical to or contained with the




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indicted offense, except for one or more additional mitigating elements which will generally be

presented in the defendant’s case.”).

       Ohio law makes clear that PTSD evidence is admissible to support that a defendant had

the mental state necessary to reduce murder to voluntary manslaughter. For example, the Ohio

Supreme Court has held that evidence of battered-child syndrome, which the court described as a

form of PTSD, is admissible to support consideration of voluntary manslaughter as a lesser

offense to murder. State v. Nemeth, 694 N.E.2d 1332, 1336, 1339 (Ohio 1998). Other decisions

from the Ohio courts are in accord. See, e.g., State v. Lawrence, 541 N.E.2d 451, 455 & n.3

(Ohio 1989) (discussing PTSD in reference to the mental state necessary for voluntary

manslaughter); State v. Warner, No. 2006-P-0048, 2007 WL 1731628, at *5 (Ohio Ct. App. June

15, 2007) (“Evidence that the defendant is suffering from post traumatic stress disorder is

appropriate in a case where the defendant seeks a voluntary manslaughter instruction.”); State v.

Sanders, No. 17718, 2000 WL 1006754, at *3 (Ohio Ct. App. July 21, 2000) (concluding

evidence of organic brain disorder is admissible to prove mental state for voluntary

manslaughter); State v. Hall, No. 91 CA 26, 1993 WL 6578, at *2–3 (Ohio Ct. App. Jan. 19,

1993) (distinguishing diminished capacity from the mental state necessary to show voluntary

manslaughter). Thus, we find unpersuasive the warden’s argument that PTSD evidence would

have been inadmissible at Reddy’s trial.

       B. Prejudice

       To establish prejudice, Reddy “must show 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.”

Strickland, 466 U.S. at 694. Reddy, however, “need not show that counsel’s deficient conduct



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No. 14-4002, Reddy v. Kelly


more likely than not altered the outcome in the case.” Id. at 693; see also Bigelow v. Williams,

367 F.3d 562, 570 (6th Cir. 2004) (“A ‘reasonable probability’ is a probability ‘sufficient to

undermine confidence in the outcome,’ but something less than a showing that the outcome more

likely than not would have been different.’”) (quoting Strickland, 466 U.S. at 693).

       Because Reddy was convicted after a bench trial, the record contains the factfinder’s

views of the evidence and the case, preserved in the transcript of the trial court’s ruling on

Bruner’s motion to acquit, the explanation of the verdict, and the colloquy regarding Dr.

Fabian’s report during the hearing on remand from the Ohio Court of Appeals. In denying

Bruner’s motion to acquit on aggravated murder, the trial court asked whether Bruner was asking

the court to consider a voluntary-manslaughter charge. After Bruner confirmed that he was, the

trial court indicated it would not consider a voluntary-manslaughter defense, at least at the close

of the state’s evidence: “You don’t go from agg murder to voluntary.” R. 5-8, PID 904. In

other words, because the trial court found there was evidence to show prior calculation and

design, Ohio Rev. Code § 2903.01(A), the court concluded that Reddy could not have acted in

sudden passion or a fit of rage. Id. at § 2903.03(A).

       The trial court expanded on this point during resentencing on remand from the Ohio

Court of Appeals, acknowledging that courts must “go on to consider” a voluntary-manslaughter

defense if the defendant “go[es] forward with evidence tending to show that the killing occurred

in a sudden fit of rage provoked by [the] victim,” but that Reddy had been “prevented from going

on to what’s called an inferior offense, going on to talk about the inferior offense, the voluntary

manslaughter.” R. 5-9, PID 998–99. To this point, the Ohio Supreme Court has explained that a

trial court need not instruct the jury on voluntary manslaughter where “nothing in the record

indicates that [the defendant] actually was in a fit of passion or rage on the night in question,”



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State v. Thompson, 23 N.E.3d 1096, 1134 (Ohio 2014), but must include the inferior-degree

offense in the jury charge if “the evidence presented at trial would reasonably support both an

acquittal on the charged crime of murder and a conviction for the voluntary manslaughter,” State

v. Shane, 590 N.E.2d 272, 274 (Ohio 1992).

       At resentencing, the trial court confirmed that it had not considered a voluntary-

manslaughter defense at trial after “rejecting the argument that it was murder as opposed to

aggravated murder.” Id. However, the trial court also seemed to acknowledge that Dr. Fabian’s

report had persuasive value. Reddy’s counsel on remand, Valentine, pointed out Dr. Fabian’s

conclusion that there was a “nexus” between Reddy’s homicidal behavior and his mental illness,

and the trial court agreed that “Dr. Fabian spends a great deal of this evaluation supporting that

conclusion.” R. 5-9, PID 986–87. The trial court noted that Dr. Fabian observed with a

“reasonable medical certainty” that Reddy was mentally ill, including with PTSD, and that “Dr.

Fabian attributes the cause of Mr. Reddy’s diagnosis as being the very sad childhood that he

experienced at the hands of his mother.” Id. at PID 986–87. Lastly, the trial court took care to

make note that although the report “appear[ed] to have been prepared for trial,” it was not “put

into evidence” or “touched on in any way,” suggesting that the trial court considered the report to

be significant. Id. at PID 988.

       Further, although Bruner adduced testimony to support that Reddy had suffered

childhood abuse, evidence of PTSD would not have been cumulative. Testimony describing

childhood abuse, standing alone, could support the mental state required for aggravated murder,

murder, or voluntary manslaughter. In closing, the prosecution argued that “[i]f we are to

believe the testimony of eight years or more of abuse,” then Reddy “had eight years to fester a

hate for his mother.” R. 5-8, PID 935. Although Gloria Reddy was an “abusive woman who



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No. 14-4002, Reddy v. Kelly


created havoc in everyone’s life,” id. at PID 936, and Reddy “was treated so poorly” by her, he

“lived in the same house with her.” Id. at PID 937. Reddy’s decision to continue living with his

mother under these circumstances supported that he “acted with purpose and with prior

calculation and design,” the prosecution argued. Id. at PID 937–38. “If he was being abused so

bad,” he should have left his mother’s house, but “he refused.” Id. at PID 944. This argument in

support of an aggravated-murder conviction—that Reddy may have planned to kill his mother

because she had abused him—was consistent with, and supported by, evidence of abuse.

       PTSD evidence, on the other hand, would support that Reddy acted in sudden passion or

a fit of rage and refute that he acted with prior calculation and design. See, e.g., Warner, 2007

WL 1731628, at *5 (“The expert testimony may assist the jury in determining if the defendant

acted under the influence of sudden passion or acted in a fit of rage.”). Dr. Fabian’s conclusion

that there was a “nexus” between the evidence of mental illness and the homicide strongly

supports the mental state for voluntary manslaughter. Indeed, the Ohio Supreme Court has

concluded that PTSD evidence has distinct value in demonstrating this mental state. In State v.

Nemeth, 694 N.E.2d 1332 (Ohio 1998), the defendant was tried for the aggravated murder of his

mother and was convicted of murder. Id. at 1333. Defense counsel proffered evidence of

battered-child syndrome—which the Ohio Supreme Court described as a form of PTSD—in

support of a voluntary-manslaughter charge and self-defense, but the trial court excluded the

testimony. Id. at 1335–36. The Ohio Supreme Court held that the trial court erred in excluding

the testimony, and that the error was prejudicial to the defendant, although evidence of abuse had

been presented to the jury. Id. at 1334, 1336, 1341.

       Under the circumstances presented here, we conclude there is a reasonable probability

that if Bruner had introduced PTSD evidence, the trial court would have reconsidered the prior-



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calculation-and-design element of the government’s aggravated-murder case and gone on to find

that Reddy had acted in sudden passion or a fit of rage brought on by provocation. Unlike the

dissent, we do not understand the trial court’s statements to indicate otherwise. The evidence

was insufficient to establish prior calculation and design, as the Ohio Court of Appeals

explained, and the trial court’s comments on Dr. Fabian’s report during resentencing support that

there is a reasonable probability that PTSD evidence would have tipped the scales at trial in favor

of a voluntary manslaughter conviction. Although the Ohio Court of Appeals declined to grant a

new trial or modify Reddy’s conviction to voluntary manslaughter in Reddy’s first direct appeal,

the court expressly relied on a presumption that the trial court had rejected inferior-degree

offenses. Reddy, 948 N.E.2d at 468. But the Fabian report had not been introduced at trial and

was not considered when the trial court rejected voluntary manslaughter. In the appeal from the

resentencing, the Ohio Court of Appeals relied on its decision in the initial appeal. Reddy, 2011

WL 2436596, at *3.

       Thus, Bruner’s decision not to present PTSD evidence warrants relief because the

evidence was sufficiently probative of voluntary manslaughter to establish a reasonable

probability that the result of Reddy’s trial would have been different. Strickland, 466 U.S. at

693.

                                         IV. Conclusion

       For   these    reasons,   we    REVERSE        the   judgment    of   the   district   court,

CONDITIONALLY GRANT Reddy’s petition for a writ of habeas corpus, and REMAND the

case to the district court with instructions to order Reddy’s release from custody unless the state

grants a new trial within 180 days from the date that the mandate issues from this court.




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No. 14-4002, Reddy v. Kelly


       BOGGS, Circuit Judge, concurring in part and dissenting in part. I am in accord

with the majority on several points. I agree that this is an unusual case in which 28 U.S.C.

§ 2254(d) does not constrain our review of a state prisoner’s constitutional claim. See Campbell

v. Bradshaw, 674 F.3d 578, 596 (6th Cir. 2012). I also share the view that Ohio law allows

defendants facing a murder charge to introduce evidence of post-traumatic stress disorder

(“PTSD”) in support of a voluntary-manslaughter conviction. See State v. Nemeth, 694 N.E.2d

1332, 1336 (Ohio 1998). In light of Mr. Bruner’s decision to offer such evidence at Reddy’s

sentencing hearing, I also accept the majority’s conclusion that his failure to do so during

Reddy’s trial cannot be described as “sound trial strategy.” Strickland v. Washington, 466 U.S.

668, 689 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). At that point, however,

the majority and I part ways. In my view, Reddy has not shown a “reasonable probability” that

“the result of the proceeding would have been different” had the trial judge heard evidence of

Reddy’s PTSD. Id. at 694. I would therefore affirm the district court’s decision to deny Reddy’s

bid for habeas relief.

       As an initial matter, although the majority views Dr. Fabian’s report as clearly

establishing that Reddy suffered from PTSD, the report is not quite so conclusive. Fabian did

explain that he administered the Detailed Assessment of Post-Traumatic Stress (“DAPS”), a test

that mental-health professionals use to detect the presence of PTSD symptoms. But the results

did not conclusively show that Reddy had PTSD. Although Fabian concluded that Reddy was,

“with reasonable psychological certainty, . . . a mentally ill individual” who suffered from major

depressive disorder and personality disorder, he never stated with that same degree of certainty

that Reddy suffered from PTSD. Fabian concluded only that Reddy “presents as qualifying for

many of the symptoms of PTSD,” which appear to be fairly nonspecific. Perhaps for this reason,



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unlike Reddy’s diagnoses of major depressive disorder and personality disorder, Fabian labeled

his diagnosis of PTSD as “provisional” only.

       Courts in several contexts have recognized that a “provisional” diagnosis is not as

persuasive as an actual one, see, e.g., Lopez v. Ryan, 630 F.3d 1198, 1207 (9th Cir. 2011),

overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc);

Neumann v. Colvin, No. 3:13-CV-05723, 2014 WL 3671329, at *3 n.4 (W.D. Wash. July 22,

2014), and in adjudicating claims similar to Reddy’s, we have held that the Strickland v.

Washington, 466 U.S. 668 (1984), prejudice inquiry ordinarily demands more than a possibility

that a petitioner has a relevant mental illness. In Campbell v. Coyle, 260 F.3d 531 (6th Cir.

2001), for example, we rejected a prisoner’s claim that he had been prejudiced by counsel’s

failure to offer evidence of PTSD at trial. Although the petitioner supported his claim with

reports from two psychologists who concluded that he “possessed many of the symptoms of

PTSD,” id. at 549, we reasoned that without an actual diagnosis, the argument for prejudice was

“much too tenuous,” id. at 555. Five years later, in Carter v. Mitchell, 443 F.3d 517 (6th Cir.

2006), we held that a doctor’s opinion, given after trial in support of a state postconviction

motion, that “there was] a ‘likelihood’ that [the prisoner] ha[d] ‘some kind of brain related

difficulty’” was not sufficiently conclusive to show that the prisoner had been prejudiced by his

trial counsel’s failure to hire a neuropsychologist to evaluate him before trial. Id. at 529–30.

       Although I recognize the “potential unfairness that would be created if conclusive

evidence of PTSD were required for [a petitioner] to establish a viable ineffective-assistance

claim,” Reddy’s claim is “no doubt weakened due to the want of a proper diagnosis.” Clarke v.

Warren, 556 F. App’x 396, 414 n.10 (6th Cir. 2014). This is particularly true because the

probative value of Fabian’s report cannot be evaluated in isolation. The court’s psychologist



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No. 14-4002, Reddy v. Kelly


evaluated Reddy as well and informed the court that Reddy suffered from major depressive

disorder and acute stress disorder, but apparently not PTSD. In this context, there is reason to

doubt whether Fabian’s testimony would have carried much weight had Bruner put the diagnosis

at issue.

        Even ignoring this concern, however, I still have difficulty concluding that Fabian’s

testimony would create a “reasonable probability” of a different outcome because the trial

judge’s own statements suggest that during Reddy’s trial, she already considered and rejected the

possibility that the abuse that Reddy suffered caused him to react disproportionately to his

mother’s knife attack. At the close of evidence, the judge explained that she did not believe

“[t]he defendant’s rendition of what happened,” namely, that after years of abuse at Gloria’s

hands, Reddy overreacted to her knife attack, flew into a fit of passion or rage, and choked her to

death. When, at Reddy’s resentencing hearing, the court addressed Fabian’s report, which

described a “nexus” between Reddy’s PTSD and Gloria’s killing, the court did not express

surprise or curiosity, instead noting that “having been the trier of the facts in Mr. Reddy’s trial,

I don’t think there is a lot of issue to take with” Fabian’s conclusions.

        The trial judge’s muted reaction to Fabian’s report is unsurprising. In Clarke v. Warren,

556 F. App’x 396 (6th Cir. 2014), we considered the habeas petition of a woman who killed two

men in a robbery. Id. at 400. The prisoner claimed that she began to suffer from PTSD two

weeks prior to the killings, as a result of being abducted and tortured by another individual

unrelated to the robbery. Id. at 401, 414. We held that counsel’s failure to present PTSD

evidence at the prisoner’s sentencing hearing was not prejudicial because the court “was aware

of the trauma inflicted” on the prisoner, having heard “considerable evidence” of the abduction

and assaults. Id. at 414. In other words, even though evidence of PTSD is different from



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evidence of abuse, see Amicus Curiae Br. 13–14, the difference is not so great as to prejudice the

defense in every case in which PTSD evidence is omitted, see Clarke, 556 F. App’x at 414.

Tellingly, in those cases that Reddy cites, in which courts have considered trial counsel’s failure

to introduce evidence of PTSD or similar disorders to be prejudicial, the trier of fact heard no

evidence of the underlying abuse or trauma that gave rise to the PTSD. See Jacobs v. Horn, 395

F.3d 92, 101–02 (3d Cir. 2005); Seidel v. Merkle, 146 F.3d 750, 752 (9th Cir. 1998). The same

cannot be said of Reddy’s trial.

       The majority points out that in State v. Nemeth, 694 N.E.2d 1332 (Ohio 1998), the Ohio

Supreme Court held that a trial court’s refusal to admit evidence of a defendant’s diagnosis of

battered child syndrome (“BCS”) was prejudicial even though the defendant testified to the

abuse that he suffered at the hands of the victim. Id. at 1336, 1341. But the Nemeth court

reversed on the ground that the BCS evidence in that case was highly relevant to the defendant’s

credibility. After reviewing the trial transcript, the Nemeth court observed that the jury likely

assumed that the defendant had fabricated allegations of abuse because the prosecution

repeatedly “impl[ied] [at trial] that [the defendant] must have created the allegations of abuse

after the fact because, otherwise, more people would have known about it.” Id. at 1337. The

Ohio Supreme Court emphasized that “[t]he defense need[ed] expert testimony to refute the

seemingly logical conclusion that serious abuse could not be taking place if no one outside the

home was aware of it.” Ibid. The same danger did not exist at Reddy’s trial, at which numerous

witnesses testified that Gloria abused Reddy. Indeed, Bruner repeatedly drew the trial court’s

attention to that testimony by arguing that because of the abuse, Gloria’s provocation prompted

Reddy to enter a fit of passion or rage.




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No. 14-4002, Reddy v. Kelly


       What is more, the reasons that the trial court gave for convicting Reddy of aggravated

murder cast further doubt upon the majority’s assumption that PTSD evidence would have made

a difference in this case. At the close of all proof, the trial court explained that it was rejecting

Reddy’s version of events not because the record was devoid of evidence that would support a

conviction for either murder or voluntary manslaughter, but rather because the great weight of

evidence showed that the murder did not happen in the way Reddy alleged. The trial court

explained that the lacerations on Gloria’s face and extensive bruising to her head, as well as the

blood stains that Cleveland Police Department found throughout her home, strongly suggested

that Reddy acted with “prior calculation and design” when he killed his mother:

               The trouble the Court has in interpreting this evidence as being something
       other than prior calculation and design stems from the physical damage to the
       victim and the presence of blood spattering, not only in Joseph Reddy’s bedroom,
       but also in both walls of the hallway . . . as well as the living room. Let’s not
       forget that we had some four or five markers when the detectives came to the
       home where they found blood on the living room carpeting, the plastic waste
       paper can, the spot on the drawing, so there were actually three different areas of
       the home where there are blood spatters.
               The defendant’s rendition of what happened never mentions any of the
       head injuries and when you combine the evidence of the head injuries and all
       those blood splatters, it strikes the Court as consistent with the beating of the
       victim as having occurred prior to any choking, so the pattern the evidence
       presents to the Court and of which I’m convinced beyond a reasonable doubt is
       whatever the victim may have done to incite or enrage her assailant, Mr. Reddy,
       the plain fact of the matter is that the sequence of events had to have occurred
       with the beating of the victim’s head in rooms—in various rooms, hallway, living
       room, Joseph’s bedroom. And that had to have . . . preceded . . . her choking.

       The probative value that the trial court assigned to this physical evidence of a slow and

drawn-out killing strongly suggests that evidence of Reddy’s PTSD would have had no impact

on the trial court’s decision to convict Reddy of aggravated murder. Even assuming that the

“[e]xaggerated startle response” that PTSD causes can spur individuals to kill in as methodical a

manner as the trial court was convinced Gloria was murdered, Am. Psychiatric Ass’n, Diagnostic

and Statistical Manual of Mental Disorders 272 (5th ed. 2013), the result at trial would have been
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no different had PTSD evidence been admitted. Reddy told police that as Gloria was attacking

him, he punched her in the face in self-defense, tackled her, and choked her in an attempt to

render her unconscious, inadvertently killing her. At trial, Reddy’s theory of the case relied on

the truth of this account; Bruner argued that Reddy began to choke his mother immediately after

she attacked him, and did not realize that the choking was killing her because he was acting

under a passion brought on by the combination of Gloria’s knife attack and years of abuse at her

hands. But in his statement to police, Reddy made no mention of beating Gloria in multiple

rooms, which, given the evidence of blood stains throughout the home and extensive injuries to

Gloria’s head, convinced the trial court that Reddy was lying about how the killing happened.

Evidence of PTSD would not have changed that conclusion.

       I acknowledge that Reddy’s case for habeas relief would be stronger if the trial court had

convicted Reddy of murder after having been instructed to disregard the blood-stain evidence

and reconsider its verdict. But that never happened. Despite having concluded that the trial

judge’s reliance on blood-stain evidence was reversible error, the Ohio Court of Appeals did not

allow Reddy a second opportunity to argue for voluntary manslaughter. See State v. Reddy,

948 N.E.2d 454, 460–62, 468 (Ohio Ct. App. 2010).            Although I have doubts about the

appropriateness of the state court’s reasoning on that point—which is not at issue in this case—

PTSD evidence would not have changed the result in the Ohio Court of Appeals. As the

majority has explained, that court applied a state-law presumption that “the trial court considered

all lesser and included offenses as well as inferior degree offenses,” and then explained that it

would not remand the case for consideration of voluntary manslaughter because the evidence in

the record “was sufficient to convict Reddy of murder.” Id. at 468. I do not see how evidence

that Reddy had PTSD would have weakened the case for deploying the presumption, or how



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No. 14-4002, Reddy v. Kelly


Fabian’s testimony—which a trier of fact could easily discount—would in any way have

rendered the evidence “insufficient” to convict Reddy of murder.

       In sum, I agree with the majority that if Bruner concluded that Fabian’s report was

favorable enough to submit to the court for sentencing purposes, there appears to be no reason

for why he should have thought it strategic to avoid calling Fabian as a witness at trial. But the

particular facts of this case suggest that there is less than a “reasonable probability” that, but for

Bruner’s decision not to call Fabian to the witness stand, the “result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. The majority having taken a different view, I

respectfully dissent.




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