                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 09a0348p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                  X
        Petitioner-Appellee/Cross-Appellant, -
 WILLIAM T. MONTGOMERY,
                                                   -
                                                   -
                                                   -
                                                       Nos. 07-3882/3893
          v.
                                                   ,
                                                    >
                                                   -
       Respondent-Appellant/Cross-Appellee. -
 MARGARET BAGLEY, Warden,
                                                   -
                                                  N
                   Appeal from the United States District Court
                    for the Northern District of Ohio at Toledo.
                No. 00-07298—Solomon Oliver, Jr., District Judge.
                               Argued: June 17, 2009
                      Decided and Filed: September 29, 2009
             Before: MERRITT, CLAY, and GIBBONS, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Richard Marvin Kerger, KERGER & HARTMAN, LLC,
Toledo, Ohio, for Appellee. ON BRIEF: Charles L. Wille, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Richard Marvin Kerger,
KERGER & HARTMAN, LLC, Toledo, Ohio, Lori A. McGinnis, Loudonville, Ohio, for
Appellee.
     MERRITT, J., delivered the opinion of the court, in which CLAY, J., joined.
GIBBONS, J. (pp. 18-21), delivered a separate dissenting opinion.




                                         1
Nos. 07-3882/3893                   Montgomery v. Bagley                                 Page 2


                                     _________________

                                          OPINION
                                     _________________

                                         I. Summary

        MERRITT, Circuit Judge. In this death penalty case, the State of Ohio, through the
Respondent, Warden Margaret Bagley, appeals the District Court’s new trial order granting
William T. Montgomery’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, and
its subsequent denial of the State’s motion to reconsider that order. See Montgomery v.
Bagley, 482 F. Supp. 2d 919 (N.D. Ohio 2007). The District Court issued the writ based on
a finding that the State, in violation of Brady v. Maryland, 373 U.S. 83 (1963), withheld an
exculpatory, pretrial police report that would likely have altered the outcome of the case —
a pretrial report that several witnesses had seen one of Montgomery’s purported victims alive
four days after the State alleged that he had killed her. Montgomery cross-appeals the
District Court’s denial of his petition on several alternative grounds, including the state trial
court’s failure to grant a change of venue despite negative pretrial publicity, the State’s
failure to disclose certain other Brady material, and the trial court’s failure to dismiss an
incompetent juror.

        The key issue for us to resolve under Brady is whether the withheld police report is
“material” to Montgomery’s jury conviction or the jury’s imposition of the death sentence
when viewed in light of the other evidence presented at trial. The Warden’s argument that
the withheld police report is not “material” has two components: First, given the strength
of the other evidence at trial implicating Montgomery, the introduction of the police report
would have made no difference in the outcome of the trial. Second, in affidavits submitted
to the habeas court 23 years after the jury trial and seven weeks after the court had issued the
writ, the State now claims that several of the pretrial police-report witnesses have retracted
their earlier statements, which now proves that the exculpatory report could neither be
effectively used in a new trial to cast doubt on the state’s case, nor could it have led to such
evidence in the past.

        Montgomery argues that the evidence at trial implicated his co-defendant, Glover
Heard, as the trigger man so that introduction of the withheld police report would have given
Nos. 07-3882/3893                   Montgomery v. Bagley                                 Page 3


the jury reasonable doubt as to his guilt. Alternatively, on the issue of death, Montgomery
also contends that the police report would probably have created enough doubt in at least one
juror’s mind to raise a question about his role as the trigger man, resulting in that juror’s
rejection of the death penalty for Montgomery. Under Ohio law, if only one juror rejects the
death sentence, a life sentence would be imposed. Ohio Rev. Code Ann. § 2929.03(D)(2).

        The law under Brady follows the common sense proposition that the State must
disclose the “material exculpatory evidence to the defendant before trial,” not afterward. See
Dist. Attorney’s Office for the Third Jud. Dist. v. Osborne, 129 S. Ct. 2308, 2319 (2009)
(emphasis added). It directs us not to retry the case by weighing the existing evidence
against the excluded evidence, but rather to determine whether the excluded evidence “could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). The Brady due
process rule concerning disclosure of exculpatory evidence complements and supports the
Sixth Amendment rule requiring that “in all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State.” The Brady rule
contemplates the ultimate trial of factual issues in a contemporary trial by a jury, not by a
subsequent trial in federal habeas court. See Kyles v. Whitley, 514 U.S. at 439-40
(explaining that “the criminal trial . . . [is] the chosen forum for ascertaining the truth about
criminal accusations”).

        In this capital case, the State is unable to effectively rebut three crucial propositions
that control the outcome: (1) the withheld report is exculpatory and should have been
disclosed before trial, (2) it is “material” because, if true, it would likely change the outcome
of the trial, and (3) the ultimate determination concerning the truth of the withheld report —
i.e., what actually happened — is for the state courts to resolve. Because, like the District
Court, we believe that the withheld, exculpatory report “undermines confidence in the
verdict” as to both the guilt and sentencing phases of Montgomery’s trial, we hold that
Montgomery deserves a new trial where all of the relevant evidence is considered by the
jury. For the reasons that follow, we affirm the District Court’s issuance of the writ and later
denial of the State’s motion to reconsider. We pretermit the remaining issues raised in
Montgomery’s cross-appeal.
Nos. 07-3882/3893                 Montgomery v. Bagley                                  Page 4


           II. Facts Found by State Courts and Procedural Background

                               A. The Underlying Crime

       The Ohio Court of Appeals summarized the facts of the underlying crimes as
follows:

       On March 25, 1986, the Lucas County Grand Jury returned a two count
       indictment charging [Montgomery] with the aggravated murders of Debra
       D. Ogle and Cynthia Tincher while committing or attempting to commit
       aggravated robbery, in violation of R.C. 2903.01(B). . . .
       On September 29, 1986, the case proceeded to a jury trial at which numerous
       witnesses testified, including Glover Heard, who was also indicted for the
       aggravated murders of Ogle and Tincher but who pled guilty to one count
       of complicity to murder. Through those witnesses, the following key
       evidence was presented. On February 20, 1986, [Montgomery] purchased
       a Bursa .380 automatic handgun from Cleland’s Gun Shop in Toledo, Ohio.
       This gun was subsequently identified as the weapon that was used to kill
       both Ogle and Tincher. At approximately 5:00 a.m. on March 8, 1986, after
       an apparent argument with his girlfriend, [Montgomery] went by taxi with
       Glover Heard to an apartment shared by Ogle and Tincher. [Montgomery]
       was acquainted with the victims but Heard was not. At this time,
       [Montgomery] was wearing a dark blue pinstriped suit jacket that he had
       borrowed from Randolph Randleman, his uncle.                   Subsequently,
       [Montgomery] asked Ogle to give him a ride home. After Ogle agreed, she,
       [Montgomery] and Heard left in her car. Before arriving at the destination,
       however, [Montgomery] had Ogle stop the car. He then walked her into a
       wooded area along Hill Avenue in Toledo, Ohio, while Heard remained in
       Ogle’s car, and then, for no apparent reason, [Montgomery] shot Ogle three
       times with the fatal wound inflicted while the gun was in direct contact with
       the top of her forehead. [Montgomery] then returned to the car and he and
       Heard drove back to the girls’ apartment. [Montgomery] instructed Heard
       to take Ogle’s car. Heard took the car but then abandoned it approximately
       one block from his residence. [Montgomery] returned to the girls’ apartment
       and shortly thereafter left with Cynthia Tincher in her car. After leaving the
       apartment, [Montgomery] had Tincher pull to the side of the road and
       thereupon shot her through the head from a range of twelve inches or less.
       Several witnesses testified that they saw a man of approximately
       [Montgomery’s] height and weight leaving Tincher’s car on the morning of
       March 8, 1986 at approximately 7:15. Those witnesses testified, however,
       that the person they saw was wearing a dark jacket with a hood pulled up
       around his face. Tincher’s body was discovered in her car at the corner of
       Wenz and Angola Roads in Toledo, Ohio at approximately 7:30 a.m. on
       March 8, 1986. [Montgomery] lives approximately one-half mile from that
       location. Thereafter, at approximately 12:00 noon on March 8, 1986,
       [Montgomery], Heard and two friends, Sidney Armstead and Eric Wilson,
Nos. 07-3882/3893                Montgomery v. Bagley                                  Page 5


      got together to go to a mall. [Montgomery], however, was carrying a plastic
      bag and directed Armstead to first drive him to a dry cleaner. Armstead
      drove appellant to One Hour Martinizing where [Montgomery] got out of the
      car with the bag. Although they were unable to identify [Montgomery],
      employees of the laundry testified that on March 8, 1986, a black male
      showed them a soaking wet dark blue pin-striped suit jacket that he wanted
      cleaned in one hour. The employees explained that the jacket would have
      to dry out before it could be cleaned. They then hung the jacket to dry. One
      employee testified that as it dried, the jacket made a “brownish dripping
      mess on the floor.” She further testified that the jacket was badly stained
      and that she had to clean the jacket three times using a chemical cleaner.
      She could not identify, however, what the stains were. Subsequently, the
      jacket was picked up. Several days later, police officers obtained the jacket
      from Randolph Randleman who identified the jacket in court as the one
      which he had loaned to [Montgomery].
      As stated above, on March 8, 1986 at approximately 7:30 a.m., Tincher’s
      body was discovered in her car at the corner of Wenz and Angola. Soon
      thereafter, Ogle was listed as missing. The following day, however, Ogle’s
      car was discovered behind an abandoned house at 1031 Norwood.
      Thereafter, on March 10, 1986, Crime Stoppers received a telephone call
      from a Michael Clark who was at that time incarcerated in the Lucas County
      Jail. Upon interviewing Clark, officers obtained the name of Glover Heard.
      Officers located Heard and from Heard they obtained the name of
      [Montgomery]. Officers then gained permission from [Montgomery’s]
      mother to search her home, where appellant also lived. That search revealed
      a black leather jacket with a hood and the manual to the Bursa
      semi-automatic handgun. Subsequently, on March 12, 1986, officers went
      to Randolph Randleman’s home in an attempt to locate [Montgomery]. At
      approximately 12:00 noon, [Montgomery] arrived at the home and told
      officers that he knew the officers were looking for him and he wanted to talk
      about the homicide. He was then arrested and taken to the police station for
      questioning. During the interrogation, [Montgomery] initially stated that
      Heard had killed both girls with his, [Montgomery’s], gun. He then changed
      his story but ultimately admitted that he had gone to the girls’ apartment for
      a ride home. He continued to insist, however, that Heard had killed the girls
      and that he did not know where Ogle’s body was. Finally, however,
      [Montgomery] admitted that he might be able to show officers where Ogle’s
      body was and stated that it was on Hill Avenue near a market. Officers then
      took [Montgomery] to Hill Avenue and ultimately to a wooded area that
      appellant identified as the location. Several officers began searching the
      area while Sergeant Larry Przeslawski stayed in a patrol vehicle with
      [Montgomery]. After the officers searched one wooded area for a few
      minutes, [Montgomery] told Sergeant Przeslawski to direct the officers to
      search a different wooded area. Within five minutes, the officers located the
      body of Debra Ogle.
Nos. 07-3882/3893                     Montgomery v. Bagley                                  Page 6


        At the conclusion of the trial, the jury found [Montgomery] guilty of the
        aggravated murder of Debra Ogle with the specifications that said action
        involved the purposeful killing of two or more persons and that
        [Montgomery] was the principal offender while attempting to commit
        aggravated robbery. The jury further found [Montgomery] guilty of the
        lesser included offense of murder of Cynthia Tincher. At the conclusion of
        the mitigation phase, the jury recommended that [Montgomery] be sentenced
        to death. The trial court agreed with the jury’s recommendation and ordered
        that appellant be executed. . . .
State v. Montgomery, No. L-98-1026, 1999 WL 55852, at *1-3 (Ohio Ct. App. Feb. 5, 1999)
(internal citations omitted).

                          B. Post-Conviction Relief in State Court

        After Montgomery’s conviction was upheld on direct appeal, he began pursuing
post-conviction relief in state court. Montgomery submitted seventy claims for post-
conviction relief to the state trial court, but his petition for relief was swiftly denied after the
State successfully moved for summary judgment. The Ohio Court of Appeals reversed and
remanded, holding that the trial court neglected to give Montgomery an adequate opportunity
to respond to the State’s motion. On remand, the trial court permitted Montgomery to
respond, only to later reject his claims for a second time. The Ohio Court of Appeals
affirmed the denial of relief, and the Ohio Supreme Court declined to review that decision.

                        C. Post-Conviction Relief in Federal Court

        Having exhausted his available means for post-conviction relief in state court,
Montgomery filed a petition for a writ of habeas corpus in Federal District Court. This time,
he alleged forty-eight grounds for relief. After a comprehensive review of the matter, the
District Court denied all of Montgomery’s claims except the alleged Brady violation arising
out of the State’s withholding of the aforementioned police report. In pertinent part, the
police report read as follows:

        [David Ingram] stated that he and several friends were at the Oak Hill
        apartments on Hill when they saw a Blue Ford Escort with Debbie Ogle
        driving around the complex. Later they again saw her as a passenger in the
        same auto. Debbie Ogle waved to them as they knew her from Rogers High
        School. She was with a white male with long sideburns. She did not appear
        distressed.
J.A. at 2985.
Nos. 07-3882/3893                   Montgomery v. Bagley                                Page 7


        The report was exculpatory in nature and important because the sighting of Ogle
took place at 1:20 A.M. on Wednesday, March 12, 1986, four days after the State had argued
that Montgomery murdered her. Id. at 2984. The District Court not only concluded that the
report was exculpatory but also found that there was no doubt that the State had refused to
disclose the report — indeed, it only emerged after a formal request for police records some
six years after Montgomery’s trial. Id. at 2867. Finally, the District Court considered
whether the report was material under Brady, that is, whether there was a “reasonable
probability” that the outcome of Montgomery’s trial would have been different had he been
privy to the police report. Finding that the police report met this standard, the District Court
issued the writ.

        After the District Court issued the writ, a Toledo newspaper ran a story about the
case and noted that the District Court’s decision was based on the withholding of the 1986
police report. The news soon reached three of the people responsible for the police report,
including David Ingram, the man who called in the report shortly after seeing a woman he
and his friends said was Debra Ogle. Upon hearing the news, each of the witnesses
telephoned the Toledo Police Department to retract their earlier statement. They claimed
that the woman they had seen turned out to be Dianna Ogle, the victim’s younger sister, a
claim they had not made at the time of trial or subsequently. At the behest of the police, the
witnesses quickly signed sworn affidavits to this effect. The State then filed the affidavits
in the District Court along with a Rule 59(e) motion to reconsider the writ based on this new
evidence. Without passing on the materiality of the police report in light of the late-filed
affidavits, the District Court denied the Rule 59(e) motion. It held that the affidavits were
not properly before the court because they did not qualify as newly discovered evidence
under Rule 59, and therefore the court could not justify altering or amending a final
judgment on the merits.

        There are two distinct questions before our court. First, was the District Court
correct to grant the habeas petition? And second, was the District Court correct in refusing
to consider the late-filed affidavits under Rule 59(e)? We answer both in the affirmative.
Nos. 07-3882/3893                   Montgomery v. Bagley                               Page 8


                                 III. The Habeas Petition

        The State challenges the issuance of the writ on three grounds. First, the State argues
that the District Court did not give due deference to the findings of the Ohio state courts.
Second, the State argues that the police report did not qualify as “evidence” under Brady
because it would have been inadmissible at trial. And third, the State argues that the District
Court erred as a matter of law in determining that the withheld evidence was “material”
under Brady.

                                       A. Deference

        The deference issue necessarily turns upon the adequacy of the review of
Montgomery’s Brady claim in state court. The Ohio Court of Appeals determined that such
information developed during an “ongoing investigation” was not sufficiently exculpatory
to require disclosure under Brady and limited its discussion only to the following conclusion:

        [Montgomery] asserted that the state wrongfully withheld exculpatory
        evidence that on March 12, 1986 at approximately 1:30 a.m., Debra Ogle
        was seen alive in the parking lot of her apartment complex by seven
        witnesses who went to high school with her. [Montgomery] supports this
        claim with a police report taken at approximately 2:30 a.m. on March 12,
        1986. At that time, Debra Ogle was still considered missing although her
        car had been discovered abandoned behind a home several blocks from the
        home of the co-defendant Glover Heard. That report reads in relevant part:
        “[David Ingram] stated that he and several friends were at the Oak Hill
        apartments on Hill when they saw a Blue Ford Escort with Debbie Ogle
        driving around the complex. Later they again saw her as a passenger in
        same auto. Debbie Ogle waved to them as they knew her from Rogers High
        School. She was with white male with long side burns. She did not appear
        distressed.”
        The lower court concluded that this isolated information, recorded in the
        course of an ongoing investigation when all of the facts were still being
        pieced together and in the face of overwhelming evidence presented at trial
        that Ogle had been killed on March 8, 1986, did not undermine confidence
        in the outcome of the trial. We agree and conclude that the trial court did
        not err in dismissing the fiftieth claim for relief.
Montgomery, 1999 WL 55852, at *8.

        The District Court characterized this review as “cursory” and commented that the
issue “warrants detailed analysis.” Montgomery, 482 F. Supp. 2d at 976. It then went on to
Nos. 07-3882/3893                   Montgomery v. Bagley                                 Page 9


discuss the question of deference under the Antiterrorism and Effective Death Penalty Act
(AEDPA) in a detailed footnote:

        Section 2254(d)’s constrained standard of review only applies to claims
        adjudicated on the merits in the state court proceeding. Clinkscale v. Carter,
        375 F.3d 430, 436 (6th Cir. 2004). When a state court does not assess the
        merits of a petitioner’s habeas claim, the deference due under the AEDPA
        does not apply. Id.; Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003);
        Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). In such a case, the
        habeas court is not limited to deciding whether that court’s decision was
        contrary to or involved an unreasonable application of clearly established
        federal law, but rather conducts a de novo review of the claim. Maples, 340
        F.3d at 436-37; Benge v. Johnson, 312 F. Supp. 2d 978, 987 (S.D. Ohio
        2004).
        While the [Ohio] Court of Appeals addressed this claim, it failed to explain
        why the fact that the investigation was “ongoing” and “still being pieced
        together” was sufficient cause for the State’s failure to disclose it to the
        defense. This cursory [sic] may not be construed as an adequate [sic] to
        explain its reasoning. Moreover, to the extent that the Court of Appeals’s
        analysis of this claim is an “adjudication on the merits,” the court finds its
        application of Brady to be unreasonable because it failed to provide more
        than a conclusory statement regarding the materiality of the withheld report.
Id. at 976 n.44.

        The State attacks the District Court’s ruling on deference by directing our attention
to Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005). In Maldonado, we held that where
a state court decides a constitutional issue “‘without extended discussion,’” the district court
“must conduct an independent review,” but that its “inquiry remains the AEDPA standard
of whether the state court result is contrary to or unreasonably applies clearly established
federal law.” Id. at 476 (quoting in part Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.
2000)). The District Court did not stray from this procedure here. After determining that
the Ohio Court of Appeals gave Montgomery’s Brady claim unduly short shrift, the District
Court rightly went on to perform an independent review. When that review led to a different
conclusion, the District Court upheld it only after finding (as is required under AEDPA) that
the state court’s determination to the contrary represented an objectively unreasonable
application of clearly established federal law.
Nos. 07-3882/3893                    Montgomery v. Bagley                                Page 10


                                        B. “Evidence”

        The State’s argument that the withheld police report is not “evidence” under Brady
because it was inadmissible hearsay is not well taken. The police report would have been
inadmissible because it was hearsay, but “evidence affecting credibility falls within the
general rule” requiring disclosure. Giglio v. United States, 405 U.S. 150, 154 (1972). The
evidence would have seriously undermined the testimony of the State’s main witness, Glover
Heard. On its face, the report 23 years ago would have led to witnesses who would have cast
serious doubt on the State’s case. Failure to disclose such reports “not only deprives the
defense of certain evidence, but also has the effect of representing to the defense that the
evidence does not exist” causing defense counsel to “abandon lines of independent
investigation, defenses, or trial strategies that it otherwise might have pursued.” United
States v. Bagley, 473 U.S. 667, 682-83 (1985) (“the reviewing court may consider directly
any adverse effect that the prosecutor’s failure . . . might have had on the preparation or
presentation of the defendant’s case.”). The report qualifies as exculpatory evidence, and
we, therefore, must assess the possible effect of the report and its materiality at the time of
the jury trial 23 years ago when defense counsel had to prepare and try the case.

                                        C. Materiality

        The State challenges the District Court’s finding on materiality on two grounds.
First and foremost, the State argues that its case in trial court was so strong that any potential
testimony of witnesses claiming to have seen Debra Ogle alive on March 12 would not have
changed the outcome. The District Court responded to this argument as follows:

        [M]uch of the State’s case was made through co-defendant Heard, who gave
        police four different versions of his knowledge of the murders, and then
        testified to a fifth version at trial. While the State’s theory was that
        Montgomery committed the murder to rob Ogle, Heard admittedly wound
        up with Ogle’s car and wallet and testified that he was planning to take
        Ogle’s car even in the absence of Montgomery’s instruction to do so. Under
        the circumstances, where the State’s theory was that Tincher was killed to
        cover up Ogle’s murder, . . . the withheld police report revealing information
        suggesting that Ogle was seen alive four days after she was allegedly
        murdered would have severely undercut Heard’s credibility and destroyed
        the State’s timeline of the case.
Nos. 07-3882/3893                  Montgomery v. Bagley                              Page 11


Montgomery, 482 F. Supp. 2d at 978. This conclusion makes sense. The police report
strikes at the heart of the State’s case in directly contradicting Heard’s testimony. With
Heard sufficiently impeached, there was a reasonable probability that the jury may have
disbelieved his testimony that Montgomery was involved in the murders and, moreover, was
the triggerman in both killings. The police report was thus material to the jury’s finding on
guilt, giving rise to a violation of Montgomery’s right to due process. See Cone v. Bell, 129
S. Ct. 1769, 1772 (2009); Brady, 373 U.S. at 87.

        The report was also material to the jury’s later decision to impose the death penalty,
giving rise to Due Process and Eighth Amendment violations. In Lockett v. Ohio, 438 U.S.
586, 604 (1978) (plurality opinion), and its progeny, the Supreme Court established that the
Eighth Amendment guarantees a capital defendant the right to introduce all relevant
mitigating evidence in the penalty phase. The Court noted that “the Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of capital case, not be
precluded from considering, as a mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” Id. (emphasis in original); see also Eddings v. Oklahoma, 455
U.S. 104, 110 (1982).

        The Supreme Court has also held that the Due Process Clause requires that a state’s
rules of evidence not be applied mechanically when doing so would preclude the defendant
from introducing highly relevant evidence at the penalty phase. Green v. Georgia, 442 U.S.
95, 97 (1979) (citing Lockett, 438 U.S. at 604-05) (per curiam). Following Lockett and
Eddings, the exclusion of hearsay testimony at the penalty phase of a death penalty case
violates the Due Process Clause of the Fourteenth Amendment where “[t]he excluded
testimony was highly relevant to a critical issue in the punishment phase of the trial, and
substantial reasons existed to assume its reliability.” Id. In Green, the Court reversed the
death sentence based upon the trial court’s application of Georgia’s hearsay rule to prohibit
a witness’ testimony that the defendant’s accomplice in the capital murder had confessed to
shooting and killing the victim after ordering the defendant to run an errand. The Court held
that the Due Process Clause of the Fourteenth Amendment may require the admission of
mitigating evidence even if state law rules of evidence would exclude it. See Green, 442
U.S. at 96-97.
Nos. 07-3882/3893                   Montgomery v. Bagley                                Page 12


        The government’s star witness, Glover Heard, testified that Montgomery was the
triggerman in both deaths. That damning testimony undoubtedly played a significant role
in the jury’s decision to impose the death penalty on Montgomery. Had the jury heard
testimony from the witnesses that they saw Debbie Ogle alive in the early hours of March
12, long after the State contends she was killed by Montgomery, it may have raised enough
doubt in the mind of one juror to sway that juror, even if he or she had voted to convict
Montgomery of the murders, to reject the death penalty. If even one juror had rejected
imposition of the death sentence, a life sentence would have been imposed. Ohio Rev. Code
Ann. § 2929.03(D)(2). The fact that there may have existed even one juror with a doubt
about Montgomery’s guilt or the nature of his participation in the crime leads us to question
the reliability of the verdict as to the sentence and to conclude that the police report was
material to the sentence imposed.

        Our dissenting colleague argues in her footnote 1 that the withheld police report is
irrelevant and “unacceptable as a mitigating factor” at the capital sentencing or mitigation
phase of the trial because she characterizes it merely as the kind of “residual doubt” evidence
that may not be considered on the issue of death by the jury under Ohio law. The dissent’s
proposed procedural rule forbidding the jury’s consideration of the police report in assessing
evidence at the sentencing phase of the case excludes crucial evidence from the jury’s
consideration of death. It violates both state and federal law for at least three reasons.

        1. The dissent does not recognize that her “residual” doubt argument necessarily
presupposes that the exculpatory evidence concerning the nature of the crime was offered
in evidence in the first place and assessed by the jury at the guilt phase of the trial. She does
not notice that the Ohio statute, Ohio Rev. Code § 2929.04(B), expressly requires at
sentencing that the

        trial jury . . . shall consider, and weigh . . . the nature and circumstances of
        the offense, the history, character and background of the offender, and all the
        following factors:
        ....
        (6) If the offender was a participant in the offense but not the principal
        offender, the degree of the offender’s participation in the offense and the
        degree of the offender’s participation in the acts that led to the death of the
        victim;
Nos. 07-3882/3893                   Montgomery v. Bagley                               Page 13


        (7) Any other factors that are relevant to the issue of whether the offender
        should be sentenced to death.
        (C) The defendant shall be given great latitude in the presentation of
        evidence of the factors listed in division (B) of this section and of any other
        factors in mitigation of the imposition of the sentence of death.

In the instant case we are dealing with “original,” not “residual,” concealment of evidence
at both stages of the trial. It was impossible for the jury to consider the exculpatory evidence
at any phase of the case — guilt or mitigation — when the State had completely concealed
the statutorily allowed evidence concerning the “circumstances of the offense,” and “the
degree of the defendant’s participation in the offense.”

        2. Eighth Amendment law is not unclear or “up-in-the-air” on this subject. Eddings
v. Oklahoma says that states must allow “any relevant mitigating evidence.” 455 U.S. 104,
113-14 (1982). Franklin v. Lynaugh, 487 U.S. 164 (1988), cited by the dissent, supports this
rule. It merely holds that a state court did not have to give a so-called “residual doubt”
instruction to the jury. Id. at 174. There was no Brady exculpatory evidence involved in the
Lynaugh case. No evidence was concealed. The Supreme Court there makes it clear that
“the [state] trial court placed no limitation whatsoever on petitioner’s opportunity to press
the ‘residual doubts’ question with the sentencing jury.” Id. “Consequently, it is difficult
to see how the rejection of these instructions denied petitioner the benefit of any ‘residual
doubts’ about his guilt.” Id. The Supreme Court repeats and again makes it clear that the
mitigating evidence rule is mandatory:

        Our edict [is] that, in a capital case, “‘the sentencer . . . [may] not be
        precluded from considering, as a mitigating factor, any aspect of a
        defendant’s character or record and any of the circumstances of the
        offense.’” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett,
        438 U.S. at 604) . . . .
Franklin, 487 U.S. at 174 (second emphasis added).

        3. Even if the question for the jury at sentencing could somehow be classified as an
issue of “residual doubt,” the materiality inquiry in this Brady claim is necessarily backward
looking. We must determine whether there is “a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different,” United States v. Bagley, 473 U.S. 667, 682 (1985), and whether the withheld
evidence “could reasonably be taken to put the whole case in such a different light as to
Nos. 07-3882/3893                   Montgomery v. Bagley                              Page 14


undermine confidence in the [death] verdict,” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
As our dissenting colleague acknowledges, Montgomery was entitled to rely upon such
evidence as a mitigating factor at the time of his conviction and sentence in 1986. See State
v. Watson, 61 Ohio St. 3d 1, 17 (1991) (“Residual doubt of a capital defendant’s guilt may
properly be considered in mitigation”). In fact, at that time, the Supreme Court recognized
the residual doubt strategy as an “extremely effective argument for defendants in capital
cases.” Lockhart v. McCree, 476 U.S. 162, 181 (1986). Thus, whatever language the dissent
may use to characterize or denigrate the concealed report, the failure of the state to turn it
over violated federal law at the time and is inconsistent with the present state statute quoted
above, § 2929.04(B), enforcing the admissibility at sentencing of evidence concerning “the
nature and circumstances of the offense” and “the degree of the offender’s participation.”

                                          *   *    *

        At oral argument, the State took the position that police and prosecutors must
determine what is “material” for the purposes of Brady disclosures and, moreover, that this
decision is immune from hindsight review by the courts. At oral argument, the following
exchange took place:

        Court: I think [the State’s] position is that it’s up to the prosecutor and the
        police to decide whether such evidence as this [the withheld police report]
        is true or not true. And depending on whether the prosecutor decides that
        the [evidence] is true or not true turns the Brady materiality.
        State: Your Honor, that’s what I’m saying. That’s the position.
Oral Argument, June 17, 2009. The State offers no support for this proposition and betrays
a fundamental misunderstanding by the Attorney General of the law the State must follow.
Under Brady, it is incumbent upon the State to turn over all favorable exculpatory evidence.
It is not the sole arbiter of what must be turned over. See Kyles, 514 U.S. at 39-40.

        As a secondary argument, the State contends that the police report was immaterial
because it would not have led to the discovery of exculpatory evidence. For support, it relies
on the three retraction affidavits filed 23 years later. The affidavits do not undermine the
Brady claim until they become admissible and eligible for consideration.
Nos. 07-3882/3893                   Montgomery v. Bagley                              Page 15


                IV. Denial of the Rule 59(e) Motion to Alter or Amend

        The State appeals the District Court’s denial of its Rule 59(e) motion based on the
three late-filed affidavits. Rule 59(e) permits the amendment, alteration, or vacation of a
judgment after its entry. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2810.1 (3d ed.1998). It is an “extraordinary remedy” and is therefore “used
sparingly.” Id. Rule 59(e) motions may be granted upon a showing of “newly discovered
or previously unavailable evidence.” Id. “To constitute ‘newly discovered evidence,’ the
evidence must have been previously unavailable.”             Gencorp, Inc. v. Amer. Int’l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). This requires a showing that the evidence
could not have been discovered previously with due diligence. See 11 C. Wright, A. Miller,
& M. Kane, Federal Practice and Procedure § 2808 (3d ed.1998) (“The moving party must
have been excusably ignorant of the facts despite using due diligence to learn about them.”);
see also Bogart v. Chapell, 396 F.3d 548, 558 (4th Cir. 2005) (upholding the denial of a Rule
59(e) motion where “the movant presented no legitimate justification for failing to timely
submit the evidence and had advance notice of the . . . issues.”); Infusion Res., Inc. v.
Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir. 2003) (“[A] 59(e) motion to reconsider should
not be granted unless . . . the facts alleged . . . could not have been discovered earlier by
proper diligence.”); Committee for First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th
Cir. 1992) (“[T]he movant must show either that the evidence is newly discovered [and] if
the evidence was available at the time of the decision being challenged, that counsel made
a diligent yet unsuccessful effort to discover the evidence.”); Chery v. Bowman, 901 F.2d
1053, 1057 n.6 (11th Cir. 1990) (same).

        The District Court denied the State’s Rule 59(e) motion based on a finding that the
affidavits did not qualify as “newly discovered evidence.” It explained:

        [The State] clearly cannot establish that [it] exercised due diligence in
        procuring this evidence . . . . As is apparent by the addresses listed on their
        affidavits, [the three affiants] still reside in the Toledo, Ohio area. [The
        State] has not shown any reason why these witnesses could not have been
        contacted prior to the court’s issuance of the March 31, 2007 Memorandum
        of Opinion [granting Montgomery’s petition for a writ of habeas corpus].
        We review the District Court’s denial of the Rule 59(e) motion for abuse of
discretion, Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir. 2009), and find no
Nos. 07-3882/3893                       Montgomery v. Bagley                                     Page 16


such error in this case. The District Court correctly noted that each of the affiants still lived
in the Toledo, Ohio, area. What is more, the police report itself listed the name, address, and
telephone number of David Ingram, the principal affiant who called in the report in 1986.
Although this contact information may be outdated, it could have been used to locate Ingram
and, through him, the two others who now claim that their 1986 sighting was in error. This
fact, coupled with the State’s complete inaction (despite notice of Montgomery’s Brady
challenge), is fatal. Without having made any effort to determine the veracity (or not) of the
police report, the State cannot now argue that the information in the affidavits could not have
been discovered with due diligence before the writ was issued.

        Where previously withheld evidence surfaces after the criminal trial has ended, it is
the habeas court’s duty to examine the evidence carefully to determine whether it is
“material” under Brady. To the extent that the State wishes to substantiate its claim that the
evidence is not material, this is the time to do so. It is obviously wrong for the State to
argue, as it does here, that it can first wait to see if a court hands down an unfavorable
                                                            1
opinion, and only then begin to look into the issue.

        The affidavits upon which the State asked the District Court to revisit its
judgment on the Brady issue were readily discoverable at the time of trial, at the time the
habeas petition was filed and long before the writ was issued. That the State did not
“anticipate that the writ was going to be granted on that particular” claim, and therefore
did not investigate it, is not a valid justification for the delay. Just as successive habeas
petitions based on new evidence are dismissed where the evidence “could . . . have been
discovered previously through the exercise of due diligence,” 28 U.S.C.
§ 2244(b)(2)(B)(I), the State, under Rule 59(e), is procedurally barred from challenging

        1
            The following exchange took place at oral argument:

        Court: So [the State] can wait until the ruling is in the federal District Court ten years
        later, and then come forward with whatever evidence [it needs to rebut the claim of a
        Brady violation]. Because now that’s the claim that’s attracted the District Court’s
        attention. . . . You can come forward with the out-of-court evidence – never heard of
        before – that should have been developed at the time of trial . . . and then litigate that
        issue after the writ of habeas corpus has been issued? What kind of judicial system
        would we have if that were the rule?
        The State: That’s habeas corpus, your Honor.
Oral Argument, June 17, 2009.
Nos. 07-3882/3893                  Montgomery v. Bagley                             Page 17


the grant of a habeas petition based on facts reasonably discoverable long before the writ
was issued.

        At this point in the proceeding, as the District Court explained, the only proper
venue in which the State may introduce the evidence in the affidavits is in state court on
retrial. As the Supreme Court has recently reemphasized, the purpose of Brady is to
require disclosure of “material exculpatory evidence to the defendant before trial.” Dist.
Attorney’s Office for Third Jud. Dist. v. Osborne, 129 S. Ct. 2308, 2319 (2009)
(emphasis added). The timing of the application of the Brady rule is designed so that
any ultimate exculpatory issues can be addressed by the fact-finders at the time of trial,
as contemplated by the Sixth Amendment. Our Constitution retains the Writ of Habeas
Corpus in Article I § 9, but it is not its function to require the federal habeas court to
conduct a later trial on the merits of a constitutionally defective state murder case. Our
function is to review for significant constitutional errors and leave it for the state courts
to retry the case when such errors are found.

        For the foregoing reasons, we affirm the District Court’s issuance of the writ
based on the Brady violation and its denial of the Rule 59(e) motion to alter or amend.
We pretermit the remaining issues raised in Montgomery’s cross-appeal.
Nos. 07-3882/3893                  Montgomery v. Bagley                            Page 18


                                  _________________

                                      DISSENT
                                  _________________

        JULIA SMITH GIBBONS, Circuit Judge, dissenting. Because the withheld
police report is not material, I respectfully dissent.

        In order to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963),
Montgomery must show that the following three requirements are met: “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). In terms of the first requirement, the pretrial police report—which
indicated that several witnesses had seen one of Montgomery’s alleged victims alive four
days after the State argued that he killed her—is favorable to Montgomery because it
casts doubt on the State’s theory of the case. As for the second requirement, it is
undisputed that this pretrial police report was suppressed by the State. Indeed,
Montgomery was not aware of it until six years after his trial, when it was disclosed
pursuant to a formal request for police records. In terms of the third requirement for a
Brady violation, however, the parties dispute whether Montgomery “has established the
prejudice necessary to satisfy the ‘materiality’ inquiry.” Id. at 282. In order to establish
prejudice, “the nondisclosure [must be] so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict.” Id. at 281. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Wilson v. Parker, 515 F.3d 682, 701–02 (2008) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). I would find that Montgomery has not satisfied this
third requirement.

        Montgomery argues that disclosure of this pretrial police report undermines
confidence in his conviction. The evidence at trial, however, overwhelmingly implicated
Montgomery as the triggerman in the deaths of Ogle and Tincher. First, both victims
were shot with a .380 pistol that Montgomery bought approximately two weeks before
Nos. 07-3882/3893                 Montgomery v. Bagley                            Page 19


their deaths. Second, Montgomery’s uncle saw Montgomery drunk and in possession
of the murder weapon only a few hours before Tincher was found shot dead
approximately one-half of a mile from Montgomery’s home on March 8. Third,
Montgomery admitted to being at Ogle and Tincher’s apartment on March 8, and it is
undisputed that Ogle was reported missing sometime shortly after Montgomery’s
acknowledged visit. Fourth, Montgomery was wearing a dark blue pin-striped suit
during the night in question, and a few hours after Tincher was found dead and Ogle
disappeared, Montgomery took a dark blue pin-striped suit to the dry cleaners that was
soaking wet and that made a “brownish dripping mess on the floor” as it dried. Fifth,
Heard testified that he was with Montgomery and witnessed Montgomery shoot Ogle.
Finally, Montgomery showed police officers where Ogle’s body was on March 12.

       Given this overwhelming evidence that Montgomery shot Tincher and Ogle, the
question is whether the Ohio Court of Appeals unreasonably applied Brady in its
determination that the withheld police report is not material. The Ohio court found that
the vague police report does not undermine confidence in Montgomery’s conviction.
The police report stated that in the early morning of March 12, David Ingram “and
several friends . . . saw a Blue Ford Escort with Debbie Ogle driving around . . . . Later
they again saw her as a passenger in same auto. Debbie Ogle waved to them as they
knew her from Rogers High School. She was with white male with long sideburns. She
did not appear distressed.” Viewed alone, this police report could cast doubt on the
State’s theory that Montgomery killed Ogle on March 8. However, when viewed in the
context of the overwhelming evidence supporting the State’s theory that Montgomery
did kill Ogle, the Ohio court was clearly not unreasonable in its determination that the
report’s disclosure does not undermine confidence in the verdict.            It is worth
emphasizing that Montgomery led police to Ogle’s body the same day of this alleged
sighting. At noon on March 12, Montgomery voluntarily sought out the police and
admitted to them that both Tincher and Ogle had been killed with his gun, though he
stated that Heard had shot them. In other words, mere hours after the alleged sighting
of Ogle, Montgomery had already confessed to the police that he had been involved in
their murders and that they had been killed with his gun. In light of this overwhelming
Nos. 07-3882/3893                        Montgomery v. Bagley                                       Page 20


evidence of Montgomery’s guilt, I would find that the withheld police report is not
material.

         “[S]aying that a particular nondisclosure was not a Brady violation in no way
suggests that the prosecutor did not have a duty to disclose the information.” Bell v.
Bell, 512 F.3d 223, 235 n.7 (6th Cir. 2007). However, in this case, I would find that
failing to disclose the police report does not amount to constitutional error because
Montgomery has not shown that the evidence would have created a reasonable
probability of a different result at either the guilt phase of trial or at sentencing.1 Id. at
236. I would thus reverse the district court’s writ of habeas corpus on this ground.

         I also would deny habeas relief on Montgomery’s additional two claims.
Although the majority opinion does not address Montgomery’s remaining claims, he also
appealed the denial of relief on the following two grounds: (1) whether the trial court
should have disqualified a juror who advised the court that she had been a psychiatric
patient and that she had seen the defense psychiatrist in a dream twenty years earlier in
which he appeared as the devil; and (2) whether the court should have ordered a change
of venue on account of pretrial publicity. I agree with the district court’s reasoning and
would deny Montgomery’s petition as to these two claims as well.




         1
           The majority opinion finds fault with focusing only on the guilt phase of trial in assessing the
probability of a different result, overlooking the fact that the suppressed police report is irrelevant to any
sentencing issue. The majority’s view necessarily is that a juror might have been persuaded by residual
doubt—lingering doubts from the guilt phase of trial that, in theory, could affect a juror’s decision at
sentencing. At the time of Montgomery’s conviction and sentencing, defendants were entitled to rely on
residual doubt as a mitigating factor. See State v. Watson, 572 N.E.2d 97, 111 (Ohio 1991). But, in
recognition of the illogic of its use, residual doubt has been deemed unacceptable as a mitigating factor
under Ohio law, see State v. McGuire, 686 N.E.2d 1112, 1122–23 (Ohio 1997), a rule that has been applied
retroactively, see State v. Bey, 709 N.E.2d 484, 503 (Ohio 1999), and is not constitutionally required
because it is not relevant to sentencing considerations, namely the defendant’s character or record, or any
circumstances of the offense, see Franklin v. Lynaugh, 487 U.S. 164, 174 (1988). The lack of relevance
of the suppressed evidence to any sentencing issue highlights the implausibility of speculating that the
suppressed evidence could have affected the sentence. In any event, the Ohio Court of Appeals did not
unreasonably apply Brady because Montgomery has not shown a reasonable probability that the
suppressed evidence would have produced a different outcome at either the guilt or sentencing phase.
          In response to this observation about the police report’s lack of impact on sentencing, the majority
says that the dissent has created a procedural rule that would bar consideration of the police report in
violation of state and federal law. The point I make has nothing to do with admissibility of the report or
any evidentiary rule. My point is simply that if the police report had been admitted and considered, the
likelihood that it would have affected sentencing is even less than the likelihood that its consideration
would have affected the jury’s verdict of guilt.
Nos. 07-3882/3893                 Montgomery v. Bagley                             Page 21


        First, Montgomery claims that a juror’s note to the court disclosing her previous
psychiatric treatment and describing her dream about the defense psychiatrist
demonstrates that she was biased, irrational, and incompetent. After receiving this note
from the juror, the trial judge questioned the juror about her impartiality and
competence. The trial judge retained the juror only after she reassured him that she
could set aside her dream and determine the case solely based on the evidence at trial.
I would find that the trial judge acted appropriately and that Montgomery has failed to
offer clear and convincing evidence that the juror could not or did not remain impartial.
See Williams v. Bagley, 380 F.3d 932, 944 (6th Cir. 2004) (noting that a trial court’s
finding of impartiality is entitled to the presumption of correctness, as required by 28
U.S.C. 2254(e)).

        As for the second claim, while this case did involve pretrial publicity, the
relevant question in a challenge to the trial court’s decision not to change venue is
whether the jurors “could not judge impartially the guilt of the defendant.” Patton v.
Yount, 467 U.S. 1025, 1035 (1984). The Supreme Court has stated that a “trial court’s
findings of juror impartiality may be overturned only for manifest error.” Mu’Min v.
Virginia, 500 U.S. 415, 428 (1991) (internal citation and quotation marks omitted).
Montgomery has not demonstrated that there was a “pattern of deep and bitter prejudice
shown to be present throughout the community,” Irvin v. Dowd, 366 U.S. 717, 727
(1961) (internal citation and quotation marks omitted), such that the trial court’s findings
of impartiality were manifest error.

        Because I would deny Montgomery’s petition for habeas corpus on all three of
these grounds, I dissent.
