[Cite as State v. Broom, 123 Ohio St.3d 114, 2009-Ohio-4778.]




             THE STATE OF OHIO, APPELLANT, v. BROOM, APPELLEE.
         [Cite as State v. Broom, 123 Ohio St.3d 114, 2009-Ohio-4778.]
Criminal law — Alleged Brady violations — Failure to meet the requirements of
        R.C. 2953.23(A)(1) — Judgment reversed.
           (NO. 2009-1567 — Submitted September 11, 2009 — Decided
                                  September 11, 2009.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 91297,
                                    2009-Ohio-3731.
                                 __________________
        Per Curiam.
        {¶ 1} Appellee, Romell Broom, claims that at his trial for aggravated
murder, evidence favorable to him was suppressed in violation of Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Having failed to
raise this claim on his first petition for postconviction relief, he attempted to raise
it in a successive petition. The court of appeals held that Broom was entitled to
do so. We disagree and reverse.
        {¶ 2} Broom was convicted of the 1984 aggravated murder of 14-year-
old Tryna Middleton, with kidnapping and rape specifications, and was sentenced
to death. The court of appeals affirmed Broom’s convictions and death sentence,
as did we. State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682.
        {¶ 3} Broom filed his first postconviction-relief petition in 1990. While
that petition was pending in the trial court, Broom received 19 pages of East
Cleveland Police Department reports in response to a public-records request
pursuant to R.C. 149.43. It is not clear precisely when Broom received these
records, but it appears that he received them at least “a few months” before
September 7, 1994. In fact, his trial counsel later testified in federal court that he
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received them in “1993-1994.” See Broom v. Mitchell (C.A.6, 2006), 441 F.3d
392, 403, fn. 12. But Broom did not attempt to amend his postconviction petition
to assert any Brady claim based on the 19 pages of police reports.
        {¶ 4} On September 7, 1994, while Broom’s first postconviction petition
was pending in the trial court, we decided State ex rel. Steckman v. Jackson
(1994), 70 Ohio St.3d 420, 639 N.E.2d 83. Paragraph six of the syllabus in
Steckman holds: “A defendant in a criminal case who has exhausted the direct
appeals of her or his conviction may not avail herself or himself of R.C. 149.43 to
support a petition for postconviction relief.”
        {¶ 5} In 1996, the trial court finally ruled on Broom’s first
postconviction-relief petition, rejecting Broom’s claims. The court of appeals
affirmed. State v. Broom (May 7, 1998), 8th Dist. No. 72581, 1998 WL 230425.
We declined to accept jurisdiction. State v. Broom (1998), 83 Ohio St.3d 1430,
699 N.E.2d 946.
        {¶ 6} In 1999, Broom filed a federal habeas corpus petition in the United
States District Court for the Northern District of Ohio. Here, for the first time,
Broom asserted a Brady claim based on the East Cleveland police reports.1 The
district court denied Broom’s habeas petition.
        {¶ 7} In 2006, the Sixth Circuit affirmed the denial of habeas relief,
holding that Broom had defaulted on the Brady issue by failing to raise it in his
state postconviction proceeding. Broom v. Mitchell, 441 F.3d at 404. Broom
argued that cause existed for the default: he could not assert the Brady claim in
state postconviction litigation, he claimed, because Steckman did not allow him to
use police reports obtained via R.C. 149.43 in the postconviction proceeding. But
the Sixth Circuit rejected this argument because Steckman had not clearly held

1. During discovery in the federal habeas proceeding, Broom received additional pages of police
reports containing alleged Brady material. However, during the federal proceedings, Broom
“conceded * * * that the relevant information was present in the 19 pages” that he had originally
received. Broom v. Mitchell, 441 F.3d at 404.




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that a postconviction litigant was categorically forbidden to make any use of
police reports obtained via R.C. 149.43 in the postconviction proceeding. Thus,
Broom had a “reasonably available ‘legal basis’ ” to assert his claim in state
postconviction proceedings. Broom v. Mitchell, 441 F.3d at 404.
       {¶ 8} In 2007, Broom filed a successive postconviction petition in the
trial court. In this petition, Broom asserted his Brady claim for the first time in an
Ohio court. The trial court dismissed the petition after concluding that it lacked
jurisdiction over the petition under R.C. 2953.23(A)(1)(a). Adopting the analysis
of the Sixth Circuit in Broom v. Mitchell, 441 F.3d 392, the trial court held that
Steckman did not prevent a postconviction petitioner from using public records
obtained before Steckman was decided.
       {¶ 9} Broom appealed to the Court of Appeals for the Eighth District.
While that appeal was pending, we granted the state’s motion to set an execution
date and scheduled Broom’s execution for September 15, 2009. State v. Broom,
122 Ohio St.3d 1497, 2009-Ohio-4281, 912 N.E.2d 103.
       {¶ 10} On July 30, 2009, the court of appeals reversed the trial court’s
decision dismissing the successive petition. State v. Broom, 8th Dist. No. 91297,
2009-Ohio-3731.     The court of appeals held that pursuant to two appellate
decisions from 1994 and 1995 interpreting Steckman, Broom “was unavoidably
prevented from discovery of the facts upon which petitioner must rely to present
the claim for relief” in his earlier petitions, as required by R.C. 2953.23(A)(1).
Broom, 2009-Ohio-3731, ¶ 17-30. Hence, according to the court of appeals,
Broom had made the required showing under R.C. 2953.23(A)(1)(a) that he was
“unavoidably prevented” from discovering the facts his claim relied upon. Id. at ¶
32. The court of appeals remanded the case to the trial court for consideration of
whether Broom could also make the required showing by clear and convincing
evidence that but for constitutional error at trial, no reasonable trier of fact would
have found him guilty. Id., ¶ 36-37.



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       {¶ 11} The state appealed the judgment of the court of appeals, and we
granted review on September 2, 2009. State v. Broom, 122 Ohio St.3d 1512,
2009-Ohio-4538, 912 N.E.2d 607.
       {¶ 12} Broom contends, and the court of appeals held, that Steckman
precluded him from using the 19 pages of police reports in litigating his first
postconviction petition. But those 19 pages of reports were in Broom’s hands
months before our decision in Steckman. Broom utterly fails to explain why he
made no effort to use them before Steckman was decided. Although he did not
have them when he filed his petition in 1990, he could have sought leave to
amend the petition to include them after he obtained them in 1993 or 1994. See
R.C. 2953.21(F) (postconviction petitioner may amend petition with leave of
court at any time).
       {¶ 13} Moreover, as the Sixth Circuit explained in the federal habeas
proceedings, Broom could have tried to use the reports even after Steckman,
because Steckman contains no express prohibition on such use: “Steckman may
not bar the use of records already in the petitioner’s possession. Rather, Steckman
may only bar efforts to obtain new information pursuant to the public-records
statute during postconviction proceedings. Because Steckman does not directly
address this issue, there was a reasonably available ‘legal basis’ for Broom either
to file another petition for postconviction relief or to amend the petition that he
had already filed.” Broom v. Mitchell, 441 F.3d at 403-404. Thus, rather than
waiting until his successive postconviction proceeding to litigate the scope of
Steckman, Broom could have tried to litigate it during his first postconviction
proceeding.
       {¶ 14} The court of appeals disagreed with the Sixth Circuit on this point.
According to the court of appeals, “Steckman unavoidably prevented [Broom]
from filing a successor petition supported by material obtained from public
records received pre-Steckman,” thus justifying Broom’s decision not to base a




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claim for postconviction relief on those records. State v. Broom, 2009-Ohio-
3731, ¶ 18.
       {¶ 15} We find the court of appeals’ analysis unpersuasive. To begin
with, we agree with the Sixth Circuit that Steckman “does not directly address”
the question whether public records acquired by a defendant before the filing of
his postconviction petition may be used as evidentiary support for the legal claims
asserted by that petition. Broom v. Mitchell, 441 F.3d at 403.
       {¶ 16} The language of Steckman’s syllabus “must be interpreted with
reference to the facts upon which it is predicated and the questions presented to
and considered by the Court.” Williamson Heater Co. v. Radich (1934), 128 Ohio
St. 124, 190 N.E. 403, paragraph one of the syllabus. Accord State v. Bush, 96
Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10; State ex rel. Miller v.
Indus. Comm., 97 Ohio St.3d 418, 2002-Ohio-6664, 780 N.E.2d 268, ¶ 17,
quoting State ex rel. Martin v. Indus. Comm. (1978), 55 Ohio St.2d 18, 21, 9
O.O.3d 10, 377 N.E.2d 1000.
       {¶ 17} Unlike the instant case, Steckman did not involve a postconviction
petitioner who was trying to introduce police reports already obtained via R.C.
149.43 in his postconviction proceeding. Steckman did not discuss whether police
reports obtained via R.C. 149.43 were admissible. Rather, Steckman involved a
petitioner who was trying to obtain police reports for use in his postconviction
proceeding, and the case discussed whether such reports were subject to release
as public records in the first place. The court considered the applicability of the
Public Records Act’s exception for “[s]pecific confidential * * * investigatory
work product,” R.C. 149.43(A)(2)(c), and concluded, “Except as required by
Crim.R. 16, information assembled by law enforcement officials in connection
with a probable or pending criminal proceeding, is, by the work product exception
found in R.C. 149.43(A)(2)(c), excepted from required release as said information




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is compiled in anticipation of litigation.” Steckman, 70 Ohio St.3d 420, 639
N.E.2d 83, paragraph five of the syllabus.
        {¶ 18} Steckman thus holds that a postconviction litigant cannot “avail * *
* himself” of the Public Records Act to obtain police reports not covered by
Crim.R. 16, because such reports are not subject to release under the act. Id. at
paragraph six of the syllabus. But it does not necessarily follow that if a litigant
does manage to obtain police reports, they must be excluded from the
postconviction proceeding.
        {¶ 19} As a final matter, we are not persuaded that Broom can meet the
second requirement in R.C. 2953.23(A)(1) for filing a successive postconviction
petition.   In addition to showing that he was unavoidably prevented from
discovering the facts his claim relied upon, Broom must also demonstrate “by
clear and convincing evidence that, but for constitutional error at trial, no
reasonable factfinder would have found the petitioner guilty of the offense of
which the petitioner was convicted.”         R.C. 2953.23(A)(1)(b).   In discussing
whether it could allow Broom an evidentiary hearing on his Brady claim under
Section 2254(e)(2), Title 28, U.S.Code, the federal district court considered an
essentially identical standard: whether “‘the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for the
constitutional error, no reasonable fact-finder would have found the applicant
guilty of the underlying offense.’” Broom v. Mitchell (Aug. 28, 2002), N.D.Ohio
No. 1:99 CV 0030, 50, quoting Section 2254(e)(2), Title 28, U.S.Code.
        {¶ 20} The federal district court found that Broom had failed to meet this
standard. It concluded, apparently considering all the police reports disclosed to
Broom rather than just the 19 pages initially released, that the reports “appear[] to
constitute largely inadmissible hearsay, often in the form of conjecture and rumor.
To the extent it would have been admissible or have altered Broom’s trial
strategy, moreover, it only would have been used for impeachment purposes.”




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The court determined that “the profound evidence of Broom’s guilt” outweighed
the significance of the withheld material. It also remarked that it “takes issue with
most of [Broom’s] characterizations” of the alleged Brady material “and does not
agree that they are, in most instances, supported by a careful review of those
records * * *.” Id. at 42, fn. 16.
        {¶ 21} In sum, we hold that the court of appeals applied a narrow reading
to Steckman that was not applicable to Broom’s claims. The trial court correctly
determined that Broom could have attempted to raise his Brady claim in his initial
postconviction petition and that Broom therefore failed to show that he was
“unavoidably prevented” from doing so. R.C. 2953.23(A)(1). We also hold that
Broom failed to demonstrate that no reasonable fact-finder would have found him
guilty had the Brady material been available for trial. Accordingly, the judgment
of the court of appeals is reversed.2
                                                                         Judgment reversed.
        MOYER, C.J., and LUNDBERG STRATTON, O'CONNOR, LANZINGER, and
CUPP, JJ., concur.
        PFEIFER, J., concurs in judgment only.
        O'DONNELL, J., dissents and would affirm the judgment of the court of
appeals.
                                  __________________
        PFEIFER, J., concurring in judgment only.
        {¶ 22} Based on the federal court’s observations and the lengthy
description of the details of the Brady claim in Broom’s brief, I find his claim
completely lacking in merit. I am nonetheless concerned that this court focuses
more attention on the process by which Broom raises his claim than on the merits
of his claim. Were the process problems the same as described in the majority

2. On August 20, 2009, Broom filed a motion requesting a stay of execution that is scheduled for
September 15, 2009, in case No. 1987-1674. That motion is hereby denied.




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opinion, but his claim on the merits worthy, I would be prepared to return the case
to the trial court for a hearing on the merits. As it is, there is no sound reason to
allow Broom to proceed with his Brady claim because it is clearly not
meritorious. Accordingly, I concur in judgment only.
                              __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew
E. Meyer, Assistant Prosecuting Attorney, for appellant.
       S. Adele Shank and Timothy F. Sweeney, for appellee.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
and Matthew A. Kanai, Assistant Solicitor, urging reversal for amicus curiae,
Richard Cordray.
                              __________________




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