                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0208p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                      X
              Petitioner-Appellee/Cross-Appellant, -
 JOE D’AMBROSIO,
                                                       -
                                                       -
                                                       -
                                                           Nos. 06-3542/3712
          v.
                                                       ,
                                                        >
 MARGARET BAGLEY, Warden,                              -
             Respondent-Appellant/Cross-Appellee. -
                                                      N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
              No. 00-02521—Kathleen McDonald O’Malley, District Judge.
                                       Argued: July 19, 2007
                                 Decided and Filed: June 5, 2008
            Before: BOGGS, Chief Judge; GIBBONS and ROGERS, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Stephen E. Maher, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus,
Ohio, for Appellant. John Q. Lewis, JONES DAY, Cleveland, Ohio, for Appellee. ON BRIEF:
Stephen E. Maher, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellant. John Q. Lewis, Edward J. Sebold, JONES DAY, Cleveland, Ohio, for Appellee.
        ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. BOGGS,
C. J. (p. 11), delivered a separate opinion dissenting in part.
                                        _________________
                                            OPINION
                                        _________________
        ROGERS, Circuit Judge. Joe D’Ambrosio was convicted of murdering Anthony Klann in
1988. After D’Ambrosio discovered evidence that the prosecution had withheld during his trial, he
amended his then-pending habeas petition to add a Brady claim. The district court granted the writ.
On appeal, the warden argues, for the first time, that D’Ambrosio failed to exhaust his Brady claim
and should be required to return to state court to relitigate the claim there. Although D’Ambrosio’s
Brady claim was not presented to a state court, we do not dismiss his petition because the warden
expressly waived the exhaustion requirement. See 28 U.S.C. § 2254(b)(3). The warden also
challenges the district court’s decision on the merits and D’Ambrosio cross-appeals with respect to
other issues. For the reasons given by the district court on issues presented to this court, we affirm.



                                                  1
Nos. 06-3542/3712                  D’Ambrosio v. Bagley                                      Page 2


                                               I.
      The Supreme Court of Ohio described the underlying facts of this case:
      On Friday evening, September 23, 1988, at approximately 7:30 p.m., Anthony Klann
      (“victim”) and Paul “Stoney” Lewis visited a Cleveland area bar called The Saloon.
      At that time, Lewis encountered Thomas “Mike” Keenan, a former employer of his,
      whereupon the two engaged in a conversation, left the bar in Keenan’s truck, and
      went to another bar nearby called Coconut Joe’s. Shortly thereafter, Klann, Edward
      Espinoza and defendant-appellant, Joe D’Ambrosio, arrived at Coconut Joe’s.
      Lewis testified that Espinoza took the victim into the men’s restroom two or three
      times, and that he could hear Espinoza yelling at the victim while he (Lewis) was
      seated at the bar. However, during his own testimony, Espinoza denied that he
      argued with the victim at that time. Lewis stayed at Coconut Joe’s until
      approximately 10:45 p.m. or 11:45 p.m.
      Espinoza testified that at approximately 1:30 a.m., Saturday, September 24, he,
      Keenan and defendant also left the bar. Espinoza and defendant went to defendant’s
      apartment; however, before they entered, Keenan pulled up in his truck and asked the
      two to help him find Lewis so he could get back drugs that he claimed Lewis had
      stolen from him. Defendant and Espinoza went into the defendant’s apartment,
      whereupon Espinoza armed himself with a baseball bat and defendant picked up a
      knife. Espinoza assumed this knife was in addition to one that defendant usually
      carried. Defendant and Espinoza joined Keenan in his truck, and the three rode
      around the Coventry and Murray Hill area looking for Lewis.
      Carolyn Rosel testified that at approximately 3:00 a.m., she and a friend, James
      Russell (a.k.a. “Foot” or “Lightfoot”), were awakened by banging on their door.
      They went to the door and let Keenan, Espinoza and defendant inside, whereupon
      Keenan asked where Lewis was. At that time, Keenan and Espinoza told Rosel and
      Russell that they wanted to kill Lewis because he had “ripped Michael [Keenan]
      off.” After about fifteen to twenty minutes, the three left.
      According to Espinoza’s testimony they then resumed their search for Lewis in
      Keenan’s truck. Soon the three saw the victim walking next to the road they were
      traveling on and hailed him. When the victim approached the truck, Keenan forced
      him into the backseat next to defendant. The victim was asked where Lewis was, but
      he said he didn’t know. While the three interrogated the victim, Espinoza hit him on
      the head with a baseball bat. The victim told them where Lewis lived, and Keenan
      drove to Lewis’s apartment building and knocked on what he thought was Lewis’s
      door.
      Mimsel Dandec and her boyfriend, Adam Flanik, lived in the same apartment
      building as Lewis. At approximately 3:30 a.m. on the date in question, Dandec and
      Flanik were awakened by what they described as screaming, shouting and banging
      outside. Dandec testified that she heard someone yell, “I want my dope” or “my
      coke.” Flanik went to investigate and found Keenan pounding on another apartment
      door in search of Lewis. After Flanik directed Keenan to Lewis’s door, Keenan and
      Espinoza kicked it in while they repeatedly declared that they were going to kill
      Lewis. Lewis was not in his apartment at that time, so Keenan and Espinoza got
      back in the truck and drove off.
Nos. 06-3542/3712                   D’Ambrosio v. Bagley                                       Page 3


      Meanwhile, defendant had stayed in the truck with the victim during the incident at
      Lewis’s apartment building. Flanik testified that defendant had a large knife poised
      within inches of the victim’s face. Flanik also testified that the victim “looked like
      he had been crying,” and “like he had been roughed up a little bit.”
      Russell testified that Espinoza returned to his home and asked whether Lewis had
      been there. Espinoza then told Russell to “tell Stoney we got a contract out on him,”
      and that he had the victim in the truck and that he was “dead meat.” Rosel testified
      that Espinoza said that they had the victim, and were “going to do him in, and drop
      him off.”
      Thereafter, according to Espinoza’s testimony, Keenan drove the group to Doan’s
      Creek and pulled his truck off the road near the bank of the creek. Keenan got out
      of the truck, pulled the victim out and made him walk behind the truck. Keenan
      asked the victim repeatedly where Lewis was, but the victim stated he didn’t know.
      Keenan told the victim to put his head back, whereupon Keenan took D’Ambrosio's
      large knife, cut the victim’s throat and pushed him into the creek.
      When the victim got up and began to run, Keenan said, “finish him off.” The
      defendant grabbed the knife from Keenan and pursued the victim. Within a minute
      or two, Espinoza testified, the victim screamed, “please don't kill me,” but defendant
      caught him and killed him.
      Still, according to Espinoza’s testimony, the trio then went to defendant’s apartment,
      where defendant changed clothes, and proceeded to Keenan’s room at the Turfside
      Motel. Espinoza testified that at that time Keenan “made us some story that we were
      supposed to keep to. * * * [O]ne was that we’d dropped off [the victim] earlier that
      night after we were done partying, and he went on his way. * * * Then the other
      story was that we never ran into [the victim].”
      At approximately 1:00 or 1:30 p.m. later that day, a jogger found the victim’s corpse
      in Doan’s Creek.
      On the morning of Sunday, September 25, an autopsy was performed by the
      Cuyahoga County Coroner, Dr. Elizabeth K. Balraj. The coroner testified that she
      found three stab wounds on the victim’s chest, and that his windpipe had been
      perforated in two places by a throat cut. In addition, she found some defense wounds
      on the victim, which are usually sustained on the hands or arms while trying to block
      a stabbing. The coroner stated that all the knife wounds could have been caused by
      State’s Exhibit 8A, but that it was possible that another knife could have been
      involved in the murder.
      The coroner further testified that the evidence was “consistent” with the conclusion
      that the victim died the day before the autopsy, but that it was “possible” that the
      victim died forty-eight hours before the autopsy.
      On October 6, 1988, defendant, Keenan and Espinoza were jointly indicted on four
      separate counts of (1) aggravated murder with prior calculation and design, R.C.
      2903.01(A); (2) aggravated felony murder, R.C. 2903.01(B); (3) kidnapping, R.C.
      2905.01; and (4) aggravated burglary of Lewis's apartment, R.C. 2911.11.
      Defendant’s trial commenced on February 6, 1989 before a three-judge panel. On
      February 9, the trial court sealed a verdict finding defendant guilty on all counts
      charged in the indictment. (The verdict was announced February 21, after the
Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                     Page 4


       conclusion of Keenan’s trial.) On February 23, 1989, the panel found that the
       aggravating circumstances outweighed the mitigating factors beyond a reasonable
       doubt. Consequently, the court sentenced defendant to death on both aggravated
       murder counts.
State v. D’Ambrosio, 616 N.E.2d 909, 911-12 (Ohio 1993). The Supreme Court of Ohio affirmed
D’Ambrosio’s conviction, id. at 921, and, following a remand to the court of appeals permitting
D’Ambrosio to supplement the record, affirmed D’Ambrosio’s sentence, State v. D’Ambrosio, 652
N.E.2d 710, 715-16 (Ohio 1995).
         On March 30, 2001, D’Ambrosio filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Ohio. In his original petition, D’Ambrosio included
four claims that are relevant to this appeal: (1) that he is actually innocent, (2) that he did not
knowingly waive his right to a jury trial, (3) that his counsel was constitutionally ineffective for
failing to ask for the recusal of one of the judges who served on the three-judge panel that convicted
and sentenced him, and (4) that the State failed to preserve certain evidence which D’Ambrosio
argued may have exonerated him.
        On September 19, 2002, D’Ambrosio moved to amend his petition to add a Brady claim
based on newly-discovered evidence. As recounted by the district court, D’Ambrosio claimed that
the State failed to disclose numerous pieces of evidence:
       (1) evidence that Lewis allegedly raped Klann’s roommate, Christopher
       Longenecker, that Klann had some knowledge of it, and that Lewis was never
       prosecuted for it;
       (2) evidence that police identified Lewis as an anonymous caller who called to
       [identify] Klann as the victim and knew information regarding the crime that had not
       yet been published in the newspaper;
       (3) the fact that Lewis, in exchange for his testimony, asked police to aid him in
       resolving a Driving While Under the Influence (hereinafter “DUI”) charge;
       (4) evidence that Detective Leo Allen, the leading investigating detective on the
       Klann murder case, reported a burglary of Lewis’s apartment several days after
       Lewis claims he had reported it to police;
       (5) evidence that police learned there was bloody clothing in Keenan’s garage;
       (6) evidence that the initial investigating detectives on the scene, Ernest Hayes and
       Melvin Goldstein, believed that Klann was murdered elsewhere and that his body
       was dumped in Doan’s Creek;
       (7) evidence that a cassette tape containing information “implicating others in this
       crime” was made by Angelo Crimi;
       (8) evidence that James Russell and Carolyn Rosel requested help from police in
       relocating after trial because some individuals, who they believed to be
       D’Ambrosio’s brothers, had threatened them;
       (9) evidence from the Trace Evidence Department that Klann was not wearing shoes
       or undershorts when his body was discovered;
Nos. 06-3542/3712                            D’Ambrosio v. Bagley                                               Page 5


         (10) evidence that the Cleveland Heights Police Department’s dispatch log showed
         that there was a disturbance in the area of Coconut Joe’s on Thursday evening/Friday
         morning;
         (11) evidence that Therese Farinacci, one of Lewis’s neighbors, was awakened at
         around 4:10 a.m. on Saturday morning and that another couple heard someone say
         “Let’s dump the body” on that same night;
         (12) evidence that Linda DeBlasis Hudak stated she saw Klann alive late on Friday
         evening; and,
         (13) evidence that, while police claimed to have searched Keenan’s truck, the
         company that repossessed his truck subsequently found cocaine in it.
D’Ambrosio v. Bagley, No. 1:00-cv-02521, 2006 WL 1169926, at *16 (N.D. Ohio Mar. 24, 2006)
(paragraph breaks added). In July of 2004, the district court held a three-day evidentiary hearing,
which focused on D’Ambrosio’s Brady claim.
       On March 24, 2006, the district court granted D’Ambrosio’s petition for a writ of habeas
corpus.1 The court held that most of the evidence that D’Ambrosio introduced
                                                                        2
                                                                               to support his Brady
claim was suppressed by the prosecution and favorable    to the defense.  The court further held that
most of this suppressed evidence was material,3 and that D’Ambrosio was able to demonstrate cause
and prejudice to overcome his failure to raise the Brady claim in state court. The district court,
however, rejected D’Ambrosio’s other grounds for relief.
       The district court granted D’Ambrosio a certificate of appealability on the following issues
upon which the court ruled against D’Ambrosio: (1) whether D’Ambrosio is actually innocent,
(2) whether D’Ambrosio knowingly waived his right to a jury trial, (3) whether counsel for
D’Ambrosio was constitutionally ineffective for failing to ask for the recusal of one of the trial
judges, and (4) whether D’Ambrosio was denied due process because the prosecution failed to
preserve certain evidence that D’Ambrosio argues may have exculpated him.
                                                          II.
        The warden appeals the district court’s decision on the ground that D’Ambrosio failed to
exhaust his Brady claim in state court. The warden did not raise exhaustion before the district court,
and the district court, although noting that “the state’s failure to raise exhaustion does not invariably
waive the defense,” refused to engage in a sua sponte analysis. D’Ambrosio, 2006 WL 1169926,
at *13 n.8. Specifically, with respect to the Brady claim, the district court noted that because a
motion for post-conviction relief would be untimely, that because “throughout this rather lengthy
habeas proceeding, the [warden] has never asserted an exhaustion defense,” and that because the



         1
         On April 14, 2006, the district court amended its judgment to clarify that it was ordering respondent to set
aside D’Ambrosio’s convictions and sentences “as to all counts of the indictment” if the State chose not to retry
D’Ambrosio.
         2
          The district court held that D’Ambrosio failed to demonstrate that the bloody clothing in Keenan’s garage was
exculpatory. D’Ambrosio, 2006 WL 1169926, at *22-23. The court also held that the Cleveland Heights Police
Department log, which indicated a disturbance at Coconut Joe’s on Friday morning, was not suppressed. Id. at *28.
         3
         The district court concluded that No. 8 listed above (evidence that Russell and Rosel asked for help relocating)
was not material. D’Ambrosio, 2006 WL 1169926, at *33.
Nos. 06-3542/3712                           D’Ambrosio v. Bagley                                               Page 6


State was responsible for suppressing Brady evidence, “the State cannot now assert D’Ambrosio’s
failure to exhaust this claim as a bar to this Court’s review of it.” Id. at *19 n.14.
        The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) states that a federal
court cannot grant a writ of habeas corpus to a prisoner held in state custody unless “(A) the
applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence
of available State corrective process; or (ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Under AEDPA, the “State shall not
be deemed to have waived the exhaustion requirement or be estopped from reliance upon the
requirement unless the State, through counsel, expressly waives the requirement.” § 2254(b)(3).
In this case, it is undisputed that the warden was aware of, but never argued to the district court,
D’Ambrosio’s failure to exhaust his state remedies.
       D’Ambrosio never presented his Brady claim to a state court. D’Ambrosio offers three
arguments for why this court should nonetheless address the merits of the claim: (1) the warden
expressly waived the exhaustion requirement; (2) there is no state process through which
D’Ambrosio could obtain relief; and (3) “[t]he interests of comity, federalism, and justice” are not
served by requiring D’Ambrosio to return to state court.
         We conclude that the warden expressly waived the exhaustion requirement, and we need not
address D’Ambrosio’s alternative arguments. AEDPA does not explain how a state “expressly
waives” the exhaustion requirement, but says only that the state cannot be deemed to have waived
the requirement unless it expressly waived the requirement. “Waiver” is traditionally defined as an
“intentional relinquishment or abandonment of a known right.” See, e.g., United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Courts also
generally agree that “express” is synonymous with “clear” or “unambiguous.” For example, in the
context of statutory waivers of sovereign immunity, courts alternatively define an “express waiver”
as “a ‘clearcut’ waiver, a ‘specific’ waiver, an[] ‘explicit’ waiver, an ‘unequivocal’ waiver, a ‘plain’
waiver, a ‘manifest’ waiver, an ‘affirmative’ waiver, an ‘unambiguous’ waiver, or a waiver
described by a combination    of these adjectives.” Shaw v. Library of Congress, 747 F.2d 1469, 1478
(D.C. Cir. 1984).4 Similarly, in determining whether Congress has permitted state regulation that
otherwise would violate the negative implications of the Commerce Clause, this court noted that,
         While the [Supreme] Court has generally required an express statement of
         Congressional policy to allow otherwise impermissible regulation of interstate
         commerce, “[t]here is no talismanic significance to the phrase ‘expressly stated’,
         however; it merely states one way of meeting the requirement that for a state
         regulation to be removed from the reach of the dormant Commerce Clause,
         congressional intent must be unmistakably clear.”
L.P. Acquisition Co. v. Tyson, 772 F.2d 201 (6th Cir. 1985) (quoting South-Central Timber Dev.,
Inc. v. Wunnicke, 467 U.S. 82, 91 (1984)) (emphasis added). See also Kelly v. Lee’s Old Fashioned
Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc) (holding that the requirement in
Federal Rule of Civil Procedure 54(b) that the district court make “an express determination that
there is no just reason for delay and . . . an express direction for the entry of judgment” in order to
direct the entry of a final judgment to fewer than all of the parties in a multi-party case is met where
the record “reflects the district court’s unmistakable intent to enter a partial final judgment”
(emphasis added)).

         4
           The specific holding of the D.C. Circuit, that the immunity of the United States from awards for interest was
waived by general statutory language waiving immunity for attorneys’ fees, was reversed by the Supreme Court. Library
of Congress v. Shaw, 478 U.S. 310 (1986). Congress later specifically provided for interest in the particular context at
issue in Shaw. See Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)
Nos. 06-3542/3712                      D’Ambrosio v. Bagley                                      Page 7


         The warden expressly waived the exhaustion requirement because her counsel’s conduct
during the district court proceedings manifested a clear and unambiguous intent to waive the
requirement. In response to D’Ambrosio’s motion to amend his habeas petition in order to add the
Brady claim, the warden stated that she took no position on the motion, but requested the
opportunity to file a response if the district court granted the motion to amend. On October 25,
2002, the warden filed a motion to expand the record to include evidence that the warden argued
undermined D’Ambrosio’s Brady claim. On November 25, 2002, the district court granted both
motions. Importantly, with respect to D’Ambrosio’s motion to amend his habeas petition, the
district court stated that its understanding was that the warden would not argue that the Brady claim
was unexhausted:
        Based on the motion briefs and conversations with counsel, the Court finds this claim
        is exhausted, as Petitioner is without an available state-court remedy. Thus, the
        Court grants the instant motion without concern that Respondent will subsequently
        move to dismiss the Petition for failure to exhaust the amended claim. In so
        granting, however, the Court reserves Respondent’s right to assert that the claim is
        procedurally defaulted, if appropriate, in the supplemental return of writ.
Furthermore, in her Amended Return of Writ, the warden argued that D’Ambrosio’s petition
contained procedurally defaulted claims because the claims were “never presented in state court”
and “if now [were] presented, would be found untimely by the state courts.”
         This is an extraordinary case in which the district court stated that it understood exhaustion
to be a non-issue and that the warden would not later assert it, the warden failed to correct what the
district court clearly viewed as the warden’s position during the almost four years of litigation before
that court, and the warden went on to state to the district court that D’Ambrosio’s claims would be
untimely in the state courts (thereby confirming the district court’s understanding). We are aware
of no binding authority that says that such conduct by the State is not an express waiver of the
exhaustion requirement. Furthermore, the Eighth Circuit held, in a case somewhat analogous to this
one, that a state expressly waived the exhaustion requirement by stating in a district court brief that
it had conceded exhaustion in a prior motion to dismiss, even though the circuit court’s review of
the motion to dismiss revealed no concession. Kerns v. Ault, 408 F.3d 447, 449 n.3 (8th Cir. 2005).
But see Dreher v. Pinchak, 61 F. App’x 800, 802-03 (3d Cir. 2003) (holding that the state’s
concession of exhaustion in its answer to the petition for writ of habeas corpus did not expressly
waive the exhaustion requirement because the “policy justifications” of that requirement counseled
in favor of a “stringent standard for proving waiver of exhaustion”).
        It is no answer to say that the warden did not expressly waive exhaustion because the warden
did not verbally state that she was waiving the requirement. AEDPA does not require “magic
words” in order for a state to expressly waive exhaustion. The touchstone for determining whether
a waiver is express is the clarity of the intent to waive. Obviously, had the warden’s counsel said,
“we waive the exhaustion requirement,” the intent would have been clear. But there is nothing more
than a metaphysical distinction between that hypothetical situation and the instant case—in both
cases it is clear that the warden intentionally gave up her right to raise exhaustion. Cf. Shaw, 747
F.2d at 1478 (“There is nothing talismanic in the word ‘express,’ . . . .”). AEDPA requires that the
waiver be express, not expressed in a certain manner.
         Finally, this is not a case in which the State simply failed to raise the exhaustion requirement
in the district court. This court has held that such simple failure does not, by itself, expressly waive
the issue. See Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004); Jackson v. Jamrog, 411 F.3d
615, 618 (6th Cir. 2005); Rockwell v. Yukins, 217 F.3d 421, 424 (6th Cir. 2000). Nor does the fact
that the warden participated in discovery and moved to expand the record indicate, by itself, that the
warden expressly waived the exhaustion requirement, as D’Ambrosio argues. These actions were
Nos. 06-3542/3712                              D’Ambrosio v. Bagley                                                  Page 8


merely ancillary to the warden’s opposition to the merits of D’Ambrosio’s Brady claim, and do not
indicate express waiver any more than participation in briefing and oral argument. Instead, it is the
statements made   and actions taken by the warden, in addition to these facts, that constitute an
express waiver.5
                                                            III.
       For the reasons given in those parts of the district court’s thorough, thoughtful, and well-
reasoned opinion applicable to the issues certified for appeal, D’Ambrosio has demonstrated that
the prosecution suppressed material exculpatory evidence and that neither § 2254(e)(2) nor
procedural default precluded the district court’s consideration of those6claims. D’Ambrosio, 2006
WL 1169926, at *16-33. We therefore affirm the district court’s order. Accordingly, a full-blown
discussion of the merits would serve no jurisprudential purpose.



         5
           Because we conclude that the warden expressly waived the exhaustion requirement, we do not address
D’Ambrosio’s alternative arguments that there is no available state remedy that he could pursue and that this court does
not have to dismiss a petition containing an unexhausted claim because the prudential reasons for exhaustion are
inapplicable in this case.
          We are skeptical of the warden’s argument that a petition for post-conviction relief pursuant to Ohio Revised
Code (“ORC”) § 2953.21 is an available remedy. A petition for post-conviction relief filed this late after the direct
appeal would only be considered timely if D’Ambrosio could “show[] by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was
convicted.” ORC § 2953.23(A)(1)(b); see also ORC § 2953.21(A). But to succeed on a Brady claim, D’Ambrosio needs
to demonstrate merely that with the suppressed evidence there is “a ‘reasonable probability’ of a different result.” Kyles
v. Whitley, 514 U.S. 419, 434 (1995); see also Broom v. Mitchell, 441 F.3d 392, 400 n.8 (6th Cir. 2006) (concluding that
because petitioner could not satisfy ORC § 2953.23(A)(1), it was “no longer an available state court remedy”), rehearing
and rehearing en banc denied (Aug. 9, 2006).
          The warden’s argument that D’Ambrosio can assert a Brady claim via a motion for a new trial pursuant to Ohio
Rule of Criminal Procedure 33(B) is a closer question. There is Ohio Supreme Court authority that holds that in cases
involving newly-discovered evidence, a motion for a new trial cannot be granted unless the movant shows, among other
things, that the new evidence “discloses a strong probability that it will change the result if a new trial is granted.” State
v. Petro, 76 N.E.2d 370, 371 (Syllabus) (Ohio 1947). Brady requires only that there is a “reasonable probability” that
the result would have been different. See Kyles, 514 U.S. at 434. In addition, the warden’s conduct during the course
of the federal habeas proceedings indicates that she did not view Rule 33 as an available state remedy. Until this appeal,
the warden never argued that Rule 33 was a potential remedy that D’Ambrosio could have pursued. This is in contrast
to the post-conviction petition remedy, which the warden discussed as a potential remedy in her Amended Return of
Writ, with respect to procedural default. See also Broom, 441 F.3d at 399-401 (concluding that a prisoner sentenced to
death in Ohio could raise an unexhausted Brady claim in a federal habeas petition because the petitioner could not bring
a post-conviction petition in state court). On the other hand, this reading of the Rule 33 standard is questionable in light
of State v. Johnston, 529 N.E.2d 898, 908-12 (Ohio 1988), which held that the Ohio courts of appeal should review a
Brady claim in a Rule 33 motion under the federal Brady standard, not the more stringent Petro standard.
          Finally, with respect to D’Ambrosio’s third argument (asserting the “interest of comity, federalism, and
justice”), he relies on the reasoning of Granberry v. Greer, 481 U.S. 129 (1987) and other pre-AEDPA cases, which we
question in light of AEDPA. See 28 U.S.C. § 2254(b)(3).
         6
            Likewise, for the reasons given by the district court, we reject D’Ambrosio’s arguments in his cross-appeal.
First, this court has refused to recognize a theoretical “free-standing” actual innocence claim, and even if such a claim
existed, D’Ambrosio has not met his burden. See, e.g., Davis v. Burt, 100 F. App’x 340, 349-50 (6th Cir. 2004); see also
D’Ambrosio, 2006 WL 1169926, at *34-39. Second, the Ohio Supreme Court’s conclusion that D’Ambrosio knowingly
waived his right to a jury trial is not an unreasonable application of federal law because D’Ambrosio signed a written
waiver and engaged in a colloquy (albeit short) with the trial court. See D’Ambrosio, 2006 WL 1169926, at *40-41.
Third, the Ohio Supreme Court’s conclusion that counsel for D’Ambrosio was not constitutionally ineffective for failing
to ask for the recusal of one of the trial judges was not an unreasonable application of federal law because the Ohio
Supreme Court reasonably concluded that D’Ambrosio suffered no prejudice by the fact that the judge in question
presided over Keenan’s trial and approved Espinoza’s plea agreement. See id. at *45-46. Finally, D’Ambrosio’s
spoliation of evidence claim fails because he cannot demonstrate that the exculpatory value of the lost evidence was
apparent at the time that the evidence was lost. See id. at 48-49.
Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                      Page 9


         The evidence that the district court concluded was Brady material falls mostly within two
broad categories. First, there is evidence that would have contradicted or weakened the testimony
of the prosecution’s only eyewitness to the murder, Edward Espinoza. This included (a) the
unrecorded conclusions of Detectives Hayes and Goldstein, who investigated the crime scene and
concluded that Klann was not murdered there; (b) a police report describing a tape in which a third
party (Crimi) implicated unnamed other individuals in the murder; (c) a police report that noted that
Klann was not wearing shoes or undershorts when his body was discovered; and (d) a police report
stating that Hudak saw Klann alive the night after events that the prosecution claimed happened the
night that Klann was murdered. Second, there is evidence that demonstrates a motive on the part
of another individual, Paul Lewis. The prosecution failed to disclose that Lewis was being
investigated, and had earlier been indicted, for a rape to which Klann was a witness. Consistent with
Lewis’s motive to kill Klann was undisclosed evidence that (a) Lewis anonymously called the police
and revealed non-public facts about the murder; (b) Lewis first led the police to suspect
D’Ambrosio; (c) Lewis requested police assistance with respect to an unrelated DUI in exchange
for testimony against D’Ambrosio; and (d) Lewis fabricated a burglary to implicate D’Ambrosio in
the murder.
        The district court was correct that the first category of evidence would have further
challenged the prosecution’s version of events, whereas the second category of evidence would have
revealed Lewis as a legitimate suspect. Together, this evidence would have substantially increased
a reasonable juror’s doubt of D’Ambrosio’s guilt. Because the evidence that the prosecution
suppressed would have had the effect of both weakening the prosecution’s case and strengthening
the defense’s position that someone else committed the murder, there is a reasonable probability that
the outcome of D’Ambrosio’s trial would have been different.
       The warden’s arguments on the merits are mostly cursory challenges to the district court’s
conclusions that certain pieces of evidence were not exculpatory or material. The district court’s
opinion sufficiently addresses these arguments. Two arguments, however, require additional
discussion.
         First, the warden argues that the opinions of Detectives Hayes and Goldstein are not Brady
evidence. D’Ambrosio argues that the detectives’ opinions are Brady evidence because Hayes and
Goldstein could have testified about their opinions at trial, their opinions were exculpatory, and the
prosecutor has a duty under Kyles v. Whitley, supra, to learn of evidence favorable to a defendant
that is known to the police. D’Ambrosio’s argument that opinions of police detectives are always
Brady evidence proves too much. It cannot be the law that every stray thought of a police detective
about a case must be imputed to the State, such that the prosecutor has a duty to disclose that
information, simply because a defendant could elicit the detective’s opinion during trial. On the
other hand, the warden’s argument that the opinion of a police detective can never be Brady
evidence if the detective never put that opinion in writing may also prove too much. For example,
a police detective’s opinion might be so concrete and well-known to other government agents
working on a case that the prosecutor’s failure to learn the opinion and disclose it to the defense
could rise to the level of a Brady violation. We need not decide which position prevails in the
instant case because even ignoring the detectives’ opinions, the other suppressed evidence is
material.
        Second, the warden argues that the district court “abused its discretion” when it granted relief
on a “false claim” by D’Ambrosio that the indictment against Lewis was dismissed after Klann’s
murder. The district court did not err. In 1988, a few months before Klann’s murder, a grand jury
returned an indictment charging Lewis with the rape of Christopher Longenecker. In August of
1988, that indictment was dismissed without prejudice. However, a second indictment was
presented to the grand jury, and the grand jury no-billed the indictment in October of 1988, after
Klann was murdered. There is nothing in the district court’s opinion that indicates that the court
Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                   Page 10


misunderstood this series of events. Even though the first indictment was dismissed before Klann
was murdered, Lewis’s motive to kill Klann remained because the indictment was dismissed without
prejudice and could have been refiled later.
                                                 IV.
       For the foregoing reasons, the district court’s order granting D’Ambrosio’s petition for a writ
of habeas corpus is AFFIRMED.
Nos. 06-3542/3712                      D’Ambrosio v. Bagley                                     Page 11


                                 ____________________________
                                     DISSENTING IN PART
                                 ____________________________
        BOGGS, Chief Judge, dissenting in part. I am in general agreement with most of what is
written in the well-reasoned opinion for the court in this case. Unfortunately, I cannot agree that the
actions of the state here met the requirement of AEDPA that a state does not waive the requirement
of exhaustion “unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.
§ 2254(b)(3).
        From the point of view of judicial economy and efficiency, to say of nothing of good
practice, returning to state court at this point is probably not the best course. On the other hand, the
balance of state and federal interests in the processing of habeas petitions from state court
convictions is one for Congress to set, and Congress has done so through AEDPA. Thus, we must
determine, based strictly on the language of AEDPA, whether the state’s actions here constitute an
“express” waiver. I simply cannot find that the state’s silence, even in the face of the district court’s
stating that it was “without concern that Respondent will subsequently move to dismiss the Petition
for failure to exhaust the amended claim” can be an express action. It may be “tacit,” it may be
“implicit,” it may even be somewhat deceitful, but the warden’s silence, in my opinion, cannot be
“express.” The court’s opinion is quite correct that no “magic words” are needed, but it seems to
me that some words, sign, signal, or indication other than silence is necessary for a waiver to be
“express.”
        I would also note that the potential for gamesmanship exists on both sides here. It is true that
the warden can be seen, knowingly or unwittingly, to have “hidden in the weeds” by neither raising
nor waiving exhaustion, and then raising it on appeal. On the other hand, counsel for the petitioner,
undoubtedly aware of the AEDPA requirement, also refrained from bringing the matter to a head.
Petitioner could have demanded that the waiver be made “express” and thus nail the matter down
in the district court. Of course, this would have run the risk that the warden might then have
declined to waive and the court would then have been required to rule explicitly on the point, with
the possible result that the federal proceedings would have been derailed awaiting such actual
exhaustion. Thus, the weeds involved in this case may well have contained counsel for both
Petitioner and Respondent.
        In any event, I do not feel at liberty to deviate from what I consider the correct interpretation
of the term “expressly waives,” and I therefore respectfully dissent on this point.
