                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0238p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 ROBERT WILSON,                                           ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >      No. 16-3981
        v.                                                │
                                                          │
                                                          │
 EDWARD T. SHELDON, Warden,                               │
                                 Respondent-Appellee.     │
                                                          ┘

                          Appeal from the United States District Court
                           for the Northern District of Ohio at Toledo.
                       No. 3:12-cv-00014—James S. Gwin, District Judge.

                              Decided and Filed: October 26, 2017

                  Before: SUTTON, DONALD, and THAPAR, Circuit Judges.
                                  _________________

                                           COUNSEL

ON BRIEF: Matthew M. O’Rourke, MILLER JOHNSON, Grand Rapids, Michigan, for
Appellant. Jonathan R. Khouri, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       BERNICE BOUIE DONALD, Circuit Judge.                Petitioner Robert Wilson appeals the
district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons that follow, we AFFIRM the district court’s denial of habeas relief.
 No. 16-3981                              Wilson v. Sheldon                                Page 2


                                                 I.

        A.     Factual Background

        Wilson was convicted of murdering Brenda Navarre in 2008 and sentenced to 15 years to
life.   Navarre, a confidential informant for the Toledo Police Department’s (“TPD”) Vice
Narcotics Unit, was found unresponsive and bleeding from the head on December 1, 1993. A
bloody, 110-pound boulder was found near her body. Navarre died several days later. Autopsy
results showed that Navarre died of blunt force trauma to the head.

        TPD misclassified the offense as a felonious assault, rather than a homicide after Navarre
died from her injuries, and as a result destroyed the relevant evidence from the scene once the
statute of limitation for felonious assault had expired. The case remained unsolved and was
eventually classified as a “cold case.”

        Over a decade later in 2005, Janet Wilson, Wilson’s wife, met with TPD to discuss
Wilson’s possible involvement in Navarre’s murder. Sergeant Lou Vasquez of the TPD was
investigating a robbery involving Ms. Wilson’s grandson, and after the investigation concluded,
Ms. Wilson contacted Sergeant Vasquez to discuss Navarre’s murder.            Following multiple
conversations, Ms. Wilson made a formal statement in August 2006. Subsequently, Detective
Bart Beavers, of the TPD’s Cold Case Unit, reopened Navarre’s case. Detective Beavers spoke
with Ms. Wilson seven or eight times about the case.          Detective Beavers discovered that
Navarre’s murder had been misclassified as a felonious assault and never properly categorized as
murder after she died from her injuries. As a result of the miscategorization, the evidence found
at the scene had been destroyed.

        Ms. Wilson testified against Wilson at trial, but owing to Wilson’s assertion of spousal
privilege, her testimony was limited to acts and communications by Wilson in the presence of a
third party. Ms. Wilson’s son, Alfonso Davis, also testified, specifically about the night of the
murder, during which Wilson made comments about confidential informants. Davis testified that
Wilson told him that “snitch bitches die,” and “he had to kill the snitch bitch,” and finally, that
he had “dropped a brick on her head.” Sergeant Vasquez and Detective Beavers both testified
 No. 16-3981                             Wilson v. Sheldon                                 Page 3


that Ms. Wilson’s statements had been consistent during the investigation and at trial, but neither
testified to the specific content of her comments to them.

       B.      Procedural Background

       After a four-day jury trial, Wilson was convicted of murder and sentenced to fifteen years
to life. On October 23, 2008, Wilson appealed his conviction to the Ohio Court of Appeals,
arguing that the State had violated his due-process rights by failing to retain incriminating
physical evidence. The court affirmed his conviction and concluded that the physical evidence,
including the bloody boulder, was not “materially exculpatory.” State v. Wilson, No. L-08-1380,
2010 WL 2025521, at *6 (Ohio Ct. App. May 21, 2010). Wilson appealed to the Ohio Supreme
Court, which declined jurisdiction. State v. Wilson, 126 Ohio St.3d 1598 (Ohio 2010) (table).

       On November 18, 2009, while Wilson’s appeal was pending, Wilson filed a “motion to
vacate or set aside judgment of conviction or sentence” in the trial court. State v. Wilson, No. L-
13-1210, 2014 WL 1343694, at *2 (Ohio Ct. App. Mar. 28, 2014). Wilson argued that the state
failed to adhere to discovery obligations under Ohio Crim. R. 16(D) which deprived him of a fair
trial as a result of the police department’s destruction of physical evidence. Id. On April 29,
2011, the trial court denied Wilson’s motion for post-conviction relief as untimely. Id.

       While Wilson’s direct appeal was pending, he also filed an application to re-open his
appeal under Ohio Appellate Rule 26(B)(1), in which he argued ineffective assistance of counsel.
The Ohio Court of Appeals denied his application, and the Supreme Court of Ohio dismissed his
subsequent appeal. Wilson v. Sheldon, No. 3:12-cv-14, 2016 WL 4225571, at *1 (N.D. Ohio
Aug. 11, 2016).

       Wilson filed his habeas petition on January 4, 2012, raising ten grounds for relief. Id. at
*2. The Respondent filed a Return of Writ on March 6, 2015. On June 1, 2016, the magistrate
judge filed a Report and Recommendation (“R&R”), in which he recommended dismissing three
grounds for relief as procedurally defaulted and denying six grounds of relief because the state
appellate court “did not unreasonably apply clearly established federal law in rejecting Plaintiff’s
claims.” Id. Wilson filed objections to the R&R on three grounds:
 No. 16-3981                             Wilson v. Sheldon                                  Page 4


       1. Ground One – Violation of Due Process for Improper Bolstering of the
       Credibility of Witnesses;
       2. Ground Two – Petitioner’s Due Process rights were violated when he was
       denied the right to review Mrs. Wilson’s grand jury testimony;
       3. Ground Four – Mr. Wilson’s right to due process was violated when State
       failed to preserve material evidence.

Id. The district court overruled Wilson’s objections, adopted the R&R, and dismissed Wilson’s
§ 2254 petition. The court granted a certificate of appealability on the three issues raised in
Wilson’s objections. Id. at *10. Wilson now appeals.

                                                 II.

       In habeas proceedings, we review a district court’s legal conclusions “de novo and its
findings of fact for clear error.” Akins v. Easterling, 648 F.3d 380, 385 (6th Cir. 2011) (quoting
Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir. 2009)). Wilson’s petition is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) because the petition was filed after
AEDPA’s effective date. See id. (citing Lindh v. Murphy, 521 U.S. 320, 326–27 (1997)).

       Under AEDPA, a federal court may not grant a writ of habeas corpus on a claim that has
been adjudicated on the merits by a state court unless the state court’s adjudication of that claim:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States; or (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the evidence presented in the
       State court proceeding.

28 U.S.C. § 2254(d). Under the first prong of § 2254(d), a state court decision is contrary to
clearly established federal law if the state court “arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law or if the state court decides a case differently than
[the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id.
 No. 16-3981                             Wilson v. Sheldon                                Page 5


       Importantly, “a federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Williams, 529 U.S. at 411).           “Rather, that application must be ‘objectively
unreasonable.’” Id. (citations omitted). “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations omitted).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Lett, 559 U.S. at 773
(internal citations omitted).

       A.      Admission of Prior Consistent Statements

       Wilson argues that the statements from Sergeant Vasquez and Detective Beavers
regarding Ms. Wilson’s prior consistent statements were improperly admitted because they were
hearsay statements which were made after Ms. Wilson’s motive to lie arose, which thereby
denied Wilson due process of law.        Respondent argues that admission constituted a state
evidentiary ruling that does not warrant habeas relief.

       With regard to evidentiary rulings, the standard for habeas relief is not easily met.
“[F]ederal habeas courts review state court evidentiary decisions only for consistency with due
process.” Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). “A state court evidentiary
ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to
violate the petitioner’s due process rights.” Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir.
2001). Moreover, such rulings “are usually not to be questioned in a federal habeas corpus
proceeding.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders,
837 F.2d 284, 286 (6th Cir.1988)). Even if errors are made in the application of state law,
“[such] errors . . . especially with regard to the admissibility of evidence, are usually not
cognizable in federal habeas corpus.” Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert.
denied, 464 U.S. 962 (1983). If a ruling is especially egregious and “results in a denial of
fundamental fairness, it may violate due process and thus warrant habeas relief.” Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citing Coleman, 244 F.3d at 542). Importantly,
 No. 16-3981                              Wilson v. Sheldon                                  Page 6


however, as a general matter, “state-court evidentiary rulings cannot rise to the level of due
process violations unless they ‘offend[ ] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’” Seymour, 224 F.3d at 552 (quoting
Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). Ultimately, states have wide latitude with regard
to evidentiary matters under the Due Process Clause. Id.

         Here, the district court and magistrate judge concluded that the admission of Sergeant
Vasquez and Detective Beavers’ testimonies were not contrary to federal law and therefore did
not rise to the level fundamental unfairness, Wilson, 2016 WL 4225571, at *3-4, and we must
agree.

         Wilson argues that Sergeant Vasquez’s and Detective Beaver’s testimonies regarding Ms.
Wilson’s prior statements were hearsay and that the state trial court’s ruling against him was
contrary to Supreme Court precedent and denied him a fundamentally fair trial. The district
court summarized the officers’ interactions with Ms. Wilson and subsequent testimony at trial in
Ohio state court as follows:

         Sergeant Vasquez and Detective Beavers met with Janet Wilson a number of
         times throughout Ms. Navarre’s murder investigation. At trial, Janet Wilson’s
         credibility as a witness was called into doubt. Sergeant Vasquez and Detective
         Beavers thus testified that Janet Wilson’s trial testimony was “consistent” and
         “always the same” as the information she told them throughout the investigation.

Id. at *4.

         Wilson cites Ohio Rule of Evidence 801(D)(1)(b) in support of his argument that the
officers’ statements were inadmissible hearsay. Ohio Evidence Rule 801(D)(1)(b) states that a
“statement is not hearsay if . . . [t]he declarant testifies at trial . . . and the statement is . . .
consistent with declarant's testimony and is offered to rebut an express or implied charge against
declarant of recent fabrication or improper influence or motive.” Ohio Evid. R. 801(D)(1)(b).
The Ohio state appellate court rejected Wilson’s claim on appeal, explaining that the officers’
testimony did not include narration that would amount to hearsay, but rather that the testimony
commented on Ms. Wilson’s consistency throughout her interactions with them:

         The crux of appellant’s first contention is that testimony offered by the state,
         through Sergeant Vasquez and Detective Beavers, constituted inadmissible
 No. 16-3981                            Wilson v. Sheldon                                 Page 7


       hearsay. Essentially, appellant claims that this testimony bolstered the veracity of
       [] Janet Wilson. We disagree. Evid. R. 801(C) defines hearsay as “a statement,
       other than one made by the declarant while testifying at the trial or hearing,
       offered into evidence to prove the truth of the matter asserted.”
       It is well settled that testimony as to the consistency of a witness’s prior
       statements, not offered to prove the veracity of those statements, is not
       inadmissible hearsay under Ohio law. In Meriwether, the appellate court held that
       “[t]estimony that a witness’s previous statement during an investigation was
       consistent with his trial testimony does not narrate the witness’s previous
       statement and does not, therefore, violate the hearsay rule.” State v. Meriwether
       (Mar. 15, 1996), 2d Dist. No. 15079.
       The state’s witnesses never narrated Wilson’s previous statements. Instead, they
       commented on whether those statements were consistent with what she had
       related to them during the investigation. We find no indication that the trial
       court’s decision to admit the testimony was unreasonable, arbitrary, or
       unconscionable. Appellant’s first assignment of error is found not well-taken.

Wilson, 2010 WL 2025521, at *3-4. The officers’ statements were plainly not offered to prove
the truth of Ms. Wilson’s statements. The statements were offered to rehabilitate Ms. Wilson’s
credibility, and as the district court noted, “trial courts have greater discretion to admit prior
consistent statements to rehabilitate an impeached witness by clarifying her statements alleged to
be unreliable, than if the statements are offered for their truth.” Wilson, 2016 WL 4225571, at *4
(quoting Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 730 (6th Cir. 1994)).

       In conducting habeas review, we are “limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
(1991). Wilson’s only legal support is Tome v. United States, 513 U.S. 150 (1995), which dealt
with a child’s prior consistent statement under the Federal Rules of Evidence. 513 U.S. at 153-
54. This support fails for a number of reasons. To begin, the Federal Rules of Evidence do not
apply to state criminal proceedings. Further, Tome did not create a constitutional limitation on
the admission of prior consistent statements.       Finally, Wilson’s argument fails because
rehabilitation of a witness’s credibility is not subject to Federal Rule 801. Engebretsen, 21 F.3d
at 730. Wilson has not pointed to any other Supreme Court case to support his position that
admission of the officers’ testimony regarding Ms. Wilson’s prior consistent statements deprived
 No. 16-3981                                   Wilson v. Sheldon                                        Page 8


him of a fundamentally fair trial.1           Therefore, under the narrow standards outlined above,
Wilson’s habeas relief on this claim fails.

        We also note that even if the Ohio state courts were to have found that the officers’
testimony constituted hearsay, while we would not condone its admission, we would not
question a state supreme court’s determination that the error was harmless. Olson v. Little,
604 F. App’x 387, 406 (6th Cir. 2015) (“We express no view as to the soundness of [a] state
court’s ruling, for we do not sit as a super state appellate court when reviewing a state-court
judgment on habeas.”).

        B.       Suppression of Grand Jury Testimony

        Wilson claims that his Brady rights were violated because the trial court refused to grant
him access to the grand jury transcript of Ms. Wilson’s testimony, which allegedly contained
impeachment evidence. A few observations about the backdrop to this claim bear mention.

        Defendants are not ordinarily entitled to grand jury transcripts because grand jury
proceedings are generally kept secret. But Ohio law, like federal law, provides defendants
access to the transcripts when a defendant shows a “particularized need” for them. Defendants
may access grand jury testimony in Ohio if it contains evidence that could be used to impeach a
prosecution’s witnesses. State v. Greer, 66 Ohio St. 2d. 139, 151 (1981). Defendants may also
access grand jury testimony if there are grounds for dismissing the indictment because of matters
that occurred before the grand jury. Ohio R. Crim. P. 6(e). When a defendant makes either
request, the trial court will generally review the transcripts in camera to determine the existence
of impeachment evidence or the existence of grounds for dismissing the indictment. Greer,
66 Ohio St. 2d. at 150.

        At trial, Wilson asked for the grand jury transcript because he thought the transcript
would show that he was indicted on the basis of privileged spousal testimony. The trial court
reviewed the transcript in camera and determined that there was plenty of non-privileged
        1
           Wilson also argues that Ms. Wilson’s acceptance of a $5,000 Crime Stoppers award related to the
investigation of Navarre’s murder gave her a motive to lie under Ohio Rule of Evidence 801(D)(1). As we have
already found that the officers’ testimony was properly admitted to rehabilitate Ms. Wilson’s credibility, we need
not address this argument.
 No. 16-3981                             Wilson v. Sheldon                                 Page 9


testimony that supported the indictment. It therefore refused Wilson’s request for the transcripts.
Wilson never asked the trial court to review the transcripts for evidence he could use to impeach
his wife at trial. Had he done so, the state court would have been required to review the
transcripts in camera to determine if the transcripts contained any such evidence. Id. at 151.

       It’s also important to note that the state appellate courts never passed on this Brady claim
because Wilson never raised it in state court. He raised the claim for the first time on federal
habeas and thus has failed to exhaust it. 28 U.S.C. § 2254(b)(1). Even so, we have discretion to
reject the claim on the merits, id. at § 2254(b)(2), especially since the State never moved to
dismiss the claim on exhaustion grounds.

       Though grand jury proceedings generally need to remain private, this must be weighed
against a defendant’s right to review exculpatory evidence under Brady v. Maryland. 373 U.S.
83, 87-88 (1963). Under Brady, a defendant must show “(1) suppression by the prosecution after
a request by the defense, (2) the evidence’s favorable character for the defense, and (3) the
materiality of the evidence.” Moore v. Illinois, 408 U.S. 786, 794 (1972). Brady imposes a duty
to disclose exculpatory evidence “even though there has been no request by the accused.”
Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing United States v. Agurs, 427 U.S. 97, 107
(1976)). Impeachment evidence is also encompassed within the Brady rule because a jury’s
reliance on the credibility of a witness can be decisive in determining the guilt or innocence of
the accused. See United States v. Bagley, 473 U.S. 667, 676 (1985).

       Even if we assume that Ms. Wilson’s grand jury testimony should have been produced,
Wilson cannot show that he was prejudiced by the prosecution’s failure to disclose. To establish
prejudice, Wilson must show that “there is a reasonable probability that the result of the
[proceeding] would have been different if the suppressed documents had been disclosed to the
defense.” Strickler, 527 U.S. at 289. We do not see how any such evidence could have made a
difference.   Ms. Wilson testified that her trial testimony and grand jury testimony were
“consistent.” Wilson had plenty of opportunities to challenge the credibility of her testimony at
trial on other grounds. He did so and the jury convicted him anyway. This Brady claim fails.
 No. 16-3981                             Wilson v. Sheldon                               Page 10


       As Wilson has failed to establish materiality under Brady, he was not entitled to grand
jury transcripts. The state court’s decision was not a violation nor an unreasonable application of
Supreme Court precedent, and therefore the claim fails.

       C.      Failure to Preserve Material Evidence

       The final issue on appeal is whether the State failed to preserve material evidence and
whether this violated Wilson’s due process rights to a fundamentally fair trial. Wilson argues
that the State failed to preserve “potentially useful” evidence in violation of Arizona v.
Youngblood, 488 U.S. 51 (1988). In order to prove a violation of due process under this
standard, a defendant must show 1) bad faith on the part of the police, 2) that the exculpatory
value of the evidence was apparent before its destruction, and 3) that the defendant would be
unable to obtain comparable evidence by any other reasonably available means. United States v.
Jobson, 102 F.3d 214, 218 (6th Cir. 1996) (citing Youngblood, 488 U.S. at 57-58). “While a
showing of bad faith is not necessary to establish a constitutional violation where the state fails
to disclose material exculpatory evidence, a showing of bad faith is required to establish a
constitutional violation where the state fails to preserve evidentiary material that might have
been exculpatory.” Swan v. Meko, No. 16-5120, 2017 WL 3270780, at *2 (6th Cir. May 23,
2017) (citing Youngblood, 488 U.S. at 57-58). In order to prove bad faith, “a defendant must
prove ‘official animus' or a ‘conscious effort to suppress exculpatory evidence.’” Id. (citing
Jobson, 102 F.3d at 218). Therefore, Wilson must show that the police acted in bad faith by
failing to preserve the boulder murder weapon, that the exculpatory value was evident before the
boulder’s destruction, and that he was unable to obtain comparable evidence.

       The district court held that Wilson failed to meet Youngblood’s heavy burden and that the
TPD’s failure to re-categorize the evidence is at most a demonstration of negligence or gross
negligence. Wilson, 2016 WL 4225571, at *9. Wilson narrates a series of events of officer
activity, which relate to the failure to reclassify the evidence. Wilson concludes that in the
absence of any other argument, this demonstrates bad faith toward Wilson. We cannot agree.
Nothing in Wilson’s version of events suggests a conscious effort to destroy exculpatory
evidence or bad faith on the part of the police. Given that Wilson cannot prove this element, we
 No. 16-3981                             Wilson v. Sheldon                               Page 11


need not reach the other Youngblood factors for potentially useful evidence. The state court’s
decision was not contrary to, or an unreasonable application of clearly established federal law.

                                                III.

       The state court’s adjudication of Wilson’s claims on the merits did not result in an
unreasonable application of clearly established law under AEDPA. We AFFIRM.
