                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0156p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                  Petitioner-Appellee, -
 RASHEEM MATTHEWS,
                                                          -
                                                          -
                                                          -
                                                              No. 06-3451
            v.
                                                          ,
                                                           >
 TODD ISHEE,                                              -
                               Respondent-Appellant. -
                                                         N
                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                         No. 01-02049—John R. Adams, District Judge.
                                    Argued: March 14, 2007
                                Decided and Filed: May 4, 2007
                 Before: NORRIS, GILMAN, and McKEAGUE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Jerri L. Fosnaught, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. J. Dean Carro, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron, Ohio, for
Appellee. ON BRIEF: Jerri L. Fosnaught, OFFICE OF THE ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. J. Dean Carro, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron, Ohio,
for Appellee.
                                       _________________
                                           OPINION
                                       _________________
       McKEAGUE, Circuit Judge. An Ohio jury convicted Rasheem Matthews of the murder of
Wayne Price. An eyewitness and a jailhouse informant testified for the prosecution. Approximately
two weeks after Matthews’s conviction and sentence, both witnesses received favorable plea
bargains. According to Matthews, the witnesses had agreed to testify in exchange for these
favorable pleas, and, therefore, the prosecution should have notified the defense of the preexisting
deals. Because it failed to do so, Matthews argues that the prosecution violated his right to due
process under Brady v. Maryland, 373 U.S. 83 (1963). The district court agreed and granted
Matthews a conditional writ of habeas corpus.
        As explained infra, Matthews procedurally defaulted his claim involving the jailhouse
informant, and has failed to show cause for the default. On his claim involving the eyewitness, the
state court concluded that there was no preexisting deal, and Matthews has not rebutted this factual
finding with clear and convincing evidence. Accordingly, we reverse.

                                                 1
No. 06-3451          Matthews v. Ishee                                                           Page 2


                                                 I
        The magistrate judge’s report and recommendation and the district court judge’s opinion set
out the facts of this case in sufficient detail. We note only those facts relevant to this appeal.
         A Cuyahoga County grand jury indicted Matthews in 1990 for unlawfully and purposely
causing the death of Price and for a firearm specification. The murder occurred in the early morning
hours of October 16, 1989, when Price was shot and killed at the King-Kennedy Housing Projects
in connection with a drug purchase. Theodore Roulette testified that he spoke to Price at the
projects. A few moments later, according to Roulette, he saw Price facing Matthews, heard gunshots
fired and observed Price holding the lower part of his body as he spun around. Roulette also
testified that he observed Matthews with a gun in his hand. Price bled to death from two gunshot
wounds.
      In March 1990, Roulette was incarcerated in the Cleveland City Jail for theft, where he
encountered Price’s brother. After this encounter, Roulette went to the Cleveland Police Department
and gave a statement that he had witnessed the shooting and named Matthews as the shooter.
Matthews was subsequently arrested.
         During Matthews’s trial, the prosecution, led by Assistant Prosecutor Carmen Marino, also
presented the testimony of Charles Paxton, a jailhouse informant. Paxton testified that he was
introduced to Matthews by corrections officers while in jail. Paxton stated that Matthews had
confessed to him that he shot Price two times because Price had been bad-mouthing him. Matthews
purportedly told him that Price was not the first man he had killed in Cleveland. Paxton also
testified that Matthews told him that he had given drugs to Price on credit, but had not been paid.
        Both Roulette and Paxton claimed that they received no consideration for their testimony.
Roulette testified that he had not entered a plea to charges pending against him and he was probably
going back to prison. Roulette’s purported reason for testifying was his friendship with Price and
being a good citizen. Paxton testified that he had been told by another inmate not to testify, had
been offered money not to testify, and had been threatened by both Matthews and some corrections
officers once it was learned inside the jail that he was going to be a witness at the trial. Paxton
claimed that he came forward because he did not think it was right to kill someone and brag about
it.
       In addition to attacking the credibility of Roulette and Paxton, Matthews offered the
testimony of several witnesses. Evelyn Roulette, Roulette’s wife, testified that Roulette had not
been in her apartment that evening as he claimed, was a liar, and could not see without his glasses.
Francis Barrett, the man Paxton claimed told him not to testify, stated that his cell was next to
Paxton’s and he never saw or heard Paxton being threatened by Matthews or any correction officers.
Matthews also offered the testimony of a Quanita Muwwakkil, who originally had also been charged
with Price’s murder. Muwwakkil testified that she did not know Price or Matthews nor did she
witness any shooting on the evening in question.
       During his closing, Assistant Prosecutor Marino addressed defense counsel’s argument that
the two witnesses did have deals for leniency, notwithstanding their testimony to the contrary:
       The cross-examination of witnesses like Roulette and Paxton saying, well, what
       happens a year from now when nobody else is around, means to suggest to you that
       we are going to surreptitiously behind your back stand here and tell you one thing
       and then lie to you; go to somebody else and a say now that the case is over let’s give
       this guy a break. You know that’s not fair really because we live our life as morally
       as you live yours. We accept your tax money to uphold the public trust.
No. 06-3451           Matthews v. Ishee                                                             Page 3


State v. Matthews, 609 N.E.2d 574, 579 (Ohio Ct. App. 1992) (quoting from the trial transcript).
         Matthews’s first trial ended in a mistrial when the jury was unable to reach a verdict. A
second trial began on August 3, 1990, which resulted in conviction. Three days after the conviction,
the trial court sentenced Matthews to imprisonment of fifteen years to life on the murder charge and
three years on the firearm specification, to be served consecutively.
        Before Matthews’s trial, Roulette had been indicted on seven felony charges, unrelated to
the above action, in three separate cases for forgery, uttering, grand theft of a motor vehicle, theft
with a violence specification, and breaking and entering. On August 16, 1990, ten days after
Matthews was sentenced, Roulette pleaded guilty to lesser included misdemeanors in all three cases,
with the approval of Assistant Prosecutor Marino. During the plea proceedings, Roulette’s attorney
stated:
              The court is well familiar with the facts leading up to this plea bargaining
       today. Your honor, I would just point out that through extensive discussions with
       Mr. Marino in the major trial division and the Cuyahoga County Prosecutor’s Office
       and Detective Qualey of the Cleveland Police Homicide Unit, it’s my understanding
       that without the testimony of my client, the convicted murderer known as LAJ
       [Matthews] would not be behind bars today. It’s my client’s testimony that put him
       behind bars.
              Nothing can excuse Mr. Roulette’s prior criminal history or criminal
       behavior, but one thing remains a fact is that he has risked his own life, the life of his
       wife, who is in the courtroom today, and the safety of his family so that this murderer
       was brought to trial and convicted and is currently serving his time. We would ask
       the Court’s consideration and also ask for an immediate sentencing taking into
       consideration of the foregoing factors.
Roulette received a suspended sentence of six months of incarceration and five years of probation.
The court had the following exchange with Roulette:
       THE COURT: Let me make one thing real clear. While you benefitted from the plea
       bargain presently before this Court is well known to you, it is well known to the
       prosecutor’s office and it is well known to the defense counsel and it’s well known
       to this Court, but you come back here with a dirty urine, you come back here not
       having paid this fine—or these court costs and that restitution in equal monthly
       installments, I’m going to put you in jail; you understand me?
       THE DEFENDANT: Yes, sir.
       THE COURT: Do you have any questions whatsoever?
       THE DEFENDANT: Quite clear.
       THE COURT: You drop off the straight and narrow, Mr. Roulette, and you’re gone,
       no matter what happens.
       THE DEFENDANT: Thank you, your Honor.
       THE COURT: We understand each other?
       THE DEFENDANT: Quite Clear.
No. 06-3451          Matthews v. Ishee                                                           Page 4


       THE COURT: Fine.
       When Paxton met Matthews in the county jail, Paxton had already pleaded guilty to separate
charges of theft and extortion, third-degree felonies. On May 21, 1990, prior to Matthews’s trial,
Paxton was sentenced to one year in prison in the first case and eighteen months in prison on the
second case. The sentences were to run concurrently.
        On August 16, 1990, Paxton’s attorney filed a motion to withdraw the guilty pleas in the two
cases. He argued that Paxton was not properly advised that his guilty pleas would make him a
parole violator, thus causing the sentences to be served consecutive to what the parole board
imposed. However, in both Paxton’s plea hearing and his sentencing, the court explained that the
guilty pleas could be a violation of his parole.
        A hearing was held the following day. Assistant Prosecutor Marino appeared on behalf of
the prosecution, although he had not been involved in Paxton’s cases prior to that time, and made
no objection to the motion. The assistant prosecutor offered amended indictments to the court, one
for petty theft and one for coercion, both misdemeanors. Paxton pleaded guilty to both charges.
Before resentencing, Paxton’s attorney stated, “Your honor, Paxton entered guilty pleas to the
offenses on May 2, 1990. I would just like the Court to take into account the cooperation that Mr.
Paxton has shown to the State before it imposes its sentence.” The court gave Paxton a suspended
sentence of six months and ninety days, respectively, to be served concurrently, and five years
probation. The court went on to note: “Let me make one thing very, very clear to you. You know,
the prosecutor knows, defense counsel knows, and the Court knows why this plea bargain has been
worked out.”
                                                 II
       Matthews appealed his conviction. He raised several claims, including prosecutorial
misconduct based in part on the failure of the assistant prosecutor to disclose an alleged deal
between him and Roulette before trial. On this claim, the Ohio Court of Appeals affirmed, but not
without reservation:
                At trial, Theodore Roulette denied that he had any kind of a plea agreement
       with the state regarding his pending cases. Furthermore, the assistant county
       prosecutor adamantly denied that at the time of trial any kind of an agreement had
       been made in exchange for his testimony. Unfortunately, the assistant county
       prosecutor “lives his life as morally as the jurors” and thus we must conclude that the
       deal was made after the trial. Therefore, the assistant county prosecutor would not
       have been able to disclose any plea arrangements, as they were not made until after
       the trial.
               The sequence of events subsequent to the trial create a strong inference that
       Roulette, the sole eyewitness, did receive consideration for his testimony. Despite
       being indicted for seven felony charges, Roulette was permitted to enter a plea of
       guilty to three misdemeanors and was placed on probation.
               If in fact Roulette received this consideration in exchange for his testimony,
       these facts should have been disclosed to appellant and his counsel. The problem is
       compounded when one considers the fact that appellant was not indicted until after
       Roulette came forward and gave his statement. When this court considers the criteria
       of Totty, supra, the decision is borderline. The scale is only tipped towards
       affirmance because appellant’s counsel on numerous occasions alluded to the fact
       that consideration was given to both Paxton and Roulette. Counsel for appellant
No. 06-3451           Matthews v. Ishee                                                            Page 5


       clearly created such an inference for the jury’s contemplation with his cross-
       examinations and closing arguments.
Matthews, 609 N.E.2d at 579. One judge dissented, writing in part:
       The adamant denial by the prosecutor that at the time of trial any kind of an
       agreement had been made in exchange for Theodore Roulette’s testimony causes the
       majority, and this writer, great concern. The record is clear, and the majority
       correctly recognizes, that at least as to Roulette (the sole eyewitness to the shooting),
       an understanding between the state and the witness had been reached at the time of
       this trial regarding Roulette’s present testimony and considerations to be extended
       by the state on his behalf in sentencing on a pending unrelated multiple felony case.
       This denial of the existence of a quid pro quo situation effectively prevented
       defendant’s counsel a proper cross-examination on the matter which directly impacts
       the weight to be afforded Roulette’s testimony.
Id. at 580 (Sweeney, J., dissenting). The Supreme Court of Ohio dismissed Matthews’s petition for
review.
        Matthews then attacked his conviction on collateral review. He filed with the state trial court
a “Motion for Order Finding that Defendant was Unavoidably Prevented from Discovering
Evidence.” In support of his motion, Matthews submitted the deposition testimony of Roulette,
stating that he: (a) recanted his prior trial testimony; (b) denied that he was a witness to the crime;
(c) had lied under oath at trial; and (d) had made a deal with the prosecutor prior to testifying. The
trial court denied the motion and no appeal was taken from the ruling.
        In 1995, after discovering that Paxton had withdrawn his previously entered guilty plea after
trial, Matthews filed another motion for a new trial. The basis for the motion was an alleged
preexisting plea agreement with Paxton and a claim of ineffective assistance of counsel. The trial
court held an evidentiary hearing. Assistant Prosecutor Marino testified that no deals were made
with the witnesses prior to or during trial. He explained that he supported the subsequent pleas and
sentences for several reasons, including the witnesses’ cooperation in testifying for the prosecution
and a concern for their safety if they were to be imprisoned with Matthews. The judge who accepted
the pleas and sentenced both witnesses also testified. He was aware that they received consideration
in the form of reduced charges for their testimony, but had no knowledge of any preexisting
agreements.
       The trial court concluded there was sufficient evidence to show Roulette and Paxton had
preexisting deals, and granted the motion for a new trial. On appeal, however, the Ohio Court of
Appeals reversed, finding that Matthews failed to comply with the deadline for bringing a motion
for new trial under Ohio Rule of Criminal Procedure 33.
        Matthews then filed a petition for a writ of habeas corpus in federal district court, raising a
single claim of prosecutorial misconduct under Brady. The district court referred the matter to a
federal magistrate judge for report and recommendation. The magistrate judge determined that
Matthews had procedurally defaulted his claim involving Paxton under Rule 33. As for the claim
involving Roulette, the magistrate judge found that there was no preexisting deal between Roulette
and the prosecution. In so finding, the magistrate judge relied on the purported factual finding by
the Ohio Court of Appeals to that effect. The magistrate judge concluded that Matthews had not
been denied any due process under Brady.
        The district court disagreed. It found that Matthews had cause for defaulting his Paxton
claim, and had suffered prejudice as a result. It further found that the assistant prosecutor had deals
with both Paxton and Roulette before their testimony, based on its own, different interpretation of
No. 06-3451           Matthews v. Ishee                                                          Page 6


the state court’s factual finding. Concluding that the assistant prosecutor violated Brady by failing
to inform the defense of the deals before trial, the district court conditionally granted habeas relief
to Matthews, giving the State of Ohio 120 days to retry him for Price’s murder or to release him
(subject to any incarceration for other crimes).
        The Warden timely appealed.
                                                  III
        Matthews raises claims of prosecutorial misconduct related to the testimony of Roulette and
Paxton. He argues that both witnesses had preexisting deals with the prosecution for reduced
charges and sentences in exchange for their testimony. If true, the prosecution had a duty to notify
Matthews’s counsel of these deals and correct the witnesses’ contrary testimony; its failure to do so
would have resulted in a denial of due process under Brady, 373 U.S. at 87, and Giglio v. United
States, 405 U.S. 150, 153 (1972).
A.      Standard of Review
        In a habeas case, we review a district court’s legal conclusions de novo. Miller v. Webb, 385
F.3d 666, 671 (6th Cir. 2004). As for a district court’s findings of fact, we usually review these
findings for clear error, but when that court’s “decision in a habeas case is based on a transcript from
the petitioner’s state court trial, and the district court thus makes no credibility determination or
other apparent findings of fact, the district court’s factual findings are reviewed de novo.” Id.
(internal quotation marks omitted).
       With the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress has
provided courts with the following standards governing a petition for habeas corpus relief:
        (d) An application for a writ of habeas corpus on behalf of a person in custody
        pursuant to the judgment of a State court shall not be granted with respect to any
        claim that was adjudicated on the merits in State court proceedings unless the
        adjudication of the 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. A state court decision involves “an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding” only if it is shown that the state court’s
presumptively correct factual findings are rebutted by “clear and convincing evidence” and do not
have support in the record. Id. § 2254(e)(1). The presumption of correctness also applies to factual
findings made by a state appellate court based on the trial record. Sumner v. Mata, 449 U.S. 539,
546-47 (1981).
B.      Matthews’s Claim Involving Paxton
        In general, a federal court may not consider an issue of federal law arising from a judgment
of a “state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits
of the federal claim and an ‘adequate’ basis for the [state] court’s decision.” Harris v. Reed, 489
U.S. 255, 260 (1989). A federal court typically will not reach the merits of a claim when a state
No. 06-3451             Matthews v. Ishee                                                                 Page 7


court has already rejected that claim for procedural reasons—i.e., the petitioner has “procedurally
defaulted” the claim in state court. Id. at 261. When a petitioner procedurally defaults a claim, the
petitioner cannot receive habeas relief in federal court unless the petitioner can show either cause
for the default and actual prejudice from the alleged violation of federal law, or establish that the
“failure to consider [federal] claims will result in a fundamental miscarriage of justice.” Coleman
v. Thompson, 501 U.S. 722, 749-50 (1991).
         As Matthews readily concedes, there is no question he procedurally defaulted his claim
involving Paxton. In his final motion for a new trial in state court, Matthews argued that the
prosecution failed to notify him that Paxton received consideration for his testimony, as evidenced
by the withdrawal of his guilty plea, the plea to reduced charges, and the re-sentencing. Although
the trial court granted the motion, the Court of Appeals of Ohio reversed, holding that Ohio Rule
of Criminal Procedure 33 barred his claim. Ohio v. Matthews, No. 70587, slip op. at 9 (Ohio Ct.
App. Mar. 22, 1999). Rule 33 provides, in part, a motion for a new trial based on newly discovered
evidence
        shall be filed within one hundred twenty days after the day upon which the verdict
        was rendered, or the decision of the court where trial by jury has been waived. If it
        is made to appear by clear and convincing proof that the defendant was unavoidably
        prevented from the discovery of the evidence upon which he must rely, such motion
        shall be filed within seven days from an order of the court finding that he was
        unavoidably prevented from discovering the evidence within the one hundred twenty
        day period.
Ohio R. Crim P. 33(B). Defense counsel had discovered Roulette’s plea bargain, but did not check
the public records to determine whether Paxton had received a similar bargain. Matthews, No.
70587, slip op. at 8. Because of this, the state court concluded that Matthews did not exercise
reasonable diligence in discovering the existence of Paxton’s deal. Id. at 8-9.
         Matthews argues, however, that he can show both cause and prejudice for his default.1 The
district court agreed, determining that the prosecutor impeded Matthews from finding out about
Paxton’s plea bargain by repeatedly assuring the jury that no pleas had been or would be made with
either Paxton or Roulette, and then not informing Matthews of the Paxton plea bargain during his
direct appeal. The district court did not fault Matthews for failing to find out about Paxton’s plea
bargain because, under Strickler v. Greene, 527 U.S. 263, 284 (1999), defense counsel could rely
on the statements made by the assistant prosecutor.
        The district court erred. Two important considerations distinguish this case from Strickler
and some other prosecutorial-misconduct cases. First, Paxton’s withdrawal of his original guilty
plea, plea to reduced charges, and re-sentencing were all public information. Contrast this case with
those cases when the government has sole possession of investigative notes or memoranda; in such
cases, the government has a duty to provide the information to the defense. See, e.g., Banks v.
Dretke, 540 U.S. 668, 696-97 (2004) (rejecting the state’s argument that the petitioner could have
discovered exculpatory facts with sufficient investigation; the facts were not available in an easily
accessible public forum); Strickler, 527 U.S. at 285 (rejecting the state’s argument that the petitioner
should have known about the existence of investigative records and notes, even though the
documents were not in the prosecutor’s “open file”). Where, like here, “the factual basis for a
claim” is “reasonably available to” the petitioner or his counsel from another source, the government
is under no duty to supply that information to the defense. Strickler, 527 U.S. at 283 n.24 (quoting


        1
           Matthews does not argue that failure to consider his claim would result in a fundamental miscarriage of
justice. Coleman, 501 U.S. at 749.
No. 06-3451               Matthews v. Ishee                                                                      Page 8


Murray, 477 U.S. at 488). In other words, when the information is readily available to the defense
from another source, there simply is nothing for the government to “disclose.” Coe v. Bell, 161 F.3d
320, 344 (6th Cir. 1998).
        Second, Matthews knew that Roulette had pled to misdemeanor offenses with a suspended
prison sentence, even though the assistant prosecutor had made comments during trial that Roulette
did not have a deal in exchange for his testimony. Thus, Matthews’s suspicion should have been
piqued that Paxton may have received a new plea bargain similar to Roulette’s, notwithstanding the
assistant prosecutor’s comments. The discovery of Roulette’s plea bargain would have put a
reasonable person on notice to a similar arrangement with Paxton, regardless of whether or not
motions to withdraw a plea after sentencing are rarely successful in Ohio, as suggested by Matthews.
Had he inquired as to Paxton like he did as to Roulette, Matthews surely would have discovered the
new plea bargain, given Paxton entered his new plea and was sentenced within a day of Roulette’s
plea and sentencing. Matthews’s failure to check the public records after being put on notice was
his own failure, and not a failure caused by the assistant prosecutor or some other external factor.
Spirko v. Mitchell, 368 F.3d 603, 611 (6th Cir. 2004) (finding no Brady violation where defendant
was “on notice” that evidence existed and “[a] reasonable defendant would have pursued that
inquiry”); United States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000) (rejecting a Brady claim
where the defendant “has made no showing that he would have been unable to identify, locate, and
interview these individuals through reasonable efforts on his own part”). Thus, Matthews has failed
to establish cause for his procedural default.
       The cause-and-prejudice analysis is a conjunctive one, requiring a petitioner to satisfy both
prongs to excuse a procedural default. Because Matthews has not shown cause, we will not address
whether he has satisfied the prejudice prong. Broom v. Mitchell, 441 F.3d 392, 405 (6th Cir. 2006)
(“As Broom has not shown the requisite cause to excuse the procedural default of this claim, we will
not examine whether he has shown the requisite prejudice, nor will we proceed to the merits of
Broom’s Brady claim.”). Accordingly, Matthews has procedurally defaulted his Brady claim
involving Paxton.
C.       Matthews’s Claim Involving Roulette
        Both parties agree Matthews did not procedurally default his Brady claim involving Roulette.
He raised the claim on direct appeal before the Court of Appeals of Ohio. While that court denied
his appeal, it did so not under federal law, but rather on the basis of an Ohio state court decision,
State v. Totty, No. 47152, 1983 WL 2920 (Ohio Ct. App. Dec. 15, 1983), which did not rely upon
federal due-process concerns (e.g., Brady or its progeny). Thus, as Matthews’s Brady claim2was
fairly presented but not reviewed on the merits by a state court, we review the claim de novo, but
with one important caveat: the state court did make a factual finding that plays a crucial role in the
Roulette claim. We must accept this finding of fact unless it is rebutted by clear and convincing




         2
            Lyell v. Renico, 470 F.3d 1177, 1182 (6th Cir. 2006) (“If the state court did not assess the merits of a claim
properly raised in a habeas petition, the deference due under AEDPA does not apply and we conduct our review de
novo.” (internal quotation marks, brackets, and citations omitted)); Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006)
(same); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (same); but see Slaughter v. Parker, 450 F.3d 224, 232
(6th Cir. 2005) (“In the absence of a state court decision on the federal constitutional case in question, the court of
appeals conducts a review to determine whether the state court decision is contrary to Supreme Court jurisprudence.”
(citing Clifford v. Chandler, 333 F.3d 724, 730 (6th Cir. 2003), overruled in part by Wiggins v. Smith, 539 U.S. 510
(2003)).
No. 06-3451                Matthews v. Ishee                                                                        Page 9


evidence. 28 U.S.C. § 2254(e)(1). What    exactly the finding is, however, has been a matter of
considerable dispute in this litigation.3
       In his report and recommendation, the magistrate judge determined that the Court of Appeals
of Ohio found that there was no preexisting deal between the prosecution and Roulette:
         The court [of appeals] concluded that the “sequence of events subsequent to the trial
         created a strong inference that Roulette, the sole eyewitness, did receive
         consideration for his testimony.” However, “we must conclude that the deal was
         made after the trial. Therefore, the assistant county prosecutor would not have been
         able to disclose any plea agreements, as they were not made until after the trial.”
         Thus, there was no prosecutorial misconduct under Totty.
Matthews v. Ishee, No. 01-2049, R&R at 3 (N.D. Ohio Jan. 24, 2003). The magistrate judge
proceeded to note that the Court of Appeals’ subsequent statements, including it was a “‘sad
commentary . . . to even think that deals are made with witnesses and not disclosed[,]’ . . . are not
findings of fact.” Id. at 3-4. The magistrate judge concluded “[w]hile Matthews has certainly
presented evidence that raises a suspicion [of a preexisting deal] . . . this is not clear and convincing
evidence to overcome the finding of the Ohio Court of Appeals.” Id. at 10.
       Upon de novo review of the magistrate judge’s report and recommendation, the district court
came to the opposite conclusion on the factual finding made by the state court. After reviewing the
portion of the majority opinion quoted in Section II, supra, the district court reasoned:
         The Court notes that this portion of the appellate decision is quite confusing by first
         stating that the court found no deal was made prior to trial but then finding the
         subsequent events create a strong inference that Roulette did receive consideration
         for his testimony and finally ending with the conclusion that if consideration was
         received in exchange for his testimony, it should have been disclosed to Matthews
         and his counsel. The dissent, perhaps, lends some guidance as to what is being said
         by the majority:
                   The record is clear, and the majority correctly recognizes, that at
                   least as to Roulette (the sole eyewitness to the shooting), an
                   understanding between the state and the witness had been reached at
                   the time of this trial regarding Roulette’s present testimony and
                   considerations to be extended by the state on his behalf in sentencing
                   on a pending unrelated multiple felony case.
         If the opinion is read in total, it appears that the appellate court did determine that a
         deal existed between Roulette and the prosecution at the time of Matthews’s trial but
         found that under Totty, Matthews received a fair trial. . . . It is . . . noted that the
         appellate court’s finding of fact that a deal was reached with Roulette prior to trial
         is presumed to be correct under § 2254(e)(1) absent a showing of clear and
         convincing evidence.
Matthews v. Ishee, 414 F. Supp. 2d 792, 807-08 (N.D. Ohio 2006) (emphasis in original; citations


         3
            The Warden argues that the Ohio Court of Appeals actually addressed both the legal and factual grounds for
Matthews’s Roulette claim, and, therefore, we should apply a deferential standard of review, rather than de novo. While
correct as to the factual question of whether there was a preexisting deal between the assistant prosecutor and Roulette,
see infra, it is clear from a review of the state court’s opinion that it did not consider the prosecutorial misconduct claim
through the lens of Brady.
No. 06-3451           Matthews v. Ishee                                                        Page 10


omitted). Thus, looking at the same opinion, the magistrate judge and the district court arrived at
opposite conclusions on the finding of fact actually made by the state court.
        It is perhaps not surprising the state court’s opinion has caused some interpretive problems.
On the one hand, there is the plain reading of the majority’s statement: “[W]e must conclude that
the deal was made after the trial. Therefore, the assistant county prosecutor would not have been
able to disclose any plea agreements, as they were not made until after the trial.” Matthews, 609
N.E.2d at 579. On the other hand, there is the subsequent discussion by the majority, including its
determination that “[t]he sequence of events . . . create a strong inference that Roulette . . . did
receive consideration for his testimony.” Id. There is also the dissent’s gloss on what the majority
meant. Finally, there is the possibility the majority was simply being sarcastic when it stated
“[u]fortunately, the assistant county prosecutor ‘lives his life as morally as the jurors’ and thus we
must conclude that the deal was made after the trial.” Id. (emphasis added). A close reading,
however, undercuts this possibility.
        While the majority exhibited obvious displeasure with the assistant prosecutor, it analyzed
his statements regarding Roulette through two prisms, one based on the record evidence and one
grounded in the law. First, the majority pointed out that Roulette testified at trial that there was no
plea agreement between him and the prosecution. Id. Roulette’s testimony, while challenged by
defense counsel, went unrebutted at trial by any contrary testimony or other evidence. Second, when
it considered the assistant prosecutor’s denial before the jury of any preexisting deal, the majority
did so through the general presumption that prosecutors, like citizens in general, can be taken at their
word. See, e.g., Widmeyer v. Felton, 95 F. 926, 929 (C.C.S.D. Ohio 1899) (“The law presumes that
men will speak the truth; that they will act honestly and will obey the law. These are necessary
presumptions.”); State v. Patterson, 277 N.E.2d 201, 203 (Ohio 1971) (“In oral argument before this
court, the prosecutor was asked, on his professional honor, if he knew of any evidence favorable to
the appellant that had been concealed. He answered in the negative. . . . [N]o more than this could
have been done by the trial court to satisfy Brady.”). Given both the unrebutted testimony and the
general presumption of truthfulness, the majority found it “must conclude that the deal was made
after the trial.” Matthews, 609 N.E.2d at 579. This is a clear and plain statement.
        Importantly, the majority’s subsequent discussion does not contradict this clear and plain
statement. At various parts of the opinion the majority pointed to evidence “creat[ing] a strong
inference that Roulette . . . did receive consideration for his testimony,” and “that there is ample
evidence to suggest that Roulette” received such consideration. Id. But, the majority did not find
conclusively that the consideration was made in exchange for Roulette’s testimony before he
actually testified. At one point the majority explained “[i]f in fact Roulette received this
consideration in exchange for his testimony, these facts should have been disclosed to [Matthews]
and his counsel,” id. (emphasis added), and then concluded:
       It is a sad commentary on our criminal justice system to even think that deals are
       made with witnesses and not disclosed; assistant county prosecutors are permitted
       to represent to the trial court that no deals with witnesses have been have been made,
       knowing that after the trial the deal will be made; . . . .
Id. at 580 (emphasis added). As these statements make clear, the majority found the assistant
prosecutor’s actions during and after trial troubling, but not so troubling as to compel a finding of
a preexisting deal with Roulette.
         In the dissenting judge’s view, however, the majority did conclude that there was a
preexisting “understanding between the State and the witness.” Id. (Sweeney, J., dissenting). Of
course, the dissenting judge’s view has no precedential effect (as it failed to garner a majority); its
effect is measured only by its persuasiveness. As explained above, the dissenting judge’s view of
No. 06-3451              Matthews v. Ishee                                                                  Page 11


what the majority understood does not comport with the explicit finding made by the majority, nor
with the majority’s subsequent use of noncommittal language, such as “if in fact” and “to even
think.” The district court erred in relying upon the dissenting judge’s gloss, especially when that
gloss directly contravened the majority’s clear and plain finding.
        Matthews argues, however, that the majority’s seemingly clear and plain factual finding was
not a finding at all, but rather sarcasm, as evidenced by its statement that “Unfortunately, the
assistant county prosecutor ‘lives his life as morally as the jurors’ . . . .” This statement is replete
with sarcasm, according to Matthews. While not wholly implausible, his suggested reading suffers
from one fundamental defect: it never lets the cat out of the bag, so to speak. In general, sarcasm
is notoriously difficult to express in writing because it “is vocally oriented” and “is easily
misinterpreted” “in written form.” Wikipedia, Sarcasm, at http://en.wikipedia.org/wiki/Sarcasm (last
visited March 23, 2007).4 Had the majority intended to be sarcastic, one would have expected it to
be more careful to alert readers at some point that regardless of what it said—“we must conclude
that the deal was made after the trial”—it was actually holding the exact opposite—the deal was
made before or during the trial. Nowhere in its opinion does the majority make the latter finding
in clear and express terms.
         The more natural and consistent reading is the one made by the magistrate judge. Rather
than an attempt at sarcasm, the majority’s use of the term “unfortunate” is a sign of sincere
resignation on its part that the unrebutted testimony and presumption of truthfulness have compelled
it to find there was no preexisting deal, regardless of its suspicions to the contrary. As sincere
resignation, the majority’s language is fully consistent with its subsequent discussion; as sarcasm,
its language leaves unresolved (or at the very least quite muddled) one of the crucial factual issues
raised by Matthews. Because the former reading is internally consistent and gives full effect to the
entire opinion, we accept that reading and reject Matthews’s and the district court’s alternate
reading.
        Accordingly, we hold that the majority’s statement “the deal was made after the trial” is a
factual finding made by the state court. Under AEDPA, we are bound by this finding unless
Matthews can rebut it with clear and convincing evidence to the contrary.
D.       Matthews’s Evidence of a Preexisting Deal
       Apart from the state court’s factual finding, Matthews argues that there is overwhelming
evidence of a preexisting deal between the prosecution and Roulette. He cites the temporal
proximity between his conviction and sentence and Roulette’s plea; the assistant prosecutor’s
involvement in the plea; and the sentencing judge’s comments to Roulette during the hearing.
Moreover, although not highlighted by Matthews, there is also evidence in the record that Roulette
recanted his trial testimony.
        In a prior case, this court rejected a similar argument made by a habeas petitioner. In
Williams v. Coyle, the petitioner asserted that deals “to exchange lighter sentences for testimony
against [him] existed between the prosecution” and two witnesses. 260 F.3d 684, 707 (6th Cir.
2001). The prosecution’s failure to disclose these deals violated Brady, according to the petitioner.
In support, the petitioner pointed to one witness who was charged with aggravated robbery but
allowed to plead guilty to a lesser-included offense one month after his testimony; he received an
eighteen-month suspended sentence and five years of probation. Id. The petitioner also pointed to
the other witness who was already serving a one-year sentence of imprisonment, but was allowed

         4
            See also Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting It Right & Getting It Written 25-28
(2d ed. 1993) (explaining sarcasm should not be used in legal writing because it is inappropriate and too easily taken
literally).
No. 06-3451             Matthews v. Ishee                                                         Page 12


to vacate his prior plea agreement and plead to a lesser-included offense; he received a three-month
suspended sentence and six months of inactive probation. Id. One of the witnesses submitted an
affidavit stating that he did make a deal with the prosecution before his testimony and had lied about
it during trial. Id.
       The district court rejected the petitioner’s Brady claim because it found that there were no
preexisting deals. On appeal, this court affirmed:
         To convince us that the district court erred, [the petitioner] must show that the
         court’s factual finding that no deal existed was clearly erroneous. He cannot make
         that showing. The mere fact that [the witnesses’] sentences were later altered is not
         evidence that a deal existed prior to their testimony at trial. In fact, at [the
         petitioner’s] trial [one of the witnesses] testified that he hoped to obtain a reduced
         sentence by reason of his testimony. Likewise, the prosecutor stated that he would
         consider the witnesses’ cooperation in disposing of their pending cases. The other
         evidence [the petitioner] offers, [the witness’s] affidavit, is suspicious on both a legal
         and a factual basis, as the district court found. Legally, recanting affidavits are
         always viewed with “extreme suspicion.” United States v. Chambers, 944 F.2d 1253,
         1264 (6th Cir. 1991). . . . Both prosecutors, moreover, testified at the evidentiary
         hearing that they made no such deal with [either witness]. All these facts led the
         district court to find [the witness’s] affidavit incredible, and require us to hold that
         that finding was not clearly erroneous.
Id. at 707-08.
        We find the reasoning in Williams persuasive. Like in Williams, Matthews has not offered
sufficient evidence to rebut the presumption of correctness afforded the Ohio Court of Appeals’
factual finding. The fact Roulette entered into a favorable plea bargain within two weeks after
Matthews’s conviction and sentence is not evidence, or is at most weak circumstantial evidence, that
a deal existed at the time of trial. See Abdur-Rasheed v. Jones, 100 F. App’x 357 (6th Cir. 2004)
(relying on Williams and finding that being subsequently charged with a lesser offense is not
evidence a witness had a preexisting agreement with the prosecution). Furthermore, like in
Williams, the assistant prosecutor testified categorically that there was no preexisting deal with
Roulette. Given the assistant prosecutor’s admission that he supported Roulette’s subsequent plea
bargain based partly on his testimony but also out of fear for his safety in prison, the approval of the
plea bargain is not unusual or exceptional. Like the assistant prosecutor, the judge who accepted
Roulette’s plea and sentenced him testified that he did not know of any preexisting deal for
testimony, although he was aware Roulette received some consideration for his testimony. When
considered in this context, the judge’s comments made during Roulette’s hearing are not direct
evidence of a preexisting agreement, but only of his understanding that one of the bases for the plea
agreement was the defendant’s prior cooperation. Finally, like in Williams, we view Roulette’s
recanting testimony with “extreme suspicion.” Simply put, Matthews has failed to come forward
with sufficient direct or circumstantial evidence to rebut the state court’s finding of no preexisting
deal.
         As Matthews has failed to show the existence of preexisting deal, his Brady claim necessarily
fails.
                                                    IV
       For the preceding reasons, we REVERSE the district court’s grant of conditional habeas
corpus to Matthews and direct the district court to dismiss his petition.
