                              RECOMMENDED FOR PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 20a0222p.06

                   UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 RALPH CARUSONE,                                           ┐
                               Petitioner-Appellant,       │
                                                           │
                                                            >        No. 18-4175
 v.                                                        │
                                                           │
                                                           │
 WARDEN,      NORTH      CENTRAL      CORRECTIONAL         │
 INSTITUTION,                                              │
                               Respondent-Appellee.        │
                                                           ┘

                        Appeal from the United States District Court
                       for the Southern District of Ohio at Cincinnati.
                   No. 1:16-cv-00742—Timothy S. Black, District Judge.

                                    Argued: April 16, 2020

                              Decided and Filed: July 17, 2020

                      Before: MOORE, KETHLEDGE, and BUSH, Circuit Judges.
                                  _________________

                                          COUNSEL

ARGUED: William R. Gallagher, ARENSTEIN & GALLACHER, Cincinnati, Ohio, for
Appellant. Daniel J. Benoit, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: William R. Gallagher, ARENSTEIN & GALLACHER,
Cincinnati, Ohio, for Appellant. Daniel J. Benoit, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
                                     _________________

                                           OPINION
                                     _________________

      KETHLEDGE, Circuit Judge. The State of Ohio convicted Ralph Carusone of felony
murder exclusively on the theory—as the prosecution repeatedly emphasized in its closing
 No. 18-4175                             Carusone v. Warden                              Page 2


argument at trial—that Carusone “plunged [a] knife into the victim’s heart.” But that theory, as
the state court of appeals later found, was “plainly discredit[ed]” by medical records that the
State admits it wrongfully suppressed before trial. And the state court of appeals itself plainly
misapplied the governing Supreme Court precedent when it denied relief on Carusone’s due
process claim. We therefore hold that Carusone is entitled to a writ of habeas corpus, and
reverse the district court’s decision to the contrary.

                                                   I.

                                                  A.

        In July 2006, Derek Rininger stole $500 from the apartment of his former girlfriend,
Jennifer Kron. A few days later, during a series of phone calls, Rininger argued about the money
with Kron and Carusone, who apparently was Kron’s boyfriend at the time. Eventually Rininger
told Kron to drive to his house to recover the money, which Kron did with Carusone in the
passenger seat. Kron pulled up across the street from the house after midnight. Rininger ran out
the door, down a hill, and straight to the passenger side of Kron’s car, where he took a swing a
Carusone. The two men then fought outside the car; both were bloody when Carusone retreated
back to the passenger seat. Rininger ran around to Kron’s door and reached through the open
window for the car keys. The two men scuffled again, with Kron between them, until Kron put
the car in gear and drove off.

        Rininger then ran up the hill and into his house. Soon he emerged from the back door,
circled back to the front porch, and jumped off the side of the steps. Then he called 911,
reporting through labored breaths that he had been stabbed. Emergency medical personnel
arrived 20 minutes later, finding Rininger barely conscious with a blood-soaked towel between
his left arm and abdomen. Pulsating blood came from Rininger’s inner left bicep; he also had a
knife wound near the bottom of his left ribcage. Within minutes Rininger went into full cardiac
arrest, his pupils fixed and dilated.

        Emergency personnel tried and failed to resuscitate Rininger on the way to the hospital.
Once there, an ER doctor continued those efforts, in part by piercing Rininger’s chest with two
needles: one to release any air pressure in his abdomen (a “needle thoracostomy”) and another to
 No. 18-4175                           Carusone v. Warden                                  Page 3


drain any blood from around his heart (a “pericardiocentesis”).           Neither procedure was
successful, and after 30 minutes Rininger was pronounced dead. A bloody pocketknife was
found in his shorts.

       The county deputy coroner, Dr. Michael Kenny, performed an autopsy on Rininger a few
hours later—before the ER doctor wrote up a report describing (among other things) the
thoracostomy and pericardiocentesis procedures. Dr. Kenny concluded that Rininger had died
from a stab wound on his left ribcage, which penetrated far enough to cause a “hole into the right
side of his heart[.]” Dr. Kenny also found that, at the time of death, Rininger had significant
levels of cocaine and alcohol in his blood, along with a tranquilizer, marijuana, and
hydrocodone.

       Carusone was charged in state court with “purposeful murder” and felony murder for
Rininger’s death. During discovery, the State produced three pages of hospital records regarding
Rininger’s treatment, but failed to produce another five pages of those records, which included
the ER doctor’s typed report and an x-ray of Rininger’s chest. At trial—based on Dr. Kenny’s
testimony that Rininger had died from a stab wound to the heart—the prosecution repeatedly told
the jury that Carusone had “purposely and knowingly plunged that knife into the victim’s heart.”
The jury acquitted Carusone of purposeful murder but convicted him of felony murder, and the
trial court sentenced him to 15 years to life in prison. The state court of appeals affirmed; the
Ohio Supreme Court denied review.

                                                B.

       In 2010, largely as a result of an investigation begun by Carusone’s mother, Carusone
discovered that the State had withheld five pages of the hospital’s records (including the ER
doctor’s report and a chest x-ray) and a portion of the fire department’s report of its run to pick
up Rininger. Carusone’s mother then retained Dr. Thomas Young, a forensic pathologist who
had conducted more than 5,400 autopsies. Based in part on the undisclosed hospital records, Dr.
Young opined in an affidavit that Rininger had “died as a result of cardiac arrest brought about
by the combined effects of multiple drugs and alcohol and by heavy stress and exertion
following a physical confrontation.” Dr. Young further opined that the “hole” in the right side of
 No. 18-4175                            Carusone v. Warden                                   Page 4


Rininger’s heart was “consistent with the needle pericardiocentesis procedure but not a stab
wound from the left side of the chest”; that “[i]t is inconceivable how a stab wound from the left
side could penetrate the heart in the posterior right side without perforating or penetrating the left
ventricle or the diaphragm”; and that “what the autopsy pathologist claims as a stab wound is in
reality an injury from pericardiocentesis.”

       Carusone then filed a motion for a new trial, which the trial court denied. But the court
of appeals reversed for an evidentiary hearing, holding that Carusone had “demonstrated that the
undisclosed evidence was material in the sense that it might reasonably be said to undermine
confidence in the jury’s verdict[.]”

       During the evidentiary hearing on remand, Dr. Young testified that Dr. Kenny’s autopsy
report “does not make any account of anything in between” the knife wound to the left ribcage
and the hole in the right ventricle; that “[i]n order for the knife blade to basically reach that
particular area in the right ventricle it would have to go through the diaphragm and go through
the left ventricle”; that “[n]o such defects are recorded or documented”; and hence that
Dr. Kenny’s conclusion that Rininger died from a stab wound to the chest “doesn’t make any
sense anatomically.”

       Nor, in Dr. Young’s opinion, did Dr. Kenny’s opinion make sense functionally.
Dr. Young testified that “I don’t think that [Rininger] would have made it up to the house if he
had a stab wound to the heart. He had to basically go up a hill and run around the house and pull
out the cell phone and make the 911 call. . . . [T]he blood loss from a heart defect like that would
be so rapid that in a matter of even a minute, a couple of minutes, he would be unconscious[.]”

       Nor, in Dr. Young’s opinion, was Dr. Kenny’s opinion consistent with the hospital
records. The ER doctor’s report tended to confirm the “needle pericardiocentesis” likely caused
the hole in Rininger’s heart, given that the needle was necessarily inserted hastily and very close
to the heart. In addition, as the ER doctor noted in his report, the chest x-ray revealed no
“abdominal free air”—a finding confirmed by the doctor’s observation that the “[a]bdomen
appeared soft; it did not appear distended at all”—which was likewise contrary to the theory that
a knife had penetrated the abdomen. The treating doctor’s report also made clear that the ER
 No. 18-4175                            Carusone v. Warden                                  Page 5


staff “were not dealing with anything that was involving a major vascular structure and blood
loss. They were dealing with the cardiac arrest. The heart had stopped, and they were trying to
get the heart going again.”

       Dr. Young also testified as to his opinion that “[t]he cause of death is the combined
effects of multiple drugs and alcohol, and heavy stress and exertion. The two put together
caused the heart to stop.” Dr. Young explained:

       [W]ith a lot of stress you release a lot of hormone called Epinephrin or
       Adrenaline. And that basically drives the heart into a frenzy. And at the same
       time he has got cocaine in his system; he has got alcohol in his system. You put
       cocaine and alcohol together and you get something that is even worse than the
       two combined. . . . And plus, he has also got some marijuana too, and some other
       drugs. So all of that together is going to have an effect on heart function.

       On cross-examination, Dr. Young conceded that “you could look at [the stab wounds] as
being part of the stress that he is undergoing. . . . But in a situation there for the stab wounds to
actually lead to significant bleeding that is going to put him into shock, he would have to lose
several liters of blood. . . . And from the records that I recall seeing, I didn’t see any sense that
there was that.”

       The trial court again denied Carusone’s motion for a new trial. The court of appeals
affirmed. The court did find that the “evidence offered in support of Carusone’s motion for a
new trial plainly discredits the deputy coroner’s opinion testimony that the cause of Rininger’s
death was a stab wound to the heart.” The court also appeared to adopt Dr. Young’s opinion that
“‘heavy stress and exertion’ along with ‘the combined effects of multiple drugs and alcohol had
together caused Rininger’s heart to stop.’” (Ellipses and brackets omitted.) But the court noted
that Dr. Young had testified that the stab wounds “‘add[ed] to the stress of the situation[.]’” On
that basis, the court concluded that Carusone’s new evidence, when “considered collectively and
with the evidence adduced at trial, would support a finding, beyond a reasonable doubt, that
Carusone had caused Rininger’s death as the proximate result” of the stab wounds. The court
thus held that the trial court “properly denied Carusone a new trial.”

       The Ohio Supreme Court again denied review. Carusone thereafter filed the habeas
petition at issue here, which the district court denied. This appeal followed.
 No. 18-4175                            Carusone v. Warden                                  Page 6


                                                 II.

       The question in this appeal is whether the state court of appeals unreasonably applied
clearly established Supreme Court precedent when it affirmed the trial court’s denial of
Carusone’s motion for a new trial. 28 U.S.C. § 2254(d). An unreasonable application of
Supreme Court precedent, for purposes of the federal habeas statute, is one with which no
fairminded jurist would agree. Harrington v. Richter, 562 U.S. 86, 101 (2011).

       The relevant Supreme Court precedents here are Brady v. Maryland, 373 U.S. 83 (1963)
and Kyles v. Whitley, 514 U.S. 419 (1995). In Brady, the Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87. In Kyles, the Court reiterated that evidence is “material” when
there exists “a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” 514 U.S. at 435 (internal quotation marks
omitted). And in Kyles the Court specified that the “reasonable probability” standard is met by a
“showing that the favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Id.

       The question is whether Carusone has made that showing here. As an initial matter,
some of the evidence on which Carusone relies—notably, the recantation of Jacob Carroll, a
prosecution witness at trial—did not exist at the time of trial, and thus was not “suppressed”
within the meaning of Brady. United States v. Jones, 399 F.3d 640, 647 (6th Cir. 2005). The
relevant evidence here, rather, is the five pages of hospital records not disclosed by the
prosecution before trial. The State concedes that it should have produced those records; thus, the
remaining question then is whether the state court of appeals unreasonably applied Kyles when it
held that the undisclosed evidence does not undermine confidence in the verdict.

       On that question there is still more common ground. Everyone agrees—as the state court
of appeals itself found—that the relevant evidence here “plainly discredits the deputy coroner’s
opinion testimony that the cause of Rininger’s death was a stab wound to the heart.” And that
theory—that Rininger died from a stab wound to the heart—was exclusively the theory that the
 No. 18-4175                             Carusone v. Warden                                 Page 7


prosecution offered to the jury at trial. The relevant evidence thus undisputedly discredits the
actual theory on which, by all appearances, the jury based its verdict.

         The state court held that its confidence in the verdict was unshaken nonetheless, based on
an alternative theory of conviction. That theory was based largely on Dr. Young’s opinion as to
the cause of Rininger’s death:        that the adrenaline and exertion resulting from the fight,
combined with the cocaine, alcohol and other drugs in Rininger’s system, sent his heart into a
“frenzy” and ultimately caused it to stop. Even that theory would support a conviction for felony
murder, the state court held, because Dr. Young conceded that the stab wounds could have
“‘add[ed] to the stress of the situation.’”

         But there are two problems with that reasoning. The first is that the court’s alternative
theory was unsupported by any expert opinion in the case. Dr. Young’s testimony as a whole
shows that he regarded the stab wounds’ contribution to Rininger’s death as incidental—that, at
most, their importance was “very, very ambiguous.” And Dr. Kenny, for his part, rejected the
idea that Rininger died from anything other than a knife blade penetrating his heart. The
reasoning of the court of appeals thus amounts to speculation that a jury would go further than
any expert did, and find that “stress” from the stab wounds was a proximate cause of Rininger’s
death.

         The second problem with the state court’s reasoning is that it effectively replaced the
Kyles standard with one more favorable to the prosecution. Specifically, the court held that the
evidence in the record, considered as a whole, “would support a finding, beyond a reasonable
doubt,” that Rininger’s death was the “proximate result” of stress from the stab wounds. That
amounts to merely a conclusion that the evidence was sufficient to support a conviction. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). And in Kyles the Court specifically said that the
test for materiality under Brady “is not a sufficiency of evidence test.” 514 U.S. at 434; see also
id. (“a showing of materiality does not require demonstration by a preponderance that disclosure
of the suppressed evidence would have resulted ultimately in the defendant’s acquittal”).

         What Kyles requires the defendant to show, rather, is only that the suppressed evidence
“undermine[s] confidence in the verdict.” Id. at 435. Here, as the court of appeals itself found,
 No. 18-4175                          Carusone v. Warden                                Page 8


the suppressed evidence “plainly discredited” the actual theory upon which the prosecution
obtained a conviction. And the court of appeals sought to bridge the gap between its alternative
theory of conviction, on the one side, and the medical opinion testimony to the contrary, on the
other, by applying precisely the standard that the Supreme Court in Kyles said not to apply.
What remains is a discredited verdict. Even under the demanding standard of the federal habeas
statute, therefore, the state court’s rejection of Carusone’s Brady claim was an unreasonable
application of clearly established Supreme Court precedent.

                                         *     *     *

       The district court’s judgment is reversed, and the case is remanded with instructions to
grant a writ of habeas corpus.
