[Cite as State v. Gillispie, 2016-Ohio-7688.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellant                        :  C.A. CASE NO. 26965
                                                     :
 v.                                                  :  T.C. NO. 90CR2667
                                                     :
 ROGER DEAN GILLISPIE                                :  (Criminal Appeal from
                                                     :   Common Pleas Court)
          Defendant-Appellee                         :
                                                     :
                                                ...........

                                                OPINION

            Rendered on the ____10th__             day of _____November_____, 2016.

                                                ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

MARK GODSEY, Atty. Reg. No. 0074484, Ohio Innocence Project, University of
Cincinnati College of Law, P. O. Box 210040, Cincinnati, Ohio 45221

and

JIM PETRO, Atty. Reg. No. 0022096, 343 Peach Avenue, Lakeside Marblehead, Ohio
43440

and

PIERRE H. BERGERON, Atty. Reg. No. 0071402 and COLTER L. PAULSON, Atty. Reg.
No. 0081903 and LARISA M. VAYSMAN, Atty. Reg. No. 0090290, 221 E. Fourth Street,
Suite 2900, Cincinnati, Ohio 45202

        Attorneys for Defendant-Appellee
                                                                                         -2-


                                      .............

FROELICH, J.

       {¶ 1} The State of Ohio appeals from the trial court’s grant of Roger Dean

Gillispie’s “Motion to Compel Discovery and, If Required Discovery is Not Produced, to

Dismiss Indictment,” in which the trial court dismissed the State’s indictment against

Gillispie. For the following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 2} The procedural history of this case in both state and federal court is long and

complicated, but integral to an understanding of our opinion.

       {¶ 3} In July 1991, Gillispie was convicted by a jury of nine counts of rape, three

counts of kidnapping, three counts of gross sexual imposition, and one count of

aggravated robbery based on two separate incidents of sexual assault that occurred in

August 1988. Except for the three counts of gross sexual imposition, each count carried

a firearm specification. In accordance with the sentencing statutes at the time, the trial

court imposed an indeterminate sentence of 22 years to 56 years in prison. Gillispie’s

conviction and sentence were affirmed on direct appeal. State v. Gillispie, 2d Dist.

Montgomery Nos. 12941 & 13585, 1993 WL 10927 (Jan. 21, 1993).

       {¶ 4} The specific facts underlying Gillispie’s convictions have been detailed in

several prior appeals. E.g., id.; State v. Gillispie, 2d Dist. Montgomery Nos. 22877 &

22912, 2009-Ohio-3640. We have summarized those facts, as follows:

              * * * On August 5, 1988, defendant forced his way into the passenger

       side of [S.C.’s] car as she was leaving a drug store. At gunpoint, he forced

       her to drive behind a vacant building in the shopping center where he
                                                                                         -3-


       exposed himself, fondled her, and forced her to perform oral sex.

               On August 20, 1988, in another shopping center, defendant forced

       his way into the rear seat of a car occupied by [C.W.] and [B.W.] as they

       were about to leave the center. He pretended to be a security officer and,

       at gunpoint, forced the twins to drive to a secluded area where he exposed

       himself, fondled them and forced each of them to perform oral sex.

State v. Gillispie, 2d Dist. Montgomery No. 14595, 1995 WL 41334, *1 (Feb. 1, 1995)

(affirming the dismissal of Gillispie’s petition for post-conviction relief).

       {¶ 5} At trial, Gillispie claimed that he had an alibi for the times of the rapes. He

asserted that he was with friends on August 5, 1988, and that he was camping with friends

in Kentucky during the weekend of August 20, 1988.

       {¶ 6} Gillispie filed numerous motions in the years following his conviction. Of

relevance to this appeal, on February 13, 2008, Gillispie filed a second petition for post-

conviction relief or, in the alternative, a motion for a new trial. He argued that new

evidence, falling into three broad categories, had come to light: (1) evidence of police

corruption, perjury, witness tampering and other official misconduct of various types

by Detective Scott Moore of the Miami Township Police Department; (2) additional

evidence that an alternative suspect, Kevin Cobb, committed the offenses; and (3)

new scientific understanding in the field of eyewitness identification.

       {¶ 7} With regard to his allegation of police misconduct, Gillispie argued, in part,

that the State had failed to provide exculpatory evidence known to the police, violating his

right to due process as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). Gillispie further argued that, to the extent that such exculpatory
                                                                                           -4-


evidence was not preserved by the State, such failure to preserve evidence violated his

due process rights under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d

281 (1988). The alleged Brady material consisted of receipts from a campground in

Kentucky and supplemental police reports that indicated that Gillispie had once been

eliminated as a suspect by the original police investigators, Detectives Steven Fritz and

Gary Bailey.

       {¶ 8} Upon review of the trial court’s denial of Gillispie’s petition and motion, we

concluded that the trial court did not err in finding no Brady violations. Gillispie, 2d Dist.

Montgomery Nos. 22877 & 22912, 2009-Ohio-3640, at ¶ 47-106. We also concluded

that the alleged new scientific evidence regarding eyewitness identification did not

warrant a new trial. Id. at ¶ 139-151. However, we concluded that additional evidence

regarding Cobb constituted “new evidence” sufficient to require a hearing on whether a

new trial was warranted. Id. at ¶ 138.

       {¶ 9} In December 2009, prior to a hearing in the trial court on Gillispie’s motion

for a new trial, Gillispie filed a petition for a writ of habeas corpus in the United States

District Court for the Southern District of Ohio based on the alleged Brady violations.1

After this date, proceedings occurred in both state and federal court.

       {¶ 10} In July 2010, the state trial court held a hearing on Gillispie’s motion for a

new trial based on Cobb as an alternative suspect. In December 2010, the trial court


1
  The case in federal district court proceeded before a magistrate judge. Pursuant to 28
U.S.C. 636(c), the magistrate judge had plenary jurisdiction over the case upon the
parties’ unanimous consent and referral from the district court. Consequently, the
magistrate judge had the authority to enter judgment in the case (as opposed to issuing
a report and recommendation to the district court), and any appeals from the magistrate
judge’s judgments were made directly to the Sixth Circuit. See id.
                                                                                          -5-


denied the motion. Gillispie appealed.

      {¶ 11} On December 15, 2011, relying exclusively on the state court record,2 the

district court granted Gillispie a conditional writ of habeas corpus, finding that a Brady

violation had occurred. The district court wrote:

             * * * In late 1989 or early 1990, during the initial investigation,

      detectives Fritz and Bailey considered Mr. Gillispie as a suspect after Rick

      Wolfe brought to the detectives a picture of Mr. Gillispie whom Mr. Wolfe

      had just terminated as an employee at General Motors (GM).                  The

      investigating detectives noted that the “Wanted” poster for the case had

      been posted for almost two years at GM, but that Mr. Wolfe did not bring

      Mr. Gillispie to the detectives’ attention until after he (Mr. Wolfe) had a fight

      with Mr. Gillispie and terminated his employment.            Nevertheless, the

      original investigating detectives eliminated Mr. Gillispie as a suspect

      because he did not fit the physical description of the rapist which the victims

      had given nor did he fit the profile of the rapist. Eventually, Detective Fritz

      informed Mr. Wolfe that he and Det. Bailey did not consider Mr. Gillispie a

      good suspect and that there were not going to be charges brought against

      him. At some point after Dets. Fritz and Bailey had eliminated Mr. Gillispie

      as a suspect, Mr. Wolfe again approached the detectives about the rape


2
  On March 10, 2011, the district court held an evidentiary hearing on Gillispie’s Brady
claim. However, in its decision, the magistrate judge stated that Cullen v. Pinholster, 563
U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), which the United States Supreme
Court decided after that evidentiary hearing, precluded the district court from considering
the evidence that the parties introduced at the hearing in deciding the habeas corpus
question in Gillispie’s case. Gillispie v. Timmerman-Cooper, 835 F.Supp.2d 482, 494
(S.D. Ohio 2011).
                                                                                   -6-


case and brought several photographs to them. Because the investigators

had already eliminated Mr. Gillispie as a suspect, Det. Fritz just put the

photos into the case file.          Det. Bailey prepared supplemental reports

describing the events involving Mr. Wolfe, their investigation of Mr. Gillispie,

their elimination of Mr. Gillispie as a suspect, and their reasons therefor.

       When Det. Moore, who had recently been promoted to detective,

took over the investigations in June 1990 almost two years after the crimes

were committed, he contacted the victims and presented a photo spread to

them. The photo of Mr. Gillispie was closer and larger than the other

photos in the spread and, unlike the other photos, had a matte finish. The

victims identified Mr. Gillispie.

       There was, of course, absolutely no physical evidence that

connected Mr. Gillispie to the crimes. However, the parties agree that at

the trial, the three victims each testified that Mr. Gillispie was the person

who committed the crimes. Nevertheless, at some point in deliberations

the jury was deadlocked eight to four in favor of acquittal. See Gillespie

[sic], 1993 WL 10927 at *3. It was not until the trial court delivered an Allen

charge to the jury that it convicted Mr. Gillispie. That fact sheds light on

the relative weakness of the case the State presented to the jury.

       The jury never heard testimony about the original investigating

officers, Dets. Fritz and Bailey, eliminating Mr. Gillispie as a suspect nor the

reasons why they eliminated him. While Dets. Fritz’s and Bailey’s opinions

as to why Mr. Gillispie was not a good suspect certainly do not directly go
                                                                                     -7-


to the issue of Mr. Gillispie’s guilt or innocence, they clearly go to the quality

of the investigation which took place subsequent to Dets. Fritz’s and

Bailey’s investigation. The withheld information is material which would

have allowed Mr. Gillispie’s counsel to impeach Det. Moore with respect to

his investigation of the crimes for which Mr. Gillispie was tried and

convicted. Cf., D’Ambrosio v. Bagley, No. 1:00-CV-2521, 2006 WL 1169926

(N.D.Ohio Mar. 24, 2006), aff’d, 527 F.3d 489 (6th Cir.2008). In view of the

State’s case, that information “could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.”

VanHook [v. Bobby, 661 F.3d 264 (6th Cir.2011).]

       “Materiality” for purposes of Brady analysis is a mixed question of

law and fact. United States v. Phillip, 948 F.2d 241 (6th Cir.1991). The

state courts’ determination that the evidence in question is not material is

both an unreasonable determination of the facts in light of the evidence

presented to those courts and an objectively unreasonable application of

Brady and its progeny.

       This Court concludes that Mr. Gillispie’s Ground for Relief 1 is

meritorious. Specifically, the Court finds that Mr. Gillispie was denied his

right to due process pursuant to the Fourteenth Amendment as interpreted

in Brady, to be apprised of all material exculpatory and impeachment

information which the State holds.

       Accordingly, the Petition for Writ of Habeas Corpus is granted. The

State of Ohio is ordered to release Petitioner from custody unless he is
                                                                                            -8-


       again convicted at a trial commencing not later than July 1, 2012.

(Emphasis added.) Gillispie v. Timmerman-Cooper, 835 F.Supp.2d 482, 508-509 (S.D.

Ohio 2011).

       {¶ 12} The next day, the State filed a notice of appeal to the Sixth Circuit. The

State also filed a motion to stay in the district court. The district court granted the stay,

but concurrently (on Gillispie’s motion) ordered Gillispie’s release on bond. Gillispie v.

Timmerman-Cooper, S.D.Ohio No. 3:09-cv-471 (Dec. 22, 2011).

       {¶ 13} On April 13, 2012, while the State’s federal appeal was pending, we

reversed the trial court’s ruling on Gillispie’s motion for a new trial based on an alternative

suspect. State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-1656, amended

on reconsideration by State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-2942

(deleting paragraph 45 from original opinion). We vacated Gillispie’s conviction and

sentence and remanded the matter to the trial court for a new trial. The State appealed

our ruling to the Ohio Supreme Court. The Ohio Supreme Court denied leave to appeal

on November 7, 2012. State v. Gillispie, 133 Ohio St.3d 1467, 2012-Ohio-5149, 977

N.E.2d 694 (table).

       {¶ 14} After the Supreme Court of Ohio’s ruling, the State moved to dismiss its

federal appeal of the district court’s December 15, 2011 decision granting a conditional

writ of habeas corpus. Notably, the State’s motion did not ask the Sixth Circuit to vacate

the district court’s decision. The State’s appeal was dismissed on November 27, 2012.

       {¶ 15} The State sought vacation of the conditional writ by means of a Fed.R.Civ.P.

60(b) motion filed in the district court. On December 20, 2012, the district court denied

the motion, reasoning that the conditional writ was neither moot nor void and that it (the
                                                                                             -9-


district court) had jurisdiction to enforce its conditional writ. The court rejected the State’s

argument that the district court’s judgment should be vacated because the judgment was

not reviewed by an Article III judge; the court emphasized that the State had consented

to plenary magistrate judge jurisdiction and had voluntarily dismissed its appeal to the

Sixth Circuit.     Finally, the district court reasoned that there was no change in the

decisional law that warranted vacation of the judgment. The court stated:

                 * * * The Second District Court of Appeals granted Gillispie a new

       trial on a legal basis different from this Court’s legal basis. The factual

       circumstances have somewhat changed—the State is now bound to retry

       Gillispie both by this Court’s conditional writ and the mandate of the Second

       District Court of Appeals. Those orders do not conflict.

                 However, this Court’s Decision and Order does conflict with the prior

       decision of the Second District Court of Appeals on the precise issue on

       which this Court ruled. State v. Gillispie, 2009-Ohio-3640, 2009 Ohio App.

       LEXIS 3107, 2009 WL 2197052 (Ohio App. 2nd Dist.2009). If the Decision

       and Order were vacated, presumably the Second District’s prior decision

       would be the law of the case for the retrial. This Court found that prior

       decision was “both an unreasonable determination of the facts in light of the

       evidence presented to those courts and an objectively unreasonable

       application of Brady and its progeny.” Gillispie, 835 F.Supp. [2d] at 509.

                 The Second District Court of Appeals has itself recognized that a

       decision of this Court in a habeas corpus case can have collateral estoppel

       effect in a later proceeding in the Ohio courts, even if this Court’s decision
                                                                                          -10-

       is in error as a matter of Ohio law. State v. Slagle, 2012-Ohio-1575, 2012

       Ohio App. LEXIS 1384, 2012 WL 1144051 (Ohio App. 2nd Dist. Apr. 6,

       2012).   There is no good reason offered by Respondent why Gillispie

       should be deprived of that benefit of his judgment in this Court which was

       obtained with much effort.

Gillispie v. Timmerman-Cooper, S.D.Ohio No. 3:09-cv-471, 2012 WL 6644624, *6 (Dec.

20, 2012). The State filed a notice of appeal to the Sixth Circuit on January 17, 2013.

       {¶ 16} On January 18, 2013, Gillispie filed a motion in the Montgomery County

Common Pleas Court to compel discovery of the supplemental police reports or to dismiss

the indictment. In its response, the State indicated that it “does not now possess, nor

has it ever possessed, any such reports. Copies will not be forthcoming.” However, the

State argued that collateral estoppel did not bar it from challenging the preclusive effect

of the district court’s December 15, 2011 decision, and that Gillispie was not entitled to

dismissal of the indictment, even if the State were bound by the district court’s decision.

Upon motion of the State, and with Gillispie’s consent, the state trial court stayed the

matter until the Sixth Circuit ruled on the State’s appeal from the denial of its Fed.R.Civ.P.

60(b) motion in federal court.

       {¶ 17} The State also asked the district court to stay its Fed.R.Civ.P. 60(b) ruling

pending appeal to the Sixth Circuit; the State’s request was denied. In ruling on the

State’s motion to stay, the district court considered the same factors that are used in

determining whether to grant a preliminary injunction, including whether the State was

likely to prevail on the merits. Upon considering this factor, the district court recognized

that its December 15, 2011 decision, which the district court had declined to vacate, had
                                                                                        -11-


both prospective and retrospective components. With respect to the prospective portion,

the district court concluded that it had jurisdiction to make the writ unconditional if the

State failed to comply with the conditions in its December 15, 2011 judgment.

      {¶ 18} In ruling on the motion to stay as to the retrospective portion of its December

15, 2011 judgment, the district court rejected a suggestion by the State that the State

could retry Gillispie without producing the supplemental police reports. The district court

stated that the December 15, 2011 ruling would be entitled to collateral estoppel effect,

including during retrial. The court wrote:

      It seems clear from the State’s papers on the instant Motion that it does not

      concede that collateral estoppel effect. It argues “[t]his Court did not, as

      Gillispie now argues, make any finding that the purported Brady violation

      was incurable such that the State of Ohio could not retry him unless they

      produced the alleged reports in question.” (Reply, Doc. No. 105, PageID

      4783.) On the contrary, that is precisely the implication of the retrospective

      portion of this Court’s judgment: the evidence in question is Brady material

      and Gillispie may not be constitutionally convicted of the crimes of which he

      stands charged without production of that material. Any new judgment of

      conviction procured after a trial in which Gillispie was not provided with the

      Brady material would be as unconstitutional as the old judgment and

      Gillispie would be entitled to file a new petition for writ based on the

      retrospective portion of the judgment entirely apart from this Court’s

      authority vel non to make its prior writ unconditional.

Gillispie v. Timmerman-Cooper, S.D. Ohio No. 3:09-cv-471, 2013 WL 526481, *4 (Feb.
                                                                                         -12-


11, 2013). The district court concluded that, “even if the Sixth Circuit completely agrees

with the State on the prospective aspect of the judgment, it seems very unlikely it would

hold that this Court [the district court] abused its discretion in refusing to vacate the

retrospective portion of the judgment.” Id. at *5.

       {¶ 19} The State did not appeal any part of the denial of its motion for stay pending

appeal.

       {¶ 20} In November 2014, the Sixth Circuit affirmed the district court’s denial of the

State’s Fed.R.Civ.P. 60(b) motion, albeit on other grounds. It agreed with the district

court that the decision granting the conditional writ was not void, but it found that “the

district court’s assertion of a prospective interest in the conditional writ’s enforcement

[was] flatly inconsistent with our decision in Eddleman [v. McKee, 586 F.3d 409 (6th

Cir.2009)].”   Gillispie v. Warden, London Correctional Inst., 771 F.3d 323, 328 (6th

Cir.2014). The Sixth Circuit further noted that the district court was without jurisdiction

to “decide the preclusive effect of its order for purposes of ongoing proceedings in the

Ohio courts.” Id. at 330. However, addressing the equities of the situation, the Sixth

Circuit found no basis to vacate the district court’s decision. The circuit court commented

that, although the conditional writ had become moot, the State had “slept on its rights”

when it failed to seek vacation of the decision in its first appeal, and the appellate court

saw “no particular reason why a vacatur of [the district court’s] order would serve the

public interest here.”

       {¶ 21} After the Sixth Circuit’s ruling, the common pleas court sought additional

briefing on the preclusive effect of the conditional writ.

       {¶ 22} On November 30, 2015, the trial court granted Gillispie’s motion to dismiss
                                                                                         -13-


the indictment. The court accepted, “as it must,” the federal district court’s findings of

fact in the conditional writ, and held that the doctrine of res judicata prevented the court

from “relitigating [the district court’s] conclusions of fact and law delineated in [its]

December 15, 2011 Conditional Writ – the Supplemental Reports not only existed, they

were material pursuant to Brady. And thus Gillispie cannot be retried because, as the

State admits, the State does not have the Supplemental Reports and cannot produce

them.” (Emphasis in original.) The trial court reasoned:

              Simply stated, Judge Merz’s Conditional Writ is “a final judgment or

       decree rendered on the merits by a court of competent jurisdiction [and] is

       a complete bar to any subsequent action on the same claim between the

       same parties or those in privity with them.” Of course the State of Ohio

       here and the Warden as Respondent before Judge Merz are in clear privity,

       having the exact same goal: defeating Gillispie’s Brady claim. And Judge

       Merz’ Conditional Writ was clearly a final judgment from a court of

       competent jurisdiction.

              As stated above, Ohio courts have held consistently that issue

       preclusion applies with respect to federal habeas decisions and subsequent

       state court retrial proceedings, thereby prohibiting the relitigation of issues

       already decided in the federal habeas litigation. And so it must be here.

              And as noted by the Second District in Slagle, this Court could not

       relitigate Judge Merz’ conclusions that the Supplemental Reports existed

       and were material per Brady even were this Court to believe Judge Merz’

       decision was reached in error. Were the law otherwise, federal habeas
                                                                                             -14-


       relief and the doctrine of collateral estoppel would be eviscerated and the

       Supremacy Clause turned on its head.

              This Court acknowledges that the State’s tactical decision to eschew

       filing with the State court affidavits contradicting those of Dets. Bailey and

       Fritz in order to establish that the Supplemental Reports never existed is

       odd. But the State made precisely that tactical decision and pursued only

       its formalistic, legal argument that Gillispie’s affidavits did not establish a

       Brady violation as a matter of law. Judge Merz now has ruled otherwise –

       a ruling binding upon this Court.

(Emphasis in original.)

       {¶ 23} The State appeals from the trial court’s judgment.

                                    II. Issues on Appeal

       {¶ 24} The State’s sole assignment of error states that the trial court abused its

discretion in dismissing the indictment, and it offers several arguments to support its

position.

       {¶ 25} First, it states that the federal district court lost jurisdiction over the retrial

once the state court vacated Gillispie’s conviction in 2012. The State argues that the

conditional writ issued in December 2011 became “superfluous and of no force or effect.”

       {¶ 26} Second, the State asserts that the district court addressed an issue that was

not addressed by the state courts, namely whether the supplemental police reports

actually existed, and thus collateral estoppel does not apply to the district court’s factual

findings. As a corollary argument, the State asserts that State v. Slagle, 2d Dist.

Montgomery No. 23934, 2012-Ohio-1575, is inapposite, because the retrial in Slagle
                                                                                         -15-


occurred pursuant to the writ of habeas corpus, not a state court mandate.

       {¶ 27} Third, the State claims that, even if the supplemental reports exist (a fact

that the State disputes), the appropriate remedy was “a new trial at which Appellee

possessed the information he asserts was withheld in 1991,” not dismissal of the

indictment. (Emphasis added.) The State argues that Gillispie has that information

already.

       {¶ 28} Gillispie responds that the district court’s judgment granting the conditional

writ is a valid judgment, which the trial court was bound to follow, pursuant to the

Supremacy Clause. Alternatively, he asserts that, even if the Supremacy Clause did not

apply, res judicata would prevent the State from challenging the federal district court’s

decision that Gillispie could not be retried without the State’s turning over the

supplemental reports. Gillispie emphasizes that the district court had jurisdiction to issue

its original judgment granting the conditional writ and subsequent orders, that the parties

fully litigated the Brady issue in federal court and the State chose not to challenge the

existence of the supplemental reports, and that a hearing was not required for res judicata

to apply.

    III. Preclusive Effective of District Court Decision Granting Conditional Writ

       {¶ 29} The ultimate issue in this case is whether the trial court erred in dismissing

the indictment against Gillispie due to the State’s not providing the supplemental police

reports, i.e., Brady material, to Gillispie. However, because the trial court’s reasons for

granting the motion to dismiss were based substantially on the district court’s December

15, 2011 decision granting a conditional writ to Gillispie, we necessarily focus (as did the

parties) on the district court decision and whether it had any preclusive effect in state
                                                                                             -16-


court. The Sixth Circuit expressly declined to state an opinion on this matter and noted

that the district court did not have jurisdiction to decide the preclusive effect in state court.

Gillispie, 771 F.3d at 330.

       {¶ 30} “[U]nder our federal system, the States possess sovereignty concurrent with

that of the Federal Government, subject only to limitations imposed by the Supremacy

Clause.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990).

Consequently, state and federal courts generally have concurrent jurisdiction to

adjudicate claims arising under federal law, including claims raised pursuant to the United

States Constitution in criminal cases. In reaching their determination of federal law

issues, state courts generally are not bound by decisions of federal courts with respect to

federal law, except for decisions of the United States Supreme Court. See Reed v.

Farley, 512 U.S. 339, 358, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (Scalia, J., concurring

in part and in judgment) (The United States Supreme Court “and not individual federal

district judges, has appellate jurisdiction, as to federal questions, over the supreme courts

of the States.”).

       {¶ 31} The power of the federal courts on habeas corpus is not a grant of appellate

review of state court decisions by federal district courts, but rather provides a mechanism

for incarcerated offenders to challenge their incarcerations as violative of federal law. As

stated by the United States Supreme Court:

       The whole history of the writ -- its unique development -- refutes a

       construction of the federal courts’ habeas corpus powers that would

       assimilate their task to that of courts of appellate review. The function on

       habeas is different. It is to test by way of an original civil proceeding,
                                                                                          -17-


       independent of the normal channels of review of criminal judgments, the

       very gravest allegations. State prisoners are entitled to relief on federal

       habeas corpus only upon proving that their detention violates the

       fundamental liberties of the person, safeguarded against state action by the

       Federal Constitution.

Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled

on other grounds.

       {¶ 32} State prisoners may collaterally attack either the imposition or execution of

their sentences under 28 U.S.C. 2254. A state offender generally is required to exhaust

a constitutional claim in state court before he or she can raise that same issue in a petition

for a writ of habeas corpus in federal court. 28 U.S.C. 2254(b)(1)(A).

       {¶ 33} Pursuant to 28 U.S.C. 2254(a), a district court “shall entertain an application

for a writ of habeas corpus in [sic] behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” The federal court may grant a writ of habeas

corpus “with respect to any claim that was adjudicated on the merits in State court

proceedings” if the state court’s adjudication either (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. “If, after carefully weighing all the reasons for

accepting a state court’s judgment, a federal court is convinced that a prisoner’s custody

* * * violates the Constitution, that independent judgment should prevail.” Williams v.
                                                                                           -18-

Taylor, 529 U.S. 362, 389, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

       {¶ 34} Gillispie raised one ground for relief in his petition for a writ of habeas

corpus: “The State’s failure to disclose to the defense, prior to or during trial, supplemental

reports written by the original investigating detectives, which eliminated Petitioner as a

suspect, violated Petitioner’s due process rights pursuant to Brady v. Maryland. U.S.

Const. amend V, XIV.” (Emphasis added.) Gillispie’s argument to the district court was

that “there were reports that existed but which the State did not disclose and which

completely contradicted Det. Moore’s and the State’s theory of the case.” (Emphasis

added.) Gillispie, 835 F.Supp.2d at 503-504.

       {¶ 35} The State argued in response that (1) Gillispie’s petition was barred by the

Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitations, (2) “there is

no Brady violation where a defendant knew or should have known the essential facts

permitting him to take advantage of any exculpatory information or where the evidence is

available from another source because in such case, there is really nothing for the

government to disclose,” (3) the reports were not material, and (4) even if the reports were

material, “the State did not need to disclose the supplemental reports because Mr.

Gillispie had access to the information via alternative sources, to wit: Det. Fritz.”

(Emphasis added.) Id. at 504-505.

       {¶ 36} The district court’s December 15, 2011 decision concluded that “[t]he state

courts’ determination that the evidence in question [the supplemental police reports] is

not material is both an unreasonable determination of the facts in light of the evidence

presented to those courts and an objectively unreasonable application of Brady and its

progeny.” Id. at 509. As a remedy, the court ordered Gillispie to be released unless he
                                                                                             -19-


were again convicted at a trial commencing not later than July 1, 2012. The district court

did not expressly state that the State was required to produce the supplemental police

reports prior to any retrial, but that requirement was arguably implicit in the district court’s

ruling.

          {¶ 37} The Sixth Circuit determined that the district court lost jurisdiction over the

habeas case once this court vacated Gillispie’s conviction and sentence in 2012.

Gillispie, 771 F.3d at 330. It expressly stated that the district court could not “continue

to enforce the terms of a conditional writ after the petitioner is no longer in custody

pursuant to an unconstitutional judgment.” Id. at 329.

          {¶ 38} The State asserts that the district court’s lack of authority to enforce,

supervise, oversee, or interfere with any retrial in state court also means that the district

court’s underlying analysis for granting the writ also has no effect. In fact, it argues that

this case should again be governed by our July 2009 determination that no Brady violation

had occurred. We disagree.

          {¶ 39} The fact that the district court can no longer enforce its remedy does not

render the entire December 15, 2011 decision a nullity. As recognized by the Sixth

Circuit, the district court had subject matter jurisdiction to grant the conditional writ at the

time it was issued, and because both the district court and the Sixth Circuit denied the

State’s effort to vacate the district court decision pursuant to Fed.R.Civ.P. 60(b), the

district court’s decision remains a valid judgment.          Accordingly, the district court’s

determination that the State’s failure to provide the supplemental police reports to the

defense violated Gillispie’s due process rights pursuant to Brady remains in effect.

          {¶ 40} In addition to the inherent relationship between state and federal courts in
                                                                                          -20-


habeas proceedings, the doctrine of collateral estoppel can be invoked to preclude

relitigation, in state court, of issues addressed by a federal district court in a habeas

proceeding.3 See State v. Slagle, 2d Dist. Montgomery No. 23934, 2012-Ohio-1575.

“The doctrine of collateral estoppel, or, more correctly, issue preclusion, precludes further

action on an identical issue that has been actually litigated and determined by a valid and

final judgment as part of a prior action among the same parties or those in privity with

those parties.” State v. Williams, 76 Ohio St.3d 290, 294, 667 N.E.2d 932 (1996).

       {¶ 41} The district court addressed Gillispie’s Brady claim following this court’s

denial of his Brady claim in state post-conviction proceedings. The district court had

jurisdiction to enter its December 15, 2011 decision granting habeas relief, and there is

no question that there is mutuality and privity of the parties, despite the nominal difference

in party names. See Slagle at ¶ 42.

       {¶ 42} Because the district court’s habeas ruling was not vacated, we cannot

simply ignore the district court’s conclusion that the State’s failure to produce the

supplemental police reports violated Gillisipie’s due process rights pursuant to Brady.

       {¶ 43} The State also asserts that Slagle does not require the application of

collateral estoppel in this case. In Slagle, an attorney was charged with theft of a large

sum of money from a law firm. He waived his right to a jury trial and elected to be tried

before a particular judge. The case proceeded to a bench trial before that judge, but the

judge died before rendering a verdict. Upon motion by the State, another judge declared



3
 We often speak in terms of “res judicata,” rather than “collateral estoppel” and “estoppel
by judgment,” as the doctrine of res judicata encompasses both collateral estoppel (issue
preclusion) and estoppel by judgment (claim preclusion). Grava v. Parkman Twp., 73
Ohio St.3d 379, 381, 653 N.E.2d 226 (1995).
                                                                                         -21-


a mistrial. The attorney then sought dismissal of the indictment on double-jeopardy

grounds, claiming that a verdict could have been rendered by another judge based on the

audiovisual record of the trial and written arguments of the parties, and thus there was no

manifest necessity for a mistrial. The trial court denied the motion.

       {¶ 44} Slagle then filed a habeas corpus action in federal court. The district court

granted Slagle a conditional writ, ordering that “Slagle shall be discharged from further

responding to the Indictment unless the Common Pleas Court renders a decision on the

video record already created not later than 180 days from the date judgment is entered

in this matter.” Pursuant to the conditional writ, the common pleas court reviewed the

video record, and Slagle was convicted. Slagle appealed.

       {¶ 45} On review of his conviction, we disagreed with the federal district court’s

conclusion that Ohio law permitted Slagle to be convicted based on an audiovisual record.

Rather, we concluded that “a successor judge in a bench trial, absent the consent of the

parties, may not render a verdict in a bench trial based solely upon a review of an

audiovisual recording of the trial.” Slagle at ¶ 40.

       {¶ 46} Nevertheless, we held that collateral estoppel precluded relitigation of the

district court’s order. We stated: “The State was surely bound by the federal court order

in Slagle’s habeas corpus proceeding; had the common pleas court failed to render a

verdict in the manner prescribed by, or within the time limit prescribed by, the federal

order, the State could not have continued to incarcerate Slagle in defiance of the federal

court’s order.” Slagle at ¶ 42.

       {¶ 47} Slagle focused on the remedy provided in the district court’s conditional writ

of habeas corpus, whereas this case concerns the district court’s holding on the
                                                                                            -22-

underlying constitutional and factual questions.        Despite these differences, Slagle’s

general holding that the principles of collateral estoppel bar relitigation of issues decided

in a district court’s habeas ruling is applicable to both circumstances. Although the

district court has lost its jurisdiction to enforce the prospective aspect of its December 15,

2011 decision due to our vacation of Gillipsie’s conviction and sentence, the doctrines of

collateral estoppel and federal supremacy continue to govern the State’s ability to

relitigate, in state court, the district court’s factual findings and its holding on the Brady

constitutional issue. Those matters have been decided and cannot be relitigated.

       {¶ 48} The State claims that collateral estoppel should not apply to the district

court’s factual findings, because the issue of the existence of the alleged supplemental

police reports was not before the district court, and the district court’s factual findings were

based on a mistaken impression that this appellate court had factually found that the

reports existed. The State further asserts that, in 2008, it was not required to submit

evidence opposing Gillispie’s assertion that supplemental reports had been prepared.

Gillispie responds that the State had ample opportunity to present evidence that the

supplemental reports did not exist, and that it made a strategic decision not to present

evidence on this issue.

       {¶ 49} The district court’s December 15, 2011 decision unequivocally found that

the supplemental police reports existed. In summarizing the evidence before it, the

district court stated that “Det. Bailey prepared supplemental reports describing the events

involving Mr. Wolfe, their investigation of Mr. Gillispie, their elimination of Mr. Gillispie as

a suspect, and their reasons therefor.”

       {¶ 50} The district court addressed Gillispie’s Brady claim based on the
                                                                                          -23-


documentary evidence that was before the state court.          As stated above, Gillispie’s

ground for habeas relief was that the State failed to produce supplemental police reports

that had been prepared by Detectives Bailey and Fritz. Bailey and Fritz had provided

affidavits attesting to the existence of those reports. The State’s response to Gillispie’s

2008 petition for post-conviction relief and motion for a new trial included numerous

exhibits.    Attached to the opposition memorandum itself was (1) a table comparing

characteristics of the rapist, as reported, and Gillispie, (2) an affidavit from Detective

Moore, which addressed, among other things, Moore’s investigation into the Kentucky

campground records, which was one aspect of Gillispie’s Brady claim, (3) a cover letter

from the Kentucky Department of Agriculture regarding the campground records, (4) three

campground receipts, and (5) a copy of Gillispie’s motion to produce Brady material.

(State’s Response, filed Apr. 25, 2008)       The State also filed two appendices to its

opposition memorandum with 27 documents.            On July 3, 2008, the State moved to

supplement its response with an additional affidavit from Wade Lawson, a former

employee of the Dayton Police Department;4 that motion was denied on July 9, 2008, in

the same judgment that overruled Gillispie’s motion for a new trial and for post-conviction

relief.

          {¶ 51} The record indicates that the State provided evidence opposing certain

aspects of Gillispie’s motion for a new trial and for post-conviction relief, particularly the

investigation into the Kentucky campground, but not the existence or nonexistence of the

supplemental police reports. Based on the record in this case, the district court and the



4
  In our July 24, 2009 opinion, we incorrectly stated that Gillispie had moved to
supplement his motion with an affidavit by Lawson.
                                                                                              -24-


trial court concluded that the State could have contested, but elected not to contest, the

existence of the supplemental police reports.

       {¶ 52} In addition, we find nothing in the district court’s December 15, 2011

decision to indicate that the district court’s finding was based on a mistaken impression

that the state courts had concluded that the supplemental reports exist. Although the

district court thoroughly discussed our 2009 opinion (not to mention the entire procedural

history of Gillispie’s Brady claim) prior to conducting its habeas review of the Brady issue,

the district court did not state that the state courts found that the supplemental reports

existed.   Rather, the district court prefaced its factual findings with the phrase, “the

evidence in this case established.”         The district court’s language indicates that it

reviewed the evidence before the state courts and made findings of fact based on that

record.

       {¶ 53} Regardless, if the State wished to contest the legal or factual conclusions

of the district court’s decision granting a conditional writ of habeas corpus to Gillispie, the

appropriate avenue to challenge the district court’s ruling was an appeal to the Sixth

Circuit. The State’s voluntary dismissal of its appeal of the December 15, 2011 decision

constituted a waiver of any challenge to the conclusions reached by the district court.

       {¶ 54} Next, the State asserts that the district court’s December 15, 2011 decision

did not state that the State was required to provide the supplemental police reports in

order to retry Gillispie. The State argues that the December 15, 2011 decision – and

Brady ̶ simply require the State provide the necessary information. Gillispie counters

that all of the district court’s rulings are entitled to collateral estoppel effect, and that both

the original decision granting the conditional writ and the district court’s subsequent
                                                                                           -25-


February 2013 decision make clear that the State could not retry Gillispie without

producing the supplemental police reports.

       {¶ 55} The December 15, 2011 decision could be read as having some ambiguity

regarding whether disclosure of the reports, or simply the information in the reports, was

required to be produced in order for the State to retry Gillispie. Gillispie asked the district

court to find that the failure to disclose the supplemental reports written by the original

investigating detectives violated Brady. See Gillispie, 835 F.Supp.2d at 494 (Petitioner’s

Ground for Relief 1).      The district court concluded that the ground for relief was

meritorious, but it specifically found that Gillispie was denied his right to due process, as

interpreted in Brady, “to be apprised of all material exculpatory and impeachment

information which the State holds.” (Emphasis added.) Id. at 509.

       {¶ 56} The district court’s February 11, 2013 decision, however, clarified that the

retrospective portion of its December 15, 2011 decision required the production of the

supplemental reports themselves. The district court expressly stated that the evidence

in question, i.e. the supplemental reports, was Brady material and that Gillispie could not

be constitutionally convicted upon retrial without production of that material. Indeed, the

district court made clear that it considered the Brady violation to be “incurable” in that the

State could not retry Gillispie unless it produced the supplemental reports.

       {¶ 57} This clarification was also binding on the state trial court. The Sixth Circuit

has held that a district court cannot materially amend its judgment after the State has

released a petitioner, and that a habeas court does not maintain “continuing supervision

over a retrial conducted pursuant to a conditional writ granted by the habeas court.” Girts

v. Yanai, 600 F.3d 576, 582 (6th Cir.2010), quoting Pitchess v. Davis, 421 U.S. 482, 490,
                                                                                               -26-


95 S.Ct. 1748, 44 L.Ed.2d 317 (1975). However, the Sixth Circuit has stated that a

district court has jurisdiction to “clarify” the scope of the court’s writ. See id. (district court

could clarify whether the unconditional writ permitted retrial), discussing Satterlee v.

Wolfenbarger, 453 F.3d 362 (6th Cir. 2006).

       {¶ 58} In Girts, the district court entered an unconditional writ of habeas corpus,

which ordered the State to release the defendant. After the State complied with the order

(the defendant was released, thus the writ had become moot and the district court lost

any prospective interest in its enforcement), the State requested a finding on whether it

could retry the defendant. The following day, the district court clarified its order granting

the unconditional writ of habeas corpus, concluding that retrial was permitted. The Sixth

Circuit held that the district court had jurisdiction to clarify what was meant by its

unconditional writ. Girts at 581-582. The court emphasized that “a district court sitting

in habeas has jurisdiction to consider the circumstances that exist up until either the state

complies with a conditional writ or the court issues an unconditional writ, but does not

have jurisdiction to consider circumstances that unfold after the state complies with the

writ.” Id. at 582.

       {¶ 59} Here, as with the clarification decision in Girts, the district court’s February

11, 2013 decision was rendered after the defendant was no longer confined by the State

due to an unconstitutional judgment. Nevertheless, the district court’s February 11, 2013

decision related to whether the State could retry Gillispie without production of the

supplemental police reports, a matter that the December 15, 2011 decision arguably left

as ambiguous.        As in Girts, the district court made this clarification in response to

arguments by the State relating to the scope of the conditional writ.
                                                                                         -27-


       {¶ 60} In our view, the district court was permitted to clarify its December 15, 2011

decision to indicate whether production of supplemental police reports themselves or

simply the information contained within them was required. We emphasize the district

court’s clarification related to circumstances that existed up until the state complied with

the conditional writ, and not with circumstances that unfolded after Gillispie’s conviction

and sentence were vacated. The district court clarified, as opposed to modified, the

retrospective portion of its December 15, 2011 decision as it related to whether production

of the reports was required.

       {¶ 61} In short, we reject the State’s suggestion that our 2009 decision is now the

controlling law of the case regarding the alleged Brady violations.         The trial court

correctly concluded that it was required to follow the federal district court’s December 15,

2011 habeas decision (as clarified by its February 11, 2013 decision), which concluded

that the State’s failure to produce the supplemental police reports violated Brady and

rendered Gillispie’s confinement unconstitutional. The State cannot relitigate the district

court’s legal conclusions or factual findings. The trial court correctly interpreted the

district court’s December 15, 2011 decision as requiring the State to produce the actual

supplemental police reports, and not just the information contained within them.

                               IV. Dismissal of the Indictment

       {¶ 62} Finally, the State asserts that dismissal of the indictment was not the

appropriate remedy for the Brady violation, because it was not demonstrated that Gillispie

could not still receive a fair trial absent production of the supplemental police reports.

The State contends, citing State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38

N.E.3d 870, that the parties should have been given the opportunity to develop the record
                                                                                         -28-


before dismissal of the indictment.

       {¶ 63} We review the trial court’s dismissal of the indictment for an abuse of

discretion. Keenan at ¶ 7. “A trial court abuses its discretion when it makes a decision

that is unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a

situation in which a trial court did not engage in a ‘sound reasoning process.’ Abuse-of-

discretion review is deferential and does not permit an appellate court to simply substitute

its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966, 986 N.E.2d 971, ¶ 34.

       {¶ 64} The Ohio Supreme Court has held that “[a] trial court must inquire into the

circumstances surrounding a discovery rule violation and, when deciding whether to

impose a sanction, must impose the least severe sanction that is consistent with the

purpose of the rules of discovery.” Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d

1138 (1987), paragraph two of the syllabus. This holding applies equally to discovery

violations committed by the State and by the defense. State v. Darmond, 135 Ohio St.3d

343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 42.

       {¶ 65} In Keenan, the defendant was found guilty of murder in 1989 and sentenced

to death. The Ohio Supreme Court reversed the conviction based on prosecutorial

misconduct at trial, State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993), and

Keenan was again convicted and sentenced to death upon retrial. In 2012, after a “long

and complex history,” the federal district court granted Keenan a writ of habeas corpus

due to Brady violations.    The district court ordered the State to set aside Keenan’s

conviction or conduct another trial within 180 days.

       {¶ 66} Keenan subsequently filed a motion to dismiss in the trial court, which the
                                                                                          -29-


trial court granted, stating, “In light of the State’s egregious prosecutorial misconduct and

the Brady violations in Keenan’s prior two trials, Keenan cannot receive the fair and

Constitutional trial that he is entitled to today.” The court indicated that the case was

“unique and extraordinary * * * where the prejudice created cannot be cured by a new

trial.” The Eighth District affirmed the dismissal of the indictment.

       {¶ 67} The Supreme Court of Ohio reversed. In doing so, the supreme court

emphasized that “[t]he issue in this case is not whether Keenan’s rights have been

violated—they have been, and that is why the district court granted the writ of habeas

corpus. The issue is whether, given those violations, it is possible for Keenan to receive

a fair trial. Obviously, this is a highly subjective determination, requiring the analysis of

a voluminous record with appropriate adjustments for the absence of certain key

witnesses who are now unavailable because they have died.” Keenan, 143 Ohio St.3d

397, 2015-Ohio-2484, 38 N.E.3d 870, at ¶ 8. The Court found that the dismissal of the

indictment was premature, reasoning that the parties should have been given the

opportunity to develop the record on whether Keenan could receive a fair trial.

       {¶ 68} The Court’s opinion addressed an argument by Keenan at oral argument

that the absence of a witness would be detrimental to his efforts to defend himself, stating:

              That something is hard to do does not mean that it is unconstitutional.

       We understand that Keenan will have difficulties based on the passage of

       time, deceased witnesses, decreased memories, and so forth. But so will

       the state; for example, the late Mr. Espinoza [the focus of Keenan’s

       argument] was the state’s sole source of direct eyewitness testimony about

       Klann’s murder. In the event that these difficulties render it impossible for
                                                                                          -30-


       Keenan to defend himself, the trial court can at that time determine that a

       fair trial is not possible. But that day, if it comes, is in the future -- at a

       minimum, after it is determined whether the state is able to establish its case

       in chief.

              In so holding, we reject the state’s argument that because the Brady

       violations led to the granting of the writ of habeas corpus, they cannot also

       serve as the basis of a dismissal with prejudice. It is possible for a Brady

       violation (or other type of discovery abuse) to be so severe, so detrimental

       to the interests of justice that it can be the basis for the granting of a great

       writ and for the subsequent granting of a motion for dismissal.

Id. at ¶ 11-12.

       {¶ 69} We do not find Keenan to be controlling in the case before us. Keenan

includes only an abbreviated factual and procedural history, which limits its usefulness in

determining whether the trial court, in this case, abused its discretion in dismissing the

indictment.   Although, as here, the basis for the district court’s granting Keenan a

conditional writ of habeas corpus was a Brady violation, Keenan contains no discussion

of the nature of the Brady violation and whether the violation had been rectified in some

way prior to retrial. The State’s argument before the Ohio Supreme Court seemed to

suggest that the trial court’s dismissal of the indictment was due to the State’s past failure

to provide the Brady material, not on a present inability or failure to provide it. And, the

Supreme Court’s opinion appears to focus on whether Keenan could receive a fair trial

despite challenges mainly caused by the significant passage of time since the offense,

holding that the parties must be given the opportunity to further develop the record before
                                                                                            -31-

dismissing the indictment on that basis, not on a present failure to comply with Brady.

           {¶ 70} Keenan stands for the proposition that a trial court errs in finding that a

defendant cannot receive a fair trial without providing the parties an opportunity to develop

the record on that issue. Here, the district court determined that the State violated

Gillipsie’s right to due process and denied Gillispie a fair trial when it failed to produce the

supplemental police reports. The district court’s decision granting the conditional writ,

as later clarified, expressly found that the reports existed and held that the State’s failure

to provide those supplemental police reports would necessarily preclude a fair trial upon

retrial.    The trial court provided the parties ample opportunity to present arguments

concerning the preclusive effect of the district court’s judgment, particularly in light of the

State’s statement that it could not produce the supplemental police reports. To the

extent that Keenan applies, the trial court complied with Keenan’s requirement that the

parties be given an opportunity to develop a record on whether Gillispie could obtain a

fair trial upon retrial; for purposes of this case, that issue depended substantially on

whether the district court’s December 15, 2011 decision, in whole or in part, was required

to be followed.

           {¶ 71} We also note that, to the extent that Keenan discussed the impact of the

Brady violation, it commented that a Brady violation could form the basis for granting a

motion for dismissal. In this respect, Keenan is favorable to Gillispie, not the State.

           {¶ 72} We are mindful that “once the petitioner’s criminal judgment was vacated,

‘[t]he responsibility of ensuring that he received not only a fair trial, but a timely one, then

passed to the [state trial court] in the first instance.’ ” Gillispie, 771 F.3d at 329, quoting

Eddleman, 586 F.3d at 413. However, as discussed above, the state courts remain
                                                                                           -32-


bound by the district court’s conclusion, on habeas review, that Gillispie could not receive

a fair trial without production of the supplemental police reports. In light of the district

court’s conclusion and because the State has conceded that it cannot produce the

supplemental police reports, as required by the district court, the trial court did not abuse

its discretion in dismissing the State’s indictment against Gillispie.

                                       V. Conclusion

       {¶ 73} To summarize, the trial court correctly determined that it was required to

follow the federal district court’s determination, upon habeas review, that a Brady violation

had occurred due to the State’s failure to produce supplemental police reports to Gillispie.

It is not legally relevant whether we now agree or disagree with the district court’s holding

that our 2009 opinion invoked an “unreasonable determination of the facts in light of the

evidence presented” and an “objectively unreasonable application of Brady and its

progeny.” The State cannot relitigate whether the supplemental police reports existed

and whether the State’s failure to produce the supplemental reports constituted a Brady

violation.

       {¶ 74} Moreover, the district court clarified the retrospective portion of its decision

granting the conditional writ, stating that Gillispie could not be constitutionally convicted

of the offenses without production of the supplemental police reports themselves; the

district court had authority to clarify its prior ruling in this respect, despite the fact that

Gillispie’s conviction and sentence had been vacated. The trial court properly afforded

the clarification preclusive effect. In light of the State’s statement that it cannot produce

the supplemental police reports, as required by the district court, the trial court did not

abuse its discretion in dismissing the indictment against Gillispie.
                                                                                       -33-




      {¶ 75} The State’s assignment of error is overruled. The trial court’s judgment will

be affirmed.

                                       .............

FAIN, J., concurs.

HALL, J., concurs in judgment.


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