                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0080p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                               X
                                                -
 RICHARD MILLER,
                                                -
                            Petitioner-Appellant,
                                                -
                                                -
                                                     No. 09-3151
          v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 TIMOTHY BRUNSMAN, Warden,
                                                -
                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Cincinnati.
              No. 07-00733—Michael R. Merz, Magistrate Judge.
                                  Argued: March 3, 2010
                           Decided and Filed: March 24, 2010
             Before: MARTIN, ROGERS, and McKEAGUE, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Nicole Lynn Rutter-Hirth, RION, RION & RION, Dayton, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee. ON BRIEF: Jon Paul Rion, RION, RION & RION, Dayton, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
     ROGERS, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
MARTIN, J. (pp. 15-17), delivered a separate concurring opinion.
                                   _________________

                                         OPINION
                                   _________________

        ROGERS, Circuit Judge. Richard Wayne Miller, convicted by an Ohio jury of
aggravated murder and aggravated robbery in connection with the March 2002 slaying of
Paul Brown, appeals the denial of his petition for a writ of habeas corpus. Miller argues that
the state courts violated his constitutional right to present a defense by excluding evidence


                                              1
No. 09-3151         Miller v. Brunsman                                                  Page 2


that a third party, Scottie Guenther, had robbed and killed Brown. Because the evidence
Miller proffered in support of his third-party perpetrator defense failed to show a sufficient
nexus between Guenther and the Brown murder, and because the state courts’ weighing of
the probative value of the evidence against its tendency to confuse the issues or mislead the
jury was a reasonable application of clearly established federal law, Miller is not entitled to
the habeas relief he seeks.

                                              I.

        The Court of Appeals of Ohio, on direct appeal, summarized the criminal case
underlying this habeas petition:

                On March 27, 2002, the body of 33-year-old Paul Brown was
        discovered lying face down in Two Mile Creek behind an apartment
        complex in the city of Hamilton, Ohio. Brown had been stabbed 14 times
        and his throat had been deeply slit from ear to ear. His wallet was found
        some distance downstream, his front pants pockets had been turned out, and
        $7.07 was found in his rear pants pocket.
                On May 26, 2004, [Miller] was indicted on one count of aggravated
        murder in violation of R.C. 2903.01(B) with two robbery specifications
        pursuant to R.C. 2929.04(A)(3) and 2929.04(A)(7), and one count of
        aggravated robbery in violation of R.C. 2911.01(A)(3). [Miller] entered a
        plea of not guilty on all charges. On February 8, 2005, following a seven-
        day trial, the jury returned a guilty verdict on the aggravated murder and
        aggravated robbery charges, including one of the robbery specifications.
        [Miller] was subsequently sentenced to life in prison without the possibility
        of parole.

State v. Miller, No. CA2005-02-048, 2006 WL 1519602, at *1 (Ohio Ct. App. June 5, 2006).

        The victim, Paul Brown, was last seen alive on Saturday, March 23, 2002. See id.
at *2. After attending a family birthday party, relatives had dropped him off at a bar called
BW3’s around 9:30 p.m. Id.

        Video surveillance placed Brown at a nearby Meijer store where he
        withdrew $50 from an ATM at approximately 10:00 p.m. . . . [T]he forensic
        pathologist who performed Brown’s autopsy[] opined that Brown may have
        died anywhere from the late hours of Saturday, March 23[,] to Monday,
        March 25. However, . . . Brown probably died before Monday.

Id.
No. 09-3151         Miller v. Brunsman                                                   Page 3


        As a substantial part of his defense at trial, Miller had planned to present evidence
that a third party, Scottie Guenther, had actually robbed and killed Brown. The defense
called as its first witness Tamara Holcomb, who had dated Guenther for about two-and-one-
half weeks in mid-March 2002. After Holcomb testified regarding her drug habits and those
of Guenther during that period, the State objected to the relevance of her testimony. The
court overruled the State’s objection. Holcomb then resumed her testimony, explaining that
Guenther had been unemployed in March 2002 and “would hustle people out of their
money” to support his drug habit; that he had been “out of control” when using or seeking
out drugs; that, while they were both on drugs at a crack house on Heaton Street in Hamilton,
Guenther had attacked a woman, “pull[ing] a knife up on her and thr[o]w[ing] her up against
the wall and h[o]ld[ing] the knife to her throat”; and that there had been another “episode of
violence” between Guenther and a man named JR at the same crack house later that month.

        When the State again objected to Holcomb’s testimony, the parties, at sidebar,
argued at length about the relevance of evidence showing Guenther’s whereabouts, drug
usage, and violent outbursts during March 2002. Defense counsel stated, for example,

        [O]ur next witness is going to say that on the day Paul Brown was found
        missing, demonstrated missing, Guenther was at [Roberta Turner’s crack]
        house and left and came back acting out of character, white face and wet,
        like he had been in a creek, and said I have to get rid of my clothes, and got
        rid of his clothes and threw it in a dumpster . . . .

        However, defense counsel’s arguments did not persuade the court. When defense
counsel asserted, for example, that Guenther’s drug addiction gave him a motive to rob
Brown, the court responded, “That’s true with probably 1,000 people in Hamilton.” The
court also asked, rhetorically, whether anyone could place Guenther at BW3’s, and then
explained:

        These are things we need to know if you are going to take somebody in here
        and say this is a drug addict and on that particular night had wet clothes and
        wanted to get rid of his clothes. That’s not enough, and especially when it
        is at least three miles or four miles away. Heaton Street is about three miles
        away from BW3’s.

The court concluded that defense counsel had not shown a sufficient nexus between
Guenther and the Brown murder to overcome the State’s objection. As a result, the court
No. 09-3151         Miller v. Brunsman                                                Page 4


sustained the objection, struck Holcomb’s testimony from the record, and instructed the jury
not to consider her testimony during their deliberations. At that point, the court excused the
jury for the day and gave defense counsel the opportunity to proffer additional evidence of
Guenther’s involvement in the murder.

        To make the proffer, defense counsel called Detective Cifuentes, the investigating
officer assigned to the case, to question him about several witness statements and the
investigation more generally. Detective Cifuentes confirmed that Guenther had been a
suspect and that police had interviewed him multiple times. Guenther had been named as
a suspect after Timothy Tidwell had called police on March 28, 2002, to report that Guenther
and Holcomb “had gone out on Saturday night, early Sunday morning, and had come back
to his [Tidwell’s] house and had bloody clothes.” Later in the day on March 28, Tidwell had
delivered a bag of clothes to the police, but the clothes had been Holcomb’s, not Guenther’s,
and they had not been stained with blood. Tidwell had explained to police that there were
no stains because Holcomb had washed the clothes, but Detective Cifuentes testified that the
clothes in the bag had smelled bad and were obviously dirty. By March 28, Guenther had
been arrested for an unrelated breaking and entering; after Tidwell’s call, a detective had
gone to the county jail to “inspect [Guenther’s] clothes for the presence of blood” and assess
whether Guenther’s footprints matched those found at the scene of the crime. The detective
had found no blood on Guenther’s clothes or shoes.

        Tidwell also gave a statement on March 28. Tidwell said that when Guenther and
Holcomb had come back to the house late on March 23 or early on March 24, they had said
“they had just made a big score” and “that they had hurt somebody and got their money.”
Tidwell claimed he could not remember what clothes Guenther had been wearing, but
Tidwell could remember having seen blood on Guenther’s gym shoes. Detective Cifuentes
remarked that Tidwell must have remembered what Holcomb had been wearing, because
Tidwell had brought Holcomb’s clothes to the police station on the same day he had given
the statement.

        The police followed up on Tidwell’s statement by taking a statement from Holcomb
on March 29. Detective Cifuentes testified, however, that by the time police had taken
Holcomb’s statement, “we were not feeling that Scottie Guenther was a suspect anymore,
No. 09-3151         Miller v. Brunsman                                                 Page 5


but we still ha[d] to pursue the lead and peruse [sic] the complaint.” In her statement,
Holcomb said she had been hanging around Tidwell’s house for a couple of days, starting
on Wednesday or Thursday night before the weekend that Brown was killed. She also said,
in relevant part, that she had “smoked dope with Tim,” “slept almost all day Saturday, and
Saturday night,” and gone with Tim to visit his mother after waking up on Sunday morning.

        Continuing their proffer, defense counsel read from two statements Guenther had
given to police. In one statement, Guenther said there were rumors he had killed Brown and
that “[i]t was so bad I couldn’t get a girlfriend because they all thought I [had] killed him.”
In the other statement, made six days before the start of Miller’s trial, Guenther said, “I did
not kill Paul Brown. I did not know Paul Brown,” and “I have never told anyone that I have
killed Paul Brown.” Defense counsel noted that police had given Guenther a polygraph.
Detective Cifuentes testified that police had seen the need for a polygraph “because even
after we cleared [Guenther], rumors kept coming to surface and with the rumors coming to
surface with no concrete evidence, we wanted to put to bed once and for all whether or not
he could have been involved, and he was advised of that.”

        Next, defense counsel asked Detective Cifuentes about Cindy Lou Rader’s statement,
taken by police almost a year after the Brown murder. Rader, who claimed to have been
Guenther’s girlfriend, indicated that Guenther had been released from jail on March 8, 2002,
but that police had arrested him at her house on March 26 for a March 20 breaking and
entering. Believing Guenther to be increasingly violent, police had looked for him at
Rader’s house on March 23 and had told her to call them if he resurfaced.

        Before Guenther’s arrest on March 26, Rader had last seen him on the afternoon of
March 23, the same day Brown went missing. According to Rader, that afternoon, Guenther
had taken a pocketknife off a dresser, opened and closed it, and then embraced her and given
her what felt like a goodbye kiss. Guenther had told her, “I’m going to kill somebody”; then
he had left.

        Rader remembered that when Guenther had returned on March 26, he had been
wearing different clothes. While packing, he had told her that “he wanted to go to
Sojourner.” Detective Cifuentes disagreed with defense counsel’s interpretation of what
Rader said Guenther had said next:
No. 09-3151          Miller v. Brunsman                                                  Page 6


         Q       . . . . [H]e makes a strange quote, this is on the 26th, right?
         A.      Yes.
         Q.      And his quote is, he would like to kill twice?
         A.      No, that’s not what this says.
         Q.      Made a strange quote to me and said he would like to kill twice?
         A.      He would like to kill me twice.
         Q.      No.
         A.      In other words, he says it two times.
         Q.      The copy I have has the “me” is [sic] crossed out?
         A.      The “me” is written in.
         Q.      On my copy it’s written—it’s crossed out.

         Rader also stated that a woman named Tanya Holland had told her that Guenther had
killed Brown. Rader recalled that Holland had said, “[Guenther] came to me and Tammy,
and he was all covered in blood and him and J Dog were together and they came to [me]”
and that Guenther had told Holland, “I killed him for ten bucks. All I got was ten bucks.”
Holland had allegedly also told Rader that “Tammy” had cleaned the blood off Guenther and
J Dog.

         To follow up on Rader’s statement, police had taken a statement from Holland.
Holland said Guenther had been at her house before he had gone to Rader’s on March 26.
Holland then described Guenther’s activities during the weekend before his arrest: Guenther
had been at the crack house and “hanging around a guy named L Dog”; Guenther and L Dog
had left for a couple of hours in a car that belonged to one Darryl Hall, without Hall’s
knowledge, although a woman named Amanda had given them permission; Guenther and
L Dog had come back with $10 around 5:00 a.m. and had tried to buy crack from a dealer
named JR; Guenther had then left for Rader’s house. At this point in the proffer, defense
counsel stated, “I would . . . like to indicate that this statement indicates that Scottie
Guenther left and came back with unexplained money.”

         On cross-examination, however, the State pointed out that Holland’s statement
continues:

         Tammy Hatton was not the person that was with me in the room, Amanda
         was. We did not clean up anyone that was bleeding. Scottie never bragged
         to me about killing anybody. I listened to what you read to me from Cindy
         Rader. She is not telling it like I told her. Scottie and J Dog never came to
         me. I never cleaned up anyone that had blood on them. If I had seen Scottie
         come to me with blood on him and I knew he killed somebody, I would have
No. 09-3151         Miller v. Brunsman                                                   Page 7


        turned him in. I like Scottie, but I don’t believe in killing anybody for
        anything, and I would have turned him in . . . .

        Defense counsel also asked Detective Cifuentes about a statement given by
Katherine Powers about a year after the murder. Powers stated that she had talked to Chris
Rutledge, who had told her about an encounter between Travis Wright and Guenther.
Rutledge had told Powers that Guenther had approached Wright wanting to trade a jacket
for cocaine and that Guenther had told Wright “he had just got done beating a guy to death.”

        Rutledge gave his own statement to police at about the same time as Powers.
Rutledge said that Guenther had shown up at Rutledge’s house at some unspecified time; that
Guenther had been “[a]cting wild and crazy”; that he had said he had “just” robbed and beat
up a gay man, cut off the man’s penis, and hidden the man’s body in some woods; and that
he had wanted to sell a Cleveland Brown’s jacket and some other items for drugs. Rutledge
claimed he had learned about the Brown murder while watching television a few days later.

        Defense counsel also introduced the statement of Tyrone Jasper, made almost two
years after the murder. Jasper said Eddie Mack had heard Guenther confess to killing
Brown. Detective Cifuentes testified, however, that a year after Jasper had given the
statement, he had made a second statement, which implicated Miller, not Guenther.
Similarly, although Eddie Mack had told police that “Guenther did it,” Mack later recanted
that statement and implicated Miller.

        Defense counsel concluded their proffer by arguing for the admission of their
evidence:

                 The fact that Scott Guenther is out during the relevant period, which
        is March 8th to March 26th, and he is seen handling a knife on March the
        23rd, the same day that Paul Brown is missing, making expressions of intent
        to kill on that particular day. Coming back on March the 26th and making
        further comments about killing and to his girlfriend who he would—who
        you could consider that he would provide that information to because of
        their relationship, consistent with the fact that during those three days in
        which we can account for Scott Guenther, the proffered evidence in the case
        that he is at a crack house on Heaton Street, and we have identified the
        witnesses at that crack house in the statements, Roberta Turner and Mike
        Sandlin [the apparent proprietors of the crack house], who were in our
        discovery, who are going to testify during that period of time, those three
        days, after he leaves with a knife and says he’s going to kill somebody, and
No. 09-3151       Miller v. Brunsman                                                      Page 8


      he shows up at the house and leaves and comes back a period of hours later
      in a different demeanor than he was when he left, wet, and getting rid of his
      clothes.
               That alters the probabilities of the issue of identity in this case. The
      standard of relevance is low. You had some questions about whether or not
      there would be any connection or sense that Guenther came from Heaton
      Street to the west side and back. We now have evidence that he was in a car
      from the witness statements.
               Whether or not this Scottie Guenther defense is believable or not is
      not an issue for the Court. All you have to do, we submit, is determine
      whether or not the evidence that we could permit, that we would present
      would alter the probabilities.
               Moreover, we have presented evidence that Scottie Guenther would
      have a motive to kill somebody because he is a drug addict. He didn’t have
      a job. That’s already been testified to, and he had to steal and rob and do
      what he could to get his money to satisfy his fixes. There is certainly
      enough relevant evidence here to at least go to the jury, so this man in a
      capital murder case can present a defense.
               And I think one of the more important things that we learned from
      our proffer today is that immediately the day after the body is found the
      Hamilton police have focused on Scottie Guenther. There is a reason for
      that. We just followed it up.

      Nevertheless, the court excluded the Guenther evidence from trial:

              The action that we are here trying is whether the evidence presented
      by the State of Ohio can convince this jury beyond a reasonable doubt that
      Richard Miller committed a crime of aggravated murder and with a
      specification of aggravated robbery.
              ....
              The fact that there were other suspects in this murder and that the
      investigation was conducted by the police department and apparently[,]
      according to the detective[,] that satisfied that there was no evidence linking
      Guenther to the murder of Paul Brown[,] does not mean that all of that
      evidence, which they accumulated, all of a sudden becomes admissible.
              . . . I have found no link . . . between Guenther, the actions on the
      23rd and the 24th and the 25th—to have anything to do with Paul Brown.
              I’m sure there are a lot of crimes that were committed in the City of
      Hamilton during that period of time. The fact that Guenther committed
      some crime and people indicated that he committed some crime and, again,
      I agree with counsel for the prosecution, most of what we have heard today
      ha[s] been chit-chat innuendo, and much of it has been disclaimed by the
      person that ma[d]e[] the statement.
              And presenting that to a jury, in my estimation, absolutely confuses
      the issue. If it is minimally relevant, I think it is still excluded by virtue of
No. 09-3151            Miller v. Brunsman                                                  Page 9


                                       1
        [Evidence Rule] 403(A), which although relevant, evidence is not
        admissible if its probative value is substantially outweighed by the
        danger of unfair prejudice or confusion of the issues, or of misleading the
        jury.
               . . . The fact that there were other suspects and that the defense
        wants to present evidence of other suspects that the police developed, and
        who were eventually cleared, to me, is either not relevant or even
        minimally relevant[, and] is excluded by Evidence Rule 403(A).

        After the case went to the jury, defense counsel made an additional proffer for
the record. Defense counsel indicated that Holcomb’s testimony would have described
in greater detail the “episode of violence” between Guenther and JR, including the fact
that Guenther had put a knife to JR’s throat and attempted to take drugs from JR’s
person. Holcomb also would have testified that on March 23, 2002, Guenther had
threatened to hit her in the face with a beer bottle because he wanted her drugs, and that
she had then taken him to the crack house on Heaton Street. Defense counsel would
have called Roberta Turner to testify that Guenther had frequented her crack house in
March 2002 and that, a few days after the March 20 breaking and entering, Guenther and
Holcomb had come over to the house and then left for a few hours. Upon their return,
Guenther had been “crestfallen and ashen and acting out of character,” “wet from head
to toe,” and had “said he needed to get rid of his clothes because he had been involved
in a crime.” Turner would have testified that she had thrown the wet clothes in a
dumpster and lent him others. Finally, defense counsel would have called Dina Stingley,
who would have testified that in 2003 “Turner had told her all of the things . . . put
forward in this proffer.”

        Miller sought review of his conviction in the Court of Appeals of Ohio, arguing
that the trial court had violated his constitutional right to present a defense by excluding
the Guenther evidence. Miller, 2006 WL 1519602, at *1, *4. The court of appeals
concluded, however, that the trial court had not abused its discretion in finding the
evidence only minimally relevant or in excluding the evidence under Rule 403(A). Id.
at *6. The court of appeals distinguished the United States Supreme Court’s then-


        1
            Ohio Rule of Evidence 403(A) closely resembles Federal Rule of Evidence 403.
No. 09-3151        Miller v. Brunsman                                             Page 10


month-old decision in Holmes v. South Carolina, 547 U.S. 319 (2006), because the trial
court here had not excluded the third-party perpetrator evidence arbitrarily, but rather
had given Miller the opportunity to show a nexus between Guenther and the Brown
murder. Miller, 2006 WL 1519602, at *7. And unlike in Holmes, the trial court’s
exclusion of the evidence was unrelated to the strength of the State’s case; indeed, the
trial court’s decision was based on defense counsel’s failure to demonstrate a sufficient
nexus between Guenther and the murder. Id.

       After the Supreme Court of Ohio declined review, State v. Miller, 854 N.E.2d
1094 (Ohio 2006) (table), Miller petitioned for habeas relief in the Southern District of
Ohio, arguing that he was denied his right to present a defense under the Compulsory
Process and Due Process Clauses. The parties unanimously agreed to proceed before a
magistrate judge, who denied Miller’s request for relief. Because the United States
Supreme Court had decided Holmes before Miller’s conviction became final, the
magistrate judge identified Holmes as clearly established federal law for purposes of this
habeas review. The magistrate judge then concluded that the “Court of Appeals decision
here was not contrary to or an objectively unreasonable application of Holmes because
Holmes confirms the constitutionality of a rule (Fed. R. Evid. 403) which is
substantively identical to the Ohio evidence rule applied in this case.” Nor did the state
courts base their application of Rule 403(A) on an unreasonable determination of the
facts in light of the evidence presented. The magistrate judge observed that “[m]any of
the ‘facts’ suggestive of Guenther’s guilt are not in any way specific to the crime in
question (e.g., motive, drug addiction, presence in Hamilton, Ohio, at the relevant time
period, possession of a knife with threats to use it).” In addition, “[m]any of the facts
are not of evidentiary quality and really consist of leads in police investigations which
proved not to be accurate.” The magistrate judge issued a certificate of appealability and
this appeal followed.
No. 09-3151        Miller v. Brunsman                                            Page 11


                                          II.

       The Court of Appeals of Ohio neither based its review of Miller’s conviction on
an unreasonable determination of the facts in light of the evidence presented, 28 U.S.C.
§ 2254(d)(2), nor unreasonably applied clearly established federal law, id. § 2254(d)(1).
Thus we affirm the denial of Miller’s petition for habeas relief.

       The state courts were not unreasonable in concluding that the evidence Miller
proffered did not show a sufficient nexus between Guenther and the Brown murder. No
witness placed Guenther in the area of BW3’s or Meijer—where Brown was last seen
alive—on the night of March 23, 2002. Indeed, at most, Miller can show that Guenther
was at a crack house in Hamilton that night and had access to a car. Miller asserts that
Guenther had a motive, because Guenther was an addict who stole for his fixes and the
evidence suggests Brown was robbed. But this argument renders Guenther a suspect in
every Hamilton robbery from March 8 to March 26, 2002, without making it any more
likely Guenther committed this particular robbery. Miller also makes much of the fact
that Rader’s testimony put a knife in Guenther’s hands on the day Brown was last seen
alive, but Miller points to no evidence to suggest that the pocketknife Guenther took
from Rader’s house was in fact the murder weapon. Moreover, Holland’s statement that
Guenther left the crack house with L Dog sometime during the weekend before March
26 and returned in the early morning hours with $10 does not mean that Guenther robbed
and killed for the money, let alone that he robbed and killed Brown. And the testimony
that Guenther showed up at the crack house sometime after March 20 “acting out of
character,” “wet from head to toe,” and desiring to dispose of his clothes because he
“had been involved in a crime,” again, does not necessarily lead to the conclusion that
Guenther robbed and killed Brown.

       Miller’s reliance on Guenther’s alleged confessions is also misplaced. For
example, the fact that Guenther allegedly told Rader he was “going to kill somebody”
does not mean that he killed Brown—or anyone else, for that matter. In addition, as
mentioned, Jasper and Mack both retracted their earlier statements that Guenther had
confessed to the crime. And with regard to Rutledge’s statement, Miller acknowledges
No. 09-3151            Miller v. Brunsman                                                       Page 12


on appeal that “there was no evidence that Brown’s penis had been cut off.” This
inconsistency detracts from the probative value of Rutledge’s statement.

         Finally, on a somewhat tangential note, if Guenther were concerned enough
about getting caught to insist that someone dispose of his clothes and shoes, it is unclear
why he would have paraded around to Tidwell’s house, Rutledge’s house, and Roberta
Turner’s crack house immediately after he had allegedly killed Brown. Miller has made
no attempt to reconcile the timing of these visits. Because the evidence fails to show a
significant nexus between Guenther and the murder, the state courts’ exclusion of the
evidence was not based on an unreasonable determination of the facts.

         Nor did the state courts’ exclusion of the evidence result from an unreasonable
application of clearly established federal law.2 The state trial court found the Guenther
evidence, at best, only minimally relevant and excluded the evidence on the basis that
any probative value was substantially outweighed by the danger of confusing the issues
or misleading the jury. Although “prevailing notions of fundamental fairness . . . require
that criminal defendants be afforded a meaningful opportunity to present a complete
defense,” California v. Trombetta, 467 U.S. 479, 485 (1984), a “defendant’s right to
present relevant evidence is not unlimited, but rather is subject to reasonable
restrictions,” United States v. Scheffer, 523 U.S. 303, 308 (1998).

         In Holmes, the United States Supreme Court expressly recognized that “well-
established rules of evidence permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” Holmes, 547 U.S. at 326. The Court cited, as
an example, Federal Rule of Evidence 403. Id. And the Court noted that a “specific
application of this principle is found in rules regulating the admission of evidence
proffered by criminal defendants to show that someone else committed the crime with


         2
          Holmes is clearly established federal law for purposes of this habeas review, because the United
States Supreme Court decided Holmes before Miller’s conviction became final. See Onifer v. Tyszkiewicz,
255 F.3d 313, 316-17 (6th Cir. 2001). Miller’s conviction did not become final until after the Supreme
Court of Ohio declined review in October 2006, see State v. Lynn, 214 N.E.2d 226, 229 (Ohio 1966), five
months after the decision in Holmes. Indeed, the Court of Appeals of Ohio considered and distinguished
Holmes in reviewing Miller’s conviction on direct appeal. Miller, 2006 WL 1519602, at *6-7.
No. 09-3151        Miller v. Brunsman                                             Page 13


which they are charged.” Id. at 327. The Court then quoted, in a parenthetical, this
excerpt from American Jurisprudence:

       [T]he accused may introduce any legal evidence tending to prove that
       another person may have committed the crime with which the defendant
       is charged . . . . [Such evidence] may be excluded where it does not
       sufficiently connect the other person to the crime, as, for example, where
       the evidence is speculative or remote, or does not tend to prove or
       disprove a material fact in issue at the defendant’s trial.

Id. (quoting 40A Am. Jur. 2d Homicide § 286 (1999)). Thus the state courts’ weighing
of the probative value of the Guenther evidence against its tendency to confuse the issues
or mislead the jury was entirely consistent with United States Supreme Court precedent.
So too was the exclusion of the evidence on the ground that it failed to show a sufficient
nexus between Guenther and the murder.

       Miller’s argument that weaknesses in the State’s case weighed in favor of
admitting the Guenther evidence is unavailing. In Holmes, the United States Supreme
Court disapproved of a South Carolina rule that had required a trial court to focus on the
strength of the State’s case when deciding whether to admit defense evidence of a third
party’s guilt. Holmes, 547 U.S. at 329, 331. The South Carolina Supreme Court had
affirmed the state trial court’s exclusion of such evidence, holding that “where there is
strong evidence of [a defendant]’s guilt, especially where there is strong forensic
evidence, the proffered evidence about a third party’s alleged guilt does not raise a
reasonable inference as to the [defendant]’s own innocence.” Id. at 324 (quoting State
v. Holmes, 605 S.E.2d 19, 24 (S.C. 2004)). In other words, under the South Carolina
rule as applied, “[i]f the prosecution’s case [wa]s strong enough, the evidence of third-
party guilt [wa]s excluded even if that evidence, if viewed independently, would have
great probative value and even if it would not pose an undue risk of harassment,
prejudice, or confusion of the issues.” Id. at 329. In holding the South Carolina rule
incompatible with due process, the United States Supreme Court explained that “[j]ust
because the prosecution’s evidence, if credited, would provide strong support for a guilty
verdict, it does not follow that evidence of third-party guilt has only a weak logical
connection to the central issues in the case.” Id. at 330 (emphasis omitted). In much the
No. 09-3151        Miller v. Brunsman                                            Page 14


same way, here, assuming, as Miller suggests, that the State’s case against him provided
only weak support for a guilty verdict, that fact would not strengthen Guenther’s
connection to the murder, nor would it render the proffered evidence admissible.
Miller’s argument thus fails.

       Because the state courts’ exclusion of the Guenther evidence was not an
unreasonable application of clearly established federal law, Miller is not entitled to the
habeas relief he seeks.

                                           III.

       For the foregoing reasons, the denial of Miller’s petition for habeas relief is
affirmed.
No. 09-3151            Miller v. Brunsman                                                          Page 15


                                         _________________

                                          CONCURRENCE
                                         _________________

         BOYCE F. MARTIN, JR., Circuit Judge, concurring. I concur fully in the lead
opinion. My colleagues’ application of the established law regarding state regulation of
a defendant’s constitutional right to present a defense, here, third-party guilt, is
unassailable.       I write separately, however, to comment upon the questionable
foundations of that law.

         As the lead opinion correctly details, the story proffered by Richard Miller’s
attorney—that Scottie Guenther was the true perpetrator—relied heavily on
circumstance, inference, ambiguous statements, and shaky witnesses. But, as the lead
opinion also hints, ante at 14, and as a review of the record reveals is actually the case,
so too was the state’s case against Miller based on circumstance, inference, ambiguous
statements, and shaky witnesses.1 One could argue that the state’s circumstantial case
against Miller was comparatively stronger than Miller’s circumstantial case against
Guenther, but the difference is only in shades of gray and the fact remains that both cases
were highly circumstantial. So why was the state allowed to go to the trial jury with its
circumstantial theory but Miller was not?

         The grand jury. In a criminal prosecution, the only real filter between the state’s
theory of the case and the trial jury is the grand jury. The state, in its sole prosecutorial
discretion, has the opportunity to bring any evidence or testimony before the grand jury,
regardless of whether it would be admissible at trial and without it being subject to cross
examination or rebuttal by the accused, to try to establish that there is probable cause to
believe that the accused committed the crime. Once the grand jury has found probable




         1
          This is not to say that there was insufficient evidence to convict Miller, for there most certainly
was. But, based on our extremely deferential sufficiency of the evidence standard, so too would Miller’s
evidence against Guenther have been sufficient evidence to convict had the state decided to focus its fire
on Guenther rather than Miller and had the jury convicted.
No. 09-3151              Miller v. Brunsman                                                             Page 16


cause, the state’s theory is almost certainly going to the trial jury.2 And many have
observed that the modern grand jury is not exactly a robust check on prosecutorial
discretion. United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005) (en
banc) (citing numerous commentators and courts that have suggested that the modern
grand jury is but a rubber stamp for the prosecution); United States v. Budd, 496 F.3d
517, 537 n.9 (6th Cir. 2007) (Cook, J. concurring in part and dissenting in part) (citing
the adage that the grand jury “would indict a ham sandwich”).

          By contrast, to get his theory of third-party guilt before the trial jury, the
defendant must convince a trial judge that there is a “nexus” between the alleged third-
party perpetrator and the crime and must defend his proffer from the state’s cross-
examination and argument. This initial filter on the defense’s theory is significantly
more restrictive than that placed on the state’s theory of the case. First and foremost, the
respective gatekeepers are drastically different. The defendant must get his theory past
a trial judge—learned in the law, a veteran of the courtroom, appropriately skeptical of
everything she hears, and viewing everything with an eye towards its ultimate
admissibility at trial—instead of a panel of lay citizens that, by most accounts,
unquestioningly accepts the prosecutor’s assertions as gospel. Second, the state presents
its story to the grand jury without questioning or rebuttal by the accused, whereas the
defendant’s story to the trial judge is subject to cross examination and challenge by the
state. The third difference between the state’s task and the defendant’s is the conceptual
difference between “probable cause” and “nexus.” Any attempt to describe and compare
the two concepts amounts to little more than a demonstration of the limits of the English
language. However, in reading the cases, the nexus inquiry seems materially different,
and more strict, than probable cause.

          In sum, we have a situation in which the state, which bears the ultimate burden
to prove its theory of the accused’s guilt beyond a reasonable doubt, needs only get its


          2
           It is true that the trial judge will rule on the admissibility of discrete pieces of evidence, but those
rulings are made in light of the fact that the grand jury has already blessed the state’s theory of the case.
So, as long as there is some admissible evidence to support the state’s theory, that theory will go to the trial
jury.
No. 09-3151            Miller v. Brunsman                                                       Page 17


theory past the low hurdle of the grand jury before it can get to the trial jury. On the
other hand, the defendant, whose theory needs only identify a reasonable doubt to the
trial jury, faces a significantly higher burden before he may bring his theory before the
trial jury. This makes no sense to me, but this the law allows.

         I have no doubt that if Miller’s attorney had made his proffer before a grand jury
instead of a trial judge, the grand jury would have found probable cause against
Guenther and gone on about its business without a hesitation. More to the point, in all
my years of dealing with these cases, I have seen no convincing constitutional
justification for placing a higher threshold before a criminal defendant than that placed
before the state. Most authorities justify the situation simply by noting that it has always
been this way. While admirable for its clarity, this justification sheds no light on its
constitutional provenance, be there any.3

         To be clear, I am not suggesting that the defense should have access to the grand
jury, as that proposition would find no purchase in the text of the Constitution. I suggest
only that the courts should have to find specific constitutional justification before
endorsing a system in which the threshold for a defendant’s theory to go before a trial
jury is higher than the threshold for the state’s theory to reach that same jury. If, as I
suspect, there is no such specific constitutional justification, then we should work toward
a system in which the barrier to entry is substantively the same for the defense as it is for
the state.

         I respectfully concur.




         3
            Indeed, the Supreme Court recently highlighted the fact that no one knows where in the
Constitution a criminal defendant’s right to present a defense resides, the Fourteenth Amendment’s Due
Process Clause, the Sixth Amendment’s Compulsory Process Clause, or the Sixth Amendment’s
Confrontation Clause. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Everyone just agrees that
it is in there somewhere. But the question of what the state permissibly may do to regulate the right to
present a defense shows that it is not enough to agree that the right exists without pinpointing where the
right resides. We cannot analyze a given evidentiary regulation with any specificity without knowing what
specific constitutional doctrine is at issue.
