                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0544n.06

                                           No. 11-3390                                    FILED
                                                                                      Jun 04, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

                                                  )
BRIAN J. CUMMINGS,                                )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )
                                                  )   ON APPEAL FROM THE UNITED
WARDEN, ROSS CORRECTIONAL                         )   STATES DISTRICT COURT FOR THE
INSTITUTION,                                      )   SOUTHERN DISTRICT OF OHIO
                                                  )
       Respondent-Appellee.                       )


Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner Brian J. Cummings appeals the

district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Cummings

was convicted by a jury of operating a motor vehicle while under the influence of alcohol, driving

under suspension, and carrying a concealed weapon. He alleges that the prosecutor failed to disclose

the pretrial destruction of the truck involved in the accident in violation of Brady v. Maryland, 373

U.S. 83 (1963). Cummings properly exhausted his claim in the Ohio state courts and subsequently

filed a petition pursuant to 28 U.S.C. § 2254 in the district court, which was denied. The district

court did, however, grant Cummings a certificate of appealability on his Brady claim. This timely

appeal followed. Because the Ohio Court of Appeals did not unreasonably apply federal law in

denying relief on Cummings’s Brady claim, we affirm the judgment of the district court.
No. 11-3390
Brian J. Cummings v. Warden, Ross Correctional Institution



                                                 I.

        The facts underlying Cummings’s conviction, as determined by the Ohio Court of Appeals,

are as follows:

       On April 4, 2006, police discovered [Cummings] walking from the scene of a single-
       vehicle traffic accident. The vehicle, a Chevrolet S10 truck, appeared to have been
       driven up an embankment and then had flipped over a traffic control device. Officers
       arriving at the scene determined that [Cummings] had suffered a head injury during
       the accident. The officers questioned [Cummings] at the scene, and [Cummings]
       indicated that he was not the driver of the truck. The officers observed no other
       individuals at the scene of the accident, and found no other passengers in the vicinity
       of the accident after conducting a search.

       Officers observed that [Cummings] smelled strongly of alcohol and gasoline, and that
       he had glassy, bloodshot eyes and slurred his speech. Further, the officers noted that
       [Cummings] staggered and had considerable difficulty maintaining his footing.
       When the officers questioned [Cummings] regarding the accident, [Cummings]’s
       answers were nonresponsive and inconsistent. After approximately twenty minutes
       of questioning, the officers were able to determine [Cummings]’s name and
       discovered that [Cummings] had an active warrant for his arrest.

       When an officer attempted to place [Cummings] under arrest, [Cummings] began
       making fists with his hand and shouting obscenities. After the officer handcuffed
       [Cummings], he was searched for weapons, at which time it was discovered that
       [Cummings] was carrying two pocket knives and brass knuckles in his pocket, as
       well as a dagger in his shoe. Another dagger was located underneath the vehicle.
       Officers also found keys in [Cummings]’s pocket, and those keys were successfully
       used to unlock the door of the vehicle and to operate the ignition. The officers did
       not administer a field sobriety test. [Cummings] was then transported to a hospital,
       where he refused to submit to a blood alcohol test.

       [Cummings] was charged with operating a motor vehicle while under the influence
       of alcohol (“OVI”) in violation of [Ohio Rev. Code § 4511.19(A)], driving under
       suspension (“DUS”) in violation of [Ohio Rev. Code § 4510.11(A)], and carrying a
       concealed weapon in violation of [Ohio Rev. Code § 2923.12(A)(1)]. After a jury
       trial, [Cummings] was convicted on all counts, and the trial court imposed a ten-year
       prison sentence.

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Brian J. Cummings v. Warden, Ross Correctional Institution

State v. Cummings, No. 2006-09-224, 2007 WL 2757752, at *1 (Ohio Ct. App. Sept. 24, 2007).

        At trial, the State presented the testimony of a number of police officers who explained their

interactions with Cummings, the evidence they found at the scene, and their observations of the truck

at issue.

        City of Middletown Police Officer Becky Leuckhardt testified that she and Officer Tim

Meehan responded to a call regarding a flipped-over truck during the evening of April 4, 2006.

Upon arrival at the scene, Leukhardt noticed the truck resting on a raised embankment on the south

side of McCurry Avenue in Middletown. She also observed Cummings walking off the embankment

and stumbling across the intersection. The officers noticed a strong odor of alcohol and gasoline on

Cummings’s person. The traffic light at the intersection had been knocked out of the ground and was

turned over. The officers determined that the truck had been traveling southbound on University

Boulevard, crossed the median onto McCurry Avenue, struck the traffic light, and landed on the

embankment.

        When Leukhardt asked Cummings if he was injured, Cummings initially denied that he was

connected to the truck. Eventually he said that he was a passenger in the truck and that the driver

had walked away in the direction from which the officers had just arrived. He claimed that he did

not know the driver’s name. The officers had seen no one walking in the area. Leukhardt testified

that Cummings became increasingly evasive as she asked more questions and that he had a “strong

odor” of alcohol, had slurred speech, and was “very unsteady on his feet.” Leukhardt testified that

his clothing was wet, he smelled of gasoline, he had grass and mud on his clothing, he had

superficial scratches on his face, and his eyes were “very bloodshot.”

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       Once Cummings gave Leukhardt his name, Leukhardt discovered that Cummings had an

outstanding warrant and placed him under arrest. He refused and screamed obscenities until

Leukhardt forcibly cuffed him. As Leukhardt conducted a protective pat-down of Cummings, she

found keys to the wrecked truck, two knives, and a set of brass knuckles wrapped in work gloves in

Cummings’s coat pocket. Beneath Cummings’s sock, Leukhardt found a “dagger-like” knife in a

sheath. Another sheathed dagger was found on the ground under the truck. Leukhardt then

determined that the license plate on the truck did not match the truck. Upon questioning, Cummings

first told officers that he owned the truck, but later claimed it was owned by his mother. Cummings

was then taken to the hospital in an ambulance. At the hospital, Leukhardt attempted to obtain

Cummings’s consent to a blood test for alcohol consumption. Cummings refused and was

belligerent. Several hours later, Cummings was booked at the police station.

       Officer Nicholas Marconi, who was also present at the scene of the crash, testified that he

observed a strong odor of gasoline and noticed an empty beer keg that was attached to a chain in the

truck bed. Marconi observed that the steering wheel, dashboard, and seats were broken. He noticed

an empty bottle of whiskey on the ground near the truck. Marconi also found a piece of mail

addressed to Cummings in the front passenger area of the vehicle. Marconi saw Leukhardt take the

keys from Cummings’s pocket and later saw Sergeant John McGill use those keys in the truck’s

driver side door and ignition to see if they matched. Marconi also witnessed the towing company

winch the truck onto the flatbed trailer, with the tires spinning freely, which he inferred to indicate

that the car was in neutral and that the key was in the ignition.



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Brian J. Cummings v. Warden, Ross Correctional Institution

        Officer Tim Meehan also testified. He corroborated Leukhardt’s testimony and described

Cummings’s reactions when asked about the driver of the truck. Cummings said that he did not

know who the driver was and could not provide a name. He could not give a description of what the

person was wearing or provide “anything about this guy.” Meehan testified that Cummings kept

“trying to walk away” and that he was generally evasive and disoriented. Meehan identified the

truck as a Chevrolet S-10 pickup truck, and saw that it had sustained heavy damage and that the

doors were shut. He also saw the whiskey bottle, which he noticed was not moist on the outside,

leading him to conclude that it had come from inside the truck. He noticed that the passenger

window was broken out or did not exist, that the windshield was cracked, and that there was a

spiderweb crack on the interior of the front passenger side of the windshield. He testified that the

steering wheel was damaged from the impact of a person, who may have been “thrown to the

passenger side of the vehicle.” Meehan also noticed a strong odor of gasoline and found a piece of

paper on the passenger side floorboard with Cummings’s name and address on it. When confronted

with the piece of paper, Meehan testified that Cummings told Meehan that his mother owned the

truck. When asked again why his mail was in the truck and the keys were in his pocket, Cummings

started “cussing, yelling, wanting to fight.” Meehan also noted that he saw no one walking in the

area.

        Police Sergeant John McGill, a trained traffic crash investigator, then testified as to his

investigation on the night of the accident. After observing the truck, McGill noticed that the front

bumper had impacted a light pole, toward the passenger side of the truck. He believed the passenger-

side windshield break had been caused by impact with a person’s head. McGill testified that the

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Brian J. Cummings v. Warden, Ross Correctional Institution

windshield strike could have come from a glancing blow of the truck’s driver, if the driver had not

been wearing his seatbelt. He hypothesized that if a passenger, rather than the driver, had struck the

windshield, he would have been pinned inside the truck. McGill testified that the truck’s doors were

closed when he arrived and that the passenger door would not open because the crushing of the roof

prevented it. McGill also stated that the steering wheel had been displaced and appeared consistent

with someone striking it. McGill observed Leukhardt searching in Cummings’s coat pocket and

finding the keys to the truck. McGill testified that he took the keys from Leukhardt, and that the

keys opened the door lock and started the ignition. He did not recall the ignition being stripped or

the keyhole missing from the ignition. McGill testified that the keys were General Motors keys, but

he could not recall how many keys were on the key ring. After confirming that the keys operated the

truck, McGill took the ignition key from the key ring for the towing company and returned the other

keys to Leukhardt. McGill testified that he believed that Cummings was the only occupant in the

truck at the time of the accident.

        Cummings renewed his motion for acquittal at the close of the evidence, which the trial court

denied. The jury returned a guilty verdict for operating a motor vehicle while under the influence

of alcohol, in violation of Ohio Rev. Code § 4511.19(A); driving under suspension, in violation of

Ohio Rev. Code § 4510.11(A); and carrying a concealed weapon, in violation of Ohio Rev. Code

§ 2923.12(A)(1). The trial court sentenced Cummings to an aggregate term of ten years, a three-year

period of post-release control, a fine, court costs, and a lifetime driver’s license suspension. When

the trial court inquired about forfeiture of the truck at sentencing, the State responded that it did not



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Brian J. Cummings v. Warden, Ross Correctional Institution

know whether the vehicle was impounded or junked. Defense counsel responded that the truck had

been destroyed “for some time now.”

       On direct appeal, Cummings argued, among other things, that the State violated Brady by

destroying the truck prior to trial. The Ohio Court of Appeals denied relief. Cummings, 2007 WL

WL 2757752, at *1. The Ohio Supreme Court then declined to exercise jurisdiction regarding

Cummings’s pro se appeal on the ground that it did not involve a substantial constitutional question.

Cummings filed a motion for post-conviction relief in the trial court, which was denied without a

hearing. The Ohio Court of Appeals affirmed that judgment and the Ohio Supreme Court dismissed

this appeal as not involving a substantial constitutional question. Cummings then filed a petition

pursuant to 28 U.S.C. § 2254 in the district court, which was denied. The district court did, however,

grant Cummings a certificate of appealability on this claim. This timely appeal followed.

                                                 II.

       In habeas corpus proceedings, this court reviews a district court’s legal conclusions de novo

and its factual findings for clear error. Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en

banc). Under AEDPA,

       [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim—

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or

       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

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No. 11-3390
Brian J. Cummings v. Warden, Ross Correctional Institution

28 U.S.C. § 2254(d).

       As to legal conclusions, pursuant to the “contrary to” clause of § 2254(d)(1), “a federal

habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by

[the Supreme Court] on a question of law or if the state court decides a case differently than [the

Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

412–13 (2000). Under the “unreasonable application” clause of § 2254(d)(1), a federal court may

grant the writ if the state court’s application of clearly established federal law to the facts of the

prisoner’s case was objectively unreasonable in light of the evidence presented in the state court

proceedings. Id. at 409–11. Importantly, “an unreasonable application of federal law is different

from an incorrect application of federal law.” Id. at 410. Finally, under the “unreasonable

determination” clause of § 2254(d)(2), federal courts must bear in mind that “a state-court factual

determination is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).

       Section 2254(d), as amended by AEDPA, is a “purposefully demanding standard.”

Montgomery, 654 F.3d at 676 (citing Harrington v. Richter, 131 S. Ct. 770, 786 (2011)). To obtain

relief, a habeas petitioner must “show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131

S. Ct. at 786–87. This “‘highly deferential standard’” requires that determinations made in state

court “‘be given the benefit of the doubt.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

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No. 11-3390
Brian J. Cummings v. Warden, Ross Correctional Institution

        It is in this context that the court reviews Cummings’s claim that the State improperly

withheld from him its pretrial destruction of the truck involved in the accident. “[T]he suppression

by the prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). “To assert a successful Brady claim, a

habeas petitioner must show that: (1) evidence favorable to the petitioner, (2) was suppressed by the

government, and (3) the petitioner suffered prejudice.” Wogenstahl v. Mitchell, 668 F.3d 307, 323

(6th Cir. 2012) (internal quotation marks omitted). Evidence is material and must be disclosed “if

there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome

of the case would have been different.” Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008). A

“reasonable probability” is a “probability sufficient to undermine confidence in the outcome.”

United States v. Bagley, 473 U.S. 667, 682 (1985) (internal quotation marks omitted). A “reasonable

possibility that the suppressed evidence might have produced a different outcome” is insufficient to

meet the Brady standard. Montgomery v. Bobby, 654 F.3d 668, 678 (6th Cir. 2011) (en banc).

        Regarding Cummings’s Brady claim, the Ohio Court of Appeals noted:

        [Cummings] argues that prosecutorial misconduct occurred during his trial. He
        claims that the state failed to disclose exculpatory information, namely that the
        vehicle had been destroyed, and also failed to disclose during discovery certain
        evidence it intended to use at trial. [Cummings] asserts that the prosecutorial
        misconduct violated his due process rights under Brady v. Maryland, [373 U.S. 83
        (1963)].

        The Ohio Supreme Court has recognized that “[t]he suppression by the prosecution
        of evidence favorable to an accused violates due process where the evidence is
        material either to guilt or to punishment, irrespective of the good faith or bad faith
        of the prosecution.” State v. Johnston, [529 N.E.2d 898 (Ohio 1988)], paragraph four

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Brian J. Cummings v. Warden, Ross Correctional Institution

       of the syllabus, citing Brady v. Maryland. In making the determination of whether
       a due process violation exists, “evidence shall be deemed material only if there is a
       reasonable probability that, had the evidence been disclosed to the defense, the result
       of the proceeding would have been different.” Johnston at paragraph five of the
       syllabus. A reasonable probability is defined as “a probability sufficient to
       undermine confidence in the outcome[.]” Id., citing United States v. Bagley, [473
       U.S. 667 (1985)].

       Brady and its progeny apply only to evidence unknown to the defendant at the time
       of the trial. See United States v. Agurs, [427 U.S. 97 (1976)]. According to the
       record, [Cummings] was aware of the existence of this evidence. As such, we find
       that there can be no [c]onstitutional violation in the state’s failure to disclose those
       items.

       While [Cummings] argues that the destruction of the truck is potentially exculpatory
       because evidence of the destruction of the truck could have been presented to the jury
       to rebut the circumstantial evidence that he was the driver of the truck, we note that
       [Cummings] has failed to clearly articulate how in fact the destruction of the truck
       would have rebutted any of the evidence presented by the state. Rather, [Cummings]
       speculates that, had he known that the truck had been destroyed, he would have been
       able to argue that he was denied the opportunity to introduce evidence that would
       have rebutted the state’s evidence or impeached the state’s witnesses. [Cummings]’s
       speculation does not demonstrate how the destruction of the truck is in any way
       exculpatory. The prosecutor did not suppress evidence that was material either to
       [Cummings]’s guilt or his punishment, and as such, there was no Brady violation.

Cummings, 2007 WL 2757752, at *5.

       With regard to the first prong, Cummings does not allege that the truck itself would

demonstrate who was driving the truck at the time of the accident and therefore does not show how

the truck’s destruction is “materially favorable.” Rather, he claims only that the fact of the truck’s

destruction would have undermined the credibility of the State’s testifying officers. Cummings cites

to Bagley and Giglio v. United States, 405 U.S. 150 (1972), for the proposition that he “could have

impeached the credibility of the police witnesses by demonstrating that the State permitted tangible

evidence that would have confirmed or denied whether he operated the vehicle [to be destroyed].”

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No. 11-3390
Brian J. Cummings v. Warden, Ross Correctional Institution

However, Cummings misunderstands the type of impeachment evidence that must be disclosed

under Brady. The destruction of the truck does not reveal bias or interest on the part of any of the

government’s witnesses, as did the evidence at issue in the cases Cummings cites. In Bagley, the

government failed to disclose information regarding contracts signed by undercover informant

witnesses, indicating that they would be paid by the Bureau of Alcohol, Tobacco, and Firearms for

providing information and for testifying. Bagley, 473 U.S. at 671–72. In Giglio, the government

failed to disclose an alleged promise that a key witness would not be prosecuted if he testified for

the government. Giglio, 405 U.S. at 150–51, 154–55. In those cases, the documents that were not

disclosed were directly relevant to the potential bias of testifying witnesses. By contrast, the

destruction of the truck has no bearing on the officers’ incentive to testify truthfully.

        Even if we were to determine that the State withheld evidence and that it was exculpatory

or favorable, the Ohio Court of Appeals’s conclusion that disclosure of the truck’s destruction would

not have had a reasonable probability of changing the outcome of Cummings’s trial was not an

unreasonable application of federal law. Cummings claims that he would have raised the fact of the

truck’s destruction at trial and that this fact “would have dealt a general blow to the prosecution’s

credibility.” Further, he asserts that “the destroyed evidence was directly related to . . . the

prosecution’s . . . key arguments as to why Cummings had been the driver of the truck.” However,

this argument was available to Cummings at the time of trial. Nothing precluded defense counsel

from attempting to examine the truck or from asking police officers on the stand what had become

of the truck.



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Brian J. Cummings v. Warden, Ross Correctional Institution

        Cummings has failed to show how the truck would have been materially favorable to him and

how it would have had a reasonable probability of changing the outcome of his trial. Therefore, the

Ohio Court of Appeals’s conclusion that the State’s failure to disclose its destruction of the truck was

not a Brady violation was not an unreasonable application of federal law.

                                                  III.

        For the foregoing reasons, we affirm the judgment of the district court.




                                                 -12-
