                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0764n.06

                                            No. 11-4183

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                       Nov 14, 2011
REGINALD BROOKS,                                   )
                                                   )                            LEONARD GREEN, Clerk
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
DAVID BOBBY, Warden,                               )   NORTHERN DISTRICT OF OHIO
                                                   )
       Respondent-Appellee.                        )


       Before: SUTTON, McKEAGUE and GRIFFIN, Circuit Judges.


       PER CURIAM. Reginald Brooks moves to stay his execution while he continues to litigate

two claims in state court: (1) that he is incompetent to be executed, see Ford v. Wainwright, 477

U.S. 399, 410 (1986); and (2) that the State withheld evidence and failed to correct misleading

testimony during his trial, see Brady v. Maryland, 373 U.S. 83, 87 (1963); Napue v. Illinois, 360

U.S. 264, 269 (1959). The state trial court and the state intermediate appellate court rejected both

claims, R. 61-2; R. 102-2; R. 106-1, and the Ohio Supreme Court denied Brooks’ motion to stay his

execution while he seeks review in that court. Brooks asks us to do what the state courts (and the

Ohio Governor) thus far have not—to stay his execution while he presents these claims to the Ohio

Supreme Court so that, if unsuccessful there, he may later litigate the claims here in a federal habeas

proceeding. We deny the request.
No. 11-4183
Brooks v. Bobby

       Brooks’ motion, in the first place, suffers from a timeliness problem, at least as to his Ford

claim. There is a “strong equitable presumption” against granting a stay to allow litigation of a claim

that could have been brought early enough “to allow consideration of the merits without requiring

entry of a stay.” Nelson v. Campbell, 541 U.S. 637, 650 (2004). The Ohio Supreme Court issued

an order on March 1, 2011, setting Brooks’ execution for November 15, yet Brooks waited more than

five-and-a-half months—until August 23—to file his Ford claim in state court. But for this

unexplained delay, all of the state appellate courts would have had a full opportunity to rule on the

claim’s merits, while at the same time potentially giving Brooks an opportunity to file a Ford claim

in a federal habeas petition.


       One problem with eleventh-hour filings is presented here. Brooks seeks a stay from us while

the Ohio Supreme Court considers the merits of his Ford and Brady claims. At this point, less than

24 hours before the State’s scheduled execution, we have a decision from an intermediate state

appellate court rejecting the claims on the merits, a ruling that, if affirmed and if affirmed on these

grounds, would be entitled to AEDPA deference in a subsequent federal habeas petition. In thinking

about the likelihood that Brooks will succeed on the merits, it seems appropriate in one sense to give

AEDPA deference to that ruling. After all, the only state-court rulings thus far have rejected the

claims on the merits. Yet, in another sense, it is strange to give AEDPA deference to a less-than-

final decision. The practicalities of today’s motion offer a sensible way of resolving any potential

dilemma. Because a federal habeas petition likely would come before us only if the Ohio Supreme

Court denies review altogether or affirms the state appellate court’s ruling on the merits—inmates


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Brooks v. Bobby

do not premise habeas petitions on state-court victories—we will apply AEDPA deference to the

state appellate court’s ruling in addressing this stay motion.


       As to the merits of Brooks’ claims, he has no likelihood of success, which “by itself suffices

to” deny the stay. Bedford v. Bobby, 645 F.3d 372, 377 (6th Cir. 2011). Start with the Ford claim.

The Eighth Amendment prohibits a State from executing a prisoner who is “insane,” Ford, 477 U.S.

at 410, that is, who lacks a “rational understanding” of the “reason for his execution.” Panetti v.

Quarterman, 551 U.S. 930, 959 (2007). After conducting a competency evaluation at state expense

and holding a lengthy (four-day) evidentiary hearing, the state trial court rejected Brooks’ Ford

claim, finding he “has both a factual and rational understanding of [his] crimes, is aware of his

impending death, and is able to causally relate the murders with his punishment.” R. 61-2 at 6. The

Ohio Court of Appeals affirmed this finding. R. 106-1 at 12. To secure habeas relief on his Ford

claim, Brooks must show that this decision “was based on an unreasonable determination of the facts

in light of the evidence presented” or was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d). He cannot overcome these hurdles. The state appellate court reasonably adopted

the trial court’s factual finding that, although Brooks suffers from “paranoid schizophrenia” and

“grandiose delusions,” he still has a rational understanding of the reasons for his execution. R. 61-2

at 4-7; R. 106-1 at 12. And both of the state court decisions laid out the correct standard of

competence from Ford and Panetti, R. 61-2 at 4; R. 106-1 at 8-12, a framework that “suggests a




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No. 11-4183
Brooks v. Bobby

range of reasonable applications,” Bedford, 645 F.3d at 378, and reasonably applied that standard

to Brooks.


        Brooks persists that Ohio’s statutory scheme for evaluating Ford claims denied him the

effective assistance of counsel by requiring that the state trial court issue a ruling within sixty days

of the claim’s filing. Ohio Rev. Code § 2949.28(B)(3). But Brooks’ attorneys (one of whom the

State paid for) had an opportunity to conduct discovery, present their own evidence and cross-

examine the State’s expert witness. States need not give prisoners unlimited opportunities to prove

they are incompetent to be executed, see Ford, 477 U.S. at 416–17, and Brooks has not shown that

sixty days was an insufficient amount of time to allow his attorneys to perform effectively.


        The Brady claim fares no better. Brooks argues that the State violated Brady by failing to

turn over statements from several family members and acquaintances documenting his erratic

behavior before the murders. Brooks’ lawyers apparently discovered this evidence in the State’s files

for the first time while investigating Brooks’ Ford claim. To establish a Brady violation, Brooks

must show (1) that the evidence was favorable to him because it was either exculpatory or

impeaching, (2) that the State suppressed the evidence, and (3) that the State’s failure to disclose the

evidence prejudiced him. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Even if Brooks could

satisfy the first two elements, a point we need not decide, he cannot show prejudice, which requires

demonstrating “a reasonable probability of a different result.” Banks v. Dretke, 540 U.S. 668, 699

(2004). The state trial court rejected Brooks’ Brady claim on the ground that the evidence would

not have made a difference because it was duplicative of evidence already in Brooks’ possession and

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No. 11-4183
Brooks v. Bobby

cumulative of evidence already presented at trial, including Brooks’ diagnosis as a paranoid

schizophrenic. R. 102-2. The state appellate court affirmed that conclusion. R. 106-1 at 16-19. The

state courts’ determination is a reasonable one, which precludes habeas relief. See 28 U.S.C. §

2254(d). Because the court of conviction already knew that Brooks was a paranoid schizophrenic,

a few anecdotes of erratic behavior (on top of other anecdotes of erratic behavior already presented

at the first trial) likely would not have produced a different outcome.


       The supporting affidavit submitted by Judge Harry Hanna, one of the three judges who sat

on the panel that convicted Brooks and sentenced him to death and who is now a visiting (e.g.,

senior) judge, is not the kind of thing we see every day. But it does not change things, and it would

establish a dangerous precedent if it did. In his new capacity, Judge Hanna says that, if he knew then

what he knows now, he “would have voted for a sentence less than death,” a point he also made in

support of Brooks’ clemency application. Yet the Federal Constitution does not require a state court

to accept this kind of statement, made some 28 years after the fact, much less give it meaningful

weight in resolving a Brady claim. Cf. Nields v. Bradshaw, 482 F.3d 442, 460–61 (6th Cir. 2007)

(affidavit from juror that she would have given new mitigation evidence “considerable weight” not

sufficient to set aside state court finding of no prejudice). Nor, it follows, did the state courts act

unreasonably in failing to give the statement meaningful weight.


       Brooks’ Napue claim fails for a similar reason. He argues that prosecutors violated Napue

by failing to correct the following statement in a psychiatric report from Dr. Billowitz: “[I]n my

opinion it is very doubtful that [Brooks] suffered from extremely bizarre and grossly disorganized

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Brooks v. Bobby

delusions, since it is very likely that such gross abnormalities would have . . . been made clearly

manifest to outsiders.” R. 73-2 at 21. Even if we assume for the sake of argument that the witness

statements about Brooks’ erratic behavior made Dr. Billowitz’s statement misleading, Brooks still

must show that failing to “correct” this testimony could “in any reasonable likelihood have affected

the judgment of the” factfinders. Napue, 360 U.S. at 271. He cannot do so. Dr. Billowitz still

reported that Brooks’ psychological tests showed he was “schizophrenic.” R. 84 at 33. Given what

the factfinders already knew about Brooks’ psychiatric condition, as the state trial and appellate

courts recently found, there is no reasonable probability that the few anecdotes of erratic behavior

contained in the new evidence would have changed the outcome. R. 102-2; R. 106-1.


       For these reasons, Brooks’ motion for a stay of execution is denied.




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