                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 06a0384p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                    X
                            Petitioner-Appellant, -
 ANTHONY APANOVITCH,
                                                     -
                                                     -
                                                     -
                                                         No. 94-3117
          v.
                                                     ,
                                                      >
 MARC C. HOUK, Warden,                               -
                            Respondent-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
                    No. 91-02221—John M. Manos, District Judge.
                                        Argued: March 7, 2006
                               Decided and Filed: October 19, 2006
        Before: BOGGS, Chief Judge; and DAUGHTREY and MOORE, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Dale A. Baich, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
DISTRICT OF ARIZONA, Phoenix, Arizona, for Appellant. Michael L. Collyer, OFFICE OF THE
ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF: Dale A. Baich, Jon M.
Sands, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF ARIZONA,
Phoenix, Arizona, Mark R. DeVan, BERKMAN, GORDON, MURRAY & DeVAN, Cleveland,
Ohio, for Appellant. Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland,
Ohio, for Appellee.
                                         _________________
                                             OPINION
                                         _________________
        BOGGS, Chief Judge. Mary Anne Flynn was found murdered and raped in her Cleveland
home in August 1984. Four months later, a Cleveland jury convicted Anthony Apanovitch for
aggravated murder, aggravated burglary, and two counts of rape, and the Cuyahoga County Court
of Common Pleas sentenced him to death and to 45-75 years of imprisonment. Following a tortured
procedural history involving parallel state and federal criminal appeals, and collateral civil litigation,
Apanovitch now appeals from the district court’s 1994 denial of his 1991 habeas petition, asking us
to reverse the district court’s denial of the writ or, at a minimum, to order the district court to
conduct an evidentiary hearing. Specifically, the petitioner raises four basic claims on appeal:
(1) that the state improperly failed to provide him with favorable exculpatory and impeachment
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that these purported violations


                                                    1
No. 94-3117           Apanovitch v. Houk                                                        Page 2


prevented him from presenting certain claims in his habeas petition filed in the district court
pursuant to 28 U.S.C. § 2254; (2) that the state trial court improperly admitted the testimony of a
prisoner who made one out-of-court statement to the prosecution but recanted that statement during
voir dire; (3) that the trial court improperly admitted inflammatory and prejudicial hearsay by
allowing certain witnesses to testify as to the victim’s alleged fears of the defendant; and (4) that
insufficient evidence exists to support his conviction. On cross-appeal, the State of Ohio requests
that, should we remand the case, we grant an evidentiary hearing so that the district court could
authorize a DNA test comparing swabs of bodily fluids that had been collected from the victim’s
body at the time of the murder investigation (which had allegedly been lost and later rediscovered
in mid-1992) to the petitioner’s own DNA. In light of the state’s apparent failure to provide
potentially exculpatory materials to Apanovitch prior to the filing of his petition, and of the untested
nature of the DNA evidence, we reverse and remand the matter, noting that the district court retains
the authority to conduct an evidentiary hearing should it deem it appropriate to do so. However, we
affirm the district court’s order with respect to the remaining issues raised on appeal, including the
Brady claims that we do not find to be meritorious, the petitioner’s challenges as to the admission
of certain witnesses, and the insufficiency of evidence claim.
                                                   I
                                                   A
       Mary Anne Flynn, a young nurse and midwife, was employed at Cleveland Metropolitan
General Hospital. On August 23, 1984, Flynn visited her brother Martin, leaving to return home at
about 9:30 p.m. At approximately 10 p.m. on the evening of her death, one of Flynn’s neighbors
heard her get out of her car and walk to the back door of the duplex she owned. Other neighbors
heard her front door bang shut around that time. Around midnight, other neighbors heard a loud
bang or thud from inside her house.
        The following day, Christine Schenk, Flynn’s co-worker and friend, became concerned when
Flynn did not report to work. After unsuccessfully trying to contact her, Schenk called Flynn’s
brother, and together they gained access to Flynn’s apartment through the tenants’ side of the
basement of the duplex Flynn owned. They found the front door locked and chained from the inside,
but a window in the basement appeared to have been forcibly opened, and one of the window sills
was missing. In the second-floor bedroom, they discovered Flynn’s naked and battered corpse lying
face-down on her mattress with her hands tied behind her back, with one end of what appeared to
be a rolled-up bedsheet tied around her neck and the other end tied to the headboard.
        The cause of death was found to be asphyxia by cervical compression; in lay terms, she was
strangled to death. Spermatozoa and other bodily fluids were found in her mouth and vagina. There
were wood chips and slivers from the basement window sill in the bedroom and on her body, and
a laceration on the back of her neck contained slivers of wood from the same window sill. The
coroner later concluded she had died sometime between midnight and 6 a.m.
        But police found little physical evidence of the perpetrator. They found no bodily material
under Flynn’s fingernails. The coroner discovered a small number of hairs, but only one of them
was inconsistent with the victim’s hair. The only blood at the scene belonged to Flynn, and was on
the bed and the corpse. The dusty basement floor did not reveal any footprints. The police
identified a number of latent fingerprints, but none of them belonged to Anthony Apanovitch, the
man who became the department’s chief suspect. In fact, the only pieces of physical evidence from
the crime scene that were even potentially linked to the perpetrator were the bodily fluids found in
Flynn’s corpse, which had been emitted from a person who secretes blood type A. The police
discovered that Apanovitch secretes blood type A; they also discovered, but did not reveal, that the
victim also secreted blood type A.
No. 94-3117           Apanovitch v. Houk                                                        Page 3


                                                   B
        The day after discovering Flynn’s corpse, police found her checkbook on the kitchen table,
and, inter alia, it contained a receipt for house painting made out to Anthony Apanovitch. The
checkbook also contained two cancelled checks indicating that Flynn had paid Apanovitch for house
painting in the past. During their investigation, police heard from several neighbors and friends that
Flynn had expressed to them her fear of a “painter” in the weeks and months preceding her murder.
Some of Flynn’s friends stated that she had told them that her fear of the “painter” had grown so
severe that she had hired a realtor to begin searching for a new home elsewhere in Cleveland; in fact,
one witness later testified that Flynn had told her about her plans to move at lunch on the day of her
murder. Police soon came to suspect Apanovitch.
        Police also learned that Apanovitch had been painting houses across the street from Flynn’s
home in addition to the work he had performed on her house, and that he had made numerous
unrequited romantic advances toward her. Apanovitch’s co-worker Dawson Goetchius supposedly
told police that Apanovitch had told him that Flynn was a “real fox” and that he would “like to get
in her pants,” though, during trial, Goetchius denied having said anything of the sort. Rather,
Goetchius testified that Apanovitch had approached Flynn in her driveway on the afternoon before
her murder to discuss painting Flynn’s basement window sills, but his words relating Apanovitch’s
romantic interest in the victim were revealed to the jury. Meanwhile, police came to believe that
the unusual layout of Flynn’s duplex required prior familiarity with the house in order to break into
her part of the duplex through the basement, a knowledge that Apanovitch undoubtedly possessed.
        Four days after discovering Flynn’s corpse, detectives arrested Apanovitch. He did not
attempt to flee and, once in custody, he waived his Miranda rights. He admitted that he knew the
victim, that he had done some painting at her home, and that he had spoken with her on the
afternoon before she was murdered. Apanovitch had what seemed to be a new scratch on his face,
and he stated that he had received it on the night of August 23. But his attempted explanations
varied over time. While all of his accounts involved a man outside the Comet Bar who had
experienced car trouble, he variously told investigators that (1) he had been involved in a knife fight,
but was cut by flying glass, (2) a bottle fell and broke, and that the glass had scratched his face, (3)
the hood of the unknown man’s car had scratched his face, (4) he had been scratched by backlash
from the bottle, and (5) he had been in a fight. A physician working for the prosecution examined
the scratch and later testified that it was consistent with injuries caused by broken glass drawn over
the skin, by the tip of a knife, or, allegedly more likely, by fingernails.
        Police demanded an alibi. Apanovitch responded that he was unable to recall precisely when
and how long he had spent in each of the several drinking establishments that he had patronized that
evening. Moreover, he was unable to account for his entire evening: witnesses did not confirm his
presence at any of the bars for the period running from around 9:15-10:00 p.m. until 12:45 a.m. that
night. Later, at trial, one witness recalled that he had seen Apanovitch at one bar (within walking
distance of Flynn’s home) around 11-11:15 p.m., but he had failed to mention this to police
investigators. Worse, from the investigators’ perspective, Apanovitch approached waiters at the bars
after his release from jail and asked them to recall his presence in their bars that night at particular
times.
        When asked to provide hair and blood samples, he voluntarily provided them. Police
released Apanovitch from jail two days afterwards. Two weeks later, police asked him to return so
that medical personnel could examine his penis for bite marks; he complied, and no marks were
found. The police could not find any physical evidence that directly linked Apanovitch to the crime
scene, and they found neither blood nor any of the victim’s hair on his clothes. In fact, the police
department’s only physical evidence that even remotely linked Apanovitch to the crime scene was
No. 94-3117              Apanovitch v. Houk                                                                  Page 4


the fact that he was a secretor of blood type A, consistent with the blood type found in the oral and
vaginal swabs of Flynn’s body.
        The grand jury indicted Apanovitch on October 2 for aggravated murder with felony murder
specifications of burglary and rape. During pre-trial proceedings, Apanovitch’s counsel filed the
usual bevy of discovery demands. In response, the state noted that Apanovitch had made an
(undisclosed) oral statement, provided a list of witnesses, and promised to disclose all potentially
exculpatory evidence to Apanovitch before trial. As Apanovitch later learned, the state failed to
abide by this duty.
        Trial commenced on November 28, 1984. The prosecution did not introduce any direct
inculpatory evidence at trial, relying instead on circumstantial evidence. Specifically, the
prosecution called several witnesses whose testimony is pertinent to our inquiry. First, the state
called Dr. Balraj, the physician who had conducted Flynn’s autopsy and had examined Apanovitch’s
facial scratch while he was in custody. Balraj testified that she had found sperm in the victim’s
mouth and vagina, that there was no bodily tissue under the victim’s fingernails, and that the time
of death was between midnight and 6 a.m. Dr. Balraj testified further that the scratch on
Apanovitch’s face was consistent with a cut by glass, fingernails, or a knife, and so she neither
confirmed nor denied Apanovitch’s attempted explanation for that scratch.
        Second, the state called Barbara Campbell, a trace evidence technician with the coroner’s
office, who testified, in relevant part, that she had found an unidentified hair “on the back portion
of the [victim’s] hand” (although she testified at the mitigation hearing that she had found the hair
on “the victim’s right hand, the palm or surface [sic], which would have been facing up”), and that
the hair was inconsistent with both the victim’s and Apanovitch’s hair. Campbell also testified that
she had “found no physical evidence that would link [Apanovitch] with the death,” but that she did
discover that whoever emitted the body fluids found in the swabs of the victim’s mouth and vagina
was a blood type A secretor. She further noted that Apanovitch himself was a blood type A secretor.
She then testified that approximately 44-45% of the population had blood type A, and that 80% of
all people secrete their blood type, so there were roughly 340,000 men in Cuyahoga County alone
who could have emitted the fluids found on the swabs.1
         Five police detectives testified as to their investigation. Most importantly, Detective
Anthony Zalar testified that Apanovitch had called him to “ask[] me when he’s indicated [sic] would
I please contact him first rather than just go arrest him. I guess his mother has a heart problem so
that he could inform his mother first so she would know before he’s arrested.” (emphasis added).
Defense counsel objected because the prosecution had not previously disclosed this statement. The
prosecution responded that this had only been an oral statement, and so there was no written record
of the conversation that they could have disclosed to the defense. Accepting that answer, the trial
judge overruled the objection. On cross-examination, Detective Zalar said that he had been
“stunned” when Apanovitch had used the words “when I am indicted,” but he did not recall noting
that statement in his report. Defense counsel then asked to review the detective’s written report, but
the court instead instructed Zalar to review his report and confirm the truth of his statement. In
response, the prosecution stipulated to the court that the statement was not in the report. The trial
court, having been beguiled by the prosecution, rescinded its order, and so Zalar was not required
to review his report or make any disclosure of his records to the defense. As will be discussed
below, this prevented Apanovitch from discovering for more than eight years the discrepancies
between the written report (which, contrary to the prosecution’s stipulation, included a summary of
the conversation at issue) and Zalar’s trial testimony.

         1
           The figure “340,000” would seem to have been calculated as the product of 0.8 (the fraction of people who
secrete their blood type), 0.44 or 0.45 (the rough proportion of men who have blood type A), and the approximate total
male population of Cuyahoga County at that time.
No. 94-3117           Apanovitch v. Houk                                                           Page 5


        Finally, five of Flynn’s friends testified regarding her fear of a “painter.” Some of Flynn’s
neighbors testified as to the noises they claimed to have heard from inside her house on the night
of the murder. Apanovitch’s co-worker then testified as to Apanovitch’s sexual interest in Flynn.
Various waiters also testified as to their recollection of Apanovitch’s presence in their bars that
night.
         On December 11, the prosecution rested its case. Before Apanovitch began his defense, the
state filed a motion to reopen its case-in-chief based upon “newly discovered evidence.” Howard
Hammon, a defendant in an unrelated criminal matter, was housed in the same jail cell as
Apanovitch. After his attorney had informed him that the prosecution was interested in learning
whether anyone had heard Apanovitch make any statements regarding his case while in custody,
Hammon told his attorney, and later several attorneys working for the prosecution, that he had heard
Apanovitch say “I might have done it but they’ll never prove it.” During voir dire, and under oath,
however, Hammon recanted this statement, testifying that
       I was over a mental strain. I lost my mother a few weeks ago. I am back for parole
       violation, probably more charges and just got done listening to a bunch of tapes and
       I was drained. They came to me in the courtroom . . . and they hit me at the wrong
       time and I said something that wasn’t true.
The prosecutor read Hammon his earlier statement, and Hammon admitted having made that
statement, but then said “he [Apanovitch] didn’t say that.” Hammon explained that he had recanted
his story after speaking with Apanovitch’s lawyers, but he also testified that Apanovitch’s attorneys
did not ask him to change his testimony or to refuse to testify. The court initially held that it would
have been prejudicial to allow Hammon to testify, and so it denied the prosecution’s motion.
       After the defense rested its case, however, the court called Hammon as a court witness. As
the judge explained:
       Let them [the jury] see the witness and let them judge whether he is telling the story
       before, telling five lawyers the same story, did he lie all five times, did he lie
       once. . . . I think that’s all things that the jury must consider and determine. . . . in
       the interest of justice in this case, particularly, I think the jury should be given all
       relevant and competent evidence.
Therefore Hammon testified that he had told the prosecutors out of court that he had heard
Apanovitch say “I might have done it, but they’ll never prove it. All they got is circumstantial
evidence.” However, Hammon also testified that he had lied in making that statement.
       After the prosecution rested its case, Apanovitch filed a Rule 29 motion for acquittal, which
the court declined. After Apanovitch’s counsel rested its case, the prosecution made its closing
argument, which we summarize below:
       (1) that Apanovitch is a blood type A secretor, that 80% of the population are
       secretors, that one out of three men are blood type A positive secretors, and that the
       “individual who in fact raped here [sic] or the semen that was found inside of her
       body in different cavities was a type A – what’s the word, secreter [sic]”;
       (2) that the jury should disregard the unidentified hair because “It could have been
       found [sic] in transport . . . . It could have been consistent with 14 or 15 other
       people”;
No. 94-3117               Apanovitch v. Houk                                                                   Page 6


         (3) that Apanovitch had told the police to “call me when I am indicted” (emphasis
         added) before he was in jail, a statement that, as the prosecution emphasized, had
         “stunned” Detective Zalar;
         (4) that people at the bars did not corroborate Apanovitch’s alibi, and that
         Apanovitch himself had returned to the bars after his release from jail to ask the
         waiters to remember that he was in particular bars between 9 and 10 p.m.;
         (5) that Flynn’s friends said that she had told them that she was afraid of Apanovitch;
         and (6) that Apanovitch had told the police that he had spoken with Flynn about
         painting her basement window sills, the very windows where the perpetrator
         probably entered or exited Flynn’s house, and the very same object (a basement
         window sill) that was used to bludgeon Flynn.
The jury found Apanovitch guilty on all counts on December 14, 1984.
        At the mitigation hearing, the prosecution argued, inter alia, that even though one could “fill
Cleveland Stadium with the men in this town that were Type A, secreters [sic],” nevertheless, “if
he would have been a Type B, secreter [sic], he wouldn’t be in this courtroom.” The prosecution
also noted at this hearing, referring to Detective Zalar’s trial testimony regarding an allegedly
unrecorded conversation with the petitioner, that Apanovitch had asked “when” he would be
indicted, a fact that had “stunned” the detective. On January 8, 1985, Apanovitch was sentenced to
death for aggravated murder, and to 45-75 years imprisonment for the remainder of the counts.
                                                          C
          Following Apanovitch’s conviction, the procedural history of this case grew progressively
more convoluted. Apanovitch filed a timely direct appeal to the state’s Eighth District Court of
Appeals, and that court affirmed his conviction on August 26, 1986. State v. Apanovitch, No. 49772,
1986 Ohio App. LEXIS 8046 (Ohio Ct. App. Aug. 26, 1986). Apanovitch then appealed to the Ohio
Supreme Court. In a 4-3 decision, that court affirmed his conviction on October 7, 1987. State v.
Apanovitch, 514 N.E.2d 394 (Ohio 1987). In an opinion that proved to be strikingly prescient,
Justice Herbert Brown, writing a partial dissent in which two other justices joined, speculated that
the fact that the victim had blood type A, in tandem with the fact that the report had been silent as
to the victim’s secretor status, made it statistically probable that the victim had been, like 80% of
all people of all blood types, a secretor who happened to have the same blood type as the defendant.
“If the victim was a secretor, the recovery of a type A antigen from the swab obtained from the
victim (who was herself a type A) offers no information concerning the blood type of the assailant,
because the recovered antigens could have as easily originated from           the victim as from the
assailant.” Id. at 405 (Brown, J., dissenting in part) (emphasis omitted).2 Justice Brown thus raised
the spectre that the serological report’s silence as to whether Flynn had been a blood type secretor
may have rendered the serological evidence introduced at trial even less informative than it seemed
at trial.
        Presumably in response to Justice Brown’s dissent, Barbara Campbell – the technician who
had testified at trial about the serological evidence – apparently took it upon herself in March 1988
to amend her report of the Flynn murder to reflect the fact that the victim had indeed been a blood
type A secretor, a crucial fact that she had omitted from her original report and from her testimony.

         2
          Justice Brown concurred that sufficient evidence existed to sustain Apanovitch’s conviction, but he found that
the death penalty was inappropriate “because the evidence of guilt in this case, while sufficient to meet the various
standards which an appellate court must use to measure legal error, is far from overwhelming.” Id. at 404.
No. 94-3117               Apanovitch v. Houk                                                                     Page 7


In the summer of 1988, Campbell filed an affidavit,3 stating that the fact that Flynn had been a
secretor had been contained      in her notes “used in the course of my examination in this case and was
testified to at trial”4 and that “it was and still is my opinion that the number of spermatozoa . . . from
the oral swabs . . . and the identification of seminal acid phosphates demonstrates sufficient
concentration of semen to validate the blood group determination of ‘A’” for the perpetrator.5 Yet
none of Campbell’s trial notes had been made available to the defense, and so it seems that the only
serological evidence to which Apanovitch had access before or during trial had been Campbell’s
report that remained silent as to the victim’s secretor status. Much later, in 1992, Apanovitch
discovered that the police had apparently been made aware of the victim’s secretor status during the
first few days of their investigation.
        His direct appeals having been fruitlessly exhausted, Apanovitch filed a petition to vacate
or set aside judgment (the “first post-conviction petition”) with the Cuyahoga County Court of
Common Pleas on June 2, 1988. Apanovitch therein argued, in relevant part, that (1) the new
serological evidence (based on the state Supreme Court’s dissent and Campbell’s subsequently-
amended report) demonstrated that his trial counsel had been rendered ineffective by their ignorance,
and that the evidence’s omission had violated due process because it was not made available to him
before trial; (2) the out-of-court statements of two witnesses (Hammon and Goetchius) had been
improperly admitted into evidence, and Apanovitch’s trial counsel had been unconstitutionally
ineffective in failing to request a jury instruction limiting the admissibility of out-of-court statements
to impeachment purposes only; and (3) in light of this newly-discovered evidence, there was
insufficient evidence to sustain the conviction. In response to this filing, the state Supreme Court
stayed Apanovitch’s execution, effective June 8, 1988. State v. Apanovitch, 532 N.E.2d 765 (Ohio
1988). The Court of Common Pleas dismissed this first petition for post-conviction relief on April
7, 1989. In its decision, the court concluded, inter alia, that Apanovitch had failed to demonstrate
that the serological evidence was both newly-discovered and material to his conviction.
        On April 26, 1989, shortly after the Court of Common Pleas dismissed his first petition,
Apanovitch apparently asked the City of Cleveland to provide him access to the homicide
investigative file. Presumably unhappy with the city’s response, Apanovitch instituted an action in
Ohio courts against the City of Cleveland (“mandamus action”) on November 29, 1989, seeking a
writ of mandamus to secure access to the police investigation records pursuant to Ohio’s public
records laws as they had been interpreted at that time. This action would not bear fruit for three
years, but it is precisely those records that would support the instant appeal because they suggest that
the state may have violated Apanovitch’s constitutional rights during trial.
       On February 6, 1991, the state Court of Appeals granted in part and denied in part
Apanovitch’s petition for a writ of mandamus, releasing 51 documents in toto, plus redacted portions
of 15 of 39 other documents he had requested after it had conducted an in camera examination of
the documents in question. State ex rel. Apanovitch v. Cleveland, No. 58867, 1991 Ohio App.


         3
            It is not absolutely clear when and why Campbell filed this affidavit. The document in our possession notes
that it was sworn in July 1988, and received in August by the Court of Common Pleas, but Apanovitch refers to it, or
at least to a similar, less-detailed affidavit, in his first postconviction petition of June 1988.
         4
          Campbell is incorrect in this latter assertion, for she had testified at trial only that Apanovitch and the
perpetrator were both type A secretors.
         5
            In asserting that the bodily fluids found in Flynn’s mouth and vagina had been emitted by the perpetrator even
though Flynn secreted the same blood type, Campbell raised a post facto assertion of fact that has not yet been developed
and tested in an appropriate forum. As such, it is not properly before us now. As we are remanding to the district court,
and as it is possesses the inherent authority to conduct an evidentiary hearing under pre-AEDPA law, we presume that
the parties may have an opportunity to pursue this issue should they think it relevant.
No. 94-3117               Apanovitch v. Houk                                                                     Page 8


LEXIS 663 (Ohio Ct. App. Feb. 6, 1991). However, Apanovitch received no records at that time
because he appealed to Ohio’s Supreme Court, challenging the Court of Appeals’s partial denial of
his mandamus petition. He would have to wait for nearly two more years before this action bore
fruit.
        Meanwhile, on February 11, 1991, the state Court of Appeals denied Apanovitch’s appeal
from the denial of his first post-conviction petition. State v. Apanovitch, 591 N.E.2d 1374 (Ohio Ct.
App. 1991). In part, the court held that the purported notation of the victim’s secretor status in
Barbara Campbell’s trial notes, defense counsel’s cross-examination of Campbell regarding the
secretor status of Apanovitch and the assailant (but not of the victim), and the analysis of Justice
Brown (the author of the Ohio Supreme Court’s 1987 direct-appeal dissent) “persuade us that the
defendant could have addressed this issue at trial or on direct appeal, but did not.” Id. at 1375. That
court also concluded that the real effect of Campbell’s secretor testimony had been quite limited
because she had explained to the jury that “the test results merely failed to exclude Apanovitch from
the 40% of the population who, like the assailant, had type A blood.” Id. at 1376.
       On July 24, 1991, the Ohio Supreme Court summarily dismissed sua sponte Apanovitch’s
appeal from the denial of his first post-conviction petition. State v. Apanovitch, 574 N.E.2d 1089
(Ohio 1991). About three weeks later, on August 15, Ohio’s Supreme Court lifted its stay of
execution.
        On November 1, 1991, while his mandamus action remained pending before Ohio’s Supreme
Court, Apanovitch filed a petition for a writ of habeas corpus in the Northern District of Ohio. The
federal court thereafter stayed Apanovitch’s execution. On April 15, 1992, Apanovitch filed his first
motion to expand the record under Rules 5 and 7 of the Rules Governing 42 U.S.C. § 2254 cases.
Specifically, Apanovitch asked the district court to order the State of Ohio to release certain
documents that he enumerated and described, none of which were implicated in his separate state
mandamus action. The federal district court granted this motion on August 11, 1992, and ordered
the state to release (a) certain photographs, (b) the hair found on the victim’s hand, (c) the police
department homicide file, including a list of detectives, police officers and others who had been
present at the crime scene, and (d) any documents indicating the names of people whose hair had
been compared to the hair found on the victim’s hand. The government did not actually release
those documents for several months.
        Meanwhile, the state filed a supplemental return of writ in the summer of 1992 in which it
explained that swabs of bodily fluids found in the victim’s body, long thought destroyed
inadvertently, had been found “in a desk of an employee of the coroner’s office who handled the
Apanovitch case.” The state performed a DNA analysis of the material, and then asked the district
court to authorize a comparison of the DNA material in the swabs with Apanovitch’s DNA.
Apanovitch opposed this motion, arguing that the chain of custody was broken, and that the tests
would likely be inaccurate. The district court did not explicitly rule on this motion, though the court
noted that it was moot because it subsequently denied Apanovitch’s petition.
       While Apanovitch awaited the documents that the federal district court had ordered released
to him, the Ohio Supreme Court affirmed, in a September 2, 1992 decision concerning several
consolidated prisoner mandamus cases, the state Court of Appeals decision to issue a partial writ of
mandamus directing the City of Cleveland to6 release certain records to him. State ex rel. Williams
v. Cleveland, 597 N.E.2d 147 (Ohio 1992). The records were not released immediately, and so
Apanovitch filed a motion on September 16 in the state courts for the release of the records.

         6
          It is of passing interest that Ohio’s Supreme Court significantly altered its approach to investigatory files in
1994, limiting the applicability of a state public records statute to such documents. State ex rel. Steckman v. Jackson,
639 N.E.2d 83 (Ohio 1994).
No. 94-3117            Apanovitch v. Houk                                                         Page 9


Thereafter, on September 25, Apanovitch filed a second motion in federal district court to expand
the record (“second motion”), challenging the Ohio Supreme Court’s refusal to release every
document for which he had petitioned.
         On November 19, 1992, the State of Ohio finally (and fully) complied with the federal
district court’s August 11 order to release certain documents to Apanovitch (none of which were
implicated in his separate mandamus action). Six weeks later, on December 30, the City of
Cleveland fully complied with Ohio’s Supreme Court’s partial grant of a writ of mandamus,
releasing to Apanovitch 51 documents in toto and 15 others that had been redacted.
        Among the documents released by the City of Cleveland, Apanovitch discovered evidence
that, he claims, reveals that the State of Ohio committed several Brady violations during his trial.
First, Apanovitch discovered among police handwritten investigative notes (author unknown), dated
August 23, 1984, a notation that both Apanovitch and the victim were blood type A secretors, a fact
that the prosecution did not reveal to the defense before trial. Second, he found a report, apparently
prepared by one of the detectives, that summarized a telephone conversation between Apanovitch
and the report’s author prior to Apanovitch’s indictment, wherein it was written that Apanovitch had
asked the officer to let him know before arresting him “if I am indicted.” (emphasis added). Of
course, this stands in sharp contrast to Detective Zalar’s trial testimony that Apanovitch had said
“when I am indicted,” and this also gives the lie to the prosecution’s stipulation to the trial judge that
no written evidence of this conversation had been contained in the investigation report. Apanovitch
also discovered other materials among the investigation record that, he claims, reveals other Brady
violations. In February 1993, Apanovitch filed a third motion with the district court to expand the
record to include this newly-uncovered evidence (“third motion”), along with an amended petition.
         On July 28, 1993, without addressing Apanovitch’s second or third motions to expand the
record, his proposed amended petition, or the State of Ohio’s motion to compare Apanovitch’s DNA
to that found on the rediscovered swabs, the district court dismissed the petition. On August 10,
Apanovitch filed a post-judgment motion asking the federal district court to alter its judgment, and
the State of Ohio responded by filing its own motion to alter judgment. In its motion, the state again
asked the district court to authorize a test that would compare Apanovitch’s DNA to that found on
the swabs that had been rediscovered in a drawer in the coroner’s office. On December 28, 1993,
the district court denied both motions. Apanovitch appealed on January 26, 1994, and the district
court granted a certificate of probable cause for appeal on February 1. On March 11, 1994,
Apanovitch filed a motion asking us to hold his appeal in abeyance pending further state court
actions. We granted that motion on May 9, 1994.
       Returning to the state courts, Apanovitch filed a successor petition to vacate or set aside
judgment (the “second postconviction petition”) on March 11, 1994, relying on the new evidence
he had gathered as a result of the documents he received in 1992, and he subsequently filed three
amendments to this petition. The state filed a motion to dismiss this second postconviction petition
in December 1994, and the Court of Common Pleas granted the state’s motion on March 13, 1995,
holding that the federal district court’s denial of the habeas petition had binding res judicata effect.
Apanovitch appealed.
        Meanwhile, Apanovitch filed a Freedom of Information Act (“FOIA”) petition, seeking to
obtain the results of the Federal Bureau of Investigation’s (“FBI”) fingerprint analysis. On July 7,
1995, Apanovitch received certain documents from the FBI pursuant to this request, and so the
District Court for the District of Columbia dismissed Apanovitch’s FOIA action as moot on July 25,
1995. These documents confirmed that investigators had not found any of Apanovitch’s fingerprints
at the crime scene.
No. 94-3117           Apanovitch v. Houk                                                       Page 10


        On November 30, 1995, the state Court of Appeals denied Apanovitch’s appeal from the
denial of his second postconviction petition because Apanovitch had failed to raise the claims in
state courts first, and because the federal court’s ruling had res judicata effect. State v. Apanovitch,
667 N.E.2d 1041 (Ohio Ct. App. 1995). Apanovitch appealed. On May 8, 1996, the Ohio Supreme
Court declined to take jurisdiction. State v. Apanovitch, 663 N.E.2d 1302 (Ohio 1996).
        While his appeal from the Court of Common Pleas’s denial of his second postconviction
petition remained pending in Ohio’s Supreme Court, Apanovitch filed another successor petition
for postconviction relief (“third postconviction petition”) with the Court of Common Pleas. This
motion was based on the results of the FBI’s latent fingerprint analysis. On November 27, 1995,
the Court of Common Pleas dismissed the third postconviction petition, holding that the withheld
evidence was not exculpatory. Apanovitch appealed.
       The state Court of Appeals then affirmed the trial court’s denial of Apanovitch’s third
postconviction petition on August 19, 1996. State v. Apanovitch, 681 N.E.2d 961 (Ohio Ct. App.
1996). He appealed, but the Ohio Supreme Court declined to take jurisdiction on December 20,
1996. State v. Apanovitch, 673 N.E.2d 146 (Ohio 1996).
        His state court proceedings having been exhausted, our order of abeyance was lifted. On
December 23, 1996, Apanovitch filed a motion to remand the proceedings to the district court in
order to conduct an evidentiary hearing. Regrettably, and unaccountably, we took no action on that
motion for nearly eight years. Finally, after Apanovitch himself prompted us to act by filing a
motion to expedite in 2002, we denied his motion to remand on October 19, 2004. Apanovitch then
filed a motion to expand the record on April 14, 2005, and we granted that motion in part on June
15, 2005, expanding the record to include missing pages from the trial transcript and all pleadings
and exhibits that were part of the federal district court record, but denying the motion with respect
to records from Apanovitch’s second and third state post-conviction proceedings. As such, we shall
limit our review to documents that were placed before the district court, including documents
attached to Apanovitch’s unsuccessful motions to the district court to expand the record. Briefing
on the merits of the instant appeal followed.
                                                  II
         We apply the pre-AEDPA standard of review because Apanovitch filed his habeas corpus
petition before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996. Harries
v. Bell, 417 F.3d 631, 634-35 (6th Cir. 2005); Lindh v. Murphy, 521 U.S. 320, 326 (1997). That
standard entitles Apanovitch to have the federal habeas court “make its own independent
determination of his federal claim, without being bound by the determination on the merits of that
claim reached in the state proceedings.” Buell v. Mitchell, 274 F.3d 337, 344 (6th Cir. 2001)
(quoting Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). A district court may grant the writ if the
state conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire,
502 U.S. 62, 68 (1991).
        Under these circumstances, we review the district court’s dispositions of habeas petitions de
novo, and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997).
We must defer to the state courts’ findings with respect to primary or historical facts, which are
rebuttable only by clear and convincing evidence, while we review state court determinations of
federal law or mixed questions of federal law and fact de novo. Coleman v. Mitchell, 244 F.3d 533,
538 (6th Cir. 2001). We generally may not review claims that were not substantively decided by
state courts because only claims adjudicated on the merits in state court proceedings are cognizable
on habeas review:
No. 94-3117           Apanovitch v. Houk                                                       Page 11


       When a habeas petitioner fails to obtain consideration of a claim by a state court,
       either due to the petitioner’s failure to raise that claim before the state courts while
       state-court remedies are still available or due to a state procedural rule that prevents
       the state courts from reaching the merits of the petitioner’s claim, that claim is
       procedurally defaulted and may not be considered by the federal court on habeas
       review.
Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citations omitted), cert. denied, 532 U.S.
989 (2001). See Rose v. Lundy, 455 U.S. 509, 518-19 (1982); Lancaster v. Adams, 324 F.3d 423,
436-37 (6th Cir. 2003). We apply a four-factor test to determine if a claim has been procedurally
defaulted:
       First, the court must determine whether there is such a procedural rule that is
       applicable to the claim at issue and whether the petitioner did, in fact, fail to follow
       it. Second, the court must decide whether the state courts actually enforced [their]
       procedural sanction. Third, the court must decide whether the state’s procedural
       forfeiture is an adequate and independent ground on which the state can rely to
       foreclose review of a federal constitutional claim. This question will usually involve
       an examination of the legitimate state interests behind the procedural rule in light of
       the federal interest in considering federal claims. And, fourth, the petitioner must
       demonstrate, . . . that there was “cause” for him to neglect the procedural rule and
       that he was actually prejudiced by the alleged constitutional error.
Greer v. Mitchell, 264 F.3d 663, 672-73 (6th Cir. 2001) (internal citations and quotation marks
omitted), cert. denied, 535 U.S. 940 (2002). See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)
(establishing standard for determining whether an issue has been procedurally defaulted).
         If an issue has been procedurally defaulted, we may still review it under certain
circumstances. “A petitioner may avoid . . . procedural default only by showing that there was cause
for the default and prejudice resulting from the default, or that a miscarriage of justice will result
from enforcing the procedural default in the petitioner’s case.” Seymour, 224 F.3d at 550 (citing
Wainwright v. Sykes, 433 U.S. at 87, 90-91). Withholding of documents in violation of Brady v.
Maryland, wherein the Supreme Court ruled that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” 373 U.S. at 87,
implicitly constitutes a per se excuse (“cause” and “prejudice”) for procedural default in habeas
review, as the Court has recently stated:
       Brady, we reiterate, held that “the 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.” We set out in Strickler v. Greene [527 U.S. 263 (1999)] the
       three components or essential elements of a Brady prosecutorial misconduct claim:
       “The evidence at issue must be favorable to the accused, either because it is
       exculpatory, or because it is impeaching; that evidence must have been suppressed
       by the State, either willfully or inadvertently; and prejudice must have ensued.”
       “[C]ause and prejudice” in this case “parallel two of the three components of the
       alleged Brady violation itself.” Corresponding to the second Brady component
       (evidence suppressed by the State), a petitioner shows “cause” when the reason for
       his failure to develop facts in state-court proceedings was the State’s suppression of
       the relevant evidence; coincident with the third Brady component (prejudice),
       prejudice within the compass of the “cause and prejudice” requirement exists when
       the suppressed evidence is “material” for Brady purposes.
No. 94-3117           Apanovitch v. Houk                                                        Page 12


Banks v. Dretke, 540 U.S. 668, 691 (2004) (citations omitted). Therefore, to the extent that
Apanovitch successfully demonstrates that the state committed Brady violations with respect to
specific issues, we may exercise jurisdiction. To reiterate, to assert a cognizable Brady claim, a
habeas petitioner must show that (1) evidence favorable to the petitioner, whether exculpatory or
for impeachment purposes (2) was suppressed by the government, and (3) the petitioner suffered
prejudice as a result. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). While the Brady rule
encompasses both exculpatory and impeachment evidence, United States v. Bagley, 473 U.S. 667,
676 (1985), it only applies to evidence that was known to the prosecution, but unknown to the
defense, at the time of trial, and the duty to disclose applies even if the defense made no request.
United States v. Agurs, 427 U.S. 97, 103, 107 (1976). The Brady disclosure requirement extends
to evidence that is known only by the police, but withheld from the prosecution. Kyles v. Whitley,
514 U.S. 419, 438 (1995).
        When analyzing a petitioner’s contention that he suffered prejudice, we assume that the
petitioner has stated a claim of constitutional magnitude, and proceed to discern whether the
petitioner was actually prejudiced by the asserted errors. United States v. Frady, 456 U.S. 152, 170-
72 (1982); Moore v. Carlton, 74 F.3d 689, 691-92 (6th Cir. 1996). The prejudice must have worked
to the petitioner’s actual and substantial disadvantage, thereby infecting his entire trial with an error
of constitutional dimension. Frady, 456 U.S. at 170. The failure to disclose such evidence is
“material,” and therefore “prejudicial,” 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.”
Strickler, 527 U.S. at 280, 282 (quoting Bagley, 473 U.S. at 682); accord Spirko v. Mitchell, 368
F.3d 603, 609 (6th Cir. 2004), cert. denied sub nom. Spirko v. Bradshaw, 544 U.S. 948 (2005);
Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.), cert. denied, 543 U.S. 982 (2004); Zuern v.
Tate, 336 F.3d 478, 484 (6th Cir. 2003), cert. denied, 540 U.S. 1198 (2004); United States v. Brown,
332 F.3d 363, 369 (6th Cir. 2003).
       A “reasonable probability” of a different outcome exists where the government’s suppression
of evidence undermines confidence in the outcome of the trial. Kyles, 514 U.S. at 434 (citing
Bagley, 473 U.S. at 682); Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003). The petitioner
        must convince us that “there is a reasonable probability” that the result of the trial
        would have been different if the suppressed documents had been disclosed to the
        defense. As we stressed in Kyles, “The adjective is important: The question is not
        whether the defendant would more likely than not have received a different verdict
        with the evidence, but whether in its absence he received a fair trial, understood as
        a trial resulting in a verdict worthy of confidence.”
Strickler, 527 U.S. at 289-90 (quoting Kyles, 514 U.S. at 434) (emphasis added); accord United
States v. Crayton, 357 F.3d 560, 569 (6th Cir.), cert. denied, 542 U.S. 910 (2004). Put another way,
the Brady standard’s prejudice is different from a more conventional prejudice analysis:
        the materiality inquiry is not just a matter of determining whether, after discounting
        the inculpatory evidence in light of the undisclosed evidence, the remaining evidence
        is sufficient to support the jury's conclusions. Rather, the question is whether “the
        favorable evidence could reasonably be taken to put the whole case in such a
        different light as to undermine confidence in the verdict.”
Strickler, 527 U.S. at 290 (quoting in part Kyles, 514 U.S. at 434-35) (citations omitted). A Brady
claim thus does not require showing that the introduction of the exculpatory evidence would have
rendered the overall evidence insufficient to convict. Kyles, 514 U.S. at 434-35; United States v.
Frost, 125 F.3d 346, 383 (6th Cir. 1997). Further, the withheld items of evidence must be
No. 94-3117               Apanovitch v. Houk                                                                   Page 13


considered collectively, not individually, to determine materiality. Castleberry v. Brigano, 349 F.3d
286, 291 (6th Cir. 2003).
         Finally, we generally will not consider claims that the petitioner failed to raise first in the
district court. As we have stated,
         [o]ur function is to review the case presented to the district court, rather than a better
         case fashioned after a district court’s unfavorable order. For that reason, it is well
         settled law that this court will not consider an error or issue which could have been
         raised below but was not.
Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005) (internal citations and quotation
marks omitted). Moreover, “we will reverse a district court’s decision to admit or exclude evidence
only if we find that the district court has abused its discretion.” Id. at 748 (citing Beck v. Haik, 377
F.3d 624, 636 (6th Cir. 2004)). “An abuse of discretion occurs when the district court “relies on
clearly erroneous findings of fact, . . . improperly applies the law, . . . or . . . employs an erroneous
legal standard.” Ibid. (citations and internal quotation marks omitted).
        Apanovitch originally requested, and the state continues to request, that we remand various
matters to the district court for an evidentiary hearing.7 As a pre-AEDPA case, there is greater
scope for granting evidentiary hearings than under today’s law. “Generally, a habeas petitioner is
entitled to an evidentiary hearing in federal court if the petition ‘alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary
hearing.’” Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001), cert. denied, 537 U.S. 831 (2002)
(quoting in part Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994)). However, “bald assertions and
conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to
discovery or to require an evidentiary hearing.” Id. at 460 (quoting Zettlemoyer v. Fulcomer, 923
F.2d 284, 301 (3d Cir. 1991)). See Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003); cf. Sawyer
v. Hofbauer, 299 F.3d 605 (6th Cir. 2002). We note that these “condition[s may be] more properly
addressed by the district court in the first instance.” DiCenzi v. Rose, 452 F.3d 465, 472 (6th Cir.
2006). See also Giles v. Schotten, 449 F.3d 698, 700 (6th Cir. 2006). Of course, even a pre-
AEDPA habeas petitioner who is not entitled to an evidentiary hearing may nevertheless receive one
at the court’s discretion. Harries v. Bell, 417 F.3d 631, 635 (6th Cir. 2005) (“ a district court does
have the inherent authority to order an evidentiary hearing even if the factors requiring an
evidentiary hearing are absent.”) (quoting Abdur’Rahman v. Bell, 226 F.3d 696, 705 (6th Cir. 2000),
cert. denied, 534 U.S. 970 (2001)).
                                                           III
        In this appeal, Apanovitch raises four fundamental issues: (A) whether the state committed
any of seven claimed Brady violations by failing to disclose documents with respect to (1) a police
report on statements made by Apanovitch, (2) coroner notes concerning an unidentified hair on the
victim’s body, (3) documents reflecting that the police knew that the victim was a blood type A
secretor, (4) documents reflecting that other people may have enjoyed access to the victim’s home,
(5) evidence that could have been used to impeach the prosecution’s witnesses, (6) evidence that the
police had investigated other possible suspects in the murder, and (7) documents that may have


         7
           We note that, in 2004, we dismissed Apanovitch’s 1996 motion to remand for an evidentiary hearing. Our
denial of his previous motion to remand for an evidentiary hearing was predicated on our decision that the time was not
yet ripe for a remand because the issues had not been squarely presented to us, so that we had not yet enjoyed the
opportunity to review the merits of his claims. As such, our denial was not based on a review of the merits of his claims,
and we are not precluded from granting such a remand now that we have had the chance to review both parties’ claims
in detail.
No. 94-3117            Apanovitch v. Houk                                                        Page 14


impeached the coroner’s report with respect to the time of Flynn’s death; (B) whether the trial court
improperly admitted Howard Hammon’s testimony; (C) whether the trial court improperly admitted
inflammatory and prejudicial hearsay respecting the victim’s state of mind; and (D) whether
sufficient evidence exists to support the conviction. We shall address each of these issues seriatim.
                                                    A
                                                    1
         The first claimed Brady violation arises from the evident conflict involving the trial
testimony of Detective Anthony Zalar, and a document in which Apanovitch is said to have made
a different statement. At trial, Detective Zalar testified that Apanovitch had called him before he
was indicted, and he had “asked me when he’s indicated [sic] would I please contact him first rather
than just go arrest him. I guess his mother has a heart problem so that he could inform his mother
first so she would know before he’s arrested.” Defense counsel objected because the prosecution
had not previously disclosed this statement. The prosecution informed the court that this had been
an oral statement and that, as such, there was no written record of the conversation that could have
been disclosed. The court, having been duped, overruled the objection, stating:
        Well, obviously if it wasn’t in the police report and this is the first knowledge you
        had of them in talking to the officer, you couldn’t have given them the discovery, but
        I think it’s lack of something on the part of the police department that these things
        that you feel are important enough to bring into evidence, if you feel they are
        important to testify about, then they . . . should have been important enough to put
        into the police report.
On cross-examination, Detective Zalar stated that he had been “stunned” when Apanovitch said
“when I am indicted,” but he did not recall writing that statement in his report. Defense counsel then
asked to see the detective’s written report, and so the court instructed Zalar to review his report for
a record of the exchange. However, the prosecution stipulated that the statement was not in the
report, and the court imprudently decided that the prosecuting attorney’s stipulation was credible
and sufficient.
         Apanovitch first raised this issue in his direct appeal to the state courts, wherein he argued
that the court had erred in allowing testimony respecting his oral statements when those statements
were not provided to defense counsel beforehand. The state court of appeals denied this claim,
holding that, in the first place, the prosecutors did not violate their duties of disclosure because “they
just learned of these statements on the morning Zalar was to testify. . . . Taken as true, the trial court
certainly could have concluded that Crim R. 16 was not in fact violated.” Second, the state court
held that the trial court did not abuse its discretion in permitting that testimony. Later, in his habeas
petition, Apanovitch again raised the claim that the admission of Zalar’s testimony constituted a
denial of due process, confrontation, and equal protection. The federal district court addressed this
as a purely evidentiary question, and, because federal courts cannot question state court rulings on
evidence unless they “result in a denial of fundamental fairness,” the district court denied this claim
in its entirety. Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983), cert. denied, 470 U.S. 1050
(1985).
        However, prior to the district court’s denial of the habeas petition, Apanovitch received,
apparently as part of the December 30, 1992 set of documents released by the city of Cleveland
pursuant to the writ of mandamus, a set of typed police investigative reports prepared by Detectives
Bornfield and Zalar. These notes included, inter alia, a memorialization by one of the police
investigators (presumably Zalar, but it is not absolutely clear to us which detective filed the item)
of the telephone conversation in question. The relevant portion of the report stated:
No. 94-3117           Apanovitch v. Houk                                                        Page 15


        While typing this report, received a phone call from Anthony Apanovitch. He again
        stated that he was not responsible for this crime. He did request that if he was
        arrested or indicted in connection with this crime, that he be contacted first, so that
        he can break the news to his mother.
(emphasis added). This newly-discovered evidence directly contradicts the prosecution’s stipulation
to the state trial court that Detective Zalar’s recollection of Apanovitch’s oral statement had never
been written down (justifying its non-disclosure), and it strongly impeaches Detective Zalar’s
testimony that Apanovitch had used the word “when,” and, moreover, that he had been “stunned”
when Apanovitch had used that word. Apanovitch raised this issue in his third motion to expand
the record, claiming that the state’s failure to disclose this document constituted a Brady violation
that resulted in a denial of due process. The district court did not grant Apanovitch’s third motion
to expand the record, and so it did not review this new evidence in rendering its decision.
Apanovitch maintains this claim on appeal.
         First we must address the issue of waiver, for Apanovitch did not raise this claim in his
original § 2254 petition, nor did he raise it explicitly in his amended petition. However, he raised
it in the memorandum in support of his third motion to expand the record, wherein he addressed the
facts underlying this claim and argued that the state violated Brady in not providing evidence of this
statement to his counsel. Although Apanovitch did not raise this precise claim in his original or
amended federal habeas petitions, he did raise a complaint regarding the prosecution’s failure to
disclose the “if/when” oral statements prior to trial, a complaint that he had raised in his direct state
appeal as well. Since he raised the essential issue at an early stage of the litigation, and as he
discussed the substance of the instant claim in his brief, Apanovitch’s failure to raise this precise
issue in the lower courts is excusable, and so the issue has not been waived. Barner v. Pilkington
N. Am., 399 F.3d at 749.
        Moreover, this precise issue lies in an unusual posture, having been first raised in federal
court. Therefore, there is a question of procedural default, for the claim had clearly not been
exhausted at the state level before it was raised in federal court. The district court could have
dismissed the issue as unexhausted, thereby providing the state courts with the first opportunity to
address the claim pursuant to Rose v. Lundy, 455 U.S. at 518-20, but the district court instead denied
on the merits Apanovitch’s petition and his third motion to expand the record. Subsequently,
Apanovitch raised this instant Brady issue with the state courts in his second postconviction petition.
The state courts then ruled that this new evidence was not material, and that res judicata also barred
them from acting. Apanovitch therefore procedurally defaulted this issue.
        As the Brady analysis is identical for our purposes with the procedural default excuse
analysis, we must ascertain whether the prosecution’s withholding of this evidence constituted a
Brady violation. It is clear to us that (1) the evidence was favorable to Apanovitch because it was
clearly impeaching, and (2) the state suppressed the evidence. But it is not immediately apparent
to us whether the withheld evidence materially prejudiced Apanovitch. Strickler v. Greene, 527 U.S.
at 281-82. Therefore we hold that the district court abused its discretion in refusing to grant
Apanovitch’s third motion to expand the record with respect to this element. Barner v. Pilkington
N. Am., 399 F.3d at 748. Since Apanovitch “alleges sufficient grounds for release, [the] relevant
facts are in dispute, and the [lower] courts did not hold a full and fair evidentiary hearing,” Stanford
v. Parker, 266 F.3d at 459 (citation and internal quotation marks omitted), we remand this issue to
the federal district court for reconsideration, and, if necessary, that court may conduct an evidentiary
hearing.
No. 94-3117                Apanovitch v. Houk                                                                    Page 16


                                                             2
        The second Brady claim concerns the precise location of the lone unidentified hair found on
the victim’s body. At trial, Barbara Campbell testified that an unidentified hair was discovered on
the corpse “on the back portion of the hand.” She also testified that the hair did not belong either
to the victim or to Apanovitch. During the mitigation phase, Campbell testified that she had
removed this hair from the palm or surface of the victim’s right hand.
         Campbell’s testimony on this point seems to have been inconsistent with documents that
Apanovitch received in December 1992, wherein it is reported that the hair was found on the back
of the victim’s hand “under her bound hands.” Moreover, the police department apparently noted
on August 28, 1984, also in documents that Apanovitch received in December 1992, that a “black
hair was found by Barbra [sic] Campbell, behind the victims [sic] tied hands.” Apanovitch now
argues that, because the hair was under the victim’s bound hands, between her bound hands and her
back (and therefore perhaps unlikely to have fallen there after her death), the hair could have
belonged to the actual killer. He further argues that this possibility would have made a difference
at trial because either (a) the jury could have suspected that the hair belonged to the real killer, 8or
(b) it could have impeached the prosecution’s attempt to minimize the hair’s importance.

         Apanovitch first raised this argument in his amended § 2254 petition, and it was
substantiated by the documents he had received in late 1992 from the state pursuant to his collateral
mandamus action. Therefore this claim presents many of the same procedural default issues as the
first claim; as with the previous issue, we find that he has procedurally defaulted. For Brady
analysis, this document may have been favorable to the accused, because it could have impeached
the prosecution’s attempt to downplay the hair, and it also could have introduced some measure of
doubt as to the killer’s identity. It is beyond question that the state suppressed this evidence. More
difficult is the question of prejudice. To be sure, Campbell’s guilt-phase testimony (that the hair was
found “on the back portion of the hand”) could possibly be interpreted as consistent with 9one part
of the investigative report (that the hair was found “behind the victims [sic] tied hands”), but her
testimony is distinct from that which is found in her notes (that the hair was found “under her bound
hands”). Obviously this evidence must be sorted and tested, and it is not our proper role to do so.
Barner v. Pilkington N. Am., 399 F.3d at 749. Therefore, we hold that the district court abused its
discretion in refusing to grant Apanovitch’s third motion to expand the record with respect to this
element. Id. at 748. We remand this issue for the district court to reconsider and, if necessary, to
conduct an evidentiary hearing.
                                                             3
       The third claimed Brady error involves the serological evidence. Although the government
generally informed the jury that there was no physical evidence directly tying Apanovitch to the

         8
          In its closing argument, the prosecution sought to minimize the hair’s import by stating that “It could have been
found in transport and it was inconsistent with his hair. That’s all. It could have been consistent with 14 or 15 other
people.” Pursuant to Apanovitch’s first motion to expand the record in April 1992, the district court ordered, in August
1992, the state to produce information regarding who had had contact with the corpse. That information was delivered
in November 1992. It is presently unclear to us whether anyone has conducted any tests to discover to whom the hair
might belong.
         9
          This is not to say that there is no distinction: the “back portion” of bound hands could refer to the heel portion
of the hand, which, when the hands are bound, would have been facing out and away from her body (consistent with the
mitigation phase testimony). To the contrary, “behind the tied hands” would seem to refer more clearly to the portion
of the hands that would have been underneath the bound hands (thus, between the hands and the body), which is
precisely Apanovitch’s contention.
No. 94-3117           Apanovitch v. Houk                                                       Page 17


crime scene, nevertheless the prosecutors insinuated that he was linked to the crime because Barbara
Campbell had found evidence that the perpetrator was undoubtedly a blood type A secretor, just like
Apanovitch. Campbell testified at trial that her tests of the body fluids swabbed from the victim’s
mouth and vagina revealed that there was “seminal acid phosphatase” present, and that blood tests
of the swabs revealed that the fluid had been emitted by a blood type A secretor. She further
testified that 80% of all people secrete their blood type “from either tears, saliva, perspiration or
seminal fluid.” Finally, she stated that Apanovitch was “also a blood group A and also a secreter
[sic].” (emphasis added). Campbell’s report, which was given to the defense prior to trial, noted
that the victim had blood type A and that Apanovitch was a secretor of blood type A. The report
did not state that the victim was a type A secretor, and so the defense had no reasonable means of
ascertaining that fact.
        So important did the prosecution think Campbell’s testimony that it specifically referred to
the serological evidence in its closing argument, emphasizing that the “individual who in fact raped
here [sic] or the semen that was found inside of her body in different cavities was a type A – what’s
the word, secreter [sic].” At the penalty phase hearing, the prosecution argued that even though one
could “fill Cleveland Stadium with the men in this town that were Type A, secreters [sic],”
nevertheless, “if he would have been a Type B, secreter, he wouldn’t be in this courtroom.” The
government thus accorded importance to the serological evidence, even though, logically, it only
indicated that Apanovitch was not excluded as a suspect, and had marginal affirmative probative
value.
         As we noted above, the victim’s serological status first became a live issue for appeal when
Justice Herbert Brown, writing a partial dissent to the Ohio Supreme Court’s dismissal of
Apanovitch’s direct appeal, stated “What troubles me is that the pathological report indicates that
the victim was also in blood group A.” State v. Apanovitch, 514 N.E.2d at 405 (Ohio 1988). Justice
Brown hypothesized that, were the victim herself numbered among the vast majority of people who
secrete their blood type, then the serological testimony would have been further enfeebled because
the evidence from the swabs may not have distinguished between the perpetrator’s blood type and
that of the victim. Indeed, the justice argued that it could have been possible that the perpetrator did
not even have blood type A in such a situation. Id. at 405-06. Of course, Justice Brown’s dissent
was entirely moved by a spirit of speculation, as there is no evidence that the justice had any actual
knowledge of the problem with the state’s serological evidence which he presciently discussed.
        Presumably in response to Justice Brown’s dissent, Campbell took it upon herself to alter
her report in 1988, adding the fact that the victim was a blood type A secretor. She filed an affidavit
shortly thereafter pursuant to Apanovitch’s first postconviction petition, claiming that Flynn’s
serological status had been contained in Campbell’s trial-preparation notes (a statement the truth of
which we are presently ignorant), that Campbell had testified to the victim’s serological status
(which is untrue), and that it remained her professional opinion that the fluid tested in the swabs
came from a man (an assertion of expert opinion not tested at trial). In consequence, Apanovitch
asserted in his first postconviction petition that the government had failed to provide documents
about the victim’s serological status, and that his attorney had been ineffective for having failed to
question Campbell about the victim’s serological status in his first postconviction petition.
        The state courts denied that petition, holding that the serological evidence was neither newly-
discovered nor material to the trial’s outcome. In reaching the latter conclusion, the Ohio Supreme
Court minimized the import of the serological evidence, focusing instead on the fact that Campbell
had testified that (1) there was no physical evidence tying Apanovitch to the crime scene, and that
(2) many men were also blood type A secretors. There this issue stood until December 1992, when
Apanovitch received documents that made it apparent that the police department had been in
possession of the victim’s full serological status prior to the trial. Apanovitch sought to add this
information to the record before the district court in his third motion to expand the record. However,
No. 94-3117           Apanovitch v. Houk                                                       Page 18


the district court denied that motion at the same time that it denied Apanovitch’s petition. In
denying the third motion to expand the record and then dismissing the petition, the federal district
court reasoned that the clear distinction in Ohio law separating the coroner’s office from the police
department meant that no Brady violation had occurred with respect to the serological evidence
because the police did not possess this information prior to trial. That may have been a reasonable
conclusion based on the information properly before the district court, but the evidence received by
Apanovitch in late December 1999 strongly suggests that the police did possess the coroner’s
information.
        We find that Apanovitch has procedurally defaulted on this issue because, although he raised
it directly with the state courts first, the state courts nevertheless dismissed his claim on purely
procedural grounds, holding that “[t]he doctrine of res judicata prohibits our consideration of these
serological test issues which could have been raised by the defendant at trial or on direct appeal.”
State v. Apanovitch, 591 N.E.2d at 1375. However, the state has waived the procedural default
argument, and so we will not treat this claim as having been defaulted.
         We also find that it is possible that the state committed a Brady violation with respect to the
serological evidence. First, the evidence would seem to have been mildly exculpatory in the sense
that it may have undermined any inference that the serological evidence linked Apanovitch to the
crime. On the other hand, even on the prosecution’s view, the evidence was extraordinarily weak,
in that 30-40% of all men had the same blood type and secretor status, which is virtually no evidence
at all. Moreover, the state undoubtedly suppressed this evidence until its hand was forced by the
Ohio Supreme Court’s writ of mandamus. As with the two aforementioned Brady claims, however,
it is presently beyond our ken whether the suppression of this potentially exculpatory evidence
prejudiced Apanovitch at trial. Therefore, we hold that the district court abused its discretion in
refusing Apanovitch’s third motion to expand the record with respect to this claim. We remand this
issue to the district court for reconsideration and, if it deems it appropriate, an evidentiary hearing
to determine whether the state violated Brady in withholding the serological evidence from
Apanovitch’s counsel before and during trial.
                                                   4
        Apanovitch next argues that the prosecution withheld evidence that the police had gathered
with respect to other individuals who had enjoyed access to the victim’s residence, including (1) a
pregnant woman whom the victim had assisted, in part by giving her a set of house keys, as well as
that woman’s boyfriend, (2) other women to whom the victim had also given her keys as part of her
membership in a women’s network, (3) an exterminator who kept a set of Flynn’s house keys, and
(4) approximately twenty-eight men whom Flynn had met through personals advertisements in local
magazines.
         Petitioner derived all of the evidence regarding this issue from the city of Cleveland’s
December 1992 compliance with the Ohio Supreme Court’s writ of mandamus, and so this issue was
not presented first before the state courts, nor was it raised in Apanovitch’s habeas petition, although
he did include them as part of the amended petition he filed along with his third motion to expand
the record in February 1993. The federal court dismissed Apanovitch’s habeas petition without
explicitly ruling on his third motion to expand the record, and the state courts subsequently rejected
this issue on res judicata grounds with respect to his second postconviction petition. This issue is
thus procedurally defaulted. However, despite the fact that Apanovitch did not raise this issue in
his original habeas petition, we will not treat it as abandoned because he raised the issue in his
amended petition.
        With respect to the Brady and related procedural default excuse analysis, Apanovitch has
clearly shown that the government suppressed the evidence. However, it is a closer call with respect
No. 94-3117           Apanovitch v. Houk                                                     Page 19


to whether the evidence was exculpatory and whether it materially affected the trial’s outcome.
Apanovitch argues that the information regarding the individuals who had enjoyed access to Flynn’s
house keys would have been favorable and significant because Flynn’s neighbor testified that she
heard the front door of Flynn’s residence slam shut at approximately 10 p.m., at which time another
witness saw the victim on the back porch, entering her house through the rear door. Moreover, the
boyfriend of one of the women who had lived with Flynn allegedly had entered the house through
a basement window in the past, according to a neighbor’s (undisclosed) statement to the police.
Apanovitch argues that this information could have been used to impeach the state’s theory that the
perpetrator entered through the basement window.
        While this evidence may have been somewhat exculpatory or impeaching, nevertheless we
do not believe that it has affected the trial’s outcome in a material fashion because it does not
directly contradict the state’s evidence. Therefore, we find that although Apanovitch alleged an
excuse for his procedural default, he has not alleged a Brady violation because he suffered no
prejudice from the state’s failure to reveal this evidence.
        Similarly, Apanovitch alleges that the victim received telephone calls from “weird” men she
had met at clubs. Apanovitch argues that this information is favorable because it indicates that other
men had knowledge of the layout of Flynn’s home, that those men may have made sexual advances
toward the victim, and that he suffered prejudice because he was unable to interview them.
However, there is no suggestion that the police had any leads with respect to those men, and there
is no evidence that any of them may have been even remotely involved. Therefore, we find that the
possibility that this evidence might reasonably have affected the trial is simply too remote to have
been prejudicial or even exculpatory, and so the government did not commit a Brady violation in
failing to disclose this evidence.
                                                  5
        Apanovitch further maintains that the prosecution withheld several items of evidence with
which he could have impeached government witnesses at trial. He asserts that the prosecution never
provided him with information that some of the victim’s friends never mentioned that she had
expressed any fear of a “painter” or of Apanovitch. These friends also told the police that the victim
had experienced trouble with a former tenant, that she was afraid of unknown persons who had
recently stolen her purse (and who had subsequently contacted her), that her carpet cleaner and
exterminator had both expressed sexual interest in the victim, and that her former boyfriend had
threatened her in the past.
        Apanovitch believes this information would have been helpful to his defense in that he could
have used it to impeach the government’s evidence that the victim had feared a “painter.”
Specifically, he argues that the evidence would have shown that some of the victim’s friends knew
of no such fear, and that she was afraid of other men, some of whom had knowledge of the layout
of her home.
         Furthermore, Apanovitch argues that the police reports show inconsistencies between what
some witnesses told the police and what they said in their trial testimony. Detective Bornfield
testified that witnesses heard someone walk into Flynn’s house at 10 p.m., but he reported in his
suppressed investigative notes that one witness had “heard the victim on the back porch” between
9 p.m. and 10 p.m. Another witness testified at trial that he saw Flynn arrive home at precisely 10
p.m., but the suppressed police report states that he had observed Flynn enter the rear door of her
home between 10:30 p.m. and 11:30 p.m. Apanovitch claims that this undisclosed evidence would
have impeached the testimony of the state’s witnesses concerning the time that Flynn arrived home.
He also claims that one neighbor’s first statement to the police raises the possibility that the
perpetrator may have entered Flynn’s home through the front door, contradicting the state’s theory
No. 94-3117           Apanovitch v. Houk                                                      Page 20


that the perpetrator entered the house through the basement window. Apanovitch also argues that
he could have impeached the neighbors who testified to hearing a loud noise from Flynn’s side of
the duplex around 11:30 or midnight on the evening of her murder because newly-discovered
evidence suggests that they did not inform the police of this fact eighteen hours after allegedly
hearing the noise.
       Apanovitch has not demonstrated that the absence of any of this evidence undermined
confidence in the verdict, and so we find that the absence of this evidence did not prejudice him.
Therefore, we deny his appeal as it pertains to this claim.
                                                  6
        Apanovitch claims that the police record he received via Cleveland’s December 1992
compliance with the Ohio Supreme Court’s writ of mandamus reveals information on numerous
other suspects in the victim’s murder, including former tenants, boyfriends, and neighbors. For
instance, he notes that the records contain information that the victim feared Harold Burgess, whom
she had evicted shortly before she was killed, and that witnesses had told police that “He was a
drunk and loud mouth and he left on bad terms with the victim.” Apanovitch also notes that one of
Flynn’s friends had reported that the victim’s former boyfriend may have had a reason to kill her.
Police picked up another man, but soon released him. Another description of a suspicious man in
the area may have matched the description of the boyfriend of a woman who had lived with Flynn.
The victim also feared another man who had stolen her purse and, according to a friend, she had
“started receiving phone calls from a male who told her that it sure would be nice if there was a
reward for the return of her purse.” The police had also learned that a man had lived with Harold
and Mary Burgess in the rental portion of the duplex for a short time and “on one occaision [sic]
when her husband was out, this male came up to her bedroom and tried to rape her [Mary Burgess].
After moving out, this male returned 2 or 3 times . . . .” Another neighbor apparently implicated an
entire neighborhood family, stating that they were notorious burglars.
         Apanovitch argues that he could have used this information to impeach the testimony of
police officers at his trial. However, the information does not even indirectly link any of the
suspects to the murder. We hold that this information was simply too remote to have been
exculpatory or to undermine confidence in the verdict. Therefore we deny Apanovitch’s appeal as
it pertains to this issue.
                                                  7
        The coroner testified that she could not be very precise as to the time of death, but estimated
it to have been between midnight and 6 a.m. Apanovitch discovered in the records turned over to
him in December 1992 that Detective Bornfield had stated in a letter to the FBI that Flynn’s death
was believed to have occurred between 11:30 p.m. and midnight. Other detectives reported that the
“time of death between 122.00 [sic] and mid night [sic].” Apanovitch argues that this information,
had it been disclosed, would have reinforced his alibi. We find that Apanovitch has simply referred
to the suspicions of police officers at an inchoate stage of the investigation, and we hold that the
officers’ statements would not have reasonably impeached the testimony of the coroner. Therefore,
we deny Apanovitch’s appeal as it pertains to this issue.
                                                  B
        Next, Apanovitch argues that the trial court’s decision to allow Howard Hammon to testify,
even though he had already recanted the statement that he had made to the prosecutor suggesting
that Apanovitch had admitted to the crime, constituted a violation of due process. Apanovitch raised
the issue of Hammon’s testimony in the state courts only as an evidentiary matter, not as a federal
constitution question, which would normally imply that Apanovitch had procedurally defaulted the
No. 94-3117            Apanovitch v. Houk                                                        Page 21


issue. However, the district court held that Apanovitch had not defaulted on this issue: relying on
Picard v. Connor, 404 U.S. 270 (1971), the district court noted that “as long as the substance of a
federal habeas corpus claim is presented to the state courts, the claim will be deemed presented.”
We agree.
         Nevertheless, we find that this claim lacks merit. Apanovitch argues that the trial court
improperly admitted the testimony of Howard Hammon. Following the close of the state’s case, the
prosecution alleged that they had learned that Hammon, who was incarcerated in the same facility
as Apanovitch, had heard Apanovitch say, in reference to the crime, “I might have done it, but
they’ll never prove it. All they have is circumstantial evidence.” The prosecution moved to reopen
its case to present Hammon’s testimony at trial. During voir dire before the trial court, Hammon
testified that he had lied about Apanovitch’s statement and that he had not heard Apanovitch make
any inculpatory statements. In light of Hammon’s retraction, the trial court denied the prosecution’s
motion to reopen. Nonetheless, after the defense rested, the trial court called Hammon to testify as
a court witness; the court instructed the jury that it should not consider Hammon more important
than any other witness, nor should it give him more credibility because he was being called as a
court witness. The prosecution repeated the statement that Hammon allegedly had overheard from
Apanovitch, and Hammon responded that he had lied in making that statement in the first instance.
        Apanovitch has not demonstrated that the trial court’s admission of Hammon’s original
statement violated his due process rights. An issue concerning the admissibility of evidence does
not rise to the level of constitutional magnitude unless it can be viewed as being so egregious that
Apanovitch was denied a fundamentally fair trial. McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.), cert.
denied, 543 U.S. 892 (2004). Under federal and Ohio evidentiary law, it is generally improper for
the prosecution to impeach its own witness with a prior inconsistent statement when the prosecution
knew that the witness had disavowed the prior statement or had claimed not to remember it. United
States v. Zackson, 12 F.3d 1178, 1184 (6th Cir. 1993); United States v. Shoupe, 548 F.2d 636, 641-
43 (6th Cir. 1977); State v. Holmes, 506 N.E.2d 204, 207 (Ohio 1987); State v. Liberatore, 433
N.E.2d 561, 565 (Ohio 1982); State v. Cantlebarry, 590 N.E.2d 342, 346 (Ohio. App. 1990). The
prosecution may not employ impeachment by prior inconsistent statement “as a mere subterfuge to
get before the jury evidence not otherwise admissible.” United States v. Buffalo, 358 F.3d 519, 522-
23 (8th Cir. 2004) (quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975)); Zackson,
12 F.3d at 1184.
         Nonetheless, even if the trial court improperly admitted this evidence, it is not clear that such
an error amounts to a constitutional violation. While courts have concluded that any violation of
this rule constitutes only nonconstitutional error, Zackson, 12 F.3d at 1185; United States v. Clifton,
406 F.3d 1173, 1179 (10th Cir. 2005), we have held that the admission of such impeachment
evidence can constitute a due process violation only under certain limited circumstances. Shoupe,
548 F.2d at 643 (“the recitation by the prosecutor of the entire substance of a witness’s disavowed,
unsworn prior statements, which, if credited by the jury, would be sufficient to sustain a conviction,
abridged defendants’ right to a fair trial in violation of the Due Process Clause of the 5th
Amendment.”).
        Under the facts of this case, the admission of Hammon’s statement did not violate
Apanovitch’s constitutional rights. Initially, the trial court did not permit the prosecution to call
Hammond as a witness, which likely would have been a violation of the evidentiary rule. Rather,
Hammon testified as a court witness. While this procedure may seems like an attempt to circumvent
the rule precluding the prosecution from calling Hammon as a witness, the Ohio courts have
approved of this method as an appropriate manner to introduce such evidence. State v. Adams, 404
N.E.2d 144, 147-48 (Ohio 1980); State v. Dacons, 449 N.E.2d 507, 510 (Ohio Ct. App. 1982); State
v. Chavis, Nos. 01AP-1456, etc., 2003 WL 231265, at *7-8 (Ohio Ct. App. Feb. 4, 2003). We agree
No. 94-3117           Apanovitch v. Houk                                                       Page 22


that the use of a court witness in such a circumstance does not, ipso facto, violate a defendant’s
constitutional rights.
        We note that impeachment evidence, such as Hammon’s prior statement, generally should
be admitted only for the limited purpose of determining the witness’s credibility. See Dacons, 449
N.E.2d at 510-11. The trial court did not issue an instruction so limiting the jury’s consideration in
this case; indeed, it appears that the prior statement was admitted for the substance of the subject
matter addressed therein, rather than merely for impeachment purposes. Nevertheless, the admission
of Hammon’s statement, even if in error, was not so egregious as to deny Apanovitch a
fundamentally fair trial. Our conclusion in Shoupe that the admission of a similar statement
constituted a due process violation is distinguishable. Unlike the witness’s prior statement in
Shoupe, Hammon’s prior statement would not have been sufficient, alone, to sustain Apanovitch’s
convictions. Indeed, the Ohio Supreme Court did not even refer to Hammon’s statement in listing
the evidence that supported Apanovitch’s convictions. Therefore we find that the petitioner has not
alleged a constitutional error with respect to this claim.
        Apanovitch also argues that the prosecutor improperly referred to one Hans Graewe during
its examination of Hammon. Apanovitch maintains that the prosecutor was going to assert that
Graewe had threatened Hammon to repudiate his prior statement, but the prosecution withdrew the
question following a defense objection. However, Apanovitch has never before raised this claim
in any court, and so we will not consider it in the first instance. Barner, 399 F.3d at 749.
                                                   C
        The prosecution called six witnesses at trial to testify about statements made by the victim
over a period of several months before her murder. The witnesses testified that Flynn was fearful
of a “painter,” and one of the witnesses identified Apanovitch by name. The petitioner now argues
that this evidence constituted hearsay admitted in violation of due process. Although it could be
argued that the appellant has defaulted with respect to this issue, the district court did not find that
he had done so. Rather, the district court dismissed this claim on other procedural grounds, holding
that the state courts’ “judgment rests on a state-law ground that is both independent of the merits of
the federal claim and an adequate basis for the court’s decision.”
        The district court was mistaken in its analysis. The Ohio Supreme Court referred to state and
federal evidentiary law in concluding that the claim was without merit. While the district court
believed that the state court’s reliance on state evidentiary law precluded federal review of the claim,
the “adequate and independent” state rule doctrine is typically applied in the context of a procedural
default analysis. Lancaster, 324 F.3d at 436-37; Greer, 264 F.3d at 673. As the state court did not
conclude that a state procedural rule prevented review of Apanovitch’s claim, the ‘adequate and
independent’ doctrine does not appear applicable in this context, and we proceed to consider this
claim.
       In order to prevail on a claim that an evidentiary error deprived him of due process under the
Fourteenth Amendment, the defendant must show that the error was so pervasive as to have denied
him a fundamentally fair trial. McAdoo, 365 F.3d at 494. Apanovitch argues that the trial court
improperly admitted hearsay testimony that reflected that the victim was fearful or apprehensive of
him. The Ohio Supreme Court noted that the state evidence rule with respect to the state-of-mind
hearsay exception is “identical to” the analogous federal rule. State v. Apanovitch, 514 N.E. 2d at
398 n.1. Rule 803(3) of the Federal Rules of Evidence states that
       A statement of the declarant’s then existing state of mind, emotion, sensation, or
       physical condition (such as intent, plan, motive, design, mental feeling, pain, and
       bodily health), but not including a statement of memory or belief to prove the fact
No. 94-3117           Apanovitch v. Houk                                                        Page 23


        remembered or believed unless it relates to the execution, revocation, identification,
        or terms of declarant’s will.
Fed. R. Evid. 803(3). That is to say, a witness may testify that someone expressed to them fear
of someone or something, but they may not testify as to that person’s explanations of why they were
afraid. United States v. Joe, 8 F.3d 1488, 1492 (10th Cir. 1993); United States v. Taylor, Nos.
92-1875/1911, 1993 U.S. App. LEXIS 7566, at *9 (6th Cir. Mar. 29, 1993) (“Rule 803(3) carefully
excludes statements of belief and for good reason.”).
        Six witnesses testified as to the victim’s state of mind. Irene Heppner testified that the victim
had been fearful of the man painting her house, and that she did not want him to come around
anymore. Cynthia Damartzis related that the victim had been afraid and worried about the man
painting her house because he had been “coming onto [sic] her.” Jacqueline Sparks also testified
that the victim had been afraid of Apanovitch. Jane Hillie testified that the victim had disliked and
had been afraid of the painter because he would “come onto [sic] her” and appear at her house
unexpectedly. Mary Cartwright-Smith stated that the victim had been upset and apprehensive about
the painter, and that she had wished to stop him from painting her house any longer. Lastly, Alice
Sparks indicated that “Tony” [Apanovitch] had been harassing the victim, who was made nervous
and upset as a consequence. Therefore, the state trial court erred to the extent that it allowed some
of the witnesses to elaborate on their testimony regarding the victim’s stated fear of Apanovitch, or
of a man who fit Apanovitch’s description, by explaining that the victim had complained about
Apanovitch’s unrequited romantic advances toward her.
        Nevertheless, an evidentiary error must have been so pervasive as to have denied a petitioner
a fundamentally fair trial in order for the petitioner to prevail on a claim that such an evidentiary
error amounted to a due process violation. McAdoo v. Elo, 365 F.3d at 494. In reviewing a similar
evidentiary issue under AEDPA, we noted that no Supreme Court precedent existed that precluded,
as violative of the defendant’s due process rights, the admission of state-of-mind evidence that the
murder victim feared the defendant. Frazier v. Huffman, 343 F.3d 780, 790 (6th Cir. 2003), opinion
supp. on denial of reh’g, 348 F.3d 174, cert. denied, 541 U.S. 1095 (2004). Here, the testimony
admitted in error was merely duplicative of the unchallenged testimony by Apanovitch’s co-worker,
who testified as to Apanovitch’s sexual interest in the victim, and the bulk of the testimony – that
the victim had expressed fear of a man who fit Apanovitch’s description – was entirely appropriate
under the state-of-mind exception. Therefore, we hold that Apanovitch has not demonstrated that
the introduction of this evidence was so egregious as to deny him a fundamentally fair trial. As
such, we deny this aspect of Apanovitch’s appeal.
                                                   D
        Apanovitch claims that insufficient evidence existed to sustain his conviction. He raised this
claim first with the state courts, so there is no issue of procedural default. The Ohio Supreme Court
determined that this issue was without merit, and the district court likewise concluded that sufficient
evidence existed to support Apanovitch’s conviction.
         Sufficient evidence exists to support a conviction if, after viewing the evidence in the light
most favorable to the prosecution, the court can conclude that any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979). This requires successful challengers to meet a very high threshold, even with
respect to newly-discovered evidence. Schlup v. Delo, 513 U.S. 298, 329 (1995) (“It is not the
district court’s independent judgment as to whether reasonable doubt exists that the standard
addresses; rather the standard requires the district court to make a probabilistic determination about
what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence, no juror, acting
No. 94-3117           Apanovitch v. Houk                                                        Page 24


reasonably, would have voted to find him guilty beyond a reasonable doubt.”). Circumstantial
evidence may support a conviction, McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such
evidence need not remove every reasonable hypothesis except that of guilt. Walker v. Russell, 57
F.3d 472, 475 (6th Cir. 1995). Under Ohio Rev. Code § 2903.01(B), a defendant commits
aggravated murder if he purposely causes the death of another while committing or attempting to
commit, inter alia, rape or aggravated burglary.
        In affirming Apanovitch’s aggravated murder conviction, the Ohio Supreme Court relied on
the following pieces of evidence:
        (1) appellant had the same blood type as the perpetrator; (2) he had a scratch on the
        left side of his face consistent with that of a scratch from a fingernail; (3) appellant
        could not adequately account for his whereabouts on the night in question;
        (4) appellant’s signed agreement to paint a portion of the victim’s house was found
        on the kitchen table the day after the murder was discovered; (5) appellant was
        familiar with the peculiar layout of the victim’s house; (6) appellant knew the victim
        and had made statements to others about his desire to have sexual relations with her;
        (7) the victim was fearful and apprehensive of appellant; (8) appellant spoke with the
        victim at approximately 4:00 or 4:30 p.m. on the day of the murder. (The subject of
        the discussion, according to appellant, was the offer to paint the windowsills. A
        portion of one of the sills was used to stab the victim in the neck.); (9) appellant told
        the police that it did not mean anything if they found his fingerprints in the house,
        even though he had painted only the exterior of the house; and (10) appellant offered
        a variety of inconsistent stories about his whereabouts on the night of the murder.
State v. Apanovitch, 514 N.E.2d at 399. We conclude from the evidence available at trial that a
reasonable juror could have found that Apanovitch murdered Flynn while committing or attempting
rape or burglary. Therefore we affirm the district court’s denial of Apanovitch’s insufficiency of
evidence claim.
                                                   E
        Finally, the state has repeatedly asked the federal courts to authorize it to conduct a
comparison of Apanovitch’s DNA to that found in the oral and vaginal swabs that were discovered
in a drawer in the coroner’s office in 1992. The state at first declared that it had lost or accidentally
destroyed the physical evidence that could have been used to conduct a DNA test. Apanovitch then
demanded a DNA test of the supposedly-destroyed swabs, and claimed in his habeas petition’s ninth
ground for relief that the state had violated his constitutional rights by not preserving the evidence.
After the state rediscovered the swabs – after the habeas petition was filed but before the district
court ruled on the petition – it conducted a DNA test of the material, and then asked the district court
to authorize a test of Apanovitch’s DNA and a comparison of his DNA to that found on the swabs.
 Apanovitch then decided that he did not wish to access the DNA evidence or have it placed before
the district court, and so he objected to that request. The district court subsequently denied
Apanovitch’s habeas petition in its entirety, and in so doing it additionally denied the state’s motion
as moot. Apanovitch continues to raise objections to the state’s request, arguing first that the test
would be inaccurate and unreliable, and second, that the chain of custody is questionable. It is
unclear to us whether any of the DNA material survived the testing, and the exact nature of the test
results of the DNA evidence, as well as the chain of custody, remains murky. We suspect that the
DNA evidence, should it be introduced and subjected to appropriate evidentiary challenges in court,
might help resolve lingering questions of whether Apanovitch suffered actual prejudice when the
state withheld the serological evidence, and whether Apanovitch’s innocence claim can be
No. 94-3117               Apanovitch v. Houk                                                                    Page 25


verified.10 We note that Apanovitch could well benefit from any ambiguity or error in the results
that might lessen the exact accuracy of any hypothetical match with his own DNA. But these are
issues better suited to the district court. Therefore, we reverse the district court with respect to
Apanovitch’s ninth ground for habeas relief and the state’s DNA request, and we remand for that
court’s further adjudication. In so doing, we note that the district court retains the inherent authority
to conduct an evidentiary hearing with respect to the DNA evidence should it deem that course of
action to be appropriate.
                                                           IV
        We REVERSE the district court with respect to its denial of certain aforementioned
elements of Apanovitch’s petition and third motion to expand the record, and REMAND those
specified aforementioned issues to the district court for further adjudication. We also REVERSE
the district court’s denial of the state’s motion to compare the DNA results to the petitioner’s DNA,
and, accordingly, REMAND on this issue as well. We AFFIRM the district court’s denial with
respect to the remaining issues raised by Apanovitch. On remand, we note that the district court
retains the inherent authority to conduct an evidentiary hearing should it determine that further fact
development is necessary and appropriate.




         10
             Although Apanovitch now denies that he is claiming actual innocence in order to avoid a DNA test or an
evidentiary hearing with respect to the DNA evidence, he has clearly claimed innocence in his prior submissions to the
district court. In his original habeas petition, he suggested that the circumstantial evidence adduced at trial “leads to a
reasonable hypothesis of innocence.” Moreover, in his first set of amendments to his habeas petition, he argued that the
unknown hair found on Flynn’s body “could only be hair [sic] belonging to the individual who raped and murdered Mary
Anne Flynn.” Furthermore, in his response opposing the state’s first DNA test request, Record 32, Apanovitch argued
that “Petitioner was indicted, convicted and sentenced to death for the murder of Mary Ann [sic] Flynn, a murder he did
not commit.” Apanovitch cannot first claim actual innocence before the district court, and subsequently drop those
claims, simply to suit his tactical needs, and we are not precluded from reviewing his innocence claims in our de novo
review of the district court’s order. Of course, it would be inappropriate for us to conduct an evidentiary hearing
ourselves, but we believe the district court retains ample inherent authority under a pre-AEDPA standard to conduct an
evidentiary hearing on this matter if appropriate, taking the DNA evidence into consideration should that be deemed
necessary.
