                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0159n.06

                                            No. 12-3360

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Feb 13, 2013
BRYAN CHRISTOPHER STURM,                                  )             LEONARD GREEN, Clerk
                                                          )
       Petitioner-Appellant,                              )
                                                          )
v.                                                        )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
SUPERINTENDENT OF INDIAN RIVER                            )        COURT FOR THE
JUVENILE CORRECTIONAL FACILITY,                           )        SOUTHERN DISTRICT OF
                                                          )        OHIO
       Respondent-Appellee.                               )
                                                                               OPINION




       BEFORE: CLAY, GILMAN and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Petitioner Bryan Christopher Sturm, adjudicated delinquent

in Ohio on two counts of murder, filed a petition for writ of habeas corpus. The district court denied

the petition, but certified two issues for appeal. The issues presented on appeal in this tragic case

are whether the Ohio courts unreasonably applied clearly established federal law in denying Sturm’s

claims (1) that his Fifth Amendment protection against self-incrimination was violated by the trial

court’s admission of his confession; and (2) that he was denied his Sixth Amendment right to

effective assistance of counsel. For the reasons that follow, we find no error in the district court’s

analysis of the two claims and therefore affirm the denial of habeas relief.
Sturm v. Superintendent of Indian River Juvenile Correctional Facility
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                                      I. BACKGROUND1

       The deceased bodies of twelve-year-old Bryan Sturm’s grandmother and aunt, Nancy Tidd

and Emma Tidd, respectively, were found sitting in the living room of the grandmother’s home in

the evening hours of November 22, 2004. Each woman had suffered a fatal gunshot wound to the

head. Within hours, the investigation focused on Sturm at his home in nearby Lower Salem.

Detective Mike Warden of the Washington County Sheriff’s Department, who was acquainted with

Sturm’s father, began questioning Sturm at about 11:50 p.m., with the father’s permission and in his

presence. The questioning took place in an unmarked police cruiser parked outside the Sturm

residence. Warden advised Sturm that he was not under arrest, did not have to speak with the police,

and could leave at any time. Sturm said he understood.

       In response to questioning, Sturm acknowledged that he had not gone to school that day. He

had slept in until about 1:00 p.m. and then “huffed” gasoline. Sturm said his stepbrother gave him

a ride to his grandmother’s house. There he received permission to use a .410 shotgun for target

practice in the backyard. After getting in an argument with his grandmother, Sturm said he called

his uncle for a ride home. Detective Warden had reason to believe Sturm had actually received a ride

home from a motorist who reported having pickedup a shirtless boy walking along State Route 530

early that evening. The motorist had dropped his rider off in Lower Salem. Believing that Sturm




       1
       As to the fact summary that follows, drawn largely from the opinion of the Ohio Court of
Appeals, there is no dispute. In the Matter of Bryan Christopher Sturm, No. 05CA35, 2006 WL
3861074 at *2-5 (Ohio Ct. App. Dec. 22, 2006).

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was lying about how he got home, Warden asked Sturm’s father for permission to continue the

questioning outside his presence. Sturm’s father stepped out of the vehicle and granted permission.

       Warden confronted Sturm about his apparent untruthfulness. Following a few more

questions, Sturm confessed to having shot his aunt and his grandmother. He explained that his

grandmother started “putting him down.” When he raised the shotgun, his aunt intervened and

grabbed the gun. The shotgun accidentally fired, striking his aunt in the side of the head. Sturm said

he then reloaded and shot and killed his grandmother. He left the shotgun there in the laundry room

and started walking through the woods behind the house, eventually getting a ride home.

       At this point in the interview, about 12:19 a.m.,Warden read Sturm his Miranda rights and,

after obtaining a written waiver, tape-recorded Sturm’s statement. Sturm was arrested, taken into

custody and detained in the Washington County Juvenile Center, charged with being delinquent

based on two counts of aggravated murder.

       Prior to trial, Sturm moved to suppress the statement he gave to Detective Warden,

contending that it was elicited during custodial interrogation before he had been advised of his

Miranda rights. The Washington County Juvenile Court concluded that Sturm was not in custody

when he gave the confession and denied the motion. In February 2005, Sturm was tried by a jury

in the juvenile court and was found delinquent on two counts of murder. A blended sentence was

imposed. Sturm was committed to the Ohio Department of Youth Services until he reaches the age

of twenty-one. Thereafter, he is subject to two consecutive prison terms of fifteen years to life, a

sentence which is stayed, however, pending successful completion of the juvenile disposition. The

adjudication was affirmed on direct appeal. Sturm, 2006 WL 3861074. Sturm’s motion for post-

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conviction relief was denied by the juvenile court without a hearing on November 15, 2007. This

ruling, too, was affirmed. In the Matter of B.C.S., No. 07CA60, 2008 WL 4823572 (Ohio Ct. App.

Oct. 29, 2008). After the Ohio Supreme Court denied leave to appeal, Sturm filed his petition for

habeas relief in the United States District Court for the Southern District of Ohio. The petition was

denied on February 24, 2012, but the district court certified two issues for appeal.

       Sturm contends the district court erred in denying his claims that the Ohio Court of Appeals

unreasonably applied clearly established federal law in holding first, that he was not in custody when

he gave his confession, and second, that he had not been denied effective representation. As to the

former issue, Sturm contends that both courts failed to properly consider his age in determining

whether a reasonable person in his position would have felt free to terminate the conversation with

Detective Warden and exit the police cruiser. As to the latter issue, Sturm insists that his trial

counsel’s failure to obtain and call expert witnesses in support of his defense cannot be considered

sound trial strategy, was substandard representation, and resulted in prejudice. Sturm contends

counsel should have consulted and obtained experts to testify regarding coerced/false confessions,

firearm ballistics, crime scene reconstruction, and DNA evidence.

                                          II. ANALYSIS

       A. Standard of Review

       We review the district court’s legal conclusions and rulings on mixed questions of law and

fact de novo, and review factual findings for clear error. Jalowiec v. Bradshaw, 657 F.3d 293, 301

(6th Cir. 2011). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the federal

courts may not grant habeas relief on any claim that was adjudicated on the merits in the state courts

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unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court; or (2) was based

on an unreasonable determination of the facts in light of the evidence presented to the state courts.

28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ only

if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question

of law, or if the state court decided the case differently than the Supreme Court has on a set of

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

       Under the “unreasonable application” clause, a federal court may grant the writ only if the

state court identified the correct governing legal principle from the Supreme Court’s decisions but

unreasonably applied that principle to the facts of the petitioner’s case. Id. “[A] federal habeas court

may not issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id.

at 411. Rather, to warrant habeas relief, the application must be found to be “objectively

unreasonable.” Id. at 409. Petitioner must show that the state court’s ruling was “so lacking in

justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings.’” Renico v.

Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). This

standard is designed to be difficult to meet because habeas relief is reserved for “extreme

malfunctions” in the state criminal justice system. Harrington, 131 S. Ct. at 786.



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       In analyzing whether a state court decision is contrary to or an unreasonable application of

“clearly established” Supreme Court precedent, we look to the holdings of the Supreme Court’s

decisions as of the time that the state court rendered its decision. Greene v. Fisher, 132 S. Ct. 38,

44–45 (2012).

       B. Custody

       Petitioner Sturm correctly argues that if he was “in custody” when he first gave his

confession to Detective Warden without having been Mirandized, then his confession should have

been suppressed. The Ohio Court of Appeals, the last Ohio court to decide the merits of Sturm’s

claim in a reasoned opinion, held that he was not in custody when he first gave his incriminating

statement to Warden and that the statement was properly admitted as evidence against him. The

district court’s denial of Sturm’s habeas petition is based on its adoption of a Report and

Recommendation by the magistrate judge. The district court concluded that the Ohio Court of

Appeals’ ruling was not contrary to or an unreasonable application of clearly established federal law.

       The district court correctly identified the governing standards under clearly established

federal law. In short, whether a person was in custody, triggering the need for advisement of

Miranda rights, is an objective inquiry. Considering all the surrounding circumstances, the question

is whether a reasonable person in the suspect’s situation would have perceived that he was “deprived

of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 477 (1966).

A person is deemed to have been in custody if he was either under arrest or his freedom of movement

was restrained to a degree associated with formal arrest. Thompson v. Keohane, 516 U.S. 99, 112

(1995). This objective determination does not depend on the subjective perceptions of either the

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person being questioned or the interrogating officer. Stansbury v. California, 511 U.S. 318, 323

(1994). The actual mindset of the particular suspect plays no role in the assessment. Yarborough

v. Alvarado, 541 U.S. 652, 667 (2004). Rather, the inquiry is whether a reasonable person in the

suspect’s position would have felt free to leave. Id. at 663.

       Applying these standards, the district court summarized the undisputed factual findings that

formed the basis for the Ohio Court of Appeals’ ruling. The court noted in particular that Sturm

voluntarily agreed to speak with Detective Warden in the unmarked vehicle with his father’s

permission and in his father’s presence; that Warden expressly advised Sturm that he did not have

to speak with the police and was free to get out of the car and walk away at any time; that Sturm said

he understood; and that the interview lasted only about thirty minutes before Warden advised Sturm

of his Miranda rights and recorded his statement. The district court summed up its ruling as follows:

               Based on these facts, the Magistrate Judge is unable to conclude that the state
       appellate court’s decision rejecting Petitioner’s claim contravened or unreasonably
       applied federal law, or constituted an unreasonable determination of the facts in view
       of the evidence presented. As noted by the state appellate court, the record fails to
       reflect use of coercive or threatening police techniques or an atmosphere such as
       would cause a reasonable person to understand he was not free to leave. Petitioner
       voluntarily dressed and accompanied police to the unmarked car with his father to
       speak with them. The period of time during which Petitioner was questioned by
       police was relatively brief. While two police officers accompanied Detective
       Warden, one of those was physically removed from and uninvolved with Petitioner’s
       interview, and the other left the vehicle for a brief period during the time that
       Petitioner confessed. Moreover, police requested permission of Petitioner’s father,
       who was present during the initial portion of police questioning, and available
       outside of the car during the time that Petitioner confessed and later provided a taped
       statement. The record provides no indication that Petitioner did not understand that
       he was free to leave and could go at any time without speaking to police.




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R. 14, Report and Recommendation at 21-22, Page ID ## 3290-91. The district court thus found no

error in the Ohio Court of Appeals’ ruling that Sturm was not in custody.

        Sturm insists the Ohio Court of Appeals’ ruling is clearly unreasonable because it fails to

adequately consider his young age in assessing whether a reasonable person in his situation would

have felt free to leave the police vehicle. Citing J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011),

he contends that a suspect’s age is a factor within the totality of circumstances that must be

considered in making the custody determination. Indeed, the holding of J.D.B. is succinctly stated:

        It is beyond dispute that children will often feel bound to submit to police
        questioning when an adult in the same circumstances would feel free to leave.
        Seeing no reason for police officers or courts to blind themselves to that
        commonsense reality, we hold that a child’s age properly informs the Miranda
        custody analysis.

Id. at 2398-99. Sturm acknowledges that J.D.B. was decided after the Ohio Court of Appeals’ ruling

in 2006, but contends that it reflects the law which had already become clearly established at the time

of the court’s ruling.

        The objective reasonableness of the Ohio Court of Appeals’ decision is measured against the

Supreme Court’s precedents as of the time the court rendered its decision. Greene, 132 S. Ct. at 44.

We reject the notion that J.D.B. reflects the clearly established law at the time of the Ohio Court of

Appeals’ ruling. Both the majority and dissenting opinions in J.D.B. demonstrate that prior Supreme

Court decisional law provided that failure to consider a minor suspect’s age as part of the Miranda

custody analysis was not contrary to or an unreasonable application of clearly established law. See

J.D.B., 131 S. Ct. at 2405, 2412, 2417. Specifically, in Alvarado, in 2004, the Court reversed the

Ninth Circuit’s grant of habeas relief, concluding the state court’s failure to consider age was not

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objectively unreasonable. The Alvarado Court observed that “[o]ur opinions applying the Miranda

custody test have not mentioned the suspect’s age, mush less mandated its consideration.” 541 U.S.

at 666.

          Alvarado represented the state of the law at the time of the Ohio Court of Appeals’ ruling.

It follows that failure to explicitly consider Sturm’s age would not have rendered the Ohio Court of

Appeals’ custody analysis objectively unreasonable. Yet, in any event, the Ohio Court of Appeals

clearly did not fail to consider Sturm’s age. The court correctly recognized that the custody

determination was an objective inquiry. Sturm, 2006 WL 3861074, at *8. It recognized its

responsibility to evaluate the totality of the circumstances. Id. Further, referring to Ohio law, the

court defined the totality of the circumstances as including, among other things, the age of the

suspect.     Id.   After recounting the salient facts, the court explained its analysis in detail,

demonstrating that it did not just pay lip service to this standard, but actually and meaningfully

considered Sturm’s youth. “Although Sturm was young,” and “despite his young age,” the court

held the record clearly supported the finding that he was not in custody. Id. Twice the court stated

its conclusion: “When viewing the totality of the circumstances, a reasonable juvenile in Sturm’s

position would not have believed that he or she was in custody at the time of the interview.” Id.

(emphasis added).

          Thus, although the teaching of J.D.B. was not available to the Ohio Court of Appeals, and

although the clearly established federal law did not require the court to consider Sturm’s age in

making its custody determination, the Ohio Court of Appeals clearly did so. We therefore find no

merit in Sturm’s argument that the Ohio Court of Appeals’ decision is flawed for lack of

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consideration of his age. Nor has Sturm demonstrated that the Ohio Court of Appeals’ custody

assessment was otherwise contrary to or an unreasonable application of clearly established federal

law.

       Sturm argues that the court failed to adequately consider the impact of Warden’s “coercive”

interrogation techniques on a twelve-year-old’s perception of his freedom to leave. Sturm has not

identified record support for a finding that he was subject to coercion. Yes, the length and manner

of questioning are factors bearing on the custody determination. United States v. Panak, 552 F.3d

462, 465 (6th Cir. 2009). The Ohio Court of Appeals considered these factors. It noted that the

interviews “were of relatively short duration,” and that there was no evidence that the interviews

were “harsh or intense,” no evidence that Sturm suffered from any “physical deprivation or

mistreatment,” and no evidence that he was “threatened or induced to confess.” Sturm, 2006 WL

3861074, at *8. Warden did tell Sturm he was lying about how he got home from his grandmother’s

house and asked Sturm whether it was possible that the shotgun went off accidentally, striking his

aunt and grandmother. These expressions of Warden’s views could have influenced how a

reasonable juvenile in Sturm’s position might have perceived his freedom to leave. See Stansbury,

511 U.S. at 326. However, Warden’s confronting of Sturm on the untruthfulness of his story about

how he got home was quite mild, hardly coercive. And the “minimization” suggestion of a possible

accidental shooting was not so threatening or misleading as to have affected a reasonable juvenile’s

belief that he was still free to leave, as he had been expressly assured with his father standing by.

Accordingly, we cannot find that the Ohio Court of Appeals’ assessment of these factors was

objectively unreasonable.

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Sturm v. Superintendent of Indian River Juvenile Correctional Facility
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       Sturm correctly points out that the Ohio Court of Appeals’ analysis included mention of

considerations beyond the scope of the proper objective inquiry. The court took note of record

evidence indicating that Sturm had a “high IQ” and had “prior experience with police questioning.”

Sturm, 2006 WL 3861074, at *8. The court viewed this evidence as indicating that, despite his

young age, “Sturm possessed a high enough level of intelligence and maturity to understand the

officers.” Id. Sturm’s prior experience with the police was deemed to bolster that conclusion. Id.

The court’s mention of these considerations was consistent with the Ohio law requirement that the

suspect’s “mentality and prior criminal experience” be considered as part of the totality of the

circumstances. Id. Such considerations are “improper,” however, under federal law. Alvarado, 541

U.S. at 666–69 (observing that such “contingent psychological factors” implicate the suspect’s

subjective state of mind, something beyond the knowledge of the interrogating officer charged with

responsibility for deciding when Miranda warnings should be given).

       Yet, despite the Ohio Court of Appeals’ mention of these subjective considerations, its

holding on the custody issue, iterated twice, is clearly stated as an objective determination. The

reference to subjective considerations was ostensibly designed to satisfy the requirements of state

law and buttress the conclusion that Sturm was not manifestly handicapped or otherwise not within

the class of “reasonable juveniles.”    Any apparent inconsistency in the court’s analysis is

insignificant, falling far short of the “extreme malfunction” needed to warrant habeas relief under

deferential AEDPA review. Harrington, 131 S. Ct. at 786. We thus find no cognizable error in the




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Ohio Court of Appeals’ holding that Sturm’s Fifth Amendment protection against self-incrimination

was not violated and that his confession was properly admitted into evidence.2

        C. Ineffective Assistance of Counsel

        In the second claim certified for appeal, Sturm contends the representation he received from

trial counsel was constitutionally deficient, in violation of his Sixth Amendment right to effective

assistance of counsel. Sturm contends there was no reasonable strategic reason for counsel’s failure

to seek appointment of experts to rebut the prosecution’s case—experts on false confessions, firearm

ballistics, DNA evidence, and crime scene reconstruction. The Ohio Court of Appeals affirmed the

juvenile court’s denial of this claim in a carefully reasoned opinion. B.C.S., 2008 WL 4823572. In

denying habeas relief, the district court quoted the appellate court’s opinion in great length, agreeing

with its conclusion that Sturm had failed to show that he was prejudiced by any deficiencies in his

counsel’s performance.

        In determining that the Ohio Court of Appeals’ denial of Sturm’s ineffective assistance of

counsel claim was not an unreasonable application of clearly established federal law, the district

court correctly summarized the governing standards established in Strickland v. Washington, 466

U.S. 668 (1984). To prevail on such a claim, a petitioner must show both that counsel’s performance


       2
         Finding no cognizable error in the Ohio Court of Appeals’ determination that Sturm was not
in custody when he first confessed to Warden, we need not address Sturm’s contention that the
subsequent Miranda warnings were ineffective to cure the earlier failure to Mirandize, per Missouri
v. Seibert, 542 U.S. 600 (2004). Because Sturm was not in custody when he first confessed, there
was nothing improper in Warden’s earlier failure to Mirandize that needed to be “cured.” Seibert
applies only to a statement given during prewarning custodial interrogation. See id. at 604–05;
United States v. Johnson, 680 F.3d 966, 979 (7th Cir. 2012).


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was “deficient,” i.e., “fell below an objective standard of reasonableness;” and that the deficiency

resulted in “prejudice,” i.e., “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 687–88, 694.

Both prongs of the test must be met to justify relief. Hence, a reviewing court need not determine

whether counsel’s performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. Id. at 697. If a claim must be denied for lack of a

showing of sufficient prejudice, then the court need not also “grade counsel’s performance” by

scrutinizing its adequacy. Id.

       Sturm had presented his ineffective assistance of counsel claim to the juvenile court in a post-

conviction motion, supported, inter alia, by affidavit of his trial counsel, Raymond H. Smith.

Smith’s affidavit indicates that budget limitations in the Washington County Branch of the Ohio

Public Defender’s Commission played a role in his failure to obtain confessions, ballistics, and crime

scene reconstruction experts. The juvenile court denied the motion, finding counsel’s performance

neither deficient nor prejudicial. See B.C.S., 2008 WL 4823572, at *8. The juvenile court dismissed

Attorney Smith’s insufficient-funds explanation as a disingenuous post-hoc rationalization of a

competent, experienced attorney still zealously advocating for his client. Id. The juvenile court

observed that counsel could have had unlimited resources at his disposal in this double-homicide

prosecution of a twelve-year-old. Recalling that counsel had pushed the State to a quick trial, the

court concluded that the decision to forego the use of experts was a purposeful part of his trial

strategy. Id.



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       The Ohio Court of Appeals faulted the juvenile court for rejecting defense counsel’s affidavit,

calling it an unwarranted failure to give due deference. Yet, upon accepting the averments of

counsel’s affidavit to be true, the Ohio Court of Appeals nonetheless held the juvenile court’s error

was harmless. With thoroughness and clarity, the Ohio Court of Appeals explained that, despite any

deficiency in counsel’s performance, the failure to obtain experts did not prejudice the defense. Id.

at *13–15. This conclusion was driven by recognition that Sturm’s confession, properly admitted

in evidence and not shown to be coerced or false or unreliable, “was powerful and damaging

evidence against Sturm.” Id. at *15. The court acknowledged that there were inconsistencies

between Sturm’s story and the physical evidence, or lack thereof, at the scene, and recognized that

Sturm’s confession “did not ‘exactly mirror’ the evidence.” Id. The court noted, however, that

defense counsel brought many of these inconsistencies to the jury’s attention through cross-

examination of prosecution witnesses and in closing argument. Further, the court emphasized that

Sturm confessed to shooting his aunt and grandmother; that his confession placed him in the

grandmother’s home at the time of the murders; that the confession included details only the shooter

could have known; that Sturm admitted taking steps to destroy forensic evidence; and that his

behavior immediately following the shooting was consistent with guilt. Id. The court also noted that

Sturm had not recanted his confession and had essentially affirmed it during a psychological

evaluation as recently as two weeks prior to trial. Id. at *13.

       We find nothing unreasonable in the Ohio Court of Appeals’ application of the Strickland

standard in concluding that Sturm has not shown prejudice. To the contrary, its analysis is in all



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respects thorough and judicious. Like the Ohio Court of Appeals, we are troubled by the possibility

that the defense strategy was handicapped by unreasonably tight financial constraints. A more

thorough investigation by defense experts addressing inconsistencies between Sturm’s confession

and the physical evidence at the scene would seem to have been advisable. Yet, given Sturm’s

confession, which has not been shown to be unreliable and which Sturm has never formally recanted,

there is no basis for concluding that the defense was prejudiced by any shortcomings in defense

counsel’s performance.

       Sturm insists that the outcome of the trial could have been different if his trial counsel had

utilized experts who would have created questions about the integrity of the prosecution’s case by

highlighting the lack of ballistics evidence, the lack of DNA evidence, the failure of the police to

preserve evidence at the crime scene, and the psychological dynamics that could have contributed

to a false confession. In the face of Sturm’s confession, however, and other evidence corroborating

it, Sturm’s present argument amounts only to speculation, not a “reasonable probability” of a

different outcome. See Harrington, 131 S. Ct. at 791–92 (to establish Strickland prejudice,

likelihood of a different result must be shown to be substantial, not just conceivable); Sowell v.

Anderson, 663 F.3d 783, 399–800 (6th Cir. 2011) (despite deficiencies in defense counsel’s

investigation, no prejudice was shown where petitioner failed to show how a more thorough

investigation would have produced evidence undermining confidence in the verdict); Baze v. Parker,

371 F.3d 310, 322 (6th Cir. 2004) (speculation is insufficient to make out a successful claim of

prejudice).



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       Further, as Strickland makes clear, the prejudice focus is not merely on outcome

determination. Cognizable prejudice consists of a showing that “counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at

687. “Thus, an analysis focusing solely on mere outcome determination, without attention to

whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart

v. Fretwell, 506 U.S. 364, 369 (1993). “To set aside a conviction or sentence solely because the

outcome would have been different but for counsel’s error may grant the defendant a windfall to

which the law does not entitle him.” Id.

       We acknowledge that Sturm’s confession—even though voluntarily given, properly admitted

in evidence, and not expressly repudiated—is not necessarily conclusive of his guilt. See Crane v.

Kentucky, 476 U.S. 683, 688–89 (1986). If the confession were shown to be insufficiently

corroborated or otherwise unworthy of belief, the jury would have been at liberty to disregard it. Id.

Sturm has failed to demonstrate, however, that the substance of his confession was so lacking in

corroboration as to render it unworthy of belief. We concur in the Ohio Court of Appeals’

assessment that any questions the defense might have better raised through expert testimony fall

short of establishing a reasonable probability that the outcome of the trial would have been different.

In the face of Sturm’s confession that he shot his aunt and his grandmother—a confession not

recanted and not shown to be false or unreliable—we cannot find that counsel’s failure to better

utilize experts to challenge the prosecution’s proofs rendered the trial fundamentally unfair or




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undermines confidence in the jury’s verdict. We therefore reject Sturm’s second claim of error as

well.

                                       III. CONCLUSION

        Applying the highly deferential standard of review prescribed by AEDPA, we concur in the

district court’s determination that the Ohio courts’ decisions on the two claims certified for review

were neither contrary to nor an unreasonable application of clearly established federal law. The

district court’s judgment denying the writ of habeas corpus is therefore AFFIRMED.




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