                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0520n.06
                             Filed: June 17, 2005

                                            No. 04-3328

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


WILLIAM SMALL,                                     )
                                                   )
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
ANTHONY BRIGANO, WARDEN,                           )   SOUTHERN DISTRICT OF OHIO
                                                   )
       Respondent-Appellee.                        )


       Before: GUY and ROGERS, Circuit Judges; DOWD, District Judge.*
       ROGERS, Circuit Judge. William J. Small, a state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Small was convicted

in Ohio of two counts of burglary, one count of aggravated burglary, and one count of kidnapping.

The district court granted a certificate of appealability on the issue of whether Small’s trial counsel

was ineffective for failing to investigate the alleged criminal record of a potential defense witness,

Jean Campbell, before deciding not to call Campbell to the stand on this basis. Small alleges that

Campbell would have provided testimony favorable to Small. The Ohio Court of Appeals found

that, even assuming that Small’s counsel had performed deficiently, Small had failed to establish

that the failure to investigate prejudiced Small’s defense. The magistrate judge’s report and




       *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 04-3328
Small v. Brigano

recommendation, which the district court adopted, found that the state court’s decision was not an

unreasonable application of federal law. We affirm.


       This court presumes the state court’s findings of fact to be correct. 28 U.S.C. § 2254(e)(1)

(2001). The Ohio Court of Appeals, in ruling on Small’s state petition for postconviction relief,

summarized the facts of the case as follows:


              From April 1999 to March 2000, appellant lived with his girlfriend, Maxcine
       Martin, and her four children, including her two sons Sam and Ira. When Martin and
       appellant's relationship deteriorated, Martin told appellant to move out. Appellant
       moved out and took most or all of his personal belongings with him. Martin told
       appellant several times not to return to the house. On the evening of April 10, 2000,
       as Martin was returning from a trip, appellant pushed his way through a doorway into
       Martin's house and took a Dreamcast video game system that had been purchased by
       appellant, Ira, and Sam, using Martin's money. Appellant stated that he was taking
       the Dreamcast "because I can." Appellant then left the house. A short time thereafter,
       appellant began calling Martin on the telephone several times per day, telling her that
       he would kill her, "mess" her up, blow up her car and neighborhood, and kill Ira.
       Martin did not call the police at this time.
               On April 29, 2000, Martin was returning home in the early morning when
       appellant jumped out of the bushes just before she got to her back door. Appellant
       struck Martin in the head, causing her to fall. He continued to hit her in the head and
       choke her. Sharon Berry, a neighbor, testified she saw appellant jump out from the
       bushes and strike Martin until appellant dragged Martin around the side of the house
       and out of her view. After striking and kicking Martin, appellant left without entering
       the residence. Appellant continued to make threats on the phone to Martin.
               On May 8, 2000, Andre Small, appellant's brother, knocked on Martin's door.
       After seeing Andre through the peephole, Martin opened her door. However, after
       she opened the door, appellant appeared beside the doorway and pushed his way into
       the house. He locked the door, pulled the blinds, and told Martin to sit on the couch
       and not move. After a conversation regarding the title to her vehicle, appellant told
       Martin to call his former girlfriend, Jean Campbell. After Martin called Campbell,
       appellant left Martin's house. Appellant later telephoned Martin and told her that he
       was going to kill her.



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Small v. Brigano

               On May 12, 2000, while driving a friend to cash a check, Martin saw Andre
       and picked him up. She took Andre back to her home and went upstairs to use the
       bathroom. While Martin was in the bathroom, appellant entered the house, went
       upstairs, and began hitting and kicking her. He then pushed her down the stairs and
       continued to hit and kick her. After Martin made it onto the couch, appellant picked
       up an electric "thunderball" and repeatedly hit her on the leg with it. Before leaving,
       appellant asked Martin if the person she took to cash the check was her "man." That
       evening, appellant telephoned Martin with more threats. Approximately a week later,
       Martin called the police when appellant continued to call her and threaten to kill Ira.
JA 57–58.


       The jury convicted Small of two counts of burglary, one count of aggravated burglary, and

one count of first-degree kidnapping. JA 380. The trial court imposed “a sentence of seven years

on Counts One and Two and sentences of eight years on Counts Four and Five.” JA 381.


       Small appealed his conviction and sentence. One ground on appeal was similar to the claim

at issue here: Small urged that his trial counsel was ineffective, in violation of Small’s rights under

the Sixth and Fourteenth Amendments, for failing to call Jean Campbell, Small’s former girlfriend,

as a witness. Small argued that Campbell had spoken with the alleged victim of the offenses,

Maxcine Martin, and could testify that Martin had “set up” Small. JA 51. The Ohio Court of

Appeals found that Small’s counsel’s failure to call Campbell to the stand “was purely a matter of

trial tactics.” JA 51. The court sustained only one of Small’s arguments on appeal, finding that the

trial court’s sentencing order was ambiguous as to the term of imprisonment. The court therefore

remanded the matter to the trial court solely in order for the court to clarify its sentence. JA 53.


       Small then filed a petition for state postconviction relief. As one ground for relief, Small re-

asserted his claim of ineffective assistance of trial counsel. JA 485. Specifically, Small alleged, the

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No. 04-3328
Small v. Brigano

prosecutor had informed Small’s counsel at trial that a “Jean Campbell” had a criminal record. Id.

Small’s counsel had previously planned to call Campbell to the stand. Counsel believed the

prosecutor’s assertion about Campbell’s criminal record, however, and decided on this basis not to

call Campbell. In fact, according to Small, the prospective witness named Jean Campbell had a

clean record. Small’s petition alleges that his trial counsel failed to do any independent investigation

concerning Campbell’s background and that if he had, he would have discovered that the

prosecutor’s assertion was incorrect.


        The Ohio Court of Appeals found that, even assuming that counsel’s performance was

deficient, Small had not shown that his defense was prejudiced by counsel’s failure to investigate

Campbell’s record. In the evidentiary hearing on Small’s petition for state postconviction relief,

Small called two witnesses: Campbell and Roger Koeck, Small’s trial counsel. Campbell testified

that, had she been called as a witness at trial, she would have testified that Martin, Small’s alleged

victim, made comments to Campbell that would have exculpated Small. Martin told Campbell that

she was upset with Small for seeing other women and that Martin, in order to seek revenge, was

going to lie to “send [Small] down the river.” JA 578. Martin had told Campbell that Martin was

“gonna get her kids on the stand and lie that she had a bruise on her.” Id. In fact, however, “[Small]

didn’t do it.” JA 578. Koeck testified that he would have used Campbell’s testimony about this

conversation with Martin exclusively to impeach Martin’s credibility. JA 555.


        While Campbell’s testimony would seemingly cast doubt on Martin’s accusations, the

evidentiary hearing also disclosed some basis for questioning Campbell’s own credibility. Koeck

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Small v. Brigano

conceded in his testimony at the evidentiary hearing that he was aware of an audiotaped

conversation between Campbell and Small, which may have damaged Campbell’s credibility. James

Lowe, the prosecutor in Small’s case, testified for the State at the hearing. Lowe testified that on

the tape, Small told Campbell that Maxcine Martin was “mad because [Small] whipped her *** ass.”

JA 60. Further, Lowe testified, Campbell stated on the tape that she had been told by Martin that

Small had beat Martin up.1 Id. The conversation was taped during a period in which Campbell had

agreed to cooperate with the State in investigating Small on an unrelated offense. Koeck stated that

the existence of this tape was “a consideration” in his decision not to call Campbell to testify, but

he denied that this factor alone caused him to reconsider putting Campbell on the stand. JA 567-

569. Instead, he testified, the ultimately incorrect news that Campbell had a criminal record “was

the straw that broke the camel’s back” in convincing Koeck that Campbell should not testify. Id.

at 569.


          The trial court denied postconviction relief, relying on the rationale that Small was not

prejudiced by Koeck’s failure to investigate Campbell’s record, because factors such as Koeck’s

doubts about Campbell’s credibility and his fear that the taped conversation would damage his

client, may have explained Koeck’s decision not to call Campbell as a witness. JA 689. The Ohio




          1
         Campbell’s evidentiary hearing testimony conflicted to some extent with Lowe’s. In
response to the prosecutor’s question about whether she remembered having told Small that Martin
had accused Small of assaulting her, Campbell testified, “I don’t remember that. I know she said
he pushed her.” JA 587-589. Neither the trial court nor the Ohio Court of Appeals made findings
of fact on what Campbell said during the conversation. The contents of the tape do not form part
of the record in this habeas case.

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No. 04-3328
Small v. Brigano

Court of Appeals affirmed. The Court of Appeals noted that the failure to research Campbell’s

record likely did not prejudice Small’s defense, for two reasons. First, the court noted, trial counsel

admitted that he knew Campbell was at one time Small’s girlfriend, and counsel also acknowledged

that he had doubts about Campbell’s credibility. JA 61. Second, “had Campbell testified, the state

could have impeached her testimony through the tape, and [Small’s] incriminating statements could

also have been introduced.” JA 61. Therefore, the Ohio Court of Appeals found Small’s ineffective

assistance claim to be without merit. On October 30, 2002, the Ohio Supreme Court declined

review. JA 918.


       On March 4, 2003, Small filed a petition for habeas corpus.               A magistrate judge

recommended that all of Small’s habeas claims, including the one at issue here, lacked merit. The

magistrate concluded that the Ohio Court of Appeals’ finding that no prejudice resulted from

Koeck’s counsel’s failure to research Campbell’s criminal history, was not an unreasonable

application of federal law.     JA 985. The district court adopted the magistrate’s report and

recommendation, but granted a certificate of appealability on the sole issue of whether Small’s

counsel was ineffective for failing independently to research Campbell’s criminal record. JA 1038.

Small appeals the district court’s decision.


       Small claims that he was denied effective assistance of counsel, in violation of the Sixth and

Fourteenth Amendments, by his trial counsel’s failure to conduct a reasonable investigation into

Jean Campbell’s criminal background before deciding not to call Campbell as a witness. The

highest state court to consider this claim, the Ohio Court of Appeals, determined that, even assuming

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No. 04-3328
Small v. Brigano

that Small’s counsel performed deficiently, Small could not demonstrate that he was prejudiced by

his counsel’s actions. The district court agreed with this conclusion in denying habeas relief.

Because the state court’s decision was not contrary to or an unreasonable application of federal law,

the decision of the district court is affirmed.


        This court may grant a state prisoner’s application for a writ of habeas corpus only if a state

court decision on the merits "was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §

2254(d)(1). A state court’s determination is contrary to federal law when the state court arrives at

a conclusion opposite to that reached by the Supreme Court on a question of law or on

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court’s decision

is an unreasonable application of federal law when the state court correctly identified the applicable

legal principle from Supreme Court precedent, but applied that principle to the facts before it in an

unreasonable manner. Id. at 413.


        A criminal defendant must prove the following in order to establish a claim for ineffective

assistance of counsel:


        First, the defendant must show that counsel's performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.




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No. 04-3328
Small v. Brigano

Strickland v. Washington, 466 U.S. 668, 687 (1984). The state court determined that, even assuming

that counsel’s performance fell below an objective standard of reasonableness, Small could not

demonstrate that he had been prejudiced by his counsel’s actions. State v. Small, Nos. 01AP-1007,

01AP-1008, 2002 WL 1379127, at * 5 (Ohio Ct. App. June 27, 2002). The district court found that

the state court’s conclusion was not an unreasonable application of Strickland.

        Small argues that the district court erred in finding no prejudice. Specifically, Small

contends that the district court erred in accepting the Ohio Court of Appeals’ incorrect assumption

that the tape-recorded conversation between Campbell and Small was admissible for purposes of

impeaching Campbell. Small argues that the state court should not have taken the tape-recorded

conversation into account in evaluating whether Campbell’s absence as a witness prejudiced Small’s

defense. The recording would be inadmissible as a prior inconsistent statement impeaching

Campbell, Small argues, because nothing in the recording contradicted the testimony Campbell

planned to offer at trial: that Martin admitted to Campbell Martin’s intention to accuse Small falsely

in order to seek revenge against him. Small concedes that the tape recording contains Small’s

admission that he assaulted Martin once. Nonetheless, Small argues, the tape does not “prove two

counts of burglary, one count of kidnapping, and one count of aggravated burglary.” Appellant’s

Br. at 11.

        Small’s contentions do not compel a conclusion that trial counsel’s performance prejudiced

Campbell, for two reasons. First, Koeck’s failure to research Campbell’s criminal record may not

have been the main cause of Koeck’s decision not to call Campbell to the stand. Second,



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Small v. Brigano

Campbell’s absence as a witness likely did not prejudice Small’s defense, both because she may

have been subject to impeachment, and because of the weight of the evidence against Small.

       Koeck’s failure to investigate may not have been the decisive factor in Koeck’s decision not

to call Campbell to the stand. The Ohio Court of Appeals found that the information concerning one

Jean Campbell’s criminal record “was provided to defense counsel with the express provision that

counsel would need to provide further information (i.e., date of birth, social security number) in

order to determine if the record check was for the same Jean Campbell.” JA 60. When, after hearing

this news, Koeck asked Campbell whether she in fact had a criminal record, she stated that she did

not. Id. Further, Campbell testified at the evidentiary hearing that Koeck had told her, after learning

from the prosecutor about a positive record check for a person by the same name, that the record

could belong to “any Jean Campbell.” JA 591. Koeck’s testimony in the state court evidentiary

hearing that the news of Campbell’s criminal record formed “the straw that broke the camel’s back”

in Koeck’s decision not to call Campbell to the stand, lacks credibility in light of these facts.

       Other factors, noted by the Ohio Court of Appeals, may have played a more important role

than the prosecution’s criminal record check in Koeck’s decision not to call Campbell to the stand.

Koeck knew that Campbell and Small had a past, and possibly present, romantic relationship.2 In

addition, Koeck questioned the truth of Campbell’s intended testimony. Koeck testified at the state

postconviction relief evidentiary hearing that he “was very hesitant about whether [Campbell] was



       2
      Campbell was previously Small’s girlfriend. In addition, the magistrate judge’s report and
recommendation states that “[a]t sentencing petitioner repeatedly referred to Campbell as ‘his
woman.’” JA 985.

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No. 04-3328
Small v. Brigano

telling me the full story as to what happened. I got the impression not that anything that she was

telling me was false but that she was not completely forthcoming in everything that was going on.”

JA 559.

       Even if Koeck’s misplaced confidence in the prosecutor’s criminal record check did cause

him not to call Campbell to testify, the Ohio Court of Appeals properly found that Campbell’s

absence as a witness did not prejudice Small’s defense. The state court properly found that

Campbell may have been susceptible to impeachment. A habeas court is generally bound by state

court interpretations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). We must presume

that the Ohio Court of Appeals correctly interpreted Ohio evidence law when it concluded that the

tape-recorded conversation between Campbell and Small could have been used to impeach

Campbell. Moreover, there is reason to doubt Small’s argument that the tape-recorded conversation

is not inconsistent with Campbell’s proposed testimony. On the tape, the parties agree, Small admits

to Campbell that he assaulted Martin. Further, the prosecutor testified that on the tape, Campbell

reported to Small that she had heard Martin accuse Small of assaulting her. Campbell intended to

testify that she had been told by Martin that Martin planned falsely to accuse Small of beating her,

causing a bruise, when in reality Small did not cause the bruise. JA 578. Campbell would have been

called to the stand solely to testify that Martin had described a plan to accuse Small falsely of

assault. Without delving into Ohio evidence law, we can conclude that the state court was at least

arguably correct in determining that Campbell’s credibility would be damaged by any testimony

about Campbell’s tape-recorded conversation with Small, which contained an admission that Small

had assaulted Martin. Under these circumstances, the Ohio Court of Appeals did not apply

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No. 04-3328
Small v. Brigano

Strickland unreasonably when it determined that counsel’s failure to investigate Campbell’s criminal

record did not prejudice Small’s defense.

          Finally, even assuming that the jury would have believed Campbell’s testimony at trial, the

strength of the other evidence against Small weighs against a finding that Small was prejudiced by

Campbell’s absence as a witness. See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than one with

overwhelming record support.”). Martin’s neighbor testified that she had previously seen Small

jump out of the bushes and assault Martin. In addition, the prosecution introduced into evidence a

photograph of bruises on Martin’s body. Finally, Martin’s son had a receipt, and a warranty with

his name on it, for the Dreamcast video game system that Small allegedly stole from Martin’s son

(and which Small claimed was his own).

          Given the possibility that Koeck would have chosen not to call Campbell even without any

dispute about her criminal record, the likelihood that Campbell’s credibility would be impeached,

and the strength of the evidence against Small, the state court reasonably determined that the

prejudice prong of Strickland was not met, and therefore that Small’s ineffective assistance claim

failed.

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




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