                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0363n.06

                                            No. 09-4098

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               APR 4, 2012
                                                                           LEONARD GREEN, Clerk
DAVID G. THORNE,                                          )
                                                          )
       Petitioner-Appellant,                              )
                                                          )         ON APPEAL FROM THE
               v.                                         )         UNITED STATES DISTRICT
                                                          )         COURT FOR THE
DEB TIMMERMAN-COOPER, WARDEN,                             )         NORTHERN DISTRICT OF
                                                          )         OHIO
       Respondent-Appellee.                               )
                                                          )
                                                          )


BEFORE: CLAY, ROGERS, and DONALD, Circuit Judges.

       ROGERS, Circuit Judge. Petitioner David Thorne appeals the denial of his § 2254 habeas

petition, which challenged his conviction for aggravated murder. Following a five-day trial, Thorne

was convicted and sentenced to life in prison for hiring a man named Wilkes to kill Thorne’s ex-

girlfriend so that Thorne could have custody of their son. On appeal, Thorne argues that the district

court erred in rejecting his various Brady claims regarding evidence that another person was near

the murder scene after the murder and that police at one point had other leads in their investigation.

Thorne also contends that he was denied effective assistance of trial counsel because his counsel

failed to hire a blood spatter expert, and failed to uncover discrepancies between crime scene photos

and Wilkes’s confession.       However, because Thorne cannot demonstrate that the evidence

suppressed by the State was both exculpatory and material, he cannot succeed on his Brady claims.


                                                  1
As for his ineffective assistance of counsel claim, because the state court’s application of Strickland

was neither contrary to federal law nor unreasonable in light of the evidence presented at the state

court proceeding, Thorne also cannot prevail on this claim. Therefore, Thorne’s federal habeas

petition was properly denied.

                                                  I.

       On September 15, 1999, Thorne was charged with hiring Joseph Wilkes to kill his ex-

girlfriend, Yvonne Layne, the mother of his son, Brandon. Thorne was charged with one count of

aggravated murder in violation of O.R.C. 2903.01. Thorne was also indicted for the specification

that he committed murder for hire, in violation of O.R.C. 2929.04(A)(2).

        Layne, a mother of five young children, was killed in her home during the night of March

31, 1999. The next day, Tawnia Layne, the victim’s mother, went to Layne’s home to take one of

her grandchildren to school. When she arrived, she discovered her daughter’s body. Layne’s throat

had been cut, and she was lying in a pool of blood. Layne’s children were awake in the house.

When police arrived, two partial bloody footprints were discovered at the scene. There was no other

physical evidence present.

       During the investigation, the police discovered that Layne had recently brought paternity

proceedings against Thorne with respect to her son. The court ordered Thorne to pay child support

in the amount of $358 per month with weekly payroll deductions beginning in March of 1999. At

the time of his first payment, Thorne owed more than $700 in back support.

       Wilkes became a suspect in the murder after Rose Mohr, a key witness, contacted the police

to tell them that she and her boyfriend, Chris Campbell, had spoken with Wilkes at Carnation Mall

on the night of the murder. Mohr told police that Wilkes said he was in town because he had been


                                                  2
hired to kill a woman. Wilkes showed Mohr and Campbell the knife that he had purchased at

Walmart. Mohr remembered Wilkes saying that “some guy” hired him to commit the murder.

Campbell, on the other hand, recalled Wilkes mentioning that his “girlfriend” had asked him to

commit the murder and had paid for his room at the adjoining Comfort Inn.

       In July of 1999, Wilkes confessed to the murder and implicated Thorne, stating that Thorne

hired him to kill Layne. Wilkes provided details, including how Thorne’s alibi was created and how

Thorne planned the murder. Wilkes also stated that Thorne paid for the motel where Wilkes stayed

the night after the murder, and also provided the money to purchase batting gloves and the knife used

in the murder. As for Thorne’s motive, Wilkes explained that Thorne wanted custody of his son,

Brandon, and did not want to pay child support.

       Wilkes testified that he rented a room at the Comfort Inn at Carnation Mall in Alliance, Ohio,

on March 31, 1999. He then purchased batting gloves and a knife, walked to Layne’s residence, and

committed the murder. Wilkes told police that he threw the knife in a storm sewer near the crime

scene, and disposed of the gloves in a McDonald’s dumpster. The next morning, Thorne picked

Wilkes up at the hotel and dropped him off at a friend’s house. Behind the house in the woods

Wilkes hid the nylon workout suit he wore during the murder.

       During the investigation, Wilkes directed police to both the knife and the nylon workout suit.

The knife and pants were tested for human blood, and a preliminary test showed the presence of

human blood on the knife. However, further testing failed to return a positive test for human blood.

No blood was found on the pants.

       A jury found Thorne guilty of aggravated murder and of the specification that he conspired

to commit murder for hire. At the sentencing hearing, the jury was unable to reach a verdict on the


                                                  3
death penalty. Under State v. Springer, 63 Ohio St.3d 167 (1992), the trial court declared a mistrial

as to the sentencing phase of the trial and sentenced Thorne to life in prison without eligibility for

parole.

          In February of 2000, Thorne filed a motion for a new trial, which the trial court denied. A

few months later, Thorne filed a direct appeal, arguing that the guilty verdict was not supported by

the evidence and that he was denied his constitutional right to effective assistance of counsel. The

Ohio Court of Appeals denied the appeal and affirmed the trial court’s decision. Thorne then

appealed to the Ohio Supreme Court, which dismissed the appeal as not involving a substantial

constitutional question.

          Prior to filing a direct appeal in the Supreme Court of Ohio, Thorne filed a postconviction

petition in the state trial court. In January of 2001, Thorne amended his postconviction petition to

include a Brady claim, which alleged that the State had failed to turn over the witness statement of

George Hale. Hale told police that on the morning after the murder he observed a man, who did not

meet the description of either Wilkes or Thorne, around Layne’s house. After permitting the petition

to be amended two more times, the trial court granted Thorne’s request for an evidentiary hearing.

A few months after the evidentiary hearing, the trial court denied Thorne’s amended postconviction

petition. On appeal, the Ohio Court of Appeals and the Supreme Court of Ohio affirmed the trial

court’s denial of Thorne’s postconviction petition.

          On April 13, 2006, Thorne filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. After the government filed its response to Thorne’s habeas petition, Thorne filed numerous

motions requesting an extension of time in which to file his traverse. Thorne also requested leave

to conduct additional discovery and filed a motion requesting that the government turn over


                                                   4
numerous documents in order to complete the record. R.15, Motion to Complete the Record. After

a telephonic argument before the Magistrate Judge, the court ordered the government to provide

certain postconviction relief hearing exhibits. R. 23, Order. Thorne was also provided the

opportunity to conduct additional discovery.

       On February 6, 2009, Thorne filed his traverse, which included, for the first time, the

expanded Brady claim that additional exculpatory evidence was withheld from the defense. R. 48,

Traverse, at 10-38. This additional evidence included: the fact that the police had shown George

Hale a photo array including both Thorne and Wilkes, and that Hale still could not identify the man

he had seen outside Layne’s home the morning after the murder; the name and statement of Daniel

Rogers, another witness who told police that on the day of the murder he had seen a man get out of

a car, walk to Layne’s door, feel around the door frame and enter the house, which Thorne argued

cast doubt on Wilkes’s story that he had walked from Carnation Mall to the house to commit the

murder; a conversation between the detectives and a psychic in which, allegedly, the psychic put an

“untenable story” as to how the murder was perpetrated “in the detectives’ heads,” and the detectives

discussed rumors that Layne was involved with illegal drugs and the mob; the investigators’ initial

belief that Layne had been murdered near the sliding glass doors, not on the couch as Wilkes

confessed; allegations of a relationship between Layne and a married police officer; the names of

potential other suspects; and the statements of Layne’s 4-year-old son, which allegedly mentioned

that “mommy” was pushed down by “Jimmy,” not Wilkes or Thorne. Id.

       In his Report and Recommendation, the Magistrate Judge recommended that Thorne’s habeas

petition be denied on all grounds. With regard to Thorne’s expanded Brady claim, the Magistrate

Judge first summarized the volume of additional evidence presented by Thorne and separated this


                                                 5
evidence into “three classes”: “(1) statements of witnesses who allegedly could have undermined the

credibility of Wilkes’ confession and testimony; (2) evidence that allegedly would have enabled the

defense to challenge the thoroughness and reliability of the police investigation; and (3) evidence

that allegedly would have enabled the defense to effectively impeach the prosecution’s witnesses.”

R. 58, Report and Recommendation, at 24.

       As for the first category, the Magistrate Judge examined the prosecution’s failure to disclose

the witness statements of George Hale and Daniel Rogers, who said that they saw an unidentified

man near Layne’s house around the time of the murder. The Magistrate Judge determined that, even

if Hale had seen someone else near Layne’s house the morning after the murder, the “fact that a third

party may have been in the house between the commission of the murder and the time the police

investigated the crimes does not change the fact that objective evidence corroborated Mr. Wilkes’

confession.” R. 58, Report and Recommendation at 27. Similarly, “all that Mr. Rogers can establish

is that an unidentified male entered Ms. Layne’s home at some undetermined time when she may or

may not have been home.” Id. Based on these assessments, the Magistrate Judge determined that

the witness statements of George Hale and Daniel Rogers were neither exculpatory nor material, and

thus, their nondisclosure did not constitute a Brady violation.

       In examining the exculpatory value of these witness statements, the Magistrate Judge also

discussed Wilkes’s recantation of his confession. The Magistrate Judge stated that Wilkes’s

recantation did “not establish a reasonable probability of a different result, even considering the new

evidence,” because the Supreme Court has held that recanted testimony should be viewed with

suspicion. Id. at 31 (citing Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984)). Because

Wilkes’s original confession would still be admissible as compelling impeachment evidence, and


                                                  6
an overwhelming amount of physical evidence corroborated Wilkes’s original version of events, the

Magistrate Judge believed that “a jury would not be likely to afford Mr. Wilkes’s revised testimony

sufficient weight to establish a reasonable probability of a different outcome.” Id. at 32.

       As for the second category of evidence that would have “enabled the defense to challenge

the thoroughness and reliability of the police investigation,” the Magistrate Judge discussed the

following: (1) statements that the detectives initially believed Layne’s throat was cut in front of the

sliding glass doors, not on the couch as Wilkes confessed; (2) allegations that Wilkes’s confession

regarding how the murder was committed was “actually a baseless rumination proposed to [the

police] by a ‘psychic’”; (3) information about potential other suspects; and (4) statements by

Layne’s 4-year-old son, Vincent, that allegedly exonerated Wilkes and Thorne. Id. at 33-34. Again,

the Magistrate Judge held that this withheld evidence “[fell] short of establishing a Brady violation

meriting habeas relief because [the additional withheld evidence] fail[ed] to overcome the objective

physical evidence that corroborated Mr. Wilkes’ testimony at trial.” Id. at 34. To the extent that this

evidence contradicted Wilkes’s testimony regarding the murder, the Magistrate Judge reasoned that

any “alleged inconsistencies” could be explained by the fast-paced manner in which the murder

occurred, Wilkes’s drug use on the day of the crime, or Wilkes’s failure to provide all of the facts

in light of his concerns about receiving the death penalty. Id. at 35. In addition, the existence of

other leads was not material to the investigation because, “under Brady, ‘the prosecution is not

responsible for providing a complete report to the defense of all police investigatory work,’ including

. . . other suspects.” Id. at 36 (citing Jackson v. Anderson, 141 F. Supp. 2d 811, 831 (N.D. Ohio

2001)). Finally, as to the statements provided by Layne’s 4-year-old son, the Magistrate Judge

determined that this evidence did not impeach Wilkes’s testimony as Thorne could not demonstrate


                                                  7
that the child was discussing the murder and not another event that had previously occurred. Id. at

38. Because all of this additional evidence was neither exculpatory nor material, the Magistrate

Judge recommended that any Brady claim related to the second class of evidence be denied.

       The Magistrate Judge also determined that the prosecution did not violate Brady by failing

to disclose the third category of evidence, namely any “evidence that allegedly would have enabled

the defense to effectively impeach the prosecution’s witnesses.” Here, the Magistrate Judge

reviewed police reports suggesting that, according to Thorne, “[the police] provided Wilkes with the

details of the crime scene” and allegations that a detective had “deceived” 18-year-old Wilkes into

believing Thorne was in the next room. Id. at 34. To the extent that this evidence undermined the

police officers’ credibility or Wilkes’s confession, the Magistrate Judge held that any evidence

presented by Thorne to prove that the “police actively framed him” was “inconsistent with

overwhelming evidence of record,” and thus could not be considered exculpatory or material. Id.

Further, the Magistrate Judge thought that it was “inconceivable that police could have planted the

pants that were consistent with what Mr. Campbell and Ms. Mohr had seen Mr. Wilkes wearing the

night of the murder, and that those pants would be covered with extensive mold growth.” Id. at 41.

       Finally, the Magistrate Judge noted that, even viewed cumulatively, none of the additional

evidence proffered by Thorne could overcome the overwhelming physical evidence that corroborated

Wilkes’s confession. Therefore, the Magistrate Judge recommended that the district court reject all

of Thorne’s Brady claims. Id. at 44-45.

        With regard to Thorne’s ineffective assistance of counsel claim, the Magistrate Judge

examined two sub-claims, only one of which is relevant for this appeal: that in light of the lack of

physical evidence tying Wilkes to the crime scene, trial counsel was ineffective for not consulting


                                                 8
a forensic expert to examine blood patterns. Id. at 46. The Magistrate Judge recommended that the

district court deny this claim because Thorne could not show prejudice “consider[ing] the amount

of evidence corroborating Mr. Wilkes’s claim that he committed the murder.” Id. at 48.

       The district court adopted the Magistrate Judge’s report in full. With regard to the alleged

Brady violations, the district court discussed all three categories of evidence together, holding that,

even cumulatively, the additional evidence cited by Thorne in his traverse “fail[ed] to overcome”

the physical evidence that corroborated Wilkes’s testimony, including the fact that Wilkes could

direct the police to a knife consistent with the murder weapon and to pants similar to those described

by Mohr and Campbell. Id. at 10. The district court also agreed with the Magistrate Judge’s

assessment that there were “reasonable explanations for any minor discrepancies between Wilkes’s

testimony and what actually transpired during the murder, including the excitement of the situation,

Wilkes’s earlier drug use, and his incentive to avoid the death penalty.” Id. Because the allegedly

withheld evidence was not material for Brady purposes, the district court denied this ground for

habeas relief.

       As to the ineffective assistance of counsel claim, the district court determined that the

outcome of Thorne’s trial would not have been different had his counsel hired a forensic expert. Id.

at 12. The district court noted that “at most, a forensic expert could help to determine the exact

manner in which Layne was killed”; however, this “would not aid Thorne in demonstrating that

another individual had killed Layne in the face of the overwhelming evidence to the contrary.” Id.

Because Thorne could not demonstrate that trial counsel was ineffective under Strickland v.

Washington, 466 U.S. 668 (1984), this ground for habeas relief was also denied.




                                                  9
       Thorne appeals, arguing that the district court erred by rejecting his expanded Brady claim,

which related to exculpatory evidence that was only uncovered during the federal habeas proceeding.

Thorne also claims that he was denied effective assistance of trial counsel because defense counsel

failed to hire a forensic expert to determine whether the blood spatter at the crime scene corroborated

Wilkes’s confession.

                                                  II.

A.     Brady Claim

       Thorne is unable to prevail on his habeas Brady claim because, although there is little doubt

that the State withheld evidence, he cannot demonstrate that the evidence withheld was both

exculpatory and material. In addition to proving that the State withheld evidence, to demonstrate

a Brady violation a defendant must show that: (1) “[t]he evidence at issue [is] favorable to the

accused, either because it is exculpatory, or because it is impeaching,” Stickler v. Greene, 527 U.S.

263, 281-82 (1999); and (2) the evidence is material, so that “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Thorne’s many claims, even taken

cumulatively, cannot “reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435-36 (1995). Therefore,

Thorne cannot prove a Brady violation occurred, and the district court did not err in denying his

habeas petition. In light of these conclusions, it is not necessary for us to determine whether Thorne

procedurally defaulted his Brady claims, see Wright v. Bell, 619 F.3d 586, 593 n.1 (6th Cir. 2010),

or whether the deferential standard of AEDPA applies. See Brown v. Smith, 551 F.3d 424, 430 (6th




                                                  10
Cir. 2008); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1418 (2011) (Sotomayor, J., dissenting)

(internal citations omitted).


       1.      The evidence related to George Hale’s statements

       Thorne’s initial Brady claim concerned evidence that the State concealed the existence of an

eyewitness, George Hale. Hale told police that he saw a man who was not Wilkes exit Layne’s

home more than two hours before her body was discovered. The Ohio Court of Appeals determined

that this fact was not material in light of the “strong evidence” that Thorne had been involved in the

murder, including Wilkes’s confession. Id. at 10. However, on appeal Thorne points to additional

evidence, only presented during the federal habeas proceeding, that Hale reviewed a photo array that

included Thorne and Wilkes and did not identify either as the man he saw leaving Layne’s house.

       There was no Brady violation with regard to the withheld evidence relating to George Hale

because this evidence was neither exculpatory nor material. First, Hale’s statement, and the newly-

presented evidence surrounding this statement, was not exculpatory. Exculpatory evidence includes

“‘evidence favorable to an accused,’ so that, if disclosed and used effectively, it may make the

difference between conviction and acquittal.” Bagley, 473 U.S. at 676 (internal citation omitted).

Exculpatory evidence also includes impeachment material. Id. at 676. In this case, the Magistrate

Judge noted that the confusion surrounding Hale’s testimony on direct and cross-examination at the

postconviction evidentiary hearing undermines the exculpatory value of the testimony. R. 58, Report

and Recommendation at 26. Although Hale stated that he saw someone other than Wilkes in

Layne’s home prior to the discovery of the body, this assertion was undercut by Hale’s testimony on

cross-examination that he only saw a “guy around the house carrying some sort of garbage bag.”



                                                 11
R. 8-69, PCR hearing, at 40 (emphasis added). It is unclear whether an individual was actually

inside Layne’s home prior to the police investigation, and thus this evidence does not directly

support Thorne’s innocence.

        In addition, the evidence that Hale did not identify Thorne or Wilkes in a photo lineup is not

exculpatory. First, the government’s theory of the case was that Thorne hired another individual,

Wilkes, to kill his ex-girlfriend; it is not inconsistent with this theory that an individual other than

Thorne was seen at Layne’s house. Second, as the Magistrate Judge noted, even if Hale had seen

someone else near Layne’s house the morning after the murder, the “fact that a third party may have

been in the house between the commission of the murder and the time the police investigated the

crimes does not change the fact that objective evidence corroborated Mr. Wilkes’ confession.” R.

58, Report and Recommendation at 27.

        However, even if Thorne’s defense counsel could have used Hale’s direct testimony

regarding the fact that a person other than Wilkes was in Layne’s home prior to the police

investigation, id. at 26, Thorne is not able to demonstrate that this evidence was material. For

evidence to be material, the petitioner has to show that the evidence “could reasonably be taken to

put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514

U.S. at 434-35. We are required to consider Brady evidence collectively, id. at 436; however, even

when the evidence related to Hale is considered with Thorne’s other newly-presented claims, it does

not undermine confidence in the jury’s verdict. Hale could not definitively state that there was

someone else in the house prior to Layne’s body being discovered. In addition, the state court

correctly noted that there was a “significant gap” between the time Hale saw the unknown man and

the estimated time of Layne’s death. R. 8-20, Ex. 22, Ohio Court of Appeals Decision, at 10.


                                                  12
Officers contacted Hale several other times in the continuing months and asked him for further

details about what he witnessed, even taking him to a hypnotist in an effort to recover any details he

forgot. Hale, however, was unable to recall anything more than he told officers on April 1.

       Thorne also does little to explain how the evidence was material or would sufficiently

undermine confidence in his guilty verdict. The only explanation Thorne gives is that as a result of

the suppressed evidence, Thorne’s trial attorneys “wavered between multiple theories of defense.”

However, “[m]ateriality pertains to the issue of guilt or innocence, and not the defendant’s ability

to prepare for trial.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 1994). Even if the defense

would have utilized different tactics if the suppressed evidence had been known, this is not enough

to prove materiality. The defense’s chosen strategy at trial—to create doubt regarding Thorne’s

association with Wilkes, not to raise doubts regarding Wilkes’s guilt—might still have been the best

one in light of the overwhelming physical evidence corroborating Wilkes’s initial confession

implicating Thorne.

       Even if the evidence were favorable to Thorne, the district court was correct in finding that

the suppressed evidence did little to undermine confidence in the jury’s verdict due to the

overwhelming physical evidence that corroborated Wilkes’s confession. Although Wilkes later

recanted his confession, the confession was still admissible as compelling impeachment testimony

and was corroborated by the physical evidence in this case, as the Magistrate Judge noted. R. 58,

Report and Recommendation at 31-32. To the extent that any newly-presented evidence casts doubt

on Wilkes’s confession, this doubt is easily overshadowed by the fact that Wilkes led the police to

a knife in a sewer drain that was consistent with the murder weapon. Wilkes also told the police

where they could find the nylon workout suit that two witnesses say he was wearing on the night of


                                                 13
the murder. Thorne has done little to undercut the presumption of correctness owed the state court’s

finding on these factual matters. R.8, Answer at Ex. 22, at 9; see 28 U.S.C. § 2254(e)(1) (stating that

“a determination of a factual issue made by a State court shall be presumed to be correct” and that

the “applicant shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence”). There were also a number of telephone calls between Wilkes and Thorne

during the days surrounding the murder, R.8, Trial Transcript, Ex. 52 at 1146-1165, and motel

receipts corroborate the fact that Wilkes, who had no money prior to the murder, presented a $100

bill to pay for the Comfort Inn motel room. R. 8, Trial Transcript, Ex. 51 at 1137-1140. The State

also presented David Thorne’s time cards to show that he left work during the middle of the day on

the day after the murder, corroborating Wilkes’s confession that Thorne picked him up at the motel.

R.8, Trial Transcript, Ex. 56 at 1354-55.

       The jury believed this evidence and convicted Thorne of aggravated murder. There was no

Brady violation as there is little to suggest that Hale’s statements and any related evidence would

have undermined this finding or that the result would have been different in a new trial.


       2.      Evidence related to detectives’ initial conclusions regarding how the attack was
               perpetrated

       Thorne also claims that the suppressed evidence regarding the detectives’ initial conclusions

about how the attack was perpetrated undermines Wilkes’s confession. According to the events as

described by Thorne, the detectives originally believed that Layne’s throat had been “slashed in front

of the sliding glass doors,” and that she was “drug out of the way of the window,” contradicting

Wilkes’s statement that he killed Layne on the couch. Evidence withheld related to these original

conclusions was neither exculpatory nor material. The detectives’ initial assumptions regarding the


                                                  14
attack, even if they do contradict Wilkes’s confession, are not necessarily favorable for Thorne. As

it is common for different theories to be presented during a police investigation, evidence of the

police’s uncertainty regarding exactly how the murder occurred does little to suggest that Thorne was

innocent. In addition, as discussed by the Magistrate Judge, numerous reasons exist for any alleged

inconsistencies between the detective’s assumptions and Wilkes’s confession, including the fact that

the murder occurred quickly, Wilkes used drugs on the day of the crime, and Wilkes may have

purposefully omitted some facts surrounding the murder to avoid the death penalty. R.58, Report

and Recommendation, at 35.

        The evidence related to the detective’s initial assumptions is also not material, as it does not

undermine confidence in the jury’s verdict for many of the reasons discussed above; in light of

Wilkes’s confession, the knife in the sewer drain, and the testimony of other witnesses, there is not

a reasonable probability that knowing the detectives’ initial impressions would have led a jury to

reach a different verdict in this case.


        3.      The other Brady sub-claims

        The government argues that by discussing only two Brady sub-claims in his initial appellate

brief—the statements related to George Hale and the detectives’ initial conclusions—Thorne waived

all other claims that were argued in the district court. See Brindley v. McCullen, 61 F.3d 507, 509

(6th Cir. 1995). While it is true that it is difficult to ascertain the additional Brady claims that

Thorne made below, as he does not extensively address them on appeal, these claims can also easily

be disposed of on the merits. To the extent that Thorne refers to any additional Brady claims on

appeal, these can be summarized as follows: (1) evidence that undermines the credibility of the



                                                  15
police, including the claim that detectives allegedly visited a psychic and told her that Layne had a

personal relationship with a married police officer and was involved with illegal drugs and the mob;

(2) evidence related to other persons of interest, including statements by Daniel Rogers, a witness

who saw a man enter Layne’s home prior to the murder; and (3) statements made by Layne’s 4-year-

old son that a man named “Jimmy” pushed “mommy,” potentially exonerating Wilkes and Thorne.

       Thorne cannot prove that this newly-presented evidence was exculpatory and material. Of

course, this evidence must be viewed cumulatively. Kyles, 514 U.S. at 436. However, even

considered cumulatively with the evidence already discussed, supra II.A.1, 2, this newly-presented

evidence does not undermine the jury’s guilty verdict.

       First, Thorne has not shown how statements made by the police during the “psychic

interview,” or allegations that Layne was involved with drugs or the mob, would have undermined

Wilkes’s confession and thus altered the outcome of Thorne’s case. Thorne simply discusses

Layne’s alleged “mob” and “drug” connections without stating how this led to Layne’s murder. In

addition, though Thorne raises the specter of impropriety with rumors of a relationship between

Layne and a married member of the police force, he does not explain how this either influenced the

investigation or undermined the physical evidence corroborating Wilkes’s confession. This court

has held that mere speculation “is insufficient to establish a Brady violation.” Henness v. Bagley, 644

F.3d 308, 325 (6th Cir. 2011) (citing Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995)).

       Second, Thorne cannot prove that the evidence related to other suspects was either

exculpatory or material. The fact that other people were considered suspects does not mean that,

after ruling these individuals out, the detectives’ case was any weaker against Wilkes and Thorne.

This court has held that information about other suspects that “does not even indirectly link any of


                                                  16
the suspects to the murder” is “simply too remote to have been exculpatory or to undermine

confidence in the verdict.” Apanovitch v. Houk, 466 F.3d 460, 484 (6th Cir. 2006). In addition, the

fact that another eyewitness, Daniel Rogers, saw a man enter Layne’s home prior to the discovery

of the body is not exculpatory for Thorne. As the Magistrate Judge discussed, all that Daniel

Rogers’s statement proves is that “an unidentified male entered Ms. Layne’s home at some

undetermined time when she may or may not have been home.” R.58, Report and Recommendation

at 27. To be considered material in a Brady analysis, there must be “direct or circumstantial

evidence linking the third person to the actual perpetration of the crime.” Spirko v. Anderson, No.

3:95CV7209, 2000 WL 1278383, at *7 (N.D. Ohio July 11, 2000); see Jalowiec v. Bradshaw, 657

F.3d 293, 312 (6th Cir. 2011). Speculation, which is all that Thorne provides, is not enough. Bagley,

644 F.3d at 325.

       Third, it is unlikely that the statements of Layne’s young son would have undermined

confidence in the jury’s verdict. In this instance, it is difficult to determine what weight the jury

would have placed on the statements of a 4-year-old, especially when those statements contradicted

the physical evidence. As the Magistrate Judge noted, Thorne also could not demonstrate that the

child was discussing the murder, not another event that had previously occurred. R.58, Report and

Recommendation, at 38.

       Because Thorne cannot demonstrate that the evidence withheld, even considered

cumulatively, was both exculpatory and material, Thorne is unable to prove a Brady violation and

the district court correctly denied his habeas petition on this ground.




                                                 17
B.     Ineffective Assistance of Counsel

       Because the state court’s application of Strickland was neither contrary to federal law nor

unreasonable in light of the evidence presented at the state court proceeding, Thorne cannot prevail

on his claim of ineffective assistance of counsel. Thorne’s ineffective assistance of counsel claim

was fully addressed by the state court, R. 8-20, Ex. 22, Ohio Court of Appeals Decision, at 18-20,

and thus clearly warrants the deference required by AEDPA . Under 28 U.S.C. § 2254(d) the last

reasoned opinion from a state court must be granted a high degree of deference. See Lundgren v.

Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). To prevail under § 2254(d), Thorne must prove that

the Ohio Court of Appeals decision was “contrary to, or involved an unreasonable application of

clearly established Federal law, as determined by the Supreme Court of the United States,” or was

“based on an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” This “high threshold” requires a federal court to “ask whether it is possible [for]

fairminded jurists [to] disagree that those [state court opinions] are inconsistent with the holding in

a prior decision of [the Supreme] Court.” Pinholster, 131 S.Ct. at 1402 (citing Harrington v. Richter,

131 S.Ct. 770, 786 (2011)). The standard is “doubly deferential” when AEDPA is applied with

Strickland. Pinholster, 131 S.Ct. at 1410; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The

“question under § 2254(d) is not whether counsel’s actions were reasonable, but whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.Ct.

at 778. In this case, the Ohio Court of Appeals reasonably concluded that Thorne’s counsel was

satisfactory under the parameters put forth in Strickland.

       Thorne has not met the first prong of Strickland, which “requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the


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Sixth Amendment.” Strickland, 466 U.S. at 687. On appeal, Thorne argues that trial counsel

provided ineffective assistance of counsel by failing to obtain a forensic expert to examine the blood

patterns at the crime scene. In determining that trial counsel was not deficient, the state court

concluded that the defense counsel made a strategic decision to focus on Thorne’s involvement

rather than Wilkes’s guilt. R. 8-20, Ex. 22, Ohio Court of Appeals Decision, at 19. The state court

reasoned that the decision not to hire a forensic expert was tactical, because such an expert could

have uncovered evidence that would have been damaging to Thorne. Id. In reaching this

determination, the state court properly applied Strickland, which demands that defense counsel’s

strategic choices be “[g]iven [a] high level of deference,” Davis v. Lafler, 658 F.3d 525, 538 (6th Cir.

2011), and petitioner must “overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Strickland, 466 U.S. at 689. In addition, the state

court’s decision cannot be said to be “contrary to” federal law and Supreme Court precedent because

the Supreme Court recently held in Harrington, 131 S.Ct. at 788-90, that a defense counsel was not

ineffective for failing to consult a blood evidence expert to analyze a pool of blood at a crime scene

in a case in which the victim’s blood pattern was a “central concern” of the trial. Because Thorne

has presented nothing beyond conjecture to undermine the state court’s finding that the tactic chosen

by the defense counsel was reasonable, Thorne’s claim fails under the first prong of Strickland.

        Thorne also cannot prove prejudice under the second prong of Strickland, which requires “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. Thorne speculates that if counsel had

consulted a blood pattern expert, it would have been possible to prove that Layne’s throat had been


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slit in front of the sliding glass doors, undermining Wilkes’s confession that he murdered Layne

while sitting on the couch. By raising doubts as to Wilkes’s credibility, Thorne argues that it may

have been possible to imply that Wilkes’s testimony implicating Thorne was also fabricated.

However, it is unlikely that defense counsel could have created sufficient doubt regarding the

mechanics of the murder to undermine the jury’s confidence in Wilkes’s confession in light of the

overwhelming physical evidence that corroborated his testimony. Even with Wilkes’s recantation

of his confession, it would have been nearly impossible for the defense to explain the numerous calls

between Wilkes and Thorne in the days surrounding the murder, as well as how Wilkes was able to

lead the police to a knife that was consistent with the murder weapon. To the extent discrepancies

exist between Wilkes’s confession and any alleged evidence that the murder transpired in a different

way, this can be easily explained, in the words of the district court, by the “excitement of the

situation, Wilkes’s earlier drug use, and his incentive to avoid the death penalty.” R. 64, Opinion

and Order, at 10. Therefore, Thorne has not proven prejudice or a “reasonable probability” that the

outcome of his case would have been different if he had consulted a forensic expert.

       Because Thorne has not proven either that counsel was deficient or that this alleged

deficiency resulted in the guilty verdict, the district court properly denied Thorne’s ineffective

assistance of counsel claim.

                                                III.

       For the foregoing reasons, we affirm the district court’s denial of Thorne’s habeas petition.




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