                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0308n.06

                                           No. 17-3220


                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                             Jun 18, 2019
                                                                             DEBORAH S. HUNT, Clerk
 CHRISTOPHER SMITH,                                      )
                                                         )
        Petitioner-Appellant,                            )
                                                         )      ON APPEAL FROM THE
 v.                                                      )      UNITED STATES DISTRICT
                                                         )      COURT     FOR      THE
 WARDEN, TOLEDO CORRECTIONAL                             )      SOUTHERN DISTRICT OF
 INSTITUTION,                                            )      OHIO
                                                         )
        Respondent-Appellee.                             )                  OPINION
                                                         )




       BEFORE:        NORRIS, STRANCH, and LARSEN, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Christopher Smith was convicted of armed robbery

in Ohio state court and sentenced to 18 years’ imprisonment. He challenges this conviction in a

habeas petition under 28 U.S.C. § 2254. The district court determined that two of his claims failed

on the merits and his other five claims were procedurally defaulted. We agree that Smith’s claims

are procedurally defaulted—with one minor exception—but hold that the ineffective assistance of

appellate counsel excuses the procedural default of his Brady claim. For the following reasons,

we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
No. 17-3220, Smith v. Warden


                                     I.   BACKGROUND

       A.      Factual Background

       Because Smith’s legal claims depend on the strength—or weakness—of the evidence

against him, we discuss the evidence adduced at his bench trial and a post-trial hearing in detail.

   1. The Prosecution’s Evidence at Trial

       A black man wearing sunglasses, a facemask, and a wig entered a wireless telephone store

in Cincinnati at about 3:40 p.m. on October 17, 2007. He pointed a gun in the air and took the till,

which contained $700 or $800. A store employee could not identify the robber when the police

later showed him a photo array because the robber’s face was obscured.

       Thomas Moore was driving nearby when he noticed a man peering into the store window.

This man put on a wig, pulled something up around his neck, pulled out a gun, and entered the

store. Moore called 911. A few minutes later, Moore saw this man run out of the store carrying

what looked like a laptop and climb into the front passenger seat of a blue Ford Expedition. Moore

followed, getting a partial number for the temporary license plate and noting the name of the car

dealer, which he relayed to 911. Before he lost sight of the Expedition, Moore saw the passenger,

whose face was no longer obscured, from about 10 feet away. Moore did not see him for long—

maybe the time that it took “for two or three cars to pass.”

       Based on the information provided by Moore, the Cincinnati police called the car

dealership and learned that it had sold the Expedition to Jennifer Potts. Potts told the police that

she had bought the car for Christopher Smith, the defendant, to drive.

       The police then generated a photo array containing Smith’s image. About three hours after

the robbery, a police officer who already had Smith “in mind as a suspect” showed Moore this

photo lineup. Moore identified Smith as the robber and passenger in the Expedition. Over six

months later, in May 2008, Moore identified Charles Allen as the driver.


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       Shortly after responding to the call for this robbery, the police found the blue Expedition

parked at a nearby apartment complex. A K-9 unit found a black t-shirt in the rear yard of a house

in the vicinity. Officers also recovered a pair of sunglasses, a wig, and a nylon case from a trash

can at the apartment complex.

       Tracey Sundermier, a serologist for the Hamilton County Coroner’s Crime Lab, conducted

DNA testing on the t-shirt, sunglasses, and wig. She obtained multi-source DNA profiles by

swabbing the inside collar area of the t-shirt and by “vigorously swabb[ing] the entire surface of

the inside of the wig.” She also swabbed the sunglasses but was unable to obtain a DNA profile.

Smith was excluded from the DNA profile developed from both the t-shirt and the wig. Charles

Allen could not be excluded from either profile. The portion of the population that could not be

excluded from the DNA profile developed from the wig was 1 in 3.44 million.

       The police learned that Smith was on parole and spoke to his parole officer. Smith was on

parole for armed robbery and was subject to electronic location monitoring. For his ankle monitor

to work, it had to be within a certain distance of a transmitter, which Smith was supposed to carry

with him. Smith cut his ankle bracelet off a little under two hours after the robbery.

       Smith told his parole officer that he had cut his ankle bracelet off because he was scared.

He said that he had heard about the robbery from someone he had allowed to borrow his car and

he had seen the police go to his apartment. He refused his parole officer’s entreaties to turn himself

in but asked her to check the GPS to verify his location at the time of the robbery and told her

where his transmitter could be found. He also told her to “run the test” when he heard from her

that the police had recovered the wig and other physical evidence. Smith’s ankle monitor was not

working from 2:35 until at least 4:20 p.m. on October 17, 2007, though, because of a “cuff leave

violation,” meaning that the transmitter was too far from the ankle bracelet for it to work. The




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No. 17-3220, Smith v. Warden


defense provided evidence that this was a common problem with Smith’s GPS tracker, occurring

almost every day.

       Smith texted Potts at 5:17 p.m. and then 5:18 p.m. on October 17, 2007, telling her to report

the Expedition stolen. He later told the police that he had seen a news report about this robbery,

showing the car, on the five o’clock news. This news report aired at approximately 5:18 p.m.

       The police apprehended Smith during a traffic stop a little over a month later. He told them

that he had lent his car to “Chuck Allen,” that Allen had sent him a text telling him what had

happened, and that he was being framed. He said he had been avoiding the police because “he had

just got done doing five years and he wasn’t going to go down for something that he didn’t do.”

He offered to submit to a buccal swab, to release his phone records, and to take a polygraph. But,

once obtained, Smith’s phone records did not show a text telling him what had happened.

   2. The Defense Case

       Smith’s brother, Ricardo Smith, was a close friend of Charles Allen. Seeking exculpatory

evidence for his brother, Ricardo purportedly recorded his conversations with Allen. Recordings

of these conversations were admitted into evidence at trial. In one, Ricardo told Allen that a

witness reported that the robber was carrying a laptop when he ran out of the phone store. Allen

asked, “A laptop?” Ricardo replied, “Yeah, that’s what the witness said.” Allen laughed and

responded, “I didn’t have a motherfucking laptop.”

       Shevon Mitchell, Smith’s ex-girlfriend, testified that she recognized Ricardo’s and Allen’s

voices on these recordings. She also testified that Allen had told her after this robbery that he had

done “something stupid.” Allen did not give her any details of what he had done but said he had

borrowed Smith’s car and that Smith was not there. She was no longer dating Smith at the time

of trial and said that she would not lie for him.




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No. 17-3220, Smith v. Warden


        Brittney Hatcher, Smith’s live-in girlfriend and the mother of his daughter, testified that

she saw Allen driving Smith’s blue truck on October 17, 2007. Smith regularly lent his car to

other people. She was watching television with Smith when they saw a news report saying that

the police had found his truck. He was confused by this news report. He then noticed that the

police were outside the apartment and went to go look for “Chuck” because Allen had his car.

    3. The Prosecution’s Rebuttal Case

        Charles Allen testified for the prosecution in exchange for a promise that he would not be

prosecuted for this crime. His charges had not been dropped at the time of trial; instead, they were

being “ignored,” and could be pursued later.

        On the date of this incident, Smith picked Allen up in his blue truck, saying that they were

going to see some women. Smith pulled into an apartment complex, told Allen to be prepared to

move the car if the police came, then made a phone call and walked off. Allen did not pay attention

to where Smith went.

        Five to ten minutes later, Allen heard a “boom” as Smith ran into the car, using it to stop

himself. Smith got into the back seat and told Allen “drive, drive.” Allen shifted into the driver’s

seat and drove to a nearby apartment complex, where he parked the Expedition. The two men then

split up on foot.

        Allen never saw Smith with a wig, though Allen testified that Smith had asked him about

Allen’s girlfriend’s wigs. When asked on cross-examination whether his DNA could be on the

wig found by the police, Allen insisted that the t-shirt was the only thing his DNA could be on.

He had previously left a black t-shirt in Smith’s car.




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No. 17-3220, Smith v. Warden


       Allen also denied that it was his voice on the recordings made by Ricardo Smith. He

admitted, however, that it was his voice on a recording of a phone call he made to his girlfriend

from jail, saying 10 or 12 times that he was “salty Rick was wired every time we met up.” He

explained that “salty” means “mad” or “upset.”

   4. Closing statements and verdict

       During the closing statements in this bench trial, the prosecution argued that the court

should credit the statements of Moore and Allen and find Smith guilty of aggravated robbery as a

principal, not an accessory. The defense responded that this was a case of police tunnel vision and

that, although the initial evidence pointed to Smith, the physical evidence and Allen’s recorded

statements showed that Allen, not Smith, was the robber. During the defense’s closing argument,

the court repeatedly interrupted counsel to bring up evidence that it believed undercut the defense’s

version of events.

       Immediately after the closing statements, the court rendered its verdict. The court stated

that Moore’s eyewitness testimony was “further corroborated by the fact Chuck Allen’s DNA is

found on some of the evidence.” After noting that a person’s DNA can get on an object by touching

it, the court stated: “I don’t have a problem with the fact that the defendant put the wig on but his

DNA was not found on it but Chuck Allen’s was, because he was in the car, too, he touched it

also.” Moore’s eyewitness identification of Smith as the robber, taken together with Allen’s

testimony that Smith was in the car and Allen’s DNA on the wig, “adds up to one thing[—]that

the defendant did in fact commit this offense.” The court found Smith guilty on all counts and

sentenced him to 26 years’ imprisonment.




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No. 17-3220, Smith v. Warden


   5. The New Trial Motion

       Julie Heinig, PhD, assistant laboratory director for the DNA Diagnostic Center, testified

for the defense at a hearing on a motion for a new trial.

       Dr. Heinig explained the faults in the DNA data turned over in discovery. She testified

that the laboratory notes are necessary to determine how heavily present someone’s DNA is on an

item. But all the State disclosed before trial was a two-page report. From reading this report, she

could not tell whether Allen’s DNA was found at every locus tested or just one or two of them.

The report stated only whether a subject’s DNA was included or excluded and gave the statistical

probability of inclusion. Only by reviewing the underlying lab notes was she able to see that alleles

consistent with Allen were present at every locus tested on the t-shirt and almost every locus tested

on the wig. These notes, however, were not turned over until at least six months after trial.

       Dr. Heinig’s laboratory re-tested the sunglasses, wig, and t-shirt. When she swabbed the

sunglasses for DNA, she also swabbed the rims of the lenses, which the initial examiner had failed

to do. She found DNA consistent with Allen on every locus she re-tested on the wig. She also

found DNA matching Allen at seven loci on the sunglasses. There was a heavy presence of Allen’s

DNA on the wig and sunglasses. Smith’s DNA was not found on either item. She did not find

any DNA on the t-shirt. The amount of Allen’s DNA on the sunglasses and wig was likely

inconsistent with him briefly touching them or passing them to someone, especially given that her

laboratory swabbed inside the wig. Finally, she concluded that although the amount of DNA is

not definitive evidence, it is more likely that Allen wore these items.

       Dr. Heinig conceded that Smith could have touched or even worn the sunglasses and wig

without leaving any DNA behind. But the longer someone wears an item, the more likely it is that

they will deposit DNA. Dr. Heinig also noted that if someone is sweating and their “adrenaline is




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No. 17-3220, Smith v. Warden


going,” they may be more likely to leave DNA. On October 17, 2007, the high was 77 degrees

with 90 percent humidity.

       At the end of the hearing, the trial court gave its initial thoughts about this new evidence.

It stated, “you might have an argument if you’re trying it to a jury, but you’re trying the case to

me, and I’m also deciding this motion for new trial. . . . I have no doubt that both these guys were

involved in this.” The court also speculated that Allen may have worn the wig and sunglasses

while committing other robberies. The court then adjourned the hearing.            It subsequently

summarily denied the new trial motion in a written order, without further explanation.

       B.      Procedural History

   1. Direct appeal

       On direct appeal, Smith raised four issues. Appellate counsel did not raise a Brady claim,

however, even though the appeal was filed after the denial of the new trial motion. The Ohio Court

of Appeals affirmed Smith’s conviction but agreed with Smith that it was error to impose “separate

sentences for aggravated robbery and robbery and remand[ed] . . . for sentencing on only one of

the offenses.” On remand, Smith was resentenced to 18 years’ imprisonment. He then filed a

second appeal, raising sentencing issues that are not relevant here. He did not ask the Supreme

Court of Ohio to review his direct appeal.

   2. First Rule 26(B) application

       Represented by new counsel, Smith next filed an application to reopen his direct appeal

under Ohio Rule of Appellate Procedure 26(B). Smith’s Rule 26(B) application raised three claims

of ineffective assistance of appellate counsel (IAAC), one of which pertained to the failure to

appeal the denial of the new trial motion.

       The Ohio Court of Appeals denied the Rule 26(B) application, holding that Smith had

“failed to demonstrate a genuine issue as to whether he has a colorable claim of ineffective


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No. 17-3220, Smith v. Warden


assistance of counsel on appeal.” As relevant here, it held that the trial court did not abuse its

discretion in denying the new trial motion. The court of appeals stated that the undisclosed lab

notes were not “material” under Brady because they “could not ‘reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.’”                Smith

unsuccessfully petitioned the Supreme Court of Ohio to review this denial.

   3. § 2254 petition

       Smith then filed a habeas petition under 28 U.S.C. § 2254 in the Southern District of Ohio.

He was once again represented by his initial trial counsel, who continues to represent him.

       Smith raised seven claims for relief. First, the State’s failure to disclose the lab notes

violated the Confrontation Clause and Brady v. Maryland, 373 U.S. 83 (1963). Second, the trial

court’s factual conclusions underlying the guilty verdict and denial of Smith’s motion for a new

trial based on speculation that Smith may have been an accessory materially varied from the State’s

allegation in the indictment and bill of particulars that Smith was a principal. Third, the court

violated due process by convicting Smith against the weight of the evidence and based on facts

not in the record. Fourth, the court’s conduct during the defense’s closing argument violated

Smith’s due process right to an impartial judge. Fifth, the court violated Smith’s right against self-

incrimination by stating that it could not understand his defense without his testimony. Sixth, the

court violated the Confrontation Clause by relying on its own personal knowledge of locations

rather than deciding the case based on the trial evidence. Seventh, appellate counsel was

ineffective for failing to raise claims one, two, three, five, and six (but not four) on direct appeal.

       Smith subsequently moved the district court to stay his § 2254 petition while he exhausted

his state remedies. The habeas petition was stayed while counsel filed a second Rule 26(B)

application and a postconviction motion in state court on behalf of Smith.




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No. 17-3220, Smith v. Warden


   4. Second Rule 26(B) application

       Smith raised seven IAAC claims in a second Rule 26(B) application, which were largely

coextensive with the claims in his § 2254 petition. The State responded that Smith’s second Rule

26(B) application should be denied on procedural grounds because successive Rule 26(B)

applications are not allowed, and Smith had not shown good cause for the untimeliness of his

application. The Ohio Court of Appeals issued a three-line summary denial, stating that “the

application is not well taken and is overruled.” Smith attempted to appeal this denial to the

Supreme Court of Ohio, but it “decline[d] to accept jurisdiction of the appeal.”

   5. Postconviction petition

       Smith also raised the seven claims from the § 2254 petition, as well as a claim of actual

innocence, in a postconviction petition filed in state court. The trial court denied this petition,

concluding that (a) seven of the grounds for relief were barred by the doctrine of res judicata

because they could have been raised at trial and most were raised on direct appeal, and (b) the

eighth ground—IAAC—could not be raised in a postconviction petition under Ohio law.

       The Ohio Court of Appeals affirmed the trial court’s order. Primarily, it did so because

“Smith failed to satisfy either the time restrictions of R.C. 2953.21(A)(2) or the jurisdictional

requirements of RC 2953.23. Therefore, the postconviction statutes did not confer upon the

common pleas court jurisdiction to entertain Smith’s petition on the merits.” The Supreme Court

of Ohio once again “decline[d] to accept jurisdiction of the appeal.”




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               The following table summarizes which claims were raised in which court.

         Claims in the § 2254   Motion for a Direct appeal         First Rule 26(B)      Second Rule     Post-
         petition               new trial                                                26(B)           conviction
                                                                                                         petition
Claim 1 Brady/Confrontation     Raised            Not raised       Raised in part (as    Raised as       Raised
        Clause (failure to                                         IAAC claim)           IAAC claim
        disclose lab notes)
Claim 2 Variance between        Not raised        Not raised       Not raised            Raised as       Raised
        court’s findings and                                                             IAAC claim
        State’s theory of
        case
Claim 3 Weight of the           Raised            Raised only to   Raised only to Ohio Raised as         Raised
        evidence/legal                            Ohio Court of    Court of Appeals    IAAC claim
        insufficiency                             Appeals
Claim 4 Judicial bias during    Not raised        Not raised       Raised as IAAC        Raised as       Raised
        closing arguments                                          claim                 IAAC claim
Claim 5 Violation of Fifth      Not raised        Not raised       Not raised            Raised as       Raised
        Amendment                                                                        IAAC claim
        privilege against
        self-incrimination
Claim 6 Verdict based on        Not raised        Raised only to   Not raised            Raised as       Raised
        personal knowledge                        Ohio Court of                          IAAC claim
        not in evidence                           Appeals
Claim 7 Ineffective             Not raised        Not raised       N/A                   N/A             Raised
        assistance of
        appellate counsel

           6. Proceedings in the district court

               Once Smith’s state postconviction petition and second Rule 26(B) application were denied,

        the district court lifted the stay of the § 2254 petition. The magistrate judge issued a Report and

        Recommendation (R&R) that the district court deny the § 2254 petition in its entirety. The

        magistrate judge concluded that claims one, two, four, five, and six were procedurally defaulted.

        The magistrate judge also concluded that “[a] weight of the evidence claim is not a federal

        constitutional claim” and thus claim three was not cognizable on habeas review. Finally, the

        magistrate judge rejected the IAAC claim (claim seven) on the merits. After finding that only a


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No. 17-3220, Smith v. Warden


claim of IAAC for failure to raise the Brady claim had been properly presented in state court, the

magistrate judge concluded that the Ohio Court of Appeals’ adjudication of this claim was “neither

contrary to nor an objectively unreasonable application of Strickland” because the undisclosed lab

notes may have strengthened the conclusion that “the DNA from the wig and the T-shirt excluded

Smith and included Allen . . . , but not enough to make a difference in the verdict.”

       The district court adopted this R&R, dismissing the § 2254 petition in its entirety. But the

court granted Smith a certificate of appealability (COA) as to all his claims. Specifically, it granted

a COA “as to whether the Court was correct in finding a procedural default, whether the Court was

correct in finding no excuse to the procedural default exists, and whether the Court was correct in

not considering the merits” of all the claims that it had held to be procedurally defaulted. It did

not grant a COA as to the merits of these claims. The court also granted a COA as to whether it

was correct to dismiss claim three (weight of the evidence) and claim seven (IAAC) on the merits.

                                        II.   ANALYSIS

       “In a habeas proceeding, we review the district court’s legal conclusions de novo and its

factual findings for clear error.” Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013).

       A.      Procedural Default

       The central issue in this appeal is whether Smith is barred from having his claims heard on

the merits because of procedural default. For a state petitioner to present his claims in federal

habeas, he must first exhaust his state remedies and “meet the State’s procedural requirements for

presenting his federal claims.” Coleman v. Thompson, 501 U.S. 722, 729–32 (1991). If a

petitioner does not meet these requirements, federal courts cannot review his claims on the merits

“unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, or that

failing to review the claim would result in a fundamental miscarriage of justice.” Williams v.




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No. 17-3220, Smith v. Warden


Anderson, 460 F.3d 789, 805–06 (6th Cir. 2006) (citing Lundgren v. Mitchell, 440 F.3d 754, 763

(6th Cir. 2006)). A petitioner can fail to meet procedural requirements in two ways:

       First, a petitioner may procedurally default a claim by failing to comply with state
       procedural rules in presenting his claim to the appropriate state court. If, due to the
       petitioner’s failure to comply with the procedural rule, the state court declines to
       reach the merits of the issue, and the state procedural rule is an independent and
       adequate grounds for precluding relief, the claim is procedurally defaulted.

       Second, a petitioner may procedurally default a claim by failing to raise a claim in
       state court, and pursue that claim through the state’s ordinary appellate review
       procedures. If, at the time of the federal habeas petition, state law no longer allows
       the petitioner to raise the claim, the claim is procedurally defaulted.

Id. at 806 (citations and internal quotation marks omitted). Under this second route, a claim is

procedurally defaulted if a petitioner initially raises it on direct appeal but does not seek review by

the state’s highest court. Id. (citing O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999)).

       Smith’s appellate counsel did not seek review of his direct appeal by the Supreme Court of

Ohio. He therefore failed to pursue any claims raised on direct appeal “through the state’s

‘ordinary appellate review procedures.’” Id. (citing O’Sullivan, 526 U.S. at 847–48). And, as he

concedes, bringing an IAAC “claim in state court based on counsel’s failure to raise an underlying

claim does not preserve the underlying claim for federal habeas review because ‘the two claims

are analytically distinct.’ Thus, a Rule 26(B) application ‘based on ineffective assistance cannot

function to preserve’ the underlying substantive claim.” Davie v. Mitchell, 547 F.3d 297, 312 (6th

Cir. 2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)).

       Smith’s only argument that the first six claims of his § 2254 petition are not procedurally

defaulted is that he raised them in a postconviction petition. But, as explained below, Smith’s

postconviction petition does not save his claims from procedural default either.




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        This circuit uses a “four-part test to determine whether we are precluded from reviewing a

federal habeas claim” due to a petitioner’s procedural default. Barton v. Warden, S. Ohio Corr.

Facility, 786 F.3d 450, 464 (6th Cir. 2015) (citing Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986)).

        First, the court must determine that there is a state procedural rule that is applicable
        to the petitioner’s claim and that the petitioner failed to comply with the
        rule. . . . Second, the court must decide whether the state courts actually enforced
        the state procedural sanction. . . . Third, the court must decide whether the state
        procedural forfeiture is an ‘adequate and independent’ state ground on which the
        state can rely to foreclose review of a federal constitutional claim. . . . [Fourth,
        o]nce the court determines that a state procedural rule was not complied with and
        that the rule was an adequate and independent state ground, then the petitioner must
        demonstrate . . . that there was ‘cause’ for him to not follow the procedural rule and
        that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d at 138 (citations omitted).

        To determine whether state courts relied on a procedural bar, federal habeas courts look to

the “last explained state-court judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); see also

Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000).1 In its decision affirming the denial of

Smith’s postconviction petition, the Ohio Court of Appeals held that “most significant, and

dispositive here, is the fact that Smith failed to satisfy either the time restrictions of R.C.

2953.21(A)(2) or the jurisdictional requirements of RC 2953.23.” In relevant part, these statutes

require that a postconviction petition be filed within 365 days of the date that “the trial transcript

is filed in the court of appeals in the direct appeal,” Ohio Rev. Code Ann. § 2953.21(A)(2), unless

a petitioner can (a) show that he “was unavoidably prevented from discovery of the facts upon

which [he] must rely to present the claim for relief” and (b) “show[] by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty,” id. § 2953.23(A)(1).



1
  For this reason, we do not discuss the state trial court’s holding that Smith was barred from raising the
issues in his postconviction petition by res judicata.


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No. 17-3220, Smith v. Warden


       The state-court decision satisfies the first three steps of the Maupin test. There is a state-

law timeliness requirement for postconviction petitions, with which Smith did not comply. The

Ohio Court of Appeals enforced this timeliness requirement, describing it as dispositive of Smith’s

appeal. And denying a postconviction motion or appeal based on untimeliness is an independent

and adequate state procedural ground. See, e.g., Walker v. Martin, 562 U.S. 307, 310–11 (2011);

Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007); Bonilla v. Hurley, 370 F.3d 494, 497 (6th

Cir. 2004). Indeed, Smith does not dispute that Ohio law imposes a timeliness requirement on

postconviction petitions, that his petition was untimely, or that the Ohio Court of Appeals stated

that it was relying on this procedural bar in affirming the denial of his postconviction petition.

       Smith seems to take issue only with the third step of the Maupin analysis, arguing that the

timeliness requirement was not an “independent and adequate state ground” because whether he

fits into an exception to the timeliness requirement “necessarily involves or is interwoven with

consideration of the federal constitutional issues.” He relies on a single case for this argument,

Harris v. Reed, where the Supreme Court held that “a procedural default does not bar . . . habeas

review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states

that its judgment rests on a state procedural bar.” 489 U.S. 255, 263 (1989) (citation omitted). Yet

the Court subsequently made clear that this rule was restricted to cases in which the state-court

“decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law,

and when the adequacy and independence of any possible state law ground is not clear from the

face of the opinion.’” Coleman, 501 U.S. at 734–35 (quoting Michigan v. Long, 463 U.S. 1032,

1040–41 (1983)). Here, the Ohio Court of Appeals’ decision “‘fairly appears’ to rest primarily on

state law” because “[t]here is no mention of federal law.” Id. at 740.




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       Although Smith argues that the Ohio Court of Appeals necessarily had to consider the

merits of Smith’s underlying grounds for relief, which raised several federal constitutional issues,

to determine whether he was “unavoidably prevented” from timely filing his post-conviction

petition, the relevant statute says otherwise. Smith needed to show only that he was “unavoidably

prevented from discovery of the facts upon which the petitioner must rely to present the claim for

relief.” Ohio Rev. Code Ann. § 2953.23(A)(1) (emphasis added). And determining whether Smith

had knowledge of the facts underlying his claims—as opposed to whether he was aware he had

legal claims for relief—requires no analysis of the federal issues.

       We therefore find that the first six claims in Smith’s § 2254 petition are procedurally

defaulted. (The issue of whether the seventh claim, IAAC, is procedurally defaulted is discussed

in subsection C below.) The only remaining question under the Maupin analysis is whether Smith

can show either a miscarriage of justice or cause and prejudice to get around his procedural default.

       B.      Miscarriage of Justice

       Smith relies principally on a claim of actual innocence to bypass his procedural default by

passing through the miscarriage-of-justice gateway. See Schlup v. Delo, 513 U.S. 298, 314–15

(1995). The term “actual innocence” is somewhat of a misnomer, though, as this inquiry focuses

on legal proof. To have defaulted claims considered on the merits, petitioners are not required to

prove their factual innocence but rather “that it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt.” Id. at 327.

       In Schlup, the Supreme Court held that a petitioner who “show[s] that it is more likely than

not that no reasonable juror would have convicted him in the light of the new evidence” can “avoid

a procedural bar to the consideration of the merits of his constitutional claims.” Id. For such a

claim “[t]o be credible,” a petitioner must “support his allegations of constitutional error with new




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No. 17-3220, Smith v. Warden


reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence—that was not presented at trial.” Id. at 324. Once a petitioner has

provided such new reliable evidence, the habeas court must assess all the evidence, including

evidence “that was either excluded or unavailable at trial.” Id. at 328. Schlup then requires courts

“to make a probabilistic determination about what reasonable, properly instructed jurors would

do.” Id. at 329 (emphasis added). But the Court repeatedly cautioned that this procedural bypass

was available only in “extraordinary” cases. Id. at 322, 324, 327.

       The Court subsequently reaffirmed Schlup in House v. Bell, 547 U.S. 518, 539 (2006),

holding that this standard survived the passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (AEDPA). House reiterated that once a petitioner has provided new reliable evidence,

“the habeas court’s analysis is not limited to such evidence.” Id. at 537. The Court also

reemphasized that “the Schlup standard is demanding and permits review only in the

‘extraordinary’ case.” Id. at 538 (quoting Schlup, 513 U.S. at 327). Nonetheless, the Court

reversed this circuit’s denial of habeas relief, concluding that though “[t]his is not a case of

conclusive exoneration,” it is “the rare case where . . . it is more likely than not that no reasonable

juror viewing the record as a whole would lack reasonable doubt.” Id. at 554. Substantial “aspects

of the State’s evidence . . . still support[ed] an inference of guilt. Yet the central forensic proof

connecting House to the crime—the blood and the semen—has been called into question, and

House has put forward substantial evidence pointing to a different suspect.” Id.

       Smith’s Schlup claim is premised on two pieces of evidence not presented at trial: (1) the

lab notes disclosed after trial, which revealed just how much of Allen’s DNA was on the wig, and

(2) the re-testing of the sunglasses, which found DNA matching Allen but not Smith. (The lab

notes are also the factual basis for Smith’s Brady claim, as discussed below.) Ohio does not contest




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No. 17-3220, Smith v. Warden


that this constitutes new evidence. Nor does Ohio provide any substantial argument that this DNA

evidence is not reliable. It claims, without elaboration, that “the new evidence is not reliable in

relation to the essential facts of the case” because “[t]he defense witness, Dr. Heinig, admitted that

Smith could have touched [the wig] and not left DNA.” This argument, however, goes only to the

probative value of this evidence and not its reliability.

       Ohio has a substantially stronger argument as to whether Smith’s new evidence is

sufficient, when reviewed in the context of the whole record, to meet his burden of showing that

it is “more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S.

at 538. As Ohio points out, Smith was identified by a civilian eyewitness as the robber, the robbery

was committed using his car, Smith’s GPS tracker was malfunctioning at the time of this robbery,

he later cut off his ankle bracelet and absconded, he told Potts to report the car stolen, and Allen

testified that Smith was in the vicinity of the store at the time of the robbery.

       On the other hand, the exculpatory force of the DNA evidence should not be understated.

Smith’s DNA was not found on the glasses or wig, and Dr. Heinig’s retesting showed a heavy

presence of Allen’s DNA on these items. Certainly, it is possible that Smith wore these items

without leaving any DNA behind—as she admitted. But Dr. Heinig also testified that the longer

a person wears an item, the more likely it is that he will leave DNA behind. And she testified that

the amount of Allen’s DNA found on the sunglasses and wig indicates that he likely did not just

briefly touch these items, especially given that her laboratory swabbed inside of the wig for DNA.

Yet Allen could not explain how his DNA got on either item. The simplest and most plausible

explanation for this evidence is that Allen—not Smith—wore this costume during the robbery.

       Smith also somewhat counteracts the circumstantial case against him. He provided

evidence that he lent his car to Allen on the day of the robbery; that his GPS tracking device was




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No. 17-3220, Smith v. Warden


frequently prone to error; that he sent text messages to Potts telling her to report the car stolen at

the approximate time that a news story aired showing that his car had been used in a robbery; and

that he told his parole officer where to retrieve his GPS transmitter. It also helps him that he told

his parole officer and the police to run DNA tests on the physical evidence. If Smith had been

wearing the wig and sunglasses during this robbery, it hardly seems likely that he would be

confident that a DNA test would clear his name.

       None of this provides sufficient proof, however, of Smith’s innocence. Moreover, one

element of the prosecution’s proof was not circumstantial and remains entirely unrebutted—the

eyewitness identification of him as the robber. Weighing all the evidence, old and new, we are

left with concerns about the soundness of the conviction in this case. A reasonable juror could

harbor a reasonable doubt as to Smith’s guilt. But Schlup demands more.

       Although a petitioner is not required to show a “conclusive exoneration,” House, 547 U.S.

at 553, the actual-innocence gateway for procedurally defaulted claims is restricted to

“extraordinary” cases, Schlup, 513 U.S. at 327. Smith must “show that it is more likely than not

that no reasonable juror would have convicted him in the light of the new evidence.” Id. (emphasis

added). That he cannot do. Despite the DNA evidence pointing to Allen, a reasonable juror could

still find Smith guilty based on the malfunctioning of his electronic monitoring device at the time

of the robbery, his subsequent cutting of his ankle bracelet and flight from the police, his

possession of the car used in this robbery, and the testimony of Allen and Moore. Indeed, Moore

was a highly credible witness, who testified without any apparent motive other than his civic duty.

Thus, although it is a close question, Schlup does not allow Smith to bypass his procedural default.




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No. 17-3220, Smith v. Warden


       C.      Cause and Prejudice

       Because Smith cannot establish a miscarriage of justice, the next question is whether he

can provide cause for and prejudice from his procedural default. Smith argues that the IAAC

claims raised in his Rule 26(B) applications provide both. (Rule 26(B) applications are the

primary—but not exclusive—procedural vehicle for raising IAAC claims under Ohio law.)

       Ineffective assistance of appellate counsel “may provide cause to excuse a procedural

default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the

prisoner has been denied fair process and the opportunity to comply with the State’s procedures

and obtain an adjudication on the merits.” Gunner v. Welch, 749 F.3d 511, 516 (6th Cir. 2014)

(quoting Martinez v. Ryan, 566 U.S. 1, 11 (2012)). Moreover, “establishing Strickland prejudice

likewise establishes prejudice for purposes of cause and prejudice” to excuse procedural default.

Joseph v. Coyle, 469 F.3d 441, 462–63 (6th Cir. 2006) (citations omitted).

       An IAAC claim used to establish cause and prejudice to excuse procedural default,

however, must itself have been properly presented to the state courts—or there must be cause and

prejudice to excuse the failure to do so. “[A] procedurally defaulted ineffective-assistance-of-

counsel claim can serve as cause to excuse the procedural default of another habeas claim only if

the habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to the ineffective-

assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000).

       Because the IAAC claims raised in Smith’s second Rule 26(B) application pertain to all

his defaulted claims, while the IAAC claims raised in his first Rule 26(B) application would excuse

the default of only his Brady claim, we deal with the second Rule 26(B) application first.




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No. 17-3220, Smith v. Warden


   1. The Second Rule 26(B) Application

       Ohio argues that the IAAC claims presented in Smith’s second Rule 26(B) application are

themselves procedurally defaulted and there is no cause and prejudice to excuse this default. Smith

disagrees. We will proceed through the Maupin factors in turn.

                      a.      Procedural Default of IAAC claims

       First, we ask whether there is “a state procedural rule that is applicable to the petitioner’s

claim and [whether] the petitioner failed to comply with the rule.” Maupin, 785 F.2d at 138.

Although Smith argues that there is no per se rule barring successive Rule 26(B) applications, the

Supreme Court of Ohio has held otherwise. “[T]here is no right to file successive applications for

reopening under [Rule] 26(B). . . . Once ineffective assistance of counsel has been raised and

adjudicated, res judicata bars its relitigation.” State v. Twyford, 833 N.E.2d 289, 290 (Ohio 2005)

(citation and internal quotation marks omitted); see also State v. Richardson, 658 N.E.2d 273, 274

(Ohio 1996) (holding that Rule 26(B) does not “provide[] for second and subsequent applications

for reopening”). Smith argues that this principle does not apply where a second Rule 26(B)

application “addresses entirely new instances of IAAC and errors committed by a different

appellate attorney.” But he provides no authority for this proposition, and we are aware of none.

Moreover, he has no basis to argue that a second Rule 26(B) application is available to address the

errors of the attorney who represented him on the first Rule 26(B) application. A Rule 26(B)

“application for reopening is a ‘collateral postconviction remedy,’ and the state ‘has no

constitutional obligation to provide counsel to those defendants who file applications under that

rule.’” Twyford, 833 N.E.2d at 290 (quoting Morgan v. Eads, 818 N.E.2d 1157, 1159, 1161 (Ohio

2004)); see also Lopez v. Wilson, 426 F.3d 339, 351–52 (6th Cir. 2005) (en banc). Because there

is no constitutional right to counsel in Rule 26(B) proceedings, there can be no ineffective

assistance of Rule 26(B) counsel claim. See Coleman, 501 U.S. at 752.


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No. 17-3220, Smith v. Warden


       Next, “the court must decide whether the state courts actually enforced the state procedural

sanction.” Maupin, 785 F.2d at 138. This is a closer question. The Ohio Court of Appeals did

not explain its decision to deny Smith’s second Rule 26(B) application, stating only “the

application is not well taken and is overruled.” Coleman dictates, however, that when a state court

issues such a summary denial and the grounds given by the prosecution for doing so are solely

questions of state procedure, the decision fairly appears to rest on state law. See 501 U.S. at 740.

In this case, the main arguments the State made for denying the application were procedural; its

merits arguments did not even address all of Smith’s claims. The decision can therefore be

assumed to rest on state procedural law.

       Smith nonetheless argues that this decision should be construed as a decision on the merits,

not a denial on procedural grounds. He relies on Harrington v. Richter, which held that an

unexplained summary denial counts as an “adjudicat[ion] on the merits.” 562 U.S. 86, 98–99

(2011). This argument conflates the similar but analytically distinct questions of when a state-

court decision is based on the merits for purposes of procedural-default analysis—the issue

addressed by Coleman—and when a case was adjudicated on the merits for purposes of AEDPA

deference—the issue addressed by Harrington. Moreover, even if Harrington were on point, it

would not help Smith. Harrington held that “it may be presumed that the state court adjudicated

the claim on the merits in the absence of any indication or state-law procedural principles to the

contrary.” Id. at 99 (emphasis added). But, here, both the prosecution’s briefing and state-law

principles indicate that Smith’s second Rule 26(B) application was denied on procedural grounds.

       “Third, the court must decide whether the state procedural forfeiture is an ‘adequate and

independent’ state ground on which the state can rely to foreclose review of a federal constitutional

claim.” Maupin, 785 F.2d at 138 (citations omitted). Here, Smith essentially rehashes his




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No. 17-3220, Smith v. Warden


arguments about adequate and independent grounds from his postconviction petition, arguing that

determining whether he had cause to file an untimely Rule 26(B) application and whether his

application was barred by res judicata involves inquiry into questions of federal law. His argument

fares no better in this context. Smith argued to the Ohio Court of Appeals that he had good cause

for filing a delayed 26(B) application because he “had no means of realizing that his appellate

counsel   had   performed     deficiently.”     Smith    now    argues   that   “evaluating   ‘good

cause’ . . . necessarily involves considering the federal constitutional issue of what constitutes

IAAC.” But the Ohio Supreme Court has said that a lack of legal counsel, a lack of legal training,

and ignorance of the law does not constitute “good cause” for an untimely 26(B) application. State

v. LaMar, 812 N.E.2d 970, 972 (Ohio 2004); see also State v. Carpenter, 659 N.E.2d 786, 786

(Ohio 1996). There was thus no occasion for the Ohio courts to consider what constitutes IAAC

in holding that Smith failed to show good cause, and Smith alleges no other federal hook.

       We therefore find that the IAAC claims raised in Smith’s second Rule 26(B) application

are themselves procedurally defaulted. For Smith to use these claims to excuse the procedural

default of the first six claims of his § 2254 petition, he must first provide cause for and prejudice

from this procedural default. See Edwards, 529 U.S. at 450–51.

                       b.      Cause and Prejudice for Procedural Default of IAAC claims

       Smith appears to argue that there is cause and prejudice for the procedural default of these

claims because counsel for the initial Rule 26(B) application was himself ineffective. This

argument is based on Martinez v. Ryan, where the Supreme Court held that the ineffective

assistance of counsel or lack of counsel in postconviction proceedings can excuse the failure to

raise a claim of ineffective assistance of trial counsel when such a claim must be first raised in

postconviction proceedings. 566 U.S. at 17. Thus, though ineffective assistance of postconviction




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No. 17-3220, Smith v. Warden


counsel is not a freestanding claim for federal habeas relief, it can provide cause under certain

circumstances for a petitioner to overcome procedural default. Id.

        Smith’s argument for extending Martinez is foreclosed by both Sixth Circuit and Supreme

Court precedent. Ohio law is clear that Rule 26(B) provides a “collateral postconviction remedy.”

Morgan, 818 N.E.2d at 1159. This court has held, however, that “ineffective assistance of post-

conviction counsel cannot supply cause for procedural default of a claim of ineffective assistance

of appellate counsel.” Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013). So has the Supreme

Court. In Davila v. Davis, the Court declined to extend the rule of Martinez and Trevino v. Thaler,

569 U.S. 413 (2013), to allow ineffective assistance by state postconviction counsel to provide

cause for the default of claims of ineffective assistance of appellate counsel. 137 S. Ct. 2058,

2062–63 (2017). Thus, even if Smith’s first Rule 26(B) counsel was ineffective, this cannot

provide cause to excuse the default of the IAAC claims in his second Rule 26(B) application.

        Because the IAAC claims Smith raised in his second Rule 26(B) application are themselves

procedurally defaulted, and there is no cause and prejudice excusing this default, he cannot use

these IAAC claims to excuse the procedural default of the first six claims of his § 2254 petition.

See Edwards, 529 U.S. at 450–51. We therefore affirm the district court’s dismissal of claims two,

three, five, and six based on procedural default. We note that although the district court rejected

one of these claims on the merits, we do not reach the merits question because this claim is

procedurally defaulted and there is no excuse for this procedural default. We “may affirm on any

ground supported by the law and the record.” Sazerac Brands, LLC v. Peristyle, LLC, 892 F.3d

853, 859 (6th Cir. 2018).2


2
  Smith also argues that any procedural default on his part should be excused because of the “absence of
available State corrective process” or “circumstances . . . that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). He misconstrues this exception. It is a statutory



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No. 17-3220, Smith v. Warden


        Two cause and prejudice questions remain. We still must address whether the claim of

IAAC for failure to argue the Brady claim raised in Smith’s first Rule 26(B) application, which

Ohio concedes is not procedurally defaulted, provides cause and prejudice to excuse the default of

the Brady claim. And we must do the same for the claim of IAAC for failure to raise judicial bias,

which was likewise raised in the first Rule 26(B) application.

    2. The First Rule 26(B) Application

                         a.      IAAC for failure to raise the Brady claim

        Because Smith’s claim that his appellate counsel was ineffective for failing to raise a Brady

claim on direct appeal was adjudicated on the merits in state court, this IAAC claim is subject to

AEDPA deference if it is viewed as a freestanding claim for relief. Joseph, 469 F.3d at 459. But

the IAAC claim is reviewed de novo if it is used to establish cause for procedural default so that

the underlying claim can be reviewed on the merits. Id. Moreover, “establishing Strickland

prejudice likewise establishes prejudice for purposes of cause and prejudice.” Id. at 462–63. Thus,

if Smith’s appellate counsel was constitutionally ineffective in failing to raise a Brady claim, this

would provide both cause and prejudice permitting the Brady claim to be heard on the merits.

        The standard for an IAAC claim “is that enunciated in Strickland.” Smith v. Robbins, 528

U.S. 259, 285 (2000). A petitioner must show that counsel’s performance was “objectively

unreasonable” and that there was “a reasonable probability that . . . he would have prevailed on his




exception to the requirement to “exhaust[] the remedies available in the courts of the State.” Id.
§ 2254(b)(1)(A). But, though the two are sometimes confused, “[e]xhaustion and procedural default . . . are
distinct concepts. . . . Where state court remedies are no longer available to a petitioner because he or she
failed to use them within the required time period, procedural default and not exhaustion bars federal court
review.” Williams, 460 F.3d at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). This is because
a “petitioner who has defaulted his federal claims in state court meets the technical requirements for
exhaustion; there are no state remedies any longer ‘available’ to him.” Coleman, 501 U.S. at 732.


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No. 17-3220, Smith v. Warden


appeal” had counsel raised the unreasonably omitted issues. Id. (citing Strickland v. Washington,

466 U.S. 668, 687–91, 694 (1984)); see also Mapes v. Tate, 388 F.3d 187, 191 (6th Cir. 2004).

                               i. Performance

       We look to a number of factors in determining whether appellate counsel’s performance

was deficient, including but not limited to whether the omitted issues were “significant and

obvious,” whether there was “arguably contrary authority,” whether the omitted issues were

“clearly stronger than those presented,” whether the omitted issues were preserved, and whether

“the trial court’s rulings [were] subject to deference on appeal.” Mapes, 388 F.3d at 191.

       Many, though not all, of these factors counsel in favor of finding that appellate counsel’s

failure to raise the Brady claim was objectively unreasonable. The Brady claim was both

significant and obvious. It was preserved. And it was stronger than the arguments for reversal

Smith raised on direct appeal—with the possible exception of his claim that his sentence was

illegally long, for which he was afforded relief. Indeed, this claim was “clearly stronger” than the

first point in his brief, which was that the trial court erred by relying on its own personal knowledge

of locations and distances as well as in admitting evidence of Smith’s prior bad acts. As the Ohio

Court of Appeals pointed out, Smith failed to demonstrate any prejudice from the trial court’s

reliance on its own personal knowledge of the neighborhood and its admission of prior bad-acts

evidence was harmless error. Yet, as to the Brady claim, even the trial judge admitted that a jury

might find the suppressed lab notes persuasive. On the other hand, under Ohio law, the denial of

a new trial motion is reviewed deferentially, for an abuse of discretion. State v. Williams, 330

N.E.2d 891, 894 (Ohio 1975).

       Despite this deferential standard of review, because the Brady claim was Smith’s strongest

argument for reversal of his conviction and because the issue was raised and fully litigated in front

of the trial court, it was objectively unreasonable for appellate counsel not to raise the Brady claim.


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No. 17-3220, Smith v. Warden


                              ii. Prejudice

       Answering the question of whether there was “a reasonable probability” that Smith would

have “prevailed on his appeal,” Smith, 528 U.S. at 285, requires looking at merits of the underlying

claim. After all, there can only be a reasonable probability that Smith would have prevailed on

appeal had he raised the Brady claim if there is some merit to this claim. But, “[a]lthough this

analysis necessarily involves an evaluation of the underlying claims, it does not require a decision

on or a determination of these issues.” Mapes, 388 F.3d at 194. Moreover, that a state court in

fact rejected an IAAC claim brought under Rule 26(B) as meritless is not dispositive of this issue.

See Goff v. Bagley, 601 F.3d 445, 466–67 (6th Cir. 2010) (holding that the Supreme Court of

Ohio’s conclusion that appellate counsel was not ineffective for failing to raise “an obviously

winning claim” on direct appeal was “an unreasonable application of federal law”).

       As noted above, Smith’s IAAC claim is reviewed de novo if it is being used to excuse

procedural default; it is only subject to AEDPA deference when viewed as a freestanding claim

for relief. Joseph, 469 F.3d at 459. For this reason, Smith does not need to show at this stage that

the Ohio Court of Appeals’ rejection of his IAAC claim for failing to raise the Brady issue on

appeal was an “unreasonable application” of federal law. See 28 U.S.C. § 2254(d)(1).

       Brady requires the prosecution to disclose impeachment and exculpatory evidence to the

defense “where the evidence is material either to guilt or to punishment.” Kyles v. Whitley, 514

U.S. 419, 432 (1995) (quoting Brady, 373 U.S. at 87). “[E]vidence is ‘material’ within the

meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the

result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009).

Such “[a] ‘reasonable probability’ of a different result is . . . shown when the government’s

evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles, 514 U.S. at

434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). This is a relatively lax standard:


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No. 17-3220, Smith v. Warden


it “does not require demonstration by a preponderance that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s acquittal.” Id. (citing Bagley, 473 U.S. at 682).

Thus, this standard is far easier to meet than that of Schlup, which requires a petitioner to show it

is more likely than not that no reasonable juror would have lacked a reasonable doubt. Moreover,

the suppressed evidence “must be evaluated in the context of the entire record. . . . [I]f the verdict

is already of questionable validity, additional evidence of relatively minor importance might be

sufficient to create a reasonable doubt.” United States v. Agurs, 427 U.S. 97, 112–13 (1976).

       Importantly, the test for materiality under Brady does not vary depending on whether the

court hearing the Brady claim also presided over the bench trial. In Bagley, the Supreme Court

articulated the exact same “reasonable probability” standard as in other cases involving Brady

claims even though the motion came before the judge “who had presided at [the] bench trial.” 473

U.S. at 672. And in Strickland, discussing this reasonable probability standard, the Court made

clear that the “assessment of prejudice” does not “depend on the idiosyncrasies of the particular

decisionmaker.” 466 U.S. at 695; see also id. at 694 (noting that the standard for prejudice for

ineffective assistance of counsel claims is derived from the standard for Brady claims). Brady

requires courts to “ask whether ‘there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different’ for a generic

factfinder who has not already reached a determination of guilt beyond a reasonable doubt.”

United States v. Pasha, 797 F.3d 1122, 1134 (D.C. Cir. 2015) (quoting Bagley, 473 U.S. at 682).

       The trial court’s comments at the end of the post-trial hearing, which provide the only

explanation in the record for why it denied the new trial motion, suggest that it misconstrued Brady.

The court told counsel, “you might have an argument if you’re trying it to a jury, but you’re trying

the case to me, and I’m also deciding this motion for new trial. . . . I have no doubt that both these




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No. 17-3220, Smith v. Warden


guys were involved in this.” The relevant question, however, was not whether the trial judge

would have voted to convict regardless of the new evidence.3 The question was instead whether

there was a reasonable probability that a generic, reasonable factfinder would have had a

reasonable doubt if she knew of the withheld DNA lab notes. To the extent that the court’s

comments can be taken as a statement of its reasons for denying the motion, it likely abused its

discretion by misapprehending and misapplying Supreme Court precedent.

        Further, viewed under the correct standard, there was a reasonable probability of a different

outcome had the lab notes been disclosed to the defense. Although it was elicited at trial that Allen

was included in the multi-source DNA sample derived from the wig while Smith was excluded,

Dr. Heinig testified at the post-trial hearing that she needed the lab notes to understand these results

because the report disclosed to the defense before trial did not allow her to determine whether

Allen’s DNA was found at every locus tested or just one or two loci. Only by reviewing the

underlying lab notes was she able to determine that alleles matching Allen’s DNA were present at

almost every locus tested on the wig. Of course, this is not conclusive proof that Allen was wearing

the wig during the robbery. As Dr. Heinig testified, DNA evidence does not indicate when

someone wore or touched an item. Nor does the absence of Smith’s DNA definitively prove that

Smith never wore the wig. But the fact remains that “the heavy presence of Charles Allen’s

DNA . . . was consistent with Allen wearing [and] not just briefly touching the items.”

        This point is of crucial significance because it directly undermines the trial court’s

explanation of how the DNA evidence pointing to Allen was consistent with Smith’s guilt. In

rendering its verdict at the bench trial, the trial court stated that it was not concerned with Allen’s



3
 We note that if the standard for Brady materiality in cases involving bench trials was whether there was a
reasonable probability that the trial judge would have voted differently, a trial court’s determination of
whether suppressed evidence was material would be essentially unreviewable by appellate courts.


                                                   -29-
No. 17-3220, Smith v. Warden


DNA being on the wig because “he was in the car, too, he touched it also.” Such a theory that

Allen’s DNA was transferred to the wig by a brief touching may have been consistent with the

evidence at trial, when it was unclear how much of Allen’s DNA was on the wig, but it was not

consistent with the lab notes disclosed after trial. The trial court implicitly recognized this problem

when it changed its explanation for why Allen’s DNA was found on the wig at the end of the post-

trial hearing, speculating that Allen may have worn the wig while committing other robberies. The

court posited, “it could very possibly be that Charles Allen wore this outfit and had this on

numerous occasions on other robberies, or even that day wore it and gave to Chris to wear, that’s

why he has a heavy presence of DNA on it, and that would mask Chris Smith’s DNA when he wore

it.” The problem with this explanation is that there was no evidence to support it at trial.

       Nor was there any evidence at trial to support a theory that Smith was the driver, and thus

liable as an accomplice, which would be another way of accounting for the strength of the DNA

evidence pointing to Allen. Although accessories are as liable as the principal, both Moore and

Allen identified Smith as the robber and Allen as the driver. Indeed, the State’s theory of the case,

from the indictment to its closings, was that Smith was the robber and Allen his accomplice.

A properly instructed jury therefore could not find Smith guilty on an aiding-and-abetting theory.

Cf. Lucas v. O’Dea, 179 F.3d 412, 416–17 (6th Cir. 1999) (holding that there was a “fatal variance”

between the indictment and the jury instructions when the defendant was charged with shooting

the victim, but the court instructed the jury that whether he fired the shot was “immaterial”).

       In a case with stronger evidence, the suppressed evidence might not be enough to create a

reasonable probability of a different outcome. But, here, it is sufficient to “undermine[] confidence

in the outcome of the trial.” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). If a




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No. 17-3220, Smith v. Warden


reasonable factfinder knew that Allen’s DNA was present at almost every locus tested on the wig,

while Smith’s DNA was not detected, there would be a reasonable probability of acquittal.

        Because there is a reasonable probability that Smith’s conviction would have been reversed

had he raised the Brady claim, it was IAAC not to raise it on direct appeal. Smith can thus show

cause and prejudice excusing the procedural default of his Brady claim. We will not consider the

merits of the Brady claim, however, because the portion of the COA relating to the Brady claim is

limited to the issue of whether the district court was correct not to consider the merits of this claim,4

and Smith never moved to expand the COA. See Harris v. Haeberlin, 526 F.3d 903, 907 n.1 (6th

Cir. 2008). Although we have the “inherent authority to expand sua sponte the scope of the COA

to encompass additional issues briefed and addressed on the merits before the district court,”

Howard v. United States, 485 F. App’x 125, 127–28 (6th Cir. 2012), we decline to do so here when

the merits issue was neither fully briefed nor addressed below.

        We therefore remand Smith’s Brady claim to the district court to consider on the merits.

In so doing, the district court is first required to determine whether this claim was “adjudicated on

the merits in [s]tate court proceedings.” 28 U.S.C. § 2254(d). If it was, the district court must

review the adjudication of this claim under the deferential standard required by AEDPA. See id.

                         b.      IAAC for failure to raise judicial bias

        In his first 26(B) application, Smith argued that counsel for his direct appeal had been

ineffective for failing to raise judicial bias. Specifically, Smith argued that the trial judge’s conduct

during closing arguments demonstrated “favoritism toward one of the litigants” and showed that

the trial judge had a “fixed anticipatory judgment” before defense counsel began closing argument.



4
  Specifically, the district court granted a COA “as to whether the Court was correct in finding a procedural
default, whether the Court was correct in finding no excuse to the procedural default exists, and whether
the Court was correct in not considering the merits” of the Brady claim.


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No. 17-3220, Smith v. Warden


In support, Smith noted that “[d]uring defense counsel’s closing argument, the trial court

interrupted [counsel] approximately 20 times. In almost every instance, the trial court’s comment

or question signaled that the court took issue with a statement of the defense, or indicated that the

court agreed with the State’s version of the events on October 17, 2007.”

       The Ohio Court of Appeals denied this claim. The court concluded that the judicial bias

claim “would not have presented a reasonable probability of success, and . . . appellate counsel

cannot be said to have been ineffective in failing to advance it” because, under Ohio law, an

intermediate appeals court would not have had jurisdiction to rule on this claim. Smith appealed

this denial to the Ohio Supreme Court, which declined jurisdiction. Smith thus properly presented

the IAAC claim for failing to raise judicial bias to the Ohio courts, which decided the issue on the

merits. So, if Smith’s appellate counsel had been constitutionally ineffective for failing to raise

the judicial bias claim, this would—like the analysis for the Brady claim above—provide both

cause and prejudice to excuse the procedural default for the judicial bias claim, permitting it to be

heard on the merits. See Gunner, 749 F.3d at 516; Edwards, 529 U.S. at 450–51.

       Again, because this IAAC claim would only be used to establish cause for procedural

default, we review this claim de novo. Joseph, 469 F.3d at 459. And again, to prevail, Smith

would have to show that counsel’s performance was both “objectively unreasonable” and that there

was “a reasonable probability that . . . he would have prevailed on his appeal” had counsel raised

the unreasonably omitted issues. Smith, 528 U.S. at 285; see also Mapes, 388 F.3d at 191.

       Smith fails at the first prong.     Even assuming that the Ohio Court of Appeals had

jurisdiction to rule on this claim, appellate counsel’s decision to forego it was not objectively

unreasonable. As support for his claim of judicial bias, Smith cites Tumey v. Ohio, 273 U.S. 510,

525 (1927) and Rose v. Clark, 478 U.S. 570 (1986). But these do not supply “arguably contrary




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No. 17-3220, Smith v. Warden


authority” on the issue. Mapes, 388 F.3d at 191. Tumey dealt with a judge who had a “pecuniary”

interest in the outcome of the trial. 273 U.S. at 514–15. Smith makes no such allegation as to his

trial judge. Rose does not expand this meaning of bias; instead it only references Tumey as an

example of a biased judge. 478 U.S. at 577–78. And while Smith argues that the trial judge had

a “fixed anticipatory judgment,” the evidence shows nothing more than a judge engaging with

counsel on the evidence. There was thus no “significant and obvious” issue to raise on appeal.

Mapes, 388 F.3d at 191. Nor was this claim “clearly stronger” than those presented. Id.

       Because appellate counsel was not ineffective in failing to raise the judicial bias claim on

direct appeal, there is no cause and prejudice to excuse the underlying procedural default. We thus

affirm the district court’s dismissal of claim four based on procedural default.

       D.      The Freestanding IAAC Claim

       Finally, there is the question of the merits of the part of Smith’s seventh claim that is not

procedurally defaulted—IAAC for failing to raise the Brady claim on direct appeal. As discussed

above, this freestanding IAAC claim is subject to AEDPA deference. Joseph, 469 F.3d at 459.

       Although the district court granted a COA on the issue of whether the habeas petition

“states a valid claim for ineffective assistance of appellate counsel,” Smith made only the most

barebone of arguments for why he should prevail on this claim on the merits. He asserts on appeal

that “[t]he district court ruled contrary to and unreasonably applied Strickland in deciding that . . .

appellate counsel’s failure to raise [the Brady] issue did not constitute IAAC.” But the question is

instead whether the Ohio Court of Appeals’ adjudication of Smith’s first Rule 26(B) application

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). Because this issue was not adequately briefed before us and its analysis will




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No. 17-3220, Smith v. Warden


necessarily overlap with the analysis required for the Brady claim, we remand the IAAC claim for

the district court to address in light of the above discussion.5

                                             CONCLUSION

        For the foregoing reasons, claims two to six in Smith’s § 2254 petition are procedurally

defaulted and no excuse or bypass for this default exists. IAAC does excuse Smith’s procedural

default of his Brady claim, however, requiring the district court to reach the merits of this claim.

We therefore AFFIRM in part, REVERSE in part, and REMAND for further proceedings.




5
  It will likely make sense for the district court to first analyze the Brady claim on the merits. The proper
remedy for a Brady claim would be the granting of a conditional writ of habeas corpus unless the State
retries Smith. The proper remedy for a freestanding IAAC claim would be granting a writ of habeas corpus
unless the State reopens the appeal. Goff, 601 F.3d at 472–73 (citing Mapes, 388 F.3d at 193–95).


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