David Thorne v. Ernest Moore

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eric L. Clay, Circuit Judge; John M. Rogers, Authoring Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

No. 09-4098

Apr 04, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DAVID G. THORNE,

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Petitioner-Appellant,
v.
DEB TIMMERMAN-COOPER, WARDEN,
Respondent-Appellee.

LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO

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 exgirlfriend 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.
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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 exgirlfriend, 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
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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
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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
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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
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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
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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
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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
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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 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.

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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

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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 newlypresented 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.”

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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.
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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
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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
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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

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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-yearold 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
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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.

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B.

Document: 006111265233

Filed: 04/04/2012

Page: 18

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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Page: 19

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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Document: 006111265233

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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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