Widmer v. Warden, Correctional Reception Center

Filing 35

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/16/2017. Signed by Magistrate Judge Michael R. Merz on 2/2/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RYAN K. WIDMER,

:
Case No. 1:14-cv-303

Petitioner,
-vs-

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, CORRECTIONAL
RECEPTION CENTER,
Respondent.
:

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought by Petitioner Ryan K. Widmer pursuant to
28 U.S.C. ' 2254 seeking relief from his conviction for murder and his subsequent sentence of
fifteen years to life imprisonment.
Mr. Widmer is represented in this proceeding by counsel who has represented him
since May 6, 2009, during the litigation of his post-trial motions following his first trial (See
Respondent’s Appendix (“App’x”), ECF No. 17-1, Exh. 44, PageID 605). In addition, Mr.
Widmer’s current counsel has represented Mr. Widmer in his appeals on a pro bono basis since
February, 2011(See ECF No. 2, PageID 169).

Statement of Facts
The Ohio Court of Appeals for the Twelfth Appellate District described the facts

1

and circumstances leading to Mr. Widmer’s indictment, trials, conviction, and adjudged sentence
as follows:
[*P2] The record indicates that on Monday, August 11, 2008, at
10:49 p.m., Widmer called 911 for emergency assistance. The
phone call lasted less than seven minutes. During the phone call,
Widmer stated that his 24–year–old wife, Sarah Widmer, had fallen
asleep in the bathtub at their home in Morrow, Ohio, and he thought
she was dead. Widmer told the 911 dispatcher he had been
downstairs watching TV, and when he came upstairs, he found
Sarah lying face-down in the bathtub. He commented to the
dispatcher that Sarah “falls asleep in the tub all the time.”
[*P3] While on the telephone with the 911 dispatcher, Widmer
drained the bathwater, removed Sarah from the bathtub, and
proceeded to attempt CPR. Within six minutes of placing the 911
call, Deputy Steve Bishop with the Warren County Sheriff's Office
arrived at the scene and found Sarah lying naked on the carpeted
floor of the master bedroom. Sarah's body was warm and appeared
to be dry, but her hair was wet. Widmer was also in the bedroom,
dressed only in his boxer shorts. Bishop did not observe any trauma
or injuries to Widmer.
[*P4] After determining Sarah did not have a pulse and was not
breathing, Bishop began CPR. Bishop noticed that a pinkish-white,
frothy discharge was coming out of Sarah's mouth and nose, and
additional discharge occurred during chest compressions.
Emergency personnel who later arrived at the scene also noticed a
frothy discharge coming from Sarah's vaginal area.
[*P5] Paramedics and emergency medical technicians (EMTs) from
the Hamilton Township Fire and Rescue Department and police
officers from the Hamilton Township Police Department arrived
shortly after Bishop. EMT Jeff Teague tried to open Sarah's airway
and attempted to place a bag valve mask over her nose and mouth to
provide concentrated oxygen. Teague struggled to keep the mask on
Sarah as her head kept retracting down, making the mask pop off.
Teague successfully adhered defibrillation pads to Sarah's body, one
on her chest and the other on her back, and attempted to shock her
heart back into rhythm, but she remained asystole.FN1
FN1. Asystole was defined at trial by medical
personnel as the absence of an electrical rhythm in
the heart.
2

[*P6] Paramedic Jason Stevens made two attempts to intubate Sarah
while in the master bedroom, but both attempts were unsuccessful.
On his second attempt to intubate, Stevens had Teague perform the
Sellick maneuver so that he could see Sarah's vocal cords and place
the tube in Sarah's trachea.FN2 After the second intubation attempt
failed, the decision was made to place Sarah on a backboard and
remove her from the home. Sarah's body was covered with a sheet
and rolled out of the home into a waiting ambulance.
FN2. According to Teague, “[t]he Sellick maneuver
is pressure on a cartilage in your throat to allow * * *
[for] multiple things. One to close off the actual
throat to the stomach to keep from allowing vomit to
come out and the other one is visualize the vocal
cords.”
[*P7] While the ambulance was stationary, Stevens attempted to
establish an intravenous line (IV) in Sarah. After failing to find a
vein in both her right arm and her left arm, Stevens was able to start
an IV in the external jugular vein on the left side of Sarah's neck.
EMT Derek K. Roat made two unsuccessful attempts to intubate
Sarah, utilizing the Sellick maneuver on one of those attempts.
While Sarah was being treated in the ambulance, Widmer talked
briefly with law enforcement. Widmer admitted he consumed four
beers earlier in the evening.
[*P8] Approximately ten minutes after Sarah was placed in the
ambulance, the decision was made to transport her to the hospital.
Widmer, visibly upset, rode along with the ambulance. While en
route to the hospital, Roat made a fifth intubation attempt, which
proved unsuccessful. When Sarah arrived at Bethesda Arrow
Springs Hospital, she was not breathing and did not have a pulse.
Dr. David Marcus, the treating emergency room physician, was able
to intubate Sarah within 60 to 90 seconds of her arrival. While Sarah
underwent treatment, a charting nurse attempted to gain information
about Sarah from Widmer. Widmer told the charting nurse that he
found Sarah in the bathtub, face-up, and not breathing.
[*P9] At 11:41 p.m., after nearly 20 minutes of treatment in the
emergency room, Sarah was pronounced dead. Shortly thereafter,
Doyle Burke, the chief investigator for the Warren County
Coroner's Office, arrived at the hospital. Upon observing Sarah's
3

body, Burke noticed that Sarah's body appeared dry, but her hair
was damp, there did not appear to be any pruning or wrinkling on
her body, and she did not have any visible external injuries. When
bagging Sarah's hands to preserve evidence, Burke noticed that
Sarah's nails were well manicured and were not broken or chipped.
[*P10] While at the hospital, Widmer told Burke that he and Sarah
were the only people in their home that night. Widmer stated that at
about 10:00 p.m., while he was watching a football game on TV
downstairs, Sarah said she was going to go upstairs to take a bath. At
this point, Widmer interjected that he had been “afraid she may fall
asleep in the tub.” When Burke asked if Sarah had ever fallen asleep
in the tub before, Widmer said no, she'd never fallen asleep in the
tub before, but Sarah would fall asleep very easily. After relaying to
Burke the events following his discovery of Sarah in the bathtub,
Widmer consented to have police search his home.
[*P11] Detective Lieutenant Jeff Braley with the Hamilton
Township Police Department arrived at the Widmers' home as the
ambulance transporting Sarah to the hospital departed from the
scene. Upon arriving, Braley was briefed by the officers who had
initially responded and was given a tour of the home by Officer
Quillian Short. During his tour of the home, Braley noticed that the
bathroom floor and the items laying on the floor, including
magazines, a bathmat, discarded clothing, and a brown towel,
appeared dry. Braley also noticed that the tub itself was mostly dry,
with the only observable water being droplets located right around
the drain. Officer Short noticed water droplets around the drain and
on the stopper, but found no evidence of water on the bathroom
floor or anywhere else outside of the bathtub. Short also noticed that
the majority of the Widmers' bath products were lined up along the
edge of the tub, with the exception of a cup, a loofa, and a bottle of
Dial soap, which were inside the bathtub.
[*P12] After receiving word of Widmer's consent to have the home
searched, a more thorough investigation took place. Officers who
secured the scene did not find any indication the house had been
broken into. When investigating the downstairs, Short discovered
that the TV on which Widmer claimed to have been watching a
Cincinnati Bengals football game was actually set to a different
program. The TV in the master bedroom, however, was set to the
Cincinnati Bengals game.
[*P13] Braley examined the master bedroom and found blood stains
on the carpet in the location where Sarah's head and vaginal area had
4

been laying. Braley took off his latex gloves and felt the carpet in
the area between the blood stains to determine if the carpet
contained any moisture. Braley found the carpet dry. He then took
samples of the carpet from the area where the stains were. The
samples were individually sealed in brown paper bags.
[*P14] Evidence was also collected from the bathroom, which
included products lined up on the edge of the bathtub and the items
inside the bathtub. The items found on the floor of the bathroom,
including the magazines, bathmat, discarded clothing, and the
brown towel, were recovered as evidence. Also recovered in the
bathroom was a used Lysol wipe, which was taken into evidence.
[*P15] Additional areas of the Widmers' home were searched for
evidence. Officers briefly looked through the laundry room, inside
the washer and dryer, in the garage, and inside Sarah and Widmer's
vehicles. The officers did not discover wet towels or anything else
out of the ordinary during this brief search.
[*P16] The following day, Dr. Russell Uptegrove, the Warren
County Coroner, performed Sarah's autopsy. Burke and Braley were
present during the autopsy. Uptegrove determined that Sarah's death
was caused by drowning. Uptegrove observed both external and
internal injuries to Sarah's body. Externally, Sarah had faint bruising
on the right-side of her forehead, a petechial hemorrhage on the
inner surface of her eyelid, bruising on the left-side of her neck, a
contusion on the back of her neck, an abrasion on her left armpit,
and bruising and lacerations to her upper lip.FN3 Internally, Sarah
had significant, deep muscle hemorrhaging in the anterior of her
neck and contusions to her scalp. Uptegrove took microscopic
samples of Sarah's brain and heart for testing, but did not observe
anything out of the ordinary when examining the organs. A
toxicology report was ordered, but before the results of the report
were received Uptegrove determined that the manner of Sarah's
death was a homicide. In Uptegrove's opinion, the injuries Sarah
sustained occurred before her death and were not consistent with
injuries commonly resulting from CPR. Days later, the toxicology
report was completed, and it indicated that Sarah did not have drugs
or alcohol in her system at the time of her death.
FN3. Uptegrove defined a petechial hemorrhage as a
very small, red hemorrhage that occurs in the eye
once a blood vessel has ruptured due to an increase in
pressure.

5

[*P17] On August 15, 2008, two days after the initial autopsy by
Uptegrove, a second autopsy was performed by Dr. Werner Spitz.
Spitz, an expert in forensic pathology who was retained by the
defense, agreed that the cause of Sarah's death was drowning. Spitz
observed external injuries to the front of Sarah's neck, to her left and
right arms near the crease of her elbow, to her upper lip, and to the
nape of her neck. Internally, Spitz observed injuries to Sarah's scalp,
a tear in her liver, and hemorrhaging to her neck. Spitz did not find
any evidence of petechial hemorrhaging. Spitz was unable to
determine whether Sarah's injuries, including the internal
hemorrhaging to her neck, were caused by rigorous CPR or by some
other means. For this reason, Spitz would not have ruled the manner
of Sarah's death a homicide; rather, he would have ruled her death
“undetermined.”
[*P18] Widmer was arrested on a charge of aggravated murder on
August 13, 2008. That same day, a warrant to search the Widmers'
home was executed. While executing the warrant, Braley dusted the
bathtub for fingerprints and found streak marks that he believed
were made by human hands. The marks were located near the
middle of the bathtub, on its far wall (or right-side wall). Once the
marks were discovered, Braley contacted the Miami Valley Crime
Lab (Miami Valley) to have the bathtub examined. Danny Harness,
a latent print examiner with Miami Valley, responded to the scene.
Using a superglue fuming process and reflected ultraviolet imaging,
Harness observed fingermarks and smear marks on the bathtub. He
was not, however, able to visualize any latent fingerprints of value
on the bathtub. Nonetheless, the decision was made to remove the
bathtub from the Widmers' home, and it was sent to Miami Valley
for further processing. During his second examination of the
bathtub, Harness used fingerprint powder and found fragmented
prints on the bathtub. However, the prints lacked identifying
characteristics and Harness deemed the prints to be of no
comparison value.
[*P19] A few months later, William Hillard, a senior criminalist
with the City of Cincinnati, was contacted by the Hamilton
Township Police Department to examine the bathtub. Hillard found
marks along the top of the tub and the side of the tub that indicated it
had been wiped down, but he was unable to determine when the tub
had been wiped down. Hilliard also found fingertip impressions on
the tub. He was unable to make a positive identification as to who
specifically left the fingertip markings, but he was able to determine
that the markings were in a downward position and were made by a
person of small stature, like a child, a female, or a small male.
6

Hillard also found a forearm impression on the bathtub and
determined from the presence of hair follicles that the impression
was made by an adult male. Hillard determined that this forearm
impression overlaid circular marks made on the bathtub by bath
product bottles. Hillard could not, however, determine when the
forearm impression or fingertip markings were made on the bathtub.
[*P20] In addition to the bathtub, other evidence taken from the
Widmers' home was sent to Miami Valley for testing. The Lysol
wipe recovered from the bathroom tested negative for the presence
of blood and semen. Water samples from the bathtub's drain and
from the toilet tested negative for the presence of blood. The carpet
samples taken from the master bedroom tested positive for blood but
negative for semen. The carpet sample taken from the area where
Sarah's head had been laying tested positive for human fecal matter.
A carpet sample taken east of where Sarah's vaginal area had been
laying also tested positive for human fecal matter, but the sample
from where her vaginal area had laid did not contain human fecal
matter. During testing of the carpet samples, it was discovered that
one of the samples had been wet when it was packaged, and the
moisture from the sample had soaked the bottom of the bag.
[*P21] Miami Valley also did DNA testing of samples taken from
under Sarah's fingernails. The majority of the matter taken from
underneath Sarah's fingernails contained her own DNA, but there
was also an unknown female contributor's DNA present. An effort
was made to identify the possible female contributor, but no match
was found. Sarah's mother, a female police officer who responded to
the Widmers' home on the night of Sarah's death, and nurses who
treated Sarah at the hospital were excluded as possible matches.
[*P22] Widmer went to trial on the aggravated murder charge in
March 2009. He was found guilty of murder, a lesser-included
offense, and sentenced to 15 years to life in prison. On July 22,
2009, a new trial was granted after it was discovered that jury
members, during their deliberation, had improperly discussed
personal and external matters regarding the length of time it took
them to dry after bathing. A second trial took place in May 2010.
After the jury was unable to reach a verdict, a mistrial was declared.
A third trial was scheduled for January 2011.
[*P23] Prior to the start of the third trial, Jennifer Crew, a resident of
Iowa, contacted the Warren County Prosecutor's Office with
additional information about Sarah's death. In September 2009,
Crew watched a Dateline television episode featuring Sarah's death
7

and Widmer's subsequent arrest. After viewing the program, Crew
visited a website that supported Widmer's innocence where she
obtained information that allowed her to begin communicating with
Widmer. The two began exchanging emails, phone calls, and text
messages.
[*P24] Crew claimed that on October 26, 2009, at 11:06 p.m., she
received a phone call from an upset and crying Widmer. Crew
claimed Widmer admitted he killed Sarah, saying “I did it. I did it. I
killed Sarah. I did it.” According to Crew, Widmer told her that he
and Sarah fought in their living room on the evening of Sarah's
death about his pornography, cheating, drinking, and smoking. The
argument continued upstairs in their bathroom, at which point Sarah
declared that their marriage was over. Crew stated that Widmer told
her things got physical between him and Sarah. Widmer allegedly
told Sarah, “Nobody leaves me, nobody ever leaves me and I mean
nobody,” and then punched her in the chest, causing Sarah to fall
backwards and hit her head. Widmer told Crew that he knelt down
beside Sarah, “blacked out,” and when he came to, Sarah was on the
floor, not breathing with her hair wet.
[*P25] According to Crew, Widmer said that he “freaked out”
because “he had done something that he shouldn't [have] done,” and
he started wiping up water that was on the bathroom floor with
towels while thinking about how he could cover up Sarah's death.
Crew stated that Widmer told her he then called 911, and when
directed by the 911 dispatcher to give Sarah CPR, Widmer just
breathed into the phone to make it sound like he was giving CPR.
Widmer allegedly told Crew that he did not give Sarah CPR because
he knew she was already dead since she had not been breathing for
quite a while. Widmer also allegedly told Crew that when he was
answering a nurse's questions at the hospital, he knew he “screwed
up” because he told the nurse that he found Sarah face-up in the
bathtub when he previously told the 911 dispatcher that Sarah was
face-down in the bathtub.
[*P26] Crew claimed that she promised Widmer she would never
tell anyone about his confession, and in response, Widmer stated, “I
hope not because I wouldn't want you to be at where Sarah's at.”
Crew stated that she feared for her safety after that phone call. Crew
claimed that to reassure Widmer that she would not turn him in or
disclose the details of the October 26 phone call, she continued to
have regular and repeated contact with him until late November
2009. In June 2010, after finding out that Widmer's second trial had
ended in a mistrial, Crew contacted officials to report the details she
8

had learned about Sarah's death. Crew testified as to these details at
Widmer's third trial. In an effort to discredit Crew's testimony, the
defense presented information about Crew's former prescription
drug addiction and her numerous convictions for misdemeanor
theft.
[*P27] Widmer's third trial was held in January 2011. The third trial
spanned four weeks and resulted in testimony from more than 40
individuals, including medical personnel who treated Sarah on the
night of her death, police officers who investigated her death, and
pathologists who conducted Sarah's autopsies. Because Widmer
sought to introduce evidence that Sarah may have suffered from an
unknown cardiovascular or neurological defect, which caused her to
lose consciousness and drown in the bathtub, numerous medical
experts were called by the defense to support Widmer's position and
by the state to refute Widmer's defense. In support of his defense,
Widmer also presented testimony from Sarah's co-workers and
friends regarding Sarah's sleeping habits and physical health.
[*P28] Before her death, Sarah had been employed as a dental
hygienist by a dental practice in Fort Thomas, Kentucky. Sarah's
co-workers testified Sarah often slept in her car in the mornings
before work, and she would take a nap in her car during her lunch
break. Sarah's co-workers also testified that she had allergies, and
she would sometimes complain of headaches or stomachaches.
Dana Parker–Kist, Sarah's friend and former co-worker, testified
that on at least one occasion Sarah's headache was so severe that it
blurred her vision and required her to go into a dark room. Dr.
Benjamin Mesmer, a dentist at the practice where Sarah worked,
testified Sarah complained of a headache and stomachache on the
day of her death.
[*P29] Friends of Sarah and Widmer testified that Sarah would fall
asleep at “odd” times and places. Friends described instances where
Sarah fell asleep while tailgating at Cincinnati Bengals football
games, while watching a movie in the early evening, and while
sitting in a bar at a table full of talking women. On some of these
occasions, Sarah had been drinking alcohol before she fell asleep.
[*P30] Sarah's mother, Ruth Ann Stewart, testified at trial on behalf
of the state. Stewart testified she and Sarah had a very close
relationship, and they had spent nearly every Friday together since
Sarah's father's death in March 2007. Stewart testified she had not
noticed that Sarah slept a lot or at odd times. Stewart did recall
Sarah complaining of headaches, but only when Sarah's sinuses
9

were acting up due to a change in the weather. Stewart testified that
she talked to Sarah on the day of her death while Sarah was driving
home from work, and Sarah did not tell her that she had a headache,
stomachache, or was otherwise feeling ill.
[*P31] Stewart also testified that Sarah's family did not have a
medical history of seizures, heart disease, or cardiac problems.
Stewart testified Sarah had never had a seizure or been diagnosed
with epilepsy. Stewart described Sarah as healthy and active. As a
baby, however, Sarah had a heart murmur and a cleft palate. Sarah's
mother testified the cleft palate was corrected by surgery while
Sarah was a child.
[*P32] Medical records introduced at trial indicate that Sarah had
been diagnosed in November 1984 with a functional heart murmur.
Other than the November 1984 report and a dental record dated
October 5, 2006, wherein Sarah indicated that as a child she had
been told by a physician that she had a heart murmur, none of
Sarah's other medical records mention a heart murmur. Sarah
underwent a physical in June 2008, just a few months prior to her
death, and the report from the physical did not indicate that Sarah
suffered from a heart murmur or any other cardiac ailment. Further,
this report did not indicate Sarah suffered from a neurological
disease or defect.
[*P33] Dr. Charles Jeffrey Lee, an expert in pathology, testified that
a functional heart murmur is known as an “innocent heart murmur”
that has to do with the “physiology of the body outside of the heart.”
Lee testified that this type of murmur, which is typically heard in
infants, will usually disappear in a few months or a year. In Lee's
opinion, Sarah's childhood functional heart murmur did not in any
way contribute to her death. After reviewing Sarah's medical
records and the autopsy records, Lee testified he did not find any
evidence of a heart or brain disease or defect which caused or
contributed to Sarah's death. Rather, Lee concurred with
Uptegrove's conclusion, opining that Sarah's death was a homicide
by drowning. Lee further testified that the injuries Sarah sustained,
including the bruising to her neck, scalp, and forehead, were
atypical to a drowning event and, in his opinion, were not
attributable to medical intervention or the administration of CPR.
Dr. William M. Rogers, an expert in emergency medicine, also
testified that the bruising to the anterior of Sarah's neck was not
consistent with the administration of CPR or intubation attempts.
[*P34] Dr. Michael G. Balko, an expert in anatomical pathology,
10

forensic pathology, neuropathology, and cardiovascular pathology,
testified that he concurred with Dr. Spitz's findings from the second
autopsy.FN4 Because he could not exclude rigorous CPR efforts as
the cause of Sarah's injuries, Balko, like Spitz, would have declared
the manner of Sarah's death “undetermined.” Balko testified that in
his opinion it was not possible to determine whether a neurological
cause rendered Sarah unconscious and subsequently caused her to
drown in the bathtub because Sarah's brain was not adequately
sampled and tested during her autopsies. Balko further testified that
the injuries Sarah sustained, especially the bruising around her neck,
are consistent with injuries sustained from the resuscitative and
intubation processes. Dr. Dave Smile, an expert in emergency
medicine who characterized the resuscitation efforts on Sarah's
behalf as exceptionally long and very difficult, testified that injuries
to the neck, especially to the thyroid cartilage, vocal cords, and soft
tissues along the trachea, are injuries commonly observed when the
Sellick maneuver is utilized during difficult intubations. Smile also
testified that the lacerations to Sarah's upper lip are consistent with
injuries that commonly occur during difficult intubations.
FN4. Dr. Spitz was unavailable to testify at the third
trial due to an illness. The trial court permitted his
testimony from the second trial to be read into
evidence. Neither Widmer nor the state has appealed
the trial court's decision to allow Spitz's testimony
from the second trial.
[*P35] Dr. James Layne Moore, an expert in neurology,
neurophysiology, and sleep medicine, testified that Sarah's medical
records do not indicate Sarah suffered from a sleep disorder or a
neurological disease or defect. Moore explained that hypoxia,
meaning “low oxygen,” causes people who are asleep to wake up
when they are deprived of oxygen. Moore testified that even if an
individual fell asleep in water, hypoxia would drive the individual to
wake up and start breathing. For this reason, Moore testified, he did
not believe Sarah fell asleep in the bathtub and then drowned.
Moore further testified, given Sarah's medical records, he did not
believe Sarah suffered a seizure while in the bathtub.
[*P36] Dr. Chandler A. Phillips, an expert in biomedical
engineering, human factors engineering, and injury biomechanics,
testified on behalf of the defense. Using measurements of Sarah's
body, Widmer's body, the bathroom itself, and those fixtures within
it, including the bathtub, Phillips reached the opinion that Widmer
11

did not forcibly drown Sarah in the bathtub. Phillips did not testify
that there was insufficient space in the bathroom for Widmer to
forcibly drown Sarah, but rather that the injuries Sarah sustained
were not consistent with a forcible drowning in the bathroom.
Phillips testified that with an anterior strangulation approach, or
face-to-face approach, one would expect the victim to have injuries
to the small bones in the neck, defense marks to the hands, and
injuries to the feet from where the victim kicked the assailant in an
effort to break free. With a posterior approach to strangulation, or a
strangulation attempt from the rear, Phillips testified that one would
expect to see bruising and injuries to the knees, thighs, and pelvis
area of the victim. Phillips testified that these injuries were not
observed during Sarah's autopsies, and therefore do not support a
theory that Sarah was forcibly drowned in the bathroom.
[*P37] Melissa Waller, a resident of Washington who befriended
Widmer after watching the September 2009 Dateline episode, also
testified at the third trial. The two communicated regularly by email,
text messaging, and phone. Waller testified that on October 26,
2009, the same night Crew claimed Widmer called her to confess to
killing Sarah, Waller had talked to Widmer on the phone for nearly
two hours, until about 11:00 p.m. In direct contrast to Crew's
testimony, Waller testified that Widmer was not intoxicated,
emotionally distraught, or upset during their phone conversation.
[*P38] After closing arguments, the trial court provided jury
instructions for the offense of murder and the lesser-included
offense of involuntary manslaughter predicated on the commission
of a misdemeanor assault. The jury returned a guilty verdict on the
murder charge, and Widmer was sentenced to serve 15 years to life
in prison.
State v. Widmer, 2012-Ohio-4342, 2012 Ohio App. LEXIS 3801 at **1-24, 2012 WL 4350275 at *
1-8 (12th Dist. Sept. 24, 2012); see also ECF No. 17-1, Exh. 2, PageID 247-60.

State Court Proceedings
On August 15, 2008, a Warren County grand jury indicted Mr. Widmer on one count of
aggravated murder in violation of Ohio Revised Code § 2903.01(A) (ECF No. 17-1, Exh. 3,

12

PageID 301-03). During the next several months, the parties engaged in extensive pretrial motion
practice. Id. at Exhs. 4-30, PageID 304-82.
Trial to a jury commenced on March 31, 2009 (ECF No. 21-2, PageID 2836-3824). On
April 2, 2009, the jury found Mr. Widmer not guilty of aggravated murder, but guilty of the lesser
included offense of murder. Id. at PageID 3838-39; see also App’x, ECF No. 17-1, Exh. 33,
PageID 387. On April 3, 2009, the trial court sentenced Mr. Widmer “to serve a term of fifteen
(15) years to life in prison with eligibility of parole after serving fifteen (15) years in prison, of
which fifteen (15) years is a mandatory term …” (App’x, ECF No. 17-1, Exh. 1, PageID
245-45)(emphasis omitted); ( Trial Transcript, herein after “Tr.,” ECF No. 21-2, PageID 3840-41).
On April 9, 2009, Mr. Widmer filed, a motion for acquittal and new trial alleging
prosecutorial misconduct and insufficient evidence (App’x, ECF No. 17-1, Exh. 36, PageID
391-436). He later supplemented the motion with a claim of juror misconduct. Id. at Exh. 37,
PageID 437-81.
On May 20, 2009, the trial court denied Mr. Widmer’s motion for acquittal and granted the
state an extension to supplement its opposition to Mr. Widmer’s juror misconduct allegation. Id. at
Exh. 45, PageID 607-23. The parties litigated the juror misconduct issue. Id. at Exh.46, PageID
624-36; Id. at Exh. 47, PageID 637-66; Id. at Exh. 48, PageID 667-68; Id. at Exh. 49, PageID
669-94; Id. at Exh. 50, PageID 695-98; Id. at Exh. 51, PageID 699-707; Id. at Exh. 52, PageID
708-11; Id. at Exh. 53, PageID 712-17; Id. at Exh. 54, PageID 718-27. On July 22, 2009, the trial
court granted Mr. Widmer’s motion for a new trial on the basis of juror misconduct.1 Id. at Exh.
55, PageID 728-39.
1. The juror misconduct involved several jurors’ personal experiments related to post-showering/bathing air-drying
time, the results of which they shared with their fellow jurors during deliberations.

13

The State filed a motion to reconsider which the trial court denied. Id. at Exh. 56, PageID
740-50; Id. at Exh. 57, PageID 751. The State then filed a motion to stay the trial court’s new trial
order and a notice of appeal and Mr. Widmer filed a notice of conditional cross-appeal. Id. at Exh.
58, PageID 752-53; Id. at Exh. 59, PageID 754-83; Id. at Exh. 60, PageID 784-86. The trial court
stated its new trial order on August 19, 2009. Id. at Exh. 61, PageID 787.
The State filed a motion to file a discretionary appeal in the Twelfth District Court of
Appeals for Warren County which the court denied. Id. at Exh. 62, PageID 788-818; see also
App’x ECF No.18-1, Exh. 64, PageID 869.
During the period of about March 17, 2010, through the May 12, 2010, the start of Mr.
Widmer’s second trial, the parties litigated an issue involving the prior employment records of
Detective Jeff Braley (App’x, ECF No. 18-1, Exh. 66, PageID 871-875); see also Id. at Exh. 67
PageID 876-79; Id. at Exh. 68, PageID880-84; Id. at Exh. 69, Page ID 885; Id. at Exh. 70, PageID
886-905; Id. at Exh. 71, PageID 906-08. Subsequently, the trial court granted Det. Braley’s
motion to quash Mr. Widmer’s subpoenas for Det. Braley’s Hamilton Township employment
records. Id. at Exh. 75, PageID 941.
During that pre-trial period, the parties also litigated issues regarding Dr. Chandler A.
Phillips’, Michael J. Birchak’s, and Dr. James Layne Moore’s testimony, anticipated trial
testimony as well as the 911 tapes, and seizure of the bathtub. Id. at Exh. 76, PageID 942-47; Id. at
Exh. 77, PageID 948-53; Id. at Exh. 78, PageID 954-59; Id. at Exh. 79, PageID 960-64; Id. at
Exh. 80, PageID 965-89; Id. at Exh. 81, PageID 990-1028; Id. at Exh. 82, PageID 1029-35; Id. at
Exh. 84, PageID 1037-40; Id. at Exh. 85, PageID 1041-48. During the litigation of those issues,
Mr. Widmer withdrew his motion to exclude Dr. Moore’s testimony and the trial court denied Mr.

14

Widmer’s motion to exclude the 911 tapes (Id. at Exh. 83, PageID 1036), and his motion to
suppress seizure of the bathtub. Id. at Exh. 86, PageID 1049-50.
A second trial to a jury commenced on May 12, 2010 (Tr., ECF No. 21-7, PageID
4263-4335; ECF No. 21-8, PageID 4336-6860). On June 1, 2010, the jurors advised the court that
they had “decided that we cannot agree and that further deliberations will not serve a useful
purpose.” (Tr., ECF No. 21-8, PageID 6858.) The trial court then declared a mistrial (ECF No.
18, Exh. 91, PageID 1070).
On August 6, 2010, the trial court denied Mr. Widmer’s motion for acquittal. Id. at Exh. 92,
PageID 1071-95; Id. at Exh. 93, PageID 1096-1116; Id. at Exh. 94, PageID 1117-19. On
November 8, 2010, the court denied the State’s motion for change of venue. Id. at Exh. 95, PageID
1120-1430; Id. at Exh. 96, PageID 1431-40; Id. at Exh. 98, PageID 1480.
Again, the parties engaged in extensive motion practice addressing such issues as
exculpatory and impeaching evidence, review of the State’s non-disclosure certification, providing
Mr. Widmer with tissue slides, the use of medical records at trial, allowing confrontation of the
lead investigator, excluding Dr. Jeffrey Lee’s testimony, allowing impeachment of witnesses, and
declaring Dr. Spitz unavailable. See Id. at Exhs. 99-100, PageID 1481 - 1497; App’x, ECF
No.19-1, Exhs. 101-124, PageID 1517 - 1685.
Trial to a third jury commenced on January 12, 2011 (See Tr., ECF No. 21-12, PageID
6930, et seq.) On February 15, 2011, the jury returned a verdict finding Mr. Widmer guilty of one
count of murder in violation of Ohio Revised Code § 2903.02(A) (Tr., ECF No. 21-17, PageID
9988; App’x, ECF No. 19-1, Exh. 126, PageID 697). The court then sentenced Mr. Widmer to the
term of imprisonment he is now serving (App’x, ECF No. 17-1, Exh. 1, PageID 245-46; see also

15

App’x, ECF No. 21-17, PageID 9991).
Mr. Widmer filed a motion for a new trial on March 1, 2011, and a motion for judgment of
acquittal on March 4 (App’x, ECF No. 19-1, Exh. 127, PageID 1698-1705; Id. at Exh. 128, PageID
1706-23) which the trial court denied after a hearing (Tr., ECF No. 21-18, PageID 9994-1050;
App’x, ECF No. 19-1, Exh. 133, PageID 1785-96). On April 15, 2011, Mr. Widmer filed a
motion to preserve evidence and for an in camera inspection of certain items related to whether a
particular juror accessed any out-of-court sources regarding Mr. Widmer and/or his case (App’x,
ECF No. 19-1, Exh. 134, PageID 1797-1800), which the court sustained “as to all biological
samples or materials obtained from Sara[sic] Widmer and all physical evidence collected at the
scene as set forth in items 1 and 2 of the motion” and overruled the remainder of Mr. Widmer’s
requests. Id. at Exh. 137, PageID 1820-21.
Mr. Widmer appealed, raising the following assignments of error:
FIRST ASSIGNMENT OF ERROR
Trial counsel provided ineffective assistance in violation of the
Sixth and Fourteenth Amendments by failing to timely prosecute
what would have been a meritorious motion to suppress the bathtub
and all evidence related to said tub discovered following its
unlawful seizure. The state unconstitutionally seized the bathtub
pursuant to a search warrant which neither listed the bathtub as an
item to be seized nor could be construed to validly include the
bathtub under the overly broad “latent fingerprint” language.

SECOND ASSIGNMENT OF ERROR
Widmer was denied a fundamentally fair trial in violation of his due
process rights through the admission of impermissible expert
opinion testimony that: (1) reached beyond the expert’s purported
expertise; (2) lacked scientific foundation; and (3) was based on a
methodology that has been proven unreliable. Accordingly, Widmer
was also denied the right to adequately confront this evidence in
16

violation of his Sixth Amendment rights.

THIRD ASSIGNMENT OF ERROR
The trial court erred in violation of Widmer’s Fifth, Sixth, and
Fourteenth Amendment rights by failing to properly instruct the jury
on all lesser-included offenses of murder reasonably adduced by the
evidence. Alternatively, defense counsel provided ineffective
assistance in violation of the Sixth and Fourteenth Amendments by
failing to ensure that the jury instruction properly conveyed the
applicable law.

FOURTH ASSIGNMENT OF ERROR
Due Process and Sixth Amendment violations occurred when the
trial court: (1) quashed the defense subpoenas seeking to further
investigate Lt. Braley’s background following the May 5, 2010
hearing; and (2) denied the January 2011 defense motion requesting
permission to confront Lt. Braley during trial about his background.

FIFTH ASSIGNMENT OF ERROR
Widmer’s conviction is based on insufficient evidence in violation
of his constitutional rights to due process and a fair trial. At most,
the state presented sufficient evidence to sustain a conviction of
involuntary manslaughter or reckless homicide.

SIXTH ASSIGNMENT OF ERROR
Widmer’s conviction is against the manifest weight of the evidence.
(App’x, ECF No. 19-1, Exh. 139, PageID 1823-85.) The court of appeals affirmed Mr. Widmer’s
conviction and sentence. Widmer, supra, 2012-Ohio-4342; App’x, ECF No. 17-1, Exh. 2, PageID
247-60.
Mr. Widmer appealed further to the Ohio Supreme Court which declined to accept
jurisdiction. State v. Widmer, 134 Ohio St.3d 1468 (table), 983 N.E.2d 368 (table), 2013-Ohio-553

17

(Feb. 20, 2013); App’x, ECF No. 19-1, Exh. 146, PageID 2080.

Widmer also unsuccessfuly

sought certiorari review in the United States Supreme Court. Widmer v. State, ___ U.S. ___, 134
S.Ct. 105 (2013); App’x, ECF No. 20-1, Exh. 149, PageID 2185.
On October 12, 2011, Mr. Widmer filed a motion for leave to file another motion for a new
trial and a motion for postconviction relief, a new trial, genetic DNA testing, for an evidentiary
hearing, and a motion to compel production and release of Lt. Braley’s and Dr. Uptegrove’s grand
jury testimony (App’x, ECF No. 20-1, Exhs. 149-51, PageID 2185-2223). Mr. Widmer raised the
following claims in his petition for postconviction relief:
I. Grounds for postconviction Relief: Constitutional Violations
1. Braley’s Perjury on May 5, 2010 Violated the Strict
Standard in Napue v. Illinois and Mandates Relief;
2. Brady and Kyles v. Whitley Violations Occurred When the
State Failed to Disclose the Various Problems Surrounding
Braley’s Credibility, Entitling Widmer to Relief;
3. A Brady/Kyles Violation Occurred When the State Delayed
Its Official DD&M Investigation of Braley Until One Day
After Widmer Was Convicted;
4. A Brady/Kyles Violation Occurred (And is Still Occurring)
When the State Failed to Disclose the Results of the
Hamilton Township Trustees’ 2010 Internal Investigation of
Braley;
5. In The Alternative, Widmer Raises Ineffective Assistance of
Trial Counsel for Failing to Raise the New Evidence About
Braley If In Fact Such Evidence Was Disclosed to Defense
Counsel Prior to of During Trial;
II. Postconviction Relief: Ineffective Assistance of Counsel for
Failing to Seek Genetic DNA Testing of Sarah Widmer’s Biological
Remains;
III. Motion for New Trial Under Rule 33

18

…[T]he new evidence] offers Widmer two avenues of defense that
were not available before: (1) the ability to effectively impeach
Braley; and (2) the ability to mount a strong Kyles v. Whitley-type
defense that the entire investigation and prosecution (from the
collecting of fingerprints and other evidence, to the Coroner’s
decision, to the decision to charge him) were tainted and suspect due
to Braley’s penchant for fabricating facts to further his career….
(App’x, ECF No. 20-1, Exh. 151, PageID 2189, 2202-21.) On January 17, 2012, the trial court
denied Mr. Widmer’s motions including his Motion for Postconviction Relief. Id.at Exh. 156,
PageID 2288-2305.
Mr. Widmer appealed the trial court’s denial of, inter alia, his Motion for Postconviction
Relief. Id. at Exh. 159, PageID 2309-27. Mr. Widmer raised the following assignments of error in
support of his appeal:
FIRST ASSIGNMENT OF ERROR
The trial court abused its discretion when it concluded: (1) that the
State had no knowledge of material information that it withheld
from the defense; and (2) that the withheld evidence pertained to a
collateral matter about which Braley never testified falsely, thus
even if disclosed, it would not have affected the outcome of
Widmer’s trial.

SECOND ASSIGNMENT OF ERROR
The trial court abused its discretion and ruled contrary to clearly
established U.S. Supreme Court precedent by: (1) concluding that
Widmer’s postconviction petition failed to point out material
information known to the State that was withheld from the defense
prior to or during trial; and (2) ignoring Widmer’s due process and
confrontation claims wherein he contends that, due to the State’s
failure to disclose the information about Braley contained in the
DD&M Report, he was denied the ability to raise a Kyles v. Whitley
defense at trial challenging the integrity of the State’s investigation
and confronting Braley about the information contained in the
DD&M Report.

19

THIRD ASSIGNMENT OF ERROR
The trial court abused its discretion in failing to grant Widmer’s
postconviction request for genetic DNA testing of Sarah Widmer’s
biological remains to determine if she suffered from a genetic
disorder. Such genetic testing is necessary to properly review the
postconviction claim of ineffective assistance of trial counsel,
because if testing demonstrated that Sarah suffered from a genetic
disorder, then trial counsel provided ineffective assistance in
violation of the Sixth and Fourteenth Amendments for failing to
pursue what would have led to crucial, exculpatory evidence for the
jury’s review. But because the trial court denied Widmer’s request
for testing, it unreasonably foreclosed any possibility of evaluative
whether trial counsel provided constitutionally deficient assistance
in this regard.

FOURTH ASSIGNMENT OF ERROR
The trial court abused its discretion by denying Widmer access to
the grand jury testimony of Braley and Uptegrove, or at a minimum
conducting an in camera inspection of said testimony, when
Widmer demonstrated a particularized need for access to the
testimony for a review of: (1) whether Braley made any false
statements to the grand jury which would support his Brady, Kyles,
and Napue claims; and (2) whether the testimony of either witness
reveals what information or the extent to which, Braley supplied
information about the case to Uptegrove that he considered in his
determination that Sarah Widmer drowned as a result of homicide.
This error occurred in violation of Widmer’s procedural and
substantive due process rights under the U.S. Constitution and their
related counterparts in the Ohio constitution, including meaningful
access to the courts.

FIFTH ASSIGNMENT OF ERROR
The trial court abused its discretion in denying Widmer’s October
12, 2011 postconviction petition without a hearing because the
petition and material appended to it demonstrate a prima facie case
of constitutional violations. This error occurred in violation of
Widmer’s procedural and substantive due process rights under U.S.
Constitution and their related counterparts in the Ohio constitution,
including meaningful access to the courts.

20

(App’x. ECF No. 20-1, Exh. 164, PageID 2341-2439.) On January 14, 2013, the court of appeals
affirmed the trial court’s denial of, inter alia, Mr. Widmer’s Motion for Postconviction Relief.
State v. Widmer, 2013-Ohio-62, 2013 Ohio App. LEXIS 44, 2013 WL 142041 (12th Dist. Jan 14,
2013); see also App’x, ECF No. 20-1, Exh. 167, PageID 2550-2604; 2605.
Mr. Widmer appealed to the Ohio Supreme Court which again declined to accept
jurisdiction. State v. Widmer, 135 Ohio St.3d 1448 (table), 2013-Ohio-2062 (2013); App’x, ECF
No. 20-1, Exh. 171, PageID 2700. The Supreme Court of the United States denied Mr. Widmer’s
second petition for a writ of certiorari. Widmer v. Ohio, ___ U.S. ___, 134 S.Ct. 480 (2013);
App’x, ECF No. 20-1, Exh. 174, PageID 2782.

Proceedings in this Court
On February 20, 2014, Mr. Widmer filed his Petition under 28 U.S.C. § 2254 (ECF No. 1).
After litigation on the proper venue for this case, the State filed the state court record (App’x, ECF
Nos. 17, 18, 19. 20, and 21) and a Return of Writ (ECF No. 22). Mr. Widmer filed a Reply (ECF
No. 25) and the case was orally argued and is now ripe for decision on the merits.
Mr. Widmer pleads the following Grounds for Relief in his Petition:
FIRST GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent concerning Widmer’s constitutional rights to due
process, a fair trial, and confrontation by permitting the admission
of impermissible expert opinion testimony that: (1) reached beyond
the expert’s purported expertise; (2) lacked scientific foundation;
and (3) was based on a methodology that has been proven
unreliable.

21

SECOND GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent concerning Widmer’s constitutional rights to be
free from unlawful and unreasonably [sic] seizures of his real
property by permitting the State to seize the bathtub from his house
pursuant to a general “evidence or instrumentality of the crime” or
“latent fingerprint” provision of a search warrant when the tub’s
significance was known to law enforcement at the time the search
warrant is obtained and executed, yet the tub was not particularly
described in the search warrant as an item to be seized. Seizure of
real property is unreasonable under the Fourth Amendment without
particularized, court-sanctioned authority.

THIRD GROUND FOR RELIEF
Trial counsel provided ineffective assistance by failing to timely
prosecute what would have been a successful motion to suppress the
bathtub and all related evidence about said tub discovered following
its unconstitutional seizure (including Bill Hilliard’s “body part
impression” analysis and testimony). In finding otherwise, the state
courts unreasonably determined the facts and ruled contrary to or
unreasonably applied clearly established Supreme Court precedent
concerning the effective assistance of counsel and the Fourth
Amendment’s “particularity” and “reasonableness” requirements.

FOURTH GROUND FOR RELIEF
Widmer’s conviction is based on insufficient evidence in violation
of his constitutional rights to due process and a fair trial. At most,
the state presented sufficient evidence to sustain a conviction of
involuntary manslaughter or reckless homicide. The state courts
unreasonably determined the facts and ruled contrary to or
unreasonably applied clearly established Supreme Court precedent
in finding that the state presented sufficient evidence to prove
Widmer guilty of murder beyond a reasonable doubt.

FIFTH GROUND FOR RELIEF
Widmer’s conviction is against the manifest weight of evidence.
The state courts unreasonably determined the facts and ruled
22

contrary to or unreasonably applied clearly established Supreme
Court precedent in finding that the jury properly weighed the
evidence and resolved conflicts in the evidence such that the State
proved Widmer guilty of murder beyond a reasonable doubt.

SIXTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by concluding: (1) that the State had no knowledge
of material information that it withheld from the defense; and (2)
that the withheld evidence pertained to a collateral matter about
which Braley never testified falsely, thus even if disclosed, it would
not have created prejudice or affected the outcome of Widmer’s
trial.

SEVENTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by: (1) concluding that Widmer’s postconviction
petition failed to point out material information known to the State
that was withheld from the defense prior to or during trial; and (2)
denying Widmer’s due process and confrontation claims wherein he
contends that, due to the State’s failure to disclose the information
about Braley contained in the DD&M Report, he was denied the
ability to raise a Kyles v. Whitley defense at trial challenging the
integrity of the State’s investigation and confronting Braley about
the information contained in the DD&M Report.

EIGHTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by concluding that no prejudice to Widmer resulted
from the newly discovered evidence about Braley from the DD&M
Report, and thus that the trial counsel provided constitutionally
effective assistance despite failing to raise at trial the new evidence
about Braley (if in fact such evidence was disclosed to counsel prior
to or during trial).

23

NINTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by denying Widmer’s postconviction request for
genetic DNA testing of Sarah Widmer’s biological remains to
determine if she suffered from a genetic disorder, particularly when
testing was necessary to fairly adjudicate Widmer’s state
postconviction claim of ineffective assistance of trial counsel for
failure to pursue testing. Additionally, the state courts unreasonably
determined the facts and ruled contrary to or unreasonably applied
clearly established Supreme Court precedent by concluding that
genetic DNA test results suggesting that Sarah suffered from a
genetic disorder that may have caused her to drown in the bathtub
would not establish a reasonable probability of a different outcome
at trial.

TENTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent in Strickland, Wiggins, and Chambers by
concluding that trial counsel rendered constitutionally effective
assistance, despite failing to pursue genetic DNA testing, because,
according to the state courts, test results suggesting that Sarah
suffered from a genetic disorder that caused her to drown in the
bathtub would not establish a reasonable probability of a different
outcome at trial as necessary to establish prejudice under Strickland.
ELEVENTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by denying Widmer access to the grand jury
testimony of Braley and Uptegrove, or at a minimum an in camera
inspection of said testimony, when Widmer demonstrated a
particularized need for access to the testimony for a review of: (1)
whether Braley made any false statements to the grand jury which
would support his Brady, Kyles, and Napue claims; and (2) whether
the testimony of either witness reveals what information, or the
extent to which, Braley supplied information about the case to
Uptegrove that he considered in his determination that Sarah
Widmer drowned as a result of homicide. This error occurred in
violation of Widmer’s procedural and substantive due process rights
24

under the U.S. Constitution including meaningful access to the
courts.

TWELFTH GROUND FOR RELIEF
The state courts unreasonably determined the facts and ruled
contrary to or unreasonably applied clearly established Supreme
Court precedent by denying Widmer’s October 12, 2011
postconviction petition without a hearing because the petition and
material appended to it demonstrated a prima facie case of
constitutional violations, thus warranting a hearing. This error
occurred in violation of Widmer’s procedural and substantive due
process rights under U.S. Constitution including meaningful access
to the courts.
(Petition, ECF No. 1, and Attachment 1, PageID 2-166).

Standard of Review
I.

Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132,

110 Stat. 1214 (Apr. 24, 1996)(“AEDPA”) applies to all habeas cases filed after April 24, 1996.
Ballinger v. Prelesnik, 709 F.3d 558, 560 (6th Cir.), cert. denied, ___ U.S. ___, 133 S.Ct. 2866
(2013), citing Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Since Mr. Widmer filed his
Petition well after the AEDPA’s effective date, the amendments to 28 U.S.C. § 2254 embodied in
the AEDPA are applicable to his Petition.
Title 28 U.S.C. § 2254, as amended by the AEDPA, provides:
…
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
25

unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254; see also Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002), quoting 28 U.S.C.
§ 2254(d).
This standard requires the federal courts to give considerable
deference to state-court decisions. Herbert v. Billy, 160 F.3d 1131,
1135 (6th Cir. 1998)(“[the AEDPA] tells federal courts: Hands off,
unless the judgment in place is based on an error grave enough to be
called unreasonable.”)(citation and quotation marks omitted).
The first line of analysis under [the] AEDPA involves the
consistency of the state-court decision with existing federal law. A
state-court decision is considered “contrary to … clearly established
Federal law” if it is “diametrically different, opposite in character or
nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405
… (2000)(emphasis and quotation marks omitted.). Alternatively, to
be found an “unreasonable application of … clearly established
Federal law, “the state-court decision must be “objectively
unreasonable” and not simply erroneous or incorrect. Id. at 409-11
….
The second line of analysis under [the] AEDPA concerns findings
of fact made by the state courts. [The] AEDPA requires federal
courts to accord a high degree of deference to such factual
determinations. “A federal court is to apply a presumption of
correctness to state court findings of fact for habeas corpus purposes
unless clear and convincing evidence is offered to rebut this
presumption. The [federal] court gives complete deference to the …
state court’s findings of fact supported by the evidence. McAdoo v.
Elo, 365 F.3d 487, 493-94 (6th Cir. 2005)(citations omitted).
Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir. 2007), cert. denied sub nom., Nields v. Hudson,
552 U.S. 1118 (2008).
The “clear and convincing evidence” being offered to rebut the presumption of

26

correctness due a state court’s factual findings refers to evidence found within the state court
record. See Cullen v. Pinholster, 563 U.S. 170 (2011); see also Bray v. Andrews, 640 F.3d 731, 737
(6th Cir. 2011). Moreover, federal courts are explicitly limited by the statutory language itself to
evidence that was before the state court when 28 U.S.C. § 2254(d)(2) is applicable. See Pinholster,
556 U.S. at ___, 131 S.Ct. at 1400 n.7.
[The AEDPA] standards apply to “any claim that was adjudicated
on the merits in State Court proceedings.” [citing 28 U.S.C. §
2254(d)]. By comparison, claims not “adjudicated on the merits by
the state court are given plenary review by a federal habeas court,
even where AEDPA otherwise applies. See, e.g., Jackson v. Houk,
687 F.3d 732, 731 (6th Cir. 2012); see also, e.g., Wiggins v. Smith,
539 U.S. 510, 534 … (2003). In past cases determining whether a
claim was “adjudicated on the merits” sometimes proved difficult,
whether because the state court issued summary denial, bereft of
analysis see Harrington v. Richter, [562 U.S. 86, 98-99] ___ U.S.
___, 131 S.Ct. 770, 784 … (2011), because the state court explicitly
addressed some of the federal claims presented but not others, see
Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1093 … (2013),
or because the state court confined its analysis to state-law
authorities, see Danner v. Motley, 448 F3d. 372, 376 (6th Cir. 2006).
In cases where the state court relied solely upon state authority, we
previously held that the federal claim was not adjudicated on the
merits and considered the claim de novo. See id. (concluding that
“[a]ny consideration of the Sixth Amendment contained within the
state case law upon which the state courts relied is too attenuated to
consider the Sixth Amendment claim to have been ‘adjudicated on
the merits’”). But the Supreme Court recently overruled our
approach and held that “[w]hen a federal claim has been presented
to a state court and the state court has denied relief, 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. Richter, [562 U.S. at 98-99] 131 S.Ct. at 784-85. And
this rule applies, whether the state court denied relief summarily, see
id., expressly addressed some of the claims but not the one advanced
on federal habeas review, see Johnson, 133 S.Ct. at 1093, or
confined its analysis to state-law authorities, see Brown v. Bobby,
656 F.3d 325, 329 (6th Cir. 2011) (holding that the state court’s
exclusive focus on Ohio’s speedy-trial provisions in rejecting a
federal speedy-trial claim failed to rebut the presumption of a merits
27

adjudication).
Jackson v. Smith, 745 F.3d 206, 209-10 (6th Cir.), cert. denied sub nom., Jackson v. Lazaroff, ___
U.S. ___, 135 S.Ct. 118 (2014).
“Federal courts need not review every point of error raised by a habeas
petitioner.” Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010), cert. denied, ___ U.S. ___,
131 S. Ct. 2117 (2011).
When a “state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice … or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501
U.S. 722, 750 (1991). In this circuit, to determine whether a federal
claim has been procedurally defaulted, we apply the three-prong test
initially laid out in 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….
Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin
[v. Smith], 785 F.2d [135] at 138 [6th Cir. 1986]). If the state
procedural rule was not complied with and that rule was an
“adequate and independent” ground for default, we may still excuse
the default if the petitioner can demonstrate “that there was ‘cause’
for him not to follow the procedural rule and that he was actually
prejudiced by the alleged constitutional error.” Maupin, 785 F.2d at
138.
Hoffner, 662 F.3d at 495.
Additionally, “[i]t is well-settled that ‘federal courts do not have jurisdiction to
28

consider a claim in a habeas petition that was not ‘fairly presented’ to the state courts.” Jacobs v.
Mohr, 265 F.3d 407, 415 (6th Cir. 2001), citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000)(citation omitted). “A claim may only be considered ‘fairly presented’ if the petitioner
asserted both the factual and legal basis for his claim to the state courts.” Jacobs, supra (citation
omitted).
For purposes of the AEDPA, the court reviews the last reasoned state court
decision. Cauthern v. Colson, 736 F.3d 465, 473 (6th Cir. 2013)(citations omitted).

Procedural Default

The standard for evaluating a procedural default defense is as follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 749 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107 (1982).

Absent cause and prejudice, a federal habeas

petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000); Murray v. Carrier, 477 U.S.
478 (1986); Engle, supra; Wainright, 433 U.S. at 87.
The Sixth Circuit Court of Appeals requires a four-part analysis when determining
29

whether a habeas claim is barred by procedural default. Reynolds v. Berry, 146 F.3d 345, 347-48
(6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594 (6th Cir. 2001), cert. denied, 534 U.S. 1147 (2002).
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, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
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. Once
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 under Sykes 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.
Additionally, it is well settled that “federal courts do not have jurisdiction to
consider a claim in a habeas petition that was not ‘fairly presented’ to the state courts.” Jacobs v.
Mohr, 265 F.3d 407, 415 (6th Cir. 2001), citing, McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000). A claim may only be considered “fairly presented” if the petitioner asserted both the
factual and legal basis for his claim to the state courts. Jacobs, supra (citation omitted).

Analysis
FIRST GROUND FOR RELIEF

In his First Ground for Relief, Mr. Widmer essentially challenges the admission of
30

all William Hillard’s trial testimony regarding the “body part impressions” he found on the
bathtub. Mr. Widmer’s position is that the admission of Mr. Hillard’s testimony violated Ohio R.
Evid. 702(C), the principles of Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)] and its progeny, and his constitutional rights to confrontation, due process, and a fair trial
(Petition, ECF No. 1, PageID 56-76). The Warden argues in his Answer/Return of Writ that the
state appellate court properly decided this claim and therefore this Court should reject it (ECF No.
22, PageID 10095-10105). In his Traverse2, Mr. Widmer essentially raises the same arguments
that he raised in his Petition (ECF No. 25, PageID 10196-10211).
Mr. Widmer raised this claim on direct appeal and the Twelfth District Court of
Appeals for Warren County rejected it as follows:
[*P62] In his second assignment of error, Widmer argues that the
trial court erred by allowing Hillard to testify about “body part
impressions” found on the bathtub. Widmer challenges the
admission of Hillard's testimony regarding: (1) the adult male
forearm on the front interior wall of the bathtub; (2) the forearm
impression “overlaying” circular marks made on the bathtub by bath
product bottles; and (3) the fingertip marks that were in a
“downward position” and were made by a person of small stature,
like a child, a female, or small male. Widmer contends that the
admission of such testimony was in violation of Evid. R. 702 and his
Sixth Amendment rights. Specifically, Widmer argues that
“Hillard's testimony runs afoul of due process and the Confrontation
Clause” as Hillard was permitted to testify beyond his area of
expertise and into a realm of body part impressions for which he has
“no training or consistent, methodologically based, non-anecdotal
experience” and his testimony was “not based on [a] scientifically
valid methodology.”

2 Mr. Widmer captions his reply as a “traverse,” which was the customary caption for such documents prior to
adoption of the Rules Governing § 2254 Proceedings.

31

[*P63] Prior to the commencement of the third trial, Widmer had
filed a motion in limine seeking to limit Hillard's testimony by
prohibiting him from testifying about the size and sex of the
individuals who made the fingertip marks or the forearm
impression. The motion in limine was not ruled on prior to trial and
is therefore presumed to have been denied. Choate v. Tranet, Inc.,
12th Dist. No. CA2003–11–112, 2004-Ohio-3537, ¶ 60. At trial,
Hillard was offered as an expert in the areas of crime scene analysis,
fingerprint analysis, and crime scene photography. Widmer did not
seek to voir dire Hillard as to his qualifications as an expert in these
fields. Rather, Hillard was admitted as an expert in the
aforementioned areas without objection. Widmer did object,
however, to Hillard's testimony that an adult male forearm
impression was found on the bathtub, that this impression overlaid
circular marks made on the bathtub by bath product bottles, and that
the fingertip marks found in the bathtub were in a “downward
position” and were made by a person of small stature, like a child, a
female, or small male. Widmer's objections were overruled, and
such testimony was deemed admissible by the trial court.
[*P64] We begin our analysis by determining whether Hillard's
testimony was properly admitted pursuant to Evid. R. 702.
A. Evidence Rule 702
[*P65] “The determination of the admissibility of expert testimony
is within the discretion of the trial court, and its decision will not be
disturbed absent an abuse of discretion.” State v. Blankenbury, 197
Ohio App.3d 201, 2012-Ohio-1289, ¶ 107 (12th Dist.). An abuse of
discretion implies more than an error of law or judgment; it suggests
that the trial court acted in an unreasonable, arbitrary, or
unconscionable manner. State v. Barnes, 12th Dist. No. CA2010–
06–009, 2001-Ohio-5226, ¶ 23. A trial court's admission of expert
testimony is not an abuse of discretion where the testimony is
relevant and the criteria of Evid. R. 702 are met. Terry v. Caputo,
115 Ohio St.3d 35, 2007-Ohio-5023, ¶ 23.

32

[*P66] Evid. R. 702 provides that a witness may testify as an expert
if all of the following apply:
(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. * * *
[*P67] With respect to Evid. R. 702, the trial court, as part of its
gatekeeping function, must assess both the relevance of the expert's
testimony and the reliability of the testimony prior to admitting such
testimony into evidence. Caputo at ¶ 24. This gatekeeping
obligation applies “not only to testimony based on ‘scientific’
knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Kumo Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 141, 119 S.Ct. 1167 (1999). To determine the reliability
of testimony, the trial court may consider one or more of the specific
factors mentioned in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579. 592-92, 113, S.Ct. 2786 (1993); Kumho Tire
Co., 526 U.S. at 141. The specific factors mentioned in Daubert
include: (1) whether the theory or scientific technique has been
tested; (2) whether the theory or technique has been subject to peer
review or publication; (3) whether the method has a known potential
rate of error; and (4) whether the theory has gained general
acceptance in the scientific community. Caputo, 2007-Ohio-5023 at
¶ 25, citing Daubert at 593–594. While consideration of the
Daubert factors is permitted, such consideration is not required to
determine the reliability of the testimony. Kumho Tire Co., at 141.
Rather, the test of reliability is “flexible” and Daubert's list of
specific factors neither necessarily nor exclusively apply to all
experts or in every case. Id. The trial court is given “broad latitude”
in determining reliability. Id.
33

[*P68] Hillard testified that he had been employed by the city of
Cincinnati as a senior criminalist for five years. Prior to holding that
position, he served as a police officer for 28 years. Hillard testified
that he had been examining crime scenes and processing evidence
for over 30 years. Some of the specific activities that he does as a
criminalist include securing the scene, collecting evidence, and
processing the evidence for fingerprints or any other forensic
evidence. Hillard explained that most of his criminalist education
and training has been through on-the-job training and from the FBI
Academy in Florida. He has been trained specifically in crime scene
photography, evidence collection, interpreting patterns of evidence,
and the processing and analyzing of fingerprints. Hillard testified
that he has responded to “thousands” of crime scenes over the years,
many of which were homicide scenes. He further explained that for
10 to 15 percent of these crime scenes, he has analyzed impressions
of body parts other than “fingers, hands and feet.” Based on the
foregoing, it is clear that Hillard's testimony related to matters
beyond the knowledge of a lay person and that he was qualified as
an expert in the areas of crime scene analysis, fingerprint analysis,
and crime scene photography by his knowledge, education, and
experience. See Evid. R. 702(A) and (B).
[*P69] The issue in this case, however, is whether Hillard went
beyond his expertise when testifying about the fingertip marks and
forearm impression found on the bathtub. Essentially Widmer
attacks the reliability of Hillard's testimony. He contends that
Hillard's testimony lacked a scientific foundation as it was based on
the Bertillon system of using body measurements to identify
individuals, which Hillard himself admitted is unreliable. The state
contends that Hillard's testimony was permissible as it was not
based on the Bertillon system but rather on the methodology
underlying latent fingerprint analysis. The state further argues that
Hillard was qualified to testify about the forearm impression and
fingertip marks based on Hillard's “many years of experience”
analyzing “other” body part impressions as he had done so in 10 to
15 percent of the thousands of crime scenes he had investigated.
34

[*P70] The Bertillon system is defined as “a system for the
identification of persons by a physical description based on
anthropometric measurements, standardized photographs, notation
and classification of markings, color, bodily anomalies, thumb line
impressions, and other data that has been largely superseded by
fingerprinting.” Webster's Third New International Dictionary 207
(1993).FN7 At trial, Hillard testified that he was familiar with the
Bertillon system of identification that was based on body
measurements and that such method had been proven unreliable.
Contrary to Widmer's argument, however, Hillard never testified
that he relied on the Bertillon system in finding or identifying the
forearm impression or fingertip marks on the bathtub. Rather,
Hillard testified that a body part impression is made the same way a
latent print is made, by touching an object and leaving a residue
behind, and the impression can be discovered using a chemical or
dusting powder. Specifically, Hillard testified as to this process as
follows:
FN7. Anthropometry is defined as “the science of
measuring the human body and its parts and
functional capacities [especially] as an aid to the
study of human evolution and variation.” Webster's
Third New International Dictionary 93 (1993).
[HILLARD]: Usually when we go process a crime scene, exactly
what's documented, taking pictures and analyzing what we're
going to do at the crime scene, when we dust an object we use
dusting powder to try to bring out a fingerprint or any other
material that might be on that surface that we're processing.
With fingerprint powder it helps you see a latent print which
normally can't be seen with the naked eye, latent means invisible
and you use a chemical or dusting powder to bring out that
fingerprint.
[STATE]: And Mr. Hillard you used the term latent print. Can
35

you explain what latent print is in your line of work?
[HILLARD]: Latent print is usually a print that is invisible, is
usually a print that is not visible to the naked eye, with the naked
eye. You have to use some type of enhancing procedure.
[STATE]: And how is such a fingerprint formed, how is it made?
[HILLARD]: Yes. If you look at your fingers you have the
friction skin ridges, and on these ridges you have pores and they
sweat and whenever you touch something you leave a residue, a
water residue and you touch something that leaves a latent print
there.
[STATE]: Now for example you were talking about the
fingerprints?
[HILLARD]: Yes.
[STATE]: Is that true of other parts of the body as well?
[HILLARD]: Yes. You have the same process with your feet
also. You have the friction of your skin ridges on your feet.
[STATE]: And beyond the feet and the fingertips does the body
in general produce those kinds of oils or things that would form
impressions?
[HILLARD]: Yes. If you took the back of your hand and did the
same thing you'd still have that impression. You'd dust it or
anything you would have that impression as you dust it with a
powder. And nonporous items gets treated with a chemical and
you can develop that impression also.
[STATE]: And Mr. Hillard in your experience and you[r] years
as a Criminalist, based on your training and experience, do you
have any experience in interpreting impressions that are left, that
36

are formed that way other than fingerprints and the feet?
[HILLARD]: Yes.
[STATE]: Have you responded to crime scenes where you had to
interpret impressions that were formed by other parts of the body
besides the feet and hands?
[HILLARD]: Yes sir.
***
[STATE]: Have you received any specific training in how to
interpret impressions other than fingerprints?
[HILLARD]: Again, this comes along with experience.
[*P71] Hillard did not claim that there was a recognized scientific
process establishing forearm comparison as a science. Rather than
trying to identify Widmer or any other individual as the source of
the forearm impression through comparison, Hillard limited his
testimony to the identification of the impression as one made by an
adult male. Hillard did not speculate as to who specifically left the
forearm impression or when the impression had been left on the
bathtub. Instead, Hillard testified only as to how such an impression
was made, the identification of the impression by body part, and the
general characteristics of the person who left the impression (an
adult male). Given his experience in analyzing crime scenes and
body part impressions, for which an understanding of the science
behind the transfer and discovery of latent prints or impressions is
required, Hillard was more than qualified to testify as to the
existence of the forearm impression. Therefore, the trial court did
not abuse its discretion in admitting such testimony into evidence.
[*P72] Furthermore, we do not find that the court abused its
discretion in allowing into evidence Hillard's testimony that the
forearm impression overlaid circular marks left on the bathtub by
37

bath products. Hillard testified he has more than 30 years of
experience observing crime scenes and interpreting patterns of
evidence. Hillard was more than qualified to testify as to his
observation that the forearm impression came second in time to the
circular marks. If Widmer wanted to cast doubt on the accuracy of
Hillard's observations, he had the opportunity to do so during
cross-examination.
[*P73] Finally, we do not find the trial court abused its discretion in
admitting Hillard's testimony about the fingertip marks found on the
bathtub. Hillard testified that latent prints were discovered after
dusting powder was used on the bathtub, but the prints lacked
minutiae details and therefore could not be used to identify the
source of the prints. Although the print lacked identifying
characteristics or minutiae details, Hillard was able to determine
that the print was left after someone pulled his or her fingers
downward using just the fingertips.
[HILLARD]: These impressions here are the ones I was looking
at. It tells you they were fingerprints but I couldn't make a
positive identification as to who they belonged to. I could just tell
they were in the downward position.
***
These are the tips of the fingerprints right here and on the tips
usually when you're pulling down on something you very seldom
leave minutiae points there and those impressions [sic].
From his testimony, it is clear that Hillard did not rely on the
Bertillon system to identify the source of the fingertip marks.
Rather, Hillard utilized his training and experience in analyzing
fingertip markings to determine that the markings were made by a
“person of small stature, like a child, [a] female, or a small male.”
Although Hillard's training and experience allowed him to draw
such an observation from the size and the shape of the markings,
Hillard was explicit in stating that he could not identify the specific
38

individual who made the markings, that person's gender, or when
the markings had been left on the bathtub. Hillard's testimony was
therefore limited to those findings and observations he was qualified
to make given his 30 years of experience in analyzing crime scenes,
fingerprints, and body part impressions.
[*P74] For the aforementioned reasons, we do not find that the trial
court abused its discretion in admitting Hillard's testimony about the
forearm impression and fingertip markings. Hillard's testimony was
relevant, reliable, and permissible pursuant to Evid. R. 702. Any
questions or doubts Widmer had regarding the accuracy of Hillard's
observations and testimony about the forearm impression and
fingertip markings were capable of being addressed during
cross-examination. Furthermore, we find that such questions about
the accuracy or reliability of Hillard's testimony in this case go to
the weight of the evidence rather than its admissibility.
B. Due Process and the Confrontation Clause
[*P75] We further find that the admission of Hillard's testimony did
not violate Widmer's due process rights or his constitutional rights
under the Sixth Amendment.
[*P76] “The Sixth Amendment to the United States Constitution
made applicable to the States via the Fourteenth Amendment['s]
[due process clause] * * * provides that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him.’”
Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531 (2009). The
Amendment guarantees a defendant the right to confront those who
“bear testimony” against him. Id., citing Crawford v. Washington,
451 U.S. 36, 51, 124 S.Ct. 1354 (2004). “A witness's testimony
against a defendant is thus inadmissible unless the witness appears
at trial or, if the witness is unavailable, the defendant had a prior
opportunity for cross-examination.” Id., citing Crawford at 54.
[*P77] In the present case, Hillard was called as an expert witness at
39

trial. His testimony about the forearm impression and fingertip
markings he found on the bathtub were subject to cross-examination
by Widmer. Widmer was given the express opportunity to challenge
and cast doubt on Hillard's conclusions about the forearm
impression and the fingertip marks. Accordingly, we do not find that
Hillard's testimony was in violation of Widmer's Sixth Amendment
right to confront those who bear witness against him.
[*P78] Widmer's second assignment of error is hereby overruled.
Widmer, 2012-Ohio-4342.
The Supreme Court has repeatedly held that “a state court's interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005), citing Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); see also Mackey v. Warden, 525 Fed. Appx. 357, 362, 2013 WL
1908890 at *5 (6th Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 438 (2013)(citation omitted). “The
Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state
procedural prescriptions, but ‘the fundamental elements of fairness in a criminal trial.’” Rivera v.
Illinois, 556 U.S. 148, 158 (2009), quoting Spencer v. Texas, 385 U.S. 554, 563-64 (1967). “A
mere error of state law is not a denial of due process.” Rivera, 556 U.S. at 158, quoting Engle v.
Isaac, 456 U.S. 107, 121, n. 21 (1982) and citing Estelle, 502 U.S. at 67. It follows, then, if a
violation of a state’s procedural prescription does result in the denial of fundamental fairness, such
error may rise to the level of a constitutional violation. See Coleman v. Mitchell, 244 F.3d 533,
542-43 (6th Cir. 2001).
Federal habeas review of a state court evidentiary ruling is extremely limited. Jordan v.
Hurley, 397 F.3d 360, 362 (6th Cir. 2005)(citation omitted). A state court’s evidentiary ruling will
rise to the level of a constitutional violation only where it violates a bedrock principle of justice so
40

as to deprive the defendant of a fundamentally fair trial. Bey v. Bagley, 500 F.3d 514, 519 (6th Cir.
2007). The United States Supreme Court has “very narrowly” defined the category of infractions
that meets this standard. Bey, 500 F.3d at 522, citing Dowling v. United States, 493 U.S. 342, 352
(1990).
Beyond the specific guarantees enumerated in the Bill of Rights, the
Due Process Clause has limited operation. We, therefore, have
defined the category of infractions that violate “fundamental
fairness” very narrowly. As we observed in [United States v.]
Lovasco, [431 U.S. 783 (1977)], supra, at 790 …
“Judges are not free, in defining ‘due process,’ to impose on
law enforcement officials [their] ‘personal and private
notions' of fairness and to ‘disregard the limits that bind
judges in their judicial function.’ Rochin v. California, 342
U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952) ….
[They] are to determine only whether the action complained
of ... violates those ‘fundamental conceptions of justice
which lie at the base of our civil and political institutions,’
Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341,
79 L.Ed. 791 (1935), and which define ‘the community's
sense of fair play and decency[.]’ Rochin v. California, [342
U.S. 165 (1952)], supra, at 173, 72 S.Ct. at 210.”
Dowling, 493 U.S. at 352-53.
The admission of evidence violates due process only if there are no permissible inferences
the jury may draw from the evidence. See Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009), cert.
denied sub nom, Webb v. Bobby, 559 U.S. 1076 (2010).
The thrust of Mr. Widmer’s argument is that when he testified about the transfer and
collection of latent body impressions (in the bathtub), Mr. Hillard went beyond the area of his
purported expertise.
Mr. Hillard testified that he was employed by the City of Cincinnati as a Senior
Criminalist, he had been a Senior Criminalist for five years, previously he was a Cincinnati police

41

officer for over twenty-eight years, after he retired in 2000, the City of Cincinnati hired him as a
Criminalist, and that he has “been in this business for 38 years.” (Tr., ECF No. 21, Exh. 17,
PageID 8943-44.) Mr. Hillard testified further that part of his job is to respond to all major crime
scenes, process the scene for evidence, take pictures of the scene, collect evidence, and to process
the scene for fingerprints and any other forensic evidence that might be involved in the case. Id. at
PageID 8944. In addition, Mr. Hillard testified that “a lot” of his training has been on-the- job
training, he has also attended training at the F.B.I. Academy’s school in Florida as well as at
various other schools throughout the United States, and that he has been involved in this sort of
education and training for approximately twenty years. Id. at PageID 8944-45. Mr. Hillard
reiterated that he has been specifically trained in crime scene photography, evidence collection,
fingerprint processing and analysis, and interpreting patterns of evidence. Id. at PageID 8945.
Mr. Hillard testified further that he had previously testified in court as an expert in the areas of
crime scene analysis, fingerprints, and “those sorts of things” and that the courts included those in
Hamilton, Warren, and Butler Counties, Ohio, as well as in a case in Kentucky. Id. at PageID 8946.
Further, Mr. Hillard testified that he has been involved on an average of a “couple hundred” crime
scenes and that he teaches crime scene photography and evidence techniques at the Cincinnati
Police Academy. Id. at PageID 8946-47.
After hearing the foregoing testimony, and in the absence of an objection from Mr.
Widmer’s counsel, the trial court granted the state’s motion to have Mr. Hillard designated as an
expert in the areas of crime scene analysis, fingerprints, and crime scene photography. Id. at
PageID 8947.
With respect to the transfer and collection of latent body impressions, Mr. Hillard testified
that beyond the fingers and feet, the body in general produces oils or things that would form
42

impressions and that he has had experience interpreting impressions that are formed by other than
fingers and feet. Id. at PageID 8948-50. Mr. Hillard also testified that of the thousands of crime
scenes to which he has responded, probably ten to fifteen percent involved the analysis of
impressions of other body parts besides fingers, hands, and feet. Id. at PageID 8950-51.
Mr. Hillard then testified that there are limitations to his ability to analyze prints, that
sometimes you can see an impression such as the impression of fingers on the bathtub in this case
but that there were not enough minutiae points in the fingerprint itself to make a positive
identification. Id. at PageID 8951. Mr. Hillard explained that his examination showed that there
were fingerprint impressions on the side of the tub, that he could tell they were in the downward
position but he could not make a positive identification as to whom the prints belonged although he
determined that they were made by a person of small stature like a child, female, or a small male.
Id. at Page ID 8954, 8956.
Subsequently, Mr. Hillard testified that upon further examination of the bathtub, he could
see there was a forearm impression on the tub. Id.at PageID 8957. Mr. Hillard also testified that
he could not date when the mark was made but that the forearm impression was made by an adult,
that based on the hair follicle impressions it was made by a male, and that the forearm impression
overlaid the circular marks that had apparently been made by bottles that had been removed. Id. at
PageID 8958, 8960-62. Finally, Mr. Hillard testified that there were marks around the top of the
tub that indicated somebody tried to wipe it down but that he could not say when that occurred. Id.
at PageID 8963.
On cross-examination, Mr. Hillard testified that prior to the science of fingerprints
progressing to where it is today, investigators used the Bertillon method of identification whereby
an investigator measured the parts of a person’s body—ears, arms, legs, physical anatomy—to
43

determine the source of impressions at a crime scene. Id. at PageID 8970-71. Mr. Hillard also
testified that he agreed that the Bertillon method proved to be unreliable. Id. at PageID 8971.
First, at no time did Mr. Hillard attempt to identify the source of either the fingerprints or
the forearm print. Secondly, Mr. Hillard did not claim that there was a recognized scientific
process establishing forearm comparison. Rather, Mr. Hillard likened forearm impressions to
impressions made by fingers and feet as well as other parts of the body. As reflected by the trial
court designating him as an expert, Mr. Hillard’s education, background, and many years of
experience qualifies him to render an opinion on fingerprint collection and comparison as well as
that related to forearm imprint which is essentially a cousin to fingerprint collection and
comparison. Mr. Hillard never testified or even speculated as to who left either the fingerprints or
forearm imprint but simply testified as to the general characteristics of the person who made the
finger imprints and the person who made the forearm imprint.
Although Mr. Widmer seems to contend that Mr. Hillard based his testimony about the
forearm impression on the Bertillon system of using body measurements to identify individuals, a
methodology Mr. Hillard agreed had been proven to be unreliable, it is clear that Mr. Hillard did
not. Rather, Mr. Hillard based his testimony about the forearm impression on the methodology
that underlies the well-accepted and understood process of latent fingerprint analysis.
Mr. Widmer also essentially takes issue with Mr. Hillard’s testimony on the basis that it
does not meet the standard identified in Daubert, supra. The Sixth Circuit, however, has held that
Daubert cannot provide a basis for habeas relief because Daubert concerns the Federal Rules of
Evidence which are not relevant to a state criminal conviction. Norris v. Schotten, 146 F.3d 314,
335 (6th Cir.), cert. denied, 525 U.S. 935 (1998). In other words, Daubert is not a constitutional
decision and does not impose any constitutional obligation on the States. Jackson v. Warden, No.
44

3:13-cv-347, 2014 WL 3899292 at *25 (S.D. Ohio Aug. 11, 2014)(Merz, M.J.), Supplemental
Report and Recommendations adopted, 2014 WL 4704071 (S.D. Ohio Sept. 22, 2014)(Rose, J).
Mr. Widmer also argues in support of his First Ground for Relief that he was denied his
constitutional right to confrontation.

Mr. Widmer’s position seems to be that his Sixth

Amendment right to confrontation was violated because Mr. Hillard’s testimony, which was the
only unchallenged testimony against him, was based on matters outside his (Mr. Hillard’s) area of
expertise (Petition, ECF No. 1, PageID 73-75).3
The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused
shall enjoy the right … to be confronted with the witnesses against him….” U.S. Const. amend. VI.
Incorporated through the Fourteenth Amendment, the Confrontation Clause applies with equal
force to criminal prosecutions by the States. Crawford v. Washington, 541 U.S. 36, 42 (2004),
citing Pointer v. Texas, 380 U.S. 400, 406 (1965). The Confrontation Clause protects criminal
defendants in two ways: by granting “the right physically to face those who testify against him,
and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987)(citation omitted).
“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair
opportunity to probe and expose … infirmities [of a witness’ testimony] through
cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant
weight to the witness’ testimony.” Bugh v. Mitchell, 329 F.3d 496, 506 (6th Cir.), cert. denied sub
nom, Bugh v. Bradshaw, 540 U.S. 930 (2003), quoting Delaware v. Fensterer, 474 U.S. 15, 21-22
(1985). “[T]he traditional protections of the oath, cross-examination, and opportunity for the jury
3. It appears that Mr. Widmer may have abandoned this Sixth Amendment confrontation claim (Traverse, ECF No. 25,
PageID 10196-10210). Out of an abundance of caution, however, the Court will address the Confrontation Clause
issue.

45

to observe the witness’ demeanor satisfy the constitutional requirements [of the Confrontation
Clause].” Bugh, 329 F.3d at 508, citing United States v. Owens, 484 U.S. 554, 560 (1988).
The record reveals that Mr. Widmer’s counsel had the opportunity to cross-examine and
re-cross examine Mr. Hillard (Tr., ECF No. 21, Exh. 17, PageID 8965-81, 8984-85). During
those cross-examinations, Mr. Hillard admitted that at the time he examined the bathtub, he knew
that the crime scene had been released, people had been in the house after that release, and that he
did not know if any contamination of the scene or tub had occurred. Id. at PageID 8965-66. Mr.
Hillard also testified that he did not know anything about the environment in which the tub had
been in terms of temperature and humidity. Id. at PageID 8967. Mr. Widmer’s counsel also
cross-examined Mr. Hillard about fingerprint science and the presence of friction ridge detail on
fingers, hands, palms, and feet and the absence of friction ridge detail on forearms. Id. at PageID
8970. During that cross-examination, Mr. Hillard confirmed his prior testimony that he had
received no formal training in forearm impression identification. Id. Mr. Widmer’s counsel
cross-examined Mr. Hillard on the issues of people cleaning their bathtubs, the forearm overlay,
the circular impressions on the top of the tub, and the fingertip impressions in the bathtub. Id. at
PageID 8971-81.
It is clear that Mr. Widmer’s counsel had a full and fair opportunity to probe and expose
any infirmities in Mr. Hillard’s testimony and then call to the jury’s attention any reasons why it
should give scant, if any, weight to his testimony. Mr. Hillard was under oath and the jury had
ample opportunity to observe his demeanor not only on direct examination, but more importantly,
on cross-examination. Stated differently, Mr. Widmer’s Sixth Amendment Confrontation Clause
rights were adequately protected.
To the extent that Mr. Widmer argues that his Confrontation Clause rights were violated
46

because Mr. Hillard’s testimony went beyond the scope of his area of alleged expertise, the Court
rejects that argument for the same reasons it rejected Mr. Widmer’s basic argument that Mr.
Hillard’s testimony went beyond the scope of his area of alleged expertise. See, supra.
At this point, the Court notes that in his Traverse, Mr. Widmer argues for the first time that
this Court should engage in a de novo review of his First Ground for Relief. See, e.g., Traverse,
ECF No. 25, PageID 10197; compare with Petition, ECF No. 1, PageID 56-76. Mr. Widmer’s
position is that “the state court already properly determined that Hillard’s testimony lacked
scientific methodology” and “[t]herefore, this Court need not determine that issue and instead
must determine only whether Hillard’s testimony deprived [him] of a fair trial.” (Traverse, ECF
No. 25, PageID 10197.)
A district court may decline to review a claim a petitioner raises for the first time in his
traverse or reply. Jalowiec v. Bradshaw, 657 F.3d 293, 312, (6th Cir. 2011) cert. denied sub nom.,
Jalowiec v. Robinson, ___ U.S. ___. 133 S.Ct. 107 (2012)(citation omitted). When a state court
does not address a claim on the merits, AEDPA deference does not apply and the federal habeas
court will address the claim de novo. Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014)(citations
omitted).
A review of the Ohio Court of Appeals’ opinion makes it clear that the state court
addressed in detail Mr. Widmer’s claims related to Mr. Hillard’s testimony. See, e.g., Widmer,
2012-Ohio-4342. In addition, Mr. Widmer bases his argument on his erroneous claim that the
state court determined that Mr. Hillard’s testimony lacked scientific methodology. As noted
above, Mr. Hillard and the state court essentially agreed that the Bertillon system has been proven
unreliable. See, e.g., Id. at ¶¶ 70-71. . More importantly, as also noted above, Mr. Hillard did not
rely on the discredited Bertillon system in his analysis of the evidence. Nevertheless, because he
47

raised it for the first time in his Reply and because the state court addressed Mr. Widmer’s claim
with respect to Mr. Hilliard’s testimony, Mr. Widmer’s de novo review argument should be
rejected.
The state court’s decision as to Mr. Widmer’s claims related to Mr. Hillard’s testimony as
stated in his First Ground for Relief is not contrary to nor an unreasonable application of clearly
established federal law. Therefore, Mr. Widmer’s First Ground for Relief should be denied.

SECOND GROUND FOR RELIEF

In his Second Ground for Relief, Mr. Widmer challenges the seizure of the bathtub which
was involved with Ms. Widmer’s murder (Petition, ECF No. 1, PageID 77-90). Mr. Widmer
argues the state violated his Fourth Amendment right to be free from unreasonable searches when,
he claims, it improperly seized the bathtub. The thrust of Mr. Widmer’s argument is that the
search warrant upon which the state relied when it seized the bathtub failed to satisfy the Fourth
Amendment’s “particularity” and “reasonableness” requirements.
The Warden argues first that Mr. Widmer’s Second Ground is procedurally defaulted
(Return of Writ, ECF No. 22, PageID 10105-09). Specifically, the Warden claims that Mr.
Widmer did not fairly present or exhaust this claim in state court, that no state court remedies
remain, and that Mr. Widmer has not established cause, actual prejudice, or fundamental
unfairness that would warrant excusing his procedural default. Id.

The Warden’s second

argument in opposition to Mr. Widmer’s Second Ground for Relief is that pursuant to Stone v.
Powell, 428 U.S. 465 (1976), Mr. Widmer’s Fourth Amendment claim is not cognizable in this
habeas proceeding. Id.

48

In his Traverse Mr. Widmer argues that, contrary to the Warden’s position, his Second
Ground for Relief is not procedurally defaulted, but rather, is properly before the Court (Traverse,
ECF No. 25, PageID10211-30). Specifically, Mr. Widmer seems to argue that he raised his
“bathtub claim” as a stand-alone claim in violation of his Fourth and Fourteenth Amendment
rights to be free from unlawful seizures and his Fifth, Sixth, and Fourteenth Amendment rights to
confrontation, due process rights, a fair trial, and the effective assistance of counsel. Id. In
addition, Mr. Widmer argues that his claim falls outside Stone, supra, because it, “involves the
violation of personal constitutional rights that rendered his verdict unworthy of confidence.” Id.
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2014)(2015), the Sixth Circuit wrote:
Stone v. Powell in the main prohibits federal habeas corpus review
of a state prisoner’s Fourth Amendment claim. 428 U.S. 465, 486 …
(1976). Two explanations supported the decision. One, the key
purpose of federal habeas corpus is to free innocent prisoners. But
whether an investigation violated the Fourth Amendment has no
bearing on whether the defendant is guilty. Id. at 490. Two,
exclusion is a prudential deterrent prescribed by the courts, not a
personal right guaranteed by the Constitution. Any deterrence
produced by an additional layer of habeas review is small, but the
cost of undoing final convictions is great. Id. at 493.
This prohibition on federal habeas review of exclusionary rule
claims applies only to prisoners who received “the opportunity for
full and fair consideration” of their claims in state court. Id. at 486.
Good points out that the state never gave him an evidentiary hearing
on his suppression motion. It follows, he says, that he did not get an
“opportunity for full and fair consideration” of his Fourth
Amendment claim and that he may raise the claim here.
Just what kind of “opportunity” Powell contemplates has been the
subject of debate. Our court has been of two (or three) minds about
the point. In the first case, Bradley v. Cowan, the trial court
“abruptly denied [the suppression motion] without hearing.” 561
F.2d 1213, 1215 (6th Cir. 1977). The panel splintered over whether
the state court satisfied the opportunity requirement with two of the
three judges concluding that Powell precluded review. See id. at
1215, 1217 (Edwards, J.)(concluding that the lack of a state court
49

hearing makes federal collateral review available but finding any
error harmless); id. at 1217-18 (Phillips, C.J.) (concluding that
Powell precluded review); id. at 1218 (Weick, J.) (concluding that
Powell precluded review and finding any error at any rate harmless).
In Moore v. Cowan, reported in F.2d before Bradley but decided
two days after it, the habeas corpus petitioner complained that
instead of reviewing the merits of his Fourth Amendment claim, the
state appellate court affirmed on harmless-error grounds. We
rejected this argument, subscribing to what has become the majority
rule in the circuits—that opportunity means opportunity—and
concluding that the state court need do no more “than take
cognizance of the constitutional claim and render a decision in light
thereof.” 560 F.2d 1298, 1302 (6th Cir. 1977). In Riley v. Gray, the
state appellate court refused to consider the defendant’s suppression
appeal; it announced a novel procedural rule requiring the defendant
to have affirmatively demonstrated his standing to challenge the
search in the trial court record—a requirement that the defendant
had not met. 674 F.2d 522, 527 (6th Cir. 1982).We held that this
“unanticipated and unforeseeable” procedural rule deprived the
defendant of a fair opportunity to present his claim to the appellate
court. Id. at 526-27. But then we added the following unnecessary
and unreasoned remark: “[Ohio’s rules generally] provide an
adequate procedural mechanism for the litigation of
fourth-amendment claims because the state affords a litigant an
opportunity to raise his claims in a fact-finding hearing and on
direct appeal of an unfavorable decision.” Id. at 526 (emphasis
added). This statement was dictum; Riley is a case about the
opportunity at the outset to put the claim before the court, not the
subsequent opportunity to get an evidentiary hearing.
Most of the other federal appellate courts have focused on whether
the state courts offered the prisoner a procedure for presenting the
Fourth Amendment claim. See, e.g., Capallan v. Riley, 975 F.2d 67,
70 (2d Cir. 1992) (“[R]eview of fourth amendment claims in habeas
petitions [may] be undertaken in only one of two instances: (a) if the
state has provided no corrective procedures at all to redress the
alleged fourth amendment violations; or (b) if the state has provided
a corrective mechanism, but the defendant was precluded from
using that mechanism….”); Marshall v. Hendricks, 307 F.3d 36, 82
(3d Cir. 2002) (“[T]here may be instances in which a full and fair
opportunity to litigate was denied to a habeas petitioner, but this is
not one of them. This is not a case where a structural defect in the
system itself prevented [the petitioner’s] claim from being heard.”);
Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir.1978) (“[ Powell
asks only] whether ... the petitioner was afforded an opportunity to
50

raise his Fourth Amendment claims under the then existing state
practice.”); Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir.1994)
(en banc) (“[A] Fourth Amendment claim is Stone-barred, and thus
unreviewable by a federal habeas court, unless either the state
provided no procedure by which the prisoner could raise his Fourth
Amendment claim, or the prisoner was foreclosed from using that
procedure....”).
Some courts have focused on the adequacy of the procedure,
sometimes even the application of the procedure, used by the court
to resolve the claim. See, e.g., Anderson v. Calderon, 232 F.3d
1053, 1068 (9th Cir. 2000) (“[W]e are persuaded on these facts and
circumstances that this kind of review falls short of the quality of
litigation opportunity described in Stone.”); Gamble v. Oklahoma,
583 F.2d 1161, 1165 (10th Cir.1978) (“‘Opportunity for full and fair
consideration’ includes, but is not limited to, the procedural
opportunity to raise or otherwise present a Fourth Amendment
claim. It also includes [a] full and fair evidentiary hearing....”)
(footnote omitted); Tukes v. Dugger, 911 F.2d 508, 514 (11th
Cir.1990) (“The trial court's failure to make explicit findings on
matters essential to the fourth amendment issue, combined with the
fact that the state appellate court issued only a summary affirmance,
precludes a conclusion ... that ... [there is] a Stone v. Powell bar to
our review of the claim.”).
Consistent with Moore and with two of the three votes in Bradley,
we made clear that the Powell “opportunity for full and fair
consideration” means an available avenue for the prisoner to present
his claim to the state courts, not an inquiry into the adequacy of the
procedure actually used to resolve that particular claim. First, that is
what Powell said: It focused on the opportunity for fair
consideration presented by the state courts, not the procedure used
in a given case to address the specific argument of a given
defendant. In the absence of a sham proceeding, there is no need to
ask whether the state court conducted an evidentiary hearing or to
inquire otherwise into the rigor of the state judiciary's procedures
for resolving the claim.
Second, this approach accords with traditional federalism and
comity principles—considerations that animated Stone v. Powell in
the first instance and considerations that take center stage whenever
evaluating the scope of federal habeas corpus review. See generally
Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991). Looking into the adequacy of state opportunities to raise
federal claims is a familiar exercise; hence the “adequate” in the
51

doctrine of independent and adequate procedural grounds. See, e.g.,
Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820
(2002). But it would be an unusual intrusion for federal courts to
second-guess state procedures for resolving motions once they have
been presented. States are independent sovereigns, and the federal
government generally speaking should respect their choices about
how to adjudicate disputes.
All of that explains why Powell tells us not to “assume that there [is]
a general lack of appropriate sensitivity to constitutional rights in
the trial and appellate courts of the several States.” 428 U.S. at 493
n. 35, 96 S.Ct. 3037. We must instead presume that, once a federal
claim comes before a state court, the state judge will use a fair
procedure to achieve a just resolution of the claim—resolving some
motions with neither an evidentiary hearing nor an oral argument,
some with an oral argument alone, some with both.
Third, a different conclusion would be impractical and in the end
would raise more questions than answers. It is not feasible to
prescribe a uniform set of procedures for every suppression dispute.
Take the type of procedure demanded in this case: an evidentiary
hearing. The exclusionary rule results in “tens of thousands of
contested suppression motions each year,” McDonald v. City of
Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894
(2010) (plurality opinion), and if every one of them prompted a full
evidentiary hearing the wheels of justice would jam. Nor is it
reasonable to think that an evidentiary hearing is warranted in every
case. In some cases, the defendant will not allege a cognizable
Fourth Amendment violation. In others, an exception to the
exclusionary rule, say for inevitable discovery or for a good faith
search, will plainly bring the evidence in. In others, the relevant
facts already may be in the record, making an evidentiary hearing
unnecessary. In still others, it will be obvious that the suppression
motion is frivolous, or that it was made solely for the purpose of
delaying the case. Just as the Supreme Court has presumed that a
state appellate court normally will have a good reason to deny an
appeal summarily, see Harrington v. Richter, ––– U.S. ––––, 131
S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), so too may we presume that
a state trial court often will have a good reason to deny a suppression
motion summarily.
Fourth, a contrary approach would collapse the hearing inquiry into
the merits inquiry. The right to a hearing would turn on how strong
the underlying exclusionary claim was, prompting an inquiry of the
sort Stone v. Powell prohibited in order to determine whether Stone
52

v. Powell applied. Our approach, and the majority rule, asks a more
basic and readily administrable question: Did the state courts permit
the defendant to raise the claim or not?
Applying our test to Good's case is straightforward. Good could,
indeed did, present his suppression motion to the state trial court,
and the trial court rejected it. He presented it again to the state
appellate court, and the appellate court rejected it once more. That
suffices to preclude review of the claim through a habeas corpus
petition under Stone v. Powell.
Good, 729 F.3d at 637-40.
With these principles in mind, this Court turns to the specific facts of Mr. Widmer’s present
claim.
A review of the record reveals that Mr. Widmer did not bring a Motion to Suppress during
the proceedings related to his first trial (See App’x, ECF No. 17-1, Exh. 3-24, PageID 301-388).
However, during the proceedings related to his second trial, Mr. Widmer did move to suppress the
bathtub (App’x, ECF No. 18-1, Exh. 84, PageID 1037-40). In that Motion Mr. Widmer claimed
the seizure violated his rights under the Fourth and Fourteenth Amendments to the United States
Constitution as well as parts of the Ohio State Constitution. Id. at PageID 1037. The trial court
denied his motion on the basis that “the motion has not been prosecuted in a timely
fashion.”(App’x, ECF No. 18-1, Exh. 86, PageID 1049-50.) Finally, the record reveals that Mr.
Widmer did not file a motion to suppress during the proceedings related to his third trial and final
trial (See App’x, ECF No. 18-1, Exhs. 95-100, PageID 1120-1493; App’x, ECF No. 19-1, Exhs.
101-25, PageID 1517-1697).
Mr. Widmer had, within the meaning of Stone and Good, the “opportunity for full and fair
consideration” of his claim that the bathtub should have been suppressed at trial. That is clearly
exhibited by the fact that he filed a motion to suppress during the proceedings related to his second

53

trial. However, Mr. Widmer did not file a motion to suppress during the proceedings related to
this third trial, the trial that is at issue in these habeas proceedings. Mr. Widmer does not claim,
nor is this Court aware of any, changes in Ohio law which occurred between his second trial held
in May and June of 2010 and his third trial held in January and February of 2011, which would
have deprived him of the opportunity for a full and fair consideration of his claim with respect to
the bathtub. Accordingly, Mr. Widmer’s claim, even assuming that it is cognizable in habeas,
see, infra, would be defaulted.
Even assuming that Mr. Widmer’s Second Ground for Relief is not procedurally defaulted,
Stone makes it clear that the claim is not cognizable in habeas.
As noted above, Mr. Widmer argues that his claim is “outside Stone” because it “involves
the violation of personal constitutional rights that rendered his verdict unworthy of confidence.”
The Sixth Circuit recently addressed this issue.
Evidence that has been obtained in violation of the Fourth
Amendment may be subject to exclusion at trial. As the Supreme
Court has made clear, however, “[e]xclusion is not a “personal
constitutional right”, but is intended “to deter future Fourth
Amendment violations.” Davis, [___ U.S. ___, ___], 131 S.Ct.
[2419,] at 2426 [2011]. Because “[e]xclusion exacts a heavy toll on
both the judicial system and society at large,” not all violations of
the Fourth Amendment result in the exclusion of evidence. Id. at
2427. “[E]xclusion has always been our last resort, not our first
impulse.” Herring v. United States, 555 U.S. 135, 129 S.Ct. 695,
700, 172 L.Ed.2d 496 (2009) (internal citation and quotation marks
omitted) (emphasis added). To assess whether exclusion is
demanded, a “rigorous weighing of [ ] costs and deterrence
benefits” is necessary. Davis, 131 S.Ct. 2427. In particular, because
the extent to which the exclusionary rule is justified by these
deterrence principles varies with the culpability of the law
enforcement conduct, the cost-benefit analysis should focus on the
“flagrancy of the police misconduct” and on whether the police
misconduct was “deliberate, reckless, or grossly negligent conduct,
or in some circumstances recurring or systemic negligence.”
Herring, 129 S.Ct. at 701–02. When police act in good faith,
54

however, “conduct[ing] a search in objectively reasonable reliance
on binding appellate precedent, the exclusionary rule does not
apply.” Davis, 131 S.Ct. at 2434.
United States v. Fisher, 745 F.3d 200, 204 (6th Cir.), cert. denied, ___ U.S. ___, 135 S.Ct. 676
(2014).
Mr. Widmer’s claim with respect to the suppression of the bathtub is not cognizable in
habeas. Therefore, Mr. Widmer’s Second Ground for Relief should be denied.

THIRD GROUND FOR RELIEF

In his Third Ground for Relief, Mr. Widmer alleges that his counsel was constitutionally
ineffective because they failed to timely prosecute a motion to suppress with respect to the bathtub
(Petition, ECF No. 1, PageID 90-95).
The Warden first argues in opposition to Mr. Widmer’s Third Ground for Relief that Mr.
Widmer’s ineffective assistance of trial counsel claim has a “fundamental problem” in that his
federal habeas attorney (and her husband) were co-counsel of record in his state court proceedings
and this leaves his habeas counsel in the position of arguing her own ineffectiveness (Return of
Writ, ECF No. 22, PageID 10110-11).

The Warden also argues that the state court’s

determination that Mr. Widmer’s ineffective assistance claim is without merit was based on its
objectively reasonable factual determinations and not contrary to or an unreasonable application of
clearly established federal law. Id. at PageID 10111-20.
In his Traverse, Mr. Widmer does not specifically address the Warden’s arguments, but
relies instead on the arguments he raised in his Petition (Traverse, ECF No. 25, PageID 10247).
Mr. Widmer raised this claim before the Twelfth District Court of Appeal which rejected it

55

as follows:
II.

SUPPRESSION OF THE BATHTUB
[*P39] Assignment of Error No. 1:
[*P40] TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS BY FAILING TO TIMELY
PROSECUTE WHAT WOULD HAVE BEEN A MERITORIOUS
MOTION TO SUPPRESS THE BATHTUB AND ALL
EVIDENCE RELATED TO SAID TUB DISCOVERED
FOLLOWING ITS UNLAWFUL SEIZURE. THE STATE
UNCONSTITUTIONALLY
SEIZED
THE
BATHTUB
PURSUANT TO A SEARCH WARRANT WHICH NEITHER
LISTED THE BATHTUB AS AN ITEM TO BE SEIZED NOR
COULD BE CONSTRUED TO VALIDLY INCLUDE THE
BATHTUB UNDER THE OVERLY BROAD “LATENT
FINGERPRINT” LANGUAGE.
[*P41] In his first assignment of error, Widmer argues his trial
counsel provided ineffective assistance by failing to timely file and
prosecute a motion to suppress the seizure of the bathtub. Widmer
argues the seizure of the bathtub fell outside the scope of the search
warrant as the bathtub was not particularly described within the
warrant and did not fall within the scope of the search warrant's
“latent fingerprints” provision. Widmer contends that had his trial
counsel timely prosecuted a motion to suppress the bathtub, the
bathtub and all evidence relating to it would have been excluded
from trial. The state contends, however, that the bathtub was
properly seized pursuant to the terms of the search warrant. Further,
the state argues that defense counsel's failure to timely file or
prosecute a motion to suppress the bathtub was part of the defense's
trial strategy.
[*P42] To understand both Widmer's and the state's arguments, it is
necessary to briefly discuss the history of the bathtub within the
context of Widmer's three trials. The bathtub was seized as evidence
pursuant to a search warrant executed on August 13, 2008, two days
after the police were initially called to the scene. Widmer did not
seek to suppress the bathtub prior to his first trial. On April 22,
2010, just days before Widmer's second trial was set to commence,
Widmer filed a motion to suppress the bathtub. The trial court
denied the motion on April 30, 2010, on the basis that it had not
56

been prosecuted in a timely fashion. In its decision, the trial court
stated “an eleventh hour motion to suppress in regard to a matter
well known to counsel for more than six months was not anticipated
by the court.” Widmer did not file a written motion to suppress the
bathtub prior to the third trial. Rather, on February 1, 2011, during
the fifth day of live testimony at the third trial, defense counsel
objected to the admission of the bathtub as evidence. Defense
counsel indicated the objection was in response to the trial court's
April 30, 2010 ruling on the motion to suppress filed just prior to
appellant's second trial.
[DEFENSE COUNSEL]: I know it was ruled on at the time
but I'm just preserving our object[ion] on the motion to
suppress the tub.
THE COURT: From the last trial?
[DEFENSE COUNSEL]: Yes, just for the record.
The trial court overruled the objection and permitted the bathtub to
be introduced into evidence.
[*P43] To prevail on his ineffective assistance of counsel claim,
Widmer must show (1) that his trial counsel's performance in failing
to file a motion to suppress the bathtub fell below an objective
standard of reasonableness and (2) that he was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104
S.Ct. 2052 (1984). Prejudice exists where there is a reasonable
probability that, but for counsel's errors, the result of the trial would
have been different. Id. at 694. “A defendant's failure to satisfy one
prong of the Strickland test negates a court's need to consider the
other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
[*P44] As an initial matter, we note that trial counsel's failure to file
a motion to suppress evidence does not per se constitute ineffective
assistance of counsel. Id.; State v. Layne, 12th Dist. No. CA2009–
07–043, 2010-Ohio-2308, ¶ 46. The party asserting a claim of
ineffective assistance of counsel for failure to file a motion to
suppress must prove that there was a basis to suppress the evidence
in question. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶
65.
[*P45] We begin our analysis by determining whether seizure of the
bathtub was in violation of the Fourth Amendment. The Fourth
Amendment to the United States Constitution protects against
57

unreasonable searches and seizures and provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
The manifest purpose of the Fourth Amendment's particularity
requirement is to prevent general searches. Maryland v. Garrison,
480 U.S. 79, 84, 107 S.Ct. 103 (1987). “By limiting the
authorization to search to the specific areas and things for which
there is probable cause to search, the requirement ensures that the
search will be carefully tailored to its justifications, and will not take
on the character of the wide-ranging exploratory searches the
Framers intended to prohibit.” Id. Where the items seized are
evidence or instrumentalities of a crime, a court must determine
whether the warrant could reasonably have described the items
more precisely than it did. State v. Benner, 40 Ohio St.3d, 301, 307
(1988). A search warrant will be held sufficiently particular when it
enables a searcher to reasonably ascertain and identify the things
which are authorized to be seized. State v. McCroy, 6th Dist. Nos.
WD–09–074 and WD-09-090, 2011-Ohio-546, ¶ 37; United States
v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991).
[*P46] The search warrant executed on August 13, 2008, authorized
police to search the Widmers' residence for the following:
[G]oods, chattels, or articles, and to retrieve any
evidence of criminal activity which may be found, to
wit: the wallet of Sarah A. Widmer (Deceased);
calendars; computers; computer perherials [sic],
including external hard drive(s), modums [sic],
mediums for the electronic storage of data; caller
ID(s); safe(s) and/or lock box(es); notes; medical
records; pregnancy test; insurance papers; video
and/or audio recording device(s); financial records,
including credit card statements, certificate of
deposit(s), checking account record(s), saving
account record(s); birth control devices including
pills and condoms; and latent fingerprints.
Officer Short's affidavit, which was attached and incorporated into
58

the search warrant, stated that he had been dispatched to the
Widmers' home on a report of a drowning. The affidavit also stated
that upon arrival at the home, Short was told by Widmer that Sarah
had been in the bathtub 15 to 30 minutes before Widmer found her
“under the water” and removed her from the bathtub. Short further
averred that an autopsy had been completed, and, although the
preliminary cause of Sarah's death was drowning, there were “other
injuries found on the body that were inconsistant [sic] with the
account reported to police by Ryan K. Widmer.” Short then stated
that “through his personal knowledge and training, and based upon
the preliminary results of the autopsy, [he] believes there exists
other evidence at the [Widmers'] residence. The recovery of this
evidence is key to the investigation into the death of Sarah A.
Widmer.”
[*P47] On appeal, Widmer argues the “latent fingerprints”
provision of the search warrant is overly broad in nature and does
not authorize the seizure of the bathtub. Widmer contends the
bathtub was an item officers knew existed prior to requesting the
warrant to search the home, and, as such, should have been
specifically listed in the warrant as an item to be searched and
seized. He further argues the “latent fingerprints” provision of the
warrant could not have authorized the seizure of the bathtub as the
provision offered unbridled discretion to the officers executing the
warrant and would have allowed officers to seize “literally every
item in the house.” Widmer also argues that even if the latent
fingerprint provision is not overly broad, seizure of the bathtub
pursuant to this provision was improper as an on-site inspection of
the bathtub revealed that the bathtub did not contain latent prints of
value. We find Widmer's arguments to be without merit.
A. Scope of the Warrant
[*P48] In the present case, the warrant specifically authorized
officers to search for latent fingerprints and retrieve any evidence of
criminal activity. Although the warrant did not specifically list the
bathtub, this does not invalidate its seizure. The warrant still enabled
the officers to reasonably ascertain and identify the things that were
authorized to be seized by way of the attached affidavit. The
information contained within the affidavit, which made reference to
the bathtub numerous times, sufficiently constrained the officers'
search, and any later seizure, to evidence related to a death by
drowning. At the time the warrant was sought, the cause of Sarah's
death was known. Statements made by Widmer indicated Sarah had
drowned in the couple's bathtub. The latent fingerprints provision
59

did not allow officers to seize “literally every item in the house.”
Rather, it permitted only the seizure of goods, articles, or chattels
that contained latent fingerprints and provided evidence of a crime,
namely death by drowning. Common sense dictates that in an
alleged bathtub drowning, valuable evidence, including latent
fingerprints, can be obtained from a search of the bathroom and
bathtub. Once the officers observed the fingermarks and smear
marks on the bathtub, they were entitled to remove the tub from the
home pursuant to the express terms of the search warrant. Seizure of
the bathtub was therefore within the scope of the “latent
fingerprints” provision.
[*P49] Widmer, however, seeks to invalidate the search by arguing
that at the time the bathtub was removed officers knew that the tub
did not contain latent fingerprints because the latent print examiner
conducted an on-site inspection and concluded there were no latent
prints of value. Yet, as discussed in more detail below, the marks
still had evidentiary value as it was possible that further analysis
would allow for identification of the source of the marks or would
explain how the events unfolded on the night of Sarah's death.
Accordingly, seizure of the bathtub to allow further investigation of
the marks in a laboratory was warranted.
[*P50] We therefore find that the warrant provision allowing the
search and seizure of those items containing “latent fingerprints”
was not overly broad. We also find that seizure of the bathtub, as it
originated out of a search for latent fingerprints, was authorized by
the warrant.
B. Instrumentality of the Crime
[*P51] In addition to finding seizure of the bathtub constitutional
under the warrant's “latent fingerprints” provision, we also find that
seizure of the bathtub was constitutional as the bathtub was an
instrumentality of the crime.
[*P52] “Evidence not specifically described in a search warrant
may be validly seized if, based on evidence known to the officers,
the seized items were closely related to the crime being investigated
or were instrumentalities of the crime.” State v. Kobi, 122 Ohio
App.3d 160, 171 (6th Dist. 1997), citing State v. McGettrick, 40
Ohio App.3d. 25, 29 (8th Dist. 1988). See also United States v.
Wright, 343 F.3d 849, 863 (6th Cir. 2003) (holding “evidence not
described in a search warrant may be seized if it is reasonably
related to the offense which formed the basis for the search”);
60

United States v. Korman, 614 F.2d 541, 547 (6th Cir. 1980) (stating
that evidence or instrumentalities of a crime may be seized even
though not specifically listed in the search warrant).
[*P53] At the time the fingermarks and smear marks were observed
on the bathtub, the police were executing a valid search warrant.
Once the marks were observed, officers had probable cause to
associate the bathtub with Sarah's death. Although an on-site
inspection of the bathtub did not reveal latent prints of comparison
value, the bathtub still retained evidentiary value as it was the likely
instrument of the drowning and held evidence closely related to
Sarah's death.FN5 As Harness testified, latent prints are of
comparison value only when the print has a “sufficient amount of
class characteristics as well as individual characteristics that would
enable [one] to ultimately identify that [print] to one person or
another.” While the on-site inspection of the bathtub did not reveal a
sufficient amount of class or individual characteristics to identify
who specifically left the markings, the fingermarks and smear marks
did not become valueless. The markings retained evidentiary value
because it was possible that further analysis of the marks would
allow identification of the source of the marks or that additional
evidence could be recovered once the bathtub was inspected in a
crime laboratory.FN6 Furthermore, removal of the bathtub was
warranted as it was possible that further inspection of the item could
explain how events unfolded on the night of Sarah's death and
provide insight as to how the smear marks were made on the tub.
FN5. In his reply brief, Widmer asks this court to
find that the bathtub, as a fixture attached to the
home, cannot be classified as an instrumentality of
the crime. Widmer contends that items that may be
seized as “instrumentalities of the crime” refer to the
“papers and effects” clause of the Fourth
Amendment and therefore include only personal
property. Because a bathtub is a fixture, Widmer
contends that the “house” clause of the Fourth
Amendment governs, and the bathtub could not have
been taken as an “instrumentality [of] the crime.”
Widmer's argument, however, ignores the unique
circumstances of the present case. The cause of
Sarah's death was drowning, and the instrument
believed to have been used to cause her death was the
bathtub. As such, by its very nature the bathtub
became an instrument of the crime and subject to
seizure.
61

FN6. In fact, Harness testified that during his second
examination of the bathtub, which took place in the
crime lab after the bathtub had been removed from
the home, he discovered additional fragmented
prints on the bathtub that he had not observed during
the on-site examination.
[*P54] We find that the police had probable cause to associate the
bathtub, and the markings found therein, as the instrument used to
drown Sarah. Because the bathtub was believed to have been used to
cause Sarah's death, the bathtub, by its very nature, became an
instrument of the crime and subject to seizure. Accordingly, we find
that the seizure of the bathtub was not in violation of the Fourth
Amendment.
C. The Exclusionary Rule
[*P55] Even if we had found the seizure of the bathtub outside the
scope of the warrant or found that it was not an instrumentality of
the crime, exclusion of the bathtub from evidence is not warranted
under the facts of this case. The exclusionary rule is a “prudential
doctrine” that was created by the United States Supreme Court to
“compel respect for the constitutional guaranty” expressed in the
Fourth Amendment. Davis v. United States, ___ U.S. ___, 131 S.Ct.
2419, 2426 (2011) citing Elkins v. United States, 364 U.S. 206, 217,
80 S.Ct. 1437 (1960). The purpose of the exclusionary rule is to
deter future Fourth Amendment violations. Davis at 2426. “Where
suppression fails to yield ‘appreciable deterrence,’ exclusion is
‘clearly * * * unwarranted.’ “ Id. at 2426–2427, quoting United
States v. Janis, 428 U.S. 433, 454m 96 S.Ct. 3021 (1976). Because
of the substantial social costs generated by the exclusionary rule, the
deterrence benefits of suppression must outweigh its heavy costs.
Davis at 2427.
When the police exhibit “deliberate,” “reckless,” or “grossly
negligent” disregard for Fourth Amendment rights, the
deterrent value of exclusion is strong and tends to outweigh
the resulting costs. * * * But when the police act with an
objectively “reasonable good-faith belief” that their conduct
is lawful * * * or when their conduct involves only simply
“isolated” negligence * * * the “deterrence rationale loses
much of its force” and exclusion cannot “pay its way.”
Id. at 2427–2428, quoting United States v. Leon, 468 U.S. 897,
62

908-909, 104 S.Ct. 3405 (1984) and Herring v. United States, 555
U.S. 135, 143-144, 129 S.Ct. 695 (2009).
[*P56] The exclusionary rule therefore applies, and evidence should
be suppressed where:
(1) the issuing judge was misled by information in an
affidavit that the affiant knew was false or would have
known was false except for his reckless disregard of the truth
(2) the issuing judge wholly abandoned his judicial role, (3)
an officer purports to rely upon a warrant based on an
affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable, or (4)
depending upon the circumstances of the particular case, a
warrant is so facially deficient, i.e., in [failing] to
particularize the place or things to be searched or seized, that
those executing the warrant cannot reasonably presume it to
be valid.
State v. Donihue, 161 Ohio App.3d 731, 2005-Ohio-3223, ¶ 9 (12th
Dist.), citing State v. George, 45 Ohio St.3d 325, 331 (1989).
[*P57] In the present case there is no evidence demonstrating that
the police deliberately set out to seize the bathtub without setting it
forth in the search warrant. Furthermore, there is no evidence
demonstrating that the police acted with deliberate, reckless, or
grossly negligent disregard for Widmer's Fourth Amendment rights
when seizing the bathtub. Rather, the evidence produced at trial
demonstrated that officers seized the bathtub in good faith reliance
on the search warrant, removing the bathtub only after a search for
latent fingerprints revealed the fingermarks and smear marks.
Furthermore, as discussed above, the warrant was not facially
deficient in describing the items to be seized. Therefore, exclusion
of the bathtub from evidence would not yield any appreciable
deterrence.
D. Effective Assistance of Trial Counsel
[*P58] As the bathtub was properly seized, we find that Widmer
was not prejudiced by his trial counsel's decision not to file or timely
prosecute a motion to suppress the bathtub from evidence.
Accordingly, we find Widmer was not denied effective assistance of
trial counsel.
[*P59] Widmer's first assignment of error is therefore overruled.
63

Widmer, 2012-Ohio-4342.
The standard of review of Mr. Widmer’s ineffective assistance of trial counsel is “doubly
deferential.” Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 13 (2013). Mr. Widmer must show
not only that his trial counsel’s performance was deficient, but also that it prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is deficient if it
falls “below an objective standard of reasonableness.” Id. at 688. But “a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” and it is the petitioner’s burden to show that this is not the case. Id. at 689. Moreover,
to demonstrate prejudice, the petitioner must show that there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. This, too, is a heavy burden, as counsel’s deficiencies must have been “so serious as to
deprive the defendant of a fair trial.” Id. at 687. Ultimately, a federal court cannot grant habeas
relief on an ineffective assistance claim simply because it disagrees with the state court’s analysis.
“[T]he question is not whether counsel’s actions were reasonable,” but “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 697. Of
course, counsel is not required to raise meritless arguments to avoid providing constitutionally
infirm assistance of counsel. Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998).
General warrants are prohibited by the Fourth Amendment.
Andresen v. Maryland, 427 U.S. 463, 479 (1976). “The Fourth
Amendment requires warrants to ‘particularly describ[e] the place
to be searched, and the persons or things to be seized.’” United
States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991) (citing U.S.
Const. amend. IV). “A general order to explore and rummage
through a person’s belonging[ ] is not permitted,” rather “[t]he
warrant must enable the searcher to reasonably ascertain and
identify the things which are authorized to be seized.” Id. (citations
64

and quotations omitted). “The degree of specificity required
depends on the crime involved and the types of items sought.” Id.
United States v. Gardiner, 463 F.3d. 445, 471 (6th Cir. 2006).
On August 12, 2008, police officer Quillan Short prepared a search warrant and affidavit
for Mr. Widmer’s residence (App’x, ECF No. 18-1, Exh. 84, PageID 1038). At that time, Officer
Short was engaged in the investigation of the death of Sarah Widmer. Id. In the request for the
warrant, Officer Short stated that it was necessary for law enforcement to enter Mr. Widmer’s
residence
to diligently search for the said goods and chattels or articles and to
retrieve any evidence of criminal activity which may be found, to
wit: the wallet of Sarah A. Widmer (Deceased); calendars;
computers; computer peripherals; including external hard drives,
modems, mediums for the electronic storage of data; caller ID(s);
safe(s) and/or lock boxes; notes; medical records; pregnancy test;
insurance papers; video and/or audio recording device(s); financial
records, including credit card statements, certificates of deposit(s),
checking account records, saving account record(s); birth control
devices including pills and condoms; and latent fingerprints.
Id.
Mr. Widmer does not dispute that during the execution of the search warrant, officers
dusted the bathtub and found what appeared to be handprints on the inside of the tub (App’x, ECF
No. 18-1, Exh. 85, PageID 1044). In addition, Mr. Widmer does not dispute that when officers
executed the warrant, they knew that police had been initially dispatched to the Widmer residence
on the report of a drowning and that Mr. Widmer reported to those officers that he had found Sarah
Widmer in the bathtub. See Id. at PageID 1047.
With these facts in mind, this Court concludes that the search warrant was sufficiently
specific and that the police properly seized the bathtub. First, the warrant permitted police to
search for latent fingerprints. As noted, when they dusted the bathtub, the police found what
65

appeared to be handprints on the inside of the tub. At that point, the police could properly seize
the bathtub under the “latent fingerprint” provision of the warrant. Second, when they executed
the warrant the police knew that Ms. Widmer’s death involved a drowning. That knowledge,
coupled with the discovery of the latent handprints in the bathtub, provided a basis for the police to
believe that the bathtub was closely related to the crime they were investigating; to wit, Sarah
Widmer’s death by drowning. Because the search warrant was sufficiently specific and the police
properly seized the bathtub, a motion to suppress the bathtub would have been meritless.
Accordingly, Mr. Widmer’s trial counsel were not required to file a meritless motion to avoid
providing constitutionally infirm assistance of counsel.
At this point, the Court notes, as the Warden pointed out, Mr. Widmer’s counsel is
arguably in the curious position of arguing her own ineffectiveness as Mr. Widmer’s trial counsel.
However, in view of the Court’s resolution of Mr. Widmer’s Third Ground for Relief on other
grounds, issues raised as to this point need not be decided.
Accordingly, the state court’s decision as to Mr. Widmer’s claim for ineffective assistance
of trial counsel is not contrary to nor an unreasonable application of clearly established federal
law. Therefore, Mr. Widmer’s Third Ground for Relief should be denied.

FOURTH AND FIFTH GROUNDS FOR RELIEF
As the state court did, this Court will address Mr. Widmer’s Fourth and Fifth Grounds for
Relief together.
In support of his Fourth Ground for Relief, Mr. Widmer argues that after viewing the
evidence in a light most favorable to the state and assuming all the state’s witnesses testified
truthfully, no rational trier of fact could have found that the state proved beyond a reasonable doubt
66

all of the essential elements of murder (Petition, ECF No. 1, PageID 95). Mr. Widmer’s position
is that, at most, the state proved a lesser-included offense namely either reckless homicide or
involuntary manslaughter predicated on the commission of an underlying felony (felonious assault
or aggravated assault), or involuntary manslaughter predicated on the commission of an
underlying misdemeanor (assault). Id. at PageID 95-6.
The Warden argues in opposition that the state court findings of fact are entitled to a
presumption of correctness in this habeas proceeding, that to the extent that the state appellate
court’s decision relies on Ohio law, this Court is bound by that court’s interpretation of state law,
and that Mr. Widmer has not sufficiently rebutted the presumption of correctness to which the state
court’s factual findings are entitled (Return of Writ, ECF No. 22, PageID 10126-27). The
Warden notes that although the state appellate court did not specifically cite Jackson v. Virginia,
443 U.S. 307, 319 (1979), the court applied an identical and correct review standard. Id. at PageID
10127. Finally, the Warden argues that Mr. Widmer has not cited any federal authority to support
his evidence sufficiency claim and therefore his alleged state law violations are not cognizable in
this federal habeas proceeding. Id.
In his Traverse, Mr. Widmer does not specifically address the Warden’s arguments, but
relies instead on the arguments he raised in his Petition (Traverse, ECF No. 25, PageID 10247).
Mr. Widmer argues in support of his Fifth Ground that the jury “clearly lost its way in
resolving conflicts of evidence and weighing reasonable inferences to be drawn from the
record…” (Petition, ECF No. 1, PageID 99). In further support of his Fifth Ground, Mr.
Widmer relies primarily on the arguments he raised in support of his Fourth Ground, supra. Id.
The Warden argues in opposition that a “manifest weight of the evidence” claim is not

67

cognizable in federal habeas proceedings (Return of Writ, ECF No. 22, PageID 10128).
Mr. Widmer does not specifically address the Warden’s arguments in his Traverse but
again relies on the arguments he raised in his Petition (Traverse, ECF No. 25, PageID 10247).
Mr. Widmer raised these claims on direct appeal and the court of appeals rejected them
as follows:
[*P91] Assignment of Error No. 5:
[*P92] WIDMER'S CONVICTION IS BASED ON
INSUFFICIENT EVIDENCE IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR
TRIAL. AT MOST, THE STATE PRESENTED SUFFICIENT
EVIDENCE
TO
SUSTAIN
A
CONVICTION
OF
INVOLUNTARY
MANSLAUGHTER
OR
RECKLESS
HOMICIDE.
[*P93] Assignment of Error No. 6:
[*P94] WIDMER’S CONVICTION
MANIFEST WEIGHT OF EVIDENCE.

IS

AGAINST

THE

[*P95] In his fifth and sixth assignments of error, Widmer argues
that his murder conviction was not supported by sufficient evidence
and was against the manifest weight of the evidence. Widmer
contends the state failed to prove the necessary elements to sustain a
murder conviction, and he argues that “[a]t most, the state proved a
lesser-included offense of murder.” Widmer specifically contends
that Crew's testimony was the only evidence presented to establish
his mens rea on the night of the crime, and her testimony did not
demonstrate that he intended to kill Sarah. Rather, Widmer argues
that, at best, Crew's testimony proves that he acted recklessly or
knowingly in causing Sarah's death because “[i]f Crew's testimony
is believed, [Widmer] submerged Sarah's head under water while
blacked out.”
[*P96] When reviewing the sufficiency of the evidence underlying
a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would
support a conviction. State v. Wilson, 12th Dist. No. CA2006–01–
68

007, 2007-Ohio-2298. “The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.”State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus.
[*P97] A manifest weight of the evidence challenge examines the
“inclination of the greater amount of credible evidence, offered at a
trial, to support one side of the issue rather than the other.” State v.
Barnett, 12th Dist. No. CA2011–09–177, 2012-Ohio-2372, ¶14. To
determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh
the evidence and all reasonable inferences, consider the credibility
of the witnesses, and determine whether in resolving the conflicts in
the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. State v. Graham, 12th Dist. No. CA2008–
07–095, 2009-Ohio-2814, ¶ 66. In reviewing the evidence, an
appellate court must be mindful that the jury, as the original trier of
fact, was in the best position to judge the credibility of witnesses and
determine the weight to be given to the evidence. State v.
Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th
Dist.). “The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Id., citing State v. Thompkins, 78
Ohio St.3d 380, 387 (1997). Furthermore, “[a] unanimous
concurrence of all three judges on the court of appeals panel
reviewing the case is required to reverse a judgment on the weight
of the evidence in a jury trial.” Id., citing Thompkins at 389.
[*P98] “Because sufficiency is required to take a case to the jury, a
finding that a conviction is supported by the weight of the evidence
must necessarily include a finding of sufficiency.” State v. Hart,
12th Dist. No. CA2011–03–008, 2012-Ohio-1896, ¶ 43, citing
Graham at ¶ 67. Accordingly, a determination that a conviction is
supported by the weight of the evidence will also be dispositive of
the issue of sufficiency. Id.
[*P99] Widmer was convicted of murder in violation of R.C.
2903.02(A), which provides that “[n]o person shall purposely
cause the death of another.” A person acts purposely “when it is his
specific intention to cause a certain result.” R.C. 2901.22(A). “A
jury may infer an intent to kill where (1) the natural and probable
consequence of a defendant's act is to produce death, and (2) all of
the surrounding circumstances allow the conclusion that a defendant
69

had an intent to kill.” State v. McGraw, 12th Dist. No. CA2009–10–
020, 2010-Ohio-3949, ¶ 12, citing State v. Locklear, 10th Dist. No.
06AP–259, 2006-Ohio-5949, ¶ 15. Further, “[p]urpose or intent * *
* may be established by circumstantial evidence.” McGraw at ¶ 12.
“[A] conviction based on purely circumstantial evidence is no less
sound than one based on direct evidence.” State v. Curtis, 12th Dist.
No. CA2009–10–037, 2010-Ohio-4945, ¶ 22, citing Michalic v.
Cleveland Tankers, Ind., 364 U.S. 325, 330, 81 S.Ct. 6 (1960).
“Circumstantial evidence and direct evidence have the same
probative value, and in some instances, certain facts can only be
established by circumstantial evidence.” Curtis at ¶ 22, citing State
v. Mobus, 12th Dist. No. CA2005–01–004, 2005-Ohio-6164, ¶ 51.
[*P100] After review of the record, we cannot say the trier of fact
clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed. The state presented
testimony and evidence from which the jury could have found the
essential elements of murder proven beyond a reasonable doubt.
[*P101] The state presented evidence that Sarah and Widmer were
the only two individuals present in the Widmers' home on the night
of Sarah's death. The state also presented evidence that Sarah died
from a forcible drowning. Dr. Uptegrove testified that during
Sarah's autopsy he observed contusions on Sarah's scalp and on the
back of her neck, external bruising to her forehead and the left side
of her neck, and significant internal bruising to the anterior of her
neck. Uptegrove testified that Sarah's injuries were not consistent
with or caused by medical intervention or the administration of
CPR. Rather, Uptegrove believed the bruises to Sarah's neck were
caused prior to her death and resulted from significant
compressional force or a blunt force being applied to her neck. Dr.
Lee, an expert in pathology, also testified that the injuries Sarah
sustained to her neck, scalp, and forehead were atypical to a natural
drowning event and were not attributable to medical intervention.
Lee testified that the bruising around Sarah's neck was caused by
blunt force injury or compressive force. From this testimony, the
jury could have drawn a reasonable inference that the bruising
around Sarah's neck occurred when Widmer used compressive force
to hold Sarah's head underwater, thereby causing her death.
[*P102] To support his argument that he did not forcibly drown
Sarah, Widmer presented evidence and testimony that the injuries
Sarah sustained occurred during the resuscitative and intubation
processes. Dr. Smile, an expert in emergency medicine, testified
that injuries to the neck are commonly observed when the Sellick
70

maneuver is utilized during difficult intubations. Dr. Balko and Dr.
Sptiz, expert pathologists, testified that they would have ruled
Sarah's death “undetermined” rather than a “homicide” because they
could not rule out prolonged and rigorous CPR as the cause of
Sarah's injuries.
[*P103] In further support of his contention that Sarah did not die
by a forcible drowning, Widmer argued Sarah either drowned after
suffering a medical event caused by a previously unknown
neurological or cardiovascular disease or defect or drowned after
falling asleep in the bathtub. Widmer presented evidence that Sarah
had a childhood heart murmur that had never been corrected by
surgery. He also presented evidence that Sarah sometimes suffered
severe stomachaches and headaches, and, on the day of her death,
Sarah had complained to a co-worker that she had a headache and
stomachache. Additionally, Widmer presented evidence that Sarah
had been known to fall asleep at “odd” times and places, including
at football tailgating events and in a bar at a table full of talking
women.
[*P104] The state, however, presented evidence that cast doubt on
Widmer's version of the events that led to Sarah's death. The state
presented evidence that Widmer attempted to establish Sarah's death
as an accidental drowning that occurred when she fell asleep in the
bathtub. In his 911 phone call, Widmer told the dispatcher that
Sarah “falls asleep in the tub all the time.” In a statement made to
Doyle Burke, the chief investigator for the Warren County
Coroner's Office, Widmer said that when Sarah went upstairs to take
a bath on the evening of her death, he had been “afraid she may fall
asleep in the tub.” Widmer then admitted to Burke that Sarah had
never fallen asleep in the tub before. The jury was entitled to weigh
this evidence in determining whether Sarah commonly fell asleep in
the bathtub or whether Widmer made such statements in an effort to
conceal his actions in forcibly drowning Sarah.
[*P105] The state also presented evidence which permitted the jury
to determine whether it believed Widmer staged Sarah's death to
look like an accidental drowning. In doing so, the jury was entitled
to consider Widmer's inconsistent statements about how he
discovered Sarah—face-down, as he told the 911 dispatcher, or
face-up, as he told the emergency room charting nurse. The jury was
also entitled to consider the testimony of emergency personnel who
responded to the Widmers' home. Although Widmer's 911 phone
call indicated Sarah had been found in a bathtub full of water,
emergency personnel who responded to the scene within minutes of
71

the phone call testified that they found Sarah's body dry. These first
responders also testified that the carpet in the master bedroom where
Sarah had been lying was dry, except for the areas where the foamy,
bloody discharge was observed. Officers who secured and
investigated the scene testified that the bathroom floor and items
lying on the bathroom floor were also dry. A used Lysol wipe had
been discovered in the bathroom, and there was testimony from
Hillard that the bathtub appeared to have been wiped down. There
was also testimony from Crew that Widmer had admitted he had
tried to “cover up” Sarah's death, and had wiped up the water on the
bathroom floor with towels before placing the 911 call. From this
evidence, the jury could have determined that Widmer staged
Sarah's death to look like an accident rather than a forcible
drowning.
[*P106] Although Widmer presented an alternative theory as to the
manner of Sarah's death and provided contradicting medical
testimony about the cause of Sarah's injuries, the jury was entitled to
find the state's experts' testimony more credible. Not only did the
state present expert testimony that Sarah's bruising was caused by
compressive force, but the state also presented testimony that Sarah
was a healthy 24–year–old woman who had never had a seizure or
been diagnosed with epilepsy. The state further presented expert
testimony that Sarah's childhood heart murmur was an “innocent
heart murmur” that typically disappears on its own within a few
months or a year of life. Experts testifying for the state also testified
that there was no evidence of a cardiovascular or neurological
disease or defect which caused or contributed to Sarah's death.
Uptegrove testified he had not discovered anything out of the
ordinary when examining Sarah's heart and brain. Further, Dr.
Moore, an expert in neurology, neurophysiology, and sleep
medicine, testified that individuals do not typically fall asleep and
drown in bathtubs as hypoxia causes one to wake up and start
breathing once the individual has been deprived of oxygen. Moore
also testified that a person who experiences a seizure while seated in
a bathtub would not “flip over” or fall face-down into the bathwater
as the stiffening and shaking that occurs during a seizure prevents an
individual from falling in that direction. Based on this testimony, the
jury was entitled to find that Sarah's death was caused by a forcible
drowning that occurred when Widmer used compressive force to
hold Sarah's head underwater and not by some unknown and
undiscovered medical event or the act of falling asleep in the
bathtub.
[*P107] Furthermore, contrary to Widmer's argument, the state also
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presented sufficient evidence to establish Widmer acted with
purpose in killing Sarah. On behalf of the state, Crew testified that
Widmer admitted to punching Sarah in the chest before blacking
out, regaining consciousness, and finding Sarah on the floor, not
breathing, with her hair wet. Crew further testified that prior to
Sarah's death, Widmer had threatened Sarah that “[n]obody leaves
me, nobody ever leaves me and I mean nobody.” In determining
what weight, if any, to give to Crew's testimony, the jury was
permitted to reject those portions of her testimony that it did not find
credible. See In re S.C.T., 12th Dist. No. CA2004–04–095,
2005-Ohio-2498, ¶ 24 (finding jurors, as the trier of fact, are “free to
believe all, part, or none of the testimony of each witness”). Given
the evidence presented, the jury was entitled to reject Crew's
testimony that Widmer “blacked out” and caused Sarah's death.
Rather, the jury was entitled to believe that Widmer purposefully
and forcibly held Sarah's head underwater as a means of killing her
and preventing her from leaving him.
[*P108] As “[t]he law has long recognized * * * intent, lying as it
does within the privacy of a person's own thoughts, is not
susceptible of objective proof. The law recognizes that intent can be
determined from the surrounding facts and circumstances, and
persons are presumed to have intended the natural, reasonable and
probable consequences of their voluntary acts.” State v. Gardner, 74
Ohio St.3d 49, 60 (1995). Given the aforementioned facts and
circumstances surrounding Sarah's death, the jury could have
determined that Widmer purposefully drowned Sarah with the intent
of causing her death.
[*P109] Based on the foregoing we find that there was credible
evidence that Widmer purposely caused Sarah's death. The jury
weighed the evidence and came to the conclusion, beyond a
reasonable doubt, that Widmer was responsible for the murder of his
wife. The jury chose to credit the witnesses presented by the state
and believe the prosecution's version of events. The jury was in the
best position to hear the witnesses speak and view their demeanor,
and we find no indication that the jury lost its way or created a
manifest miscarriage of justice in finding Widmer guilty of murder.
Thus, Widmer's conviction is not against the manifest weight of the
evidence. Having found Widmer's conviction was not against the
manifest weight of the evidence, it follows that the evidence was
sufficient to support the conviction.
[*P110] Widmer's fifth and sixth assignments of error are hereby
73

overruled.
Widmer, 2012-Ohio-4342.
With respect to Mr. Widmer’s Fourth Ground for Relief, the Court notes that, with the
exception of citing Tibbs v. Florida, 457 U.S. 31, 45 (1982) and Jackson, supra, for the federal
standard for a sufficiency of the evidence claim, Mr. Widmer has based his substantive arguments
entirely on state law (See Petition, ECF No. 1, PageID 95-98). It is therefore, questionable at best
as to whether Mr. Widmer has “federalized” his claim. As previously and subsequently noted,
federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §
2254. Mr. Widmer’s argument is, simply stated, that the state court erred in applying state law.
That claim is not cognizable in habeas. Nevertheless, giving Mr. Widmer the benefit of the doubt
with respect to how he has couched his claim, this Court will address his claim.
In support of his Fourth and Fifth Grounds for Relief, Mr. Widmer essentially argues that
his conviction is based on insufficient evidence (Fourth Ground) and against the manifest weight
of the evidence (Fifth Ground) (Petition, ECF No. 1, PageID 95-100). It appears that Mr.
Widmer’s position is that in considering the evidence, the jury, and then the state court of appeals,
simply got it wrong. Id.
The Warden argues in opposition to Mr. Widmer’s Fourth Ground that the state courts
correctly determined that Mr. Widmer has failed to satisfy the “rational trier of fact” standard of
Jackson v. Virginia, 443 U.S. 307 (1979) (Return of Writ, ECF No. 22, PageID 10120-29). In
opposition to Mr. Widmer’s Fifth Ground, the Warden argues that a manifest weight of the
evidence claim is not cognizable in habeas. Id.
In his Reply, Mr. Widmer does not specifically address the Warden’s arguments but rather

74

relies on the arguments he has raised in his Petition (Traverse, ECF No. 25, PageID 10247).
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson,
supra. Jackson claims face a high bar in federal habeas proceedings because they are subject to
two layers of judicial deference. Coleman v. Johnson, 566 U.S. ___, ___, 132 S.Ct. 2060, 2062
(2012).
The burden that Snyder must shoulder in demonstrating that his
convictions were not supported by sufficient evidence is difficult: a
conviction is supported by sufficient evidence if, “after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jakson v. Virginia, 443 U.S. 307, 319
(1979). But because Snyder's claims arise in the context of a § 2254
petition, our analysis must be refracted through yet another filter of
deference. See Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012)
(per curiam); Sanburn v. Parker, 629 F.3d 554, 577 (6th Cir. 2010).
We may grant relief on his claims only if the state court's
adjudication of them was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). There
is a difference between being wrong and being unreasonably wrong.
White v. Woodall, 134 S.Ct. 1697, 1702 (2014); Harrington v.
Richter, 562 U.S. 86, 102-03 (2011). To prevail under § 2254, the
petitioner “must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103; Williams v. Bauman, 759 F.3d 630, 635 (6th Cir.
2014).
Snyder v. Marion Correctional Inst., Warden, 608 Fed. Appx. 325, 327 (6th Cir. 2015).
As noted above, the evidence is to be viewed in the light most favorable to the prosecution.
See Jackson, 443 U.S. at 319. In addition, all reasonable inferences must be drawn in favor of the
prosecution. See Riley v. Berghuis, 481 F.3d 315, 321 (6th Cir. 2007), citing Jackson, 443 U.S. at

75

319. A state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S.
74, 76 (2005)(citations omitted).
Mr. Widmer was convicted of murder in violation of Ohio Revised Code § 2903.02(A),
which provides that “[n]o person shall purposely cause the death of another.” Under Ohio law, a
person acts purposely “when it is his specific intention to cause a certain result.” O.R.C. §
2901.22(A).
The state introduced evidence, and Mr. Widmer does not dispute, that only he and Sarah
Widmer were present in their home on the evening that she died. In addition, the state’s evidence
was sufficient to permit the jury to conclude that she died by forcible drowning. Dr. Russell
Uptegrove who performed the autopsy on Sarah Widmer, testified that her injuries were not
consistent with or caused by medical intervention such as the performance or C.P.R. (Tr., ECF No.
21-2, PageID 3285-3397). Dr. Uptgrove also testified that the bruises to Sarah’s neck were
caused prior to her death and were the result of significant compressional force or a blunt force
that was applied to her neck. Id. In addition, Dr. Jeffrey Lee, an expert in pathology testified that,
although he did not participate in Ms. Widmer’s autopsy, he reviewed the autopsy report and
autopsy photographs, Sarah Widmer’s emergency room record including the emergency medical
technician run sheet from the night she died, her medical records dating back to when she was a
teenager, and several statements written by police officers. Id. at PageID 3455-3522. Dr. Lee
testified that the injuries she sustained to her neck, scalp, and forehead were atypical to a natural
drowning event and were not attributable to medical intervention. Id. Dr. Lee testified further that
the bruising around Sarah Widmer’s neck was caused by blunt force injury or a compressive force.
Id.
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The state also introduced evidence of Mr. Widmer’s conflicting statements to various
individuals. For example, when Mr. Widmer called 911, he told the dispatcher that Sarah “falls
asleep in the tub all the time.” (Tr., ECF No. 21-2, PageID 2865-75)(Testimony of dispatcher Ron
Kronenberger). Mr. Widmer told the chief investigator for the Warren County Coroner’s Officer
that on the night of her death, when Sarah went upstairs to take a bath, he was afraid that she would
fall asleep in the tub. Id. at PageID 3153-3185 (Testimony of Doyle Burke). However, Mr.
Widmer also told the investigator that Sarah had never fallen asleep in the tub before. Id.
Additionally, Mr. Widmer told the dispatcher that he had found Sarah in the tub face-down. Id. at
PageID 2865-2875 (Kronenberger testimony). Yet he told the emergency room charting nurse that
he had found Sarah in the tub face-up. Id. at PageID 3144-52 (Testimony of Amy Costello).
Finally, Mr. Widmer told the dispatcher that he had found Sarah in a bathtub full of water. Id. at
PageID 2865-2875 (Kronenberger testimony).

But the first responders who arrived at the

Widmer home within minutes of Mr. Widmer’s 911 call testified that Sarah’s body was dry, the
carpet in the area where Sarah was laying was generally dry, and that items laying on the bathroom
floor were dry. Id. at PageID 2875-2905 (Testimony of Deputy Sheriff Steve Bishop); Id. at
PageID 2956-2983 (Testimony of Firefighter/EMT Jeff Teague); Id. at PageID 2984-3001
(Testimony of Hamilton Township Police Sergeant Lisa Elliott).
Mr. Widmer introduced evidence to support his theory that the injuries Sarah Widmer
sustained occurred during the attempts to resuscitate her, including the attempts to intubate her.
For example, Dr. David Smile, an expert in emergency medicine, testified that injuries to the neck
are common when the Sellick maneuver is used during difficult intubations. Id. at PageID
3681-3723. Dr. Werner Spitz, an expert in pathology who reviewed relevant documents, testified
that he would have not ruled Sarah Widmer’s death a “homicide” but rather “undetermined”
77

because he could not rule out prolonged and vigorous cardiopulmonary resuscitation as the cause
of her injuries. Id. at PageID 3541-3605. Dr. Michael Balko, also a pathologist, testified that he
too would have classified the cause of Sarah Widmer’s death as “undetermined” rather than a
“homicide” for the same reasons Dr. Smile identified. Id. at PageID 3724-3760.
In support of his argument that Ms. Widmer died accidently when she fell asleep in the
bathtub, Mr. Widmer introduced testimony that Sarah was known to fall asleep at “odd times” and
places including while in the bathtub, in a bar filled with talking people, and at a tailgate party. Id.
at PageID 3606-3615 (Testimony of Sarah Widmer’s friend Katherine Cook); Id. at PageID
3663-3669 (Testimony of Mr. Widmer’s friend Zachary Zoz). In support of his argument that
Sarah Widmer’s drowning death was the result of a previously unknown medical condition Mr.
Widmer introduced evidence that Sarah had frequently complained of headaches and
stomachaches. See, e.g., Id. at PageID 3523-3534 (Testimony of Sarah Widmer’s friend Amy
Karabaic).
First, the Court notes that while the state court did not specifically cite Jackson, supra, it
applied an identical standard. Specifically, the state appellate court stated that after reviewing the
evidence, it “could not say that the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed.” Widmer, 2012-Ohio-4342, ¶ 100.
The state court then reviewed the evidence and concluded that the “state presented testimony and
evidence from which the jury could have found the essential elements of murder proven beyond a
reasonable doubt.” Id. at ¶¶ 101-109.
In view of this Court’s review of the above referenced testimony, it cannot say that the state
court of appeals erred. The state presented evidence that Ms. Widmer’s injuries were caused by
blunt or compressive force. Although Mr. Widmer presented evidence in an effort to rebut that
78

testimony, the jury was entitled to find the state’s evidence more credible. Having determined
that the state’s evidence was more credible and considering that Mr. Widmer and Sarah Widmer
were the only people in the Widmers’ home the night of Sarah’s death, the jury could properly
conclude that Mr. Widmer applied that blunt or compressive force intentionally causing Sarah
Widmer’s death. The jury was entitled to consider the state’s evidence of the conflicting
statements Mr. Widmer gave to people following Sarah Widmer’s death as well as the evidence
that simply did not support Mr. Widmer’s version of what occurred the night of her death.
This Court concludes that after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson, supra. Therefore, the state court’s decision is not contrary to nor an
unreasonable application of clearly established law. Accordingly, Mr. Widmer’s Fourth Ground
for Relief should be rejected.
In his Fifth Ground for Relief, Mr. Widmer claims that his conviction is against the
manifest weight of the evidence. As noted, the state court addressed this claim together with Mr.
Widmer’s insufficient evidence claim.
In Ohio, a claim that a verdict is against the manifest weight of the evidence requires the
appellate court to act as a thirteenth juror and to review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving
conflicts in the evidence, “the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.” State v. Martin, 20 Ohio
App.3d 172, 175 (Ct. App. Hamilton Cnty., 1983); State v. Moore, No. CA2014-10-121, 2015 WL
3824377 at *2 (Ct. App. Warren Cnty., June 22, 2015). “Ohio’s ‘manifest weight of the
evidence’ doctrine is a state law issue.” Hill v. Sheldon, No. 1:11-CV-02602, 2014 WL 796803 at
79

*2 (N.D. Ohio, Feb. 27, 2014), citing Nash v. Eberlin, 258 F. Appx 761 (6th Cir. 2007); see also,
Ob’Saint v. Warden, Toledo Correctional Inst., 675 F. Supp. 2d 827, 832 (S.D.Ohio 2009).
As this Court recently stated:
Federal habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran,
562 U.S. 1 … (2010); Lewis v. Jeffers, 497 U.S. 764, 780 … (1990);
Smith v. Phillips, 455 U.S. 209 … (1982); Barclay v. Florida, 463
U.S. 939 (1983). “[I]t is not the province of a federal habeas court to
reexamine state court determinations on state law questions. In
conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 …
(1991), A weight of the evidence claim is not a federal
constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir.
1986).
Therefore, Davis’ Second Ground for Relief [manifest weight of the
evidence claim] should be dismissed for failure to state a claim upon
which habeas corpus relief can be granted.
Davis v. Warden, London Correctional Inst., No. 1:14-cv-244, 2015 WL 3466857 at *5 (S.D. Ohio
June 1, 2015)(Merz, M.J.), Report and Recommendations adopted, 2015 WL 4112140 (S.D. Ohio
July 7, 2015).
Mr. Widmer’s Fifth Ground for Relief, his claim that the verdict is against the manifest
weight of the evidence, is not cognizable in habeas and should be dismissed.

SIXTH AND SEVENTH GROUNDS FOR RELIEF

Mr. Widmer’s Sixth and Seventh Grounds for Relief involve the background of Lt. Jeff
Braley, a detective lieutenant for the Hamilton Township Police Department who investigated
Sarah Widmer’s death.

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In support of his Sixth and Seventh Grounds for Relief, Mr. Widmer argues that the state
courts: (1) ruled contrary to clearly established U.S. Supreme Court precedent in concluding that
the prosecutor must have actual knowledge of false testimony or undisclosed information in order
to meet the Napue [v. Illinois, 360 U.S. 264 (1959)] standard or result in a due process violation;
(2) unreasonably determined the facts in concluding that Lt. Braley testified to a lack of memory in
the May 5, 2010, hearing and did not make any false statements, especially in light of its own prior
decision on this matter; and (3) unreasonably applied or ruled contrary to clearly established
federal law and unreasonably determined the facts when it concluded that Lt. Braley’s testimony in
the May 5, 2010, hearing pertained to a collateral matter and thus, could not amount to perjury due
to the lack of “materiality” (Petition, ECF No. 1, PageID 100-29). Mr. Widmer also argues that
the state failed to disclose the various problems surrounding Lt. Braley’s credibility, delayed its
official DD&M investigation, and failed to disclose the results of the Hamilton Township
Trustees’ 2010 internal investigation of Lt. Braley, each resulting in Brady [v. Maryland, 373 U.S.
8 (1963)] and Kyles v. Whitley [514 U.S. 419 (1995)] violations and entitling him to relief. Id. at
PageID 130-37.
In opposition, the Warden argues that to the extent that the state appellate court’s decision
relies on Ohio law, this Court is bound by the Ohio court’s interpretation of state law (Return of
Writ, ECF No. 22, PageID 10161-62). The Warden also argues that Brady and Napue and their
progeny all require a showing that the disputed evidence, that is, the evidence related to Lt.
Braley’s background, was material to Mr. Widmer’s guilt or innocence, a showing which Mr.
Widmer failed to make. Id. The Warden argues further that the absence during trial of the
evidence about Lt. Braley’s background does not cast doubt on Mr. Widmer’s conviction. Id.
In his Traverse, Mr. Widmer essentially argues that the evidence about Lt. Braley’s
81

background, particularly his alleged perjured testimony during the May, 2010, hearing with
respect to the job application and his alleged history of lying about his background and
qualifications, was relevant to the integrity of the investigation into Sarah Widmer’s death
(Traverse, ECF No. 25, PageID 10230-36). Mr. Widmer’s position is that the state courts failed
to apply the proper Napue standard and that he was prevented from presenting a compelling
Kyles-themed defense questioning the integrity of the investigation into Sarah Widmer’s death. Id.
Mr. Widmer raised the issue of Lt. Braley’s background in his direct appeal and the state
court addressed it as follows:
[*P111] Assignment of Error No. 4:
[*P112] DUE PROCESS AND SIXTH AMENDMENT
VIOLATIONS OCCURRED WHEN THE TRIAL COURT: (1)
QUASHED THE DEFENSE SUBPOENAS SEEKING TO
FURTHER INVESTIGATE LT. BRALEY'S BACKGROUND
FOLLOWING THE MAY 5, 2010 HEARING; AND (2) DENIED
THE JANUARY 2011 DEFENSE MOTION REQUESTING
PERMISSION TO CONFRONT LT. BRALEY DURING TRIAL
ABOUT HIS BACKGROUND.
[*P113] In his fourth assignment of error, Widmer contends that the
trial court erred when it quashed the defense's subpoenas seeking to
obtain further information about Lieutenant Braley's education and
employment background and denied the defense motion to confront
Braley during trial about his background. Widmer asserts that the
trial court's actions in quashing the subpoenas and precluding
cross-examination about Braley's background effectively denied
him his right to present a “Kyles defense.” Widmer further contends
that the trial court's actions denied him his Sixth Amendment right
to meaningfully confront witnesses who testify against him.
[*P114] In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995),
the United States Supreme Court reversed a murder conviction upon
discovering that the state had withheld evidence in violation of
Brady v. Maryland, 373 U.S. 8, 87, 83 S.Ct. 1197 (1963). The
evidence withheld by the state included, among other things,
inconsistent eyewitness statements and inconsistent statements
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made by an “associate” of the defendant who allegedly had
knowledge of the crime and access to the location where items taken
from the victim were found. The Supreme Court held that disclosure
of the withheld evidence undermined confidence in the outcome of
the trial court and therefore made a different result reasonably
probable. Kyles at 441. In reaching this determination, the Supreme
Court noted that the withheld evidence would have “raised
opportunities to attack not only the probative value of crucial
physical evidence and the circumstances in which it was found, but
the thoroughness and even the good faith of the investigation.” Id. at
445. Furthermore, the Supreme Court stated that the evidence
withheld denied the defense the ability to “undermine the ostensible
integrity of the [police] investigation” and “[lay] the foundation for
a vigorous argument that the police had been guilty of negligence.”
Id. at 447–448.
[*P115] Relying on the Supreme Court's decision in Kyles, Widmer
argues that the trial court should not have quashed the subpoenas or
denied him the right to question Braley about his background at trial
because information may have come to light that would have
allowed Widmer to attack the thoroughness and good faith of the
police investigation into Sarah's death. Specifically, Widmer
contends the information that Braley lied [about] on an application
for employment with Hamilton Township could have been used not
only to attack Braley's credibility, but also as a means of “insert[ing]
Braley's dishonesty into the case to challenge the integrity of: (1) the
processing and collecting of evidence * * * including the * * * tub;
(2) the Coroner's conclusion, given Braley's attendance and
participation in the autopsy; and (3) the decision to charge Widmer,
in which Braley participated.”
[*P116] We begin our analysis by determining whether the trial
court properly granted the motions to quash the subpoenas duces
tecum.
A. Motions to Quash the Subpoenas Duces Tecum
[*P117] Sometime prior to March 2010, the defense obtained a
copy of a Hamilton Township Division of Fire and Emergency
Services application form that had purportedly been completed by
Braley and placed in his personnel file. The application form was
dated June 25, 1996. This application form allegedly contained
information about Braley's education and former employment
experiences. With respect to the education portion of the form, the
application indicated that Braley had received a master's degree
83

after completing two years of schooling at Wright State University
and two years of schooling at a college in Florida. With respect to
the employment experience portion of the form, the application
indicated that Braley had been previously employed by General
Electric, the United States Postal Service, the Loveland Heights
Church of Christ, and Tufts Schildmeyer Funeral Home. The form
stated that Braley had performed engineering work for General
Electric from 1985 to 1993, had worked with the U.S. Postal Service
as a postal inspector from 1993 to October 1995, had served as a
minster for the Loveland Heights Church of Christ since October
1990, and had served as the Director of Aftercare Programs at Tufts
since January 1996.
[*P118] Believing that some of the information contained on the
application form had been fabricated by Braley, Widmer served
subpoenas duces tecum on General Electric, the U.S. Postal Service,
and Hamilton Township to obtain information about Braley's
employment experiences. Both the state and Braley filed motions to
quash the subpoenas. The trial court held a hearing on the motions to
quash on April 28, 2010, and May 5, 2010. Among those who
testified at the hearing were Melissa Brock, the Human Resources
Manager for Hamilton Township, Chief Frank Richardson and
Detective Paul Bailey of the Hamilton Township Police
Department, Richard Shipp, a forensic document examiner, and
Braley.
[*P119] Brock testified that she is the current custodian of
personnel files for Hamilton Township. She further explained that
the police department's personnel records were previously
maintained by the chief of police. Brock stated that Braley's
personnel file contained an original application for employment
dated June 25, 1996. However, Brock admitted that there was no
record of Braley being associated with Hamilton Township in 1996.
Rather, records indicated that Braley was “brought into the
township” in May 1997 as a volunteer chaplain for the fire
department. Brock could not tell who authored the June 25, 1996
application.
[*P120] Brock also testified that over the past few years she had
received numerous requests for copies of Braley's personnel file.
Among those individuals who had requested and received a copy of
Braley's file was former police chief Gene Duvelius, who left the
department in 2005.
[*P121] Chief Richardson testified that he took over as chief of
84

police in 2005. He stated that animosity existed between Duvelius
and Braley because Braley had investigated allegations of
wrongdoing involving Duvelius. Richardson testified that he was
aware that Duvelius asked Detective Bailey to investigate Braley's
background, specifically whether Braley had been honorably
discharged from his service with the United States Air Force.
[*P122] Bailey admitted that Duvelius asked him to do “some
background investigation” into Braley's past. Specifically, Duvelius
asked Bailey to look into Braley's pre-employment application
because he did not believe Braley's military, education, and
previous employment experiences were accurately detailed. Bailey
testified that his investigation led to information that Braley had
been honorably discharged from the Air Force.
[*P123] Braley testified that he first learned of “the existence of
Hamilton Township” in 1997, a year after the June 25, 1996
application had been completed, when he took an unpaid, volunteer
position as a chaplain for the fire department. He testified that he did
not fill out an application for this position. The first time he became
aware of the disputed June 25, 1996 application was in October
2008. Braley testified that although the signature on the application
looks similar to his own signature, he did not recall signing the
form. Further, he did not recall “at all” filling out the application.
Braley stated that the form contains some accurate and inaccurate
information. Braley testified that he did not have a master's degree
and never attended a college in Florida. Further, while he had
worked for the U.S. Postal Service, he was only employed by them
for a few weeks and only as a clerk, not as an inspector. Braley also
testified that he had not worked as an engineer with General
Electric, but rather “ran C & C Machinery for an engineering
group.”
[*P124] Braley testified that he was aware that former police chief
Duvelius felt animosity towards him due to his role in getting
Duvelius terminated from the police force. Braley stated that he was
asked to investigate Duvelius, and this investigation ultimately led
to a federal lawsuit against Duvelius. Braley further testified that the
reason he did not seek to clear up the existence of the June 25, 1996
application after having learned of its existence in 2008 was because
doing so would have required him to go before the Hamilton
Township Board of Trustees. By this time, Duvelius had been
elected as a trustee. Braley testified that he did not think he could go
before the trustees and request that the application be removed from
his record because Duvelius had made public statements about
85

having him fired.
[*P125] Finally, Braley testified that he had undergone background
checks that he knew he had passed. Braley testified that he passed an
11–month background check to receive national security clearance
to be hired by the FBI's Cincinnati Field Office's task force.
[*P126] Shipp, a forensic document examiner who was retained to
do a handwriting comparison and analysis, testified that he had
compared the June 25, 1996 application to “known documents”
containing Braley's handwriting. These known documents included:
a sheet of paper from 2010 that Braley had written and printed his
name on numerous times; a 2005 Loveland income tax return signed
by Braley; a sofa express invoice signed by Braley; Braley's W–4's
from 2000 and 2004; performance reviews from 2005 and 2007
signed by Braley; and an April 2002 employment verification
request signed by Braley. Shipp testified that although he was able
to do a comparison with the June 25, 1996 application, he was not
satisfied with the quantity and quality of the “known documents”
that he had for comparison with the application because the “known
documents” did not have like words and letter combinations.
Nonetheless, Shipp was able to reach the “probable opinion that
[Braley] signed [the application].” However, Shipp's opinion was
inconclusive as to whether Braley printed the information contained
within the application. He stated, “I wasn't satisfied with enough
agreement or differences to identify or eliminate [Braley] as the
printer of that document and that's why I say I'm inconclusive.”
[*P127] After hearing the foregoing testimony, the trial court
granted Braley's and the state's motions to quash Widmer's
subpoenas duces tecum. In reaching its decision, the court stated the
following:
Okay. I'm going to issue my ruling without argument and
that is I'm going to sustain the motion[s] to quash. I feel that
the application we're talking about is, first of all, it's 14 years
removed, at best. If this was a criminal felony we couldn't
get into it being more than ten years.
It seems unlikely looking at the application for employment
* * * that somebody would enhance his application on a non
paid position over what it would be in seeking employment
for a paid position and just there are significant questions as
to the veracity outside of the fact that we get into a battle as
we have for a full day that would be misleading to the jury,
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and the court would make a determination that any probative
value would be outweighed by undue prejudice.
What was the oft to be explored and we would require the
prohibited induction of astringent evidence under 608, so I
would grant the motion[s] to quash the various subpoenas
that have been issued in the case * * *.
[*P128] Crim.R. 17(C) confers upon the trial court the discretion to
quash or modify a subpoena, on motion of a party, if compliance
would be “unreasonable or oppressive.” State v. Baker, 12th Dist.
No. CA2009–06–079, 2010-Ohio-1289, ¶ 15. A trial court's
decision on a motion to quash is reviewed for an abuse of discretion.
Id. As previously stated, an abuse of discretion implies more than an
error of law or judgment; it suggests that the trial court acted in an
unreasonable, arbitrary, or unconscionable manner. State v. Barnes,
2011-Ohio-5226 at ¶ 23.
[*P129] Pursuant to Crim.R. 17(C), when deciding a motion to
quash a subpoena duces tecum prior to trial, a trial court must hold
an evidentiary hearing. Baker at ¶ 21, citing In re Subpoena Duces
Tecum Served Upon Atty. Potts, 100 Ohio St.3d 97,
2003-Ohio-5234, ¶ 16. At the hearing, the burden is on the
proponent of the subpoena to demonstrate that the subpoena is not
unreasonable or oppressive. In re Potts, 2003-Ohio-2534 at ¶ 16.
The proponent accomplishes this by showing:
(1) that the documents are evidentiary and relevant; (2) that
they are not otherwise procurable reasonably in advance of
trial by exercise of due diligence; (3) that the party cannot
properly prepare for trial without such production and
inspection in advance of trial and that the failure to obtain
such inspection may tend unreasonably to delay the trial;
and (4) that the application is made in good faith and is not
intended as a general “fishing expedition.”
Id., quoting United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct.
3090 (1974).
[*P130] After a careful review of the record, we find that the trial
court did not abuse its discretion when it granted the motions to
quash Widmer's subpoenas. Widmer failed to demonstrate that the
subpoenas were not unreasonable or oppressive as he did not show
that the information sought was relevant and evidentiary. Braley's
testimony that he had been unaware of Hamilton Township's
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existence until 1997 when he took an unpaid, volunteer position as
chaplain without having filled out an employment application,
Brock's testimony that there was no record of Braley being
associated with the township in 1996, and Shipp's testimony that he
could not determine whether Braley printed the information
contained within the June 25, 1996 application support the trial
court's decision to quash Widmer's subpoenas. The trial court's
determination that the disputed application (1) contained
information that was more than 14 years removed, (2) was of
unknown and questionable origin, and (3) was unlikely to lead to
admissible evidence given the trial court's discretion under Evid.R.
608 to limit character evidence that would mislead the jury or cause
confusion of the issues, was supported by the evidence and
testimony presented at the evidentiary hearing. We therefore affirm
the trial court's decision to grant the motions to quash Widmer's
subpoenas duces tecum.
B. Motion to Allow Confrontation of Braley
[*P131] On January 11, 2011, Widmer filed a “Motion to Allow
Confrontation of Lead Investigator” seeking the right to confront
and cross-examine Braley at trial with the June 25, 1996 application
form found in his Hamilton Township personnel file. In his motion,
Widmer stated that the Ohio Bureau of Identification and
Investigation (BCI) had analyzed and compared the writing and
signature on the June 25, 1996 application (item # 1) with known
writing samples from Braley (item # 2) and concluded that Braley
was the author of the application. BCI's report specifically stated as
follows:
Comparison of the questioned writing in item # 1 with the
samples in item # 2 revealed that the writer of item # 2 filled
in the application and signed the letter in item # 1.
Instrumental analysis of the documents in item # 1 did not
reveal evidence of an alteration or the presence of more than
one ink pen to fill in the application. A lack of evidence does
not prove that only one ink pen was used or that no
alterations could have occurred, only that there is no
evidence of an alteration.FN8
FN8. BCI's report was not provided to the trial court by
Widmer or the state. However, both parties quoted identical
language to the trial court regarding BCI's analysis of the
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June 25, 1996 application. The language quoted in the body
of our decision is the same language quoted by Widmer in
his Motion to Allow Confrontation of Lead Investigator, by
the state in its Memorandum in Opposition to Defendant's
Motion to Allow Confrontation of Lead Investigator, and by
the trial court in its January 21, 2011 Order denying
Widmer's Motion to Allow Confrontation of Lead
Investigator.
Relying on BCI's report, Widmer claimed that the June 25, 1996
application was authenticated as having been filled out by Braley
and was therefore admissible as a specific instance of conduct
demonstrating Braley's character for untruthfulness, pursuant to
Evid.R. 608(B). FN9
FN9. In his Motion to Allow Confrontation of the Lead
Investigator, Widmer also argued that the June 25, 1996
application was admissible as a party-opponent admission
under Evid.R. 801(D)(2)(b). Widmer did not advance this
argument in the present appeal. Even if he had, we find State
v. Stacy, 12th Dist. No. CA2006–02–021, 2007-Ohio-6744,
to be controlling. An admission or statement by a law
enforcement officer is not admissible against the
prosecution as an admission of a party-opponent. Id. at ¶ 14.
[*P132] The state filed a memorandum opposing Widmer's request
to allow cross-examination of Braley with the June 25, 1996
application form on the basis that the disputed document was of
questionable authenticity and was not clearly probative for
truthfulness under Evid.R. 608(B).
The trial court issued a
decision on January 21, 2011, denying Widmer's Motion to Allow
Confrontation of Lead Investigator. In reaching its decision, the trial
court determined the authenticity of the document remained in
dispute and the document could not be introduced into evidence
because Evid.R. 608(B) prevents a party from introducing extrinsic
evidence to impeach a witness on a collateral matter not material to
any issue in the trial. The trial court also determined that permitting
cross-examination about the application would “evolve into a trial
within a trial—a parade of witnesses, exhibits and thirteen years of
events to attack or bolster the witness and/or the veracity of the
document.” The trial court ultimately concluded that any probative
value derived from questioning Braley about the June 25, 1996
application was substantially outweighed by the danger of
misleading the jury or causing confusion of the issues.
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[*P133] Whether a defendant is permitted to question a witness
about prior instances of conduct pursuant to Evid.R. 608(B) is a
decision that rests in the sound discretion of the trial court, and it
will not be reversed absent an abuse of discretion. State v. Moshos,
12th Dist. No. CA2009–06–008, 2010-Ohio_735, ¶18. See also
State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 45 (“The
admission or exclusion of relevant evidence rests within the sound
discretion of the trial court”).
[*P134] Evid.R. 608(B) provides in relevant part:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness's character for
truthfulness * * * may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if clearly
probative of truthfulness or untruthfulness, be inquired into
on cross-examination of the witness (1) concerning the
witness's character for truthfulness or untruthfulness * * *.
Under this rule, particular instances of conduct, though not the
subject of a criminal conviction, may be inquired into on
cross-examination of a principal witness. State v. Miller, 12th Dist.
No. CA97-10-050, 1998 WL 468802, *3 (Aug. 10, 1008), citing
State v. Williams, 1 Ohio App.3d 156, 157 (10th Dist. 1981).
However, “because the potential for abuse is high, through unfair
prejudice, confusion of the issues, and misleading of the jury,
safeguards are erected in the form of requiring that the instances
inquired into must be clearly probative of truthfulness or
untruthfulness.” (Emphasis sic.) Williams at 157. FN10 “Evid.R.
608(B) * * * protects a legitimate state interest in preventing
criminal trials from bogging down in matters collateral to the crime
with which the defendant was charged.” Moshos, 2010-Ohio-735 at
¶ 18.
FN10. We note that Evid.R. 608(B) is nearly identical to
Fed.R.Evid. 608(b). However, unlike the federal rule, Ohio
Evid.R. 608(B) contains the word “clearly.” Therefore, Ohio
Evid.R. 608(B) “requires a high degree of probative value of
instances of prior conduct as to truthfulness or
untruthfulness of the witness before the court, in the exercise
of its discretion, will allow cross-examination as to such
prior conduct for purposes of attacking the credibility of the
witness.” Evid.R. 608, Staff Notes.

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[*P135] In this case, under the totality of the circumstances, we are
unable to say that the trial court abused its discretion in precluding
the defense from questioning Braley about the June 25, 1996
application. The testimony sought to be elicited concerned a
disputed application completed more than 14 years before trial. In
attempting to ascertain the veracity of the application, the trial court
held a two-day evidentiary hearing where more than ten witnesses
testified about their knowledge of the application or their
knowledge of Braley's employment background. At the conclusion
of this hearing, the authentic nature of the application and the author
of the application were questions that remained at issue. The BCI
report, which indicated “[a] lack of evidence does not prove that
only one ink pen was used or that no alterations could have
occurred, only that there is no evidence of an alteration,” did not
resolve these issues. Whether Braley authored the 14–year–old
fabricated application was an issue collateral to Widmer's murder
trial, and exploration of this issue was likely to “bog down” the
criminal trial and lead to confusion of the jury and misleading of the
jury. See Evid.R. 403(A). FN11 We therefore find that the trial court
did not abuse its discretion in denying Widmer's Motion to Allow
Confrontation of Lead Investigator.
FN11. Evid.R. 403(A) mandates exclusion of relevant
evidence where “its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.”
[*P136] We also find Widmer's argument that the trial court's
decision not to allow cross-examination of Braley about the June 25,
1996 application violated his Confrontation Clause rights under the
Sixth Amendment to be without merit. Contrary to Widmer's claim,
a trial court's decision to exclude evidence with minimal probative
value under Evid.R. 608(B), such as the case here, does not violate a
defendant's Sixth Amendment rights. See State v. Boggs, 63 Ohio
St.3d 418, 422 (1995); State v. Moshos, 2010-Ohio-735, ¶ 20; State
v. Rainey, 2nd Dist. No. 23070, 2009-Ohio-5873, ¶ 22.
[*P137] Finally, we find that the trial court's decisions to quash
Widmer's subpoenas duces tecum and deny Widmer's Motion to
Allow Confrontation of Lead Investigator did not prohibit Widmer
from presenting a “Kyles defense.” Widmer had the opportunity to
challenge the integrity of the police officers' investigation of Sarah's
death by cross-examining Braley and other testifying officers about
the processing and collecting of evidence from the crime scene as
well as their role, if any, in the decision to charge Widmer with the
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crime. Further, Widmer had the opportunity to question all three
individuals who were present at the time of Sarah's autopsy, Braley,
Burke, and Uptegrove, about the coroner's conclusion that Sarah's
death was a homicide. The trial court's decision precluding the
defense from questioning Braley about his employment background
did not prevent the defense from questioning witnesses about
Braley's role or “participation in the autopsy.”
[*P138] Widmer's fourth assignment of error is therefore overruled.
Widmer, 2012-Ohio-4342.
Mr. Widmer again raised the issue of Lt. Braley’s background in his post conviction
petition and the state appellate court addressed his claim as follows:
[*P4] We begin by discussing Widmer’s arguments pertaining to
Lieutenant Jeffrey Braley. A brief overview of Braley’s
involvement in the case is helpful to our analysis.
B. Braley's Involvement in the Widmer Investigation
[*P5] On August 11, 2008, Lieutenant Jeff Braley, an officer with
the Hamilton Township Police Department, arrived at the Widmer
home as the ambulance transporting Sarah Widmer to the hospital
departed from the scene. Upon arriving, Braley was briefed by the
officers who had initially responded, and was given a tour of the
home by Officer Quillan Short. After the walk-through, Braley
collected and processed evidence in the home alongside Officer
Short.
[*P6] During the first trial, Braley testified on behalf of the
prosecution regarding his participation in the investigation and the
collection of evidence. However, following Widmer's conviction in
June 2009, a new trial was granted after it was discovered that jury
members improperly discussed matters regarding the length of time
it took to dry after bathing.
[*P7] While preparing for the second trial, the defense obtained
copies of a Hamilton Township employment application form dated
June 25, 1996, and a resume letter, each bearing the signature
“Jeffrey A. Braley.” Believing that the documents contained some
inconsistencies in Braley's credentials, the defense subpoenaed
Braley's personnel files from his prior employers to confirm that the
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information in the application and resume letter was accurate. At
that time, the defense subpoenaed records from General Electric, the
United States Postal Service, and Hamilton Township. Both Braley
and the state moved to quash the subpoenas.
[*P8] On May 5, 2010, the trial court held a hearing on the motions
to quash, at which time the defense confronted Braley on the
employment application.FN1
FN1. Widmer did not confront Braley with the resume letter
during the hearing, and did not seek to do so in subsequent
pretrial motions. However, because Widmer incorporates
the resume letter into his first and second assignments of
error, we will refer to the resume letter to the extent
necessary to address his arguments.
[*P9] During the hearing, Braley testified that the June 25, 1996
date on the application was incorrect, because he did not learn of the
“existence of Hamilton Township” until 1997, when he took an
unpaid, volunteer position as chaplain for the township's fire
department. Braley stated that he did not fill out an application for
the position. Braley further testified that although the signature on
the application looked similar to his own signature, he did not recall
signing the form, and did not recall “at all” filling out the
application.
[*P10] At that point, Braley examined the application and pointed
out the mistakes in his credentials. First, Braley indicated that the
“Education” section of the form incorrectly stated that he had a
master's degree and that he had attended a college in Florida. Braley
also explained that the application was incorrect as to his time spent
working for the U.S. Postal Service. Rather than working as a postal
inspector for two years, Braley clarified that he had only worked as
a clerk for six to eight weeks. Braley also testified that he never
worked as an engineer for General Electric, but rather “ran C & C
Machinery for an engineering group.”
[*P11] Following the hearing, the trial court granted Braley's and
the state's motions to quash. The court reasoned that the authenticity
of the employment application remained questionable, and that
further inquiry into the matter would be misleading to the jury and
would result in undue prejudice. See Crim.R. 17(C); Evid.R. 403(A)
and 608(B). As a result, Widmer was denied all use of the
application during the second trial.

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[*P12] Following a mistrial, a third trial was scheduled for January
2011. Prior to that time, Widmer obtained a copy of a forensic
analysis report performed on the employment application by the
Ohio Bureau of Criminal Identification and Investigation (BCI
report). The BCI report compared the application with known
samples of Braley's handwriting and found,
Comparison of the questioned writing in item # 1 with the
samples in item # 2 revealed that the writer of item # 2 filled
in the application and signed the letter in item # 1.
Instrumental analysis of the documents in item # 1 did not
reveal evidence of an alteration or the presence of more than
one ink pen to fill in the application. A lack of evidence does
not prove that only one ink pen was used or that no
alterations could have occurred, only that there is no
evidence of an alteration.
[*P13] As a result of this information, Widmer filed a “Motion to
Allow Confrontation of Lead Investigator,” seeking to confront
Braley with the false statements in the application at the third trial.
Widmer argued that he had the right to impeach Braley's credibility
with the false application, as well as the right to present an alternate
defense strategy focused on Braley's dishonesty during the
investigation.
[*P14] On January 21, 2011, the trial court denied Widmer's
motion. The court found that the authenticity of the application
remained in dispute, because the BCI report could not rule out the
possibility of an alteration. The court also found that Evid.R. 608(B)
would forbid the use of extrinsic evidence during trial to impeach
Braley on a “collateral matter,” and that cross-examination on the
application would simply evolve into an impermissible “trial within
a trial * * *.” The court concluded that Braley had testified at two
prior trials and that Braley's activities during the investigation were
well known to the defense and were open to verification.
[*P15] Following his conviction and direct appeal, Widmer moved
for postconviction relief, arguing that since Widmer I, he had
discovered additional evidence withheld by the state, which proved
that Braley had, in fact, authored the employment application, and
therefore committed perjury during the May 5, 2010 hearing when
he denied completing the form. Widmer also claimed that he had
since unearthed additional evidence of misconduct relevant to the
case against him. The purportedly new evidence was contained in a
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report prepared by the law firm of Donnellon, Donnellon & Miller
(DD&M report). Widmer also submitted a “supplementary”
affidavit prepared by Dennis Waller, an expert in police practices,
which outlined the impact of Braley's alleged misconduct on the
police investigation.
C. The New Evidence
1. The DD&M Report
[*P16] On February 16, 2011, the day after Widmer's conviction,
the Hamilton Township Trustees hired Douglas Miller with DD&M
to investigate Braley's personnel files, including the 1996
employment application and the resume letter. Miller was also told
to expand his investigation to Braley's entire employment history to
find any additional evidence of misconduct. On June 1, 2011, Miller
issued a report outlining his findings.
[*P17] Miller first compared the 1996 employment application
bearing Braley's name to other applications in the township's files
that also appeared to have been processed in the mid–1990s. After
reviewing the applications and questioning various members of the
township, Miller could find no evidence that the application, along
with the resume letter, were “anything other than what they
appear[ed] to be,” and concluded that there was no evidence that the
documents were created “at the time of the Widmer trials.” Miller
also spoke to former Police Chief Eugene Duvelius and former Fire
Chief Goebel Williams about the application. Both men told Miller
that no one at the township had relied on any information in the
application in hiring Braley in the department.
[*P18] Miller next interviewed various members of the township's
police department about Braley's conduct prior to becoming a police
officer. In speaking with several officers, Miller learned that Braley
had, in the past, stated that he was a member of the Special Forces
unit in the military. Additionally, according to former Chief
Duvelius, Braley's Special Forces experience earned him a lead
position in the township's tactical police raid unit, “THOR,” in 2002
or 2003. However, Miller discovered that Braley did not have any
Special Forces experience, and that Braley actually began serving in
THOR as a civilian, but was commissioned as a police officer prior
to the disbanding of the unit. Miller concluded that while it was
potentially risky to have a civilian in charge of THOR, Braley did
not subject the township to any liability while serving in that
capacity. When Miller ultimately spoke to Braley about the Special
95

Forces allegations, he denied ever telling such a story to his fellow
officers.
[*P19] Pursuant to the township's request, Miller then summarized
the impact of Braley's prior misconduct on his police career, stating,
Both the incidents of the Application and Resume Letter
along with the actions in acquiring the status of leader of the
THOR team occurred somewhat in the past. It appears to be
evident that any of those documents and actions have not
had any particular impact on the Township. It does not
appear that anyone at the Township ever relied on either the
Application or Resume Letter in any hiring or promotional
decisions regarding Lt. Braley. Neither did his status as
leader of the THOR team subject the Township to any actual
liability * * *. However, his denial of all these matters at the
current time raises an issue for the Trustees' consideration of
his honesty. * * * Again, a faulty memory on his part might
be excusable given that the incidents occurred so long ago.
However, Lt. Braley flatly states that he never made any
statement that he was in the Special Forces. For these
reasons, it appears to me that there is evidence for the
Township to move forward with a pre-disciplinary hearing
with regard to the Application and Resume Letter, the
statements regarding his involvement in Special Forces
while in the military, and his denial of those matters in the
course of the investigation.
C. Waller Affidavit
[*P20] After receiving a copy of the DD&M report, Widmer hired
Dennis Waller, an expert in police policy, procedure, and practice to
render an opinion as to Braley's impact on the murder investigation
and the prosecution of Widmer. In his report, Waller classified
Braley as an “opportunist without substance in a police department
without established standards, [who] * * * would not have obtained
this particular position [as lieutenant] without the false statements
that he made about his background.”
[*P21] Waller then opined that Braley lied about his credentials to
obtain a position where he could “exert undue influence and be
perceived as having credibility far exceeding his actual expertise,
education, and ability.” Waller also found that Braley placed undue
influence on the Warren County Coroner, Dr. Russell Uptegrove, to
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make a finding that the cause of Sarah's death was a homicide.
Toward the end of his affidavit, Waller added that “[a]n opportunist,
such as Lt. Braley, could have, deliberately or inadvertently, created
markings which could have inappropriately been given
consideration in assessing a scene for evidence.”
[*P22] Waller concluded,
In order to make a proper decision in this case as to guilt,
jurors would need to know about Braley's false statements,
his lack of experience, and his lack of qualifications to
properly understand how these factors likely tainted the
entire investigation and prosecution in a “garbage in,
garbage out” sequence. A person in law enforcement who
made blatantly false and opportunistic statements in a
manner consistent with what Braley did here, once it was
known, would have serious credibility problems among
personnel in law enforcement, the criminal justice system,
and the Coroner's office.
[*P23] Assignment of Error No. 1:
[*P24] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT CONCLUDED: (1) THAT THE STATE HAD NO
KNOWLEDGE OF MATERIAL INFORMATION THAT IT
WITHHELD FROM THE DEFENSE; AND (2) THAT THE
WITHHELD EVIDENCE PERTAINED TO A COLLATERAL
MATTER ABOUT WHICH BRALEY NEVER TESTIFIED
FALSELY, THUS EVEN IF DISCLOSED, IT WOULD NOT
HAVE AFFECTED THE OUTCOME OF WIDMER'S TRIAL.
[*P25] Assignment of Error No. 2:
[*P26] THE TRIAL COURT ABUSED ITS DISCRETION AND
RULED CONTRARY TO CLEARLY ESTABLISHED U.S.
SUPREME COURT PRECEDENT BY: (1) CONCLUDING
THAT WIDMER'S POST–CONVICTION PETITION FAILED
TO POINT OUT MATERIAL INFORMATION KNOWN TO
THE STATE THAT WAS WITHHELD FROM THE DEFENSE
PRIOR TO OR DURING TRIAL; AND (2) IGNORING
WIDMER'S DUE PROCESS AND CONFRONTATION CLAIMS
WHEREIN HE CONTENDS THAT, DUE TO THE STATE'S
FAILURE TO DISCLOSE THE INFORMATION ABOUT
BRALEY CONTAINED IN THE DD&M REPORT, HE WAS
DENIED THE ABILITY TO RAISE A KYLES V. WHITLEY
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DEFENSE AT TRIAL CHALLENGING THE INTEGRITY OF
THE STATE'S INVESTIGATION AND CONFRONTING
BRALEY ABOUT THE INFORMATION CONTAINED IN THE
DD&M REPORT.
[*P27] For ease of analysis, we will combine Widmer's first and
second assignments of error. Widmer argues that the trial court
erroneously denied his petition for postconviction relief, where the
state knowingly presented Braley's false testimony about the
employment application in violation of Napue v. Illinois, 360 U.S.
264, 79 S.Ct. 1173 (1959), and withheld exculpatory evidence and
impeachment material contained in the DD&M report in violation
of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
II. NAPUE AND BRADY ANALYSIS
A. Standard of Review
[*P28] In reviewing an appeal of postconviction relief proceedings,
this court applies an abuse of discretion standard. State v. Wagers,
12th Dist. No. CA2011–08–007, 2012–Ohio–2258, ¶ 15. A
reviewing court should not overrule the trial court's findings on a
petition for postconviction relief that is supported by competent and
credible evidence. State v. Gondor, 112 Ohio St.3d 377, 2006–
Ohio–6679, ¶ 58. “The term ‘abuse of discretion’ connotes more
than an error of law or of judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable.” Id. at ¶ 60.
B. General Principles
[*P29] The crux of Widmer's arguments begins with Brady v.
Maryland, in which the Supreme Court of the United States held
that due process requires the prosecution to provide the defense with
any evidence favorable to the accused that is material either to guilt
or punishment. Brady, 373 U.S. at 87–88.The Supreme Court
subsequently held that the government's Brady obligation includes
evidence affecting a government witness's credibility. See Giglio v.
United States, 405 U.S. 150, 154, 92 S.Ct. 763 (1972).
[*P30] The Supreme Court repeatedly has emphasized that,
[t]he Brady rule is based on the requirement of due process.
Its purpose is not to displace the adversary system as the
primary means by which truth is uncovered, but to ensure
that a miscarriage of justice does not occur. Thus, the
98

prosecutor is not required to deliver his entire file to defense
counsel, but only to disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a
fair trial * * *.
United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375 (1985).
[*P31] Since establishing the Brady rule, the Court has adhered to
its subsequent statement that “[t]here is no general constitutional
right to discovery in a criminal case, and Brady did not create one *
* *.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837
(1977). In fact, the Court has explained that the basis for the Brady
rule, “the Due Process Clause * * * has little to say regarding the
amount of discovery which the parties must be afforded * *
*.”Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208 (1973).
[*P32] Thus, the Brady doctrine, in its purest form, is the rule of law
that the Due Process Clause is violated when the government
achieves a conviction through the use of perjured testimony, e.g.,
Napue, or by withholding a confession of guilt by someone other
than the accused, e.g., Brady, or by withholding evidence “so
clearly supportive of a claim of innocence that it gives the
prosecution notice of a duty to produce,”e.g., United States v. Agurs,
427 U.S. 97, 107, 96 S.Ct. 2392 (1976).“The doctrine evolved out of
the tenet of constitutional law that it is fundamentally unfair for the
government to obtain a conviction in such circumstances, regardless
of whether the government suppressed the evidence knowingly or
unknowingly.” United States v. Presser, 844 F.2d 1275, 1281 (6th
Cir.1988). However, “unless the omission deprived the defendant of
a fair trial, there [is] no constitutional violation requiring that the
verdict be set aside * * *.”Id., quoting Agurs, 427 U.S. at 108.
[*P33] Accordingly, the obligation Brady imposes on the
government is “the obligation to turn over evidence in its possession
that is both favorable to the accused and material to guilt or
punishment.” Presser, 844 F.2d at 1281 (emphasis sic.), quoting
Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989 (1987). In a
footnote to Agurs, the Supreme Court dismissed an argument that
the definition of material evidence under the Brady rule should
“focus on the impact of the undisclosed evidence on the defendant's
ability to prepare for trial, rather than the materiality of the evidence
to the issue of guilt or innocence.” Agurs, 427 U.S. at 112, fn.
20.The Court stated,
[s]uch a standard would be unacceptable for determining the
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materiality of what has been generally recognized as “Brady
material” for two reasons. First, that standard would
necessarily encompass incriminating evidence as well as
exculpatory evidence, since knowledge of the prosecutor's
entire case would always be useful in planning the defense.
Second, such an approach would primarily involve an
analysis of the adequacy of the notice given to the defendant
by the State, and it has always been the Court's view that the
notice component of due process refers to the charge rather
than the evidentiary support for the charge.
Id.
[*P34] In the present appeal, Widmer claims that the state violated
both Brady and Napue at his trial. Although the two claims are
related, each claim is different and has its own materiality standard.
[*P35] Where there has been a suppression of favorable evidence in
violation of Brady, the undisclosed evidence is material “only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Bagley, 473 U.S. at 682.
[*P36] A different and more defense-friendly materiality standard
applies under Napue. In cases where the prosecutor knowingly uses
perjured testimony, or fails to correct what he subsequently learns
was perjury, the falsehood is deemed to be material “if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury.” Agurs, 427 U.S. at 103 (emphasis
added.); Napue, 360 U.S. at 271.
[*P37] We will proceed with each of these claims in turn.
C. Napue v. Illinois
[*P38] To establish a Napue claim, a defendant must show that: (1)
the statement was actually false, (2) the statement was material, and
(3) the prosecution knew it was false. See, e.g., Coe v. Bell, 161 F.3d
320, 343 (6th Cir.1998). “The burden is on the defendants to show
that the testimony was actually perjured, and mere inconsistencies
in testimony by government witnesses do not establish knowing use
of false testimony.” Id. See also State v. Iacona, 93 Ohio St.3d 83,
97 (2001). As discussed, a false statement is material under this
standard, “‘if the false testimony could * * * in any reasonable
100

likelihood have affected the judgment of the jury * * *.’ “ Giglio,
405 U.S. at 154, quoting Napue, 360 U.S. at 271.See also Keenan v.
Bagley, 1:01 CV 2139, 2012 WL 1424751 (N.D.Ohio Apr. 24,
2012). Typically, false testimony or evidence introduced by a law
enforcement officer is imputed to the state.FN2 See Kyles v. Whitley,
514 U.S. 419, 437, 115 S.Ct. 1555 (1995) (“the individual
prosecutor has a duty to learn of any favorable evidence known to
others acting on the government's behalf in the case, including the
police”).See also Boyd v. French, 147 F.3d 319, 329–330 (4th
Cir.1998) (“knowingly false or misleading testimony by a law
enforcement officer is imputed to the prosecution”).
FN2. Widmer argues that the trial court erred in refusing to
impute knowledge of Braley’s false testimony to the
prosecution. It does not appear that the trial court
specifically did or did not do so. Instead, the trial court
focused on the fact that Widmer failed to provide any
evidence of false testimony, which is a separate requirement
under Napue. However, even if we were to agree with
Widmer and impute knowledge to the state, we would still
be required to find that he satisfied the remaining two Napue
prongs before he would be entitled to relief. See also Brady
analysis, infra.
1. False Testimony
[*P39] Here, Widmer claims that the evidence discovered since the
May 5, 2010 hearing, namely, the BCI report and the DD&M report,
demonstrates that Braley authored the 1996 employment
application, and therefore committed perjury during the hearing
when he “expressly and unambiguously disavowed” the application.
We disagree.
[*P40] Even if we assume, for the sake of argument, that these
documents conclusively establish that Braley authored the
application, Widmer has not shown that Braley's testimony about
the application qualifies as “actually false.”FN3 See Coe, 161 F.3d at
343; R.C. 2921.11(A). It is true that during the early stages of the
May 5, 2010 hearing, Braley wavered between whether he actually
completed the application and whether he simply could not “recall”
doing so. However, Braley subsequently indicated that he could not
recall “at all” filling out the application. Braley reiterated this point
on cross-examination:
FN3. In reality, it is questionable that the BCI report and the
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DD&M report actually show that Braley authored the
employment application. As we noted in Widmer I, the BCI
report did not resolve the issues pertaining to the
application's authenticity, and could not rule out the
possibility of an alteration. The DD&M report also sheds
very little light on these matters. First, Miller's finding that
the application was not “anything other than what [it]
appear[ed] to be” is vague and does not conclusively
identify Braley as the author of the application. The same
can be said for Miller's finding that there was no evidence
that the application was created “at the time of the Widmer
trials.” This does not rule out other time periods between
1996 and 2009. Further, the fact that Braley may have
denied filling out the application to Miller in 2011 does not
show that Braley committed perjury during the May 5, 2010
hearing. Braley was not under oath when he spoke to Miller.
Also, Miller's conclusion that Braley “testified under oath
that he did not fill out the Application” is not a foregone
conclusion, but simply another interpretation of the
testimony at the May 5, 2010 hearing.
[DEFENSE]: And I find it here, you're asked about E–1 and we'll go
with E–1, which is the three page application. You were asked did
you fill out this application?
[BRALEY]: Yes sir, that's correct.
[DEFENSE]: And your answer was you don't recall filling it out?
[BRALEY]: I don't recall ever filling out an application, but I know
I did not fill this out.
[DEFENSE]: So your testimony is not that you can't remember
filling it out but you never filled it out?
[BRALEY]: No.
[DEFENSE]: And if you flip to Page 2, same question. You said you
don't recall filling that out?
[BRALEY]: That is correct.
[DEFENSE]: And with respect to Page 3, same question. You don't
recall filling that out?

102

[BRALEY]: That's correct.
[*P41] At most, Braley's testimony demonstrates some
inconsistencies in the record. However, “mere inconsistencies in
testimony do not establish the knowing use of false testimony by the
prosecutor.” Monroe v. Smith, 197 F.Supp.2d 753, 762
(E.D.Mich.2001), citing United States v. Lochmondy, 890 F.2d 817,
822 (6th Cir.1989).See also Coe, 161 F.3d at 343. Here, the passage
of 14 years between Braley's alleged completion of the application
and his testimony surely depleted Braley's memory on the issue to
some extent. See, e.g., Newsome v. Ryan, S.D.Cal. No.
05CV1534IEG(RBB), 2007 WL 433282, * 26 (Jan. 24, 2007).
Moreover, the fact “that a witness contradicts [himself] or changes
[his] story also does not establish perjury.”Monroe at 762. Upon
review, we cannot say that the contradictions in Braley's testimony
during the May 5, 2010 hearing amounted to perjury. FN4
FN4. Widmer also claims that the trial court erred in
deciding that “only false testimony before a jury can
constitute material perjury under Napue.” The trial court did
no such thing. Instead, after addressing the truth or falsity of
Braley’s testimony during the May 5, 2010 hearing, the
court made an additional finding that there was no evidence
of perjury during trial.
2. Materiality
[*P42] Even if Braley's testimony can be construed as perjury,
Widmer fails to demonstrate that the perjury was “material.” As we
noted, the standard for materiality under Napue is whether the false
testimony could, in any reasonable likelihood, have affected the
judgment of the jury. Napue, 360 U.S. at 271.Widmer claims that
Braley's perjury was material as it related to his trial strategy and the
impeachment of Braley. FN5
FN5. Widmer also claims that Braley's perjury materially
impacted the course of litigation, because it caused the trial
court to: (1) quash his subpoenas for Braley's employment
records, and (2) deny his motion to confront Braley with the
application at the third trial. First, this argument is highly
speculative and focuses on the trial court's judgment, rather
than the jury's. Further, as we will discuss later, the
information allegedly withheld as a result of Braley's alleged
perjury is collateral to, and is not probative of, the issues at
trial. As this was already the primary basis for the trial
103

court's decisions, there is no reasonable likelihood that the
additional information could have changed the court's mind,
or that the information would have added merit to Widmer's
arguments before this court in Widmer I. See Widmer I,
2012-Ohio-4342 at ¶ 136.
a. Kyles Defense Strategy
[*P43] Widmer first claims that Braley's perjury denied him of his
right to present an alternate defense strategy, which he calls his
“Kyles v. Whitley defense.”
[*P44] In Kyles, the United States Supreme Court reversed a murder
conviction upon discovering that the state had withheld evidence in
violation of Brady. Kyles, 514 U.S. at 422. The evidence withheld
by the state included, among other things, inconsistent eyewitness
statements and inconsistent statements made by an “associate” of
the defendant who allegedly had knowledge of the crime and access
to the location where items taken from the victim were found. The
Court held that the disclosure of the withheld evidence undermined
confidence in the outcome of the trial and therefore made a different
result reasonably probable. Id. at 441. In reaching this
determination, the Court found that the withheld evidence would
have “raised opportunities to attack not only the probative value of
crucial physical evidence and the circumstances in which it was
found, but the thoroughness and even the good faith of the
investigation.” Id. at 445. Furthermore, the Court stated that the
evidence withheld denied the defense the ability to “undermine the
ostensible integrity of the [police] investigation” and “[lay] the
foundation for a vigorous argument that the police had been guilty
of negligence.” Id. at 447–448.
[*P45] Here, Widmer asserts that if Braley had admitted to
falsifying the employment application during the May 5, 2010
hearing, the defense could have discovered the information in the
DD&M report in time to prepare a Kyles defense, focusing on the
impact of Braley's incompetence and dishonesty on the integrity of
the investigation, specifically: (1) the processing and collecting of
evidence, including the bathtub, (2) the decisions on what evidence
not to collect, (3) the decision to charge Widmer, in which Braley
allegedly participated, and (4) the coroner's conclusion, given
Braley's attendance and alleged participation in the autopsy.
[*P46] Initially, we reiterate that the Supreme Court has rejected a
standard of materiality that focuses on the accused's ability to
104

prepare for trial. See Agurs, 427 U.S. at 112, fn. 20. See also State v.
Brown, 115 Ohio St.3d 55, 2007–Ohio–4837, ¶ 49 (“[a]s a rule,
undisclosed evidence is not material simply because it may have
helped the defendant to prepare for trial”); Joseph v. Coyle, 469
F.3d 441, 473, fn. 23 (6th Cir. 2006). The vast majority of Widmer's
brief discusses how the perjury was material to his Kyles strategy
and trial preparation, rather than his guilt or innocence. These
arguments are not within the protected scope of Napue and Brady.
However, in an abundance of caution, we will review Widmer's
Kyles claim to the extent that it is properly viewed as a materiality
argument, rather than an argument that another trial strategy might
have fared better with the jury. See United States v. Parks, 30
Fed.Appx. 534 (6th Cir. 2002). See also United States v. Angel, 355
F.3d 462, 475 (6th Cir. 2004) (rejecting petitioner's claim that the
alleged perjured testimony “could have affected the jury's verdict,”
where the testimony was presented to the grand jury but not offered
at trial); United States v. Harmon, N.D.Cal. No. CR 08–00938 JW,
2011 WL 7937876 (Aug. 18, 2011) (declining to apply Napue to
allegedly perjured testimony offered before a grand jury).
[*P47] To analyze materiality under Napue, we must identify the
body of evidence that Widmer argues was suppressed or made the
subject of Braley's false testimony. See Agurs, 427 U.S. at 112;
United States v. McCarty, 177 F.3d 978 (5th Cir. 1999). Widmer
claims that the Napue error arises out of Braley's false testimony
during the May 5, 2010 hearing that he did not fill out the 1996
employment application. Widmer claims that the new evidence in
the BCI report and the DD&M report collectively demonstrates that
Braley did, in fact, fill out the application. Widmer argues that the
state capitalized on Braley's false testimony to conceal additional
evidence of Braley's misconduct also revealed by the DD&M
report, which Widmer could have used to substantiate his Kyles
defense.
[*P48] For ease of analysis, we will address the various portions
Widmer's Kyles claim separately.
(1) Braley's Qualifications as a Lieutenant Detective
[*P49] While Braley's police qualifications are not an independent
subsection of Widmer's Kyles argument, we find it prudent to
address the issue separately, where Widmer continually asserts that
knowledge by the jury that Braley lacked his stated credentials
could have affected the jury's view of the “integrity” of the
investigation and therefore the verdict. Kyles, 514 U.S. at 447–448;
105

Napue, 360 U.S. at 271.
[*50] On numerous occasions throughout the appeal, Widmer
argues that the information in the DD&M report shows that Braley
lied during his career to obtain positions for which he was “grossly
unqualified,” including his position as lieutenant detective in the
Hamilton Township Police Department. Widmer thus contends that
with an inexperienced officer at the helm of the police department,
the entire investigation into Sarah's death was ruined, or was at least
negligently conducted.
[*P51] In support of his claim, Widmer relies primarily on the
Waller affidavit, which states that “[t]he positions held by Braley
and his credibility, were in significant part due to how he presented
his background and experience,” and “[i]t would be highly unusual
if not unheard of for someone with [Braley's] actual level of
experience to be in a position of that nature.”
[*P52] Upon review, we find that Waller's affidavit simply recasts
the information discovered by DD&M in a different light to allow
Widmer to insert a disingenuous, last minute attack on Braley's
police qualifications into this appeal. Waller's interpretation of the
information is especially implausible, given his inability to identify
which of Braley's specific activities were so egregious as to evince
incompetence, as well as his failure to explain what an adequately
trained police officer in Braley's position would have done.
[*P53] Further, contrary to Waller's opinion, the DD&M report
specifically found that none of Braley's superiors hired him based
on the falsehoods in the employment application or the resume
letter. Thus, it is clear that Braley's alleged misconduct, including
falsifying the 1996 employment application, had no bearing on the
issues of whether he was qualified to be a lieutenant detective and
whether he was capable of properly handling the Widmer
investigation.
[*P54] Accordingly, insofar as Widmer claims that the newly
discovered evidence on Braley's lack of certain credentials was
material to discrediting the integrity of the investigation under a
Kyles defense, this argument can be laid to rest. See State v. Hollon,
12th Dist. No. CA90–03–029, 1991 WL 7938, * 2 (Jan. 28, 1991).
(2) The Collection and Processing of the Evidence
[*P55] In his first true Kyles argument, Widmer claims that the state
106

knowingly suborned Braley's perjury to conceal the impact of
Braley's fraudulence on the collection and processing of the
evidence. This argument lacks merit.
[*P56] Upon review, there is simply no reasonable likelihood that
the jury's view of the evidence was improperly skewed as a result of
not knowing that Braley may have lied about some of his
qualifications in the past. As discussed, any false credentials
attributed to Braley had absolutely nothing to do with his position in
the police department, let alone his involvement in the Widmer
investigation or his access to the evidence. The impact of Braley's
alleged perjury is even less significant in light of the abundance of
testimony from other officers about the evidence. Further, even
without the information in the DD&M report, the defense had ample
opportunity to cross-examine Braley and other testifying officers
about the orders that Braley gave at the scene, as well as his
handling of the evidence. Similarly, nothing prevented Widmer
from asking Braley additional questions about his actual training
and experience in collecting evidence, dusting for fingerprints, and
managing a crime scene investigation.
(a) Processing the Evidence in the Bathtub
[*P57] As a sub-argument, Widmer claims that without the
information in the DD&M report, the defense was unable to show
that Braley should not have been trusted with the preservation of the
bathtub during the investigation. Based on the findings in the
DD&M report, Widmer now believes that Braley either: (1)
inadvertently altered evidence in the tub, due to his lack of
qualifications, or (2) purposefully contaminated the tub while it was
in police custody, due to his tendency to “fabricate facts to advance
his career * * *.” We also reject this argument.
[*P58] As an initial matter, the jurors had already heard testimony
from multiple witnesses that the evidence from the tub had changed
while it was in police custody, and had apparently rejected the idea
of police contamination.
[*P59] First, Danny Harness, a latent fingerprint examiner from the
Miami Valley Regional Crime Lab, testified that when he processed
the tub shortly after Sarah's death in August 2008, he used
fingerprint testing methods that would have left a semi-permanent
residue on the tub. Harness also stated that he could not find any
fingerprints sufficient for a detailed analysis or comparison to
known individuals.
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[*P60] The state's second fingerprint witness, William Hillard,
testified that three months after Sarah's death, he was called to
examine the tub at the Hamilton Township police station. When
Hillard arrived at the police station, he explained that Braley took
him to the evidence room to see the tub. After his initial
examination, Hillard stated that he could not find any evidence that
the tub had been processed several months earlier. Additionally,
unlike Harness, Hillard found a fairly detailed set of fingerprints on
the tub. Finally, Hillard testified that when he examined the tub at
the police station for a second time, he observed additional dusting
powder on the corners of the tub that he had not seen before. FN6
FN6. In a lengthy, two page footnote, Widmer also argues
that the DD&M information was critical to launching a
successful attack on the admissibility of Hillard's testimony
in Widmer I, based on a theory that Braley, a “serial liar,”
added fingerprints to the tub prior to Hillard's examination,
and therefore manipulated Hillard's findings. See Evid.R.
702(C). However, we need not address this argument,
because Widmer did not raise it in his postconviction
petition before the trial court. See State v. Houser, 4th Dist.
No. 03CA7, 2003–Ohio–6461, ¶ 13;State v. Garrett, 7th
Dist. No. 06 BE 67, 2007–Ohio–7212, ¶ 8 (“in viewing the
merits of an appellant's [postconviction relief] petition, the
appellate court can only address those arguments presented
to the trial court in the original petition; any new arguments
cannot be considered for the first time on appeal”). See also
State v. Webb, 2nd Dist. No. 06–CA–1694, 2007–Ohio–
3446, ¶ 1; State v. McNeill, 137 Ohio App.3d 34, 44 (9th
Dist.2000). In any event, Braley's alleged misconduct of
falsifying the employment application and fabricating his
credentials would not have been probative of the accuracy of
Hillard's testimony, as this evidence remained completely
unrelated to Braley's involvement in the investigation or his
handling of the evidence.
[*P61] From this testimony, Widmer could have asked Hillard
whether, in his 20 years of experience, such changes in the condition
of the tub were suspicious or out of the ordinary, but chose not to.
Further, the jury could have easily speculated that police officers
with access to the tub, including Braley, were responsible for the
changes in its condition while it was in police custody. While it is
not dispositive, we also note that the defense's unawareness of
Braley's alleged falsehoods did not prevent it from raising
108

chain-of-custody issues with the witnesses. During trial, the defense
asked both Harness and Hillard if they knew whether the tub was in
proper police custody throughout the course of the investigation,
and gave pointed questions highlighting the possibility of
contamination for the jury.
[*P62] Upon review, we find that the state's alleged withholding of
the information in the DD&M report did not impact the jury's
impression of the reliability of the evidence against Widmer,
including the bathtub. The undisclosed evidence in the DD&M
report shows, at most, that Braley fabricated credentials for jobs ten
to 14 years ago and that he later denied doing so. While disclosing
this information may have embarrassed Braley as a high-ranking
police officer, it was hardly material to the ultimate issue of whether
the evidence was sufficient to prove that Widmer murdered Sarah.
Once again, the Waller affidavit does not convince us otherwise. We
have already found that Waller's opinions are disingenuous and are
devoid of evidentiary value. Thus, it is not significant that Waller
concluded that “[a]n opportunist, such as Lt. Braley, could have,
deliberately or inadvertently, created markings which could have
inappropriately been given consideration in assessing a scene for
evidence.” This is nothing more than conjecture, and it invades the
province of the jury by essentially commenting on the credibility of
Hillard's expert testimony as to the value of the fingerprints that he
discovered on the bathtub. See State v. Selvage, 12th Dist. No.
CA2011–08–058, 2012–Ohio–2149, ¶ 11 (“[a]cting as the trier of
fact, the trial court is in the best position to resolve factual questions
and evaluate witness credibility”).FN7
FN7. One of the most significant problems Widmer has had
on this appeal was his lack of ability to connect the
relationship between Braley's alleged misrepresentations
and the reliability, weight, or quality of the evidence
collected. During oral argument, we specifically asked
Widmer's counsel whether there was actually “any evidence
in the record indicating either directly or by inference that
Mr. Braley * * * manufactured any evidence, [or] altered
any evidence[.]” Widmer's counsel made the following
representations to the court:
There is, your honor, I would point to the bathtub as the
prime example of that. If you look at Volume 2 of the
transcript at pages 152 and 153, you have Bill Hillard
testifying. He testifies that the condition that he found the
tub in, which was three months after the fact that it was
109

ripped out of the house, it was not in the same condition as
Danny Harness, the Miami Valley Crime Lab rep, left it.
Remember Danny Harness, the Miami Valley Crime Lab
rep, processed the tub twice, once in the Widmer home and
once after Braley [seized] it from the home in his
laboratory. He did the superglue fuming method, he added
a bunch of the black fingerprint powder to it. The
superglue fuming method, remember, locks in that powder,
there were photos that Danny Harness took. There were
photos that Bill Hillard took. And Bill Hillard testified that
the way that Danny Harness left this tub was not the way
that he found it when he reviewed it and started processing
it in the basement of the Hamilton Township Police
Department, where Braley had it in his possession and
control for three months. Now, look what happened as a
result of the bathtub being used as evidence. Bill Hillard
says, “oh, I see a forearm mark in there, I see a male
forearm mark.” Danny Harness didn't see anything like
this.
This court is troubled by these representations made by
Widmer's counsel. After reviewing the record, the only
evidence of change that occurred to the bathtub according to
Bill Hilliard was the presence of additional black powder.
There was absolutely nothing in the record that remotely
suggested that the bathtub was tampered with while in the
custody of the police department. Widmer's counsel seemed
to embellish the record in order to excite the passions of the
media and public on this issue. Accordingly, we feel
compelled to note that this almost crosses the line from
permissible appellate advocacy to impermissible hyperbole
that so distorts the evidence that it borders upon the absurd.
However, we will give Widmer's counsel the benefit of the
doubt but would caution Widmer's counsel in future when
making such representations of the facts as an officer of the
court.
[*P63] Lastly, we emphasize that the state's alleged nondisclosure
did not prevent or deter Widmer from questioning Braley and other
testifying officers about the handling and processing of the evidence
from start to finish.
[*P64] Thus, we find that Braley's allegedly perjured testimony was
not material to discrediting the evidence against Widmer.

110

(3) What Evidence Not to Collect
[*P65] Next, Widmer argues that the state knowingly used Braley's
perjury to conceal the fact that Braley was an “incompetent, serial
liar,” who likely hand-picked the evidence to support his biased
belief that a homicide had occurred. This argument is also meritless.
[*P66] During trial, Braley admitted that he believed from very
early on that Sarah did not die of natural causes. Now, according to
Widmer, Braley must have only collected evidence that supported
his “tunnel vision for homicide,” and that it “remains unknown what
other items were not collected due to their seemingly benign value
in ‘proving’ a homicide.”
[*P67] First, this argument is entirely too speculative to warrant
much deliberation, and once again, we reject any notion that the
undisclosed evidence against Braley reflects poorly upon the
collection of the evidence. Further, Braley was not the only officer
who collected evidence at the crime scene. The jury heard testimony
from numerous officers, whose credibility was not even remotely
suspect, and it is unreasonable to believe that the nondisclosure of
Braley's past was the reason that the jury accepted those officers'
responses. Moreover, Widmer had the opportunity at trial to
question these other officers regarding their respective
decision-making process in determining which evidence to collect
at the scene of the crime.
[*P68] Thus, we find that this argument is insufficient to establish
materiality under Napue.
(4) The Decision to Charge Widmer
[*P69] Widmer next argues that the state used Braley's perjury to
prevent the defense from exploring whether Braley's lack of real
police experience impacted his communication with the
prosecution. Based on what he knows now, Widmer believes that
Braley made a “rush to judgment that a homicide had occurred” and
shared this opinion with the prosecutor, who in turn relied on that
information in deciding to charge Widmer with murder. We reject
this argument, as well. As we have repeatedly stated, the
undisclosed evidence in the DD&M report had nothing to do with
Braley's involvement in the investigation, let alone his interaction
with the prosecutor's office regarding this case.
(5) The Coroner's Conclusion that a Homicide Occurred
111

[*P70] Here, Widmer argues that without the information in the
DD&M report, the defense was unable to launch a full-scale attack
on the medical determinations made by the Warren County Coroner,
Dr. Russell Uptegrove. Widmer now believes that Braley
capitalized on his perceived credibility as a lieutenant to sway
Uptegrove's determination that Sarah's death was the result of a
homicide.
[*P71] Once again, Widmer cites the Waller affidavit, wherein
Waller opined “to a reasonable degree of professional certainty in
the field of police practice” that,
Dr. Uptegrove was unduly influenced by, and relied upon,
representations made by Lt. Jeff Braley, who is not credible
as a law enforcement officer, in making the determination in
this case that the manner of death was by homicide. A
medical determination that the manner of death was by
homicide could very well unduly influence the decision of
the prosecutors to initiate criminal charges and unduly
influence jurors at a subsequent trial. Braley was simply not
qualified to make determinations regarding this case and
pass such opinions to Uptegrove. A coroner's opinion
regarding cause of death is as reliable as the information
provided to the coroner. If the information given to him is
unreliable, then the opinion is unreliable in a “garbage in,
garbage out” process.
***
In order to make a proper decision in this case, jurors would
need to know about Braley's false statements, his lack of
experience, and his lack of qualifications to properly
understand how these factors likely tainted the entire
investigation and prosecution in a “garbage in, garbage out”
sequence.
[*P72] As with Waller's other opinions, these statements lack any
value in determining the issue of materiality under Napue .Instead,
we agree with the trial court that Waller simply: (1) regurgitated
Widmer's trial arguments regarding Uptegrove, (2) invaded the
province of the jurors as to what they would “need to know” to make
a determination of guilt, and (3) exceeded the scope of his expertise
in police practices by comparing Uptegrove's medical opinions to
“garbage.” See Evid.R. 702(B); State v. Davis, 64 Ohio App.3d 334,
112

345 (12th Dist.1989).
[*P73] At trial, both sides questioned Uptegrove about the steps he
took during Sarah's autopsy, and asked Uptegrove what specific
information he used in making his medical determinations. During
cross-examination, Uptegrove testified that prior to performing
Sarah's autopsy, he did not review Sarah's hospital records, medical
history, toxicology report, or the paramedic's sheet. Uptegrove also
testified that Braley was present for part of the autopsy, and agreed
with the defense that he would consider statements from police
officers and EMS personnel in rendering his decision. Uptegrove
also admitted that during the autopsy, he told Braley that he was
“leaning towards the possibility that this could be a homicide * * *.”
[*P74] The Waller affidavit cites this information as the basis for
concluding that Braley “unduly influenced” Uptegrove's decision,
because Braley's statements were essentially the only information,
other than the autopsy, that Uptegrove had at the time he made this
finding. However, Waller's conclusion is simply an extension of
Widmer's argument that “Dr. Uptegrove admitted that he considered
what Braley told him in ultimately concluding that a homicide had
occurred.” Moreover, both Widmer and Waller fail to acknowledge
Uptegrove's testimony that he would never rule a homicide simply
because a police officer told him to do so, and that in determining
the manner of death, he would also consider “[t]he scene
investigation, the statements or historical information from
individuals involved with the case, [and] the individual's medical
history * * *.”
[*P75] Further, while Braley did supply Uptegrove with
information during the autopsy, other witnesses' testimony makes it
very clear that Braley played a negligible role in the process. First,
Doyle Burke, the chief investigator for the coroner's office, who was
also present during the autopsy, testified that he did not see Braley
participate in the autopsy “in any fashion.” Uptegrove also testified
that neither Braley nor Burke helped him “in any way.”
[*P76] Given this evidence, we reject Widmer's claim that the jury's
view of Uptegrove's testimony was improperly skewed as a result of
not knowing the information in the DD&M report. Even in the event
that such information was disclosed during trial, the remaining
testimony demonstrates that Uptegrove made his decisions on his
own accord, without Braley's influence. See Woods v. Booker, 450
Fed.Appx. 480, 486 (6th Cir.2011).

113

6. Kyles Conclusion
[*P77] In sum, we find that Widmer has failed to demonstrate that
Braley's perjury was material because of how it prejudiced his
ability to prepare a Kyles defense. There is no reasonable likelihood
that knowledge by the jury that Braley lied about various credentials
and whether he filled out the 1996 employment application could
have affected its decision on the ultimate issue of whether Widmer
was guilty of murdering Sarah. This conclusion is particularly
compelling in light of the ample additional evidence supporting
Widmer's guilt, as we thoroughly discussed in Widmer I. See United
States v. Robinson, 627 F.3d 941, 953 (4th Cir.2010) (“[e]vidence
regarding a few officers' unrelated misconduct could do little to
damage the extensive physical and testimonial foundation of the
case”).
[*P78] Thus, this portion of Widmer's first assignment of error is
overruled. We now address the remaining portion of Widmer's
Napue argument, which pertains to impeachment, rather than
exculpatory evidence.
a. Impeachment Evidence
[*P79] Widmer also argues that Braley's perjury was material as it
pertained to impeaching Braley on cross-examination.
[*P80] We recognize that even if a witness's false testimony does
not directly affect the issue of guilt, but rather only the credibility of
the witness, its use might still constitute a denial of due process
under Napue. See Napue, 360 U.S. at 269–270. However, we reject
Widmer's claim, where there is no reasonable likelihood that the
alleged impeachment evidence could have affected the judgment of
the jury.
[*P81] Evid.R. 608(B) permits cross-examination of specific
instances of conduct that are probative of a witness's character for
truthfulness or untruthfulness. The cross-examiner must take the
witness's answers as given and cannot contradict a denial either by
confronting the witness with extrinsic evidence or proving the
matter with such evidence. See United States v. Abel, 469 U.S. 45,
55, 105 S.Ct. 465 (1984). However, “[a] witness may not be
impeached by evidence that merely contradicts his testimony on a
matter that is collateral and not material to any issue in the
trial.”Byomin v. Alvis, 169 Ohio St. 395, 396 (1959).“Evid.R.
608(B) * * * protects a legitimate state interest in preventing
114

criminal trials from bogging down in matters collateral to the crime
with which the defendant was charged.” State v. Boggs, 63 Ohio
St.3d 418, 422–423 (1992).See also Widmer I, 2012–Ohio–4342 at
¶ 134 (“because the potential for abuse is high, through unfair
prejudice, confusion of the issues, and misleading of the jury,
safeguards are erected in the form of requiring that the instances
inquired into must be clearly probative of truthfulness or
untruthfulness”) (Emphasis sic.); State v. Rainey, 2nd Dist. No.
23070, 2009–Ohio–5873, ¶ 20.
[*P82] Here, we find that cross-examining Braley on the
employment application and the other information in the DD&M
report would have only created a dispute about purely collateral
matters, i.e., whether Braley fabricated various credentials over ten
years ago for jobs unrelated to his position as lieutenant detective.
Braley was not on trial for fraud or misconduct; Widmer was on trial
for murder, and examining this part of Braley's past would only lead
to surprise, jury confusion, and a waste of time, which are the very
reasons for the rule against impeachment on collateral matters. See
Evid.R. 608; State v. Myers, 9th Dist. C.A. No. 25737, 2012–Ohio–
1820. See also Evid.R. 403.
[*P83] Even if the information did not pertain to a collateral matter,
there is no reasonable likelihood that impeaching Braley with the
new evidence could have affected the jury's decision. In this regard,
our facts are readily distinguishable from Napue. See State v. Mills,
12th Dist. No. CA99–11–198, 2001 WL 237096, * 9 (Mar. 12,
2001); United States v. Stewart, 323 F.Supp.2d 606, 620
(N.Y.S.2004).
[*P84] In Napue, the prosecution's principal witness denied that he
had received a promise of leniency in exchange for his testimony.
Knowing this testimony to be false, the prosecutor did nothing to
correct it. The Supreme Court characterized the witness's testimony,
which comprised the bulk of the prosecution's evidence against the
defendant, as “extremely important.” Napue, 360 U.S. at 266. Thus,
it reversed the defendant's conviction, reasoning that it would
violate due process not to do so, where the prosecution's knowing
use of false testimony bearing directly on the credibility of a key
witness “may have had an effect on the outcome of the trial.” Id. at
272.
[*P85] Here, Braley's trial testimony cannot be described as
extremely important, central, or material to the prosecution's case
against Widmer. As the trial court noted, other witnesses
115

corroborated the important portions of Braley's testimony. Thus, the
subject matter of Braley's testimony was hardly of the sort where his
credibility “may well [have been] determinative of [Widmer's] guilt
or innocence * * *.” Id. at 269. Under these circumstances, we find
that any impeachment value of the new information in the DD&M
report was undermined by the other evidence in the record, thus it
cannot be considered material impeachment evidence in the Napue
sense. See Hutchison v. Bell, 303 F.3d 720, 745 (6th Cir.2002).
3. Imputed Knowledge of Perjured Testimony
[*P86] The third and final prong of Napue requires a defendant to
show that the state knew that the witness's testimony was false. As
we mentioned briefly above, a police officer's knowledge about a
case, including the truth or falsity of his testimony, is typically
imputed to the state, but because Widmer has failed to satisfy at
least one other Napue prong, we need not address this issue in depth.
See Kyles, 514 U.S. at 437. However, as we discuss in detail under
Brady below, we have serious doubts as to whether Braley's
knowledge of the information in the DD&M report is imputable to
the state.FN8
FN8. According to Widmer, other individuals with
knowledge attributable to the prosecution were aware of
Braley's misconduct, thanks to an independent investigation
of Braley by the Hamilton Township Board of Trustees in
July 2010. Again, we need not decide whether this is
actually the case, given Widmer's failure to establish
materiality.
4. Napue Conclusion
[*P87] Pursuant to the standards set forth in Napue, we find that
there is no reasonable likelihood that the state's alleged use of
Braley's pretrial perjury could have affected the jury's verdict. The
subject matter of Braley's allegedly false testimony was neither
exculpatory nor significantly impeaching, and outside of Braley's
trial testimony, the jury still heard ample evidence of Widmer's
guilt. See Widmer I. Accordingly, the trial court did not abuse its
discretion in denying Widmer's request for postconviction relief on
these grounds, and the court did not violate Widmer's due process
and confrontation rights under Napue or Kyles.
[*P88] Widmer's first assignment of error is overruled.

116

D. Brady v. Maryland
[*P89] In his second assignment of error, Widmer claims that
regardless of whether Braley committed perjury, the prosecution
violated Brady v. Maryland by failing to disclose the evidence in the
DD& report, along with any other favorable evidence, prior to the
third trial.
[*P90] In Brady, the Supreme Court held that a criminal defendant's
due process rights are violated if the prosecution suppresses
evidence that is material to the defendant's guilt or punishment.
Brady, 373 U.S. at 87.See also Strickler v. Greene, 527 U.S. 263,
119 S.Ct. 1936 (1999). The law in Brady applies regardless of
whether the defendant has expressly requested such evidence and
encompasses both exculpatory and impeachment evidence. Strickler
at 280.
[*P91] In order to establish a Brady violation, Widmer must show
that: (1) the evidence at issue was favorable to him, either because it
was exculpatory or because it was impeaching, (2) the evidence was
suppressed by the state, either willfully or inadvertently, and (3)
prejudice ensued. Id. at 281–282.
1. Widmer's Requested Standard of Review
[*P92] As an initial matter, Widmer asserts that the trial court
wholly failed to address his Brady claims, and therefore asks us to
review these arguments de novo. We decline to do so. Here, the trial
court addressed all of the issues in Widmer's petition in an
extremely thorough and well-reasoned opinion, and detailed the
Supreme Court cases cited by Widmer, including Brady, as well as
their application to this case. The court found that Widmer “failed to
point to any information that was known by the State that was not
turned over to him,” and additionally found “no lack of confidence
in the verdict.” These are precisely the principles espoused by
Brady. See Strickler, 527 U.S. at 289–290, quoting Kyles, 514 U.S.
at 434 (under Brady,“[t]he question is not whether the defendant
would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence”).
Thus, we reject this argument and proceed with an abuse of
discretion review. See Wagers, 2012–Ohio–2258 at ¶ 15.
2. Favorable Evidence

117

[*P93] In terms of the first requirement of Brady, we have already
found that the information on Braley is not exculpatory as to
Widmer, and that it has very little impeachment value. However, for
the sake of argument, we will treat the evidence as favorable to
Widmer.
3. Suppression and Imputed Knowledge
[*P94] As to the suppression prong, we note that the state did not
actually receive the DD&M report until after the third trial. See
Agurs, 427 U.S. at 103; Hicks v. Collins, 384 F.3d 204 (6th
Cir.2004) (no Brady violation where there was no evidence that the
prosecution knew of the favorable exculpatory material prior to
trial). However, Widmer argues that Braley's knowledge of the
contents of the DD&M report was imputed to the state, because
Braley was a “state agent” involved in the investigation. See
Strickler, 527 U.S. at 289–281, quoting Kyles, 514 U.S. at 438 (the
Brady rule encompasses evidence “known only to police
investigators and not to the prosecutor”).
[*P95] Initially, we agree with Widmer that Brady's requirements
“do not stop at the prosecutor's door,” and that the knowledge of
those who are part of the investigative team is imputed to the
prosecutor, regardless of the prosecutor's actual awareness.
Robinson, 627 F.3d at 951, citing Kyles, 514 U.S. at 437. We also
agree that police are treated as an arm of the prosecution for Brady
purposes, and that their knowledge of the case should be imputed to
the state. Kyles at 437 (“the individual prosecutor has a duty to learn
of any favorable evidence known to the others acting on the
government's behalf in the case, including the police”). But see
Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir.1985) (“not all
police knowledge should be imputed to the prosecution”).
[*P96] Here, Widmer claims that because Braley had actual
knowledge of his own misconduct as contained in the DD&M
report, and because he was working on the state's behalf, the
prosecution violated its constitutional duties to learn of the evidence
and disclose it. However, we would be remiss to accept this
argument without at least slight hesitation. It is one thing to require
prosecutors to inquire into whether the police have discovered
exculpatory or impeachment evidence during the course of their
investigation. It is quite another to require them, “on pain of a
possible retrial, to conduct disciplinary inquiries into the general
conduct of every officer working the case.” Robinson, 627 F.3d at
952. Here, Braley's alleged misconduct is so remote in time, and is
118

so unrelated to his role in the investigation and to the state's case
against Widmer, that it is difficult to burden the prosecution with an
obligation to discover this evidence.
[*P97] Yet, even if we assume, for the sake of this opinion only, that
the doctrine of imputed knowledge extends this far, Widmer still
fails to satisfy the materiality requirement of Brady. FN9
FN9. Widmer also asserts that the state had knowledge of,
and concealed, the results of a separate, internal
investigation of Braley conducted by the Hamilton
Township Trustees in July 2010. Widmer believes that the
trustees' report contains information “identical” to the
contents of the DD&M report, only that this time, the
information was received from Braley under oath. However,
because it is clear to us that Brady was not violated because
of the lack of materiality, we need not address Widmer's
contention that the state “suppressed” the trustees' report.
See United States v. Pelullo, 399 F.3d 197, 217 (3rd Cir.
2005).
As his final sub-argument, Widmer contends that the
government purposefully delayed ordering the DD&M
report until after Widmer's conviction in order to avoid
learning information that may have undermined the
prosecution's case. Again, we need not decide this issue,
because Widmer still cannot establish materiality. That is, as
discussed below, there is no reasonable probability that, had
the evidence in the DD&M report come to light earlier, the
result of Widmer's trial would have been different.
4. Prejudice/Materiality
[*P98] “Prejudice (or materiality) in the Brady context is a difficult
test to meet * * *.” Montgomery v. Bobby, 654 F.3d 668, 678 (6th
Cir. 2011). Evidence 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.
Bagley, 473 U.S. at 682. See also Strickler, 527 U.S. at 281. “The
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Kyles, 514 U.S. at 434. Brady
materiality is not a strictly quantitative inquiry; “[r]ather, it is more
of a qualitative inquiry in which a reviewing court must ask whether
119

the suppressed evidence casts sufficient doubt on a petitioner's
conviction that it puts the case ‘in a different light.’” Smith v.
Metrish, 436 Fed.Appx. 554, 563 (6th Cir. 2011), quoting Kyles at
435. As we discussed earlier, the Brady materiality assessment is
more stringent than the inquiry under Napue.
[*P99] Widmer's materiality arguments under Brady are similar to
the ones that he raised under Napue, namely, that the nondisclosure
of the facts contained in the DD&M report precluded him from
preparing a Kyles defense, deprived him of critical impeachment
evidence, and materially impacted the course of litigation. FN10
FN10. For the same reasons as stated in footnote five, we
reject Widmer's argument that disclosing the withheld
information would have likely altered the course of litigation
by prompting the trial court to grant his subpoena requests or
sustain his Motion to Confront Lead Investigator.
[*P100] As to Widmer's Kyles claim, our focus under Brady, much
like Napue, is not on the impact of the suppressed information on
trial strategy, but whether the evidence was material either to guilt
or punishment. See Strickler, 527 U .S. at 280; Agurs, 427 U.S. at
104, fn. 10. See also United States v. Bencs, 28 F.3d 555, 560 (6th
Cir.1994) (“[m]ateriality pertains to the issue of guilt or innocence,
and not to the defendant's ability to prepare for trial”). However, for
the sake of completeness, we will address whether the alleged
suppression denied Widmer a fair trial by precluding a challenge to
the “integrity” of the investigation. Kyles, 514 U.S. at 447–448;
Agurs at 108.See also Crim.R. 16(B).
[*P101] After a thorough review of the record below, we find that
even if the allegedly suppressed evidence in the DD&M report
could have helped the defense to cast some doubt on the police
investigation under Kyles, it is not enough to establish materiality.
Id. at 109–110 (“[t]he mere possibility that an item of undisclosed
information might have helped the defense, or might have affected
the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense”). As we discussed previously, even without
this information, Widmer had the opportunity to cross-examine
Braley and the numerous other witnesses about the investigation
from start to finish. It is simply untenable to believe that the
suppression was the reason for Widmer's scant questioning on this
matter, or that disclosing Braley's alleged misconduct would have
cast sufficient doubt in the jury's mind about the investigation so as
to generate a reasonable probability of a different result. Bagley, 473
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U.S. at 682.
[*P102] Moreover, the suppressed information was not material
impeachment evidence. See id. at 676–677; United States v. Jones,
399 F.3d 640, 648 (6th Cir.2005). Generally, impeachment
evidence constitutes Brady material when the evidence relates
directly to a key witness's veracity on matters about which he or she
has testified at trial. See Giglio, 405 U .S. at 154. However, as we
discussed earlier, Braley was not a key witness, and the allegedly
suppressed evidence pertained only to collateral matters that had
nothing to do with Braley's trial testimony. See, e.g., People v.
Fernandez, 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 (1998) (“where the
impeachment information has no bearing on defendant's guilt or
innocence, such as where the prosecution witness's misconduct is
completely unrelated to the trial at which he is testifying and [his]
testimony is not crucial to the prosecution's case, its nondisclosure
does not constitute a Brady violation”). Even if the new evidence
was severely impeaching, the fact remains that Braley's credibility
was not determinative of Widmer's guilt or innocence. Instead,
Braley's testimony was simply cumulative to the considerable
evidence bearing on Widmer's guilt, and there is no reasonable
probability that impeaching Braley would have resulted in a
different outcome. See Evid.R. 608(B); Agurs, 427 U.S. at 112;
Jones, 399 F.3d at 648.
5. Brady Conclusion
[*P103] In sum, even if we assume that the information on Braley
should have been disclosed, when we review the record as a whole,
we cannot conclude that our confidence in the verdict has been
undermined. See Bagley, 473 U.S. at 682.In other words, there is not
a reasonable probability that the outcome of Widmer's trial would
have been different, had the evidence in the DD&M report been
disclosed. Id. Accordingly, the trial court did not abuse its discretion
in denying Widmer's request for postconviction relief under Brady.
Widmer, 2013-Ohio-62.
The state court's twenty-page description and analysis of Mr. Widmer's claims as to Lt.
Braley make it clear that his claims revolve around two documents: (1) the June 25, 1996,
application for employment and (2) the June 1, 2011, DD&M investigation report. Additionally,

121

the state court's opinion points out that Mr. Widmer's claims are essentially that the trial court erred
by denying his requests to obtain and/or use those documents for the purposes of: (1) impeaching
Lt. Braley as to his background and education; (2) cross-examining Lt. Braley about any alleged
falsification of the employment application; and (3) pointing out the flaws in the investigation of
Sarah Widmer's death (Lt. Braley headed that investigation).
First, as the Warden has correctly argued, it is the obligation of the federal courts to accept
as valid a state court's interpretation under state law of the statutes and rules of practice of that
state. Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986)(citation omitted); (See Return of Writ,
ECF No. 22, PagelD 10161). Indeed, as this Court noted when addressing Mr. Widmer's First
Ground for Relief, supra, the Supreme Court has repeatedly held that "a state court's interpretation
of state law, including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus." Bradshaw, 546 U.S. at 76, citing Estelle, 502 U.S. at 67-68;
see also Mackey, 525 Fed. App'x. at 362. This Court also noted that federal habeas review of a
state court evidentiary ruling is extremely limited and that such evidentiary ruling will rise to the
level of a constitutional violation only where it violates a bedrock principle of justice so as to
deprive the defendant of a fundamentally fair trial. Jordan, 397 F.3d at 362; Bey, 500 F.3d at 519,
522.
In addressing Mr. Widmer's argument that the trial court erred when it denied its request
to allow him to cross-examine Lt. Braley with respect to the June 25, 1996, application, the state
appellate court determined that Ohio Evid.R. 608(B), "prevents a party from introducing extrinsic
evidence to impeach a witness on a collateral matter not material to any issue in the trial;" and
"protects a legitimate state interest in preventing criminal trials from bogging down in matters
collateral to the crime with which the defendant was charged." Widmer, 2012 WL 4350275 at
122

*31-32; see also App’x, ECF No. 17, PageID 298-99. The state court of appeals determined that
for purposes of Ohio Evid.R. 606(B), the authenticity of the June, 1996, application was in dispute,
that the document was not clearly probative for truthfulness, and that permitting Mr. Widmer to
cross-examine Lt. Braley about the application would bring forth "a parade of witnesses, exhibits
and thirteen years of events to attack or bolster the witness and/or the veracity of the document."
Widmer, 2012 WL 4350275 at *32; ECF No. 17, PageID 297-98.
The state court of appeals clearly based its confirmation of the trial court's denial of Mr.
Widmer's request to cross-examine Lt. Braley about the June, 1996, employment application on its
interpretation of state law, to wit: Ohio Evid.R. 606(B). Accordingly, this Court, sitting in
habeas, is bound by that interpretation.
As noted above, however, Mr. Widmer also claims that the state court erred by precluding
him from cross-examining Lt. Braley about his background thereby effectively denying him (Mr.
Widmer) his right to present a "Kyles defense".
In Kyles v. Whitley, 514 U.S. 419 (1995), the United States Supreme Court reversed a
murder conviction upon discovering that the state had withheld evidence in violation of Brady v.
Maryland, 373 U.S. 83, 87 (1963). The withheld evidence included, inter alia, inconsistent
eyewitness statements and inconsistent statements made by an "associate" of the defendant who
allegedly had knowledge of the crime and access to the location where items taken from the victim
were found. Kyles, 514 U.S. at 428. The Court held that disclosure of the withheld evidence
undermined confidence in the outcome of the trial and therefore made a different result reasonably
probable. Id. at 441. The Court noted that the withheld evidence would have "raised opportunities
to attack not only the probative value of crucial physical evidence and the circumstances in which

123

it was found, but the thoroughness and even the good faith of the investigation." Id. at 445. The
Court stated that the withholding of the evidence denied the defendant the ability to "undermine
the ostensible integrity of the investigation" and "[lay] the foundation for a vigorous argument that
the police had been guilty of negligence." Id. at 447-48.
Mr. Widmer's argument about a "Kyles defense" is that if he had been permitted to question
Lt. Braley about his background thereby putting his credibility at issue, he (Mr. Widmer) would
then have been able to challenge the integrity of the processing and collecting of evidence
including the bathtub, the coroner's conclusion (in view of Lt. Braley's attendance at the autopsy),
and the decision to charge Mr. Widmer (in which Lt. Braley participated).
With respect to the collection of evidence, including the bathtub, the record establishes that
Mr. Widmer had the opportunity to cross-examine all of the individuals, including Lt. Braley, who
participated in the investigation of Ms. Widmer' s murder and who testified at the trial.
Lt. Braley testified that he had been involved in law enforcement as a sworn police officer
since 2003, that he had been employed with the Hamilton Township Police Department for a total
of twelve years, and he had been the detective lieutenant with that department for four years (Tr.,
ECF No. 21-2, PageID 3238-3261). Lt. Braley stated that when he arrived at the Widmer home,
the officers at the scene briefed him and expressed their suspicions to him. He subsequently
contacted Investigator Burke and then entered the home where Sarah Widmer's murder had taken
place. Id. He testified that the scene was exactly as the officers had described. He further stated
he had discussed with Officer Short the collection of evidence, that they had collected evidence
from the master bedroom and bathroom, and that they examined the carpet in the master bedroom
and took samples of it. Id.

124

Lt. Braley also testified that the next day, based on information he had gotten from Dr.
Uptegrove, he believed that Sarah Widmer's death was a homicide so he returned to the Widmer
home, examined the bathtub, dusted it for prints, and found markings he considered handprints
being pulled down the side of the tub.

He felt that it was necessary to preserve the evidence so he

contacted the Miami Valley Crime Lab and technicians from the lab came to the scene to help
secure and preserve the prints. Id. Lt. Braley testified that the tub was removed from
the residence later in the day but that he was not present when the removal occurred. Id. He
testified further about the investigation he conducted including collecting cell phone records,
examining traps in the sink drains, and collecting everything that was on the side of the bathtub. Id.
Mr. Widmer cross-examined Lt. Braley about the investigation into Sarah Widmer's murder. Id. at
3261-3274. At that time, Lt. Braley testified he did not consult with Dr. Uptegrove prior to Sarah
Widmer's autopsy and that he met with Dr. Uptegrove later in the day, after the autopsy had been
conducted. Id.
As noted above, Mr. Widmer had the opportunity to cross-examine several other witnesses
who were involved in the gathering of evidence at the scene of Sarah Widmer's murder.
Warren County Deputy Sheriff Steve Bishop testified that he was the first emergency, law
enforcement, or fire department responder to arrive at the Widmer's home after the call regarding
Sarah Widmer's death was broadcast to emergency personnel (Tr., ECF No. 21-16, PageID
7538-7563). The Deputy described the conditions of the scene which included the master
bathroom, the house, as well as the appearance of Sarah Widmer's body. Id. Mr. Widmer had the
opportunity to, and in fact did, cross-examine and re-cross-examine Deputy Bishop. Id. at
7563-7579.

125

Firefighter/EMT-B Jeff Teague testified that he was with Mr. Stevens and that they were among
the first responders at the Widmer home. Id. at 7580-7637. He testified about the condition of
Sarah Widmer's body and described the scene where she was located. Id. Mr. Teague further
described the emergency medical treatment he, Mr. Stevens, and other first responders gave to
Sarah Widmer including the use of the Sellick maneuver and transporting Ms. Widmer to the
hospital. Id. Mr. Widmer cross-examined and re-cross-examined Mr. Teague. Id. at 7638-7698.
Firefighter/paramedic Jason Stevens testified that he responded to the call about a possible
drowning at the Widmer home. Id. at 7700-7739. He testified about the appearance of the scene
as well as Sarah Widmer's body. Id. Mr. Stevens described the emergency measures he and his
partner, Jeff Teague, had taken in their treatment of Ms. Widmer, which included two failed
attempts to intubate her, once in which his partner used the Sellick maneuver. Id. He then
testified about another paramedic Derek Roat's failed attempt to insert a tracheal tube into Sarah
Widmer. Id. Mr. Stevens described the process of removing the victim’s body from the home. Id.
Mr. Widmer had the opportunity to, and did, cross-examine Mr. Stevens. Id. at 7740-7786.
Lisa Elliott, a road patrol sergeant with the Hamilton Township Police Department,
testified that she responded to the call at the Widmer home and described what she observed
when she arrived, which included the condition of Sarah Widmer's body, the treatment the
EMTs/paramedics were administering, and the condition of the scene. Id. at 7791-7819. Sgt.
Elliott also testified about the removal of Sarah Widmer's body from the house, the condition of
the bathroom after first responders had removed the body, and the decision to call a detective,
specifically Lt. Braley, to the scene because, in her opinion, things were "not adding up." Id. Sgt.
Elliott further described her walk-through of the house and grounds and her observations thereof.
Id. Mr. Widmer had the opportunity to, and did cross-examine Sgt. Elliott. Id. at 7819-7835.
126

Doyle Burke, Chief lnvestigator for the Warren County Coroner's Office, testified he was
notified that a young female had been removed to Bethesda Arrow Springs Emergency
Department. Id. at 7835-7861.
the hospital to investigate. Id.

She was reported to have drowned in her bathtub, and he went to
Investigator Burke testified as to his observations of Sarah

Widmer's body and that he considered her death suspicious. Id. He further testified that he
interviewed Mr. Widmer at the hospital and thought there were some "blaring discrepancies" in
Mr. Widmer’s answers to the investigator's questions. Id. Mr. Widmer was given the opportunity
to, and did cross-examine Investigator Burke. Id. at 7861-7898.
Russell Uptegrove testified that he had been a forensic pathologist at the Montgomery
County Coroner's Office since 1999, and had been the Warren County Coroner since 2007.

He

conducted Sarah Widmer's autopsy. Id. at 8021-8125. Dr. Uptegrove stated that he became aware
of Ms. Widmer when Investigator Burke called him when he (Burke) was en route to the hospital
where she had been taken. Dr. Uptegrove testified that he thought the story about her drowning in
the bathtub was alarming as it is not something that routinely happens and he was suspicious as to
what could have happened to cause the incident. He advised Investigator Burke that he needed to
get an accurate account of what happened. Id. Dr. Uptegrove then testified at great length about
Sarah Widmer's autopsy findings. Id. He opined that the cause of her death was drowning. He
further testified that based on the autopsy findings, information he gathered from Ms. Widmer's
family members and from individuals who were at the scene, information contained in her medical
records, and information he got from his medical research, he concluded that the manner of her
death was homicide. Id. Dr. Uptegrove stated that Lt. Braley and Investigator Burke were present
during Sarah Widmer's autopsy, though they did not participate. He commented that it was not
unusual for police officers to be present during an autopsy. Id. Mr. Widmer then cross-examined
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Dr. Uptegrove during which Dr. Uptegrove stated that he did not remember his dialog with Lt.
Braley but that he recalled showing Lt. Braley and Investigator Burke some of the things he had
found during the autopsy. Id. at 8125-8196. Dr. Uptegrove testified that he conducted Sarah
Widmer's autopsy on August 12, 2008, and that after completing the procedure he was leaning
towards the possibility that her death was a homicide. However, he did not make that final
determination until days later. Id.
Mark Bedwell, a police officer with the Hamilton Township Police Department, testified
that he was dispatched to the scene of Sarah Widmer's murder and was the last officer to arrive. Id.
at 8406-8427. When he arrived at the scene emergency personnel were performing CPR on Ms.
Widmer. Id. At that time he had a conversation with Mr. Widmer about the victim. Id.

Officer

Bedwell further testified about his observations of Sarah Widmer's body and his feeling that the
scene was "strange" because although the incident allegedly involved a drowning, Sarah Widmer's
body, as well as the surrounding areas, were dry. Id. Further he noted that there were items sitting
on the edge of the bathtub which he thought should have been knocked to the floor if someone had
removed another person from a bathtub. Id.
Officer Bedwell testified that he and other officers on the scene determined that they
needed to secure what they felt at the time might be a possible crime scene. Id. They then called
Lt. Braley to the scene. Id. Officer Bedwell stated that after Lt. Braley arrived on the scene, he
(Officer Bedwell) and the other officers began to bag evidence and record its retrieval in an
evidence log. Id. Mr. Widmer was given the chance to, and did in fact, cross-examine Officer
Bedwell. Id. at 8427-8452.
Quillan Short, a road patrol officer with the Hamilton Township Police Department,
testified he was dispatched to the Widmer home and that when he arrived there were already a
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deputy and fire department life squad on scene.

Id. at 8525-8580. Officer Short described the

scene and the condition of Sarah Widmer's body. Id. He testified that he and the other officers
secured the scene and after Lt. Braley arrived, he and Lt. Braley did a "walk through" of the home
and surrounding area.

In addition, he took pictures of the home including the scene where Sarah

Widmer had been laying and recovered several items from the scene. Id. Officer Short further
testified that two days later, after obtaining a search warrant, he, Lt. Braley, and Lt. Carlton
returned to the Widmer home and assisted in the recovery of additional evidence. Id. Officer
Short stated that at that time, Lt. Braley fingerprinted the bathtub and subsequently two people
from the Miami Valley Crime Lab helped process the bathtub. Id. Mr. Widmer was permitted to,
and did, cross-examine Officer Short. Id. at 8580-8604.
As noted above, Mr. Widmer's non-state law argument is that the state prevented him from
raising a "Kyles defense." That is, if he had been permitted to question Lt. Braley about his
background thereby putting his credibility at issue, he (Mr. Widmer) would then have been able to
challenge the integrity of the investigation including: the collecting and processing of evidence
(especially the bathtub); the coroner's conclusion that Sarah Widmer's death was a homicide; and
the decision to charge Mr. Widmer.
First, as noted above, Mr. Widmer had the opportunity to cross-examine at length Lt.
Braley, as well as all of the other officers who testified about the processing of the scene, the
collection of evidence, as well as their roles, if any, in the decision to charge Mr. Widmer.
Second, Mr. Widmer had the opportunity to cross-examine Dr. Uptegrove, (as well as Lt. Braley
and Investigator Burke who were present during the autopsy), who testified extensively about
what he found during Ms. Widmer's autopsy and about the basis of his conclusion that the manner
of her death was homicide. In other words, Mr. Widmer had every opportunity to challenge the
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integrity of the police officers' investigation, Dr. Uptegrove's determination that the manner of
Sarah Widmer's death was homicide, and the decision to charge Mr. Widmer with her murder.
The opportunity to impeach Lt. Braley with the 1996 application for employment and the
information contained therein would have added nothing to Mr. Widmer's already present
opportunities to cross-examine the witnesses on any subject relevant to the investigation. Mr.
Widmer's "Kyles defense" claim fails.
Mr. Widmer makes similar arguments with respect to the June 1, 2011, DD&M report.
He argues that the report establishes that Lt. Braley completed the 1996 application and further, it
shows that during his career Lt. Braley lied about his background and experience in order to obtain
positions for which he was not qualified. Mr. Widmer's position is that if he had access to that
information, he could have impeached Lt. Braley and cast doubt on the integrity of the
investigation. However, for the same reasons stated above with respect to the 1996 application,
this Court concludes that at trial Mr. Widmer had the opportunity to cross-examine and impeach
Lt. Braley as well as the other officials who participated in the investigation into Sarah Widmer's
death and that having the information in the DD&M report would have not added anything to those
opportunities.
The Court turns to Mr. Widmer's Napue claim.
Under Napue, a prosecutor "may not knowingly use false evidence, including false
testimony, to obtain a tainted conviction regardless of whether the prosecutor solicits false
evidence or ... allows false evidence to go uncorrected when it appears." Napue, 360 U.S. at 269.
The knowing use of false or perjured testimony
constitutes a denial of due process if there is any
reasonable likelihood that the false testimony could
have affected the judgment of the jury. United States
v. Bagley, 473 U.S. 667, 678 ... (1985). In order to
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establish prosecutorial misconduct or denial of due
process, the defendants must show (1) the statement
was actually false; (2) the statement was material;
and (3) the prosecution knew it was false. United
States v. O'Dell, 805 F.2d 637, 641 (6th Cir. 1986),
cert. denied, 484 U.S. 859 ... (1987). The burden is
on the defendants to show that the testimony was
actually perjured, and mere inconsistencies in
testimony by government witnesses do not establish
knowing use of false testimony. United States v.
Griley, 814 F.2d 697, 971 (4th Cir. 1987).
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); Coe v. Bell, 161F.3d320, 343 (6th
Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Mr. Widmer's position is that the November 2010 BCI report and the June 1, 2011, DD&M
report, discovered after the May 5, 2010, hearing on Lt. Braley's and the state's motions to quash
subpoenas seeking Lt. Braley's employment records from General Electric, the United States
Postal Service, and Hamilton Township, establish that Lt. Braley authored the June 23, 1996,
Hamilton Township employment application form. He argues that this additional evidence
establishes that at the May 2010 hearing when he denied completing the 1996 application, Lt.
Braley committed perjury.
Mr. Widmer has not shown that Lt. Braley's testimony about the application qualifies as
"actually false." At the May 5, 2010, hearing, Lt. Braley testified, inter alia, that he did not recall
ever filling out the June 23, 1996, Hamilton Township employment application. He further stated
that some of the information in the application was inaccurate and that he was not aware of
Hamilton Township's existence until 1997(Tr., ECF No. 21-6, PageID 4219-4230). Lt. Braley
testified on cross-examination that he did not recall filling out the application, he knew he had not
filled out the June 1996 application, and that while the signature on the application looked like his,
he had not signed the application. Id. at PagelD 4244-46.
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After carefully reviewing Lt. Braley's May 5, 2010, testimony, this Court concludes, as did
the state court, that Lt. Braley's testimony demonstrates, at best, some inconsistencies in the
record. Those inconsistencies can be easily attributed to the passing of almost fourteen years
between the June 1996 date of the application and the May 2010 date of Lt. Braley's hearing
testimony.

Indeed, innocent misrecollection is not an uncommon experience. Mere

inconsistencies in the record do not establish the knowing use of false testimony by the prosecutor.
See Lochmondy, 890 F.2d at 822.
The entire thrust of Mr. Widmer' s arguments related to his Sixth and Seventh Grounds for
Relief is that if the jury had known that Lt. Braley had committed perjury and had lied about his
background and experience, Mr. Widmer could have challenged and put into question the entire
investigative process which ultimately resulted in his conviction and sentence. Mr. Widmer's
position seems to be that if he had been able to cast doubt on the investigation through his
impeachment of Lt. Braley, the jury would have reached a different conclusion; that is, it would
have returned a verdict of not guilty. However, even if he had impeached Lt. Braley, there was an
abundance of evidence from the other investigating officers about the evidence that the officers
collected. See supra. In addition, the testimony from other witnesses, specifically, those not
related to the investigation, more than supported the jury's verdict. See Fourth Ground for Relief,
supra.
The state court's decisions as to Mr. Widmer's claims in his Sixth and Seventh Grounds for
Relief are not contrary to nor an unreasonable application of clearly established federal law. Mr.
Widmer's Sixth Ground for Relief and Seventh Ground for Relief are without merit and should be
dismissed.

132

EIGHTH GROUND FOR RELIEF

In his Eighth Ground for Relief, Mr. Widmer argues that his trial counsel was
constitutionally ineffective because, in the unlikely event that the state provided counsel with the
information related to Lt. Braley, they failed to act on that information.
In opposition, the Warden argues first, that Mr. Widmer’s Eighth Ground for Relief has the
same problem as his Third Ground for Relief in that his habeas counsel represented him at trial and
is therefore arguing her own ineffectiveness (Return of Writ, ECF No. 22, PageID 10164-10165).
The Warden also argues that Mr. Widmer’s ineffectiveness claim is without merit because he has
failed to show that there was a reasonable probability that additional evidence pertaining to Lt.
Braley would have changed the outcome of his trial or that he was actually prejudiced. Id.
In his Traverse, Mr. Widmer does not specifically address the Warden’s arguments but
instead relies on the arguments he raised in his Petition (ECF No. 25, PageID 10247).
First, the Court notes that Mr. Widmer’s Eighth Ground for Relief is based on an
assumption that the state provided his counsel with the additional evidence about Lt. Braley.
Basing a habeas claim on an assumption would provide a basis for rejecting the claim.
Nevertheless, out of an abundance of caution, the Court will address Mr. Widmer’s claim.
In rejecting Mr. Widmer’s Third Ground for Relief, this Court identified and discussed the
standard for an ineffective assistance of counsel claim in a habeas action and that discussion is
incorporated herein. See supra, citing Strickland, 466 U.S. 668. This Court noted that a petitioner
must establish that trial counsel’s performance was deficient and also that it prejudiced his
defense.
While discussing Mr. Widmer’s Sixth and Seventh Grounds for Relief, this Court

133

determined that even if the jury had any of the information concerning Lt. Braley, including the
DD&M report, the result of Mr. Widmer’s trial would not have been different. Therefore, even
assuming that his counsel had such information, Mr. Widmer has failed to establish that he was
prejudiced by his trial counsels’ failure to introduce any additional evidence about Lt. Braley.
Mr. Widmer’s Eighth Ground for Relief is without merit and should be rejected.

NINTH AND TENTH GROUNDS FOR RELIEF

Because the state postconviction appeals court addressed together Mr. Widmer’s DNA
testing claim and his ineffective assistance of counsel claim as to that DNA testing, this Court will
do the same.
Mr. Widmer argues in support of his Ninth Ground for Relief that the trial court improperly
denied his postconviction request for DNA testing of Sarah Widmer’s remains (Petition, ECF No.
1, PageID 139-51). Mr. Widmer’s position is that DNA testing could have established that Sarah
Widmer suffered from Long QT Syndrome which could have caused her to drown in the bathtub.
Id.

He claims that the state court improperly concluded that he fell outside the statutory

postconviction DNA testing scheme and that denying his request was a violation of his due process
and equal protection rights. Id. In opposition, the Warden argues first that this issue is a question
of state law and therefore outside the scope of this habeas proceeding (Return of Writ, ECF No. 22,
PageID 10166-10176). The Warden also argues that Mr. Widmer does not have protectable due
process rights with respect to the postconviction DNA testing process and that he has failed to
establish an equal protection claim. Id. In reply, Mr. Widmer essentially repeats the arguments
that he raised in his Petition (Traverse, ECF No. 25, PageID 10236-10245).

134

In his Tenth Ground for Relief, Mr. Widmer argues that his counsel was ineffective for
failing to pursue DNA testing of Ms. Widmer’s remains for the purpose of establishing that she
suffered with a genetic disorder that caused her to drown in the bathtub (Petition, ECF No. 1,
PageID 151-54). His position is that such DNA testing would have established that Sarah
Widmer suffered with Long QT Syndrome, a syndrome that causes sufferers to go unconscious
and potentially drown in water. Mr. Widmer claims that such evidence would have changed the
entire landscape of the evidence, would have raised reasonable doubt, and explained away every
piece of evidence against him. Id. at PageID 153.
In opposition, the Warden includes his arguments that address Mr. Widmer’s Tenth
Ground for Relief with his arguments that address Mr. Widmer’s Ninth Ground for Relief (Return
of Writ, ECF No. 22, PageID 10166-10176). Presumably, then, the Warden’s position is that
because Mr. Widmer’s DNA testing claim is without merit, he fails to establish the prejudice prong
under Strickland v. Washington, 466 U.S. 668 (1984). In his Traverse, Mr. Widmer does not raise
any new arguments, but relies instead on the arguments in his Petition (ECF No. 25, PageID
10247).
Mr. Widmer raised these issues in his appeal of the trial court’s denial of his postconviction
petition and the court of appeals addressed them as follows:
[*P108] Assignment of Error No. 3:
[*P109] THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO GRANT WIDMER'S POST–CONVICTION
REQUEST FOR GENETIC DNA TESTING OF SARAH
WIDMER'S BIOLOGICAL REMAINS TO DETERMINE IF SHE
SUFFERED FROM A GENETIC DISORDER. SUCH GENETIC
TESTING IS NECESSARY TO PROPERLY REVIEW THE
POST–CONVICTION CLAIM OF INEFFECTIVE ASSISTANCE
OF
TRIAL
COUNSEL,
BECAUSE
IF
TESTING
135

DEMONSTRATED THAT SARAH SUFFERED FROM A
GENETIC DISORDER, THEN TRIAL COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE IN VIOLATION OF THE SIXTH
AND FOURTEENTH AMENDMENTS FOR FAILING TO
PURSUE WHAT WOULD HAVE LED TO CRUCIAL,
EXCULPATORY EVIDENCE FOR THE JURY'S REVIEW. BUT
BECAUSE THE TRIAL COURT DENIED WIDMER'S
REQUEST
FOR
TESTING,
IT
UNREASONABLY
FORECLOSED ANY POSSIBILITY OF EVALUATING
WHETHER
TRIAL
COUNSEL
PROVIDED
CONSTITUTIONALLY DEFICIENT ASSISTANCE IN THIS
REGARD.
[*P110] In his third assignment of error, Widmer argues that
the trial court erroneously denied his application for DNA
testing of Sarah’s biological remains.
III. DNA TESTING
A. Standard of Review
[*P111] We review the trial court's decision regarding the
acceptance or denial of an offender's application for postconviction
DNA testing for an abuse of discretion. See, e.g., State v. Broadnax,
2nd Dist. No. 24121, 2011–Ohio–2182, ¶ 14. An abuse of discretion
implies that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Gondor, 2006–Ohio–6679 at ¶ 60.
B. Background
[*P112] In April 2011, Widmer filed a “Motion to Preserve
Evidence,” seeking to preserve Sarah Widmer's biological remains
and all physical evidence collected from the crime scene pursuant to
R.C. 2933.82. One month later, the trial court granted Widmer's
motion. Subsequently, in his postconviction petition, Widmer
requested that the court grant access to Sarah's biological remains
for the purpose of DNA testing. Widmer argued that testing would
determine whether Sarah suffered from a congenital heart defect
called Long QT Syndrome, which may have caused her to drown.11
Widmer also sought DNA testing to prove ineffective assistance of
trial counsel, based on counsel's failure to seek DNA testing at the
trial level. The trial court denied Widmer's request upon finding that
his arguments were unfounded in the evidence.
FN11. According to an affidavit prepared by Widmer’s
136

medical expert, Dr. Michael Gregory Balko, Long QT
Syndrome is a “rare condition” in which patients are “at an
increased risk for sudden cardiac death relative to the
general population.” According to Blako, a “curious
association exists between drowning and the Long QT
Syndrome.”
[*P113] On appeal, Widmer argues that the trial court abused its
discretion by denying his request for DNA testing. Widmer also
challenges the constitutionality of Ohio's DNA testing scheme,
arguing that it violates the Due Process Clauses and the Equal
Protection Clauses of the Ohio and United States Constitutions.
C. Ohio's DNA Testing Scheme
[*P114] Since 2003, Ohio law has provided specific procedures for
postconviction DNA testing. See Am.Sub.S.B. No. 11;
Am.Sub.S.B. No. 262; Am.Sub.S.B. No. 77. Currently, under R.C.
2953.71 through .81, eligible offenders may petition the trial court
to order state funded DNA testing on biological material from their
cases. R.C. 2953.72(C)(1) establishes criteria for preliminary
eligibility, and R.C. 2953.74 outlines additional factors that must be
satisfied before a trial court “may accept” an application for DNA
testing. See R.C. 2953.74(B), (C).
[*P115] Under the current DNA testing scheme, offenders may
apply to have their own DNA compared against biological evidence
recovered from the victim or the crime scene, for the purpose of
scientifically precluding the offender as a “contributor of biological
material from the crime scene or victim in question * * * .” R.C.
2953.71(G). See also 2953.74(C). In essence, the DNA testing
statutes provide an opportunity for the accused to establish that
another individual committed the crime in question.
[*P116] Widmer concedes that he does not qualify under the
statutes, because he has requested a test of Sarah's DNA, rather than
his own, and he seeks to diagnose a genetic defect, rather than to
exclude himself as a contributor of DNA at the crime scene.
Nevertheless, he argues that he should not be precluded from
postconviction DNA testing, where he has offered to pay for all
DNA tests himself. For this reason and various policy-based
reasons, Widmer argues that the trial court abused its discretion by
denying his request for DNA testing.
1. R.C. 2933.82
137

[*P117] Widmer first argues that disallowing DNA testing in his
case runs contrary to R.C. 2933.82, which was the basis for the trial
court's decision to grant his Motion to Preserve Evidence. Under
R.C. 2933.82, “governmental evidence-retention entit[ies],”
including courts, must secure biological evidence in an “amount and
manner sufficient to develop a DNA profile * * *.” R.C.
2933.82(B)(3). In light of this statute, Widmer argues that the trial
court “arbitrarily and unreasonably refused to permit [him] access to
the same evidence for the same purpose as the trial court already
granted the Preservation Order.”(Emphasis sic.)
[*P118] The state responds that R.C. 2933.82 does not address
whether a trial court should grant an application for DNA testing.
We agree with the state. The Ohio legislature created an entirely
different scheme in R.C. 2953.71 et seq. to address applications for
DNA testing. Thus, we cannot say that the trial court acted
unreasonably in the face of R.C. 2933.82 in denying Widmer's
application for DNA testing.
2. Outcome Determinative Results
[*P119] As an alternate argument, Widmer claims that although he
is ineligible for state funded DNA testing, his request for privately
funded DNA testing could lead to “outcome determinative
evidence” in accordance with the meaning of the term under R.C.
2953.71(L), which states,
“Outcome Determinative” means that had the results of
DNA testing of the subject offender been presented at the
trial of the subject offender requesting DNA testing and
been found relevant and admissible with respect to the
felony offense for which the offender is an eligible offender
and is requesting the DNA testing, and had those results
been analyzed in the context of and upon consideration of all
available admissible evidence related to the offender's case
as described in division (D) of section 2953.74 of the
Revised Code, there is a strong probability that no
reasonable factfinder would have found the offender guilty
of that offense or, if the offender was sentenced to death
relative to that offense, would have found the offender guilty
of the aggravating circumstance or circumstances the
offender was found guilty of committing and that is or are
the basis of that sentence of death.

138

[*P120] According to Widmer, testing Sarah's DNA could show
that she suffered from Long QT Syndrome, which would have
highlighted the possibility that she drowned as a result of natural
causes. Widmer believes that if this evidence was admitted at trial,
there is a “strong probability that no reasonable factfinder would
have found [him] guilty” of murder. Thus, Widmer sees no reason
that he should have been denied the opportunity to test Sarah's
DNA.
[*P121] We recognize that Widmer has private funds for testing,
and therefore he would not place a financial burden on the state by
testing for the desired outcome. However, Widmer asks us to read
the term “outcome determinative” in a much broader sense than
clearly intended by the legislature. Widmer contends that R.C.
2953.71(L) “simply requires a helpful DNA test result that would
raise reasonable doubt * * *.” However, the legislature used far
more specific language that limits testing to the “subject offender's”
biological tissue and the biological material of unidentified
prospective perpetrators. By all accounts, postconviction relief is a
very narrow remedy, and a decision expanding both the scope and
the core meaning of a statutory term is more properly left to the
legislature. See Dist. Attorney's Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52, 68, 129 S .Ct. 2308 (2009); State v. Steffen,
70 Ohio St.3d 399, 410 (1994); State ex rel. Nimberger v. Bushnell,
95 Ohio St. 203, 214 (1917).
[*P122] Thus, we reject Widmer's second argument.
3. Resolving the Issues in Widmer's Postconviction Petition
[*P123] Widmer next contends that “Ohio's official interpretation
of SB 77 makes clear that a court can order DNA testing outside of
the statutes when: (1) the inmate has timely filed a post-conviction
motion; and (2) the court would need the results of the DNA testing
to fairly assess the merits of the post-conviction claim.” Here,
Widmer claims that without DNA testing, the trial court could not
properly assess the merits of his ineffective assistance of counsel
claim. According to Widmer, a finding that Sarah suffered from
Long QT Syndrome would demonstrate ineffective assistance of
trial counsel, where, but for counsel's failure to seek DNA testing at
the trial level, the jury could have considered whether Sarah died of
natural causes.

139

[*P124] In support of this proposition, Widmer cites Attorney
General Opinion No.2005–009, wherein the Ohio Attorney General
stated that “R.C. 2953.71–.81 and R.C. 2953.82 are not the
exclusive means by which an inmate may obtain post-conviction
DNA testing,” and that “Sub. S.B. 11 does not prevent an inmate
from obtaining DNA testing in a post-conviction judicial
proceeding when such testing will assist a court in ruling on a
post-conviction motion or petition.”[sic] 2005 Ohio Atty.Gen.Ops.
No.2005–009, at paragraph three of the syllabus, 11.
[*P125] Widmer relies on the advisory opinion to support his
assertion that the trial court abused its discretion by ruling that
“genetic testing [was] not necessary and not an aide to properly
evaluating the ineffective assistance claim * * *.” We disagree.
[*P126] First, Widmer fails to recognize that the Attorney General
was interpreting former R.C. 2953.71 to 2953.82, which were
enacted pursuant to Sub.S.B. 11, not Sub.S.B. 77, which now
contains the language in R.C. 2953.84 that,
The provisions of sections 2953.71 to 2953.81 of the
Revised Code by which an offender may obtain
postconviction DNA testing are not the exclusive means by
which an inmate may obtain postconviction DNA testing,
and the provisions of those sections do not limit or affect any
other means by which an offender may obtain
postconviction DNA testing.
[*P127] Further, the Attorney General did not address whether
offenders could petition the court to test a victim's DNA, or whether
the court should grant such a request. Instead, the Attorney General
simply stated that there could be additional situations in which an
inmate may successfully petition the trial court to order DNA
testing. Id. at 14, fn. 26 (“a court may in certain instances, but is not
required to, order DNA testing when considering a post-conviction
petition for relief”). (Emphasis added.) See also State v. Constant,
11th Dist. No.2008–L–100, 2009–Ohio–3936 (finding that 2005
Ohio Atty.Gen.Ops. No.2005–009 was rendered “moot” as a result
of statutory revisions since Sub.S.B. 11).
[*P128] Moreover, to accept Widmer's argument would result in the
broadest interpretation of the statutes by any court to date. Widmer
perceives the Attorney General's opinion as a go-ahead for courts to
140

order DNA testing on a victim, so long as the results of that test
would help the court resolve an issue in a postconviction claim.
However, as with Widmer's other suggested interpretations, he asks
us to read into the statutes a remedy that the law fails to supply. For
this court to extend the DNA testing statutes to include victims, or
even to incorporate the language used by the Attorney General,
would be, we think, tantamount to amending the statute by judicial
interpretation, “thus violating the age old principle that the duty of
courts is * * * to interpret the law and not to make law.” Bayer v.
Am. Ship Bldg. Co., 79 Ohio App. 450, 455 (8th Dist.1946). “It is
not our province to guess what the [l]egislature intended but rather
to ascertain the intent of the language which it did adopt* * *.”Katz
v. Dept. of Liquor Control of Ohio, 166 Ohio St. 229, 232 (1957).
[*P129] Here, the statutes do not embrace victims as the subjects of
DNA testing, and we see no indication that this was a mere
oversight by the legislature. We also do not read R.C. 2953.84 to be
so expansive as to include testing on victims, particularly when this
would require numerous other changes to the guidelines for
application and testing set forth in R.C. 2953.71 through .81. See
Bushnell, 95 Ohio St. at 214.The operation of a statute should not
“be so enlarged as to embrace subjects not specifically enumerated *
* * if the legislature desires to include certain persons who are not
included within the terms of a statute, it should act and the statute
should not be extended by judicial construction.” 85 Ohio
Jurisprudence 3d, Avoidance of Interpolation and the Like, Section
132 (2012). See also Police & Firemen's Disability & Pension Fund
v. Akron, 149 Ohio App.3d 497, 2002–Ohio–4863, ¶ 14 (9th Dist.)
(“[a] statute cannot be extended by construction to persons or things
not falling within its terms, although they may appear to be within
the reason and spirit of the statute”).
[*P130] Thus, we decline to adopt Widmer's interpretation of the
DNA testing scheme, and we reject his idea that this case falls
“squarely” within the scenario outlined by the Attorney General's
opinion. See In re Estate of Roberts, 94 Ohio St.3d 311, 317 (2002)
(“[t]here is no authority under any rule of statutory construction to
add to, enlarge, supply, expand, extend or improve the provisions of
the statute to meet a situation not provided for”). The DNA testing
statutes, or any suggested interpretations thereof, do not support a
finding of an abuse of discretion in this matter.
[*P131] However, even if, strictly for the sake of this opinion, we
consider Widmer's argument, we would still reject his claim that the
141

trial court erred by overruling his ineffective of counsel claim
without resorting to DNA testing results.
[*P132] In a postconviction petition asserting ineffective assistance
of counsel, the petitioner must first show that “his trial counsel's
performance was deficient; and second, that the deficient
performance prejudiced the defense to the point of depriving the
appellant of a fair trial.” State v. Oberding, 12th Dist. No. CA2011–
09–101, 2012–Ohio–3047, ¶ 28, citing Strickland, 466 U.S. 668.See
also State v. Pankey, 68 Ohio St.2d 58, 59 (1981). Regarding the
first prong, a petitioner must demonstrate that his counsel's
representation “fell below an objective standard of reasonableness.”
Strickland at 688. The second prong requires the petitioner to show
“a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. at
694. “[A] court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.” Id. at 697. “A
defendant's failure to satisfy one prong of the Strickland test negates
a court's need to consider the other.” State v. Madrigal, 87 Ohio
St.3d 378, 389 (2000), citing Strickland at 697.
[*P133] A trial court's decision resolving a postconviction claim of
ineffective assistance of counsel “will be upheld absent an abuse of
discretion when the trial court's finding is supported by competent
and credible evidence.” Gondor, 2006–Ohio–6679 at ¶ 60.
[*P134] Here, Widmer fails to demonstrate an abuse of discretion
by the trial court, where a showing that Sarah actually suffered from
Long QT Syndrome was not necessary for determining whether
Widmer suffered prejudice as a result of trial counsel's failure to
seek DNA testing.12
FN12. Widmer admits that it “may have been impossible for
trial counsel to pursue [DNA testing] based on the
technology available at the time.” However, in order to
analyze the prejudice prong of Strickland, we will assume,
without finding that the appropriate DNA tests were
available prior to or during the third trial.
[*P135] “A court hearing an ineffectiveness claim must consider
the totality of the evidence before the judge or jury.” Strickland, 466
U.S. at paragraph 2(b) of the syllabus. As the trial court noted here,
even without DNA testing results, the jury heard, and presumably
considered, expert testimony as to the possibility that Sarah suffered
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from a sudden cardiac event, including Long QT Syndrome.13
Widmer has failed to show that, but for trial counsel's failure to seek
actual DNA testing, the jury's consideration of this matter would
have been different. Given the amount of evidence in favor of
Widmer's guilt, as well as the evidence already before the jury
regarding Long QT Syndrome, Widmer has failed to demonstrate
that counsel's failure to seek DNA testing deprived him of “a trial
whose result is reliable.” Id. at 687.
FN13. Specifically, Widmer elicited testimony about Long
QT Syndrome from Dr. Russel Uptegrove, Dr. Michael
Gregory Balko, and Dr. William Rogers. For instance, on
direct examination, Widmer specifically asked Balko
whether, based on Sarah’s clinical history and the autopsy,
there was any evidence that she suffered from Long QT
Syndrome, Balko responded affirmatively, and explained
that Sarah exhibited several traits commonly associated with
a specific strain of Long QT called Anderson Tawil
Syndrome, including a cleft palate and headaches. In the
context of Long QT Syndrome and other heart conditions,
Rogers testified that some manifestations of sudden cardiac
death would not be detectable in an autopsy, and that
patients who never exhibited symptoms of a cardiac
condition could still have one, and that it could cause them
to drown. Widmer drew similar testimony about autopsies
from Uptegrove on cross-examination.
[*P136] In sum, we reject Widmer's argument that the trial court
abused its discretion by dismissing his ineffective assistance of
counsel claim without ordering DNA testing on Sarah's biological
remains.
4. Constitutionality
[*P137] Next, Widmer challenges the constitutionality of Ohio's
DNA testing scheme on due process and equal protection grounds.
a. Standard of Review
[*P138] We begin our discussion with the premise that all statutes
are presumed constitutional. State v. Thompkins, 75 Ohio St.3d 558,
560 (1996). “The party challenging the statutes bears the burden of
proving otherwise.” Id. “Further, the legislation being questioned
will not be invalidated unless the challenger establishes that it is
unconstitutional beyond a reasonable doubt.” Id., citing Arnold v.
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Cleveland, 67 Ohio St.3d 35, 38–39 (1993).
(1) Due Process
[*P139] Widmer first claims that the trial court's refusal to grant
him access to Sarah's biological remains constitutes a violation of
his substantive and procedural due process rights under the Ohio
and United States Constitutions. Specifically, Widmer contends that
it violates due process to prevent those who are willing to pay for
DNA testing from accessing the state's evidence to test a victim's
DNA for a genetic defect.
[*P140] As to Widmer's substantive due process claim, the
Supreme Court of the United States has unambiguously concluded
that there is no substantive due process right to obtain evidence for
DNA testing in a postconviction setting. See Osborne, 557 U.S. at
68. Accordingly, Widmer fails to establish a substantive due process
right to access Sarah's biological remains for DNA testing.
[*P141] Regarding Widmer's procedural due process claim, the
Supreme Court mandates a two-step analysis: “We first ask whether
there exists a liberty or property interest of which a person has been
deprived, and if so we ask whether the procedures followed by the
State were constitutionally sufficient.” Swarthout v. Cooke, ___
U.S. ___, ___, 131 S.Ct. 859, 861 (2011). “A liberty interest may
arise from the Constitution itself * * * or it may arise from an
expectation or interest created by state laws or policies * * *.”
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005).
[*P142] First, postconviction relief is strictly a statutory right, not a
constitutional right. See State v. McGuire, 12th Dist. No. CA2000–
10–011, 2001 WL 409424, * 8 (Apr. 23, 2001). Thus, we ask
whether Ohio law recognizes the existence of a liberty interest in the
postconviction DNA testing of a victim's biological remains. We
find that it does not. As previously discussed, the plain language of
the current DNA testing statutes does not include within their scope
the testing of a victim's DNA. See Doe v. Marlington Local Sch.
Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009–Ohio–1360, ¶ 29; Katz,
166 Ohio St. at 232; Bushnell, 95 Ohio St. at 214. Thus, because
Widmer has no statutorily recognized liberty interest in accessing
the state's evidence to test Sarah's DNA, he is not entitled to
procedural due process. See, e.g., Olim v. Wakinekona, 461 U.S.
238, 103 S.Ct. 1741 (1983).
(2) Equal Protection
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[*P143] Widmer also claims that the trial court's application of R.C.
2953.71 et seq. violates his equal protection rights.
[*P144] The Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution provides, “No State shall * * *
deny to any person within its jurisdiction the equal protection of the
laws.” Ohio's Equal Protection Clause, Section 2, Article I of the
Ohio Constitution, states, “All political power is inherent in the
people. Government is instituted for their equal protection and
benefit * * *.” These constitutional guarantees do not forbid
classifications. “[They] simply keep[ ] governmental
decisionmakers from treating differently persons who are in all
relevant respects alike.” Burnett v. Motorists Mut. Ins. Co., 118
Ohio St.3d 493, 2008–Ohio–2751, ¶ 30; Nordlinger v. Hahn, 505
U.S. 1, 10, 112 S.Ct. 2326 (1992). Thus, the comparison of only
similarly situated persons or groups is integral to an equal protection
analysis. See, e.g., GTE N., Inc. v. Zaino, 96 Ohio St.3d 9, 2002–
Ohio–2984, ¶ 22.
[*P145] Here, Widmer's claim fails for the fundamental reason that
he is not similarly situated to the offenders listed in R.C. 2953.71 et
seq. so as to violate the guarantees of equal protection. There is a
vast difference between offenders who seek to compare their own
DNA against that of an unidentified prospective perpetrator, and
those who wish to test a victim's DNA for, perhaps, an interminable
array of ailments in the hopes of discovering some mitigating
evidence. The concepts are so distinct as to be beyond comparison,
and, quite simply, “there is no requirement of equal treatment
between differently situated persons.” Home Depot U.S.A., Inc. v.
Levin, 121 Ohio St.3d 482, 2009–Ohio–1431, ¶ 19, citing GTE at 22
(“the Equal Protection Clause does not require things which are
different in fact * * * to be treated in law as though they were the
same”).
[*P146] Accordingly, we find that Widmer's equal protection claim
lacks merit.
D. Conclusion
[*P147] Having considered and rejected all of Widmer's arguments
regarding Ohio's postconviction DNA testing scheme, we overrule
Widmer's third assignment of error.
Widmer, 2013-Ohio-62.
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To the extent that Mr. Widmer challenges the state court’s interpretation of the statutory
postconviction DNA testing scheme on state law grounds, that claim is not cognizable in habeas.
Estelle, 502 U.S. at 67-68. The Court turns to Mr. Widmer’s constitutional claims of due process
and equal protection violations.
There is no substantive due process right to obtain evidence for postconviction DNA
testing. District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 68 (2009).
Although Osborne was a Section 1983 matter as opposed to habeas, the Court’s discussion of
DNA testing vis-à-vis due process is persuasive:
The Court of Appeals below relied only on procedural due process,
but Osborne seeks to defend the judgment on the basis of
substantive due process as well. He asks that we recognize a
freestanding right to DNA evidence untethered from the liberty
interests he hopes to vindicate with it. We reject the invitation and
conclude, in the circumstances of this case, that there is no such
substantive due process right. “As a general matter, the Court has
always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v. Harker
Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992). Osborne seeks access to state evidence so that he can apply
new DNA-testing technology that might prove him innocent. There
is no long history of such a right, and “[t]he mere novelty of such a
claim is reason enough to doubt that ‘substantive due process'
sustains it.” Reno v. Flores, 507 U.S. 292, 303, 113 S.Ct. 1439, 123
L.Ed.2d 1 (1993).
And there are further reasons to doubt. The elected governments of
the States are actively confronting the challenges DNA technology
poses to our criminal justice systems and our traditional notions of
finality, as well as the opportunities it affords. To suddenly
constitutionalize this area would short-circuit what looks to be a
prompt and considered legislative response. The first DNA testing
statutes were passed in 1994 and 1997. Act of Aug. 2, 1994, ch. 737,
1994 N.Y. Laws 3709 (codified at N.Y.Crim. Proc. Law Ann. §
440.30(1–a) (West)); Act of May 9, 1997, Pub. Act No. 90–141,
1997 Ill. Laws 2461 (codified at 725 Ill. Comp. Stat., ch. 725, §
5/116-3 (a) (West)). In the past decade, 44 States and the Federal
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Government have followed suit, reflecting the increased availability
of DNA testing. As noted, Alaska itself is considering such
legislation. See supra, at 2316 – 2317. “By extending constitutional
protection to an asserted right or liberty interest, we, to a great
extent, place the matter outside the arena of public debate and
legislative action. We must therefore exercise the utmost care
whenever we are asked to break new ground in this field.”
Gluchsberg, 521 U.S. at 720, 117 S.Ct. 2258 (internal quotation
marks omitted). “[J]udicial imposition of a categorical remedy ...
might pretermit other responsible solutions being considered in
Congress and state legislatures.” Murray v. Giarratano, 492 U.S. 1,
14, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (KENNEDY, J.,
concurring in judgment). If we extended substantive due process to
this area, we would cast these statutes into constitutional doubt and
be forced to take over the issue of DNA access ourselves. We are
reluctant to enlist the Federal Judiciary in creating a new
constitutional code of rules for handling DNA. FN4
FN4. The dissent asserts that our position “resembles”
Justice Harlan's dissent in Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Post, at 2339,
n. 10 (opinion of STEVENS, J.). Miranda devised rules to
safeguard a constitutional right the Court had already
recognized. Indeed, the underlying requirement at issue in
that case that confessions be voluntary had “roots” going
back centuries. Dickerson v. United States, 530 U.S. 428,
432-433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). In
contrast, the asserted right to access DNA evidence is
unrooted in history or tradition, and would thrust the Federal
Judiciary into an area previously left to state courts and
legislatures.
Establishing a freestanding right to access DNA evidence for testing
would force us to act as policymakers, and our
substantive-due-process rulemaking authority would not only have
to cover the right of access but a myriad of other issues. We would
soon have to decide if there is a constitutional obligation to preserve
forensic evidence that might later be tested. Cf. Arizona v.
Youngblood, 488 U.S. 51, 56-58, 109 S.Ct. 333, 102 L.Ed.2d 281
(1988). If so, for how long? Would it be different for different
types of evidence? Would the State also have some obligation to
gather such evidence in the first place? How much, and when? No
doubt there would be a miscellany of other minor directives. See,
e.g., Harvey v. Horan, 285 F.3d 298, 300-301 (C.A.4 2002)
(Wilkinson, C. J., concurring in denial of rehearing).
147

In this case, the evidence has already been gathered and preserved,
but if we extend substantive due process to this area, these questions
would be before us in short order, and it is hard to imagine what
tools federal courts would use to answer them. At the end of the day,
there is no reason to suppose that their answers to these questions
would be any better than those of state courts and legislatures, and
good reason to suspect the opposite. See Collins, supra, at 125, 113
S.Ct. 853; Glucksberg, supra, at 720, 117 S.Ct. 2258.
***
DNA evidence will undoubtedly lead to changes in the criminal
justice system. It has done so already. The question is whether
further change will primarily be made by legislative revision and
judicial interpretation of the existing system, or whether the Federal
Judiciary must leap ahead—revising (or even discarding) the system
by creating a new constitutional right and taking over responsibility
for refining it.
Federal courts should not presume that state criminal procedures
will be inadequate to deal with technological change. The criminal
justice system has historically accommodated new types of
evidence, and is a time-tested means of carrying out society's
interest in convicting the guilty while respecting individual rights.
That system, like any human endeavor, cannot be perfect. DNA
evidence shows that it has not been. But there is no basis for
Osborne's approach of assuming that because DNA has shown that
these procedures are not flawless, DNA evidence must be treated as
categorically outside the process, rather than within it. That is
precisely what his § 1983 suit seeks to do, and that is the contention
we reject.
Osborne, 557 U.S. at 73-75; see also Skinner v. Switzer, 562 U.S. 521, 525 (2011); In re: Smith,
349 Fed. Appx. 12 at*4 (6th Cir. 2009); Vinzant v. Lazaroff, No. 3:04-cv-444, 2009 WL 2412023 at
*5 (S.D.Ohio Aug. 4, 2009)(Merz, M.J.)(citing Osborne, supra.)
Based on the authority of Osborne, this Court concludes that Mr. Widmer’s substantive
due process claim is without merit.
As to Mr. Widmer’s procedural due process claim, while Osborne rejected the extension of
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substantive due process to the area of postconviction DNA testing claims, it also left slim room for
success on a procedural due process claim. Skinner, 562 U.S. at 525, citing Osborne, 557 U.S. at
70, 72 (Scalia, J. concurring).
In a procedural due process claim, standard analysis proceeds in two steps: “We first ask
whether there exists a liberty or property interest of which a person has been deprived, and if so we
ask whether the procedures followed by the State were constitutionally sufficient. Swarthout v.
Cooke, 562 U.S. 216, 219 (2011), citing Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454
(1989).
A criminal defendant proved guilty after a fair trial does not have the same liberty interests
as a free man. Osborne, 557 U.S. at 68. A state accordingly has more flexibility in deciding what
procedures are needed in the context of postconviction relief.” Id. When a state provides avenues
for convicted defendants to seek relief, “due process does not ‘dictate the exact form such
assistance must assume.’” Id., citing Pennsylvania v. Findley, 481 U.S. 551, 559 (1987).
“Federal courts may upset a State’s postconviction relief procedures only if they are fundamentally
inadequate to vindicate the substantive rights provided.” Osborne, 557 U.S. at 69. “Since 2003,
Ohio law has provided specific procedures for postconviction DNA testing. Under Ohio Revised
Code §§ 2953.71-2953.85, eligible offenders can request that the state perform DNA testing on
biological material from their case.” Hartman v. Walsh, No. 5:11-cv-01401, 2011 WL 5362123 at
*3 (N.D. Ohio Nov. 2, 2011).
Currently, under Ohio Revised Code § 2953.71 through .81, eligible offenders may
petition the trial court to order state funded DNA testing on biological material from their cases.
Ohio Revised Code § 2953.72(C)(1) establishes criteria for preliminary eligibility, and Ohio

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Revised Code § 2953.74 outlines additional factors that must be satisfied before a trial court “may
accept” an application for DNA testing. See Ohio Revised Code § 2953.74(B), (C). Additionally,
offenders may apply to have their own DNA compared against biological evidence recovered from
the victim or the crime scene, for the purpose of scientifically precluding the offender as a
“contributor of biological material from the crime scene or victim in question * * * .” Ohio
Revised Code § 2953.71(G); see also Ohio Revised Code § 2953.74(C). In essence, the DNA
testing statutes provide an opportunity for the accused to establish that another individual
committed the crime in question.
It is clear that the language of Ohio’s DNA testing statutes do not include within their
scope the testing of a victim’s DNA. Accordingly, the DNA testing scheme does not create any
liberty or property interest with respect to Mr. Widmer. Stated differently, Mr. Widmer falls
outside Ohio’s DNA testing statutory scheme and therefore it cannot create for him any liberty or
property interests.
Because the postconviction DNA statutory scheme does not create any liberty or property
interests with respect to Mr. Widmer, it is unnecessary for the Court to reach the question of what
process might be due Mr. Widmer. Accordingly, Mr. Widmer’s procedural due process claim
with respect to postconviction DNA is without merit.
Mr. Widmer claims next that when it denied his request to test Sarah Widmer’s DNA, the
trial court violated his Fourteenth Amendment equal protection rights.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides, “No State shall…deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. Am. XIV, § 1. “Of course, most laws differentiate in some

150

fashion between classes of persons. The Equal Protection Clause does not forbid classifications.
It simply keeps governmental decisionmakers from treating differently persons who are in all
relevant respects alike. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 … (1920).”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, one must
first show that he or she was treated differently from others who were similarly situated. See Mt.
Wlliott Cemetery Ass’n v. City of Troy, 171 F.3d 398, 406 (6th Cir. 1999). “The threshold element
of an equal protection claim is disparate treatment….” Scarbrough v. Morgan Cnty. Bd. Of Educ.,
470 F.3d 250, 260 (6th Cir. 2006).
Mr. Widmer’s equal protection claim is without merit because he is not similarly situated
to any of the offenders identified in Ohio Revised Code § 2953.71, et seq. Specifically, Ohio’s
postconviction DNA statutory scheme provides that offenders may apply to have their own DNA
compared against biological evidence recovered from the victim or the crime scene for the purpose
of scientifically precluding the offender as a “contributor of biological material from the crime
scene or victim in question….” Ohio Revised Code § 2953.71(G); see also Ohio Revised Code §
2953.74(C). In other words, the DNA statutory scheme provides an opportunity for the accused
to establish that another individual committed the crime. In contrast, Mr. Widmer would like to
test Ms. Widmer’s DNA for the purpose of determining whether she had a genetic disorder that
arguably could have caused her to drown in the bathtub. There is simply nothing similar between
an offender wanting to test and compare DNA found on the victim or at the crime scene with the
offender’s own DNA so that the offender can establish that another individual committed the
crime and the offender wanting to test the victim’s DNA to attempt to establish that the victim may
have suffered from a genetic disorder which could have caused the victim’s death.

151

The state court’s decision as to Mr. Widmer’s claim related to the postconviction DNA
testing issue is not contrary to nor an unreasonable application of clearly established federal law.
Therefore, Mr. Widmer’s Ninth Ground for Relief should be rejected.
As noted above, in his Tenth Ground for Relief, Mr. Widmer argues that his counsel was
ineffective for failing to pursue DNA testing of Sarah Widmer’s remains for the purpose of
establishing that she suffered with a genetic disorder that caused her to drown in the bathtub.
First, to the extent that Mr. Widmer’s DNA claim is without merit, counsel’s failure to
pursue a meritless claim does not fall below an objective standard of reasonableness. Further,
even assuming that counsel’s failure to pursue the DNA testing claim did fall below an objective
standard or reasonableness, Mr. Widmer has failed to establish the prejudice prong of Strickland.
Mr. Widmer’s DNA claim revolves around his claim that Sarah Widmer suffered from
Long QT Syndrome which he argues could have caused her to pass out and drown in the tub. His
position with respect to the DNA testing is that such a test would establish that she did suffer with
that syndrome. However, the record establishes that the jury had before it testimony from Drs.
Uptegrove, Balko, and Rogers about Long QT Syndrome and its effects on individuals.
Dr. Uptegrove, the forensic pathologist at the Montgomery County Coroner’s Office and
the Warren County Coroner, testified that he knows what Long QT syndrome is, that along with
other cardiac problems, the people who have the syndrome more often than not have prior history
of fainting, racing heartbeat, as well as a positive family history for Long QT Syndrome (Tr., ECF
N. 21-8, PageID 5239-5390). Dr. Uptegrove also testified that more often than not individuals
with Long QT Syndrome have a significant history of symptomatology before they just “drop
dead.” Id. Dr. Uptegrove testified further that while it was possible for someone to have the

152

syndrome without any prior history, it was debatable as to whether it was likely. Id. Dr.
Uptegrove also testified at great length about the genetic testing aspect of an autopsy including
testing for Long QT Syndrome. Id.
Dr. Lee, the chief forensic pathologist and deputy coroner for Licking County, Ohio,
testified that he was familiar with Long QT Syndrome and was aware that there is genetic testing
available to determine if a person has the Syndrome. Id. at PageID 5550-5678. Dr. Lee also
testified that he was aware that there are numerous different cardiac syndromes that can cause
death, either directly or indirectly, and leave no trace in the autopsy which would give you a
negative autopsy. Id.
Dr. David Smile, an emergency physician, testified that he was familiar with Long QT
Syndrome and Short QT Syndrome, that they are conditions of an electrically unstable heart due to
membrane problems, and that they cannot be diagnosed very easily using an EKG. Id. at PageID
6001-6193. Dr. Smile testified further about other electrically unstable heart conditions which
could cause sudden death. Id.
The jury heard testimony from no fewer than three physicians with respect to the Long QT
Syndrome and how it might affect an individual not the least of which would arguably cause
sudden death. However, it is clear that the jury chose to reject that testimony. What the jury did
do was to find that the evidence against Mr. Widmer established beyond a reasonable doubt that he
was responsible for Sarah Widmer’s bathtub death. The introduction of the testimony related to
the Long QT Syndrome simply did not impress the jury. This Court cannot say that had counsel
introduced DNA evidence that she suffered from Long QT Syndrome and that the condition may
have caused her death, the result of the trial would have been different. Therefore, Mr. Widmer

153

has failed to establish the prejudice prong of Strickland.
Mr. Widmer’s Tenth Ground for Relief is without merit and should be dismissed.

ELEVENTH GROUND FOR RELIEF

In support of his Eleventh Ground for Relief, Mr. Widmer argues that the postconviction
court arbitrarily and unreasonably abused its discretion in violation of his procedural and
substantive due process rights and his rights under the Confrontation Clause when it denied his
motion to compel disclosure of Lt. Braley’s and Dr. Uptegrove’s grand jury testimony (Petition,
ECF No. 1, PageID 155-61). Mr. Widmer’s position is that as a result of the postconviction
court’s denial of his motion, he was unable to discover further evidence of a Brady/Kyles/Napue
violation, to use such evidence to further support his postconviction petition, and to meaningfully
confront Lt. Braley and Dr. Uptegrove as well as the evidence against him. Id.
The Warden argues in opposition that to the extent that Mr. Widmer’s claim is dependent
upon state law, it is not cognizable in this habeas action (Return of Writ, ECF No. 22, PageID
10176-80). The Warden also argues that while Mr. Widmer’s claim concerns a state law issue, to
the extent that his federal due process rights are implicated, the state court’s determination is
consistent with clearly established U.S. Supreme Court precedent that requires a criminal
defendant to demonstrate a particularized need in order to be entitled to grand jury materials. Id.
Mr. Widmer does not specifically address the Warden’s arguments in his Traverse, but
instead relies on the arguments he has raised in his Petition (ECF No. 25, PageID 10247).
Mr. Widmer raised this claim in the appeal related to his postconviction petition and the
appellate court addressed it as follows:
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[*P150] Widmer now argues that the trial court erred when it denied
his request to review the grand jury testimony of Lieutenant Jeff
Braley and Dr. Russell Uptegrove.14 Widmer argues that the trial
court denied him due process of law and his right to access the
courts.
FN14. The trial court did not specifically overrule Widmer’s
motion for the disclosure of grand jury testimony. However,
it is well settled that “a motion that is still pending at the time
of the final disposition of a case is presumed to have been
denied, and the mere failure to rule is harmless error.” State
Dist.
No.
CA2007-04-086,
v.
Piesciuk,
12th
2008-Ohio-4054, ¶28, citing State ex rel. Cassels v. Dayton
City School Dist. Bd. Of Edn., 69 Ohio St.3d 223 (1994).
IV. GRAND JURY TESTIMONY
A. Background
[*P151] Along with his postconviction petition, Widmer filed a
“Motion to Compel Grand Jury Testimony of Witnesses Braley and
Uptegrove,” or, in the alternative, requested that the trial court
perform an in camera inspection of the testimony. Widmer believed
that Braley and Uptegrove likely testified to additional information
before the grand jury, which was relevant to the arguments in his
postconviction petition.
B. Braley's and Uptegrove's Grand Jury Testimony
[*P152] The disclosure of grand jury testimony is governed by
Crim.R. 6(E), which provides that,
[a] prosecuting attorney * * * may disclose matters
occurring before the grand jury, other than deliberations of a
grand jury or the vote of a grand juror, but may disclose
matters only when so directed by the court preliminary to or
in connection with a judicial proceeding, or when permitted
by the court at the request of the defendant upon a showing
that grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand
jury.
[*P153] In State v. Greer, the Supreme Court of Ohio stated that
grand jury proceedings are secret, and that a defendant has no right
155

to inspect grand jury transcripts either before or during trial unless
the “ends of justice require it and there is a showing by the defense
that a particularized need for the disclosure exists which outweighs
the need for secrecy.” State v. Greer, 66 Ohio St.2d 139 (1982),
paragraph two of the syllabus. A particularized need is established
when the circumstances reveal a probability that “the failure to
disclose the testimony will deprive the defendant of a fair
adjudication of the allegations placed in issue by the witness' trial
testimony.” Id. at paragraph three of the syllabus.
[*P154] The existence of a particularized need is a fact question to
be determined by the trial judge, and the ultimate decision rests
within the sound discretion of the court. See Greer at paragraphs
one and three of the syllabus; Crim.R. 6(E). A decision denying the
release of the grand jury transcript will not be reversed absent an
abuse of discretion. State v. Coley, 93 Ohio St.3d 253, 261 (2001).
An abuse of discretion implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable. Gondor, 2006–Ohio–
6679 at ¶ 60.
[*P155] Widmer first claims that an inspection of Braley's grand
jury testimony was necessary to determine whether Braley made
any false statements to the grand jury that would support his Brady,
Kyles, and Napue claims. Widmer also believes that either Braley or
Uptegrove testified before the grand jury as to Braley's involvement
in the autopsy, and that this testimony was essential to determining
whether Braley improperly influenced Uptegrove's homicide
determination. Widmer submits that he had a reasonable basis for
his suspicions based on the “newly discovered” evidence that
Braley,
(1) has committed perjury in this case; (2) fabricated his
background, including experience in the Air Force Special
Services, in order to enjoy a meteoric rise in the Hamilton
Township Police Department (e.g., appointment as director
of the THOR Unit); (3) has a pattern of making false
statements to advance his career; (4) was grossly unqualified
to hold the position he held in this case according to the
unrefuted opinion of a police practices expert attesting to
national standards in the field; and (5) supplied information
about the case to Uptegrove, which Uptegrove admitted he
considered in issuing his decision that a homicide occurred.
[sic]
[*P156] From this information, Widmer constructs a basis for his
156

suspicions that falls well short of meeting his burden for the grand
jury disclosure that he seeks. First, Widmer's purported
particularized need for Braley's testimony is riddled with
unsupported assumptions that Braley acted in conformity with his
alleged past falsehoods in testifying before the grand jury.
Additionally, Widmer does not explain how the nondisclosure of
Braley's grand jury testimony deprived him of a “fair adjudication
of the allegations placed in issue” by Braley's testimony, when we
have already established that none of the above factors impacted the
investigation or the evidence against Widmer, which were the topics
of Braley's testimony.
[*P157] Further, as seen by his trial testimony, Dr. Uptegrove relied
primarily on medical factors in making his homicide determination,
rather than Braley's input, and Widmer fails to set forth a basis for
his belief that the grand jury heard differently.
[*P158] In sum, Widmer has failed to set forth a particularized need
for the disclosure of Braley's or Uptegrove's grand jury testimony
that outweighs the need for secrecy. Thus, we find that the trial court
did not abuse its discretion in denying Widmer's request for the
production of the grand jury transcripts, or an in camera inspection
thereof.
[*P159] Widmer's fourth assignment of error is overruled.

Widmer, 2013-Ohio-62.
First, this Court notes that the arguments that Mr. Widmer raises in support of his Eleventh
Ground for Relief are strikingly similar to those he presented in his brief in support of his appeal of
the denial of his postconviction petition (Compare, Petition, ECF No. 1, PageID 155-61 with
App’x, ECF No. 20-1, Exh. 165, PageID 2410-16). In both cases, Mr. Widmer superficially
refers to his procedural and substantive due process rights as well as his rights under the
Confrontation Clause. Yet in neither does he cite to federal law which supports his claims that his
constitutional rights were violated.
Indeed, in support of his claims in both this Court, as well as the state postconviction
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appellate court, Mr. Widmer relies on three (3) federal cases. Those cases are Butterworth v.
Smith, 494 U.S. 624 (1990), United States v. Procter & Gamble, 356 U.S. 677 (1958), and Craig v.
Lima City Schools Bd. Of Educ., 384 F. Supp. 2d 1136 (N.D. Ohio 2004). Butterworth essentially
stands for the proposition that the principle of grand jury secrecy is not absolute. In Procter &
Gamble the Court recognized the five (5) major policy rationales for maintaining the secrecy of
grand jury proceedings. Finally, Craig acknowledges first, that the principle of grand jury
secrecy is not absolute and second, that under Ohio law a court may order the disclosure of grand
jury evidence. None of these cases address the issues of due process or confrontation rights nor
involve any constitutional analysis.
It is clear to this Court that Mr. Widmer’s Eleventh Ground for Relief involves a state law
claim and it is therefore not cognizable in this habeas action. Even assuming that Mr. Widmer has
submitted some federal constitutional claim, this Court concludes that he has not shown that the
state court’s disposition of that claim was in any way contrary to or an unreasonable application of
clearly established Supreme Court constitutional precedent.
Mr. Widmer’s Eleventh Ground for Relief is without merit and should be rejected.

TWELFTH GROUND FOR RELIEF

In his Twelfth Ground for Relief, Mr. Widmer argues that the state postconviction court
erred by denying his petition without a hearing. Essentially, Mr. Widmer’s position is that by
failing to hold a hearing on his claim about Lt. Braley and his DNA claim, error occurred in
violation of his “procedural and substantive due process rights under the U.S. Constitution
including meaningful access to the courts.” (Petition, ECF No. 1, PageID 162-65.). Other than

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generally citing to Brady and Kyles, see Sixth and Seventh Grounds for Relief, supra, Mr. Widmer
relies on no federal law to support his argument. Id.
The Warden argues in opposition to Mr. Widmer’s claim that the state court did not err by
denying Mr. Widmer a hearing on his postconviction petition (Return of Writ, ECF No. 22,
PageID 10180-10183). The Warden also argues that Mr. Widmer’s claim is not properly before
this Court because federal habeas corpus relief does not lie for errors of state law. Id. Finally, the
Warden argues that a hearing in this Court is precluded by Cullen v. Pinholster, 563 U.S. 170
(2011).
Mr. Widmer does not raise any specific arguments in response to the Warden’s arguments,
but again relies entirely on the arguments he raised in his Petition (Traverse, ECF No. 25, PageID
10247).
First, to the extent that Mr. Widmer seeks to have a hearing in this Court, any such hearing
is barred on the authority of Cullen, supra.
As noted, the thrust of Mr. Widmer’s claim is that the state court improperly denied him an
evidentiary hearing on his claims related to Lt. Braley and DNA.
The Sixth Circuit has held that errors in postconviction proceedings are outside the scope
of federal habeas corpus review. Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986). “Habeas
corpus is not the proper means by which prisoners should challenge errors or deficiencies in state
postconviction proceedings.” Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001), quoting Kirby,
794 F.2d at 246. A ground for relief that challenges the correctness of a state judicial proceeding
and does not dispute the detention itself is not cognizable in habeas. See Kirby, 794 F.2d at 247-48.
Mr. Widmer’s claim that the state postconviction court erred by not holding a hearing is not
cognizable in habeas and his Twelfth Ground for Relief should be rejected.
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Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to
the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

February 2, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections within
fourteen days after being served with a copy thereof. Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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