Bethel v. Warden Ohio State Penitentiary

Filing 134

SUPPLEMENTAL OPINION ON MOTIONS FOR DISCOVERY AND TO STAY - CONCLUSION: For the foregoing reasons, Petitioners Objections (ECF No. 131 ) should be overruled. Signed by Magistrate Judge Michael R. Merz on 2/8/2019. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBERT BETHEL,
:
Petitioner,

Case No. 2:10-cv-391
:

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

SUPPLEMENTAL OPINION ON MOTIONS FOR DISCOVERY AND
TO STAY

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner Robert
Bethel’s Renewed Motion for Leave to Conduct Discovery, (Motion for Discovery, ECF No. 120),
and Motion to Stay Federal Habeas Proceedings (Motion to Stay, ECF No. 125), which the
Magistrate Judge has denied (“Decision,” ECF No. 128).

On Petitioner’s Objections

(“Objections,” ECF No. 131), and the Warden’s Response. (ECF No. 132), District Judge Barrett
recommitted the matter for additional analysis (ECF No. 133, PageID 8949). For the reasons set
forth below, the Magistrate Judge recommends that Petitioner’s Objections be overruled.
The relevant factual background and procedural history are recited in the Decision (ECF
No. 128, PageID 8892-99).

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Standard for Review

When a Magistrate Judge rules on a nondispositive matter, “[a] party may serve and file
objections. . . . The district judge in the case must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a).
“The ‘clearly erroneous’ standard applies only to factual findings made by the Magistrate Judge,
while h[is] legal conclusions will be reviewed under the more lenient ‘contrary to law’ standard.”
Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992) (Kinneary, J.), citing Fogel v. Chestnutt,
668 F.2d 100, 116 (2nd Cir. 1981). “The district court [is] bound to accept the magistrate’s
[findings of fact] unless they are clearly erroneous. A finding is clearly erroneous where it is
against the weight of the evidence or where the court is of the definite and firm conviction that a
mistake has been made.” Galbriath v. N. Telecom, Inc., 944 F.2d 275, 281 (6th Cir. 1991),
overruled on other grounds by Kline v. Tenn. Valley Auth., 128 F.3d 337, 352 (6th Cir. 1997). “A
magistrate’s [sic] judge’s decision is contrary to law if the magistrate has misinterpreted or
misapplied applicable law. The contrary to law standard requires a district court to conduct an
independent review of a magistrate judge’s purely legal determinations.” Hood v. Midwest Sav.
Bank, No. C2-97-218, 2001 WL 327723, *2 (S.D. Ohio Mar. 22, 2001) (Holschuh, J.) (internal
quotation marks and citations omitted).
Petitioner does not dispute that the Motion to Stay and the Motion for Discovery are nondispositive pretrial matters within the initial decisional authority of a Magistrate Judge. However,
he asserts these particular decisions were both clearly erroneous and contrary to law (Objections,
ECF No. 131, PageID 8921).

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ANALYSIS – MOTION TO STAY

A.

Petitioner’s New Brady Claim is Plainly Meritless

Petitioner objects to the Magistrate Judge’s finding1 “that the statements by Ronald Withers
detailing co-defendant Jeremy Chavis’s confession are subject to two levels of hearsay and
therefore would be of limited use to bolster an earlier self-incriminating statement by Langbein.
This is contrary to law for two reasons.” (Objs., ECF No. 131, PageID 8925, citing Decision and
Order, ECF No. 128, PageID 8904).
First, he argues, the statements by Withers are likely to lead directly to the discovery of
admissible evidence, and thus can serve as the basis for a viable claim, regardless of whether
Summary 86 (or the statements therein) would be admissible (Objs., ECF No. 131, PageID 8925,
citing Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 465 (6th Cir. 2015)). Further, he
argues regardless of whether the material at issue is admissible, the evidence could have been used
to impeach Langbein, a purpose for which extrinsic evidence is allowed, and “could have opened
new lines of cross-examination or witnesses to implicate Langbein—the State’s main witness
against Bethel—in the murders.” Id. at PageID 8925-26, citing Ohio Evid. R. 616(A).
Second, he claims that Summary 86
[I]s itself exculpatory, particularly if Chavis were called as a defense witness. If
Chavis admitted to committing the murders with Langbein, the Warden’s
evidentiary arguments would be moot. If Chavis denied making the statements, the
assertions he made would come in under Ohio R. Evid. 613(B) as a prior
inconsistent statement.
(Objs., ECF No. 131, PageID 8926, citing Bies v. Sheldon, 775 F.3d 386, 400 n.9 (6th Cir. 2014);
Gumm v. Mitchell, 775 F.3d 345, 369 (6th Cir. 2014); State v. Reed, 155 Ohio App. 3d 435, 2003-

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Petitioner calls this finding an “assertion.” (Objections, ECF No. 131, PageID 892)5. His claim at the end of the
same sentence that it is “contrary to law,” implies the correct characterization: it is a conclusion of law.

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Ohio-6536, ¶¶ 29-30 (2nd Dist.); Ohio R. Evid. 613(B)(2)(a)). Also, Petitioner claims that
Statement 86 provides the “‘corroborating circumstances’ which would indicate the trustworthiness
of the statement in which Langbein admitted to the murders[,]” the lack of which was the reason this

Court denied his previous motion for evidentiary hearing. Id. at PageID 8927, quoting Opinion &
Order, ECF No. 118, PageID 8726; citing Bies, 775 F.3d at 401 n.9; Gumm, 775 F.3d at 369; State
v. Landrum, 53 Ohio St. 3d 107, 114 (1990).
Absent in Petitioner’s objection is any indication of what admissible evidence was
reasonably likely to be discovered had Summary 86 been produced. There must be something
more than a barebones assertion that some admissible evidence might be discovered—especially
when Summary 86 is itself inadmissible—to overcome the Supreme Court’s statement that
“[s]taying a federal habeas petition frustrates AEDPA’s2 objective of encouraging finality.” Rhines
v. Weber, 544 U.S. 269, 277 (2005). Petitioner’s second objection—that the statements could have
been brought in under Rule 613—is unavailing, and the cases he relies upon are inapposite. Both
Bies and Gumm dealt with the inculpatory statements of a Roger Cordray, an unindicted suspect
who had nonetheless “confessed to numerous people that he had murdered” the victim. Bies, 775
F.3d at 400. The Sixth Circuit held that those statements could have been introduced under Rule
613 had Cordray testified, or if he had asserted his Fifth Amendment privilege against testifying,
“Cordray would have been unavailable under Ohio Rule of Evidence 804(A)(1) such that his prior
confessions could have come in as statements against interest under Ohio Rule of Evidence
804(B)(3).” Gumm, 775 F.3d at 369; accord: Bies, 775 F.3d at 401 n.9. Thus, the nondisclosure
of Cordray as a suspect, “[o]n its face . . . was an egregious breach of the State’s Brady
obligations.” Bies, 775 F.3d at 400.

2

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214.

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Langbein, on the other hand, was known to Petitioner as a suspect, as he testified against
both Bethel and Chavis. State v. Chavis, 10th Dist. Franklin Nos. 01AP-1456, 01AP-1466, 2003Ohio-512, ¶ 42 (Feb. 4, 2003), appeal not allowed at 99 Ohio St. 3d 1436, 2003-Ohio-2902. Also,
Petitioner’s “trial counsel extensively cross-examined Langbein.” (Decision and Order, ECF No.
128, PageID 8913 (citation omitted)). Moreover, while Chavis originally testified for the State the
trial judge subsequently called Chavis as a court’s witness so that the State could cross-examine
him; “the prosecutor explained that he believed that Chavis’s trial testimony was untruthful
because it was inconsistent with statements Chavis had made to the police in November 2000.”
Chavis, 2003-Ohio-512, ¶ 40.
In light of the unreliability of Chavis’s testimony and the limited probative value of the
statements themselves, the Court should not conclude that Summary 86 provides “the
‘corroborating circumstances that indicate the trustworthiness of the statement in which Langbein
admitted to the murders.” (Opinion & Order, ECF No. 118, PageID 8726.) Thus, even if
Statement 86 had been disclosed to Petitioner’s counsel and properly introduced under Rule 613,
it still would not have created a reasonable probability of a different outcome, and thus, was not
material. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citation omitted). Accordingly, a new Brady
claim based on Summary 86 is still meritless, and Petitioner’s Objection should be overruled.

B.

Petitioner has not demonstrated good cause for failing to present any new
Brady claim to the state court

Petitioner objects that, contrary to the Magistrate Judge’s conclusion, he can show that the
State suppressed Summary 86.3. (Objs., ECF No. 131, PageID 8928-31) Yet, Petitioner concedes

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The Magistrate Judge assumed arguendo as to his Motion for Discovery that Petitioner could make such a showing,
but did not with respect to the Motion to Stay. (Decision and Order, ECF No. 128, PageID 8906, 8908-09.)

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in his Objections that he cannot “definitively assert when [Summary 86] came into his
possession[.]” Id. at PageID 8928. Thus, even assuming that the discovery of Summary 86
constitutes a new Brady claim, Petitioner has not shown why his Motion to Stay complies with the
one-year statute of limitations. 28 U.S.C. § 2244(d)(1).4 While the Warden, in his July 2, 2013,
Return of Writ (ECF No. 58), did not raise statute of limitations as an affirmative defense, he did
raise it in his memorandum contra the Motion to Stay—his first opportunity to do so—in the
context of his argument that Petitioner was not raising a new, unexhausted claim, but rather
unexhausted evidence. (ECF No. 126, PageID 8884-85). Moreover, “district courts are permitted,
but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day
v. McDonough, 547 U.S. 198, 209 (2006), abrogating Scott v. Collins, 286 F.3d 923 (6th Cir. 2002).
Of course, before acting on its own initiative, a court must accord the parties fair
notice and an opportunity to present their positions. Further, the court must assure
itself that the petitioner is not significantly prejudiced by the delayed focus on the
limitation issue, and determine whether the interests of justice would be better
served by addressing the merits or by dismissing the petition as time barred.
Id. at 210 (internal quotation marks and citations omitted).
In this case, Petitioner has had two opportunities—his reply memorandum (ECF No. 127)
and his Objections to the Magistrate Judge’s Decision and Order (ECF No. 131)—to articulate
how his Motion to Stay, as to his purportedly new Brady claim, satisfies the AEDPA statute of
limitations, and he has not done so. Further, as the statute of limitations only became an issue
upon the filing of Petitioner’s Motion to Stay, there has been no “delayed focus on the limitation
issue[.]” Day, 547 U.S. at 210. Finally, as to “whether the interests of justice would be better

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Indeed, the only indication Petitioner gives of when he may have obtained Summary 86 is a statement, without
citation or verification, in his Motion to Stay, stating that “[C]ounsel for Bethel obtained those records on April 7,
2017. Those records included . . . Summary 86[.]” (ECF No. 125, PageID 8875). The Court notes that the Motion
for Discovery was not filed until May 1, 2018 (ECF No. 120), and the Motion to Stay was not filed until October 9,
2018 (ECF No. 125). Thus, even if the Court were to use the date set forth by Petitioner previously, neither motion
would be timely under 28 U.S.C. § 2244(d)(1).

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served by addressing the merits or by dismissing the petition as time barred[,]” Day, 547 U.S. at
210, the Magistrate Judge, in his original Decision and Order, took particular note of the fact that
Petitioner had given “no indication of when he discovered Summary 86 . . . . Without more, he has
not demonstrated good cause as to why, five years after filing his Amended Petition, he is just now
seeking to return to state court.” (ECF No. 128, PageID 8906; see also ECF No. 48 (Amended
Petition filed March 4, 2013)). In other words, the Magistrate Judge was skeptical, based on the
evidence before the Court, that the claim was timely under 28 U.S.C. § 2244(d)(1), such that
AEDPA’s preference for finality should be overridden. Rhines, 544 U.S. at 277. While Petitioner
articulates how he obtained Summary 86—from the Columbus, Ohio, Police Department in
response to a public records request (Objections, ECF No. 131, PageID 8929)—he does not
articulate when he obtained it, and indeed, concedes he cannot. Id. at PageID 8928. To allow
Petitioner to return to the state court without making any showing of timeliness would violate the
purpose of AEDPA. In sum, even in light of his Objections, that Petitioner has failed to
demonstrate good cause for his delay. For that reason, the Decision on the Motion to Stay should
not be reversed.5

ANALYSIS – MOTION FOR DISCOVERY

A.

Suppressed Evidence was not Material

Petitioner argues that the evidence contained in Summary 86 was material because “it
undercut and implicated” Langbein, “the key witness against Bethel at trial.” (Objs., ECF No.

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In his Objections, Petitioner notes that “[t]he Magistrate Judge also cited the Warden’s arguments that Carter v.
Mitchell, 829 F.3d 455 (6th Cir. 2016) precludes staying this case, but he did not appear to rely on those arguments in
his decision.” (Objs., ECF No. 131, PageID 8931, citing Decision and Order, ECF No. 128, PageID 8905.) Indeed,
the Magistrate Judge did not rely on Carter in the Decision and thus, the Court need not examine Petitioner’s
alternative objection that any such reliance was contrary to law.

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131, PageID 8933.) That Bethel’s attorneys had ample motive to investigate Langbein as a suspect
is all the more reason, Bethel says, that the documents were material. In other words, Petitioner
claims, just because the impeachment at trial failed doesn’t mean that more impeachment
evidence—especially evidence of this quality—would have been useless. Id., quoting Robinson
v. Mills, 592 F.3d 730, 737 (6th Cir. 2010). Petitioner argues that:
It is one thing for defense counsel to theorize to the jury that Langbein was
responsible for the murders, and to encourage the jury to disbelieve Langbein. It is
quite another to have statements from Langbein himself apparently admitting that
he had committed the murders, as well as corroborating statements from the codefendant.
Id.
Petitioner objects to the Magistrate Judge’s conclusion that, in light of the testimony of
Petitioner’s then-girlfriend, Theresa Cobb Campbell, and the admission of Petitioner’s extensive
proffer (originally made as part of a plea agreement, which was withdrawn after Petitioner refused
to testify against Chavis), the absence of Summary 86 did not result in a verdict unworthy of
confidence, and thus, the suppressed material could not serve as the basis for further discovery.
(Objs., ECF No. 131, PageID 8934, citing Decision and Order, ECF No. 128, PageID 8914.)
Petitioner argues that, for several reasons, Campbell’s testimony and the proffer were unreliable,
rendering it “clearly erroneous and contrary to law to discount the suppressed evidence[.]” Id.
First, Petitioner notes, “[a]ccording to her own mother, Bethel’s girlfriend suffered from
delusions and concocted stories in her mind that were not necessarily true. . . . Her mother even
called the trial court to say that she did not believe her daughter should be testifying against
Bethel.” (Objections, ECF No. 131, PageID 8934, citing Cobb Aff., ECF No. 54-9, PageID 298788, ¶¶ 3-6). The only evidence relied upon by Petitioner in support of the above argument is an
affidavit of her mother, Earl Cobb, attested to on January 6, 2005 (Cobb Aff., ECF No. 54-9,
PageID 2988), more than sixteen months after Petitioner was sentenced to death (ROW App’x,
8

ECF No. 54-9, PageID 2855). There are no medical records or opinions from health professionals
regarding Campbell’s mental state at the time of her testimony. As the Warden points out,
Petitioner cites no evidence of record that Cobb’s affidavit, or any other evidence regarding
Campbell’s mental state, was before the trial court prior to 2005. Nor was there any evidence that
the State knew, or should have reasonably known, of any concerns regarding Campbell’s mental
health, and any impact her health may have had on her credibility. (Resp. to Objs., ECF No. 132,
PageID 8946). As there would have been no reason to impeach her testimony on those grounds,
the testimony was properly presented to the jury, and may be considered as part of the Court’s
materiality analysis. See Robinson, 592 F.3d at 735 (“[T]he key issue for us to resolve under Brady
is the third prong - whether the withheld impeachment evidence is ‘material’ to [the petitioner’s]
jury conviction when viewed in light of the other evidence presented at trial.”).
Second, Petitioner directs the Court to the affidavit of Deborah Davis, Ph.D., a psychologist
who had researched and published extensively on the issue of false confessions. (Davis Aff., ECF
No. 54-9, PageID 2995, ¶ 1). Based on that experience and her knowledge of the case, Dr. Davis
opined that “a number of factors existed in this case that are known to promote false confession.”
Id. at PageID 2999, ¶ 7. Specifically, Dr. Davis opined that Petitioner “was led to believe that his
choices were to either go to trial and get the death penalty or plea bargain. The horrors of death
row and execution were described to him in graphic detail.” Id. at PageID 3000. Petitioner “was
aware that his attorneys had refused to prepare his case. He correctly observed that he had no hope
of a prepared, competent defense.” Id. Law enforcement “confronted” Petitioner “with his
mother’s desperate plea for him to do what was necessary to live (i.e., take the deal).” Id. “Finally,
the defendant had substantial prior knowledge relevant to the crime, due to his acquaintance with
many involved parties and other relevant information. Also, he was shown or told about evidence,

9

including the coroner’s report, by his attorneys and the state.” Id. Taken together, Petitioner
argues, these factors rendered Petitioner’s confession false and unreliable, and consequently, his
proffer was not evidence upon which the jury could reasonably rely to convict him. (Memo. in
Opp., ECF No. 131, Page ID 8935, citing Crane v. Kentucky, 476 U.S. 683, 689 (1986):
“Confessions, even those that have been found to be voluntary, are not conclusive of guilt.”). Yet,
expert testimony was never elicited by Petitioner’s attorneys as to the “counterintuitive” notion of
why he would confess to a crime he did not commit. Id., citing Davis Aff., ECF No. 54-9, PageID
2996.
Petitioner’s Objections suffer from the same flaw as his Motion for Discovery—he has
failed to articulate why the claim for which he seeks discovery arises under Brady, rather than as
an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner believed he had no hope of competent representation, and his decision to provide a
confession, even one that he now claims is false, was, if anything, the result of deficient legal
advice and representation, rather than the product of any wrongfully withheld evidence. He does
not argue, for example, that the disclosure of Summary 86 would have caused his attorneys to
advise him against accepting the plea agreement and making the proffer. Nor does he claim that
the introduction of Summary 86 (assuming it could get past the above-discussed admissibility
issues) or similar materials at trial would have caused the trial judge to exclude his proffer, or that
the jury could not have reasonably found the proffer to be reliable inculpatory evidence. Moreover,
the failure to introduce expert testimony regarding why Petitioner would provide a false confession
is a failure by his attorneys, and has nothing to do with any supposedly suppressed evidence. The
Magistrate Judge reaffirms his conclusions that the proffer was valid evidence for the jury to
consider, and given its breadth and depth, was more than enough evidence upon which the jury

10

could reasonably find Petitioner guilty.

Petitioner’s objection as to materiality should be

overruled.

B.

The Decision properly relied upon Harris v. Nelson and properly applied
Habeas Rule 6 in denying discovery

Petitioner argues that “[t]he Magistrate Judge ruled contrary to law when he relied on the
language in Harris that there is no ‘reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief.’”
(Memo. in Opp., ECF No. 131, PageID 8937, quoting Decision and Order, ECF No. 128, PageID
8915; Harris v. Nelson, 394 U.S. 286, 300 (1969).) He claims that “[t]he Magistrate Judge failed
to recognize that Habeas Rule 6, adopted several years after Harris, authorizes wider discovery.
The Supreme Court’s decision in Blackledge v. Allison, . . . suggested that federal judges utilize
prehearing discovery as one means of determining whether there is a factual basis for the
petitioner’s claims.” Id. (emphasis in original), citing 431 U.S. 63, 76, 82-83 (1977); Rule 6 of the
Rules Governing Section 2254 Cases. Further, he argues that the Supreme Court, in Bracy v.
Gramley, “omitted any reference to Harris’s “prima facie” language, relying instead on a
considerably more forgiving formulation of the “good cause” rule, which only requires some
“reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is…entitled to relief.” (Objs., ECF No. 131, PageID 8938 (emphasis in original), quoting
Bracy, 520 U.S. 899, 908-09 (1997); citing Bracy, 520 U.S. at 902, 903 n.3; High v. Head, 209
F.3d 1257, 1264 n.8 (11th Cir. 2000).) He claims that the evidence contained in Summary 86 goes
well beyond the theoretical, speculative, and unsupported evidence put forward by the petitioner
in Bracy. Rather, “[t]he evidence here not only would impeach Langbein, the main witness against
Bethel, but goes to the question at the heart of the case: whether Bethel was the actual second
11

shooter, or whether it was Langbein.” Thus, failure to disclose the statement “is an ‘egregious
breach of the State’s Brady obligations.’” Id., quoting Bies, 775 F.3d at 400; citing Bracy, 520
U.S. at 905, 909. In circumstances such as these, Petitioner claims, the “Sixth Circuit has not been
reluctant to grant habeas corpus relief when the state suppresses evidence impeaching key
prosecution witness[,]” id. at PageID 8939, citing Robinson, 592 F.3d at 736-37; Jamison v.
Collins, 291 F.3d 380, 391 (6th Cir. 2002), and the Court should similarly grant discovery here.
Petitioner’s Objection is unavailing for two reasons. First, as the Warden notes, any
argument that Habeas Rule 6 abrogated or lessened the authority of Harris is belied by the Supreme
Court’s statement in Bracy that “Habeas Corpus Rule 6 is meant to be consistent with Harris.”
(Resp. to Objs., ECF No. 132, PageID 8946-47, quoting Bracy, 520 U.S. at 908-09). Second, the
Sixth Circuit cases cited by Petitioner precede the Supreme Court’s decision in Cullen v.
Pinholster, 563 U.S. 170 (2011), which greatly limited the ability of district courts to permit
discovery and evidentiary hearings in habeas cases; indeed, a majority of trial courts within the
Sixth Circuit have interpreted Pinholster as barring from consideration any discovery requested
and produced during federal habeas review. (Decision and Order, ECF No. 128, PageID 8907
(collecting cases)). The Decision conceded that “Petitioner’s efforts to obtain the [discovery]
materials, . . . suggested that he has been diligent in attempting to obtain all materials supporting
his Brady claim.” Id. at PageID 8908. Further, the Magistrate Judge concluded that “[i]f he was
unable to do so because of improper suppression by the State, then the Pinholster limitation is
inapplicable, and the Court must review Petitioner’s Brady claim with new evidence.” Id.
Nonetheless, Pinholster, at the very least, reinforces the need for a showing of favorability and
materiality. More importantly, because Harris is still good law, for a Petitioner to obtain leave to
conduct discovery, this Court must have “reason to believe that the petitioner may, if the facts are

12

fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to
relief.” Harris, 394 U.S. at 300.
Petitioner objects to the Magistrate Judge’s finding that, although Petitioner had “‘met the
favorability prong of Brady as to: (a) the fourth statement in the memorandum [that Langbein was
the other shooter]; and (b) the recordings themselves’ of Chavis’s calls from prison[,]” the Motion
for Discovery was still denied “on the basis that the favorable, suppressed evidence was not
material, even though it undercut and implicated the key witness against Bethel at trial.” (Objs.,
ECF No. 131, PageID 8933, quoting Decision and Order, ECF No. 128, PageID 8912.) In so
objecting, Petitioner does not appear to dispute the Magistrate Judge’s conclusion that the first
three statements in the memorandum were not sufficiently favorable to merit discovery. (Decision
and Order, ECF No. 218, PageID 8910-12.) Petitioner argues that the statement and recordings
are material—that is, “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.” United States v. Bagley, 473 U.S.
667, 682 (1985). Materiality must be viewed in the context of the other evidence that was
submitted to and considered by the jury at the time of trial. Robinson, 592 F.3d at 736-37; Eakes
v. Sexton, No. 14-5017, 592 F. App’x 422, 427 (6th Cir. 2014).
Petitioner argues that “[i]t was clearly erroneous and contrary to law to discount the
suppressed evidence in light of the existing evidence from Bethel’s girlfriend or the proffer, both
of which were unreliable.” (Objs., ECF No. 131, PageID 8934, citing Decision and Order, ECF
No. 128, PageID 8914). For the reasons discussed above, the Magistrate Judge cannot conclude
that they were so unreliable that the trial judge erred in allowing Campbell’s testimony and
Petitioner’s proffer to be considered by the jury. Petitioner is correct that “[t]he materiality of

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suppressed evidence must be measured by the cumulative effect that evidence has on the validity
of the jury’s verdict.” Id. at 8940 (emphasis in original), citing Kyles, 514 U.S. at 440-41.
However, the evidence against Petitioner was overwhelming:
This is not a case in which the evidence weighs heavily against conviction; the
jury's verdict was not a manifest miscarriage of justice. Rather, it is a case in which
the defendant admitted guilt on three separate occasions, in which those admissions
are fully consistent with the physical evidence, and in which the defendant had a
strong motive to kill the victims.
State v. Bethel, 110 Ohio St. 3d 416, 2006-Ohio-4853, ¶ 111 (2006) (citation omitted).
Consequently, the statement and recordings—even if Petitioner’s trial counsel had used them both
to (further) impeach Langbein and present him as a possible alternative perpetrator—are not
enough to conclude that the jury verdict was unworthy of confidence. Thus, the evidence is not
material under Bagley, and cannot serve as a basis for further discovery.

CONCLUSION

For the foregoing reasons, Petitioner’s Objections (ECF No. 131) should be overruled.

February 8, 2019.

s/ Michael R. Merz
United States Magistrate Judge

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