Failed execution of Romell Broom prompts efforts to block 2nd attempt

"A federal habeas court may not find a state adjudication to be `unreasonable' `simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'" Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001).

Broom claims that the State violated his due process rights according to the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to reveal material² gathered by the police in the course of investigating the Middleton case.³ Brady established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. The Supreme Court has explained that there are "three components of a true Brady violation":

The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Broom did not present his Brady claim to the Ohio state courts, and the State asserts that the claim is procedurally defaulted.⁴ Appellee Br. at 25. Before we can analyze the merits of this issue, we must first determine whether Broom's failure to raise the claim in the state court proceedings precludes federal court review.

Broom first argues that his Brady claim should not be barred because "Ohio did not have an available corrective procedure for presenting a Brady claim revealed for the first time in public records obtained under the Ohio public records statute." Br. Appellant at 35. This argument is based on the Ohio Supreme Court case State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83, 96 (1994), which held that "a defendant in a criminal case who has exhausted the direct appeals of his or her conviction may not avail herself or himself of R.C. 149.43⁵ to support a petition for postconviction relief." It is true that a failure to exhaust will not prevent a federal court from addressing a claim in a habeas case if "there is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i). However, Broom's argument conflates exhaustion and procedural default, and it fails to recognize that procedural default may prevent him from raising his claim in federal court even if exhaustion does not technically bar the claim.

The Supreme Court has explained that "the problem of waiver is separate from the question whether a state prisoner has exhausted state remedies." Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Thomas v. Woolum, 337 F.3d 720, 731 (6th Cir.2003) ("Procedural default is . . . distinct from the exhaustion requirement, an additional requirement added on top of exhaustion."). The Court explained that "Section 2254(b) requires habeas applicants to exhaust those remedies `available in the courts of the State.' This requirement, however, refers only to remedies still available at the time of the federal petition."⁶ Engle, 456 U.S. at 125 n. 28, 102 S.Ct. 1558. In Engle, the respondents were in essentially the same position as Broom, because they "completed their direct appeals" and they were prevented by Ohio law from raising a claim "that could have been litigated before judgment or on direct appeal." Id. (citing Ohio Revised Code § 2953.21(A)⁷). The Court concluded as follows: "Since respondents could have challenged the constitutionality of Ohio's traditional self-defense instruction at trial or on direct appeal, we agree with the lower courts that state collateral relief is unavailable to respondents and, therefore, that they have exhausted their state remedies with respect to this claim." Id. The Engle opinion instead analyzed whether or not there was cause and prejudice to excuse the petitioner's procedural default. Id. at 124-35, 102 S.Ct. 1558. As in Engle, Broom is unable to satisfy the narrow requirements to bring a second postconviction petition in the Ohio state courts, and there is no longer an available state court remedy.⁸ I J.A. at 207-08 (Mem. & Order at 43-44). Thus, exhaustion is not an issue before us, and we need only analyze Broom's Brady claim with regard to procedural default.

We have explained the doctrine of procedural default as follows:

When a habeas petitioner fails to obtain consideration of a claim by a state court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review.

Seymour, 224 F.3d at 549-50 (citing Wainwright v. Sykes, 433 U.S. 72, 80, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Broom was entitled to raise his Brady claim in the Ohio state courts pursuant to Ohio Revised Code § 2953.21(A)(1)(a), and because he did not do so, the claim is procedurally defaulted. Procedural default may be avoided "only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case."⁹ Seymour, 224 F.3d at 550 (citing Sykes, 433 U.S. at 87, 97 S.Ct. 2497).

The Sykes opinion "plainly implied that default of a constitutional claim by counsel pursuant to a trial strategy or tactical decision would, absent extraordinary circumstances, bind the habeas petitioner even if he had not personally waived that claim." Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (citing Sykes, 433 U.S. at 91 n. 14, 97 S.Ct. 2497). The Carrier Court elaborated on the meaning of "cause": "we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 488, 106 S.Ct. 2639. The Court "not[ed] that a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that `some interference by officials,' made compliance impracticable, would constitute cause under this standard." Id. (internal citations omitted). Ineffective assistance of counsel may constitute cause, but "a claim of ineffective assistance [must generally] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 488-89, 106 S.Ct. 2639.

Broom offers several arguments as to why there was cause for the procedural default of his Brady claim. We will discuss each of these arguments in turn below.

a. Steckman

First, Broom argues that the Ohio Supreme Court's decision in Steckman foreclosed the use of records that were obtained while Broom's petition for state postconviction relief was pending.¹⁰ In Steckman, the Ohio Supreme Court analyzed various aspects of public-records litigation in the context of criminal proceedings; one of the issues in the case involved a defendant's effort to acquire police records for purposes of seeking postconviction relief. Steckman, 639 N.E.2d at 95-96. The court stated that the records in question were "exempt from disclosure based upon the work product exception" of the public-records statute. Id. at 96. Steckman concluded that "a defendant in a criminal case who has exhausted the direct appeals of her or his conviction may not avail herself or himself of R.C. 149.43 to support a petition for postconviction relief." Steckman, 639 N.E.2d at 96.

There are two Ohio Court of Appeals decisions interpreting Steckman's rule to be a strict bar against any use of public records in the course of seeking postconviction relief; these cases therefore support Broom's assertion that Steckman prevented his use of the police records in his possession. See State v. Walker, 102 Ohio App.3d 625, 657 N.E.2d 798, 800 (1995) ("[T]he police reports which figure prominently in Walker's second petition could not have been considered by the trial court even had it elected to entertain Walker's petition because Walker had obtained those reports through the Public Records Act."); State v. Storer, No. 94-CA-07, 1994 WL 667186, at * 2 (Ohio Ct.App. Nov.4, 1994) ("[W]e believe that the rule of [Steckman] requires us to reject materials obtained through an R.C. 149.43 public records request as a basis for a motion for new trial."). As the district court noted, "[b]oth Walker and Storer, out of the Second District, cursorily rejected any use of these public records to support a petition for post-conviction relief." I J.A. at 209 (Mem. & Order at 45).

However, the State contends that Steckman did not preclude Broom from using the records in his postconviction relief proceedings for several reasons, namely that Broom had received all of the relevant records prior to the decision in Steckman and that Ohio case law did not bar claims based on records obtained prior to Steckman. Appellee Br. at 26-32. With regard to the first of these arguments, the State claims that Steckman is irrelevant because "Broom still fails to account for the pre-Steckman accumulation of 1,485 pages of public records that he had an unquestionable right to use." Appellee Br. at 31. However, only 19 pages of this were the relevant East Cleveland Police Department ("ECPD") reports,¹¹ and these pages were apparently received a matter of months before Steckman.¹² Broom argues that he "cannot be held to have defaulted his Brady claim, for failing to file it in the substantially smaller window of opportunity left to him once the State began to trickle out the discoverable records." Appellant Br. at 39. Broom may be correct that he should not be penalized for failing to file another petition based on the police reports prior to Steckman;¹³ however, we are still left with the question of whether Steckman was sufficient cause for his failure to do so at a later point. The State asserts — and the district court agreed — that Ohio law was unsettled as to the question of whether or not Broom could have filed another petition (or amended his pending petition)¹⁴ post-Steckman, and we turn now to that key issue.

The State and the district court both relied on State v. Apanovitch, 107 Ohio App.3d 82, 667 N.E.2d 1041 (1995) as support for the fact that Broom was not barred from bringing his claim in the Ohio state courts.¹⁵ Appellee Br. at 29-30; I J.A. at 209 (Mem. & Order at 45). In Apanovitch, the petitioner argued that the state trial court had improperly prevented him from seeking further discovery in the course of his postconviction relief, and the state court of appeals found that Apanovitch's previous public-records request pursuant to § 149.43 barred him from seeking the same materials because the issue had already been litigated. Apanovitch, 667 N.E.2d at 1051. The Apanovitch court noted the Steckman and Walker decisions, but concluded that "[w]e have no occasion to consider the import of these decisions, since the successor petition for postconviction relief predated Steckman, and then-applicable law permitted the use of the Public Records Act." Apanovitch, 667 N.E.2d at 1051-52. Broom distinguishes Apanovitch on the basis that the petitioner in that case had already filed his claim based on public records at the time that Steckman was decided, whereas Broom had not filed a claim based on the police records at that time. Appellant Br. at 37 n. 9. The State responds that "the timing of Apanovitch's filing does not necessarily show that it predated the Ohio Supreme Court's September 7, 1994 Steckman decision." Appellee Br. at 29. This statement is based upon testimony of a prosecutor, who worked on the Apanovitch case, that was given during the federal evidentiary hearing in Broom's case.¹⁶ XVIII J.A. at 8503-04 (Evidentiary Hr'g Tr. at 378-79) (Frey Test.).

Regardless of the timing of the filing in the Apanovitch case, that case supports the general proposition that Steckman may not bar the use of records already in the petitioner's possession. Rather, Steckman may only bar efforts to obtain new information pursuant to the public-records statute during postconviction proceedings. Because Steckman does not directly address this issue, there was a reasonably available "legal basis" for Broom either to file another petition for postconviction relief or to amend the petition that he had already filed. Carrier, 477 U.S. at 488, 106 S.Ct. 2639. A 2003 Ohio Court of Appeals decision highlights the ambiguity of the Steckman rule because it held that "Steckman `addresses only the duty to respond to defendant's request for certain documents, it addresses not at all, the admissibility of information contained in these documents at hearing.'" State v. Larkins, No. 82325, 2003 WL 22510579, at *3 (Ohio Ct.App. Nov. 6, 2003). In Larkins, the petitioner's request for a writ of mandamus seeking police records was denied,¹⁷ but a third party obtained the relevant records through a public-records request. Id. at *2. The petitioner then used the police records to file a motion for a new trial, and after the motion was granted, the State argued that this was incorrect in light of Steckman. Id. The court of appeals affirmed the trial court, explaining that "Steckman is inapplicable to the instant case." Id. at *3. Although Broom argues that "[r]easonable counsel, like the Ohio Courts of Appeal that applied it, read Steckman as a prohibition," Appellant Br. at 38, the Supreme Court has stated that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it,¹⁸ does not constitute cause for a procedural default," Carrier, 477 U.S. at 486, 106 S.Ct. 2639. We thus conclude that the Steckman decision does not constitute cause for Broom's procedural default of his Brady claim.

b. State delay

Broom argues that "[t]imely release by the State would have allowed discovery of the Brady issue long before Steckman was decided." Appellant Br. at 39. Broom had 19 pages of the relevant material in his possession prior to Steckman, even if by only a few months. XVIII J.A. at 8148 (Evidentiary Hr'g Tr. at 23) (Vickers Test.). Broom's counsel conceded at our oral argument that the relevant information was present in the 19 pages, but he asserted that Broom's postconviction counsel did not realize the extent of the evidence available. The fact that there might have been more information available is insufficient to establish cause for failing to bring a Brady claim in the state courts. Furthermore, we note that because Steckman should not have prevented Broom's counsel from filing a claim on his behalf, the fact that the pertinent information was received shortly before the Steckman decision is irrelevant.¹⁹

c. Postconviction judge's instructions

The lawyers involved in Broom's postconviction proceedings testified at the evidentiary hearing to the fact that state trial "Judge Matia clearly expressed his displeasure over the fact that Broom's postconviction counsel had filed a number of pleadings in the case." Appellant Br. at 40; see also IV J.A. at 1857 (Vickers Aff.) ("It appeared to me that Judge Matia seemed distressed that we had filed numerous pleadings. The inference that I drew from this meeting was that Judge Matia was displeased with the manner in which we were litigating Mr. Broom's case. Based on the meeting I formed the opinion that it would be futile for us to file any future legal documents on Mr. Broom's behalf."). Broom concedes that Judge Matia's remarks may have been "merely informative." Appellant Br. at 40. Even if such remarks could constitute cause for failing to present a claim to the state court, this argument is precluded by the fact that Judge Matia had left the state court to take a position on the federal bench by 1992, well before the relevant records were received in 1993-1994. XVIII J.A. at 8153 (Evidentiary Hr'g Tr. at 28) (Vickers Test.).

d. Due diligence of counsel

Finally, Broom argues that "[d]ue diligence does not require counsel to file pleadings or seek relief in direct contradiction of the law." Appellant Br. at 41. This is merely a restatement of the Steckman argument, which we discussed above.

As Broom has not shown the requisite cause to excuse the procedural default of this claim, we will not examine whether he has shown the requisite prejudice, nor will we proceed to the merits of Broom's Brady claim. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) ("We need not determine whether petitioner has carried his burden of showing actual prejudice from the allegedly improper admission of Dr. Pile's testimony, for we think it self-evident that he has failed to demonstrate cause for his noncompliance with Virginia's procedures."). We affirm the district court's judgment denying habeas relief as to this issue.

The state trial court permitted the introduction of evidence regarding the incidents involving Venita McKenney and Melinda Grissom; Broom asserts that this admission of "other acts" evidence denied him his constitutional rights to due process and a fair trial. Appellant Br. at 59.

In Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court discussed the circumstances under which the admission of other acts evidence is proper:

We share petitioner's concern that unduly prejudicial evidence might be introduced under [Federal Rule of Evidence 404(b)].²⁰ We think, however, that the protection against such unfair prejudice emanates not from a requirement of a preliminary finding by the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 — as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Huddleston, 485 U.S. at 691, 108 S.Ct. 1496 (internal citations omitted). In reviewing this claim, we note that "[t]rial court errors in state procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment." McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.) (citing Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)), cert. denied, 543 U.S. 892, 125 S.Ct. 168, 160 L.Ed.2d 156 (2004). "Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they `offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour, 224 F.3d at 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)).

The Ohio Supreme Court began its discussion of this issue by stating as follows:

We note that appellant was positively identified either in a lineup or a showup and in the courtroom by both of the victims and numerous witnesses to those two incidents. The jury was given a carefully drafted limiting instruction to explain that the evidence concerning those two incidents was admitted only for the purpose of considering whether those acts tended to show intent, motive, scheme, plan or system for the September 21 and 22 kidnapping, rape, and murder of Tryna Middleton and attempted kidnapping of Tammy Sims and Bonita Callier.²¹

Broom, 533 N.E.2d at 689. At trial, Broom asserted that this was a case of "mistaken identity because he allegedly was with someone else the night that Tryna died." Broom, 533 N.E.2d at 690. The state supreme court explained that "[i]f the other act does in fact `tend to show' by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible." Id. "The issue of identity, although not listed in [§ 2945.59], has been held to be included within the concept of scheme, plan, or system." Id. at 689 (citing State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, 725-26 (1975)). In Curry, the Ohio Supreme Court explained that:

One recognized method of establishing that the accused committed the offense set forth in the indictment is to show that he has committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan or system was utilized to commit both the offense at issue and the other crimes.

Curry, 330 N.E.2d at 726. In Broom's case, the state supreme court applied the test set forth in Curry and concluded as follows:

All three incidents occurred within a few months of each other, within a few miles of each other, and all involved young girls between the ages of eleven and fourteen walking along a street after dark. The method in all three incidents was identical: a lone driver in a car passed the victims, parked the car and then attacked them from behind, trying to get the victims into the car while using the same scurrilous language. Two of the incidents involved the same car and a knife. We view the evidence of the other incidents as admissible because it is relevant to the issue of appellant's defense of mistaken identity.

Broom, 533 N.E.2d at 690.

The district court stated that "[w]hile the [c]ourt has some concerns about the decision to admit this evidence, the [c]ourt cannot say that the state court's view of it — that it was directly probative of the credibility of Broom's alibi defense — was unreasonable." I J.A. at 204 (Mem. & Order at 40). In addition, the district court found that "in light of the substantial other direct evidence tying Broom to the Tryna Middleton murder — including eyewitness identification — the admission of this other act evidence did not so materially affect the outcome of the trial as to render it fundamentally unfair." I J.A. at 204 (Mem. & Order at 40) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). We agree with the district court that the state court's decision was not objectively unreasonable, and we affirm the district court's judgment denying habeas relief as to this issue.

Broom argues that his trial counsel was constitutionally ineffective during the mitigation phase of his trial.²² Appellant Br. at 65. As support for this claim, he states that his counsel did not adequately investigate his background; that the mitigation expert assigned to his case did not provide any services for him; that no effort was made to secure further psychiatric evaluation after Broom did not open up to the psychiatrist who was sent to interview him; that his counsel "made him appear dishonest and predatory" by allowing evidence of his prior convictions to be introduced through cross-examination of his father; and that his counsel attempted to use "residual doubt" as a mitigating factor even after it no longer made sense to do so. Appellant Br. at 65-70.

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."²³ Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court articulated a two-part test for determining whether counsel was constitutionally ineffective:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "A counsel's failure to make a reasonable investigation of a defendant's psychiatric history and family background, and to present mitigating evidence to the jury at sentencing, can constitute ineffective assistance." Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir.2005) (citing Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

The district court — applying the Strickland standard — concluded that "although Broom may have benefitted from some psychiatric explanation of the impact of his upbringing on his psyche, his counsel were not objectively unreasonable in failing to present this testimony because most, if not all, was presented in some form during mitigation." I J.A. at 274 (Mem. & Order at 110). The district court elaborated that "[w]ith the exception of parental drug and alcohol abuse, all other factors — the physical violence, marital infidelities, the inconsistent forms of discipline, and the fact that Broom was forced to drop out of school to care for his younger siblings — were all presented during trial."²⁴ I J.A. at 274 (Mem. & Order at 110). Furthermore, during the federal evidentiary hearing, "Broom's habeas counsel were unable to articulate what further factual mitigation would have been proferred." I J.A. at 274 (Mem. & Order at 110). The district court concluded that the state postconviction court did not unreasonably deny Broom's claim of ineffective assistance of counsel pursuant to Strickland.²⁵ I J.A. at 277 (Mem. & Order at 113). We agree with this conclusion.

"To establish deficient performance, a petitioner must demonstrate that counsel's representation `fell below an objective standard of reasonableness.'" Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). "In assessing the reasonableness of an attorney's investigation . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Id. at 527, 123 S.Ct. 2527. In preparation for Broom's trial, Broom's attorneys set up an appointment for Broom to meet with a psychiatrist, they spoke with members of Broom's family, and they collected records from the welding school that Broom attended as well as from the prison. XVIII J.A. at 8212-15 (Evidentiary Hr'g Tr. at 87-90) (Brusnahan Test.). One of Broom's trial attorneys explained that the main goals of the defense at mitigation were to keep the fact of Broom's prior rape conviction from the jury, and to establish that

Romell was the product of a very dysfunctional familiarly [sic] background; that he had a very difficult early childhood; that he had witnessed a number of things that were very unpleasant to say the least about the relationship between his mother and his father when he was growing up; that he was quite a reserved young man; that he did very well when he applied himself.

XVIII J.A. at 8217-18 (Evidentiary Hr'g Tr. at 92-93) (Brusnahan Test.). To that end, the jury heard testimony from Broom's mother, father, and a counselor from the welding school. XVIII J.A. at 8017-8062 (Tr. at 1926-71). One of his attorneys testified at the federal evidentiary hearing that there were more sources of information to explore, but that there was no time to do so in light of the state trial court's denial of their request for a continuance. XVIII J.A. at 8215 (Evidentiary Hr'g Tr. at 90) (Brusnahan Test.).

It is clear, as stated above, that Broom's counsel could have gathered additional information in order to present a more complete picture of Broom's difficult background. However, we are not convinced that his counsel's performance was constitutionally inadequate. This is not a case in which counsel was or should have been alerted to additional probative evidence about the petitioner, and the counsel then failed to research the evidence. See, e.g., Rompilla v. Beard, ___ U.S. ___, ___, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) ("Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce Rompilla's prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case."). A comparison to our decision in Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005), illustrates this difference as well. In Harries, we held that

[W]e cannot escape the conclusion that Harries's counsel failed to conduct a constitutionally adequate investigation. Counsel limited their investigation to contacting by telephone Harries's mother and brother, sending requests for information to some of the institutions in which Harries had been confined, and interviewing Harries, Harries's codefendant, and two state witnesses. Although counsel requested two court-ordered competency evaluations, they declined to seek the assistance of a mental health expert or conduct a thorough investigation of Harries's mental health, even after Harries's mother alerted them that Harries suffered from mental illness. Nor did counsel adequately investigate Harries's family background, despite indications of Harries's troubled childhood.

Id. Broom's counsel did not do a great deal more than counsel in Harries, but they also did not refuse expert assistance or ignore signs of mental illness. Rather, Broom's counsel attempted to obtain psychological testimony²⁶ as well as the services of a mitigation expert, in addition to contacting his family members, his school, and the prison. Their actions were not objectively unreasonable.

Even if Broom's counsel's performance at the mitigation phase of his trial was deficient, he cannot satisfy the prejudice prong of the Strickland test. "To satisfy the prejudice prong, a petitioner must prove that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Harries, 417 F.3d at 637. The additional evidence that Broom identifies elaborates his difficult childhood as was described by his mother at the trial.²⁷ We have held that the failure to present additional mitigating evidence that is "merely cumulative" of that already presented does not rise to the level of a constitutional violation. Clark, 425 F.3d at 286; Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 744, 163 L.Ed.2d 582 (2005); Smith v. Mitchell, 348 F.3d 177, 202 (6th Cir.2003), cert. denied, 543 U.S. 1016, 125 S.Ct. 646, 160 L.Ed.2d 488 (2004). "[T]o establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way — in strength and subject matter — from the evidence actually presented at sentencing." Clark, 425 F.3d at 286 (quoting Hill, 400 F.3d at 319).

Broom argues that "[a] psychological evaluation, social history, and thoughtful preparation would have allowed a mitigation case to be presented that explained Broom's prior conviction [for rape] and the other acts evidence admitted at trial in the context of his life history."²⁸ Appellant Br. at 68. In Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir.), cert. denied, 537 U.S. 1004, 123 S.Ct. 515, 154 L.Ed.2d 401 (2002), the "defense counsel did not produce expert testimony to draw conclusions from the facts presented by . . . two witnesses [family members]," but we noted that the underlying "facts and occurrences" were all presented to the jury and the petitioner's counsel was therefore not constitutionally ineffective. We agree that Broom's counsel should have taken greater pains to provide some context for the jury; however, the additional evidence that could have been presented simply does not substantially differ from the evidence actually presented so as to undermine confidence in the outcome of Broom's trial.²⁹

The district court also noted that Broom's claim of ineffective assistance of counsel with regard to the examination of his father and Broom's prior rape conviction is without merit because of the court's conclusion that there was "no constitutional violation in the trial court's decision to permit cross-examination of William Broom." I J.A. at 277, 204 (Mem. & Order at 113, 40). The State points out that the jury was already aware that Broom had spent time in prison, and Broom himself referenced his prior rape conviction in his unsworn statement given during the mitigation phase. XVIII J.A. at 8053, 8065 (Tr. at 1962, 1974). Regardless of whether or not it was error for Broom's counsel to "open[] the door" to this testimony, Appellant Br. at 68, Broom cannot satisfy the prejudice prong of the Strickland test because the information regarding his prior rape conviction was independently revealed to the jury.

Broom claims that "[t]he prosecutorial misconduct in this case was egregious, pervasive and prejudicial." Br. Appellant at 70. He first lists several examples of statements from the guilt phase of his trial, including a statement that the prosecutor was not withholding evidence,³⁰ the characterization of Broom as a "serial killer,"³¹ the description of the sexual conduct evidence as "proof of the victim's rape," and a false statement that Middleton was raped "vaginally and anally."³² Appellant Br. at 70-72 Broom then lists a variety of improper statements made during the sentencing phase of his trial.³³ Appellant Br. at 73.

In analyzing a claim of prosecutorial misconduct, the "relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant. Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005). In determining whether the statements listed above were proper, there are several guidelines available. First, "[a]dvocates have an obligation to . . . put forth only proper arguments based on the evidence in the record." Id. Also, they must obey "the cardinal rule that a prosecutor cannot make statements `calculated to incite the passions and prejudices of the jurors.'" Gall v. Parker, 231 F.3d 265, 315 (6th Cir.2000) (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)), cert. denied, 533 U.S. 941, 121 S.Ct. 2577, 150 L.Ed.2d 739 (2001). Finally, we have held that a prosecutor may not make improper comments "designed to completely undercut the defendant's sole mitigation theory, effectively denying him fair jury consideration." DePew v. Anderson, 311 F.3d 742, 749 (6th Cir.2002), cert. denied, 540 U.S. 938, 124 S.Ct. 83, 157 L.Ed.2d 250 (2003). Once conduct is held to be improper, there are four factors that we consider in determining flagrancy:

(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.

Bates, 402 F.3d at 641. We must adhere to the harmless error standard in reviewing the state court's determination regarding prosecutorial misconduct. See id. ("An error is found to be harmless unless it `had substantial and injurious effect or influence in determining the jury's verdict.'") (quoting Brecht, 507 U.S. at 638, 113 S.Ct. 1710).

With regard to the statements in the course of the prosecutor's closing argument, the Ohio Supreme Court held as follows:

Generally, parties have been granted wide latitude in closing arguments. Although we can hardly approve of comments such as, `He kills in the community and it's going to go on and on and on,' they do not constitute a denial of due process. A complete review of the prosecutor's closing remarks belies the conclusion that the state's improper arguments in any way affected the jury's verdict.

Broom, 533 N.E.2d at 693-94 (internal citations omitted). The state supreme court also concluded that the statements made during the mitigation phase did not deny Broom due process. Id. at 694. The court noted that the prosecutor's comment about Broom's unsworn statement was impermissible in light of an Ohio Supreme Court case decided after Broom's trial;³⁴ however, the court concluded that "the totality of the prosecutor's remarks is harmless error in light of the overwhelming nature of the aggravating circumstances compared to the mitigation factors." Id.

Several of the improper remarks were made during the prosecutor's closing argument at the mitigation phase. "Importantly, in the death penalty context, we must distinguish between evidence of the defendant's guilt of the underlying criminal charge and evidence of any attendant aggravating and mitigating circumstances." Bates, 402 F.3d at 648. "When a prosecutor's actions are so egregious that they effectively foreclose the jury's consideration of . . . mitigating evidence, the jury is unable to make a fair, individualized determination as required by the Eighth Amendment." Id. at 649 (quoting DePew v. Anderson, 311 F.3d 742, 748 (6th Cir.2002)) (internal quotation omitted).

The prosecutor's behavior was clearly improper in this case. However, we do not believe that the comments were sufficiently flagrant to justify reversing the Ohio Supreme Court's determination. Our conclusion is supported by a comparison of the comments made in Broom's case to those made in Bates. The prosecutor's remarks in Broom's case could certainly have prejudiced Broom or misled the jury, especially with regard to the misrepresentation of the rape evidence; moreover, the statements appear to have been made deliberately. However, most of the prosecutor's comments were general attacks on Broom's overall mitigation case rather than pointed attacks at his witnesses or the defense attorneys as in Bates. Id. at 637. Also, the prosecutor in Broom's case improperly discussed the circumstances of the rape as well as implied that Broom would commit future rapes if he was released from prison, but he did not appeal to the jury's fears and emotions to the same extent as in Bates. In Bates, for example, the prosecutor went on at great length and detail as to why a vote for life imprisonment would make the jurors "accomplices" to future murders. Id. at 643-44.

The statements were also not as frequent as in Bates, where "both [prosecutors] laced their entire closing argument with personal opinion, attacks on opposing counsel, and undignified and unprofessional appeals to hatred and fear." Id. at 648. Finally, we do not believe that the improper remarks were so egregious as to "preclude the jury's proper consideration of mitigation." Id. at 649. We do not in any way condone the clearly improper remarks that were made in this case, but we do not think that these improper statements "injected such vitriol into the proceedings, as to question the fairness of the entire sentencing hearing." Id.

In sum, we agree with the district court's conclusion that "[t]he Ohio Supreme Court's analysis is not an unreasonable application of Darden and Donnelly.. . . [W]hile some of the comments were certainly undesirable, they were not frequent or flagrant enough to undermine a court's confidence in the outcome of the trial." I J.A. at 243 (Mem. & Order at 79).

Broom claims that the state trial judge's denial of a continuance was unreasonable and that his counsel was unable to advocate effectively on his behalf because of the lack of time allowed for preparation. Appellant Br. at 75-76. Broom's trial counsel were appointed in July 1985, after his previous counsel withdrew. XVIII J.A. at 8193 (Evidentiary Hr'g Tr. at 68) (Brusnahan Test.). The trial court granted a continuance to move the trial from August to September 1985. XIII J.A. at 5951 (Pretrial Tr. at 15). At this point, the trial judge stated that "[t]here will be no more continuances." XIII J.A. at 5952 (Pretrial Tr. at 16). Nonetheless, Broom's counsel sought another continuance on September 5, 1985, which the trial court denied. XVIII J.A. at 8200-01 (Evidentiary Hr'g Tr. at 75-76) (Brusnahan Test.).

The Supreme Court addressed the issue of continuances in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), which states:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

(internal citations omitted). We have held that "[t]he denial of a defendant's motion for continuance `amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.'" United States v. King, 127 F.3d 483, 486-87 (6th Cir.1997) (quoting United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir.1985) (internal quotation marks omitted)), cert. denied, 528 U.S. 1055, 120 S.Ct. 601, 145 L.Ed.2d 499 (1999). "To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense." Id. at 487 (quoting Gallo, 763 F.2d at 1523) (internal quotation marks omitted).

In requesting the continuance, Broom's attorneys informed the state trial court that they "had difficulty in obtaining records and other information, which is necessary for a mitigation hearing," XVIII J.A. at 8211 (Evidentiary Hr'g Tr. at 86) (Brusnahan Test.), and that they were also having difficulty in establishing a "working relationship" with Broom, XVIII J.A. at 8201 (Evidentiary Hr'g Tr. at 76) (Brusnahan Test.). Both the Ohio Supreme Court and the district court found that Broom failed to demonstrate how he was actually prejudiced in the mitigation phase of his trial by the denial of the continuance. Broom, 533 N.E.2d at 695; I J.A. at 245-46 (Mem. & Order at 81-82).³⁵ Furthermore, the district court stated that "[t]he trial court is not required to grant multiple trial continuances where the need for those continuances is prompted solely by the defendant's own refusal to cooperate with counsel's trial preparation efforts." I J.A. at 245 (Mem. & Order at 81); see also United States v. Crawford, 60 Fed.Appx. 520, 527 (6th Cir.2003) ("Because Crawford contributed significantly to his own counsel's lack of preparedness, and because counsel represented that he was in fact prepared to provide Crawford with a defense, the district court did not abuse its discretion in denying Crawford's motion to continue the trial date."). The Ohio Supreme Court reasonably applied Ungar in concluding that Broom "was not denied due process when his motion for a continuance was denied," and we affirm the district court's judgment as to this issue. Broom, 533 N.E.2d at 695.

Immediately after the incident involving Melinda Grissom, the police took Broom for purposes of identification to the hospital where Grissom was being treated. Appellant Br. at 77. Because Broom was the only suspect presented to the Grissoms at the hospital, he argues that this "`show up' procedure used with both Melinda Grissom and Janet Grissom was `unnecessarily suggestive and conducive to irreparable mistaken identification.'"³⁶ Appellant Br. at 77 (quoting Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)).

In analyzing this issue, the Ohio Supreme Court stated:

We agree that the showup of the defendant at the hospital, where he was identified by the Grissoms, was both unnecessary and suggestive. . . . Therefore, our concern with the reliability of the identification, deterrence of police misconduct, and the effect on the administration of justice requires us to examine the totality of the circumstances to determine whether the confrontation was so suggestive that there was "a very substantial likelihood of irreparable misidentification."

Broom, 533 N.E.2d at 692 (quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). The Supreme Court has set forth the following factors to be considered in determining whether there was in fact such a likelihood of misidentification: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The Ohio Supreme Court found that all of these factors "were favorable in this case": "Both Grissoms had ample time to view appellant and their attention was completely focused as the mother tried to rescue her daughter. The descriptions given to the police prior to the confrontation matched the appellant. Finally, the identification was emphatically positive, and it occurred very shortly after the crime." Broom, 533 N.E.2d at 692.

Broom's contention that the Ohio Supreme Court's application of Manson and Neil was unreasonable is without merit, and we affirm the district court's judgment denying relief as to this claim.

For the reasons discussed above, we AFFIRM the district court's judgment denying Broom habeas relief.

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