D'Ambrosio v. Bagley ( 2008 )


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  •                             RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 08a0208p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Petitioner-Appellee/Cross-Appellant, -
    JOE D’AMBROSIO,
    -
    -
    -
    Nos. 06-3542/3712
    v.
    ,
    >
    MARGARET BAGLEY, Warden,                              -
    Respondent-Appellant/Cross-Appellee. -
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Cleveland.
    No. 00-02521—Kathleen McDonald O’Malley, District Judge.
    Argued: July 19, 2007
    Decided and Filed: June 5, 2008
    Before: BOGGS, Chief Judge; GIBBONS and ROGERS, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Stephen E. Maher, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus,
    Ohio, for Appellant. John Q. Lewis, JONES DAY, Cleveland, Ohio, for Appellee. ON BRIEF:
    Stephen E. Maher, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
    Appellant. John Q. Lewis, Edward J. Sebold, JONES DAY, Cleveland, Ohio, for Appellee.
    ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. BOGGS,
    C. J. (p. 11), delivered a separate opinion dissenting in part.
    _________________
    OPINION
    _________________
    ROGERS, Circuit Judge. Joe D’Ambrosio was convicted of murdering Anthony Klann in
    1988. After D’Ambrosio discovered evidence that the prosecution had withheld during his trial, he
    amended his then-pending habeas petition to add a Brady claim. The district court granted the writ.
    On appeal, the warden argues, for the first time, that D’Ambrosio failed to exhaust his Brady claim
    and should be required to return to state court to relitigate the claim there. Although D’Ambrosio’s
    Brady claim was not presented to a state court, we do not dismiss his petition because the warden
    expressly waived the exhaustion requirement. See 28 U.S.C. § 2254(b)(3). The warden also
    challenges the district court’s decision on the merits and D’Ambrosio cross-appeals with respect to
    other issues. For the reasons given by the district court on issues presented to this court, we affirm.
    1
    Nos. 06-3542/3712                  D’Ambrosio v. Bagley                                      Page 2
    I.
    The Supreme Court of Ohio described the underlying facts of this case:
    On Friday evening, September 23, 1988, at approximately 7:30 p.m., Anthony Klann
    (“victim”) and Paul “Stoney” Lewis visited a Cleveland area bar called The Saloon.
    At that time, Lewis encountered Thomas “Mike” Keenan, a former employer of his,
    whereupon the two engaged in a conversation, left the bar in Keenan’s truck, and
    went to another bar nearby called Coconut Joe’s. Shortly thereafter, Klann, Edward
    Espinoza and defendant-appellant, Joe D’Ambrosio, arrived at Coconut Joe’s.
    Lewis testified that Espinoza took the victim into the men’s restroom two or three
    times, and that he could hear Espinoza yelling at the victim while he (Lewis) was
    seated at the bar. However, during his own testimony, Espinoza denied that he
    argued with the victim at that time. Lewis stayed at Coconut Joe’s until
    approximately 10:45 p.m. or 11:45 p.m.
    Espinoza testified that at approximately 1:30 a.m., Saturday, September 24, he,
    Keenan and defendant also left the bar. Espinoza and defendant went to defendant’s
    apartment; however, before they entered, Keenan pulled up in his truck and asked the
    two to help him find Lewis so he could get back drugs that he claimed Lewis had
    stolen from him. Defendant and Espinoza went into the defendant’s apartment,
    whereupon Espinoza armed himself with a baseball bat and defendant picked up a
    knife. Espinoza assumed this knife was in addition to one that defendant usually
    carried. Defendant and Espinoza joined Keenan in his truck, and the three rode
    around the Coventry and Murray Hill area looking for Lewis.
    Carolyn Rosel testified that at approximately 3:00 a.m., she and a friend, James
    Russell (a.k.a. “Foot” or “Lightfoot”), were awakened by banging on their door.
    They went to the door and let Keenan, Espinoza and defendant inside, whereupon
    Keenan asked where Lewis was. At that time, Keenan and Espinoza told Rosel and
    Russell that they wanted to kill Lewis because he had “ripped Michael [Keenan]
    off.” After about fifteen to twenty minutes, the three left.
    According to Espinoza’s testimony they then resumed their search for Lewis in
    Keenan’s truck. Soon the three saw the victim walking next to the road they were
    traveling on and hailed him. When the victim approached the truck, Keenan forced
    him into the backseat next to defendant. The victim was asked where Lewis was, but
    he said he didn’t know. While the three interrogated the victim, Espinoza hit him on
    the head with a baseball bat. The victim told them where Lewis lived, and Keenan
    drove to Lewis’s apartment building and knocked on what he thought was Lewis’s
    door.
    Mimsel Dandec and her boyfriend, Adam Flanik, lived in the same apartment
    building as Lewis. At approximately 3:30 a.m. on the date in question, Dandec and
    Flanik were awakened by what they described as screaming, shouting and banging
    outside. Dandec testified that she heard someone yell, “I want my dope” or “my
    coke.” Flanik went to investigate and found Keenan pounding on another apartment
    door in search of Lewis. After Flanik directed Keenan to Lewis’s door, Keenan and
    Espinoza kicked it in while they repeatedly declared that they were going to kill
    Lewis. Lewis was not in his apartment at that time, so Keenan and Espinoza got
    back in the truck and drove off.
    Nos. 06-3542/3712                   D’Ambrosio v. Bagley                                       Page 3
    Meanwhile, defendant had stayed in the truck with the victim during the incident at
    Lewis’s apartment building. Flanik testified that defendant had a large knife poised
    within inches of the victim’s face. Flanik also testified that the victim “looked like
    he had been crying,” and “like he had been roughed up a little bit.”
    Russell testified that Espinoza returned to his home and asked whether Lewis had
    been there. Espinoza then told Russell to “tell Stoney we got a contract out on him,”
    and that he had the victim in the truck and that he was “dead meat.” Rosel testified
    that Espinoza said that they had the victim, and were “going to do him in, and drop
    him off.”
    Thereafter, according to Espinoza’s testimony, Keenan drove the group to Doan’s
    Creek and pulled his truck off the road near the bank of the creek. Keenan got out
    of the truck, pulled the victim out and made him walk behind the truck. Keenan
    asked the victim repeatedly where Lewis was, but the victim stated he didn’t know.
    Keenan told the victim to put his head back, whereupon Keenan took D’Ambrosio's
    large knife, cut the victim’s throat and pushed him into the creek.
    When the victim got up and began to run, Keenan said, “finish him off.” The
    defendant grabbed the knife from Keenan and pursued the victim. Within a minute
    or two, Espinoza testified, the victim screamed, “please don't kill me,” but defendant
    caught him and killed him.
    Still, according to Espinoza’s testimony, the trio then went to defendant’s apartment,
    where defendant changed clothes, and proceeded to Keenan’s room at the Turfside
    Motel. Espinoza testified that at that time Keenan “made us some story that we were
    supposed to keep to. * * * [O]ne was that we’d dropped off [the victim] earlier that
    night after we were done partying, and he went on his way. * * * Then the other
    story was that we never ran into [the victim].”
    At approximately 1:00 or 1:30 p.m. later that day, a jogger found the victim’s corpse
    in Doan’s Creek.
    On the morning of Sunday, September 25, an autopsy was performed by the
    Cuyahoga County Coroner, Dr. Elizabeth K. Balraj. The coroner testified that she
    found three stab wounds on the victim’s chest, and that his windpipe had been
    perforated in two places by a throat cut. In addition, she found some defense wounds
    on the victim, which are usually sustained on the hands or arms while trying to block
    a stabbing. The coroner stated that all the knife wounds could have been caused by
    State’s Exhibit 8A, but that it was possible that another knife could have been
    involved in the murder.
    The coroner further testified that the evidence was “consistent” with the conclusion
    that the victim died the day before the autopsy, but that it was “possible” that the
    victim died forty-eight hours before the autopsy.
    On October 6, 1988, defendant, Keenan and Espinoza were jointly indicted on four
    separate counts of (1) aggravated murder with prior calculation and design, R.C.
    2903.01(A); (2) aggravated felony murder, R.C. 2903.01(B); (3) kidnapping, R.C.
    2905.01; and (4) aggravated burglary of Lewis's apartment, R.C. 2911.11.
    Defendant’s trial commenced on February 6, 1989 before a three-judge panel. On
    February 9, the trial court sealed a verdict finding defendant guilty on all counts
    charged in the indictment. (The verdict was announced February 21, after the
    Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                     Page 4
    conclusion of Keenan’s trial.) On February 23, 1989, the panel found that the
    aggravating circumstances outweighed the mitigating factors beyond a reasonable
    doubt. Consequently, the court sentenced defendant to death on both aggravated
    murder counts.
    State v. D’Ambrosio, 
    616 N.E.2d 909
    , 911-12 (Ohio 1993). The Supreme Court of Ohio affirmed
    D’Ambrosio’s conviction, 
    id. at 921,
    and, following a remand to the court of appeals permitting
    D’Ambrosio to supplement the record, affirmed D’Ambrosio’s sentence, State v. D’Ambrosio, 
    652 N.E.2d 710
    , 715-16 (Ohio 1995).
    On March 30, 2001, D’Ambrosio filed a petition for a writ of habeas corpus in the United
    States District Court for the Northern District of Ohio. In his original petition, D’Ambrosio included
    four claims that are relevant to this appeal: (1) that he is actually innocent, (2) that he did not
    knowingly waive his right to a jury trial, (3) that his counsel was constitutionally ineffective for
    failing to ask for the recusal of one of the judges who served on the three-judge panel that convicted
    and sentenced him, and (4) that the State failed to preserve certain evidence which D’Ambrosio
    argued may have exonerated him.
    On September 19, 2002, D’Ambrosio moved to amend his petition to add a Brady claim
    based on newly-discovered evidence. As recounted by the district court, D’Ambrosio claimed that
    the State failed to disclose numerous pieces of evidence:
    (1) evidence that Lewis allegedly raped Klann’s roommate, Christopher
    Longenecker, that Klann had some knowledge of it, and that Lewis was never
    prosecuted for it;
    (2) evidence that police identified Lewis as an anonymous caller who called to
    [identify] Klann as the victim and knew information regarding the crime that had not
    yet been published in the newspaper;
    (3) the fact that Lewis, in exchange for his testimony, asked police to aid him in
    resolving a Driving While Under the Influence (hereinafter “DUI”) charge;
    (4) evidence that Detective Leo Allen, the leading investigating detective on the
    Klann murder case, reported a burglary of Lewis’s apartment several days after
    Lewis claims he had reported it to police;
    (5) evidence that police learned there was bloody clothing in Keenan’s garage;
    (6) evidence that the initial investigating detectives on the scene, Ernest Hayes and
    Melvin Goldstein, believed that Klann was murdered elsewhere and that his body
    was dumped in Doan’s Creek;
    (7) evidence that a cassette tape containing information “implicating others in this
    crime” was made by Angelo Crimi;
    (8) evidence that James Russell and Carolyn Rosel requested help from police in
    relocating after trial because some individuals, who they believed to be
    D’Ambrosio’s brothers, had threatened them;
    (9) evidence from the Trace Evidence Department that Klann was not wearing shoes
    or undershorts when his body was discovered;
    Nos. 06-3542/3712                            D’Ambrosio v. Bagley                                               Page 5
    (10) evidence that the Cleveland Heights Police Department’s dispatch log showed
    that there was a disturbance in the area of Coconut Joe’s on Thursday evening/Friday
    morning;
    (11) evidence that Therese Farinacci, one of Lewis’s neighbors, was awakened at
    around 4:10 a.m. on Saturday morning and that another couple heard someone say
    “Let’s dump the body” on that same night;
    (12) evidence that Linda DeBlasis Hudak stated she saw Klann alive late on Friday
    evening; and,
    (13) evidence that, while police claimed to have searched Keenan’s truck, the
    company that repossessed his truck subsequently found cocaine in it.
    D’Ambrosio v. Bagley, No. 1:00-cv-02521, 
    2006 WL 1169926
    , at *16 (N.D. Ohio Mar. 24, 2006)
    (paragraph breaks added). In July of 2004, the district court held a three-day evidentiary hearing,
    which focused on D’Ambrosio’s Brady claim.
    On March 24, 2006, the district court granted D’Ambrosio’s petition for a writ of habeas
    corpus.1 The court held that most of the evidence that D’Ambrosio introduced
    2
    to support his Brady
    claim was suppressed by the prosecution and favorable    to the defense.  The court further held that
    most of this suppressed evidence was material,3 and that D’Ambrosio was able to demonstrate cause
    and prejudice to overcome his failure to raise the Brady claim in state court. The district court,
    however, rejected D’Ambrosio’s other grounds for relief.
    The district court granted D’Ambrosio a certificate of appealability on the following issues
    upon which the court ruled against D’Ambrosio: (1) whether D’Ambrosio is actually innocent,
    (2) whether D’Ambrosio knowingly waived his right to a jury trial, (3) whether counsel for
    D’Ambrosio was constitutionally ineffective for failing to ask for the recusal of one of the trial
    judges, and (4) whether D’Ambrosio was denied due process because the prosecution failed to
    preserve certain evidence that D’Ambrosio argues may have exculpated him.
    II.
    The warden appeals the district court’s decision on the ground that D’Ambrosio failed to
    exhaust his Brady claim in state court. The warden did not raise exhaustion before the district court,
    and the district court, although noting that “the state’s failure to raise exhaustion does not invariably
    waive the defense,” refused to engage in a sua sponte analysis. D’Ambrosio, 
    2006 WL 1169926
    ,
    at *13 n.8. Specifically, with respect to the Brady claim, the district court noted that because a
    motion for post-conviction relief would be untimely, that because “throughout this rather lengthy
    habeas proceeding, the [warden] has never asserted an exhaustion defense,” and that because the
    1
    On April 14, 2006, the district court amended its judgment to clarify that it was ordering respondent to set
    aside D’Ambrosio’s convictions and sentences “as to all counts of the indictment” if the State chose not to retry
    D’Ambrosio.
    2
    The district court held that D’Ambrosio failed to demonstrate that the bloody clothing in Keenan’s garage was
    exculpatory. D’Ambrosio, 
    2006 WL 1169926
    , at *22-23. The court also held that the Cleveland Heights Police
    Department log, which indicated a disturbance at Coconut Joe’s on Friday morning, was not suppressed. 
    Id. at *28.
             3
    The district court concluded that No. 8 listed above (evidence that Russell and Rosel asked for help relocating)
    was not material. D’Ambrosio, 
    2006 WL 1169926
    , at *33.
    Nos. 06-3542/3712                           D’Ambrosio v. Bagley                                               Page 6
    State was responsible for suppressing Brady evidence, “the State cannot now assert D’Ambrosio’s
    failure to exhaust this claim as a bar to this Court’s review of it.” 
    Id. at *19
    n.14.
    The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) states that a federal
    court cannot grant a writ of habeas corpus to a prisoner held in state custody unless “(A) the
    applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence
    of available State corrective process; or (ii) circumstances exist that render such process ineffective
    to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Under AEDPA, the “State shall not
    be deemed to have waived the exhaustion requirement or be estopped from reliance upon the
    requirement unless the State, through counsel, expressly waives the requirement.” § 2254(b)(3).
    In this case, it is undisputed that the warden was aware of, but never argued to the district court,
    D’Ambrosio’s failure to exhaust his state remedies.
    D’Ambrosio never presented his Brady claim to a state court. D’Ambrosio offers three
    arguments for why this court should nonetheless address the merits of the claim: (1) the warden
    expressly waived the exhaustion requirement; (2) there is no state process through which
    D’Ambrosio could obtain relief; and (3) “[t]he interests of comity, federalism, and justice” are not
    served by requiring D’Ambrosio to return to state court.
    We conclude that the warden expressly waived the exhaustion requirement, and we need not
    address D’Ambrosio’s alternative arguments. AEDPA does not explain how a state “expressly
    waives” the exhaustion requirement, but says only that the state cannot be deemed to have waived
    the requirement unless it expressly waived the requirement. “Waiver” is traditionally defined as an
    “intentional relinquishment or abandonment of a known right.” See, e.g., United States v. Olano,
    
    507 U.S. 725
    , 733 (1993) (quoting Johnson v. Zerbst, 
    304 U.S. 458
    , 464 (1938)). Courts also
    generally agree that “express” is synonymous with “clear” or “unambiguous.” For example, in the
    context of statutory waivers of sovereign immunity, courts alternatively define an “express waiver”
    as “a ‘clearcut’ waiver, a ‘specific’ waiver, an[] ‘explicit’ waiver, an ‘unequivocal’ waiver, a ‘plain’
    waiver, a ‘manifest’ waiver, an ‘affirmative’ waiver, an ‘unambiguous’ waiver, or a waiver
    described by a combination    of these adjectives.” Shaw v. Library of Congress, 
    747 F.2d 1469
    , 1478
    (D.C. Cir. 1984).4 Similarly, in determining whether Congress has permitted state regulation that
    otherwise would violate the negative implications of the Commerce Clause, this court noted that,
    While the [Supreme] Court has generally required an express statement of
    Congressional policy to allow otherwise impermissible regulation of interstate
    commerce, “[t]here is no talismanic significance to the phrase ‘expressly stated’,
    however; it merely states one way of meeting the requirement that for a state
    regulation to be removed from the reach of the dormant Commerce Clause,
    congressional intent must be unmistakably clear.”
    L.P. Acquisition Co. v. Tyson, 
    772 F.2d 201
    (6th Cir. 1985) (quoting South-Central Timber Dev.,
    Inc. v. Wunnicke, 
    467 U.S. 82
    , 91 (1984)) (emphasis added). See also Kelly v. Lee’s Old Fashioned
    Hamburgers, Inc., 
    908 F.2d 1218
    , 1220 (5th Cir. 1990) (en banc) (holding that the requirement in
    Federal Rule of Civil Procedure 54(b) that the district court make “an express determination that
    there is no just reason for delay and . . . an express direction for the entry of judgment” in order to
    direct the entry of a final judgment to fewer than all of the parties in a multi-party case is met where
    the record “reflects the district court’s unmistakable intent to enter a partial final judgment”
    (emphasis added)).
    4
    The specific holding of the D.C. Circuit, that the immunity of the United States from awards for interest was
    waived by general statutory language waiving immunity for attorneys’ fees, was reversed by the Supreme Court. Library
    of Congress v. Shaw, 
    478 U.S. 310
    (1986). Congress later specifically provided for interest in the particular context at
    issue in Shaw. See Landgraf v. USI Film Prods., 
    511 U.S. 244
    , 251 (1994)
    Nos. 06-3542/3712                      D’Ambrosio v. Bagley                                      Page 7
    The warden expressly waived the exhaustion requirement because her counsel’s conduct
    during the district court proceedings manifested a clear and unambiguous intent to waive the
    requirement. In response to D’Ambrosio’s motion to amend his habeas petition in order to add the
    Brady claim, the warden stated that she took no position on the motion, but requested the
    opportunity to file a response if the district court granted the motion to amend. On October 25,
    2002, the warden filed a motion to expand the record to include evidence that the warden argued
    undermined D’Ambrosio’s Brady claim. On November 25, 2002, the district court granted both
    motions. Importantly, with respect to D’Ambrosio’s motion to amend his habeas petition, the
    district court stated that its understanding was that the warden would not argue that the Brady claim
    was unexhausted:
    Based on the motion briefs and conversations with counsel, the Court finds this claim
    is exhausted, as Petitioner is without an available state-court remedy. Thus, the
    Court grants the instant motion without concern that Respondent will subsequently
    move to dismiss the Petition for failure to exhaust the amended claim. In so
    granting, however, the Court reserves Respondent’s right to assert that the claim is
    procedurally defaulted, if appropriate, in the supplemental return of writ.
    Furthermore, in her Amended Return of Writ, the warden argued that D’Ambrosio’s petition
    contained procedurally defaulted claims because the claims were “never presented in state court”
    and “if now [were] presented, would be found untimely by the state courts.”
    This is an extraordinary case in which the district court stated that it understood exhaustion
    to be a non-issue and that the warden would not later assert it, the warden failed to correct what the
    district court clearly viewed as the warden’s position during the almost four years of litigation before
    that court, and the warden went on to state to the district court that D’Ambrosio’s claims would be
    untimely in the state courts (thereby confirming the district court’s understanding). We are aware
    of no binding authority that says that such conduct by the State is not an express waiver of the
    exhaustion requirement. Furthermore, the Eighth Circuit held, in a case somewhat analogous to this
    one, that a state expressly waived the exhaustion requirement by stating in a district court brief that
    it had conceded exhaustion in a prior motion to dismiss, even though the circuit court’s review of
    the motion to dismiss revealed no concession. Kerns v. Ault, 
    408 F.3d 447
    , 449 n.3 (8th Cir. 2005).
    But see Dreher v. Pinchak, 61 F. App’x 800, 802-03 (3d Cir. 2003) (holding that the state’s
    concession of exhaustion in its answer to the petition for writ of habeas corpus did not expressly
    waive the exhaustion requirement because the “policy justifications” of that requirement counseled
    in favor of a “stringent standard for proving waiver of exhaustion”).
    It is no answer to say that the warden did not expressly waive exhaustion because the warden
    did not verbally state that she was waiving the requirement. AEDPA does not require “magic
    words” in order for a state to expressly waive exhaustion. The touchstone for determining whether
    a waiver is express is the clarity of the intent to waive. Obviously, had the warden’s counsel said,
    “we waive the exhaustion requirement,” the intent would have been clear. But there is nothing more
    than a metaphysical distinction between that hypothetical situation and the instant case—in both
    cases it is clear that the warden intentionally gave up her right to raise exhaustion. Cf. 
    Shaw, 747 F.2d at 1478
    (“There is nothing talismanic in the word ‘express,’ . . . .”). AEDPA requires that the
    waiver be express, not expressed in a certain manner.
    Finally, this is not a case in which the State simply failed to raise the exhaustion requirement
    in the district court. This court has held that such simple failure does not, by itself, expressly waive
    the issue. See Clinkscale v. Carter, 
    375 F.3d 430
    , 436 (6th Cir. 2004); Jackson v. Jamrog, 
    411 F.3d 615
    , 618 (6th Cir. 2005); Rockwell v. Yukins, 
    217 F.3d 421
    , 424 (6th Cir. 2000). Nor does the fact
    that the warden participated in discovery and moved to expand the record indicate, by itself, that the
    warden expressly waived the exhaustion requirement, as D’Ambrosio argues. These actions were
    Nos. 06-3542/3712                              D’Ambrosio v. Bagley                                                  Page 8
    merely ancillary to the warden’s opposition to the merits of D’Ambrosio’s Brady claim, and do not
    indicate express waiver any more than participation in briefing and oral argument. Instead, it is the
    statements made   and actions taken by the warden, in addition to these facts, that constitute an
    express waiver.5
    III.
    For the reasons given in those parts of the district court’s thorough, thoughtful, and well-
    reasoned opinion applicable to the issues certified for appeal, D’Ambrosio has demonstrated that
    the prosecution suppressed material exculpatory evidence and that neither § 2254(e)(2) nor
    procedural default precluded the district court’s consideration of those6claims. D’Ambrosio, 
    2006 WL 1169926
    , at *16-33. We therefore affirm the district court’s order. Accordingly, a full-blown
    discussion of the merits would serve no jurisprudential purpose.
    5
    Because we conclude that the warden expressly waived the exhaustion requirement, we do not address
    D’Ambrosio’s alternative arguments that there is no available state remedy that he could pursue and that this court does
    not have to dismiss a petition containing an unexhausted claim because the prudential reasons for exhaustion are
    inapplicable in this case.
    We are skeptical of the warden’s argument that a petition for post-conviction relief pursuant to Ohio Revised
    Code (“ORC”) § 2953.21 is an available remedy. A petition for post-conviction relief filed this late after the direct
    appeal would only be considered timely if D’Ambrosio could “show[] by clear and convincing evidence that, but for
    constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was
    convicted.” ORC § 2953.23(A)(1)(b); see also ORC § 2953.21(A). But to succeed on a Brady claim, D’Ambrosio needs
    to demonstrate merely that with the suppressed evidence there is “a ‘reasonable probability’ of a different result.” Kyles
    v. Whitley, 
    514 U.S. 419
    , 434 (1995); see also Broom v. Mitchell, 
    441 F.3d 392
    , 400 n.8 (6th Cir. 2006) (concluding that
    because petitioner could not satisfy ORC § 2953.23(A)(1), it was “no longer an available state court remedy”), rehearing
    and rehearing en banc denied (Aug. 9, 2006).
    The warden’s argument that D’Ambrosio can assert a Brady claim via a motion for a new trial pursuant to Ohio
    Rule of Criminal Procedure 33(B) is a closer question. There is Ohio Supreme Court authority that holds that in cases
    involving newly-discovered evidence, a motion for a new trial cannot be granted unless the movant shows, among other
    things, that the new evidence “discloses a strong probability that it will change the result if a new trial is granted.” State
    v. Petro, 
    76 N.E.2d 370
    , 371 (Syllabus) (Ohio 1947). Brady requires only that there is a “reasonable probability” that
    the result would have been different. See 
    Kyles, 514 U.S. at 434
    . In addition, the warden’s conduct during the course
    of the federal habeas proceedings indicates that she did not view Rule 33 as an available state remedy. Until this appeal,
    the warden never argued that Rule 33 was a potential remedy that D’Ambrosio could have pursued. This is in contrast
    to the post-conviction petition remedy, which the warden discussed as a potential remedy in her Amended Return of
    Writ, with respect to procedural default. See also 
    Broom, 441 F.3d at 399-401
    (concluding that a prisoner sentenced to
    death in Ohio could raise an unexhausted Brady claim in a federal habeas petition because the petitioner could not bring
    a post-conviction petition in state court). On the other hand, this reading of the Rule 33 standard is questionable in light
    of State v. Johnston, 
    529 N.E.2d 898
    , 908-12 (Ohio 1988), which held that the Ohio courts of appeal should review a
    Brady claim in a Rule 33 motion under the federal Brady standard, not the more stringent Petro standard.
    Finally, with respect to D’Ambrosio’s third argument (asserting the “interest of comity, federalism, and
    justice”), he relies on the reasoning of Granberry v. Greer, 
    481 U.S. 129
    (1987) and other pre-AEDPA cases, which we
    question in light of AEDPA. See 28 U.S.C. § 2254(b)(3).
    6
    Likewise, for the reasons given by the district court, we reject D’Ambrosio’s arguments in his cross-appeal.
    First, this court has refused to recognize a theoretical “free-standing” actual innocence claim, and even if such a claim
    existed, D’Ambrosio has not met his burden. See, e.g., Davis v. Burt, 100 F. App’x 340, 349-50 (6th Cir. 2004); see also
    D’Ambrosio, 
    2006 WL 1169926
    , at *34-39. Second, the Ohio Supreme Court’s conclusion that D’Ambrosio knowingly
    waived his right to a jury trial is not an unreasonable application of federal law because D’Ambrosio signed a written
    waiver and engaged in a colloquy (albeit short) with the trial court. See D’Ambrosio, 
    2006 WL 1169926
    , at *40-41.
    Third, the Ohio Supreme Court’s conclusion that counsel for D’Ambrosio was not constitutionally ineffective for failing
    to ask for the recusal of one of the trial judges was not an unreasonable application of federal law because the Ohio
    Supreme Court reasonably concluded that D’Ambrosio suffered no prejudice by the fact that the judge in question
    presided over Keenan’s trial and approved Espinoza’s plea agreement. See 
    id. at *45-46.
    Finally, D’Ambrosio’s
    spoliation of evidence claim fails because he cannot demonstrate that the exculpatory value of the lost evidence was
    apparent at the time that the evidence was lost. See 
    id. at 48-49.
    Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                      Page 9
    The evidence that the district court concluded was Brady material falls mostly within two
    broad categories. First, there is evidence that would have contradicted or weakened the testimony
    of the prosecution’s only eyewitness to the murder, Edward Espinoza. This included (a) the
    unrecorded conclusions of Detectives Hayes and Goldstein, who investigated the crime scene and
    concluded that Klann was not murdered there; (b) a police report describing a tape in which a third
    party (Crimi) implicated unnamed other individuals in the murder; (c) a police report that noted that
    Klann was not wearing shoes or undershorts when his body was discovered; and (d) a police report
    stating that Hudak saw Klann alive the night after events that the prosecution claimed happened the
    night that Klann was murdered. Second, there is evidence that demonstrates a motive on the part
    of another individual, Paul Lewis. The prosecution failed to disclose that Lewis was being
    investigated, and had earlier been indicted, for a rape to which Klann was a witness. Consistent with
    Lewis’s motive to kill Klann was undisclosed evidence that (a) Lewis anonymously called the police
    and revealed non-public facts about the murder; (b) Lewis first led the police to suspect
    D’Ambrosio; (c) Lewis requested police assistance with respect to an unrelated DUI in exchange
    for testimony against D’Ambrosio; and (d) Lewis fabricated a burglary to implicate D’Ambrosio in
    the murder.
    The district court was correct that the first category of evidence would have further
    challenged the prosecution’s version of events, whereas the second category of evidence would have
    revealed Lewis as a legitimate suspect. Together, this evidence would have substantially increased
    a reasonable juror’s doubt of D’Ambrosio’s guilt. Because the evidence that the prosecution
    suppressed would have had the effect of both weakening the prosecution’s case and strengthening
    the defense’s position that someone else committed the murder, there is a reasonable probability that
    the outcome of D’Ambrosio’s trial would have been different.
    The warden’s arguments on the merits are mostly cursory challenges to the district court’s
    conclusions that certain pieces of evidence were not exculpatory or material. The district court’s
    opinion sufficiently addresses these arguments. Two arguments, however, require additional
    discussion.
    First, the warden argues that the opinions of Detectives Hayes and Goldstein are not Brady
    evidence. D’Ambrosio argues that the detectives’ opinions are Brady evidence because Hayes and
    Goldstein could have testified about their opinions at trial, their opinions were exculpatory, and the
    prosecutor has a duty under Kyles v. 
    Whitley, supra
    , to learn of evidence favorable to a defendant
    that is known to the police. D’Ambrosio’s argument that opinions of police detectives are always
    Brady evidence proves too much. It cannot be the law that every stray thought of a police detective
    about a case must be imputed to the State, such that the prosecutor has a duty to disclose that
    information, simply because a defendant could elicit the detective’s opinion during trial. On the
    other hand, the warden’s argument that the opinion of a police detective can never be Brady
    evidence if the detective never put that opinion in writing may also prove too much. For example,
    a police detective’s opinion might be so concrete and well-known to other government agents
    working on a case that the prosecutor’s failure to learn the opinion and disclose it to the defense
    could rise to the level of a Brady violation. We need not decide which position prevails in the
    instant case because even ignoring the detectives’ opinions, the other suppressed evidence is
    material.
    Second, the warden argues that the district court “abused its discretion” when it granted relief
    on a “false claim” by D’Ambrosio that the indictment against Lewis was dismissed after Klann’s
    murder. The district court did not err. In 1988, a few months before Klann’s murder, a grand jury
    returned an indictment charging Lewis with the rape of Christopher Longenecker. In August of
    1988, that indictment was dismissed without prejudice. However, a second indictment was
    presented to the grand jury, and the grand jury no-billed the indictment in October of 1988, after
    Klann was murdered. There is nothing in the district court’s opinion that indicates that the court
    Nos. 06-3542/3712                     D’Ambrosio v. Bagley                                   Page 10
    misunderstood this series of events. Even though the first indictment was dismissed before Klann
    was murdered, Lewis’s motive to kill Klann remained because the indictment was dismissed without
    prejudice and could have been refiled later.
    IV.
    For the foregoing reasons, the district court’s order granting D’Ambrosio’s petition for a writ
    of habeas corpus is AFFIRMED.
    Nos. 06-3542/3712                      D’Ambrosio v. Bagley                                     Page 11
    ____________________________
    DISSENTING IN PART
    ____________________________
    BOGGS, Chief Judge, dissenting in part. I am in general agreement with most of what is
    written in the well-reasoned opinion for the court in this case. Unfortunately, I cannot agree that the
    actions of the state here met the requirement of AEDPA that a state does not waive the requirement
    of exhaustion “unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.
    § 2254(b)(3).
    From the point of view of judicial economy and efficiency, to say of nothing of good
    practice, returning to state court at this point is probably not the best course. On the other hand, the
    balance of state and federal interests in the processing of habeas petitions from state court
    convictions is one for Congress to set, and Congress has done so through AEDPA. Thus, we must
    determine, based strictly on the language of AEDPA, whether the state’s actions here constitute an
    “express” waiver. I simply cannot find that the state’s silence, even in the face of the district court’s
    stating that it was “without concern that Respondent will subsequently move to dismiss the Petition
    for failure to exhaust the amended claim” can be an express action. It may be “tacit,” it may be
    “implicit,” it may even be somewhat deceitful, but the warden’s silence, in my opinion, cannot be
    “express.” The court’s opinion is quite correct that no “magic words” are needed, but it seems to
    me that some words, sign, signal, or indication other than silence is necessary for a waiver to be
    “express.”
    I would also note that the potential for gamesmanship exists on both sides here. It is true that
    the warden can be seen, knowingly or unwittingly, to have “hidden in the weeds” by neither raising
    nor waiving exhaustion, and then raising it on appeal. On the other hand, counsel for the petitioner,
    undoubtedly aware of the AEDPA requirement, also refrained from bringing the matter to a head.
    Petitioner could have demanded that the waiver be made “express” and thus nail the matter down
    in the district court. Of course, this would have run the risk that the warden might then have
    declined to waive and the court would then have been required to rule explicitly on the point, with
    the possible result that the federal proceedings would have been derailed awaiting such actual
    exhaustion. Thus, the weeds involved in this case may well have contained counsel for both
    Petitioner and Respondent.
    In any event, I do not feel at liberty to deviate from what I consider the correct interpretation
    of the term “expressly waives,” and I therefore respectfully dissent on this point.