NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0764n.06 No. 11-4183 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

REGI NAL D B ROOKS, Petitioner-Appellant,

v. DAVI D B OB BY , Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : SUTTON, McKEA GUE a nd GRI FF I

N, Circuit J udg es.

PER CURI AM. Reg inald Br ooks moves to stay his execution while he continues to litigate two claims in state court: (1) t h at h e i s incompetent to be ex ecute d, see Ford v. W ainwright , 477 U.S. 399, 410 (19 8 6 ); an d (2) that the State withheld evidenc e and failed to corr ect misleading testimony during his trial, see Brady v. Maryland , 373 U.S. 8 3 , 87 (1963); Napue v. Illinois , 360 U.S. 264, 269 (1959). The state trial cour t a nd the state intermediate appellate court re jected both claims, R. 61-2; R. 102-2; R. 106-1, and the Ohio Supreme Court denied Br ooks’ motion to stay his execution while he see ks review in that court. B rooks asks us to do what the state courts (a nd the Ohio Gover

nor) thus far have not—to stay his execution while he prese nts these claims to the Ohio Supreme Court so that, if unsucce ssful there , he may later litigate the claims here in a fede ral habea s proce eding . We deny

the re quest.No. 11-4183

Brooks v. Bobby Br ooks’ motion, in the first place , suffe rs from a timeliness problem, at least as to his Ford claim. There is a “strong equitable presumption” ag ainst g ranting a stay to allow litigation of a claim that could have been broug ht e arly enoug h “to allow conside ration of the me rits without requiring entry of a stay .” Nelson v. Campbell , 541 U.S. 637, 650 (2004). The Ohio Supreme Court i ssued

an order on Marc h 1, 2011, setting Br ooks’ execution for November 15, y et Br ooks waited more than five-a nd-a- half months—unti l Aug ust 23—to file his F o r d claim in state court. But for this unexplained de lay , all of the state appellate courts would have had a full opportunity to r ule on the claim’s merits, while at the same time potentially g iving Br ooks an opportunity to file a Ford claim in a fe dera l habea s petition.

One problem with eleve nth-hour filings is prese nted here

. Br ooks seeks a stay from us while the Ohio Supreme Court considers the merits of his Ford and Brady claims. At this point, less than 24 hours befor e the S t at e’s schedule d execution, we have a decision from an intermediate state appellate court reje cting the claims on the merits, a ruling that, if aff irmed and if aff

irmed on these g rounds, would be entitled to AEDPA defe renc e in a subsequent fede ral habea s petition. I n thinking about the likelihood that Br ooks will succe ed on the merits, it seems appropr iate in one sense to g ive AEDPA defe renc e to that ruling

. After all , t h e o n l y state-c ourt ruling s thus far have reje cted the claims on the m erits. Yet, in another sense, it is strang e to g ive AEDPA defe renc e to a less-thanfinal decision. The prac ticalities of today ’s motion offer a sensible wa

y of re solving a

ny potential dilemma. Be cause a fede ral habea s petition likely would come befor e us only if the Ohio Supreme Court de nies revie w altog ether or af firms the state appellate court’s ruling on the merits—inmates

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Brooks v. Bobby do not premise habea s petitions on state-c ourt vict ories—we will apply AEDPA defe renc e to the state appe llate cour

t’s ruling in addre ssing this stay motion.

As to the merits of Br ooks’ claims, he has no likelihood of succe ss, which “by itself suffice s to” deny the stay
. Bedford v. Bobby , 645 F.3d 372, 377 (6th Cir. 2011). Start with the Ford claim. The Eig hth Amendment prohibits a State from executing a prisoner who is “insane ,” Ford , 477 U.S. at 410, that is, who lacks a “r at i o n al u n d erstanding” of the “re ason for his execution.” Panetti v. Quarterman , 551 U.S. 930, 959 (2007). After conducting a competenc y evalua tion at state expense and holding a leng thy (four -day ) evidentiar

y hear ing, the state trial court reje cted Br ooks’ Ford claim, finding he “has both a fac tual and rationa l u n d er s t anding of [hi s] crimes, is awa re of his impending death, and is able to causa lly rela te the murders with his punishment.” R. 61-2 at 6. The Ohio Court of Appea ls affirme d this finding. R. 106-1 at 12. To se cure habea s relief on his Ford claim, Br ooks must show that this decision “wa s based on an unrea sonable deter mination of the fac ts in light of the evidenc e prese nted” or was “contr ary to, or involved an unrea sonable application of, clea rly established Fe d er al l aw, as deter mined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). He cannot overc ome these hurdles. The state appellate court rea sonably adopted the trial court’s fac tual finding that, althoug h Bro o k s s u ffe rs from “par anoid schizophrenia” and “g randiose delusions,” he still has a rational understanding of the rea sons for his execution. R. 61-2 at 4-7; R. 106-1 at 12. And both of the state court decisions l ai d o u t the corr ect standard of competenc e from Ford and Panetti , R. 61-2 at 4; R. 106-1 at 8-12, a fra mewor k t h at “sugg ests a

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Brooks v. Bobby rang e of rea sonable applications,” Bedford , 645 F.3d at 378, and reasonably appl ied t hat s tandar d to Brooks.

Br ooks persists that Ohio’s statutory scheme for evalua ting Ford claims denied him the eff ective assistance of counsel by requiring that the state trial court issue a ruling within six ty day s of t he claim’s filing. Ohio Rev. C o d e § 2 9 4 9 .28(B )(3)

. But Brooks’ attorney s (one of whom the State paid for) h ad an opportunity to conduct discovery , prese nt their own evidenc e and crossexamine the State’s expert witness. States need not g ive prisoners unlimit ed opportunities to prove they are incompetent to be executed, see Ford , 477 U.S. at 416–17, and Br ooks has not shown that six ty day s was an insuff

icient amount of time to allow his attorney s to perfor m effe ctively

.
The Brady claim fares no better. Brooks arg ues t hat t he S tate viol ated Brady by failing to t u rn over statements from sever al family members and acqua intances documenting his err at i c behavior befor e the murders. Br ooks’ lawy ers appar ently discovere d this evid e n c e in the State’s files fo r t he first time while i nvestig ating Br ooks’ Ford claim. To establish a Brady violation, Br o o k s must show (1) that the evidenc e was favor ab l e to him beca use it was either exculpatory or impeaching , (2) that the State suppressed the evidenc e, and (3) that the State’s failure to disclose the evidenc e prejudice d him. Strickler v. Gree ne , 527 U.S. 263, 281–82 (1999). Even if Br ooks could satisfy the first two elements, a point we need not decide , he cannot show prejudice , which require s demonstrating “a rea sonable probability of a differ ent result.” Banks v. Dretke , 540 U.S. 668, 699 (2004 ). T he st ate trial court rejecte d Br ooks’ Brady claim on the ground that the evidence would not have made a differ ence beca use it was duplicative of evidenc e alre ady in Br ooks’ possession and

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Brooks v. Bobby cumulative of evidenc e alre ady prese nted at trial, including Br ooks ’ d i agn o s is as a para noid schizophrenic. R. 102-2. The state appellate court aff irmed that conclusion. R. 106-1 at 16-19. The state courts’ deter

mination is a rea sonable one, which prec ludes habea s relief

. See 28 U. S

. C

. § 2254(d). Be cause the court of conviction alre ady knew that Br ooks was a para noid sc hizophrenic,

a few anec dotes of err atic behavior (on top of other anec dotes of err atic behavior alre ady prese nted at the first trial) likely

would not have pr oduced a differ ent outcome. The supporting aff

idavit submit ted by

J udg e Ha rry Hanna , one of the three judge s who sat

on the panel that co nvicted Br ooks and sentenc ed him to death and who is now a visiti ng ( e.g. , senior) judge , is not the kind of thing we see ever y day

. But it does not chang e things, and it would establish a dang erous prec edent if it did. I n his new capa city , J udg e Hanna say s that, if he knew then what he knows now, he “would have voted for a sentenc e less than death,” a point he also made in support of Br ooks’ clemenc y application. Yet the Fe dera l Constit ution does not require a state court to acc ept this kind of s t at em en t , made some 28 y ear s afte r the fac t, much less g ive it meaning ful weig ht in resolving a Brady claim. Cf

. Nields v

. Bradshaw , 482 F.3d 442, 460–61 (6th Cir. 2007) (af fidavit from juror that she would have g iven new mitigation evidenc e “conside rable weig ht” not sufficie nt to set aside state court finding of no prejudice ). Nor, it follows, did the s tate courts act

unrea sonably

in failing to give the statement mea ningf ul weig ht.

Br ooks’ Napue claim fails for a simil ar rea son. He arg ues that prosec utors violated Napue by failing to corr ect the following statement in a psy chiatric repor t from Dr

. Bi l l o wi tz: “[I ]n my opinion it i s very

doubtful that [Brooks] suff ere d from extremely bizarre and g rossly disorg anized - 5 -No. 11-4183

Brooks v. Bobby delusions, since it is very likely that such g ro s s abnorma lities would have

. . . been made clea rly manifest to outsiders.” R. 73-2 at 21. Even if we assume for the sake of arg ument that the witness statements about Br ooks’ err atic behavior made Dr. Billowitz’s statement misleading , Br ooks still must show that failing to “cor rec t” this testimony could “in any rea sonable likelihood have aff ecte d the judgme nt of the” fac tfinders. Napue , 360 U.S. at 271. He cannot do so. Dr. Billowitz still repor ted that Br ooks’ psy cholog ical tests showed he was “schizophrenic.” R. 84 at 33. Given what the fac tf i n d er s already knew about Br ooks’ psy chiatric condition, as the state trial and appellate courts re cently

found, there is no reasona ble probabilit y that the fe w ane cdotes of e rra tic behavior contained in the ne w evidenc e would have chang ed the outcome . R. 102-2; R. 106-1.

For these re asons, B rooks’ motion for a stay of execution is denied.

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