RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0352p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ELWOOD H. JONES,

 Petitioner-Appellant,

v.

MARGARET BAGLEY, Warden,

 Respondent-Appellee.

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No. 10-3339

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:01-cv-564—Thomas M. Rose, District Judge.

Argued: April 18, 2012

Decided and Filed: October 1, 2012 

Before: BATCHELDER, Chief Judge; GIBBONS and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Gary W. Crim, Dayton, Ohio, for Appellant. Stephen E. Maher, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF:

Gary W. Crim, Michael L. Monta, Dayton, Ohio, for Appellant. Stephen E. Maher,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

ALICE M. BATCHELDER, Chief Judge. Fifteen years ago, petitioner Elwood

Jones was on trial for his life, accused of the murder of Rhoda Nathan. The Ohio jury

convicted Jones and recommended the death penalty. He is now before us to appeal the

district court’s denial of his petition for habeas relief, arguing that the State of Ohio

violated his federal Due Process rights in several ways. Specifically, he claims that the

state trial court improperly admitted evidence that Jones exercised his right to counsel;

1
No. 10-3339 Jones v. Bagley Page 2

that the prosecution failed to disclose exculpatory and impeachment evidence, and

Jones’ counsel provided ineffective assistance by failing to discover the withheld

evidence; and that his trial counsel provided ineffective assistance by failing to

investigate a history of crime at the hotel where Nathan was murdered. Because Jones’s

claims are without merit, we AFFIRM the district court’s dismissal of his habeas corpus

petition.

I.

The Ohio Supreme Court establishes the following facts:

During the early afternoon of Friday, September 2, 1994, Elaine Schub

and Joe Kaplan checked in as guests at the Embassy Suites Hotel in Blue

Ash. Schub was in town to see her grandson’s bar mitzvah, which was

to be held the following day. Schub’s best friend, Rhoda Nathan, flew

in from New Jersey later that afternoon also to attend the event on

Saturday. Schub and Nathan shared the bedroom of the hotel suite, while

Kaplan stayed in the front room using a foldout bed.

On Saturday morning, September 3, Schub and Kaplan awoke early to

meet relatives at the complimentary breakfast served on the first floor of

the hotel. As she and Kaplan left the room at approximately 7:28 a.m.,

Schub told Nathan to go back to sleep, since she did not need to be at the

temple that morning as early as the family. Kaplan had the only room

key for the group and made sure the door was locked when he and Schub

left for breakfast.

At approximately 8:08 a.m., Schub and Kaplan finished breakfast and

returned upstairs to their room. Kaplan unlocked the door and

discovered Nathan lying nude on the floor. Employees and hotel guests

rushed up to Room 237, where Schub was found screaming and shaking.

A cardiologist, a respiratory therapist, and a nurse happened to be at the

hotel at the time, and they came to the room to help resuscitate Nathan.

Initially, witnesses thought Nathan had had a fall, perhaps brought on by

a heart attack, since there seemed to be little blood on or around Nathan.

However, further investigation revealed that Nathan’s hair was soaked

with blood and that she had suffered severe trauma to her head. When

Nathan’s head was moved, witnesses found a tooth on the floor. Later,

Schub asked for and was given her purse, which she had left in the hotel

room during breakfast. Upon opening her wallet, which was inside the

purse, Schub noticed that money was missing.
No. 10-3339 Jones v. Bagley Page 3

During the commotion, Schub noticed that Nathan no longer had the

pendant necklace that she had been wearing earlier and that she always

wore. The pendant was a one-of-a-kind piece of jewelry that Nathan’s

late husband had made from his mother's wedding band. It consisted of

several connected gold bars, one containing diamonds. According to

Nathan’s daughter-in-law, Nathan never took the pendant off. Nathan

died that afternoon as a result of multiple traumas to her head and body.

The coroner’s office determined that the death was a homicide.

Police quickly set up a command center in a banquet room on the second

floor near the murder scene in Room 237. Police canvassed the rooms

at the hotel and took statements from guests and hotel employees

working that day. Police then began to concentrate their investigation on

three particular hotel employees who had prior criminal histories. Police

cleared two of the employees through further investigation and narrowed

their investigation to defendant-appellant, Elwood “Butch” Jones. Police

discovered from interviews with other hotel employees that appellant had

injured his hand on the day Nathan was killed. This fact pointed to

appellant as a suspect because the crime at the hotel involved a violent

assault. Appellant had filed a claim for workers’ compensation for

medical benefits. The police thereafter subpoenaed and received the

medical records for the treatment of appellant's hand injury.

On September 12, 1994, Sgt. Robert Lilley of the Blue Ash Police

Department spoke with one of appellant's treating physicians, Dr. John

McDonough. Lilley learned through another police investigator that Dr.

McDonough had classified appellant’s injury as a fist-to-mouth injury

and that Dr. McDonough had asked appellant if he received the injury by

punching someone in the mouth. That same day, police went to the

residence of Earlene Metcalfe in Loveland. Metcalfe worked at the hotel

and was a girlfriend of appellant, in addition to being listed as a witness

to appellant’s hand injury on his workers’ compensation claim form.

Upon arriving at Metcalfe’s residence, police found appellant there, and

both he and Metcalfe voluntarily agreed to answer questions at the Blue

Ash Police station concerning the homicide at the hotel.

At the police station, appellant was advised of his Miranda rights and

signed a waiver form. During the interview with Sgt. Lilley and Blue

Ash Police Officer Larry Stokes, appellant stated that he and Metcalfe

arrived at the hotel on September 3 at approximately 5:00 a.m. At that

time, appellant signed out a hotel master key at the front desk as he did

every day at work. Since appellant was not due to clean the hotel

banquet rooms until 10:00 a.m., he began to help Metcalfe set up the

complimentary breakfast area. Shortly after 6:00 a.m., appellant learned

that a coworker would not be in to work that morning, so he went to the

second floor of the hotel to begin cleaning the banquet rooms. Appellant
No. 10-3339 Jones v. Bagley Page 4

stated that at around that time, he slipped on steps outside the hotel and

fell, cutting his left hand while taking trash out to the hotel dumpster. He

then finished cleaning the Maple banquet room and went downstairs to

help with the hotel’s complimentary breakfast.

According to Lilley, appellant was forceful and almost defensive when

he claimed that he worked at the breakfast from approximately 6:30 a.m.

to 8:00 a.m. that day. Appellant further claimed that he was cleaning

tables in the restaurant dining area when he heard screams from the

second floor as well as a trouble call over a coworker’s

employer-provided walkie-talkie.

Appellant told Lilley that he again hurt his hand in a banquet room later

that day and that he really thought nothing more of the injury until it

started bothering him several days later on September 6. Appellant

reiterated that he never left the restaurant on September 3 between 6:30

and 8:00 a.m. and asserted that he was never inside Room 237, since he

had no reason to be in any of the guest rooms at the hotel. Lilley asked

if he was involved in the murder, and appellant declared that he wanted

to talk to an attorney before he answered any more questions. At that

point, the interview ceased.

The police secured Metcalfe’s consent to search her residence and also

obtained a warrant to search a vehicle owned by appellant, which was

parked in Metcalfe’s driveway in Loveland. In addition, police obtained

a search warrant for appellant's residence on Morman Avenue in

Cincinnati. While police seized many items of apparel from the two

residences, none of them yielded any trace evidence of blood. However,

the search of appellant’s car produced several items of evidence. Inside

the toolbox in the trunk of appellant’s car was the unique pendant

belonging to Nathan. Also recovered from the toolbox was a master key

to the hotel, which could open Room 237, where the murder took place.

Police also recovered door security chains, which were later used in

attempting to match marks on Nathan’s body found on autopsy photos.

The last test results on the seized items came back in August 1995, and

the case was later submitted to the grand jury. On September 27, 1995,

the grand jury indicted appellant on two counts of aggravated

felony-murder (during an aggravated burglary and during an aggravated

robbery), and separate counts of aggravated burglary and aggravated

robbery. Death-penalty specifications attached to each aggravated

murder count alleged that appellant was the principal offender in the

aggravated murder during a burglary and the principal offender in the

aggravated murder during a robbery or committed the offenses with prior

calculation and design. Ultimately the prosecution proceeded only on the

first alternative, that appellant was the principal offender. R.C.
No. 10-3339 Jones v. Bagley Page 5

2929.04(A)(7). Police arrested appellant at his place of employment in

downtown Cincinnati later that day and took him to the District 1 police

station for processing.

While at the District 1 headquarters, appellant was shown a copy of the

indictment and told he was under arrest for the murder of Rhoda Nathan,

as well as for burglary and the robbery involving her pendant necklace.

At that point, appellant inquired, “What necklace?” Sgt. Lilley then

produced a photo sheet of the pendant recovered from appellant's car and

placed it on the table. Appellant then stated that he had never seen it

before in his life. Sgt. Lilley told appellant that the pendant had been

recovered from the trunk of his car. Appellant declared, “Not in my

fucking car.”

A jury trial was held wherein numerous witnesses were called by both

the prosecution and defense. Among the prosecution witnesses was Dr.

John McDonough, who was appellant’s physician during his hand

surgery. Dr. McDonough testified that he took a culture from the wound

in appellant’s left hand and that testing indicated a “mixed flora” of

organisms. One of the organisms detected was eikenella corrodens, an

organism usually found in dental plaque, which Dr. McDonough

described as extremely rare in hand injuries. Dr. McDonough testified

that, within a reasonable degree of medical certainty, the infection to

appellant’s hand was caused by a fist-to-mouth injury because of the

presence of eikenella corrodens. This type of injury is sometimes

referred to as a “fight bite.” The defense put into evidence the testimony

of an expert, Dr. Joseph Solomkin, who questioned the likelihood of Dr.

McDonough’s conclusion. Dr. Solomkin testified that it was possible

that the eikenella corrodens had come from some source other than an

assault victim’s mouth.

After deliberation, the jury found appellant guilty as charged.

State v. Jones, 739 N.E.2d 300, 305–07 (Ohio 2000). The jury convicted Jones on two

counts of aggravated felony murder, one count of aggravated burglary, and one count of

aggravated robbery, and recommended the death penalty. Id. at 307–08. The Ohio

Court of Appeals and the Ohio Supreme Court affirmed the convictions and the death

sentence. Id. at 308, 320.

After failing to overturn his conviction on direct appeal, Jones has wended his

way through the collateral attack process, first in state court and now here in federal

court. Jones filed a state petition for post-conviction relief and an application to reopen,
No. 10-3339 Jones v. Bagley Page 6

1

Courts look only to the holdings of the Supreme Court’s decisions as of the time of the relevant

state court decision, Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003), but consider lower-federal-court

decisions to the extent they shed light on Supreme Court holdings. See Hill v. Hofbauer, 337 F.3d 706,

716 (6th Cir. 2003).

both of which were denied. State v. Jones, No. C-990813, 2000 WL 1886307 (Ohio Ct.

App. Dec. 29, 2000); State v. Jones, 745 N.E.2d 421, 422 (Ohio 2001). Then, in 2001,

Jones filed a habeas petition in federal district court raising fourteen counts for relief;

the district court adopted the magistrate judge’s report and recommendation and rejected

all of Jones’s claims on the merits. Jones v. Bagley, No. C-1:01-cv-564, 2010 WL

654287, at *12–87 (S.D. Ohio Feb. 19, 2010). The district court granted Jones a

certificate of appealability (“COA”) on three issues and we denied Jones’s motion to

expand the COA further. Jones filed a timely appeal.

II.

Now that he’s before us, Jones raises those three issues: whether the state trial

court improperly admitted evidence that Jones exercised his right to counsel; whether

the prosecution failed to disclose exculpatory and impeachment evidence, and whether

Jones’ counsel provided ineffective assistance by failing to discover the withheld

evidence; and whether his trial counsel provided ineffective assistance by failing to

investigate a history of crime at the hotel where Nathan was murdered. As we do in a

direct criminal appeal, we review de novo a district court’s legal conclusions and mixed

questions of law and fact, and review its factual findings for clear error. Lucas v. O’Dea,

179 F.3d 412, 416 (6th Cir. 1999). But unlike on a direct appeal from a criminal

conviction, we consider Jones’s petition in light of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) and the Supreme Court opinions interpreting it.1

 AEDPA

represents Congress’s desire to “‘channel prisoners’ claims first to the state courts.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011). And because “[t]he federal

habeas scheme leaves primary responsibility with the state courts,” id. (quoting

Woodford v. Visciotti, 537 U.S. 19, 27 (2002)), under AEDPA a federal court may not

grant a habeas corpus petition unless the state court decision
No. 10-3339 Jones v. Bagley Page 7

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). By its own terms, § 2254(d) only applies to those claims

“adjudicated on the merits in State court proceedings.” Id.

When applicable, § 2254(d) establishes a standard of review that is “difficult to

meet, . . . [a] highly deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the doubt.” Pinholster,

131 S. Ct. at 1398; see also Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir. 2012)

(“Section 2254(d), as amended by AEDPA, is a ‘purposefully demanding standard.’”

(citation omitted)). Accordingly, “[t]o obtain relief, a habeas petitioner must ‘show that

the state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.’” Campbell, 674 F.3d at 586

(quoting Harrington v Richter, 131 S.Ct. 770, 786-87 (2011)). Thus, under the “contrary

to” clause of § 2254(d)(1), we may grant habeas relief “if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a question of law or if the

state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts,” see Williams v. Taylor, 529 U.S. 362, 412–13 (2000)

(O’Connor, J., concurring), and review of such issues must be based solely on “the

[factual] record that was before the state court.” Pinholster, 131 S. Ct. at 1398.

Similarly, we may grant habeas relief under the “unreasonable application” clause of

§ 2254(d)(1) only if the state court’s application of clearly established federal law was

“objectively unreasonable” in light of the evidence presented to the state court, keeping

in mind that “an unreasonable application of federal law is different from an incorrect

application of federal law.” Williams, 529 U.S. at 410 (O’Connor, J., concurring); see

also Wood v. Allen, 130 S. Ct. 841, 849 (2010) (“[A] state-court factual determination
No. 10-3339 Jones v. Bagley Page 8

is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.”).

Of course, there are times when § 2254(d) does not apply, most notably when the

petitioner presents an argument to us that was not presented to the state courts. In most

such cases our analysis is even further restricted; “state prisoners must give the state

courts one full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process.” O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999). When a petitioner has failed to present a legal issue to the

state courts and no state remedy remains available, the issue is procedurally defaulted.

Id. at 847–48; see Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (noting that

“the exhaustion doctrine requires the petitioner to present ‘the same claim under the

same theory’ to the state courts before raising it on federal habeas review”). The

petitioner will therefore not be allowed to present claims never before presented in the

state courts unless he can show cause to excuse his failure to present the claims and

actual prejudice to his defense at trial or on appeal. See Coleman v. Thompson, 501 U.S.

722, 750 (1991). An ineffective assistance of counsel claim under Strickland v.

Washington, 466 U.S. 668 (1984), is cognizable to show “cause and prejudice” for

procedural default and—along with a claim under Brady v. Maryland, 373 U.S. 83

(1963)—is the legal theory most commonly used to attempt to circumvent the procedural

default rule. A petitioner may also obtain review of his claim if review would prevent

a fundamental miscarriage of justice, such as when the petitioner submits new evidence

showing that a constitutional violation has probably resulted in a conviction of one who

is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495–96 (1986). If a

petitioner demonstrates cause and prejudice for procedural default, we provide de novo

review of the legal issue. See, e.g., Joseph v. Coyle, 469 F.3d 441, 469 (6th Cir. 2006).

But, regardless of the standard of review for legal issues, the state court’s factual

findings are presumed correct unless rebutted by the habeas petitioner by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493–94

(6th Cir. 2004). With these principles in mind, we turn to our analysis.
No. 10-3339 Jones v. Bagley Page 9

III.

A.

Jones first argues that the state trial judge improperly allowed the prosecutor to

elicit evidence that Jones exercised his right to counsel during a police interrogation—a

violation of his Fourteenth Amendment Due Process rights. We agree with the state

courts that the trial judge improperly allowed the prosecutor to elicit testimony that

Jones had exercised his right to counsel, but we also agree that because the trial judge

gave several instructions to the jurors that they were not to treat this as evidence of

Jones’s guilt, the error was harmless and therefore not a violation of his Due Process

rights.

During one of Jones’s three interrogations by the police he said that he would

need to “talk to an attorney before he answered any more questions.” At the time he

exercised his right to counsel, Jones was being questioned at the police station and had

been read Miranda rights, but was not under arrest. Over the objections of defense

counsel, the trial court allowed prosecutors to elicit from the police witness the fact that

the interrogation ended when Jones asked to speak with an attorney. The trial court then

told the jury that “anybody . . . had the right to invoke their right to counsel,” and that

they were permitted to hear the testimony only “so that you understand what happened

during the course of the interview.” The trial court later reiterated this instruction to the

jury at the guilt phase of the trial, stating that “[Jones] has a constitutional right to stop

talking to the police and request counsel at any time. . . . [And] [t]he fact that he stopped

talking to the police and invoked his right to counsel must not be considered for any

purpose.” The district court also admitted into evidence the police witness’s interview

report, which documented that Jones requested to speak to an attorney at the end of the

interview.

Every court that has reviewed the error, including the Ohio Court of Appeals, the

Ohio Supreme Court, and the district court, has held that it was improper for the trial
No. 10-3339 Jones v. Bagley Page 10

2

See Jones, 2010 WL 654287, at *16; Jones, 739 N.E.2d at 313; State v. Jones, No. C-970043,

1998 WL 542713, at *7–8 (Ohio Ct. App. Aug. 28, 1998).

3

The State presented several arguments that there was no Doyle violation; we decline to discuss

most of them given that Jones was not prejudiced in any event. One legal theory, however, we cannot

ignore. During oral argument, counsel for the State expressed his view that 28 U.S.C. § 2254(a), which

grants to the federal courts the authority to entertain applications for habeas relief only “on the ground that

[the applicant] is in custody in violation of the Constitution or laws or treaties of the United States,” should

be interpreted to mean that we lack authority to enforce a party’s waiver or forfeiture of a challenge to a

state court decision on a constitutional issue—essentially that we should conduct a de novo review of a

previously conceded constitutional issue because we have a steadfast responsibility to interpret the

Constitution, no matter whether the issue has been forfeited (or waived) or not. On de novo review, said

counsel, we would be able to hold that there was no Doyle violation. The following exchange ensued:

Judge: “[W]e have this duty to decide then whether there was a constitutional violation, despite the

concession there was not?”

Counsel: “I believe the answer to that question as far as I’m concerned , Your Honor, is yes . . . .”

court to allow the prosecutor to elicit this testimony.2 We hold that this is not an

unreasonable application of federal law. “[I]t is ‘fundamentally unfair’ to allow a

prosecutor to use a defendant’s post-Miranda warnings silence to impeach an

explanation he offers at trial.” Jaradat v. Williams, 591 F.3d 863, 867-68 (6th Cir. 2010)

(holding that where the court allowed the prosecutor to elicit that the defendant had

invoked his right to counsel after being given Miranda warnings, the prosecutor’s

“questions amount[ed] to blatant Doyle violations” (citing Doyle v. Ohio, 426 U.S. 610,

619 (1976))). But as the district court and the Ohio courts held, this violation was

harmless error given that the trial judge gave curative instructions and the evidence

against Jones was otherwise strong. See id. at 869 (noting that an error is harmless

unless it “had substantial or injurious effect or influence in determining the jury’s

verdict”); Goff v. Bagley, 601 F.3d 445, 480–81 (6th Cir. 2010) (holding that the court

“presume[s] the jury followed” the curative instructions, particularly where “the remarks

were isolated, and there was substantial evidence before the jury favoring a death

sentence”). The jurors were clearly instructed before deliberating that they were not to

take this evidence into consideration, and the fact that Nathan’s locket was found in

Jones’s possession was strong evidence of his guilt.

We review a state court’s “harmless error” analysis under the Brecht v.

Abrahamson, 507 U.S. 619, 629 (1993), “substantial and injurious effect

standard.” See Jaradat, 591 F.3d at 869. Under that standard, the state court did not err

at all.3

 Therefore, Jones’s Due Process rights were not violated under Doyle.
No. 10-3339 Jones v. Bagley Page 11

Judge: “. . . What’s the case that, if I read it, will say, either the State or the habeas petitioner cannot waive

or forfeit whether there was a constitutional violation?”

Counsel: “I don’t have one, Your Honor.”

When pressed, counsel was unable to provide a citation for this astonishing legal theory, and for good

reason: there is none. When asked whether the State would embrace this novel legal theory if it were

proffered by a habeas petitioner, counsel affirmed that it would. We doubt that, inasmuch as from the

habeas petitioner’s perspective, such a rule would be a veritable philosopher’s stone, vivifying hopeless

cases. We have serious skepticism about this legal theory. See Akins v. Easterling, 648 F.3d 380, 396–97

(6th Cir. 2011) (enforcing waiver against § 2254 petitioner).

4

According to Jones, the factual predicates for Brady claims two through four were only disclosed

to him during discovery at his federal habeas proceedings. If Jones were able to show a Brady violation,

introduction of new evidence not considered by the state court would not violate the rule announced by

the Court in Cullen v. Pinholster. There, the Supreme Court held that “review under § 2254(d)(1) is

limited to the record that was before the state court that adjudicated the claim on the merits.” 131 S. Ct.

at 1398 (emphasis added). These three claims were not adjudicated on the merits, purportedly because the

prosecutor withheld the evidence on which the claims would be based, so Cullen is not directly implicated.

B.

Jones next argues that the prosecutor violated Brady v. Maryland, 373 U.S. 83

(1963), by withholding four pieces of evidence: (1) police reports reflecting criminal

acts and suspicious employees at the Embassy Suites; (2) inconsistent descriptions of

Nathan’s pendant; (3) contemporary complaints from Embassy Suites guests about

intruders in the hotel; and (4) witness statements that contradicted trial testimony. Jones

presented the first claim to the Ohio courts, which rejected it on the merits, see Jones,

2000 WL 1886307, at *3–4; he did not present the last three claims to the Ohio courts,

but argues that there is cause and prejudice under Brady to excuse the procedural

default.4 His Brady claims are meritless.

In order to show a Brady violation, Jones must show that (1) the evidence was

favorable to him, (2) the prosecutor withheld the evidence, and (3) he suffered prejudice,

which means that the suppressed evidence is material either to his conviction or his

sentence. See, e.g., Strickler v. Green, 527 U.S. 263, 280–82 (1999). Favorable

evidence is material if there is a reasonable probability that, had the fact-finder

considered it, the result of the trial would have been different. Id. at 280. The Ohio

Court of Appeals and the district court rejected Jones’s first claim—that the prosecutor

withheld crime reports that showed that the Embassy Suites had a higher incidence of

crime than other Blue Ash hotels—because Jones had not demonstrated that this

evidence was either “exculpatory or material.” Jones, 2000 WL 1886307, at *4; see also
No. 10-3339 Jones v. Bagley Page 12

Jones, 2010 WL 654287, at *43–45. We agree. Jones argued to the state court that the

crime reports would have helped his innocence case by demonstrating:

(1) that the Embassy Suites Hotel routinely hired criminals; (2) that the

hotel’s guests were routinely crime victims; (3) that the hotel rooms were

routinely used by “unsavory characters,” and (4) that several thefts had

occurred at the hotel after Jones was no longer present, including an

incident in which someone tried to enter a guest’s room with a key.

Jones, 2000 WL 1886307, at *4. Even if true, none of this exculpates Jones because at

most it proves that the Embassy Suites has more crime than other hotels, not that

someone other than Jones was responsible for Nathan’s murder; there is simply no

reasonable probability that had this evidence been disclosed to Jones, the result of the

trial would have been different. The Ohio court’s finding that this evidence was not

material was neither contrary to nor an unreasonable application of federal law.

Because Jones did not raise his remaining Brady claims to the state courts, he

must demonstrate cause and prejudice for his procedural default, although showing an

actual Brady violation is itself sufficient to show cause and prejudice. See, e.g., Banks

v. Dretke, 540 U.S. 668, 691 (2004). We review these Brady claims under the

pre-AEDPA standard—that is, we apply de novo review—because they were never

considered by the state courts. See, e.g., Joseph, 469 F.3d at 469. Jones first claims that

the prosecutor should have divulged that witnesses had been inconsistent in describing

the exact shape and origin of Nathan’s pendant; had he known this fact, Jones says, he

could have created reasonable doubt that the pendant found in his toolbox was Nathan’s.

This is a serious accusation because the pendant is the key piece of evidence in the

case—the prosecution was able to convince the jury that the pendant found in Jones’s

toolbox was unique and that it was Nathan’s—and Jones might well have escaped

conviction had serious doubts been raised as to its authenticity. It is true that the pendant

was initially described from memory differently by different people, and even that police

documents misdescribed the pendant. It is also true that Nathan’s family members had
No. 10-3339 Jones v. Bagley Page 13

5

The search warrant affidavit described the pendant as being “silver in color, having seven rows

of horizontal tubular metal and also having three diamonds” when in actuality the pendant was gold with

fewer bars. Nathan’s son described the pendant as silver with three offset bars and believed that it had

been custom-made for his mother from his paternal grandmother’s wedding ring, but his uncle disputed

the pendant’s origins, claiming that he still possessed the wedding ring. In addition, police interviewed

the jeweler where the pendant may have originated, and he was not able to confirm whether it was custommade or mass-produced.

conflicting memories as to the origin of the pendant, with some saying that it had been

fashioned from a family heirloom and others disagreeing.5

The evidence was favorable to Jones, and the prosecution withheld it, but after

carefully examining the withheld evidence we do not think that its absence prejudiced

him. First, Jones’s counsel was aware, at trial, that the police report misdescribed the

pendant, and so Jones was on notice that there was some initial confusion as to its

appearance. “[T]here is no Brady violation if the defendant knew or should have known

the essential facts permitting him to take advantage of the information in question, or if

the information was available to him from another source.” Carter v. Bell, 218 F.3d 581,

601 (6th Cir. 2000); see also Doan v. Carter, 548 F.3d 449, 460 (6th Cir. 2008) (holding

that where defense counsel knew of the withheld evidence it “cannot form the basis of

a Brady violation”). Second, despite some initial confusion about the pendant, Jones

does not deny, or even address, the fact that when family members and friends compared

the pendant found in his toolbox with family pictures in which Nathan is wearing her

pendant, they concluded that the pendants were one and the same. See Jones, 2010 WL

654287, at *47–48 (noting that the photographs with Nathan wearing the pendant had

been given to defense counsel at trial). The photograph and the pendant were both

admitted into evidence. Id. at *47. Jones’s counsel was unable to explain the fact that

the pendant in Jones’s toolbox appeared to be identical to the pendant worn by Nathan

in family photos.

At best, Jones argues that if he had known of the contradictory evidence he

would have investigated further whether the pendant was in fact one-of-a-kind or

whether it was mass-produced. But he had every motivation to establish this fact even

without the withheld evidence: he was able to inspect the pendant; he had photos of the

pendant; his counsel knew, at trial, of the misdescription of the pendant in the search
No. 10-3339 Jones v. Bagley Page 14

warrant and knew that the misdescription originated from Nathan’s family. See id. Even

so, Jones was not able to introduce any evidence that the pendant was mass-produced,

or even that there is a single other one of its kind; indeed, the very difficulty that family

members and friends had in describing the pendant may show its uniqueness. In light

of these facts, Jones would not have been able to create a reasonable doubt in the minds

of the jury about the provenance of the pendant had he known of the withheld evidence.

Jones’s third Brady claim is that the prosecutors should have told him that the

police received reports from Embassy Suite patrons about “suspicious” activities on the

day of Nathan’s murder because the defense could have followed up with these

witnesses and might have been able to convince the jury that there was a gang operating

in the hotel that day. Jones, 2010 WL 654287, at *48. The police had distributed a

questionnaire to hotel patrons requesting them to report any suspicious activities. The

district court noted that the responses ranged from “telephones being out of order, [a]

breach of security protocol, many people reporting that they heard screams, maintenance

people trying to gain access without properly identifying themselves, and a man that

seemed ‘out of place.’” Id. None of this evidence suggests that a gang was working in

the hotel, and even when considered as a whole, the withheld evidence is insufficient to

undermine confidence in the result of the case; there was neither harm nor prejudice in

this Brady claim.

Jones’s last Brady claim is that the prosecutor should have disclosed two hotel

employees’ statements that Jones asserts are inconsistent with trial testimony and a

statement by a hotel patron that she saw a tall, thin man leaving the hotel parking lot

around the time of the murder. The two hotel employees testified to seeing a black hotel

employee talking with a white person outside of Nathan’s room soon after her body was

discovered and that this black person was not Jones. Jones argues that if his defense

attorneys had known about this evidence they could have tracked down these three

witnesses and questioned them further. None of these statements are even favorable to

Jones, much less exculpatory, and indeed, the district court found that other testimony
No. 10-3339 Jones v. Bagley Page 15

6

The district court noted that Demetrius Williams, one of the hotel employees, asserted that Jones

only spent five minutes setting up the complementary breakfast that day, which contradicts Jones’s

statement that he spent from 6:30 a.m. to 8:00 a.m.—a time-span that included Nathan’s

murder—attending to the breakfast. See Jones, 2010 WL 654287, at *3, *49; see also Jones, 739 N.E.2d

at 306–07.

7

Although part of this certified question is whether Jones’s trial counsel provided ineffective

assistance by not discovering this Brady material, Jones does not advance this argument in his appeal brief

as to claims two through four, and so this argument is waived for those claims. See, e.g., Henness v.

Bagley, 644 F.3d 308, 326 n.4 (6th Cir, 2011). And since Jones was not prejudiced by any of his asserted

Brady violations, he would not have been able to establish ineffective assistance of counsel under

Strickland.

provided by one of the hotel employees was actually inculpatory for Jones.6 Jones,

2010 WL 654287, at *49. There was no Brady violation here.

Within this claim Jones also argues that the prosecutor should have turned over

the list of Embassy Suites employees and their criminal backgrounds, as well as the

polygraph results of some of these employees who agreed to interrogation. But Jones

does not explain how this would have helped his case other than that “[t]his compilation

would have assisted counsel.” This evidence is neither exculpatory nor impeaching, and

Jones suffered no prejudice because of its absence.7

Even when the cumulative effect of Jones’s Brady claims is considered, there

was no Brady violation because the effect of all the evidence combined would not have

created a reasonable probability of a different result when we consider the otherwise

strong circumstantial evidence of his guilt. See Kyles v. Whitley, 514 U.S. 419, 436-37

(1995). Jones had a pass-key with which he could access Nathan’s room; he was

working the day of the murder; his hand-injury contained bacteria usually found only in

the human mouth, his hand was injured the same day as Nathan’s attack, and Nathan was

struck in the mouth immediately prior to her death; and Nathan’s missing pendant was

recovered from Jones’s possession. This evidence, while not overwhelming, is strong

and more than sufficient to support conviction.
No. 10-3339 Jones v. Bagley Page 16

8

Because a petitioner must show both Strickland prongs in order to gain relief, if the prejudice

prong demonstrates that the petitioner is not entitled to relief we need not analyze the competence prong.

See Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (citing Strickland, 466 U.S. at 697).

C.

Jones does, however, separately argue that his trial attorneys provided ineffective

assistance of counsel with regard to the substance of his first Brady claim—that

prosecutors should have turned over evidence that the Embassy Suites had a higher

incidence of crime than other Blue Ash hotels. Jones made this argument to the Ohio

courts and the district court, so it is not procedurally defaulted, but because the Ohio

courts considered the issue we must apply AEDPA review. The Ohio Court of Appeals

noted that it had already decided that the underlying Brady claim was without merit, and

accordingly there was no credible argument for ineffective assistance of counsel

regarding that claim. Jones, 2000 WL 1886307, at *7. The district court agreed with

this analysis. Jones, 2010 WL 654287, at *58.

Under Strickland v. Washington, Jones must show that (1) his trial counsel was

so deficient that he was not performing his basic function under the Sixth Amendment

and (2) that this ineffective assistance was so prejudicial that “a reasonable probability

exists that, but for counsel’s deficient performance, the result of the proceedings would

have been different.” Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir. 2011). We must

also bear in mind that “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citations omitted). We need not

decide whether Jones’s trial counsel rendered constitutionally deficient representation

by not investigating the history of crime at the Embassy Suites, because this

representation did not prejudice Jones’s trial.8

 As we noted in our analysis of the related

Brady claim, evidence that the Embassy Suites was subject to a higher crime rate than

other Blue Ash hotels would not have made any difference to the outcome of the case

considering the otherwise strong evidence of guilt. Jones certainly did not suffer

prejudice because his attorney failed to investigate and uncover the crime rate at the

Embassy Suites.
No. 10-3339 Jones v. Bagley Page 17

Finally, Jones argues that the Ohio Court of Appeals used the wrong standard to

evaluate this Strickland claim and its judgment thus involved an unreasonable

application of Supreme Court precedent under the AEDPA standard. The Ohio Court

of Appeals did appear to cite a “fundamentally unfair” standard for the prejudice prong,

which the Supreme Court in Williams stated was an unreasonable application of its

precedent. See 529 U.S. at 391–94 (holding that to establish prejudice the defendant

must show “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different”). But the error was

harmless. First, because the Ohio Court of Appeals cited an Ohio Supreme Court case

for this assertion that itself correctly cited Strickland, it is not clear that the court of

appeals intended to state the incorrect standard. See Jones, 2000 WL 1886307, at *7

(citing State v. Combs, 652 N.E.2d 205, 211-12 (Ohio 1995)). Second, even if the court

of appeals used the wrong standard, this simply means that Jones is entitled to de novo

review of his substantive Strickland claim, and, after de novo review, we hold that Jones

was not prejudiced by his attorney’s failure to investigate the incidence of crime at the

Embassy Suites.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.