Juan Antonio Lamar Kinley v. Margaret Bradshaw

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 26, 2026
• Docket: 23-3847
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0152n.06

Nos. 14-4063/23-3847

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Mar 26, 2026 KELLY L. STEPHENS, Clerk

) JUAN ANTONIO LAMAR KINLEY, ) Petitioner-Appellant ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE SOUTHERN ) DISTRICT OF OHIO ) MARGARET BRADSHAW, Warden, ) OPINION Respondent-Appellee ) )

Before: MOORE, CLAY, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. In these consolidated cases, Petitioner-Appellant

Juan Antonio Lamar Kinley, an Ohio death-row prisoner, appeals the denial of his petition for a

writ of habeas corpus. We AFFIRM.

I.

A.

Between August 1988 and January 1989, Kinley dated Thelma Miller. State v. Kinley, 651

N.E.2d 419, 420 (Ohio 1995). During that time, Kinley physically abused Miller and threatened

to kill her if she dated someone else. Miller began dating someone else, and on January 8, 1989,

Miller and her new boyfriend were at her apartment when Kinley showed up, shoved her, and

threatened to kill her and her two sons. Miller’s older son called 911. The next day, Kinley told

a friend that he felt like killing Miller and that no one could have Miller if he could not. That same

day, Miller scheduled an appointment with a crisis-intervention agency for battered women. Nos. 14-4063/23-3847, Kinley v. Bradshaw

On the morning of January 10, Miller arrived at the residence of the Szulewski family,

where she worked as a housekeeper. At 10 a.m., Mrs. Szulewski, who was at work, spoke with

Miller on the telephone. When Mrs. Szulewski called her again at 1 p.m., the call went

unanswered. At 5 p.m., Mrs. Szulewski returned home and found Miller and Miller’s younger

son, David Miller, lying in a pool of blood in the garage. Several of Miller’s appendages had been

severed from her body. Bloody shoeprints were found in the garage but not in the house.

Kinley was with Victor Bishop on January 10. Bishop testified that Kinley arrived at his

house at 9:45 a.m. and left an hour later. An hour after that, Kinley returned to Bishop’s house

“with a large sum of money in a flowered bank envelope.” Id. at 421. Bishop noticed that Kinley

“had a set of car keys that [Kinley] had not been carrying earlier that day.” Id.

When the police investigated the crime scene, Miller’s “car keys were nowhere to be

found,” and her “purse was missing from the Szulewskis’ home, along with $121 she had been

carrying in a flowered bank envelope a day or two before the murders.” Id. “Approximately $300

in cash was missing from a dresser in the Szulewski bedroom” along with “$25 that Elaine

Szulewski had placed under a tissue box for payment of [Miller]’s cleaning services.” Id. Also,

“Richard Szulewski’s machete was missing from the garage.” Id.

Witnesses saw Kinley “near the scene of the killings.” Id. Kinley initially “denied having

ever been to the Szulewski residence.” Id. He later “admitted that he had been to the Szulewski

residence the day of the murders” but “gave differing accounts of his visit to the residence.” Id. at

421, 426. He consistently maintained that he did not commit the murders. Kinley’s jacket

contained bloodstains, however, and “DNA analysis revealed that it was highly probable the blood

had come from David Miller.” Id. at 421.

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An examination of the vehicle that Kinley drove on the day of the murders discovered

human blood on the steering wheel, and in a search of Kinley’s home the police “found $291.50

in cash and approximately $30 to $50 worth of marijuana.” Id. at 422. Sometime later, the police

found a “bloodstained machete” “in an alley behind [Kinley]’s house.” Id. at 422. Mr. Szulewski

“identified the machete as belonging to him,” and “the coroner testified that the victim’s wounds

were consistent with having been caused” by the machete. Id. The police detective who testified

to recovering the machete acknowledged on cross-examination that Kinley’s address had been

published in the newspaper and Kinley was in custody at the time the machete was found.

According to the state, later in January, Kinley “admitted to his friend, Donald A.

Merriman, that he had killed Thelma and David Miller. [Kinley] told Merriman that he . . . had

‘fucked them up.’” Id. at 422. Merriman’s testimony lies at the core of the present appeal.

Kinley was charged with two counts of aggravated murder, each with a capital

specification: one charging murder with prior calculation and design and one charging felony

murder premised on aggravated robbery. Kinley waived his right to a jury trial. A three-judge

panel convicted Kinley of two counts of aggravated felony murder and sentenced him to death.

The panel also imposed a sentence of ten to twenty-five years in prison on the aggravated robbery

conviction. The Ohio Court of Appeals and the Ohio Supreme Court affirmed the convictions and

sentences on direct appeal. State v. Kinley, No. 2826, 1993 WL 224496 (Ohio Ct. App. June 24,

1993), aff’d, 651 N.E.2d 419 (Ohio 1995).

B.

The state trial court summarily denied Kinley’s first state postconviction petition but the

Ohio Court of Appeals determined that two of his claims warranted an evidentiary hearing and

reversed in part. State v. Kinley, 735 N.E.2d 921 (Ohio Ct. App. 1999). Specifically, the Court of

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Appeals instructed the trial court to conduct an evidentiary hearing on Kinley’s claim that the

prosecution knowingly offered the false testimony of witnesses Donald Merriman and Victor

Bishop, and his claim that he was forced to waive his right to a jury trial in exchange for expert

testimony. In his first postconviction motion, Kinley based his false-testimony claim on affidavits

signed by Merriman recanting his trial testimony. The Court of Appeals determined that “the trial

court should not have discredited Merriman’s affidavit without a hearing.” Id. at 935.

On remand, the trial court conducted the evidentiary hearing and again denied relief. State

v. Kinley, No. 89-CR-65, 2001 WL 36058500 (Ohio C.P. May 22, 2001). Merriman failed to

appear for the hearing, and, on the record before it, the court found that Kinley “failed to prove

that Donald Merriman[’s] original testimony was false.” Id. The Ohio Court of Appeals affirmed,

State v. Kinley, No. 2001-CA-38, 2002 WL 538894 (Ohio Ct. App. Apr. 12, 2002), and the Ohio

Supreme Court declined jurisdiction, State v. Kinley, 774 N.E.2d 766 (Ohio 2002) (table).

In April 2003, Kinley filed a federal habeas petition asserting twenty-nine grounds for

relief. In May 2006, Kinley deposed Merriman and filed a two-part merits brief in federal court.

On October 2, 2014, the district court dismissed the petition and certified the following issues for

appeal: “Grounds 5 & 6; Ground 15; Grounds 16 & 17; and Ground 18.”1 R. 85, PageID 803.

The district court determined that it could not consider the 2006 deposition in light of Cullen v.

Pinholster, 563 U.S. 170, 181 (2011), which confines a federal court’s habeas review to the record

before the state court. Kinley appealed to this court in the first of these consolidated cases,

docketed as Case No. 14-4063. We then granted his motion to hold his federal case in abeyance

pending other litigation.

1 The certification of ground 6 appears to be a typographical error. Kinley withdrew ground 6. In its opinion and order, the district court considered grounds 5 and 26 together. The district court also certified them together, mistakenly indicating ground 6 rather than ground 26.

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In 2015, Kinley filed his second state postconviction petition based on Merriman’s

deposition testimony. State v. Kinley, No. 2016-CA-11, 2018 WL 3096664 at *2 (Ohio Ct. App.

June 22, 2018). The trial court dismissed the petition, and the Ohio Court of Appeals affirmed the

dismissal. Id. at *2, *9. The Ohio Supreme Court declined jurisdiction. State v. Kinley, 116

N.E.3d 154 (Ohio 2019) (table).

In 2019, on Kinley’s motion, we remanded this case to permit the district court to consider

the deposition testimony relating to grounds 16 and 17. In March 2020, Kinley sought habeas

relief on grounds 16 and 17, but the district court denied the motion without prejudice. In February

2022, after Kinley asked for clarification of our 2019 order, we instructed the district court to

“reconsider its October 2, 2014 order with respect to petitioner’s Sixteenth and Seventeenth

grounds for relief in light of new deposition testimony, and provide[d] it with jurisdiction to do

so,” and to “issue an additional ruling in petitioner’s Sixteenth and Seventeenth grounds for relief

once it ha[d] reconsidered these claims in light of the new deposition testimony.” R. 139, PageID

9248. In response to the clarified order, the district court considered the 2006 deposition testimony

but once again denied relief. The district court issued a COA for grounds 16 and 17. Kinley filed

a second appeal with this court, docketed as Case No. 23-3847. We then denied Kinley’s motion

to expand the COA to include ground 12 (asserting that prosecutorial misconduct denied him a

fair trial) and ground 20 (asserting that trial counsel was ineffective for failing to retain a blood-

spatter expert). Kinley now has six remaining grounds for relief.

II.

We review the district court’s denial of habeas relief de novo. Taylor v. Jordan, 10 F.4th

625, 632 (6th Cir. 2021). De novo review extends to the district court’s legal conclusions on mixed

questions of law and fact, but findings of fact are reviewed for clear error. Daniel v. Burton, 919

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F.3d 976, 978 (6th Cir. 2019). If, however, the district court relied solely on the state-court record,

its factual findings are reviewed de novo. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450,

460 (6th Cir. 2015) (per curiam). The state court’s findings of fact are presumed correct unless

rebutted by clear and convincing evidence. Daniel, 919 F.3d at 978.

Kinley’s claims are governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) to the extent they were adjudicated on the merits by the state courts. See Adams v.

Bradshaw, 826 F.3d 306, 310 (6th Cir. 2016). AEDPA authorizes habeas relief only if the state

court’s adjudication was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” or “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)(1)-(2). A “contrary to” state-court decision “adopts a

conflicting legal rule or reaches the opposite result in a case with materially identical facts.” Fields

v. Jordan, 86 F.4th 218, 232 (6th Cir. 2023) (en banc) (citing Lockyer v. Andrade, 538 U.S. 63, 73

(2003)), cert. denied, 144 S. Ct. 2635 (2024). An “unreasonable” state-court decision features “an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 83, 103 (2011)). The

unreasonableness showing is “‘a substantially higher threshold’ for obtaining relief” than showing

that “the state court’s determination was debatable or incorrect.” Id. at 241 (quoting Shoop v.

Twyford, 596 U.S. 811, 819 (2022) (further citation omitted)).

III.

Kinley’s six remaining grounds for relief fall into three categories. First, he argues that the

state knowingly presented Merriman’s false testimony that Kinley confessed (ground 16) and that

Merriman received nothing in exchange for his testimony (ground 17). Second, he argues that the

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trial court’s colloquy was insufficient to guarantee that the waiver of his right to a jury trial was

knowing, intelligent, and voluntary (ground 5), that his waiver was not knowing, intelligent, and

voluntary (ground 26), and that his waiver was improperly coerced (ground 15). Third, he argues

that a conflict existed with his initial appointed counsel (ground 18). We consider each category

in turn.

At trial, the prosecution presented Merriman’s testimony that Kinley confessed to the

killings (ground 16). Merriman further testified that he received no consideration related to his

own criminal charges in exchange for his testimony (ground 17). The prosecution did not correct

him. Kinley argues that Merriman lied and the prosecution knew it, and that, in failing to disclose

the deal made for Merriman’s testimony, the prosecution violated its obligations under Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Kinley further

argues that the prosecution’s failure to correct Merriman’s testimony, which the prosecution knew

to be false, violated Napue v. Illinois, 360 U.S. 264 (1959).

1.

We begin with ground 17, Kinley’s claim that the state knowingly elicited and failed to

correct Merriman’s false testimony that there was no deal.2

Kinley alleges violations of Brady and Napue. In Brady v. Maryland, the Supreme Court

held that “suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” 373 U.S. at 87. We have explained that, to prevail on a

2 Because we reject Kinley’s claim on the merits, we need not consider the parties’s positions on AEDPA deference and procedural default. See Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012) (“this Court may deny relief on the merits, notwithstanding a failure to exhaust, where appropriate”).

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Brady claim, a defendant must show “(1) the existence of favorable evidence, either exculpatory

or impeaching; (2) that the evidence was suppressed; and (3) that the suppression resulted in

prejudice.” Hill v. Mitchell, 842 F.3d 910, 926 (6th Cir. 2016) (citing Strickler v. Greene, 527

U.S. 263, 281-82 (1999)). In Napue v. Illinois, the Supreme Court established that a conviction

knowingly “obtained through use of false evidence” violates the Fourteenth Amendment’s Due

Process Clause. 360 U.S. at 269. “To establish a Napue violation, a defendant must show that the

prosecution knowingly solicited false testimony or knowingly allowed it ‘to go uncorrected when

it appear[ed].’” Glossip v. Oklahoma, 604 U.S. 226, 246 (2025) (quoting Napue, 360 U.S. at 269).

If a defendant makes that showing, the defendant is entitled to a new trial if there is “any reasonable

likelihood” that the false testimony could “have affected the judgment of the jury.” Id. (quoting

Giglio, 405 U.S. at 154).

We analyze ground 17 under Napue because, if the prosecution intentionally presented

false evidence that no deal existed for Merriman’s testimony, that would necessarily constitute a

Brady violation as well. See Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008) (even an “unwritten

or tacit agreement is . . . subject to Brady’s disclosure mandate”). The materiality standards for

each claim are the same. See Giglio, 405 U.S. at 154. Accordingly, if Kinley makes out a Napue

claim, he will have demonstrated a Brady violation as well.

Kinley must first demonstrate that Merriman testified falsely at trial and that the

prosecution knew that the testimony was false. As relevant to ground 17, Merriman testified at

trial that he did not attempt to make a deal with the prosecutor’s office in exchange for offering

information related to, and ultimately testifying in, Kinley’s case. At the time, Merriman had five

pending forgery charges and had pled guilty to a grand-theft charge but had not yet been sentenced.

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At trial, in describing his choice to testify against Kinley, Merriman denied that there was any deal

concerning his testimony, stating “I know the prosecutor’s office doesn’t make deals.” R. 104-1,

PageID 7334. Notably, this testimony took place immediately after the prosecutor asked Merriman

about his forgery charges. But the prosecutor’s question—“Did you attempt to make some kind

of deal with the prosecutor’s office in exchange for this information?”—asked him to disclose any

deal he made or attempted to make in exchange for testimony, either in relation to his forgery

charges or grand-theft charge. Id.

On cross-examination, Merriman stated that he reached a plea agreement with the

prosecutors in his forgery case in which the state dropped two of the forgery charges, and he “plead

[sic] to three of them.” R. 104-1, PageID 7335. He further explained, “[m]y public defender

made a deal for me.” Id. When asked, he clarified that the deal was made after he contacted the

jail offering his testimony in Kinley’s case. Merriman thus acknowledged that he made a plea deal

in his forgery case, but he denied that the deal had anything to do with his testimony in Kinley’s

case.

On redirect examination, Merriman reiterated his denial when the prosecutor asked: “Mr.

Merriman, you’ve indicated that you were not motivated . . . to tell this information to the sheriffs

by the desire to obtain some kind of a deal on your behalf. What was your motivation, why did

you tell the officers what the Defendant had told you?” Id. at 7346. Merriman responded that he

thought “it was wrong the way those two people was killed.” Id. As this exchange makes clear,

Merriman testified at trial that no deal of any kind took place, not simply that no deal existed in

relation to his forgery charges.

Kinley contends that this trial testimony was false. Kinley points to Merriman’s 2006

deposition in which Merriman testified that his trial testimony was false. Merriman stated, “[a]ll

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I was thinking about was getting out of going to prison,” and so he agreed to a deal in his forgery

case that involved his testimony in exchange for getting “[s]ix months and jail and some of the

cases that were against [him] dismissed.” R. 44-1, PageID 206. Regarding his grand-theft charge,

Merriman initially stated, “I was hoping that case would be taken care of as a result of me

testifying” but that he could not remember a specific deal. Id. at 208. Counsel then showed him

the sentencing transcript for his grand-theft case and asked, “you in fact did get a deal [in the

grand-theft case] for testifying?” Id. at 221. Merriman agreed that he did. Id. His 2006 deposition

testimony thus indicates that he received a deal in both cases in exchange for his testimony at

Kinley’s trial and that his trial testimony to the contrary was false.

The district court found this deposition testimony unpersuasive given Merriman’s lack of

credibility—just as the Ohio courts rejected a Napue claim premised on Merriman’s affidavits.

Similarly, the warden argues that ground 17 fails because Kinley has not demonstrated that

Merriman’s trial testimony was false as to the existence of a deal.

However, the transcript of Merriman’s sentencing for his grand-theft conviction, which

was introduced as an exhibit to Merriman’s deposition, provides evidence in support of Kinley’s

claim that does not depend on Merriman’s credibility. On May 15, 1991, during Merriman’s

grand-theft sentencing, the prosecutor, Darnell Carter, confirmed that the state recommended

probation, explaining that Merriman “testified in State versus Juan Kinley [in March 1991] and at

that time I conferred with Mr. Merrell [Merriman’s public defender] . . . that the State in exchange

for [Merriman’s] entering of a guilty plea and for consideration of his testimony in the Merriman

[sic] case, we would recommend probation in this matter.” R. 44-5, PageID 174. Carter mentioned

that Merriman had failed to appear for a prior sentencing, but stated that he felt “compelled to

restate the recommendation because I think that I am bound to do so. He did enter the plea, and

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he did testify in the Kinley case.” Id., PageID 175. Carter clearly stated that Merriman was

receiving “consideration” in the form of a reduced sentence “in exchange” for his plea and his

testimony in the Kinley case. R. 44-5, PageID 174. Indeed, he stated that he felt “bound” by that

deal, despite concerns about Merriman. Id., PageID 175. He also stated that he was bound after

his consultation with Merriman’s attorney—indicating that the arrangement he discussed was

agreed to in advance, not that he was providing consideration after Merriman’s testimony. The

chronology of Merriman’s grand-theft case supports the conclusion that, at the time of his

testimony in Kinley’s trial, he had a deal with the prosecution related to his testimony. Merriman

pled guilty to theft charges before he testified against Kinley. But his sentencing occurred after

Kinley’s trial. The deal that “bound” Carter thus must have been agreed to before Kinley’s trial.

Id.

Finally, the prosecution clearly knew that Merriman’s testimony denying the existence of

a deal was false—the prosecutor’s office was a party to the deal. Giglio, 405 U.S. at 154 (“A

promise made by one attorney must be attributed, for these purposes, to the Government.”); see

also Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“the individual prosecutor has a duty to learn of

any favorable evidence known to the others acting on the government’s behalf in the case”). Based

on Merriman’s 2006 deposition testimony and the appended transcript, we conclude that

Merriman’s trial testimony was false and that the prosecution knew it.

The district court disagreed with this analysis, concluding that, “[n]othing about the pleas

and sentences raises red flags that Merriman was promised leniency in exchange for testifying

against Petitioner.” R. 146, PageID 9322 (emphasis in original). The district court noted that the

forgery case was disposed of before Merriman testified in Kinley’s case, and that he pled guilty to

the grand-theft charge before Kinley’s trial. The district court cited Carter’s testimony at Kinley’s

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postconviction hearing that there was no deal. At the postconviction hearing, Carter testified, “I

don’t even know that I knew that he was going to testify in the Kinley case at the time.” R. 104-

2, 8740. The district court did not analyze Carter’s statements at Merriman’s sentencing and

instead focused on Merriman’s unreliability. Weighing the multiple recantations of Merriman on

one side, and the testimony of the prosecutors on the other, the district court concluded that Kinley

had not presented sufficient evidence to undermine the state court’s conclusion that Merriman’s

trial testimony was truthful.

The district court’s analysis echoed the conclusion of the state courts, which considered

Merriman’s affidavits rather than his deposition and the sentencing transcript. The state court

analyzed Merriman’s affidavits and the testimony of Carter and other prosecutors and concluded

that, “while there is evidence that Merriman was given a lighter sentence after the fact because of

his testimony, there is no evidence of a promise of leniency to Merriman prior to his testimony.”

Kinley, 2002-Ohio-1791, 2002 WL 538894 *6. The state court did not reference or quote from

Merriman’s sentencing transcripts in concluding that Merriman’s deposition, which included the

sentencing transcript, was cumulative. Similarly, the warden does not acknowledge the comments

made by Carter at sentencing. Rather, the warden argues in general terms that Kinley “failed to

substantiate his claims that Merriman testified falsely” based on Merriman’s evident lack of

reliability. Appellee’s Br. at 18.

Importantly, Kinley need not show the existence of an explicit promise. Even an

“unwritten or tacit agreement is . . . subject to Brady’s disclosure mandate.” Bell, 512 F.3d at 233.

The language used by Carter at Merriman’s sentencing clearly speaks to such an agreement. And

given that Merriman pled guilty before his testimony at Kinley’s trial, that deal likely occurred at

the time of his plea. Carter stated that he “conferred” with Merriman’s lawyer and “in exchange”

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for the plea deal and the testimony, he recommended probation. R. 44-5, PageID 174. Later, he

stated that he considered himself “bound” to recommend probation, despite other concerns about

Merriman, because of Merriman’s plea. Id., PageID 175. Carter’s statements clearly speak to a

prearranged deal, or at least a tacit agreement, not leniency extended after the fact. Thus, the

sentencing transcript confirms the veracity of Merriman’s 2006 deposition testimony.

Kinley must next show that the prosecution failed to correct Merriman’s false testimony.

The warden makes no effort to argue that the state corrected Merriman’s false testimony.

c.

Assuming that the foregoing establishes a Napue violation, we address whether “the false

testimony could . . . in any reasonable likelihood have affected the judgment of the [three-judge

panel].” United States v. Fields, 763 F.3d 443, 462 (6th Cir. 2014) (quoting Giglio, 405 U.S. at

154. In Napue, the Supreme Court held that evidence can be material if it goes “to the credibility

of the witness.” 360 U.S. at 269. Notably, materiality “is not a sufficiency of evidence test.”

Kyles v. Whitley, 514 U.S. 419, 419 (1995). To the contrary, the “materiality standard requires

‘the beneficiary of [the] constitutional error to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’” Glossip, 604 U.S. at 246 (quoting

United States v. Bagley, 473 U.S. 667, 680, n. 9 (1985)). Because any Napue violation here was

not material, Kinley’s claim fails at this juncture.

In its most recent application of Napue, the Supreme Court held that the prosecution’s

failure to correct false testimony undermining a witness’s credibility can be material even if there

is other evidence of the witness’s unreliability. Glossip, 604 U.S. at 250 (2025). In Glossip, the

state presented the testimony of Justin Sneed, who claimed that the defendant, Richard Glossip,

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paid him to murder his boss. Id. at 231. During his testimony, Sneed claimed that he had never

seen a psychiatrist and did not know why he had been prescribed lithium. Id. at 246-47. But the

medical record kept by the sheriff’s department revealed that this testimony was false; Sneed had

been diagnosed with bipolar disorder and prescribed lithium. Id. The Court pointed out that, “had

the prosecution corrected Sneed on the stand, his credibility plainly would have suffered.” Id. at

248.

The Supreme Court determined that the prosecution’s failure to correct Sneed’s false

testimony was material “[b]ecause Sneed’s testimony was the only direct evidence of Glossip’s

guilt of capital murder [and therefore] the jury’s assessment of Sneed’s credibility was necessarily

determinative.” Id. The Court made this finding despite the conclusion of the Oklahoma courts

that “circumstantial evidence . . . sufficiently corroborated Sneed’s testimony” inculpating Glossip.

Id. at 236. Further, it acknowledged that ample other evidence suggested Sneed was unreliable.

Id. at 248. It also acknowledged that Sneed’s false testimony did not concern disputed issues. Id.

at 249 (“Even if Sneed’s bipolar disorder were wholly irrelevant, as amicus argues, his willingness

to lie about it to the jury was not.”). And, as the dissent pointed out, “[i]t would not have been

challenging for the parties to deduce the reason for Sneed’s lithium prescription [because]

lithium’s sole medical purpose, both in 1997 and today, is to treat bipolar disorder and other mental

health disorders.” Id. at 268 (Thomas, J., dissenting). The majority nonetheless held that the

additional evidence of Sneed’s unreliability materially prejudiced Glossip’s defense.

Kinley cannot show that the state’s failure to correct Merriman’s false testimony at trial

caused him material prejudice. First, unlike in Glossip, there was overwhelming evidence

connecting Kinley to the murders. See Cooper v. Chapman, 970 F.3d 720, 732 (6th Cir. 2020)

(“circumstantial evidence is entitled to equal weight as direct evidence” (citing Desert Palace, Inc.

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v. Costa, 539 U.S. 90, 100 (2003)). The state presented evidence that Kinley physically abused

Miller and threatened to kill her if she dated anyone else. It also presented evidence from multiple

witnesses that Kinley was at the scene of the crime. Further, the steering wheel of Kinley’s car

had human blood on it, his jacket had human blood on it that was a DNA match to one of the

victims, his home had cash in a similar amount to the cash stolen from scene of the crime, and Mr.

Szulewski’s bloody machete was found in an alley behind Kinley’s house. Given the

overwhelming evidence of Kinley’s guilt, we are persuaded that there is no reasonable likelihood

that the outcome would have been different if the prosecution had corrected Merriman’s false

testimony about his deal.

In so concluding, we are mindful that “[a] defendant’s confession is ‘probably the most

probative and damaging evidence that can be admitted against him,’” and that the impact of

confession testimony is so great that “we may justifiably doubt [a jury’s] ability to put [it] out of

mind even if told to do so.” Arizona v. Fulminante, 499 U.S. 279, 292, 296 (1991) (citation

omitted). But here, Kinley’s confession was relayed to a panel of three judges by Merriman, a

witness with evident credibility issues. Merriman admitted to passing bad checks and other

criminal activity, and even conceded that he had arranged a deal right around the time he chose to

testify against Kinley. We are confident that the further revelation that his deal involved testifying

against Kinley would not have changed the panel’s evaluation of his credibility nor the outcome

of this case.

Given the overwhelming evidence of Kinley’s guilt, we are persuaded that the outcome

would not have been different had Merriman’s testimony been corrected. Accordingly, Kinley is

not entitled to relief under ground 17.

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2.

In ground 16, Kinley separately seeks relief on the basis that the state presented false

testimony that he confessed to Merriman. Kinley again relies on the deposition of Merriman,

which recants his trial testimony. But the deposition states only that Merriman testified falsely

that Kinley confessed to him, not that the prosecution knew this testimony was false or otherwise

withheld exculpatory information. Kinley has not presented other evidence that the state knew

that Merriman’s testimony regarding the confession was false. It is not enough to assert that a trial

witness testified falsely. See Herrera v. Collins, 506 U.S. 390, 400 (1993). “[A]bsent an

independent constitutional violation occurring in the underlying state criminal prosecution,”

Kinley is not entitled to relief on ground 16. Id. at 391.

Kinley next contends that the trial court did not ensure that he knowingly, voluntarily, and

intelligently waived his right to a jury trial. Specifically, Kinley argues in grounds 5 and 26 that

he should have been told that his waiver of a jury would impact the sentencing phase, where a

three-judge panel rather than a panel of jurors would determine the death-penalty specifications.

In ground 15 Kinley argues that the prosecutor and trial judge improperly coerced his jury trial

waiver by requiring it in exchange for funding for a mental-health expert. These claims were both

raised in the Ohio courts and rejected on the merits. On direct appeal, the Ohio Court of Appeals

rejected Kinley’s claim that he did not knowingly and intelligently waive his right to a trial by

jury. Kinley, No. 2826, 1993 WL 224496, at *15. On postconviction review, the trial court and

Ohio Court of Appeals both rejected Kinley’s claim that the prosecutor and judge forced him to

trade his right to a jury trial for expert-witness funding. Kinley, 2002-Ohio-1791, 2002 WL 538894

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at *4. We therefore apply the deferential standards of review in § 2254(d) to the legal and factual

determinations of the Ohio Court of Appeals.

Under Supreme Court precedent, “a waiver of [a] right to trial before a jury” . . . “not only

must be voluntary but must be [a] knowing, intelligent act[] done with sufficient awareness of the

relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748

(1970). This means that the defendant must have “understood that the choice confronting him

was, on the one hand, to be judged by a group of people from the community, and on the other

hand, to have his guilt or innocence determined by a judge.” Otte v. Houk, 654 F.3d 594, 601 (6th

Cir. 2011) (quoting Jells v. Mitchell, 538 F.3d 478, 510 (6th Cir.2008)). “A petitioner bears the

burden of proving that his waiver was not, in fact, voluntary, knowing, and intelligent.” Otte, 654

F.3d at 601. That said, “we will not presume waiver from a silent record.” Sowell v. Bradshaw,

372 F.3d 821, 832 (6th Cir. 2004). In past cases, we have “implore[d] the district courts to

personally inform each defendant of the benefits and burdens of jury trials on the record prior to

accepting a proffered waiver.” United States v. Martin, 704 F.2d 267, 274 (6th Cir. 1983). But

“[t]here is no constitutional requirement that a court conduct an on the record colloquy with the

defendant prior to the jury trial waiver.” Id.

In grounds 5 and 26, Kinley argues that he did not knowingly and intelligently waive his

right to trial by jury. But the record reflects that the trial court conducted a colloquy on the record,

telling Kinley that he had a constitutional right to be tried by a twelve-person jury of his peers.

The trial court also told Kinley that the jury “has to unanimously agree that the State proved its

case beyond a reasonable doubt as to each and every element of the charges . . . in the indictment

-17- Nos. 14-4063/23-3847, Kinley v. Bradshaw

. . . includ[ing] the specifications.” R. 104-1, PageID 6367. In response, Kinley said that he

understood his right to a jury trial and wanted to waive it. Id.

Of particular relevance here, the trial court added that the right to a jury trial “extends to

the additional question, if the jury returns a verdict of guilty on this offense of murder, there is a

separate hearing where the jury would be asked to make a recommendation in regard to the

penalty.” Id., PageID 6368. The trial court explained the available sentencing ranges and then

told Kinley that if the jury “make[s] a recommendation, for something less than a death penalty,

that recommendation would be binding on the Judge.” Id. Kinley again confirmed his

understanding and his continued desire to waive the right to a jury trial. Finally, Kinley confirmed

that he discussed the waiver with trial counsel, understood it, and wanted to enter it.

After his oral waiver, the trial court referred Kinley to a written waiver that trial counsel

had prepared. Kinley told the court that he read, understood, and wished to voluntarily sign the

waiver, which he and trial counsel then did. As part of this inquiry, the trial court asked Kinley

about his education, and Kinley informed the court that he had obtained his GED, attended college,

and obtained a certificate in two programs. The waiver stated that Kinley “with his counsel and

in open Court and in writing in the Court’s presence, knowingly, intentionally and voluntarily

waives his right to a trial by jury and requests a trial before a three (3) judge panel.” R. 102-2,

PageID 1255.

Kinley argues that his waiver was not valid because he was not told that “the concurrence

of only three judges,” and not “twelve ordinary citizens he would have a role in choosing,” would

need to “convict him of the underlying charges” and “the death penalty specifications”; “the

opportunity for reversal of a conviction and/or death sentence on appeal is greatly diminished when

a jury is waived”; and “the jury waiver may be withdrawn at any time before the commencement

-18- Nos. 14-4063/23-3847, Kinley v. Bradshaw

of trial.” Appellant’s Br. at 72-73. In particular, Kinley focuses on the fact that “he was never

told, and therefore did not know, that the jury had to be unanimous to recommend death and that

one juror could spare his life.” Id. at 79. He also argues that he should have been told that, “even

if the jury unanimously recommends the death penalty, the trial court also must independently find

beyond a reasonable doubt that death is the correct sentence before the defendant may be sentenced

to death; so, he gives up a two-stage process when waiving [a] jury for sentencing.” Appellant’s

Br. at 74.

Our precedent squarely forecloses Kinley’s arguments. We have made clear that the

defendant must understand “the type of proceeding he was choosing—jury or judge—not the

procedural specifics of either.” Davis v. Jenkins, 115 F.4th 545, 563 (6th Cir. 2024) (en banc)

(citing Sowell, 372 F.3d at 836), cert. denied, 145 S. Ct. 2756 (2025). In another capital case, we

upheld a defendant’s waiver of the right to trial by jury where the defendant was not told that “the

jury would decide whether or not to recommend a death sentence and that such a decision by the

jury must be unanimous.” Sowell, 372 F.3d at 834. We have also rejected the specific argument

that a defendant must be told that “waiving his right to a jury would reduce the sentencing phase

of his trial from a two-step process whereby a judge and jury must determine that death is

appropriate to a one-step process where the panel could impose the sentence of death.” Haliym v.

Mitchell, 492 F.3d 680, 699 (6th Cir. 2007) (collecting cases).

The colloquy and written waiver here meet the constitutional minimum because they

sufficiently informed Kinley that he was waiving his right to be tried by a panel of jurors. Our

precedents do not require that the trial judge provide more specific information on the procedures

and potential benefits of a trial by jury, even in a capital case. Therefore, the Ohio Court of

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Appeals’ rejection of Kinley’s claim does not contradict or unreasonably apply the Supreme

Court’s clearly established law.

Kinley relies on our decision in United States v. Martin, 704 F.2d 267, 274 (6th Cir. 1983).

In that case, we stated that a defendant “is sufficiently informed” to make a valid waiver if the trial

court tells him that “a jury is composed of 12 members of the community, he may participate in

the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will

decide guilt or innocence should he waive his jury trial right.” Id. at 273. But “[t]he statement

that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally

required.” United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990). In fact, we have since

“expressly stated that the elements of a knowing jury waiver outlined [in Martin] are not

constitutionally required.” Sowell, 372 F.3d at 832 (citing Sammons, 918 F.2d at 597).

We acknowledge that the colloquy here could have, and likely should have, been made

clearer by explicitly informing Kinley that a jury would also need to unanimously recommend

death. But Kinley’s burden is to demonstrate that the Ohio courts departed from clearly established

law and our precedent requires only that “the defendant must understand that the choice he faces

is to be judged by a jury composed of people from the community as opposed to having his guilt

or innocence determined by a judge.” Fitzpatrick v. Robinson, 723 F.3d 624, 639 (6th Cir. 2013).

The colloquy here did not fall below the constitutional threshold. Kinley is therefore not entitled

to relief on grounds 5 or 26.

In ground 15, Kinley argues that his jury trial waiver was involuntary because it was

coerced. He asserts that the prosecutor and the trial court coerced his trial counsel into making a

secret deal to have Kinley waive his right to a jury trial in exchange for funds to retain a mental-

-20- Nos. 14-4063/23-3847, Kinley v. Bradshaw

health expert. Kinley presented this claim to the Ohio courts during his first state postconviction

proceeding. The trial court summarily denied relief, but the Ohio Court of Appeals reversed and

ordered the trial court to hold an evidentiary hearing. Kinley, 735 N.E.2d at 936. On remand, the

trial court conducted the evidentiary hearing and again denied relief. The second time, the Ohio

Court of Appeals affirmed because “the trial court’s decision that there was no trade was supported

by competent, credible evidence.” Kinley, 2002 WL 538894, at *4.

Kinley focuses on the trial court’s initial denial of counsel’s requests for funds for expert

assistance. On November 5, 1990, trial counsel moved for funds to retain a psychologist and a

mitigation expert to help determine whether Kinley “lacked substantial capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirements of the law” due to “a

mental disease or defect.” R. 102-1, PageID 1114 (citing Ohio Rev. Code § 2929.04(B)(3)). The

prosecutor opposed the request, asserting that, under state law, a criminal defendant was “not

constitutionally or statutorily entitled to an independent psychological expert,” and suggested that,

alternatively, relief was available under Ohio Revised Code § 2929.03(D)(1), which “provides for

the mental examination if a mitigation hearing is requested.” Id., PageID 1157-58.

On December 18, 1990, trial counsel moved for the appointment of Stacey Michael, a

mitigation specialist, and James Eisenberg, Ph.D., a forensic psychologist. Id., PageID 1160. The

prosecutor opposed the motion because Kinley did not assert insanity or diminished capacity as

mitigating factors and did not show “a ‘particularized need’ for the requested experts.” Id., PageID

1168. The trial court denied the motion, acknowledging that Kinley wanted “to gather evidence

of mitigating factors to be presented under R.C. 2929.04(B)(7) at the sentencing hearing,” but

determining that the “expert testimony sought does not relate to any factual dispute or

particularized need in this case. Neither insanity [n]or diminished capacity is an issue in this case.”

-21- Nos. 14-4063/23-3847, Kinley v. Bradshaw

R. 102-1, PageID 1181. Following Kinley’s rehearing motion, however, the parties agreed that

Kinley should receive funds for a mitigation specialist. Id., PageID 1198, 1200-01.

On February 13, 1991, Kinley moved for reconsideration of the decision denying the

appointment of a psychologist “based on newly discovered matter.” R. 102-2, PageID 1250. On

February 19, 1991, Kinley waived his right to a jury trial. Id., PageID 1255. On February 20,

1991, the trial court authorized funding to retain Dr. Eisenberg and ordered that “a copy of Dr.

Eisenberg’s report be furnished to the Prosecutor prior to trial and all evidence relevant to the

mental condition of the Defendant at the time of the offense be furnished to Dr. Eisenberg.” Id.,

PageID 1258-59.

Kinley argues that the trial court changed its mind and granted the requested expert funding

only because his counsel made a deal in which Kinley waived his right to a trial by jury. He relies

on the affidavits and testimony of his trial counsel, James Doughty and John Butz. Both attorneys

submitted affidavits in state postconviction proceedings stating that they made a deal with the

prosecution in which Kinley would waive his right to a jury trial and the prosecution would stop

opposing the expert-witness funding. Doughty asserted that the defense was “only able to obtain

the funding to hire Dr. Eisenberg by making a deal with Assistant Prosecutor David Smith.”3 R.

102-9, PageID 3303. Doughty stated that “at an off-the-record conferment in Judge Lorig’s

chambers,” co-counsel Butz “suggested to Assistant Prosecutor Dave Smith that we would waive

the jury if he would stop opposing funding for Dr. Eisenberg,” and Smith agreed as did the trial

judge, who “was present for the conversation.” Id. Doughty explained that the defense “suggested

3 The state court sustained the state’s objection to the admission of this affidavit. However, the Ohio Court of Appeals seems to have considered Doughty’s affidavit in its opinion affirming the denial of postconviction relief. See Kinley, 2002 WL 538894, at *2 (“Kinley also introduced an affidavit from former defense counsel James Doughty, which stated essentially the same things as Butz’s testimony.”).

-22- Nos. 14-4063/23-3847, Kinley v. Bradshaw

this bargain because we thought it the only way we could get funding for a psychologist.” Id.

Doughty stated that he did not tell Kinley about the deal, adding that “I do not know if we would

have waived the jury had it not been for the above bargain. We might have waived it anyway, but

it is difficult to say.” Id. Butz also asserted in his affidavit that “waiving a jury was the event

which caused Judge Lorig to approve funding for the employment of a psychologist.” Id., PageID

3305. Finally, Kinley stated in an affidavit that he did not know about the circumstances of his

jury waiver and would not have done so had he known. Id., PageID 3306-07.

In Ake v. Oklahoma, 470 U.S. 68, 74 (1985), the Supreme Court held that, when a

defendant’s sanity is likely to be a significant factor at trial, “the Constitution requires that a State

provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford

one.” The Supreme Court has further held that Ake itself clearly established a right to a mental-

health expert “independent from the prosecution to effectively ‘assist in evaluation, preparation,

and presentation of the defense.’” McWilliams v. Dunn, 582 U.S. 183, 186 (2017) (quoting Ake,

470 U.S. at 83). Given McWilliams’s interpretation of Ake, at the time of trial, Kinley had a clearly

established right to the expert assistance of a psychiatrist. If the trial court in fact forced Kinley to

choose between two constitutional rights, his waiver would have been unconstitutionally coerced.

On § 2254 habeas review, Kinley must show that the Ohio Court of Appeals decision to

the contrary was based on an unreasonable determination of the facts. Kinley presented the same

evidence and arguments to the state courts. In response, the state presented the testimony of Judge

Lorig and two of the prosecutors on the case. Judge Lorig “denied that the jury waiver had been

the reason he granted the request for funding of the psychologist.” Kinley, 2002-Ohio-1791, 2002

WL 538894 at *2. He testified that he initially was not clear on the purpose of the funding request

but “had become convinced of its necessity.” Id. The prosecutors also denied that a deal occurred,

-23- Nos. 14-4063/23-3847, Kinley v. Bradshaw

both stating they “had withdrawn their opposition to the funding request because they had wanted

to eliminate a potential appellate issue and because Butz had agreed to give them a copy of the

psychologist’s report.” Id. Finally, another prosecutor testified that he had discussed the waiver

with defense counsel, who told him that independent factors weighed in favor of Kinley’s waiver

of trial by jury, in particular, “(1) the gruesome nature of the case, (2) the fact that Kinley was

black and the Millers were white, and (3) the age of David Miller.” Id. at *3. The trial court

denied relief and the Ohio Court of Appeals concluded that “the trial court’s decision in favor of

the state was not against the manifest weight of the evidence.” Id. at *4.

Kinley cannot overcome the deference owed to the Ohio Court of Appeals under the

AEDPA. The state trial court held an evidentiary hearing at which both sides introduced evidence.

The trial court believed the state’s evidence, and the Ohio Court of Appeals affirmed. Given the

conflicting testimony, we cannot say those determinations were unreasonable. In his briefing,

Kinley focuses on the timing of his jury waiver and the order granting funding. The Ohio Court

of Appeals recognized “that the timing of Judge Lorig’s approval of funding was suspicious” but

concluded “that alone is not sufficient for us to conclude that the state’s evidence was not credible.”

Id. The Ohio Court of Appeals thus clearly understood and considered Kinley’s argument that the

timing indicated that there was a quid pro quo. Its conclusion that the timing does not conclusively

resolve the issue in Kinley’s favor is not unreasonable.

Kinley also argues that, even if no deal occurred, his counsel subjectively “believed they

were coerced,” thus rendering his waiver involuntary. Appellant’s Br. at 93. But the Ohio Court

of Appeals credited the testimony of Judge Lorig and the prosecutors, who denied that the

conversations recounted by defense counsel occurred. Given that factual finding, it is unclear how

defense counsel could have reasonably arrived at the conclusion that they were being coerced. In

-24- Nos. 14-4063/23-3847, Kinley v. Bradshaw

short, Kinley has not presented evidence establishing that the Ohio courts came to an unreasonable

conclusion in light of the factual record. Kinley is therefore not entitled to relief on ground 15.

Finally, in ground 18 Kinley argues that his appointed counsel had a conflict of interest,

violating his right to due process and his right to counsel. Kinley argues that the Clark County

Public Defender’s Office simultaneously represented both him and Merriman between March of

1989 and October of 1990 and again during its limited representation of Kinley at trial to cross-

examine the prosecution’s DNA witnesses. This claim was presented to the Ohio courts during

Kinley’s first round of state postconviction review and rejected on the merits. See Kinley, 735

N.E.2d at 935. We therefore apply the deferential standards of review in § 2254(d) to the legal

and factual determinations of the Ohio Court of Appeals.

The Sixth Amendment and the Fourteenth Amendment together require that states appoint

counsel for indigent criminal defendants and that counsel be effective. Cuyler v. Sullivan, 446

U.S. 335, 344 (1980). As relevant here, that guarantee “secures [criminal defendants] the

assistance of counsel free from conflicts of interest.” Leonard v. Warden, 846 F.3d 832, 844 (6th

Cir. 2017). An actual conflict, for purposes of the Sixth Amendment, is “a conflict of interest that

adversely affects counsel’s performance.” Id. (quoting Mickens v. Taylor, 535 U.S. 162, 172 n.5

(2002)).

The representation of multiple criminal defendants in the same proceeding does not

necessarily result in a conflict of interest. In general, “[d]efense counsel have an ethical obligation

to avoid conflicting representations and to advise the court promptly when a conflict of interest

arises during the course of trial.” Cuyler, 446 U.S. at 346. Because of that, the Supreme Court

has recognized that “trial courts necessarily rely in large measure upon the good faith and good

-25- Nos. 14-4063/23-3847, Kinley v. Bradshaw

judgment of defense counsel.” Id. at 347 (citing Holloway v. Arkansas, 435 U.S. 475, 485–86

(1978)). The Supreme Court has thus held that a trial court’s failure to appoint separate counsel

in a joint trial over a defendant’s timely objection violated the Sixth Amendment. Holloway, 435

U.S. at 485. But if a defendant does not object to a perceived conflict-of-interest, he must

“demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”

Cuyler, 446 U.S. at 348.

Kinley points to two potential conflicts. The first potential conflict occurred at the

beginning of the case. At Kinley’s March 16, 1989, arraignment, the court appointed Noel Edward

Kaech, an assistant public defender with the Clark County Public Defender’s Office, as lead

counsel. On May 23, 1989, the trial court appointed John R. Butz, a private attorney, as co-counsel.

And on October 12, 1990, the trial court appointed James Doughty, a private attorney, to the

defense team. On October 25, 1990, the trial court permitted Kaech to withdraw. Kaech’s office,

the Clark County Public Defender, had represented Merriman—then a potential witness against

Kinley—in a prior case. Kinley acknowledges that the Clark County Public Defender’s Office

withdrew from its representation of Merriman on March 10, 1989, prior to Kinley’s arraignment.

But he argues that the office remained in contact with Merriman and arranged for Merriman’s plea

deal. Kinley also points out that the Clark County Public Defender’s Office represented Merriman

in subsequent cases. Kinley argues that the simultaneous representation of him and Merriman

violated his right to conflict-free counsel.

Second, Kinley points out that Kaech returned to the case during trial to cross-examine the

state’s DNA experts. Kinley’s counsel requested the court allow Kaech to appear for the limited

purpose of cross examining the witness and informed the court that Kinley understood the request

and agreed with it. On March 8, 1991, the trial court informed Kinley that “Mr. Kaech has

-26- Nos. 14-4063/23-3847, Kinley v. Bradshaw

indicated that his office, the public defender for Clark County, Ohio, his office has represented

Donald Merriman who was a witness in this case.” R. 104-1, PageID 7522. Kinley confirmed his

understanding, indicated that he did not object to Kaech’s limited representation and waived any

possible conflict of interest. Kinley argues that the “waiver was wholly invalid and unacceptable”

because he “was not made aware of the ramifications of having the same Office represent him that

also represented Merriman.” Appellant’s Br. at 82.

In analyzing this claim, the Ohio Court of Appeals expressed skepticism that any dual

representation had occurred because “[t]he Public Defender’s Office withdrew from its

representation of Merriman shortly before the indictment against Kinley was filed, apparently in

anticipation of that indictment.” Kinley, 735 N.E.2d at 935. But the court ultimately held that any

dual representation “certainly did not prejudice Kinley.” Id. As for the limited participation of

the Public Defender’s Office at trial, the court concluded that Kinley waived any conflict. Id.

Kinley fails to show that the Ohio courts misapplied clearly established federal law.

Although Kinley and Merriman were not codefendants, given Merriman’s testimony against

Kinley at trial, their interests were in conflict. Kaech’s initial representation of Kinley cannot

properly be called multiple representation, however, because his office was not then representing

Merriman. As for Kaech’s representation of Kinley at trial, it was for a limited purpose and at the

request of appointed private counsel with Kinley’s awareness and waiver of any conflict. Most

importantly, in neither instance does Kinley make any attempt to argue that a conflict “adversely

affected his lawyer’s performance.” Cuyler, 446 U.S. at 348. Where a defendant “fails to object

to a conflict, only ‘a showing of (1) an actual conflict; and (2) an adverse effect on his counsel’s

performance will void the conviction.’” White v. Phillips, 66 F.4th 615, 620 (6th Cir. 2023)

-27- Nos. 14-4063/23-3847, Kinley v. Bradshaw

(quoting Moss v. United States, 323 F.3d 445, 455 (6th Cir. 2003)). Kinley never objected to the

purported conflict, and neither did any of his lawyers.

Kinley seeks to establish prejudice by arguing that Merriman’s testimony “was used by the

State against Mr. Kinley to achieve the result of the imposition of the death penalty, and this

testimony helped Merriman in his own criminal cases.” Petitioner’s Br. at 84-85. The fact that

Merriman testified against Kinley may demonstrate the presence of a conflict of interest, but it

does not establish that the performance of Kinley’s counsel suffered as a result. Because he has

not made any showing of prejudice, Kinley is not entitled to relief.

Finally, Kinley argues that any waiver of a conflict of interest must be knowing and

intelligent, and that Kinley could not have properly waived any conflict because “there was no

conflict-free counsel who advised Mr. Kinley of this issue.” Appellant’s Br. at 84. We disagree

for two reasons. First, the Supreme Court opinion cited for the proposition that waiver must be

knowing and intelligent, Glasser v. United States, 315 U.S. 60 (1942), contains no such

requirement. Rather, the Supreme Court has placed the burden on defense counsel to alert the

court to any potential conflict. Cuyler, 446 U.S. at 346; see also Phillips, 66 F.4th at 620 (“Where

the defendant or his counsel fails to object to a conflict, only ‘a showing of (1) an actual conflict;

and (2) an adverse effect on his counsel’s performance will void the conviction.’” (quoting Moss,

323 F.3d at 455). Second, even if such a requirement existed, Kinley’s waiver would still be valid

because he had independent private counsel advising him, the trial court informed him of the

potential conflict, and he affirmatively waived any objection to Kaech’s limited trial

representation. And, in any event, because Kinley has made no showing of prejudice, he is not

entitled to relief on ground 18.

-28- Nos. 14-4063/23-3847, Kinley v. Bradshaw

IV.

For the reasons stated, we AFFIRM.

-29-