Lewis Williams, Jr. v. Ralph Coyle, Warden

260 F.3d 684, 2001 U.S. App. LEXIS 18476, 2001 WL 920272

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 16, 2001
• Docket: 98-3793
• Status: Published

Opinions

KENNEDY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. MOORE, J. (pp. 708-722), delivered a separate dissenting opinion.

OPINION

KENNEDY, Circuit Judge.

Petitioner, Lewis Williams, Jr., was indicted and convicted of first degree murder, and sentenced to death. After unsuccessful direct appeals and several state post-conviction proceedings, Williams filed this petition for a writ of habeas corpus. After ruling that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), governed Williams’s petition, the district court entered judgment dismissing the petition. The district court issued a certificate of appealability only on the question of whether Williams’s petition was governed by the AEDPA. On Williams’s appeal, we held that it was. See Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999). On his appeal of the denial of a certificate on the other issues he had raised in his petition, we issued a certificate of appealability on four issues. Those are, whether the district court erred by (1) denying Williams’s request for an eviden-tiary hearing, (2) finding that the Ohio court’s ruling on Williams’s ineffective assistance of counsel at the sentencing stage claim was not contrary to or an unreasonable application of the law, (3) finding that the Ohio court’s ruling on Williams’s Brady violation claim as it related to the testimony of Anderson and Brooks was not contrary to or an unreasonable application of the law, and (4) finding that the Ohio court’s ruling on Williams’s Eighth Amendment claim — that the trial court incorrectly instructed the jury on the Ohio’s death penalty statute — was not contrary to or an unreasonable application of the law. In response to the Eight Amendment and Brady claims, the Warden, acting on behalf of the State, argues that Williams procedurally defaulted these by failing to raise them at the earliest opportunity. And, moreover, on the whole, Williams’s claims, including the ones the Warden claims Williams defaulted, are without merit.

We agree that the district court’s judgment should be affirmed. In spite of the Warden’s assertions, however, we reach the merits of Williams’s Eighth Amendment and Brady claims because it is unclear whether Williams procedurally defaulted them. On the issue of the evi-dentiary hearing, we believe Williams was in fact provided a federal evidentiary hearing, and is actually requesting a second federal evidentiary hearing. He has offered no argument to persuade us that he is entitled to a second such hearing. We reject Williams’s Eighth Amendment jury instruction claim because Ohio’s Supreme Court had ruled that the trial court’s instruction was a correct interpretation of Ohio’s death penalty statute. Likewise, we find the ineffective assistance of counsel claim without merit because Williams failed to establish that it was unreasonable for the state courts to find his trial counsel’s failure to investigate and present further mitigating evidence was below the professional standards of the time. Finally, on the Brady claim, although the district court should not have applied the AEDPA’s standards to that claim, it was correct to dismiss the claim as Williams failed to prove the existence of any exculpatory evidence or that the alleged evidence was material.

A general description of the factual and procedural background precedes our analysis, which will include additional background as necessary.

I. Facts

On February 1, 1983, a Cuyahoga County Grand Jury indicted Williams for robbery, theft, aggravated robbery, aggravated burglary, and aggravated murder with specifications in connection with the robbery and murder of Leona Chmielewski.¹ See Joint Appendix (J.A.) at 465-70. Williams pleaded not guilty and proceeded to trial where he was represented by Floyd Oliver and Arthur Lambros.

At trial, the prosecution called as witnesses several of Williams’s friends and relatives who were with him on the night of the murder. They testified they saw Williams standing in the doorway of Chmielewski’s house as they were leaving the neighborhood. When they returned, about an hour later, they noticed that Chmielewski’s door was open. Upon investigating, they discovered her body on the floor inside the doorway. At that point, they called the police. The police discovered that Chmielewski had been beaten around the head and neck and shot through the mouth. Additionally, her purse had been overturned and her wallet was missing. The police arrested Williams.

The prosecution also introduced evidence that (1) a partial shoe print on the nightgown Chmielewski was wearing at the time of her murder matched the print from the shoes Williams was wearing at the time of his arrest and (2) the jacket Williams was wearing at the time of his arrest contained a trace of lead powder, similar to that discharged from a gun. And, over Williams’s objections, the prosecution called Michael Anderson and Brooks Navarro, two jail-house informants, to testify. They testified that, while in jail, Williams admitted to them he killed Chmielewski. According to Anderson, Williams told Anderson that he “stuck the gun in her mouth.” Brooks testified that Williams told Brooks he was worried about the blood on his shoes. Williams attorneys cross-examined Anderson and Brooks, inquiring whether they currently had a deal with prosecution to exchange testimony for more lenient sentences or hoped the State would later consider leniency on account of their testimony. Each answered that while he did not have a deal with the prosecution, he did hope the state would remember his cooperation. Likewise, the prosecutor stated that he would likely take Anderson’s and Brooks’s cooperation into account. On October 7, 1983, the jury found Williams guilty of aggravated murder and aggravated robbery, thereby making him eligible for the death penalty. The trial then proceeded to the sentencing stage.

At the sentencing hearing, Williams’s counsel introduced mitigating evidence in the form of testimony from three witnesses — his father, his sister, and a family friend — and an unsworn oral statement from Williams. Williams’s father and sister testified that Williams had a troubled childhood. The friend of the family also spoke of several events in Williams’s childhood that indicated he was raised in a hostile environment. Williams made statements to a similar effect and also stated that he had been involved with the law on several occasions. Apparently counsel’s strategy in introducing this evidence was to demonstrate to the jury that because of his upbringing, Williams did not have “much of a chance” in life. A fact which counsel apparently hoped would engender feelings of mercy from the jury. According to the district court, counsel was also attempting to show that the legal system had failed Williams.

At the close of the proceeding, the judge instructed the jury that under Ohio’s Revised Code sections 2929.03 and .04, it could return one of three sentence recommendations — death or one of two life sentences — based upon whether it found that the aggravating circumstances outweighed the mitigating circumstances. Any of these recommendations, the judge instructed, must be based on a unanimous decision. See J.A. at 2143-44. Williams’s counsel did not object to the instruction. After deliberating, the jury recommended a sentence of death, which the court accepted. On November 10, 1983, the court entered its judgment that Williams was sentenced to death. See J.A. at 471.

Williams, represented by Oliver, appealed the judgment and sentence. On October 25, 1984, an Ohio Court of Appeals affirmed the conviction and sentence. See State v. Williams, No. 47853, 1984 WL 5289 (Ohio Ct.App. Oct. 25, 1984) (unpublished journal entry and opinion). Williams then appealed to the Ohio Supreme Court where he was represented by Marilyn Damelio and Richard Gideon. Finding no merit, the Ohio Supreme Court affirmed his conviction and sentence on March 26, 1986. See State v. Williams, 23 , 490 N.E.2d 906 (Ohio 1986). Williams then applied for a writ of certiorari to the United States Supreme Court. The Court denied the application. See Williams v. Ohio, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987).

Having exhausted his direct appeals, Williams turned his attention to state post-conviction proceedings for relief. In all, Williams filed five state post-conviction relief (PCR) petitions and took appeals from four of the five dismissals. Additionally, Williams filed an application for delayed reconsideration of his ineffective assistance of counsel claim in his case — as is required under Ohio’s Murnahan rule. See State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (Ohio 1992).

Proceeding pro se, Williams filed his first petition for PCR on April 4, 1986. There, he alleged ineffective assistance of counsel and what he now argues was a Brady violation. The trial court dismissed without opinion and Williams did not appeal. He filed a second PCR, related to the robbery, which was also dismissed. Again, Williams did not appeal.

Instead, represented by Robert Inger-soll, he filed his third petition for PCR on November 20, 1987.² In it he alleged, among other things, that he was deprived of effective counsel at the guilt and sentencing phases of his trial as well as on appeal. He did not allege a Brady violation. Again the trial court dismissed. The Ohio Court of Appeals affirmed on July 1,1991, see State v. Williams, 74 Ohio App.3d 686, 600 N.E.2d 298 (Ohio Ct.App.1991), and the Ohio Supreme Court dismissed the appeal on November 20, 1991, finding that “no substantial constitutional question” was presented. State v. Williams 62 Ohio St.3d 1463, 580 N.E.2d 784 (Ohio 1991) (unpublished table decision).

On August 31, 1990, while his third petition was still on appeal, Williams filed his fourth petition for PCR. In it he alleged, among other things, that he received ineffective assistance of counsel and suffered a Brady violation. The trial court dismissed the Brady claim as procedurally barred by the doctrine of res judicata and rejected the ineffective assistance of counsel claims on the merits. That ruling was affirmed by the Ohio Court of Appeals on April 1, 1993, see State v. Williams, No. 62066, 1993 WL 95548 (Ohio Ct.App. April 1, 1993), and the Ohio Supreme Court dismissed on September 29, 1993, without opinion, see State v. Williams, 67 Ohio St.3d 1464, 619 N.E.2d 698 (Ohio 1993) (unpublished opinion).

Undeterred by his lack of success, Williams filed a fifth petition for PCR on July 8, 1992. Again he asserted that his counsel were ineffective and that the prosecution violated his due process rights by failing to disclose exculpatory evidence. And again the trial court dismissed on the grounds of res judicata and the Court of Appeals' affirmed, see State v. Williams, No. 68613, 1996 WL 17333 (Ohio Ct.App. Jan. 18, 1996) (unpublished opinion), and the Ohio Supreme Court dismissed without opinion, see State v. Williams, 75 Ohio St.3d 1449, 663 N.E.2d 330 (Ohio 1996) (unpublished table opinion).

On June 30, 1993, while litigating his fifth PCR, Williams filed an Application for Delayed Reconsideration in the court of appeals on his ineffective assistance of appellate counsel claim, as is required by Ohio law. The court dismissed the application because Williams filed it in the wrong case. On October 27, 1994, Williams filed the application again, this time in the correct case. The court dismissed the application under Ohio Appellate Rule 26(B) because Williams failed to show good cause to reopen his case. Williams appealed that dismissal to the Ohio Supreme Court, which, on February 7, 1996, affirmed the court of appeals on the ground that Williams failed to demonstrate good cause for his untimely filing.

Coming to the realization that he was not going to obtain any state post-conviction relief, Williams filed a notice of intent to file a Petition for a Writ of Habe-as Corpus on April 19, 1996. Then on November 1, 1996, Williams filed a Petition for a Writ of Habeas Corpus, challenging his conviction and sentence. Williams’s petition raised thirty-two grounds for relief, including claims of (1) ineffective assistance of counsel at the trial and appellate phases of his case, (2) a Brady violation, and (3) a violation of his Eighth Amendment rights as a result of the trial judge’s jury instruction regarding Ohio’s death penalty statute, Ohio’s Revised Code section 2929.04. In addition, Williams requested an evidentiary hearing to present new evidence on the Brady and ineffective assistance of counsel claims. The Warden responded, arguing in part that Williams had procedurally defaulted his Brady and Eighth Amendment claims.

The district court granted Williams’s request for an evidentiary hearing. At the hearing, Williams introduced the testimony of a ballistics expert and a mitigation expert to support the ineffective assistance of counsel at the guilt and sentencing stages of his trial claim, and to support his Brady claim, an affidavit from Anderson stating that he testified against Williams as part of a deal with the prosecution. He did not call either Anderson or Brooks to testify. Williams also subpoenaed his former counsel but did not take former counsel’s deposition or call him to testify. In response, the State called the prosecutors who tried Williams’s case. Both denied making a deal with either Anderson or Brooks. After conducting the hearing, the district court found that although Williams filed his notice of intent to file a petition for habeas corpus before the effective date of the AEDPA, it nevertheless governed his case because he filed his petition after that date. And because Williams had failed to develop the record and could not make the showing required under section 2254(e) to obtain an evidentiary hearing, the district court concluded, it would rule on the petition without reliance on the evidence presented at the hearing. Nevertheless, it did consider the evidence in its ruling.

In ruling on the petition, the district court declined to address whether Williams procedurally defaulted on his Brady and Eighth Amendment claims and instead based its decision on the merits of those claims. It found both claims wanting merit, with or without the evidence presented at the evidentiary hearing. It also found that Williams’s ineffective assistance of counsel and other claims lacked merit and therefore dismissed the petition. In addition to denying the petition, the court, based upon the reasons stated in its ninety-six page opinion, declined to issue Williams a certificate of appealability.

Williams filed a motion to reconsider. Upon reconsideration, the court amended its order and issued a certificate of appeal-ability on the question of whether Williams’s petition was governed by the AEDPA. Williams appealed that issue to this court and requested a certificate of appealability on all issues raised in his petition. We held that the AEDPA governed Williams’s case despite the fact that he filed his notice of intent to file a petition prior to its effective date. See Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999). We then issued a certificate on the four issues Williams raises here.

II. Procedural Default

Before we reach the merits of any of Williams’s claims, we must address the Warden’s argument that Williams procedurally defaulted his Brady and Eighth Amendment claims by failing to raise them at the earliest opportunity.

When a state prisoner defaults on his “federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted). In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), we set forth a four-part test for determining whether a court is procedurally barred from reviewing a state prisoner’s federal constitutional claims. First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. See id. A procedural rule is adequate only when it is firmly established and regularly followed at the time it was applied. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998). The rule would be an independent básis for disposition of a case if the state courts actually relied on the procedural bar. See Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Fourth, if the federal court answers the first three questions in the .affirmative, it would not review the petitioner’s procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. See Maupin, 785 F.2d at 138. Based on this test, we do not believe we can find that Williams procedurally defaulted on his Brady or Eighth Amendment claims.

A. Brady Claim

We do not believe we need go any further than the first factor of inquiry in determining whether Williams procedurally defaulted his Brady claim. Before we explain why, we provide a detailed procedural background. Williams claims to have alleged a Brady violation in his first petition for PCR. The petition alleged that Williams was denied his “constitutional right to a fair and impartial trial when the prosecutor used against him testimony [of Anderson and Brooks] which was know to be false ... and which was produced by promises made by the prosecutor to [Anderson and Brooks].” J.A. at 525-26.³ The trial court dismissed this petition without opinion and Williams never appealed the dismissal.

Williams did not raise the issue — assuming his first PCR petition did raise it — in either his second or third petitions for PCR. This despite the fact that his third petition for PCR contained information that would suggest a possible Brady claim: an affidavit dated February 17, 1988, from Gary English, a jail mate of Williams and Anderson, which stated that English overhead Anderson telling Williams he, Anderson, was going to get a lesser sentence for testifying against Williams. The text of the affidavit makes- clear that the conversation took place prior to the end of Williams’s trial which would mean Williams was aware of the alleged deal prior to the end of his trial.⁴ Rather than raising the claim there, Williams chose to wait until his fourth PCR proceeding to raise the Brady claim.

In alleging the Brady violation in his fourth PCR petition, Williams pointed to several facts that led him to believe a deal existed between the prosecution and the witnesses — namely, that after their testimony each witness received a reduced sentence. The petition also included an affidavit from Jeff Layman, an investigator hired by Williams’s counsel, which stated that while visiting Anderson at the Marion Correctional Facility, Anderson informed Layman that the prosecution promised to recommend a reduced sentence if he testified against Williams. See J.A. at 1313-14. Curiously, the petition did not include English’s affidavit nor did it include an affidavit from Anderson. The trial court dismissed the claim finding it was barred by res judicata because it “should have been considered on direct appeal.” The court of appeals and the state supreme court affirmed on that reasoning.

Nevertheless, Williams raised the claim again in his fifth petition for PCR, this time including an affidavit from Anderson stating that he made a deal with the prosecution. Again the trial court dismissed the Brady claim on the ground that it was barred by res judicata. It then went on to state, “[f]urther, these exhibits fail to present substantive grounds upon which relief can be granted.” In his appeal from that dismissal, Williams alleged that it was error for the trial court to dismiss the petition on the ground of res judicata because his claim was based upon evidence outside the record — an affidavit from Anderson— and Ohio law did not apply the doctrine to claims supported by evidence outside the record. Williams also stated that the trial court erred by failing to grant his petition as to the Brady claim. The court of appeals rejected Williams’s contention that evidence outside the record prevents a court from applying res judicata to procedurally bar a claim. It stated,

Defendant’s seventh assignment of error contends the prosecution presented false testimony from Michael Anderson and concealed a deal to obtain his testimony, thereby depriving defendant of effective counsel.... Defendant contends he is entitled to file successive PCR Petitions, despite the denial of prior PCR Petitions rasing the same grounds, whenever he presents new evidence to support the claims.

Contrary to defendant’s argument, Ohio law does not grant carte blanche to file successive PCR Petitions endlessly.... Trial courts are not required to entertain successive petitions which allege the same grounds as earlier petitions .... Defendant has failed to show that the trial court abused its discretion by dismissing these claims in his fifth PCR.

Defendant raised the same claims in his fourth PCR Petition and made no attempt to show good cause for permitting him to raise them again belatedly with additional evidence. That Michael Anderson testified falsely at trial and the prosecution concealed promises of lenient sentencing to induce his testimony were arguments raised before. Defendant’s fourth PCR Petition was based on an affidavit of investigator Jeff Layman and.... Defendant’s fifth Petition merely adds an affidavit in which Anderson recants his trial testimony. However, recanted testimony is suspect and does not generally warrant a hearing....

State v. Williams, No. 68613, 1996 WL 17333 at *2 (Ohio Ct.App. Jan. 18, 1996) (unpublished opinion) (internal citations omitted). The court did not go on to address the merits of the claim. The Supreme Court of Ohio affirmed without opinion.

Those dismissals, the Warden argues, establish a procedural bar to this court hearing Williams’s Brady claim. Pointing to our decisions in Wong v. Money, 142 F.3d 313 (6th Cir.1998), and Norris v. Schotten, 146 F.3d 314 (6th Cir.1998), the Warden asserts that the doctrine of res judicata is an adequate and independent state ground for barring federal review.

After reviewing Ohio’s doctrine of res judicata, we conclude that while it seems likely that Williams did procedurally default his Brady claim, the Ohio courts have not provided us with enough analysis to hold that Williams defaulted his claim. Under Ohio law, the doctrine of res judicata will bar a party from raising issues that it had an opportunity to raise at an earlier proceeding. See State v. Roberts, 1 Ohio St.3d 36, 437 N.E.2d 598, 601 (Ohio 1982) (stating that “the petitioner is precluded by the doctrine of res judicata from asserting constitutional issues in this post conviction proceeding since she failed to raise these issues at the earliest possible time....”); State v. Johnson, No. 55295, 55811, 55812, 2000 WL 1146809 at *1 (Ohio Ct.App. Aug. 8, 2000); State v. Resh, 124 Ohio App.3d 694, 707 N.E.2d 531, 538 (Ohio Ct.App.1997). This doctrine applies equally:' in post-conviction proceedings, barring claims for relief when the petitioner could have raised the issue on direct appeal but did not, see State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (Ohio 1967); to claims raised in federal habeas proceedings that were not raised on appeal from a trial court’s dismissal of a petition for post-conviction relief but could have been, see Brooks v. Edwards, No. 95-3775, 1996 WL 506505 at *5 (6th Cir. Sept.5, 1996); and to claims that a successive petition for post-conviction relief raises that could have been raised in an earlier post-conviction proceeding but were not, see State v. Slagle, No. 76834, 2000 WL 1144947, at *10 (Ohio Ct.App. Aug. 10, 2000); State v. Mullins, No. 10499, 1982 WL 4956, at *1 (Ohio Ct.App. April 14, 1982). When the claim raised is based on evidence outside the record, the rules change a bit. But how the rules change appears to depend on which opinion you examine. For instance; some courts appear to suggest all that matters is whether the claim is based on evidence outside the record and could not have been appealed on the original record: “[E]vidence must show that the petitioner could not have appealed the constitutional claim based on the information in the original trial record.” State v. Combs, 100 Ohio App.3d 90, 652 N.E.2d 205, 209 (Ohio Ct.App.1994). Thus, a narrow reading of those cases suggests that the question of whether the petitioner could have obtained the evidence earlier is of no consequence. Others find that question important, and require not only that the evidence is outside the record but also that the party presented the claim when the party could have reasonably obtained the evidence. See Mapes v. Coyle, 171 F.3d 408, 421-22 (6th Cir.1999); Slagle, at *3; Resh, 707 N.E.2d at 538 (“Res judicata does not apply because [the defendant] could not have reasonably discovered the attached evidentiary materials at or before trial.”). Still other sources have stated the issue as whether the party “could have known of the error in time to raise it at trial or on appeal.” 3 Baldwin’s Ohio Prac.Crim. L. § 83.4 (West 1996).

Williams does not address the varying interpretations of the doctrine, choosing simply to adopt the one most favorable to him. Applying that interpretation, he argues that because his claim is based on evidence outside the record, the delinquency in raising it is absolved. Apparently the Ohio courts did not agree. The court of appeals in dismissing his fourth PCR appeal held, “The claims raised in this assignment of error could have been raised on appeal or through the previous petitions for post-conviction relief.” Williams, 1993 WL 95548, at *1. The trial court’s ruling was similar. The courts presumably based these holdings on the ground that Williams could have reasonably obtained the evidence supporting his Brady claim earlier that his fourth petition for PCR. But while the evidence suggests that to be case, the Ohio courts failed to discuss any of that evidence, make specific factual findings on the matter, or provide any reasoned analysis. Without such analysis, we are unwilling to rule that the claim is procedurally barred.⁵

B. Jury Instruction

The Warden argues that Williams procedurally defaulted his Eighth Amendment jury instruction claim by failing to make a contemporaneous objection to the instruction and failing to raise the issue on direct appeal. We disagree. It appears that Williams raised the issue of the court’s jury instruction regarding the de- . gree of agreement needed to return a life sentence recommendation on his direct appeal to the Ohio Supreme Court. That court, though it stated that the issue had not been briefed or raised below, went on to decide the case on the merits.

In his twelfth proposition, appellant argues that the jury should have been instructed that a life imprisonment sentence does not require a unanimous vote. Not only was this issue not briefed and decided below, but this alleged reading of R.C. 2929.03(D)(2) ignores the requirement set forth in Crim. R. 31(A) that all verdicts in criminal proceedings be unanimous. Furthermore, we rejected this argument in Jenkins .,. and held that: “In returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury’s verdict must be unanimous.”

Williams, 490 N.E.2d at 913 (citation omitted). We do not believe that we can read this decision as resting on a procedural bar as it simply says in passing that Williams failed to comply with the procedural rules.⁶ Accordingly, Williams is not barred from raising the issue now.

Because we find that we are not procedurally barred from reviewing either claim, we move to Williams’s assignments of error.

III. Williams’s Claims

A. Evidentiary Hearing

In his first assignment of error, Williams alleges the district court should have granted him an evidentiary hearing on his Brady and ineffective assistance of counsel claims. In point of fact, the district court did grant and proceed with an evidentiary hearing. At the hearing, Williams introduced thirty exhibits, including an affidavit from Anderson claiming that he lied at Williams’s trial. Williams also called two witnesses, including a mitigation expert who testified that Williams’s trial counsel were ineffective in preparing for the mitigation stage of the trial. Williams did not, however, call Anderson as a witness. His counsel informed the court at a pre-hearing conference that Anderson was unavailable in a psychiatric ward at Allen Correctional Institution. As it turned out, Anderson was not in a psychiatric ward but in the general population and therefore available. Thus, his affidavit was inadmissible hearsay.

After the hearing, the district court ruled that the AEDPA prohibited it from using the evidence in evaluating the merits of Williams’s claims. Specifically, the court found that Williams had failed to develop the state record and did not meet one of the exceptions in § 2254(e)(2) for obtaining an evidentiary hearing under those circumstances: the request was not based upon a new constitutional rule nor was it based upon newly discovered evidence. “The evidence presented at the [evidentiary] hearing was not newly discovered material evidence ... at best, it consisted of new interpretations of evidence presented (or not presented) at Williams’ trial. While the interpretations are arguably new, the ‘factual predicate’ from which they are derived is not.” J.A. at 163.

Despite the court’s conclusion that it was prohibited from using the evidence presented at the evidentiary hearing, it proceeded to evaluate the evidence. It began in footnote twenty-six: “As a practical matter, whether the Court disregards the evidence received at the hearing is of no consequence, for, as will shortly be discussed, Williams is not entitled to relief even upon consideration of such evidence.” J.A. 163. Giving Williams every possible advantage, the district court included the hearsay affidavit in its evaluation as well, stating, “Anderson’s affidavit, even if it were not hearsay, must be viewed with extreme suspicion.... [Anderson’s] inadmissible affidavit is insufficient to establish that the State had promised him a reduced sentence in exchange for testimony against Williams.” J.A. at 168-69 (footnotes omitted). In evaluating the ineffective assistance of counsel argument, the district court said, “Williams would fair (sic) no better even were the Court to consider the evidence presented at the evidentiary hearing.” J.A. at 185 n. 57. It then went on to consider that evidence, finding that the mitigation expert’s testimony did not support a finding of deficient performance by Williams’s counsel or the prejudice required to overturn the sentence.

Nevertheless, Williams argues that he is entitled to an evidentiary hearing. Ignoring the only conclusion one can reach from reading the district court’s opinion— that the court considered the evidence— Williams begins by observing that his case is outside the scope of § 2254(e)(2) because he did not fail to develop the record in state court. Rather, he asserts, the state courts incorrectly refused to allow him to develop the record. Because the case is not governed by § 2254(e)(2), he reasons, we must analyze his request for an evidentiary hearing under the rules that governed pre-AEDPA requests, namely, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). And under those rules, he concludes, he is entitled to an evidentiary hearing on both issues.⁷ We disagree.

As the district court did in fact evaluate the evidence presented at the evidentiary hearing, what Williams is actually requesting is a second federal evidentiary hearing. The sole purpose of which — given that the district court already considered the affidavits and testimony of the mitigation expert — would be to introduce the testimony of Anderson rather than relying on his affidavit as Williams had previously done. In hope, we suppose, that the district court would look more favorably on Anderson’s statement if he were there in person. But the district court’s opinion suggests otherwise. It did not say that Anderson’s statement was incredible because Anderson was not before the court; rather it found the statement lacked credibility because Anderson waited nine years to reveal his alleged perjury and the state did not have the authority to promise Anderson what he alleges it promised him. Williams has not presented us with an authority, nor have we found any, that would indicate such a hearing is required. The principles applicable to this situation, moreover, militate against such a hearing. See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998). Williams has had the opportunity for a full and fair hearing in federal court. If we were to analogize Williams’s request to one governed by § 2254(e), moreover, Williams would not be entitled to a second hearing. Any undeveloped factual allegations — the absence of testimony by Anderson-are a result of Williams’s failure. Williams does not meet one of the listed exceptions. Accordingly, we reject Williams’s argument that he is entitled to a second federal evidentiary hearing.

B. Standards of Review

Because the AEDPA applies to Williams’s petition, see Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999), we review his petition under the standards set forth in 28 U.S.C. § 2254(d). That section provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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 proceedings.

28 U.S.C. § 2254(d). Thus, the Supreme Court has held, “[t]he threshold question under [this section] is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).⁸ A rule of law is clearly established if it is directly based on a “holding[ ], as opposed to the dicta, of [the Supreme Court] as of the time” the conviction became final. Id. at 412, 120 S.Ct. 1495.

A decision can be contrary to such law in one of two ways. First, when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent. See id. at 406-07, 120 S.Ct. 1495. Second, when the state court “applies a rule that contradicts the governing law set forth in” Supreme Court cases. Id. at 406, 120 S.Ct. 1495.

A decision is an unreasonable application of clearly established federal law if it identifies the correct principle of law but unreasonably applies it. See id. at 407, 120 S.Ct. 1495. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410, 120 S.Ct. 1495 (original emphasis).

We pause here to emphasize that the Court did not, contrary to some opinions from this and other circuits, hold that a decision might be an unreasonable application if it unreasonably extended or declined to extend an existing principle of law. The Court mentioned that theory, but only in the context of reviewing for the reader what the Fourth Circuit had previously ruled constituted an unreasonable application of the law. The Court began,

The Fourth Circuit’s interpretation of the “unreasonable application” clause of § 2254(d)(1) is generally correct. That court held in Green that a state-court decision can involve an “unreasonable application” of this Court’s clearly established precedent in two ways.... Second, a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.

Id. at 407, 120 S.Ct. 1495 (citations omitted). But the Court then went on to emphasize that it was not ruling on the unreasonable extension principle.

The Fourth Circuit also held in Green [that] state-court decisions that unreasonably extended a legal principle from our precedent to a new context where it should not apply (or unreasonably refuse to extend a legal principle to a new context where it should apply) should be analyzed under § 2254(d)(l)’s “unreasonable application” clause. Although that holding may perhaps be correct, the classification does have some problems of precision.... Today’s case does not require us to decide how such “extension of legal principle” cases should be treated under § 2254(d)(1). For now it is sufficient to hold that when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner’s case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision’s “unreasonable application” clause.

Id. at 1521 (emphasis added) (internal citation omitted).

We will review Williams’s jury instruction and ineffective assistance of counsel claims under the standard set forth in § 2254(d). Because the Ohio Supreme Court reviewed the jury instruction claim on direct appeal, our review will focus on that opinion. The ineffective assistance of counsel argument, however, was not reviewed on direct appeal. Whether § 2254(d) applies to issues addressed for the first time in state post-conviction proceedings was not addressed by either party. The Warden simply assumed it did apply and Williams — consistent with his approach to every issue— assumed we review the claim de novo. Nevertheless, we have little doubt that the AEDPA’s standards apply to state collateral decisions as well as those on direct appeal. Section 2254(d) draws no distinction between decisions on direct appeal and those in state collateral proceedings, requiring only that the claim “was adjudicated on the merits in State court proceedings.” § 2254(d). Further, at least two of our sister circuits have applied the standards to state post-conviction proceedings. See Bell v. Jarvis, 236 F.3d 149 (4th Cir.2000) (en banc); Moore v. Gibson, 195 F.3d 1152, 1165, 1171 (10th Cir.1999). And more importantly, the Supreme Court’s review in Williams v. Taylor was of a state court’s post-conviction decision. The question still remains which state post-conviction decision we should review. The Ohio courts last addressed the merits of Williams’s ineffective assistance of counsel claim in his third PCR proceedings. The court of appeals articulated its reasoning, while the Ohio Supreme Court affirmed without opinion. Because both courts reached the same conclusion, and it is the conclusion rather than the analysis that matters, see Bell, 236 F.3d at 160, we think which decision we review is of little import whether we review the decision of the court of appeals or the Ohio Supreme Court. Although we review the state-court collateral decision, we still look to the clearly established law at the time Williams’s conviction became final. Williams, 529 U.S. at 388-89, 120 S.Ct. 1495.

C. Jury Instruction

After reading the possible verdicts, the trial court instructed the jury as follows:

If all twelve of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstances which Lewis Williams Jr. was found guilty of committing murder outweighs the mitigating factors, then you must return such finding to the Court. I instruct you as a mater of law that if you make such a finding, that you have no choice and must recommend to the Court that the sentence of death be imposed upon the defendant, Lewis Williams Jr.

On the other hand, if after considering all of the relevant evidence raised at the trial ... you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant ... was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision.

That is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty outweigh the mitigating factors. In this event, you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the court.

So you have three options, as I have indicated to you. Of course, whichever you choose, all twelve of the jurors have to agree and sign in ink.

J.A. at 2141-44 (emphasis added). That passage, Williams contends, violated his rights because (1) it erroneously instructed the jury on the level of agreement necessary to recommend a life sentence and (2) that this erroneous instruction violated his Eighth Amendment right.

Ohio R.C. § 2929.03(D)(2)⁹ simply does not require unanimous agreement to recommend a sentence other than death, Williams contends. Indeed, he argues, the jury must recommend a life sentence if even one juror disagrees with a recommendation of death. The trial court’s instruction otherwise, he maintains, misinformed the jury about its role in sentencing a capital defendant and therefore violated his Eighth Amendment rights as described in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

The Ohio Supreme Court rejected that argument and so do we. The Ohio Supreme Court held that, in accord with its decision in State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 306-07 (Ohio 1984), all verdicts must be unanimous under Rule Ohio Criminal Rule 31(A) and consequently, a recommendation of a life sentence must be unanimous. See State v. Williams, 23 Ohio St.3d 16, 490 N.E.2d 906, 913 (Ohio 1986). Jenkins was clearly decided before Williams’s conviction was final.

In 1996, the Ohio Supreme Court, reached a decision contrary to Jenkins in State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030, 1041 (Ohio 1996). A 1992 opinion by the Ohio Supreme court also suggests that a recommendation of life need not be unanimous. See State v. Springer, 63 Ohio St.3d 167, 586 N.E.2d 96 (Ohio 1992). The Brooks court did not mention Jenkins but nevertheless appears to overrule it. The Brooks decision was over a month after Williams’s last PCR request was dismissed; and both Brooks and Springer were decided after Williams’s conviction became final. Williams did not raise the jury instruction issue in his PCR proceedings, moreover, thereby depriving the Ohio courts of the opportunity to address the apparent conflict between Jenkins and Springer.

The timing of these decisions requires us to find that the Ohio Supreme Court’s decision was not an unreasonable application of nor was it contrary to clearly established law — in this case Caldwell — at the time Williams’s conviction became final. Caldwell prohibits the judge or prosecutors from making misleading statements to the jury. Thus, for the decision to have been contrary to or an unreasonable application of Caldwell, it would have had to affirm what was then an erroneous statement of the law by the judge that misled the jury. That is, the jury instruction would have to had been an erroneous statement of Ohio law at the time Williams’s conviction became final. If it was not, then the instruction was not misleading, and therefore, not in violation of Caldwell. At the time Williams’s conviction became final, Ohio’s highest court read section 2929.03(D)(2) in conjunction with Ohio Criminal Rule of Procedure 31(A) to require jury unanimity for life imprisonment recommendations in capital cases. Therefore, the decision affirming Williams’s sentence was not an unreasonable application of or contrary to clearly established Supreme Court precedent.

Williams’s second challenge fares no better. He alleges the instruction led the jury to believe that they must return a unanimous recommendation, thereby precluding them from considering any and all mitigating circumstances in violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

The Ohio Supreme Court did not address Williams’s second argument; however, it is easily disposed of. We first note that Mills was decided after the United States Supreme Court denied certiorari from Williams’s direct appeal and therefore was not clearly established law at the time Williams’s conviction became final. Even if the law were clearly established, the jury instruction did not run afoul of it or its principles. Mills stands for the proposition that a death penalty scheme cannot require unanimity as to the existence of a mitigating circumstance. See Mills, 486 U.S. at 374, 108 S.Ct. 1860. Here the jury instruction clearly did not require unanimity as to the existence of a mitigating circumstance only as to the question of whether the aggravating circumstances as a whole outweighed the mitigating circumstances as a whole. We do not see how that instruction violates Mills.

D. Ineffective Assistance of Counsel

If his death sentence is not the result of judicial error, it must be the result of his counsel’s error, Williams contends. That error, he argues, was his trial counsel’s failure to fully investigate his background for information that they could have presented at the sentencing stage of his trial as mitigating circumstances. If they had, he maintains, they would have discovered additional information that supports Williams’s claim that the death penalty should not have been imposed because of his troubled childhood. Specifically, Williams points to testimony that his school test revealed he has a low IQ and statements from family members that he was abused and his father was a homosexual who spent little time with Williams and brought other men around Williams’s home. Counsel’s failure to present such evidence, he alleges, was deficient performance. Had they presented that evidence, Williams argues, there is a reasonable probability that the jury’s recommendation would have been different.

The Ohio courts saw things differently. Williams first raised the claim in his third PCR petition; the court of appeals was the last to provide an articulated decision. Applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it found that Williams could not show that his attorneys’ decision not to call certain witnesses was deficient performance. The witnesses Williams claims his counsel should have called to testify would have merely provided support for the theory of mitigation that his counsel presented and the jury rejected, the court reasoned. Accordingly, it concluded, counsel’s strategic decision not to call these witnesses did not constitute deficient performance. Further, it stated, the failure to present the cumulative evidence did not prejudice Williams as the jury did not accept this theory of mitigation. The Ohio Supreme Court affirmed without opinion, we assume on the same rationale.

We pause here to stress the import of the AEDPA’s requirements on our analysis. The AEDPA requires us to review the Ohio court’s decision based on clearly established Supreme Court precedent at the time Williams’s conviction became final. We are not permitted to rely on Supreme Court cases decided after the court’s decision, nor are we permitted to rely on any decision by any court other than the Supreme Court in evaluating the Ohio court’s decision. Thus, Williams’s references to Supreme Court decisions after the time Williams’s conviction became final are largely irrelevant. So too are Williams’s references to federal circuit court decisions.

At the time Williams’s conviction became final, Strickland v. Washington was three years old but still the most instructive Supreme Court case on his issue. Under Strickland, counsel is deemed ineffective if (1) his performance is deficient and (2) this deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052. A counsel’s performance is deficient if he committed errors so serious that he was not performing at a reasonable professional level. The burden is on the defendant to make such a showing by “identi-fyting] the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. The court warned against the type of hindsight and second-guessing in which Williams asks us to engage.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

In making [its] determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id. at 689-90, 104 S.Ct. 2062 (citations omitted). And as to investigative decisions of counsel, the Court also instructed courts to act deferentially.

[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment.

[W]hat investigation decisions are reasonable depends critically on [information supplied by the defendant]. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s other litigation decisions.

Id. at 690-691, 104 S.Ct. 2052. Assuming a defendant overcomes this high burden, he must still prevail on the second prong before he will receive relief.

To prevail on the second prong, 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Again, we note that it is important to bear in mind that we are not proceeding de novo; instead, we are assessing whether the Ohio court’s application of the Strickland standard- and only the Strickland standard as it was described by the Supreme Court in 1984 — was unreasonable or its decision contrary to the standard.

Applying Strickland through the lense of the AEDPA, we do not believe it was unreasonable for the Ohio court to determine that Williams failed to make the required showing. Section 2929.04(B) of the Ohio Revised Code listed the following items as mitigating factors in death penalty cases:

(1) Whether the victim of the offense induced or facilitated it;

(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;

(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender’s conduct or to conform the offender’s conduct to the requirements of the law;

(4) The youth of the offender;

(5) The offender’s lack of a significant history of prior criminal convictions and delinquency adjudications;

(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in the offense and the degree of the offender’s participation in the acts that led to the death of the victim;

(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

Ohio Rev.Code Ann. § 2929.04. The only factor that favored Williams was the catchall contained in subsection seven. Williams’s counsel presented evidence on this factor in the form of testimony that Williams had a troubled youth. The court’s finding that counsel’s decision not to introduce redundant evidence about Lewis Williams’s troubled youth followed the Supreme Court’s guidance and applied “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” that it “might be considered sound trial strategy.” 466 U.S. at 689, 104 S.Ct. 2052. While further testimony on the mitigating factor, particularly from professionals, might have been helpful, we do not find the court’s decision that Williams’s counsel were effective to be an unreasonable application of Strickland. As the court of appeals noted, Williams’s counsel presented a theory of mitigation and provided evidence to support that theory. The jury simply rejected the theory — that is, it rejected the catchall mitigating factor that would include troubled childhoods.

The dissent focuses on this as well, reasoning that had counsel investigated further — that is, spoken to more of Williams’s relatives — they could have easily determined that some of what Williams’s father testified to was not true. This may well be true. The dissent’s analysis, however, overlooks Strickland’s requirement that we analyze counsel’s investigation in light of the defendant’s actions and statements. As the district court noted, Williams was uncooperative with a psychologist in the past and that behavior may have influenced counsel’s decision not to have Williams analyzed again. More importantly, Williams had the opportunity to raise with his counsel all the facts he and the dissent claim counsel should have obtained through another method. It is not apparent from the record, moreover, that counsel were unaware of those facts.¹⁰ Several times during Williams’s unsworn statement, counsel tried to elicit information from Williams regarding his home life. Williams had the opportunity to raise that and other issues in the mitigation hearing. He chose not to do so, choosing instead to remark how he blamed no one for how he turned out, saying, “I don’t want to be hurting nobody by saying anything, you know.” J.A. at 2104. Counsel tried to get Williams back on track, but Williams refused.

Williams also complains that had his counsel investigated further, he would have- discovered that Williams was tested as having a low IQ. Specifically, had counsel reviewed Williams’s records from school — though there is no indication that counsel were not aware of their content— they would have discovered the test results. Such practice is common today, Williams’s expert testified' before the district court. This argument like much of Williams’s argument goes to what is considered standard practice in mitigation hearings today. But as we have pointed out, that is not the question under Strickland nor is it the question under the AEDPA. Strickland directs the Ohio court to analyze effectiveness based on the then prevailing norms and counsel’s perspective at the time. Id. at 689, 104 S.Ct. 2052. The question is whether Williams’s counsel met the professional standards of the time; and Williams has provided no indication that they did not. See id. at 687, 104 S.Ct. 2052. What counsel knew and why they acted as they did is never directly explained. While one of Williams’s attorneys was deceased at the time of the evidentia-ry hearing, Williams did subpoena the other attorney but did not call him in the evidentiary hearing nor was any affidavit from this attorney ever submitted. Williams, moreover, was uncooperative with the psychologists that evaluated him. Based on Williams’s conduct, counsel may have determined that they would be better served simply having Williams explain his childhood at the mitigation hearing.¹¹ The Ohio court’s decision was not contrary to or an unreasonable application of clearly-established law.

The same is true with respect to the prejudice prong. As the Ohio Court of Appeals noted, the evidence Williams claims should have been introduced goes to a theory of mitigation that the jury found did not outweigh the aggravating circumstances. Williams has made no showing, other than merely alleging, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

As Williams has failed to show that the Ohio courts unreasonably applied Strickland in dismissing his ineffective assistance of counsel claim, we affirm the district court’s decision to dismiss Williams’s ineffective assistance of counsel claim.

E. Brady Violation

Our review of Williams’s Brady claim will be under pre-AEDPA standards because no state court reviewed the merits of that claim. Under that standard, we review mixed questions of law and fact de novo. See Carter v. Bell, 218 F.3d 581, 591 (6th Cir.2000). Allegations of Brady violations are mixed questions of law and fact, accordingly, we review the claim under that standard. See id. We review the district court’s factual findings only for clear error. See id.

Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, a defendant’s due process rights are violated when the prosecution suppresses exculpatory evidence. Exculpatory evidence includes evidence regarding the reliability of a witness. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Bell, 218 F.3d at 602. Failure to disclose such evidence is material where the evidence creates a reasonable probability of a different result. See Bagley, 473 U.S. at 678, 105 S.Ct. 3375. A reasonable probability of a different result exists when “the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting Bagley, supra).

According to Williams, a deal to exchange lighter sentences for testimony against Williams existed between the prosecution and Anderson and Brooks prior to Williams’s trial. That the prosecution did not disclose the existence of the deal, Williams asserts, violated his Fourteenth Amendment due process rights, as interpreted by Brady. To support this claim, Williams points to several post-trial events that he alleges raise doubt about the witnesses’ testimony that they were not promised a reduced sentence in exchange for their testimony. First, Anderson, who had been charged with aggravated robbery, was allowed to plead guilty to a lesser-included offense one month after his testimony in Williams’s trial. He was sentenced to one and one-half years of incarceration for the offense; however, the execution of the sentence was suspended and he was placed on five years probation. Second, Brooks, -who was serving a one year sentence, was allowed to vacate his plea agreement and plead to a lesser-included offense. After doing so, he received a three month-suspended sentence and was placed on six months inactive probation. In addition to this circumstantial evidence, Williams also offers an affidavit from Anderson stating that he did in fact make a deal with the prosecution prior to testifying and that he lied during the trial when he testified that there was no such deal. Williams does not allege that Brooks has recanted his trial testimony that no deal existed between himself and the prosecution. Nevertheless, he argues there was a deal and the existence of that deal was material; therefore, the prosecution’s failure to disclose it violated his due process right.

The district court disagreed and held there was no Brady violation. ’ While it agreed with Williams that the prosecutor’s failure to disclose evidence of a deal between the state and the witnesses would amount to a Brady violation, it rejected Williams’s argument that the evidence he presented reveals that a deal between the prosecutor and the witnesses existed prior to the trial. The post trial events, it found, are not evidence that a deal existed prior to the witnesses testifying. And Anderson’s affidavit, it ruled, was not credible. Further, there was no evidence that Brooks ever recanted his testimony. Accordingly, it found no violation and dismissed the claim.

To convince us that the district court erred, Williams must show that the court’s factual finding that no deal existed was clearly erroneous. He cannot make that showing. The mere fact that Anderson and Brook’s sentences were later altered is not evidence that a deal existed prior to their testimony at trial. In fact, at Williams’s trial Anderson testified he hoped to obtain a reduced sentence by reason of his testimony. Likewise, the prosecutor stated that he would consider the witnesses’ cooperation in disposing of their pending cases. The other evidence Williams offers, Anderson’s affidavit, is suspicious on both a legal and a factual basis, as the district court found. Legally, recanting affidavits are always viewed with “extreme suspicion.” United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir.1991). The circumstances surrounding the confession are also dubious. Williams’s counsel did not offer Anderson as a witness in the district court’s evidentiary hearing because, he stated, Anderson was in a psychiatric ward and therefore unavailable. As Respondent points out, however, Anderson was actually in the general population. Both prosecutors, moreover, testified at the evidentiary hearing that they made no such deal with Anderson or Brooks. All these facts led the district court to find Anderson’s affidavit incredible, and require us to hold that that finding was not clearly erroneous.

Even if we assume such a deal existed, we do not believe the prosecution’s failure to disclose it would have been material. While the jury would not have been aware that a deal existed, it was fully aware of the witnesses’ motivation for testifying — the hope of getting favorable treatment from the prosecution in their own cases. Williams’s counsel extensively cross-examined the witnesses. Anderson admitted that he hoped his testimony would benefit him in his case. And the prosecution stated it would consider the witnesses’ cooperation in determining how to dispose of their cases. Thus, the jury knew of this reason to question the veracity of their Anderson’s and Brooks’s testimony. We do not believe that knowledge of the existence of an actual deal prior to deliberation would have given the jury a greater reason to question the veracity of Anderson’s and Brooks’s testimony. At least, not to the level that not knowing undermines confidence in the outcome. See Byrd v. Collins, 209 F.3d 486, 518-19 (6th Cir.2000).

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of the petition for a writ of habeas corpus.

1 . The state chose not to prosecute Williams on the aggravated burglary and theft counts.

2 . Williams's second PCR proceeding does not concern his murder conviction.

3 . Read in context, Williams's petition for PCR suggests he was not alleging a Brady violation; rather, he was arguing that witnesses testified falsely.

4 . Specifically, the affidavit reads,

Anderson told me after talking to the police that he knew about [Williams] because the police told him about the case. Anderson said that he might as well sink [Williams] for what [Williams] had done to him.

Anderson told [Williams] that ... the prosecutors were going to give him, Anderson, a bill, meaning lesser time. Anderson said [Williams] should never have crossed him.

After Anderson got back from court, [Williams] told Anderson that he had lied. Anderson said, "Better you than me.”

J.A. at 880.

5 . The failure is also troubling in light of Ohio's requirement that when a trial court "dismisses [a] petition, it ... make and file findings of fact and conclusions of law with respect to such dismissal.” Ohio Rev.Code Ann. § 2953.21(C); see also State v. Lester, 41 Ohio St.2d 51, 322 N.E.2d 656, 659 (Ohio 1975).

6 . Williams's brief to the court of appeals is not in the appendix but the Ohio Court of Appeals’s decision in his direct appeal decision discusses and rejects his claim that the instruction requiring a unanimous verdict for a life sentence was error.

7 . Under Townsend, a petitioner is entitled to an evidentiary hearing if:

(l)the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Townsend, 372 U.S. at 313, 83 S.Ct. 745.

8 . We pause here to note an apparent discrepancy in the Supreme Court's opinions. Justice Stevens wrote for the majority in parts I, III, and IV of the opinion and Justice O’Con-nor wrote for the majority in part II of the opinion. Williams v. Taylor dealt with the Virginia Supreme Court’s opinion on collateral review. As noted above, in part III of his opinion Justice Stevens wrote that a law is clearly established if it was decided at the time Williams's conviction became final. In part II of her opinion, also for the majority, Justice O’Connor wrote that we look to the "relevant state court-decision” to see whether a law was clearly established. In Williams v. Taylor, the relevant case presumably was the Virginia Supreme Court's decision on collateral review. These statements, both for the majority, appear inconsistent-at least in the case of Williams v. Taylor and in the present case. Because Justice Stevens's statement is more specific, we follow it.

9 . At the time, section 2929.03(D)(2) of the Ohio Revised Code read,

If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury.shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility aftér serving thirty full years of imprisonment.

10 . Thus we do not know whether counsel were aware of Williams's father’s conduct and chose not to pursue that avenue as trial strategy for fear it would be adverse rather than helpful.

11 . As the district court noted,

[Although Williams alleges that his counsel were ineffective for not requesting the assistance of a 'psychological expert necessary to explain [his] behavior in light of his psycho-social development,' his own prior conduct likely cautioned counsel against such course. During a pre-trial competency hearing, Williams had refused to cooperate with psychologists. In light of this prior conduct, counsel may have reasonably determined not to request any additional (and perhaps futile) expert assistance; instead Williams himself could tell the jury about the conditions of his childhood and its ef-feet upon him, thereby placing his own personal tragedy into consideration and perhaps evoking sympathy from jurors.

To overcome this hurdle, the dissent looks to our recent decision in Carter v. Bell, 218 F.3d 581, 596 (6th Cir.2000), a pre-AEDPA case. The AEDPA, however, prohibits us from relying on such cases — we are only permitted to rely on Supreme Court cases decided at the time Williams’s conviction became final. Williams, 529 U.S. at 388-89, 120 S.Ct. 1495. We cannot agree, moreover, that Williams’s case approaches the facts in Williams v. Taylor, on which the dissent relies.