Apanovitch v. Bobby

• Decision Date: 10 August 2011
• Docket Number: No. 09–4333.,09–4333.
• Citation: 648 F.3d 434
• Parties: Anthony C. APANOVITCH, Petitioner–Appellant,v.David BOBBY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

648 F.3d 434

Anthony C. APANOVITCH, Petitioner–Appellant,

v.David BOBBY, Warden, Respondent–Appellee.

No. 09–4333.

United States Court of Appeals, Sixth Circuit.

Argued: Feb. 28, 2011.Decided and Filed: June 8, 2011.Rehearing and Rehearing En Banc Denied Aug. 10, 2011.

ARGUED: Dale A. Baich, Office of the Federal Public Defender, Phoenix, Arizona, for Appellant. Laurence R. Snyder, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: Dale A. Baich, Office of the Federal Public Defender, Phoenix, Arizona, Mark R. DeVan, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellant. Laurence R. Snyder, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee.Before: BOGGS, MOORE, and ROGERS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Anthony Apanovitch, an Ohio death-row inmate, appeals the district court's dismissal of his petition for a writ of habeas corpus. Apanovitch argues that he was prejudiced at his 1984 trial by the prosecution's withholding of favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It is clear that the prosecution wrongly withheld from Apanovitch favorable evidence. The state's conduct was irresponsible, and that conclusion is punctuated here, in the context of the capital trial. However, the state's conduct was not—in this case—unconstitutional, and we affirm.

I

This is the second time that Apanovitch's habeas petition has come before us on appeal. A thorough description of its complex procedural and factual history can be found in this court's first opinion, Apanovitch v. Houk, 466 F.3d 460 (6th Cir.2006). Accordingly, we provide only a brief summary here.

Mary Anne Flynn was brutally raped and murdered in her Cleveland home on August 23, 1984. Semen, mixed with other bodily fluids, was found inside Flynn's mouth and vagina. Investigators determined that the fluids were from someone who secretes blood type A. No physical traces of the killer were otherwise found at the scene. However, police soon began to suspect Apanovitch, who had recently performed house-painting services for Flynn. After police completed their investigation, a grand jury indicted Apanovitch for the crime on October 2, 1984.

The trial commenced on November 28, 1984, and various pieces of circumstantial evidence of Apanovitch's guilt were introduced to the jury. The Ohio Supreme Court summarized the state's evidence against Apanovitch as follows:

(1) [Apanovitch] had the same blood type as the perpetrator; (2) he had a scratch on the left side of his face consistent with that of a scratch from a fingernail; (3) [Apanovitch] could not adequately account for his whereabouts on the night in question; (4) [Apanovitch's] signed agreement to paint a portion of the victim's house was found on the kitchen table the day after the murder was discovered; (5) [Apanovitch] was familiar with the peculiar layout of the victim's house; (6) [Apanovitch] knew the victim and had made statements to others about his desire to have sexual relations with her; (7) the victim was fearful and apprehensive of [Apanovitch]; (8) [Apanovitch] spoke with the victim for roughly ten minutes at approximately 4:00 or 4:30 p.m. on the day of the murder. (The subject of the discussion, according to appellant, was the offer to paint the windowsills. A portion of one of the sills was used to stab the victim in the neck.); (9) [Apanovitch] told the police that it did not mean anything if they found his fingerprints in the house, even though he had painted only the exterior of the house; and (10) [Apanovitch] offered a variety of inconsistent stories about his whereabouts on the night of the murder.

State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394, 399 (1987). In addition, a detective who testified about Apanovitch's statement regarding his fingerprints in the house also testified that Apanovitch requested that he be notified “when” he is indicted. The jury returned a guilty verdict on December 14, 1984. On January 8, 1985, Apanovitch was sentenced to death.

Apanovitch appealed his conviction in state court, and the Ohio Supreme Court affirmed his conviction, in a 4–3 decision, in 1987. Id. at 404. Apanovitch next filed a post-conviction petition in state court. The Ohio Supreme Court upheld the dismissal of that appeal in 1991. State v. Apanovitch, 61 Ohio St.3d 1418, 574 N.E.2d 1089 (1991) (Table). Through these proceedings, Apanovitch become aware that the prosecution had failed, at the time of his trial, to disclose to him various pieces of exculpatory evidence. That failure—in disregard of a well-established obligation—is the reason why, nearly twenty-seven years after Apanovitch's conviction, we must pass judgment on its constitutionality here.

On November 1, 1991, Apanovitch filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. While the habeas proceeding was pending, the Ohio Supreme Court ordered the City of Cleveland to release to Apanovitch various documents relating to its investigation of Flynn's murder. Arguing that this new evidence supported the Brady claims he made in his habeas petition, Apanovitch moved the district court to include it in the record. Without addressing the issue, the district court dismissed Apanovitch's habeas petition in 1993. Apanovitch filed a timely appeal in this court and, at around the same time, a second post-conviction petition in state court. In 1994, this court granted Apanovitch's request to hold his habeas appeal in abeyance while the state proceeding was pending. The final state proceeding came to an end on December 20, 1996, with Apanovitch's conviction still intact, State v. Apanovitch, 77 Ohio St.3d 1488, 673 N.E.2d 146 (Table) (1996), and Apanovitch's habeas appeal resumed.

After unaccountably taking no action on the appeal for nearly eight years, this court ultimately reversed in part the district court's 1993 judgment. The panel held that the district court abused its discretion by not expanding the record to include the newly released evidence. Apanovitch, 466 F.3d at 490. The panel also held that Apanovitch established, as to three of his Brady claims, that the prosecution had withheld favorable evidence, and remanded to the district court to consider the question of prejudice in light of the new evidence.¹ Id. at 477–82. In addition, the panel ordered that the district court consider newly available DNA evidence in light of Apanovitch's remaining claims of actual innocence. Id. at 489–90.

On remand, the district court ordered the DNA testing and, after considering its result, again dismissed Apanovitch's petition. Apanovitch v. Houk, 2009 WL 3378250 (N.D.Ohio Aug. 14, 2009). The district court considered the new DNA evidence, which was highly inculpatory,² to hold that Apanovitch was not prejudiced under Brady, and, in the alternative, reached the same conclusion without considering the new DNA evidence. Id. at *12–*13. On appeal, Apanovitch argues that the district court wrongly held that he was not prejudiced under Brady and erroneously considered the DNA evidence as part of its Brady analysis. He also challenges the chain of custody of the DNA evidence and the district court's interpretation of the DNA evidence. This court has jurisdiction to review the final judgment of the district court. 28 U.S.C. § 1291.

II

As a threshold matter, although we previously ordered the district court to consider the newly discovered DNA evidence in the context of some of Apanovitch's claims, the district court erroneously considered the DNA evidence as part of its prejudice analysis under Brady. Apanovitch is not now raising a Brady claim with regard to the DNA evidence itself. The relevant inquiry under Brady is whether there is a reasonable probability that the result of the trial would have been different had the Brady evidence not been withheld. Apanovitch, 466 F.3d at 475 (“The failure to disclose such evidence is ‘material,’ and therefore ‘prejudicial,’ only ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” (quoting Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999))). The results of a DNA test performed two decades after the trial has concluded shed no light on the question of whether there is a probability that the jury in 1984 would have reached a different result had the Brady evidence not been withheld by the prosecution. New, non- Brady, evidence is enlightening as to whether a petitioner is—seen as of now—actually innocent. However, it is not enlightening as to the probability that a petitioner would have—at trial—been acquitted based on the evidence that was presented to the jury and on the evidence that was withheld from the defense, which is the Brady inquiry. Notably, Apanovitch no longer argues that he is actually innocent.

The district court read this court's previous opinion to stand for the proposition that the DNA evidence should be used for Brady purposes. Although that interpretation is incorrect, it is understandable in light of the following language from our earlier opinion:

We suspect that the DNA evidence, should it be introduced and subjected to appropriate evidentiary challenges in court, might help resolve lingering questions of whether Apanovitch suffered actual prejudice when the state withheld the serological evidence, and whether Apanovitch's innocence claim can be verified.

Apanovitch, 466 F.3d at 489. Standing alone, this language could be interpreted to be referring to the withheld serological evidence at issue in Apanovitch's Brady claim. However, the panel began its DNA-evidence discussion by explaining that one of Apanovitch's claims for relief was that the state violated his rights by failing to preserve the semen evidence for later DNA testing (until 1992, the...