Richard Solether v. Jesse Williams , 527 F. App'x 476 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0558n.06
No. 11-3698
FILED
UNITED STATES COURT OF APPEALS Jun 10, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
RICHARD SOLETHER, )
) ON APPEAL FROM THE
Petitioner - Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
JESSE WILLIAMS, Warden, )
)
Respondent - Appellee. )
)
BEFORE: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner Richard Solether appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus, challenging his Ohio rape
conviction on the basis that the prosecution’s failure to disclose the victim’s polygraph results, which
indicated that she was untruthful about the alleged rape, violated his rights under Brady v. Maryland,
373 U.S. 83 (1963), and the Confrontation Clause. Because the Ohio appellate court’s rejection of
Solether’s claims was neither contrary to, nor an unreasonable application of, clearly established
federal law, we AFFIRM.
I.
A.
The Ohio appellate court summarized the trial proceedings as follows:
On November 1, 2006, . . . [an Ohio grand jury] indicted [Solether] on one
count of rape, in violation of R.C. 2907.02(A)(2). The charge stemmed from an
incident on August 21, 2006, where Solether, then a Perrysburg Township Police
No. 11-3698
Solether v. Williams
Officer, met the victim at a Fricker’s restaurant in Perrysburg, Wood County, Ohio.
The two talked for a few hours and left at closing time. Although the versions of the
events differ, it is undisputed that the two ended up at Solether’s apartment.
According to Solether’s trial testimony, he and the victim were kissing and it got “hot
and heavy.” Solether admitted to placing his hand in the victim’s underpants and
digitally penetrating her vagina. Solether testified that they were engaging in this
conduct for approximately ten seconds when the victim stated: “I don’t think that we
ought to do this.” Solether stated that he immediately leaned back, the victim sat on
the couch, and then he turned on the television. After a bit, the victim asked Solether
to take her home; Solether drove the victim home.
The victim testified that at Solether’s apartment they each had a glass of wine.
The victim used the restroom, came back in the living room and sat on the couch.
The victim stated that she was waiting for Solether to take her home; she assumed
that Solether would take her home because she had finished her wine. According to
the victim, Solether sat down on the couch and began kissing her neck. The victim
testified that she repeatedly told Solether that she was tired and that she just wanted
to go home. The victim testified that she kept inching away from Solether and that
he would not get off of her; Solether pushed her underwear down and inserted his
finger in her vagina. The victim testified that they eventually wound up on the floor
and that Solether abruptly stopped and took her home.
State v. Solether, No. WD-07-053, 2008 WL 4278210, at *1 (Ohio Ct. App. Sept. 19, 2008) (names
altered by replacing “appellant” with Solether).
In cross-examining the victim, defense counsel elicited testimony that the victim’s employer
reported the incident to the police after the victim revealed her rape allegations during a night of
drinking, and that the victim did not speak with the police until several days after the incident.
Defense counsel also cross-examined the victim about the fact that she provided the police with a
false name for the alleged perpetrator, “Kevin,” although (as the victim conceded) Solether
introduced himself as “Rick” at the bar.
The prosecution offered testimony from one of the initial investigators, Officer Robert Gates,
who had training in sexual-assault crimes and worked at the same police department as Solether.
2
No. 11-3698
Solether v. Williams
Attempting to mitigate concerns about the victim’s delayed reporting of the incident, the prosecution
had the following exchange with the officer:
Q Based upon your training and experience is it unusual for a victim of sexual
assault not to report the assault immediately?
A No, that’s not unusual.
PID 713. The defense moved to strike the officer’s answer as having no foundation; the trial court
overruled that motion and the prosecution continued with its exchange on this point, without further
objection by the defense:
Q Again based upon your training and experience what are some of these
reasons that victims of sexual assaults may not report immediately?
A It can be a number of reasons. It could be fear of . . . the offender. It could
be fear that they would have to go through with the offense again several times in
front of strangers. It might be fear that nothing could be done by the system[,] that
the case wouldn’t be strong enough for example. Could be a number of reasons.
...
... It might be that the offender would be a well known or powerful person that
may be [sic] because of that, they might not be believed.
Q Based upon your training and experience if the offender was a police officer
would that be a reason for a victim not to report a sexual assault?
A Yes, I think so.
PID 714.
After this exchange, Officer Gates explained that he became involved in Solether’s case
around August 26, 2006, which is when the department’s lieutenant relayed to him that the victim’s
employer had reported the incident and his belief that the alleged perpetrator was a police officer.
3
No. 11-3698
Solether v. Williams
Officer Gates interviewed the victim, who said the perpetrator’s name was “Kevin.” However, based
on the victim’s description of “Kevin” and the circumstances of the alleged incident, Officer Gates,
with the lieutenant’s help, identified Solether as the alleged perpetrator. The lieutenant suspended
Solether’s employment with the department. Immediately thereafter, Officer Gates referred the
matter to the Ohio Bureau of Criminal Investigation (BCI), given Solether’s employment with the
police department. BCI Agent Thomas Brokamp, who took over the investigation, testified (without
objection from the defense) that the victim’s in-court testimony was consistent with what she had
told him during a post-incident interview.
The jury convicted Solether of the rape charge. The trial court imposed a four-year prison
term and five-year period of post-release supervision.
B.
Prior to filing his state-court appellate brief, Solether learned that the victim had failed a
polygraph examination administered by BCI in October 2006. The state polygraphist reported that
the victim’s reactions to questions were indicative of “deception,” and that she did not tell the truth
during the test.
In light of this post-trial disclosure, Solether argued, in his second assignment of error on
direct appeal, that the prosecution’s failure to disclose the polygraph results violated his rights under
Brady, as well as the Due Process and Confrontation Clauses:
Defense counsel would have used [the victim]’s polygraph results indicating
untruthfulness, to impeach Gates’ expert testimony regarding his implied assertion
that no red flags were present in this case, that her behavior was typical and thus
credible, and that there is no cause for concern with respect to this particular
complainant. With the polygraph results, defense counsel would have been able to
4
No. 11-3698
Solether v. Williams
put forth an alternative explanation for her delayed reporting—that she was
concerned with being caught in a falsehood—which ultimately is what happened
when she was later subjected to a polygraph. Defense counsel would have
questioned Gates as to whether it is typical for police departments to go forward with
the charges in a “he said/she said” posture when the sexual assault victim fails her
polygraph test regarding the alleged incident, and whether this might be an alternative
explanation for her behaviors.
Defense counsel recognizes that polygraph evidence would not be admissible
to impeach [the victim]. Indeed, defense counsel concedes that if Gates had not
testified, the polygraph results would have been inadmissible. But once Gates took
the stand and had the effect of bolstering and vouching for [the victim]’s testimony
with the experience, credibility, and wisdom of his police department, the door was
opened for cross-examination on this point. The state should not be allowed to use
the rules of evidence barring polygraphs in many circumstances as a sword to mislead
the jury, and to give the false impression to the jury that [the victim]’s behavior was
typical and “par for the course,” when, in fact, a major problem with her credibility
arose in the investigation when she failed the polygraph. Gates and the state were
aware of an alternate explanation for [the victim’s] behavior—one that supports
Solether’s innocence—yet Gates could not be questioned about this fact because this
information was not disclosed to the defense. By failing to disclose that [the victim]
had failed a polygraph examination, the state violated Solether’s due process rights
and right to adequately confront the witnesses against him.
PID 217–18.
The Ohio appellate court affirmed Solether’s conviction and overruled his second assignment
of error:
In Solether’s second assignment of error, he argues that the state, in violation
of Brady v. Maryland, 373 U.S. 83 (1963), erred when it failed to produce material
exculpatory evidence which hindered [his] ability to effectively cross-examine
Officer Robert Gates. Specifically, Solether contends that the state’s failure to
disclose the victim’s polygraph examination results, indicating deception, prejudiced
his ability to cross-examine Officer Gates who, according to Solether, “bolstered” the
victim’s testimony/credibility.
In Brady . . . [,] the Supreme Court of the United States held that suppression
of material evidence violates a defendant’s due process rights. Evidence is
5
No. 11-3698
Solether v. Williams
“material” where there exists a “reasonable probability” that had the evidence been
disclosed at trial the outcome would have been different. Applying Brady to
polygraph examination results, the Supreme Court later held that the state’s failure
to disclose the results of a polygraph examination of a state witness did not deprive
the defense of material evidence. Wood v. Bartholomew, 516 U.S. 1 (1995). The
[C]ourt reasoned:
“The information at issue here, then—the results of a polygraph examination
of one of the witnesses—is not ‘evidence’ at all. Disclosure of the polygraph results,
then, could have had no direct effect on the outcome of trial, because respondent
could have made no mention of them either during argument or while questioning
witnesses.” Id. at 6.
The [C]ourt discounted the argument that the discovery of the test results
could have led to admissible evidence as too speculative. Id. at 6–7.
In State v. Souel, 372 N.E.2d 1318 (Ohio 1978), the Supreme Court of Ohio
set forth the criteria for the admissibility of polygraph examination results. Such
criterion includes the written stipulation of the parties and is still subject to the
discretion of the trial court. In State v. Davis, 581 N.E.2d 1362 (Ohio 1991), the
court addressed the issue of the discoverability of the evidence, rather than its use at
trial. Specifically, the court addressed the issue of “whether the state is required to
provide, through discovery, the results of polygraph tests that were performed on
persons other than the defendant or any co-defendant(s).” The court dismissed the
appellant’s argument that the discovery of the results could have led to additional
evidence that could have aided his defense. The court further explained: “This court
has never held that a defendant is entitled to the results of polygraph examinations,
nor has this court held that polygraph examinations are scientific tests which are
discoverable pursuant to Crim. R. 16.”
Solether acknowledges that the victim’s polygraph test results were
inadmissible to impeach her testimony; however, [he] contends that the test results
were admissible to impeach the testimony of Officer Gates who, according to
Solether, testified as to the veracity of the victim’s statements. Solether relies
primarily on three cases to support his argument that polygraph results can be
admissible for other purposes. In Criss v. Springfield Township, 564 N.E.2d 440(Ohio 1990), Moss v. Nationwide Mutual Insurance Co., 493 N.E.2d 969 (Ohio Ct.
App. 1985), and State v. Manning, 598 N.E.2d 25 (Ohio Ct. App. 1991), the courts
permitted the introduction of polygraph examination results for various reasons. In
Criss, the court held that where polygraph examinations are conducted during a
6
No. 11-3698
Solether v. Williams
criminal investigation the examination results are admissible to show the state of
mind of the police officers who were defending against a claim of malicious
prosecution. In reaching its decision, the court noted that the concerns in State v.
Souel, supra, were not implicated because the polygraph test results were not “being
offered for the purpose of corroborating or impeaching testimony at trial.” Next, in
Moss, which involved an insured’s bad faith claim, the court, first noting that Souel
does not control in a civil case setting, permitted the use of the insured’s polygraph
examination test results to show the basis for the insurer’s denial of coverage.
Finally, in Manning[,] the court held that polygraph examination results from the
deceased victim were admissible to rebut the appellant’s self-defense claim.
Criss and Moss are immediately distinguishable based upon the fact that the
evidence was admitted in a civil, rather than a criminal, trial. Further, the Criss court
stressed that the evidence was to be used to establish the officers’ state of mind and
not to corroborate or impeach trial testimony. In Manning, the court did permit the
polygraph testimony of the deceased victim to be admitted during trial. On appeal,
the court, citing Criss, held that the testimony was admissible to demonstrate the
state of mind of the appellant and to rebut her claim of self-defense. Unlike
Manning, Solether argues that the victim’s polygraph examination was admissible
to impeach Officer Gates’ trial testimony. As set forth above, polygraph examination
results are not admissible to impeach or corroborate trial testimony.
Based on the foregoing, we find that the state did not fail to provide Solether
with “material” evidence as set forth in Brady v. Maryland because the victim’s
polygraph examination results were inadmissible at trial. Solether’s second
assignment of error is not well-taken.
Solether, 2008 WL 4278210, at *4–6 (internal citations altered or omitted; formatting altered;
internal paragraph numbers omitted; names altered by replacing “appellant” with Solether). Seeking
leave to appeal to the Ohio Supreme Court, Solether reasserted his claims and argued that the
appellate court “improperly broadened the Ohio courts’ guidelines regarding admissibility of
polygraph results.” The Ohio Supreme Court denied leave to appeal. See State v. Solether, 901
N.E.2d 245 (Ohio 2009) (table decision).
7
No. 11-3698
Solether v. Williams
Meanwhile, during the pendency of his direct appeal, Solether moved for post-conviction
relief and a new trial. The trial court denied the motions. Solether appealed, reasserting his Brady
and confrontation claims involving the polygraph results. The Ohio appellate court ruled that
Solether’s claims were barred by res judicata and law-of-the-case principles because they were
adjudicated on direct appeal. See State v. Solether, No. WD-08-73, 2010 WL 219313 (Ohio Ct. App.
Jan. 22, 2010). The Ohio Supreme Court denied leave to appeal. See State v. Solether, 927 N.E.2d
12 (Ohio 2010) (table decision).
C.
In February 2010, Solether timely filed this habeas action, asserting that: (1) the prosecution
violated Brady when it failed to disclose that the victim had failed a polygraph test (ground one); and
(2) the prosecution violated his Sixth Amendment confrontation rights, right to present a complete
defense, and Fifth and Fourteenth Amendment rights to a fair trial by not disclosing the victim’s
failed polygraph results (ground two).1 A magistrate judge issued a report, recommending denial of
Solether’s habeas petition on the basis that: (1) the polygraph results were not “evidence”
implicating Brady because they were inadmissible under Ohio law, and (2) the claims raised in
ground two were not fairly presented to the Ohio courts. See Solether v. Williams, No. 3:10-cv-346,
2011 WL 2175010 (N.D. Ohio Mar. 14, 2011) (report and recommendation) (unpublished).
After reviewing Solether’s objections to the magistrate judge’s report, the district court
adopted the report with respect to ground one. See Solether v. Williams, No. 3:10-cv-346, 2011 WL
1Although Solether raised other grounds in his petition, they are not the subject of this appeal.
8
No. 11-3698
Solether v. Williams
2174992, at *1–2 (N.D. Ohio June 3, 2011). However, contrary to the magistrate judge’s
recommendation on ground two, the district court concluded that Solether had fairly presented his
claims to the Ohio courts but was not entitled to habeas relief because the admissibility of polygraph
evidence is a state-law issue that does not implicate a defendant’s constitutional rights. Id. at *2–5.
We granted a certificate of appealability.
II.
Solether exhausted in the Ohio courts his claims that the prosecution’s non-disclosure of the
polygraph results violated Brady and his right to confront and cross-examine Officer Gates. The
state argues that Solether failed to exhaust in the Ohio courts his additional claims that the
prosecution’s non-disclosure of the polygraph results violated his right to present a complete defense,
and his right to use the results to cross-examine Agent Brokamp and to explore the police
investigators’ state of mind.2
To obtain federal habeas relief, a petitioner must have “exhausted the remedies available in
the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). Under this exhaustion requirement, the petitioner must “‘fairly present’ to the state courts
the ‘substance’ of his federal habeas claim prior to seeking such relief.” Lyons v. Stovall, 188 F.3d
327, 331 (6th Cir. 1999) (citations omitted). In other words, the petitioner must present to the state
courts “both the factual and legal basis for his claim,” as well as “the same claim under the same
theory.” Hicks v. Straub, 377 F.3d 538, 552 (6th Cir. 2004) (internal quotation marks omitted).
2
To the extent that Solether alludes to a violation of his fair trial rights, we decline to address
this issue, which is raised in a “perfunctory manner” on appeal. United States v. Stewart, 628 F.3d
246, 256 (6th Cir. 2010).
9
No. 11-3698
Solether v. Williams
Were the rule otherwise, “state courts would be compelled to consider sua sponte all possible federal
legal claims that a petitioner’s factual allegations might arguably support,” undermining “[t]he
principle of comity underlying the exhaustion doctrine.” Id. at 556 (italics omitted).
This court has noted four actions a [petitioner] can take which are significant to the
determination whether a claim has been ‘fairly presented’: (1) reliance upon federal
cases employing constitutional analysis; (2) reliance upon state cases employing
federal constitutional analysis; (3) phrasing the claim in terms of constitutional law
or in terms sufficiently particular to allege a denial of a specific constitutional right;
or (4) alleging facts well within the mainstream of constitutional law.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). “General allegations of the denial of rights
to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims that specific constitutional rights were
violated.” Id. (citation omitted).
To the extent that Solether asserts that the prosecution’s non-disclosure violated his right to
cross-examine Agent Brokamp, he did not present this claim to the Ohio courts. Indeed, he argued
in state court that he would have used the polygraph results to impeach Officer Gates, and he
“concede[d] that if Gates had not testified, the polygraph results would have been inadmissible.”
This claim involving Agent Brokamp, therefore, is unexhausted. As the state correctly argues, the
claim is now procedurally defaulted for purposes of federal habeas review because the Ohio courts
to which Solether would be required to exhaust the claim would find it procedurally barred, see
Williams v. Bagley, 380 F.3d 932, 966–67 (6th Cir. 2004) (holding that an unexhausted claim was
procedurally defaulted in habeas review because it would be procedurally barred under Ohio doctrine
of res judicata); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (“Under Ohio law, the failure
to raise on appeal a claim that appears on the face of the record constitutes a procedural default under
10
No. 11-3698
Solether v. Williams
the State’s doctrine of res judicata.”), and Solether has not made any showing to excuse the default,
see Coleman v. Thompson, 501 U.S. 722, 750 (1991).
To the extent that Solether claims that the prosecution violated his right to present a complete
defense by failing to disclosure the polygraph results, this claim forms the overarching constitutional
basis for his Brady claim and is thus properly before us. See California v. Trombetta, 467 U.S. 479,
485 (1984) (explaining that the right to a complete defense, which is derived from the Due Process
Clause of the Fourteenth Amendment, consists of “what might loosely be called the area of
constitutionally guaranteed access to evidence,” which includes Brady material (internal quotation
marks omitted)).
Solether also exhausted his claim that the prosecution’s non-disclosure violated his due
process and confrontation rights to use the polygraph results in questioning Officer Gates to establish
the police investigators’ state of mind, in order to attack the credibility of the investigation and
decision to pursue prosecution. In his state appellate brief, he partly relied on Criss v. Springfield
Township, 564 N.E.2d 440 (Ohio 1990), arguing that the polygraph results would have been
admissible at trial. He explained that the Ohio Supreme Court in Criss held that police officers
defending against a claim of malicious prosecution were allowed to present witness polygraph
results, which were obtained during the course of their criminal investigation, to show the officers’
state of mind in pursuing prosecution. His citation to and discussion of Criss—combined with his
reasoning that he would have questioned the officer about whether it is typical for charges to be
brought “in a ‘he said/she said’ posture when the sexual assault victim fails her polygraph test
regarding the alleged incident”—makes clear that he intended to question Officer Gates about the
11
No. 11-3698
Solether v. Williams
police investigators’ state of mind in pursuing his criminal case. Thus, Solether fairly presented this
claim to the Ohio courts.
III.
A.
In a federal habeas appeal, “we review de novo the district court’s conclusions on issues of
law and on mixed questions of law and fact and review its factual findings for clear error.”
Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc) (italics omitted). Under the
Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may grant habeas relief
only if the state court’s adjudication of a prisoner’s 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 proceeding.
28 U.S.C. § 2254(d).
Only the first provision is at issue here, under which the term “clearly established Federal law
. . . refers to the holdings, as opposed to the dicta, of th[e Supreme Court]’s decisions as of the time
of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000) (internal
quotation marks omitted). A state court’s decision is “contrary to” clearly established federal law
“if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.” Id. at 413. An “unreasonable application” occurs when “the
12
No. 11-3698
Solether v. Williams
state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id.Although the Ohio appellate court focused its analysis on Solether’s Brady claim in
adjudicating his second assignment of error (which encompassed both a Brady and confrontation
claim), it rejected that assignment of error in its entirety and there is no indication that the Ohio court
did not adjudicate both the Brady and confrontation claims on the merits. Thus, as Solether
concedes, we must apply AEDPA deference. See Harrington v. Richter, 562 U.S. ----, ----, 131 S.
Ct. 770, 784–85 (2011).
B.
The Supreme Court has held that “the suppression by the prosecution of evidence favorable
to an accused . . . 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.” Brady, 373 U.S. at 87. A Brady
violation occurs when: (1) the evidence at issue is “favorable to the accused, either because it is
exculpatory, or because it is impeaching”; (2) the state suppressed the evidence, “either willfully or
inadvertently”; and (3) “prejudice . . . ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Regardless whether the defendant requested the evidence, “favorable evidence is material, and
constitutional error results from its suppression by the [prosecution], if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (internal quotation marks omitted).
In evaluating Solether’s Brady claim, we start with the premise that the polygraph results
were inadmissible under Ohio law, even for the purpose of cross-examining Officer Gates. Solether
13
No. 11-3698
Solether v. Williams
argues that Ohio law permits the admission of polygraph results for purposes of impeaching someone
other than the polygraph examinee or to establish a witness’s state of mind. Although Solether
contends that the Ohio appellate court erred in ruling that the polygraph results were inadmissible
as a matter of state evidentiary law, the court’s state-law ruling “binds [this] court sitting in habeas
corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (citations omitted).
In Wood, the Supreme Court addressed a state prisoner’s habeas challenge to his murder
conviction. See 516 U.S. 1. The prisoner argued that the prosecution’s failure to disclose the
polygraph results of a key witness violated Brady. The Court held that because the polygraph results
were inadmissible under state law even for impeachment purposes absent the parties’ stipulation, it
was “not ‘evidence’ at all” for Brady purposes. Id. at 6. The Court reasoned that “[d]isclosure of
the polygraph results . . . could have had no direct effect on the outcome of trial, because [the
prisoner] could have made no mention of them either during argument or while questioning
witnesses.” Id. Moreover, the Court dismissed as “mere speculation” the reasoning of the court of
appeals that the result of the polygraph test was nonetheless subject to disclosure, despite its
inadmissability at trial, on the theory that the information “might have led [defense] counsel to
conduct additional discovery that might have led to some additional evidence that could have been
utilized.” Id. (citation omitted). As the Court emphasized, defense counsel acknowledged that the
polygraph results would not have affected the scope of his cross-examination of the witness, counsel
obtained no contradictions or admissions from the witness when permitted to refer to the polygraph
results during a federal evidentiary hearing, and, even without that witness’s testimony, the
prosecution’s case against the prisoner was overwhelming. Id. at 6–8.
14
No. 11-3698
Solether v. Williams
Given the Ohio court’s evidentiary ruling in Solether’s direct appeal, it follows under Wood
that the polygraph results would have had no direct effect on the trial’s outcome because defense
counsel could have made no mention of the results at trial. Although Wood directs that we cannot
“mere[ly] speculat[e]” as to the indirect consequences that polygraph results would have had for the
defense, 516 U.S. at 6, the Supreme Court did not foreclose the possibility that a habeas petitioner
might be able to establish that polygraph results would have materially affected the defense strategy
and trial’s outcome, even if those results could not have been introduced as evidence or mentioned
during cross-examination at trial. Here, however, Solether never argued in Ohio court that (and
failed to develop a record establishing how) the disclosure of the polygraph results would have led
to additional evidence or otherwise impacted defense strategy in a manner that would have materially
affected the trial’s outcome. We therefore cannot review this unexhausted and procedurally
defaulted aspect of Solether’s Brady claim. See Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012)
(“Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal
habeas review.”); Hicks, 377 F.3d at 552 (explaining that a claim must be raised under the “same
theory” in state court to be properly exhausted for habeas review purposes).
C.
Solether also asserts that a state evidentiary rule cannot be employed to defeat a defendant’s
constitutional rights, citing United States v. Scheffer, 523 U.S. 303 (1998). States have substantial
latitude to define rules for the exclusion of evidence and to apply those rules to criminal defendants,
but the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete
defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks omitted).
15
No. 11-3698
Solether v. Williams
“This right is abridged by evidence rules that infringe upon a weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are designed to serve.” Id. (internal quotation
marks and alteration omitted).
In Scheffer, the Supreme Court held that a per se rule against admission of polygraph results
in court-martial proceedings (Military Rule of Evidence 707) did not violate an accused’s right to
present a defense.3 See 523 U.S. at 305. The Supreme Court held that Rule 707 was neither arbitrary
nor capricious. The Court reasoned that “State and Federal Governments unquestionably have a
legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal
trial,” and, because there is “simply no consensus that polygraph evidence is reliable,” individual
jurisdictions “may reasonably reach differing conclusions as to whether polygraph evidence should
be admitted.” Id. at 309–12.
The Court then held that Rule 707 did not implicate any significant interest of the accused:
Here, the court members heard all the relevant details of the charged offense from the
perspective of the accused, and the Rule did not preclude him from introducing any
factual evidence. Rather, [the accused] was barred merely from introducing expert
opinion testimony to bolster his own credibility. Moreover, . . . Rule 707 did not
prohibit [the accused] from testifying on his own behalf; he freely exercised his
choice to convey his version of the facts to the court-martial members. We therefore
cannot conclude that [the accused]’s defense was significantly impaired by the
exclusion of polygraph evidence. Rule 707 is thus constitutional under our
precedents.
Id. at 316–17 (internal footnote omitted). The Court also rejected the notion that the polygraph
results were “factual evidence,” reasoning that the results were not facts about the alleged crime but
“merely the opinion of a witness with no knowledge about any of the facts surrounding the alleged
3
The military term “accused” is used rather than the civilian term “defendant.”
16
No. 11-3698
Solether v. Williams
crime, concerning whether the [accused] spoke truthfully or deceptively on another occasion.”4 Id.at 317 n.13.
Given Scheffer’s holding and the circumstances of Solether’s case, the Ohio appellate court’s
evidentiary ruling was not unreasonable under the Supreme Court’s precedents.5 Similar to the
accused in Scheffer, Solether was not precluded from introducing factual evidence or from testifying
in his behalf as he did at trial. His defense theory rested on the notion that the victim’s conduct in
the days following the alleged rape raised credibility questions, which he fully explored at trial. He
argues that he would have used the results to impeach Officer Gates’s testimony bolstering the
victim’s credibility, but the Ohio court found such use impermissible and no Supreme Court case
requires the admission of polygraph results for this purpose. Although the polygraph results arguably
would have aided defense counsel’s cross-examination of Officer Gates, defense counsel had the
opportunity to cross-examine Officer Gates, during which counsel established that the officer did
not have a degree in psychology or social work, the officer’s opinions were based solely on his
experiences as a police officer, his involvement in the investigation was limited, and Solether had
4
In a concurrence, Justice Kennedy, joined by three other justices, emphasized that “[g]iven
the ongoing debate about polygraphs, I agree the rule of exclusion is not so arbitrary or
disproportionate that it is unconstitutional.” Scheffer, 523 U.S. at 318 (Kennedy, J., concurring).
However, Justice Kennedy also “doubt[ed] . . . that the rule of per se exclusion is wise,” suggested
that “some later case might present a more compelling case for introduction of” polygraph results,
and recognized the “inconsistency” between government use of polygraphs and the argument that
such tests are inaccurate for evidentiary purposes. Id. (italics omitted).
5
Solether cites several non-binding or unpublished cases to support his argument that the
exclusion of polygraph results implicate a defendant’s constitutional rights. None of these cases,
however, reflect clearly established federal law relevant to issue at hand.
17
No. 11-3698
Solether v. Williams
denied that a sexual assault ever occurred. It also was established at trial that the victim provided
the officer with a false name for the alleged perpetrator.
Solether also contends that he would have used the polygraph results to question Officer
Gates in order to establish the police investigators’ state of mind. Officer Gates, however,
transferred the criminal investigation to BCI in its early stages; he did not administer the polygraph
test or have any connection to it. Any cross-examination of the officer about why the police
investigation continued despite the negative polygraph results likely would have been attenuated, and
there is no record establishing what testimony would have been obtained had defense counsel cross-
examined the officer using the polygraph results.
D.
The Confrontation Clause guarantees: “In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him[.]” U.S. Const. amend. VI. “[T]he
Confrontation Clause’s functional purpose [is to] ensur[e] a defendant an opportunity for
cross-examination.” Kentucky v. Stincer, 482 U.S. 730, 739 (1987). Given the Supreme Court’s
treatment of polygraph evidence, there is no basis for us to hold that the Ohio court’s implied
conclusion that Solether’s inability to use the results to cross-examine Gates did not violate the
Confrontation Clause was contrary to, or an unreasonable application of, any Supreme Court
precedent interpreting the Confrontation Clause.
IV.
For the foregoing reasons, we AFFIRM the district court’s judgment.
18