Clarence Mack v. MARGARET BRADSHAW, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0271p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CLARENCE MACK,
Petitioner-Appellant,
v.
MARGARET BRADSHAW, Warden,
Respondent-Appellee.
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No. 22-3201
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:04-cv-00829—Solomon Oliver Jr., District Judge.
Argued: November 17, 2023
Decided and Filed: December 19, 2023
Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland,
Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF
TIMOTHY F. SWEENEY, Cleveland, Ohio, John B. Gibbons, Cleveland, Ohio, for Appellant.
Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
SUTTON, Chief Judge. An Ohio jury convicted Clarence Mack of aggravated murder
arising from a 1991 carjacking. It recommended the death penalty. The judge agreed and
imposed a capital sentence. After years of litigation in state courts, Mack petitioned for a writ of
>

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habeas corpus in federal court, alleging several claims relevant to today’s dispute: that
prosecutors suppressed material evidence, that they introduced false testimony, that his trial
counsel was ineffective, and that the state court denied him a fair trial when it denied the
admission of certain testimony. The district court denied his petition. We affirm.
I.
On January 21, 1991, Peter Sanelli was shot and killed during a carjacking in downtown
Cleveland on Prospect Avenue. He was shot three times at close range on the left side of his
body. The entrance wound from one bullet indicated it went through another object, such as a
car window, before striking him. Officers found three nine-millimeter shell casings a few feet
from the curb and a fourth casing on the sidewalk. A copper-jacketed pellet was later found in
the right sleeve of Sanelli’s undershirt. Around an hour after the murder, police found Sanelli’s
car. Someone had crashed it into a utility pole, and the front driver’s side and back passenger’s
side windows were broken. The rear passenger door had an apparent bullet indentation, and the
front passenger seat had a bullet hole in the back. See State v. Mack, 653 N.E.2d 329, 331 (Ohio
1995).
Two days later, Timothy Willis contacted the police to tell them about the murder. See
id. He provided a written statement about what happened. On the day of the murder, according
to Willis, Clarence Mack, Thomas Sowell, and Reginald Germany drove to Willis’s home. The
trio was headed downtown to steal a car, and Sowell asked Willis for a gun. Willis did not have
a gun, and the three men left. Later that evening, while walking to the recreation center, Willis
saw Sowell and Mack again. They were driving a different car from the one used earlier in the
evening, and Willis noticed that the front driver’s side and back passenger’s side windows were
broken. Willis asked where they got the car, and Sowell said from Prospect Avenue downtown.
Around that time, Willis spoke with Mack after seeing a news story about the murder. While
laughing, Mack told Willis that he saw Sowell crash the car into a pole and injure his nose. Id. at
331–32.
Based on Willis’s report, the police arrested Mack, Sowell, and Germany on January 23,
1991. Officers found a nine-millimeter gun concealed under Mack’s coat. Mack admitted he

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owned the gun but gave inconsistent accounts of how he got it. At first, he claimed he bought
the gun the day after the murder from a stranger. Ballistics tests later showed that the three shell
casings from the scene and the pellet from Sanelli’s shoulder came from Mack’s gun. Upon
learning this, Mack claimed that he bought the gun before the murder but loaned the gun to a
stranger the day before the murder and got it back the day after. Id. at 332.
The State charged Mack with aggravated murder and aggravated robbery. The
aggravated murder count carried a death-penalty specification and alleged that Mack was the
“principal offender” in the murder based on the ballistics tests and his possession of the murder
weapon. R.170 at 6; Ohio Rev. Code Ann. § 2929.04(A)(7). At trial, the State presented
forensic evidence showing that two people fired shots from opposite sides of the vehicle (the
other shots came from Sowell’s weapon), that the shots broke the windows, and that the fatal
shots came from Mack’s gun. Willis testified on behalf of the State. His testimony remained
largely consistent with his prior written statement, which implicated Mack, Sowell, and
Germany. But he added a statement from Mack. In response to Sowell’s explanation that he
shot Sanelli for refusing to let them steal the car, Willis testified that Mack responded, “I shot
because you shot.” R.150-3 at 75. Mack did not testify at the trial, but the State admitted his
various statements to the police about how he obtained the murder weapon. See State v. Mack,
No. 62366, 1993 WL 497052, at *5–6 (Ohio Ct. App. Dec. 2, 1993). As part of Mack’s alibi
defense, a defense witness testified that Mack purchased the gun that killed Sanelli from Willis
the day after the murder. Mack, 653 N.E.2d at 334.
The jury convicted Mack and recommended the death penalty, finding Mack was the
“principal offender” in the murder. See Ohio Rev. Code Ann. § 2929.04(A)(7). The trial court
agreed and sentenced him to death. See Mack, 653 N.E.2d at 334. As for Sowell, a jury
convicted him of aggravated robbery but found him not guilty of aggravated murder. See State v.
Sowell, No. 62329, 1993 WL 120265, at *2 (Ohio Ct. App. Apr. 15, 1993).
Mack appealed. The Ohio Court of Appeals for the Eighth District affirmed his
conviction and sentence. Mack, 1993 WL 497052, at *1. The Ohio Supreme Court likewise
affirmed, Mack, 653 N.E.2d at 334, and the United States Supreme Court denied his petition for

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a writ of certiorari. Mack filed various post-conviction petitions and appeals over the next
eleven years, all to no effect.
In 2004, Mack filed a petition for a writ of habeas corpus in federal court. The district
court allowed discovery and conducted two evidentiary hearings on Mack’s claims. The district
court then stayed the case to permit Mack to exhaust some of the new claims, including the
Brady claim at issue today, in state court. The Ohio trial court held two further evidentiary
hearings but ultimately denied Mack’s petition. That ruling was upheld on appeal and the Ohio
Supreme Court declined jurisdiction. Mack returned to federal court in 2018. See 28 U.S.C.
§ 2254. In an opinion stretching nearly two hundred and fifty pages, the court considered and
rejected each of his claims. This appeal followed.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs our
review. When a state court adjudicates the merits of a criminal case, federal courts may not
grant a writ of habeas corpus unless the state court’s decision (1) “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
That is a daunting standard. State courts do not act “contrary to” federal law unless they directly
contradict a Supreme Court decision on the same point or reach an opposite outcome “on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Put another
way, state courts do not act “unreasonabl[y]” merely by committing an error in construing
federal law. See Harrington v. Richter, 562 U.S. 86, 101 (2011). The error must be so egregious
that all “fairminded jurists” would have seen it. Id. (quotation omitted). A state court’s fact-
finding likewise is not unreasonable even if a federal court would make a different finding in the
first instance. Wood v. Allen, 558 U.S. 290, 301 (2010). The applicant instead must present
“clear and convincing evidence” of a state court’s error. Burt v. Titlow, 571 U.S. 12, 18 (2013)
(quoting 28 U.S.C. § 2254(e)(1)). The district court denied Mack’s petition, and we review that
decision with fresh eyes. Foust v. Houk, 655 F.3d 524, 533 (6th Cir. 2011).

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In conducting this deferential review of the state court’s decision, we look to the last
reasoned state court decision that adjudicated a claim on the merits. And we limit our analysis to
the record and law as they existed at the time of that state court decision—here 2018. Greene v.
Fisher, 565 U.S. 34, 38–39, 41 (2011).
III.
Mack claims that the prosecutor unlawfully withheld eight pieces of evidence in violation
of the Fourteenth Amendment’s Due Process Clause. See Brady v. Maryland, 373 U.S. 83
(1963). To succeed on a Brady claim, Mack must establish that (1) the prosecutor suppressed
evidence, (2) the evidence is “favorable” to the defense, and (3) the evidence is “material” to the
case. Id. at 87. As to the materiality requirement, Mack must show that, if the prosecutor had
disclosed the suppressed evidence, “there is a reasonable probability” that the defendant would
have been acquitted. Strickler v. Greene, 527 U.S. 263, 281 (1999).
All agree that the state courts resolved this claim on the merits and that the Ohio Court of
Appeals’ 2018 ruling represents the last reasoned decision on it. See State v. Mack, No. 101261,
2018 WL 565704 (Ohio Ct. App. Jan. 25, 2018) (opinion on reconsideration). In rejecting the
Brady claim, the state court held that one piece of evidence was disclosed, one did not exist, two
were not favorable, and the remaining four were immaterial. Id. at *9–14. We look at each
piece of evidence in turn.
Disclosed evidence. Begin with the evidence that the prosecutor, as the Ohio courts
ruled, in fact provided to the defense—the evidence in Willis’s written statement. Recall that,
two days after the murder, Willis gave the police a written statement about Mack’s and Sowell’s
involvement. In the statement, he described how Sowell, Mack, and another person came to his
home on the day of the murder to ask for a gun so they could steal a car. He later saw Mack and
Sowell driving a silver station wagon with a broken driver’s side window and red and white
plates. According to Willis’s statement, Mack asked Sowell why he shot someone, and Sowell
said: “[I]f he hadn’t resisted he wouldn’t have got shot.” R.154-9 at 60.
The state court found that the prosecutor disclosed the evidence in Willis’s written
statement. Mack, 2018 WL 565704, at *10. That conclusion does not unreasonably assess the

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facts or federal law. During discovery, the prosecutor disclosed that Willis made this statement
and summarized its contents for Mack’s attorney. The trial transcript shows that, while cross-
examining Willis at trial, Mack’s attorney asked for and received a copy of the statement. The
prosecutor and Mack’s attorney confirmed this in later testimony. Mack, in short, had a
summary of the statement before trial and the chance to review the statement during trial. No
suppression of evidence occurred. See United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002).
Non-existent evidence. Turn to the evidence that the state appellate court reasoned did
not exist—a plea agreement between Willis and the prosecutor. The state court rejected Mack’s
claim that the prosecutor failed to disclose a plea deal with Willis to swap testimony for
favorable treatment in an unrelated criminal case against Willis. Mack, 2018 WL 565704, at
*12–13. Willis denied the existence of any deal when Mack’s attorney cross-examined him.
The prosecutor testified that he did not enter into any agreement with Willis, and Willis’s
attorney denied any plea deal. On this record, the state court found that there was no deal and
hence nothing to disclose.
Mack insists that there must have been at least a tacit deal based on various pieces of
circumstantial evidence. In a meeting between Willis and the prosecutor before trial, he notes,
the prosecutor made a notation about Willis’s own upcoming trial for unrelated charges, jotting
down the names of the judge and Willis’s defense attorney. Then, he adds, the prosecutor asked
the State to continue investigating Willis’s case, and eventually the State dismissed the charges
against Willis. Last of all, he notes, an experienced detective, years after the trial, said that there
“appeared to be” a deal based on “notes he read.” R.154-11 at 66.
Whether taken together or apart, these pieces of evidence do not show that the state
courts unreasonably handled this part of the Brady claim. The prosecutor asked for further
investigation because Willis received threats shortly before testifying, and the prosecutor
suspected that Willis had been set up for the unrelated criminal charges. The State dismissed the
case against Willis, the state court found, after the victim died for unrelated reasons, not because
of an undisclosed deal. See Mack, 2018 WL 565704, at *13. The detective’s highly speculative
testimony does little more. Those in the best position to know about any deal—Willis, his
attorney, and the prosecutor—denied any agreement.

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Both before and after any alleged plea deal, there were valid explanations for what
happened. Long before the robbery that led to the criminal charges against Willis, he had
already identified Mack and Sowell as involved in the carjacking. That statement did not, and
could not, have had anything to do with a plea deal. And by the time the State dismissed the
charges against Willis, there was a valid, independent reason for that decision: the death of the
victim, on whose testimony the case depended. Consistent with the district court’s ruling in this
case, Mack has not shown by clear and convincing evidence that the state court erred in finding
that no plea agreement existed. In any event, Mack had the chance to impugn Willis’s motives at
trial: Mack’s attorney questioned Willis about a potential reward for his testimony and then
claimed Willis himself was involved in the murder. The jury considered Mack’s attempts to
tarnish Willis’s motives but convicted him anyway.
Non-favorable evidence. The state court held that two police reports about Sanelli’s car
did not favor Mack, and the prosecutor as a result did not have a duty to disclose them. Mack,
2018 WL 565704, at *11–12. The first report indicates a person resembling Sowell crashed
Sanelli’s car into a utility pole. The Ohio Court of Appeals found this unhelpful to Mack’s
defense. If anything, it concluded, the evidence buttressed Willis’s credibility because he
testified that Sowell crashed the car and hurt his nose. See id. at *11–12.
Mack responds that the report says that one person crashed and exited the car (Sowell),
while Willis testified that he saw Mack and Sowell in the car at the recreation center. That detail
does not impeach Willis. He never claimed both men were in the car when it crashed, only when
they arrived at the recreation center. Nearly five months before trial in any event, the prosecutor
disclosed the names of the witnesses to the crash. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998) (finding no Brady violation when a defendant “knew or should have known the essential
facts permitting [a defendant] to take advantage of any exculpatory information”) (quotation
omitted). This first report was not favorable, and in any event the prosecutor did not suppress it.
The second report recounts how two people pulled up to the abandoned car (after it struck
the utility pole), and one of the pair entered the car and reversed it a few feet. The two
individuals then left the scene after one of them worried that the car might be stolen. This report
lacks any exculpatory or impeachment value. See Mack, 2018 WL 565704, at *11–12. Whether

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someone moved Sanelli’s car a few feet after Sowell crashed it does not say anything one way or
the other about Mack’s involvement in the murder. Nor does it conflict with any of Willis’s
testimony.
Mack responds that Willis told the Sanelli family that Sowell left a nine-millimeter clip in
the car, and the police did not find a clip when they recovered the car. By Mack’s lights, this
shows that the person who moved the car must have taken the clip and thus was the murderer.
That is possible, to be sure, as indeed many things are possible. But the theory requires far too
many inferential leaps, none of them otherwise corroborated by the record, to create a cognizable
Brady claim, much less to show that the state courts unreasonably rejected this one.
Materiality. The state court ruled that the remaining four pieces of evidence—the Sanelli
family’s notes, two police reports, and the prosecutor’s notes—did not prejudice Mack. Mack,
2018 WL 565704, at *14. Taken together or examined singly, they did not create a “reasonable
probability” of a different outcome. Strickler, 527 U.S. at 296. That’s because, as the state court
found, the prosecution presented strong evidence to support Mack’s conviction and sentence.
Mack was arrested while in possession of the gun that killed Peter Sanelli. See Mack, 1993 WL
497052, at *4. Forensic tests confirmed what no one denies: that this gun fired the fatal shots.
While Mack tried to give various statements to the police about how he obtained the gun, all
introduced at trial, a jury could fairly find that none of them made sense. The jury heard two
inconsistent explanations from Mack (that he bought it before the murder from a stranger or that
he bought it after the murder from a different stranger) and still another explanation from a trial
witness (that he bought the gun from a known acquaintance, Willis). See Mack, 653 N.E.2d at
332, 334. By contrast, Willis consistently implicated Mack in the murder from his first written
statement up through his trial testimony. See Mack, 1993 WL 497052, at *5. Other evidence
corroborated Willis’s testimony: He provided an accurate description of Sanelli’s car and
correctly identified it for police; he knew that the firearm used in the murder was a nine-
millimeter handgun; he said that Sowell had a pair of binoculars after the murder, and later
testimony showed that Sanelli always kept a pair of binoculars in his car; and he testified that
Sowell crashed the car into a pole, a point confirmed by police and eyewitnesses. See id. at *2,
4–6; Mack, 653 N.E.2d at 331–32.

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All of this amounts to a reasonable application of the Brady prejudice test by the state
courts, as an assessment of each of the four pieces of evidence confirms. Start with the notes
taken by the Sanelli family during a conversation with Willis. Two days after the murder, Willis
contacted the Sanelli family at their glass business to provide information about Peter Sanelli’s
murder. The family took brief notes of the conversation, and no one shared them with Mack.
Mack, 2018 WL 565704, at *9. The notes mention Sowell by name and provide a description of
him, but the notes do not name Mack. They reference a “man” (singular) that Willis heard
talking (presumably about the murder) at the recreation center. R.154-9 at 50. After that, the
notes indicate there “were 2 guys” and that one or both of them “had [a] 9 mm gun.” Id.
Mack maintains that the state courts overlooked the notes’ “game-changing significance.”
Appellant’s Br. 57. As he sees it, the notes show that Willis changed his story over time (the
notes reference a “man” at the recreation center, but Willis said Mack and Sowell were there)
and that Willis got certain facts wrong (the notes say Sowell wore a Lakers or Raiders jacket,
when Sowell wore a Bulls jacket). R.154-9 at 50. Through it all, Mack maintains that the notes
support his alibi defense because they “identify someone else as the shooter.” Appellant’s Br.
57.
But this overstates what the Sanelli family’s notes say. The notes do not identify Sowell
as the only shooter. In truth, the notes do not identify anyone as the shooter. They name Sowell
and provide a description of him, but Mack incorrectly infers that this points the finger at Sowell
alone. The notes indicate that at least two people were involved. A member of the Sanelli
family later confirmed that Willis “never” said “only one person [was] involved.” R.151-9 at
100. In addition, the notes do not contradict Willis’s testimony that he heard two men at the
recreation center talking about Sanelli’s murder. After they state that Willis heard a “man”
talking, they say that there “were 2 guys.” R.154-9 at 50. Superficial differences between the
notes and Willis’s later statements also do not undercut the State’s case. That Sowell
purportedly wore a Raiders or Lakers jacket—when in fact he wore a Bulls jacket—modestly
undercuts Willis’s statement (he got the team wrong) and partially confirms it (he correctly saw
him in a professional sports jacket). Of course, this trial did not concern Sowell’s offense; it
concerned Mack’s offense, making the modest mistake one about a tangential issue. Cf. Beuke v.

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Houk, 537 F.3d 618, 635 (6th Cir. 2008) (rejecting Brady claim because any inconsistencies
went to “tangential issues,” not “important” ones like “guilt”).
Turn to the police report summarizing Willis’s written statement and a phone call Willis
made to police on the day of the murder. In the report, Willis says that Sowell “shot” Sanelli but
that Mack and another accomplice were also involved. R.154-9 at 52. The report adds that
Willis gave his written statement after viewing Sanelli’s car. Mack maintains that this report
points the finger at Sowell and makes suspect Willis’s identification of the car.
But this report largely duplicates the evidence at trial, making it immaterial. Recall that
Willis’s written statement also names Sowell as a shooter and says Mack was involved. The
written statement, moreover, includes the detail that Willis identified Sanelli’s car before giving
his statement to police. The existing evidence, in other words, provides the same exculpatory
and impeachment value as the suppressed report. See Bales v. Bell, 788 F.3d 568, 574 (6th Cir.
2015) (cumulative evidence is not material). Keep in mind, moreover, that Sowell was a shooter,
as the facts at trial confirmed. He just did not fire the fatal shots.
Turn to the police report stating that Willis visited the Sanelli family a second time to tell
them that he contacted the police. Mack claims that this shows bias and that Willis returned to
increase his chances of getting a reward. See Mack, 2018 WL 565704, at *11. The report simply
does not support the claim. It says only that Willis told the family that he contacted the police
and then left.
Turn to the prosecutor’s notes about a June 1991 meeting with Willis. The notes include
information about Willis’s upcoming trial for an unrelated robbery. Mack claims that, at this
meeting, Willis reached a deal with the prosecutor to incriminate Mack in exchange for help with
Willis’s criminal charges—and specifically changed his story to add Mack’s inculpatory
statement: “I shot because you shot.” Appellant’s Br. 30. The prosecutor’s notes do not contain
this statement. The prosecutor testified years later that he did not remember when Mack first
relayed it but “imagine[d]” he first heard it at this meeting. R.101 at 47. Mack’s trial counsel
testified that the first time he heard this incriminating statement was during Willis’s testimony at
trial.

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As shown, however, the state court reasonably found that a deal did not exist. The
statement “I shot because you shot” came out during trial anyway. And Mack had a full
opportunity to cross-examine Willis on this point and probe the consistency of his testimony with
prior statements. See Joseph v. Coyle, 469 F.3d 441, 472 (6th Cir. 2006) (delayed disclosure
does not violate Brady absent prejudice). Confirming the absence of prejudice, Mack never
asked for a continuance to develop his cross-examination further. See id. (decision not to seek a
continuance undercuts claim of prejudice).
These four pieces of evidence at best weakly support Mack’s defense. They largely
duplicate the evidence available at trial anyway. And they fail to undercut the most
incriminating evidence—that Mack was at the scene of the crime with Sowell, he was found with
the murder weapon, forensic evidence made clear it was the murder weapon, and Mack offered
inconsistent and unsatisfying explanations for why he had the weapon. On this record, the
district court correctly ruled that the state court reasonably determined that this evidence did not
generate “a reasonable probability” of a different result at trial. Strickler, 527 U.S. at 280.
Mack’s other arguments with respect to this evidence also come up short. Contrary to his
claim, it is not true that the state court made individual, rather than cumulative, determinations of
materiality. See Kyles v. Whitley, 514 U.S. 419, 436–37 (1995); Bies v. Sheldon, 775 F.3d 386,
399 (6th Cir. 2014). The state court correctly addressed the significance of each piece of
evidence individually. Mack, 2018 WL 565704, at *8–14. Only after doing that did it
“[c]onsider[] this evidence as a whole.” Id. at *14.
Nor is it the case that the state court mistakenly applied a sufficiency-of-the-evidence
standard by discounting suppressed evidence in light of the evidence introduced at trial. True,
the Brady materiality inquiry “is not a sufficiency of the evidence test.” Kyles, 514 U.S. at 434.
True also, Mack need not show that the alleged Brady violations make the evidence as a whole
insufficient to sustain a conviction. Id. What Mack must show instead is that the suppressed
evidence could “undermine confidence in the verdict.” Id. at 435. That’s just what the state
court did, however. It never held that the suppressed evidence was immaterial merely because
there was still enough evidence to convict Mack. It instead rightly considered the effect of any
undisclosed evidence in the light cast by the totality of the evidence introduced at trial. See

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Mack, 2018 WL 565704, at *9–14; see also Strickler, 527 U.S. at 294 (undisclosed evidence did
not create a reasonable probability of a different result because of other “strong” evidence for
conviction); McNeill v. Bagley, 10 F.4th 588, 604 (6th Cir. 2021).
Mack separately claims that the state court failed to consider the effect of the suppressed
evidence on his sentence, as opposed to his conviction, and that AEDPA deference as a result
does not apply to this claim. It is not obvious that Mack has “very clearly” shown that the state
court overlooked the effect of any suppressed evidence on his sentence, Rogers v. Mays, 69 F.4th
381, 388 (6th Cir. 2023) (en banc) (quotation omitted), or that fresh review applies even if it did
overlook this point, see Richter, 562 U.S. at 98 (applying deference “when a ‘claim,’ not a
component of one, has been adjudicated”); cf. Hodges v. Colson, 727 F.3d 517, 537 (6th Cir.
2013). But the point does not make a difference. Either way, Mack has not shown a “reasonable
probability” of a different sentence.
None of the suppressed evidence contradicts Willis’s testimony or the forensic evidence.
And once the jury found him guilty, the forensic evidence in this case takes on more significance
in determining the appropriate sentence. Strickler, 527 U.S. at 293–94 (finding no prejudice in
capital case because of “considerable forensic and other physical evidence linking petitioner to
the crime”). The suppressed evidence does not provide any insight into the configuration of the
murder scene. Willis placed Sowell and Mack at the scene and said both of them shot at Sanelli,
but he never claimed any knowledge about who shot from which side of the vehicle. The best
evidence on this score comes from the ballistics reports indicating Mack’s gun fired the shots
that killed Sanelli. Mack’s possession of the murder weapon—and his inability to offer a
consistent and innocent explanation why—strongly suggests that he fired the fatal shots. The
suppressed evidence does not weaken that evidence, undermining any claim of prejudice on this
score.
IV.
False testimony. Mack separately claims that the prosecution introduced false testimony
at trial, which violates the Fourteenth Amendment. See Napue v. Illinois, 360 U.S. 264 (1959).
To succeed on this claim, Mack had to show that the prosecutor knowingly used a false, material

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statement to obtain the conviction. Id. at 269; see McNeill, 10 F.4th at 604. A false statement is
“material” when it could have affected the jury’s decision “in any reasonable likelihood.”
Napue, 360 U.S. at 271; see McNeill, 10 F.4th at 604.
Mack argues that Willis perjured himself when he testified that (1) he did not have a plea
deal with the prosecutor; (2) he saw Sowell and Mack while walking to an event at the local
recreation center, even though it was a holiday and the recreation center was apparently closed;
and (3) he never owned a gun. In resolving this claim, the Ohio Court of Appeals concluded that
Mack failed to provide evidence that the prosecutor knew Willis perjured himself. Mack, 2018
WL 565704, at *13. That ruling reasonably applied federal law, as the district court concluded.
Mack does not offer any cognizable evidence of a plea deal, as shown above. As for the
other claims, Mack has not presented sufficient evidence to question that ruling—either because
the prosecutor knew Willis was lying about seeing Mack and Sowell at the recreation center or
about owning a gun. Id. Mack has not provided any evidence that the prosecutor knew Willis
lied about seeing Mack and Sowell at the recreation center, only some evidence (gathered years
later) that the center was closed that day. Willis likewise gives no evidence about what the
prosecutor knew regarding Willis’s ownership of a firearm, only insinuations that Willis did own
a gun because of his criminal background. That does not suffice to overcome AEDPA’s stiff
standard for reviewing state court criminal convictions.
V.
Ineffective assistance of counsel. Mack argues that his trial counsel was constitutionally
ineffective in the guilt and penalty phases under the Sixth and Fourteenth Amendments because
he failed to argue that Mack was innocent even under the State’s theory. The turning point of the
argument is that Willis testified that he saw Mack sitting in the passenger seat of Sanelli’s car at
the recreation center and yet forensic evidence shows the killer shot at the driver’s side of the
car. According to Mack, this shows he could not be the principal offender because, even if he
was there, he fired at the passenger’s side. See Ohio Rev. Code Ann. § 2929.04(A)(7); State v.
Taylor, 612 N.E.2d 316, 325 (Ohio 1993) (stating that the “principal offender” under this statute
means “the actual killer”).

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The Ohio Court of Appeals rejected this argument on forfeiture and claim-preclusion
grounds. Mack, 2018 WL 565704, at *6. It noted that Mack raised ineffective-assistance claims
in the first state court appeal, then again in his first postconviction relief petition, and then again
in a motion to reopen his direct appeal. Id. Yet through it all, this particular theory, clearly
“known at the time” of those appeals, was never raised and “should have been advanced” in
those prior proceedings. Id. As an independent and adequate state-law ground, this procedural
ruling premised on state law typically prevents federal review. Coleman v. Thompson, 501 U.S.
722, 729–30 (1991).
Mack claims that his actual innocence of the charged crime excuses the procedural
default. See Schlup v. Delo, 513 U.S. 298, 316 (1995). But this contention requires “evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial” without
addressing the alleged constitutional error. Id. On that demanding standard, Mack must show
“by clear and convincing evidence that, but for a constitutional error, no reasonable juror would
have found [him] eligible for the death penalty.” Sawyer v. Whitley, 505 U.S. 333, 336 (1992);
see Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014). Mack does not clear that hurdle. The
key problem is this: Just because Willis saw Mack sitting in the passenger seat soon after the
murder, that does not mean Mack necessarily shot at the passenger’s side of the car. He could
very well have fired at the driver’s side but sat on the passenger’s side. His seat selection says
nothing about where he stood (or sat) while shooting.
A similar problem encompasses Mack’s reliance on Willis’s testimony that Sowell
brushed glass out of his shirt after exiting Sanelli’s car. Both shooters, the evidence suggests,
fired through glass windows. Mack, 653 N.E.2d at 331.
Switching gears, Mack claims that the ineffectiveness of his post-conviction trial counsel
excuses the default. That theory also fails. Federal courts may hear otherwise defaulted
ineffective-assistance claims only under certain conditions. Among other things, a petitioner
must show that state law prohibits raising ineffective-assistance claims on direct appeal or that it
makes it “highly unlikely” for a petitioner to have a “meaningful opportunity” to do so. See
Trevino v. Thaler, 569 U.S. 413, 429 (2013); Martinez v. Ryan, 566 U.S. 1, 13–15 (2012);
Rogers v. Mays, 69 F.4th 381, 395 (6th Cir. 2023) (en banc). Ohio law requires that defendants

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raise on direct appeal any ineffective-assistance claims that do not depend on evidence outside
the record. Mammone v. Jenkins, 49 F.4th 1026, 1048 (6th Cir. 2022). Mack’s argument relies
on evidence in the record, allowing us to excuse his procedural default only if he lacked a
“meaningful opportunity” to raise it on direct appeal. Id.
Mack had a meaningful opportunity to raise this issue on direct appeal. In fact, he did
raise ineffective-assistance claims on direct appeal. See Mack, 2018 WL 565704, at *6. He
argued that his trial counsel was ineffective for failing to object to a jury instruction and failing
to call witnesses. Id. In his postconviction petition, he then raised new versions of the claim:
Counsel was ineffective for failing to “obtain independent ballistics analysis,” failing to properly
cross-examine Willis, and failing to call certain witnesses. Id. He raised more ineffective-
assistance claims in his motion to reopen his direct appeal. Id.; see State v. Mack, No. 626366,
2003 WL 21185786 (Ohio Ct. App. May 19, 2003).
Mack tries to head off this conclusion by pointing out that he had the same counsel at
trial and on his direct appeal, and thus his first opportunity to review this claim was during post-
conviction review. True, we have suggested before that identical counsel at trial and on appeal
could matter for this analysis. See, e.g., Whiting v. Burt, 395 F.3d 602, 621 (6th Cir. 2005). But
Mack’s argument fails to account for the reality that he raised ineffective assistance claims in his
direct appeal, even though he had the same counsel at trial. If he could have raised ineffective-
assistance arguments then, he could have raised this variation on those themes at the same time
as well. Mack had a full opportunity to raise this claim. He failed to do so, and that failure bars
further review.
VI.
Prohibited testimony. Mack argues that the trial court violated his rights to due process, a
fair trial, and to present a defense under the Sixth and Fourteenth Amendments when it refused
to allow Curtis Mack and Carole Mancino to testify. Curtis Mack, Mack’s cousin and the
brother of another co-defendant in the Sanelli murder, would have testified that Willis admitted
to killing Sanelli. Carole Mancino, one of Mack’s trial attorneys, would have testified that,
during an interview with Willis at the jail, Willis said he “can’t believe” Mack would kill

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someone, that he didn’t see Mack on the day of the murder, that he didn’t call the police, and that
he could “make [his] statements fit into any story anyone wants to hear.” R.150-4 at 122–25.
The Ohio Supreme Court rejected these arguments in 1995. It found that, under the Ohio
rules of evidence, all but one of the statements lacked the proper foundation because Willis was
not given the chance to explain or deny them. Mack, 653 N.E.2d at 339. The sole exception was
Carole Mancino’s claim that Willis told her he never called the police. Id. But while the trial
court should have allowed that testimony, the Ohio Supreme Court found no prejudice resulted
because of “an abundance of other credible inculpatory evidence.” Id.
Federal habeas review does not grant us the power to review the Ohio Supreme Court’s
rulings on matters of state evidence law. Estelle v. McGuire, 502 U.S. 62, 72 (1991). We may
consider only whether “the application of these evidentiary rules rendered [Mack’s] trial
fundamentally unfair,” which is no mean feat. Chambers v. Mississippi, 410 U.S. 284, 289–90
(1973); see Cupp v. Naughten, 414 U.S. 141, 147 (1973). We ask only whether the evidentiary
rulings denied Mack “a fair opportunity to defend against the State’s accusations” under the Due
Process Clause of the Fourteenth Amendment. Chambers, 410 U.S. at 294. Due process “does
not compel” States to allow “evidence that is unreliable” or of “questionable exculpatory value.”
Turpin v. Kassulke, 26 F.3d 1392, 1398 (6th Cir. 1994); see Chambers, 410 U.S. at 300–01. The
parties dispute the appropriate standard of review. Whether deferential or fresh, however, the
result is the same. The exclusion of this testimony did not make Mack’s trial fundamentally
unfair.
Start with the testimony of Mack’s cousin that Willis admitted to killing Sanelli. This
testimony could have helped Mack’s defense, to be sure. But it also came from Mack’s cousin
and the brother of another co-defendant, a set of family relationships that weakens its value.
Adding to this problem, the testimony was not corroborated, including by Mack in his statements
to the police soon after the murder. Cf. Turpin, 26 F.3d at 1397–98 (state court did not violate
the Constitution by excluding weakly corroborated statements).
Had Mack asked the appropriate questions, things might have turned out differently. The
Ohio Supreme Court ruled the testimony inadmissible only because Willis never received an

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opportunity to explain or deny this supposed confession. Mack, 652 N.E.2d at 339. With proper
foundation, the testimony would no longer present the same problems and may well have been
permitted at trial. Ensuring Willis had a chance to respond to this statement—and conditioning
the admission of Mack’s cousin’s statement on that opportunity—reflects “a rational and
proportional means of advancing the legitimate interest in barring unreliable evidence.” United
States v. Scheffer, 523 U.S. 303, 312 (1998); see Chambers, 410 U.S. at 295.
Mack had other opportunities, moreover, to challenge Willis’s credibility and to suggest
his involvement. Mack’s attorney subjected Willis to cross-examination on potential ulterior
motives, then argued before the jury that Willis committed the murder. True, a jury could also
sift these matters and determine the cousin’s credibility for itself. But the question is not what
we would have done had we been the state trial judge. It is whether the Constitution requires the
admission of a cousin’s (and a brother’s) uncorroborated testimony because, without it, the trial
could not be fair under the Sixth and Fourteenth Amendments. It does not in this instance.
Turpin, 26 F.3d at 1398 (“[T]he issue before us is not whether it would have been wiser” to “let a
jury determine the exculpatory value and reliability” of testimony, only “whether the trial judge’s
failure to do so violated the minimal requirements of the Fourteenth Amendment’s Due Process
Clause.”).
Much the same is true of the testimony of Carole Mancino, one of Mack’s attorneys. She
interviewed Willis while he was incarcerated in the same jail as Sowell, Mack, and a third co-
defendant. When cross-examined about his conversation with Carole Mancino, Willis
consistently noted his reluctance to discuss the case: “I’m in jail, these guys in jail, I ain’t going
to do no talking in jail. People wind up dead in jail[.]” R.150-3 at 147. That context for their
conversation “bears on its credibility.” Jackson v. Denno, 378 U.S. 368, 386 n.13 (1964). And
while the trial court did not allow Carole Mancino’s testimony, it did allow Mack’s attorney to
cross-examine Willis about this conversation. Cf. Chambers, 410 U.S. at 294. The trial court’s
decision to disallow this testimony did not violate due process.

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VII.
The jury convicted Mack of aggravated robbery in 1991—nearly thirty years after the last
execution in Ohio. The conviction came five years before the State required all juries to be
instructed that a life sentence prohibits parole, State v. Raglin, 699 N.E.2d 482, 489 (Ohio 1998),
a state law development linked with a significant reduction in the imposition of capital sentences,
see Steven J. Mulroy, Avoiding “Death by Default”: Does the Constitution Require a “Life
Without Parole” Alternative to the Death Penalty?, 79 Tul. L. Rev. 401, 441–43 (2004). Since
then, we have not seen a lot of capital sentences for aggravated robbery. Whether Mack’s case
should be reduced to life without parole through the clemency process is not for us to decide.
But the possibility is worth acknowledging.
We affirm.

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