Full opinion text
DECISION AND ENTRY SUSTAINING RESPONDENT’S OBJECTIONS (DOCS. #321 AND #332) TO INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOCS. #320 AND #329); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PETITIONER’S OBJECTIONS (DOCS. #326 AND #331) TO INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOCS. # 320 AND # 329); INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS (DOCS. #320 AND #329) ADOPTED IN PART AND REJECTED IN PART; WRIT OF HA-BEAS CORPUS CONDITIONALLY GRANTED; CERTIFICATE OF PROBABLE CAUSE ISSUED; LEAVE TO APPEAL IN FORMA PAUPERIS GRANTED; JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER AND AGAINST RESPONDENT ON THIRD CLAIM, IN PART, AND IN FAVOR OF RESPONDENT AND AGAINST PETITIONER ON ALL OTHER CLAIMS; TERMINATION ENTRY RICE, Chief Judge. The Petitioner William G. Zuern (“Petitioner” or “Zuern”) was convicted of committing the offense of aggravated murder and sentenced to death by the Ohio courts. He has initiated this action, challenging the constitutionality of his conviction and the sentence imposed upon him, and seeking a writ of habeas corpus. During portions of May and June, 1984, Petitioner was incarcerated in the Community Correctional Institute (“CCI”), located in Hamilton County, Ohio, awaiting trial on a charge of murder. On the evening of June 9, 1984, Joseph Burton (“Burton”) and Phillip Pence (“Pence”), two deputy sheriffs employed at the CCI, were ordered to search Zuern’s cell for weapons. After the door to that cell had been opened, the Petitioner lunged at Pence, stabbing him in the chest with a metal knife or shank that Zuern had fashioned out of a metal hook for a bucket. Pence died from the wounds inflicted by the Petitioner. Thereafter, Zuern was indicted for aggravated murder, in violation of Ohio Revised Code § 2903.01(A) (i.e., purposely causing the death of another, with prior calculation and design). The Indictment also charged the Petitioner with three death penalty specifications or aggravating circumstances under Ohio Revised Code § 2929.04(A). The case was assigned to Judge William Morrissey of the Hamilton County Court of Common Pleas. In accordance with the law in Ohio, the Petitioner’s trial was bifurcated into guilt and penalty phases, with the same jury sitting on both. At the conclusion of the guilt phase, the jury found Zuern guilty of the offense charged and of the three death penalty specifications or aggravating circumstances. Before the separate punishment phase of the trial could commence, Zuern informed Judge Morrissey that he did not want to present mitigating evidence. As a result, no evidence was presented during that phase of the trial. After having received the court’s instructions, the jury recommended that the death penalty be imposed. Judge Morrissey accepted that recommendation and sentenced Zuern to death. Petitioner then appealed his conviction and the sentence imposed upon him to the Hamilton County Court of Appeals, setting forth five assignments of error, to wit: 1. The trial court had erred by overruling Petitioner’s motion to dismiss for reason that the Ohio statutory scheme for the imposition of the death penalty is unconstitutional; 2. The trial court had abused its discretion by overruling Petitioner’s motion for a view of the scene; 3. The trial court had erred when it failed to grant Petitioner’s motion for a mistrial, when a prosecution witness informed the jury that he (Zuern) had been charged with murder at the time of the offense for which he was being tried; 4. The trial court erred by not, sua sponte, dismissing Beulah Taylor from the jury, after she disclosed to the court that she had heard a news account which stated that the Petitioner was in jail on another charge of murder, at the time he had allegedly committed the offense for which he was being tried; and 5. The verdict was against the weight of the evidence. See Doc. # 88 at Ex. D. The Hamilton County Court of Appeals rejected Zuern’s assignments of error and affirmed his conviction and, after conducting its own independent review on the issue of whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty outweighed the mitigating factors, also affirmed the imposition of the death penalty upon him. State v. Zuern, 1986 WL 6507 (Ohio App.1986). Zuern then appealed to the Ohio Supreme Court, setting forth five propositions of law which tracked his assignments of error in the Hamilton County Court of Appeals. Over the dissent of Justices Craig Wright and Herbert Brown, the Ohio Supreme Court affirmed both Zuern’s conviction and his sentence. State v. Zuern, 32 Ohio St.3d 56, 512 N.E.2d 585 (1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 872 (1988). Like the Hamilton County Court of Appeals, the Ohio Supreme Court conducted its own independent review on the question of whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty outweighed the mitigating factors. Having exhausted his direct appeals, Zuern initiated an action in the Hamilton County Court of Common Pleas, requesting post-conviction relief pursuant to Ohio Revised Code § 2953.21, and setting forth 14 claims. In particular, the Petitioner alleged that his conviction and sentence were void or voidable for the following reasons, to wit: 1. The prosecutor had suppressed evidence favorable to the Petitioner; 2. The state had used false evidence to obtain a conviction against him; 3. There was insufficient evidence to convict him of aggravated murder; 4. The prosecutor had impermissibly commented upon his right to remain silent; 5. The state had improperly introduced evidence of the sympathetic character of the victim and his family; 6. The jury was permitted to view him in shackles during his trial; 7. The prosecutor systematically used the state’s peremptory challenges to exclude prospective jurors who had reservations about the death penalty; 8. The prosecutor’s voir dire was impermissible; 9. In imposing the death penalty, the trial court impermissibly considered a pre-sentence report; 10. That presentence report contained inflammatory and prejudicial information; 11. The trial court impermissibly permitted the Petitioner to waive his right to present mitigating evidence, without having first conducted a hearing to ascertain whether he was competent to do so; 12. The appellate courts were prevented from complying with their statutory duty of determining whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty outweighed the mitigating factors, since he was permitted to waive his right to present mitigating evidence. 13. He was denied effective assistance of counsel by trial counsel; and 14. He was denied effective assistance of counsel by appellate counsel. See Doc. # 90 at Ex. 0. The Court of Common Pleas dismissed Petitioner’s request for post-conviction relief, without affording him an evidentiary hearing. Petitioner then appealed to the Hamilton County Court of Appeals, which affirmed the decision of the trial court to dismiss the request for post-conviction relief. State v. Zuern, 1991 WL 256497 (Ohio App.1991). The Ohio Supreme Court subsequently denied Petitioner’s application for further review of this request for such relief. State v. Zuern, 64 Ohio St.3d 1423, 594 N.E.2d 624 (1992). While Zuern’s application for further review was pending before the Ohio Supreme Court, he filed an application for delayed reconsideration in the Hamilton County Court of Appeals. After that court had denied Petitioner’s application, he appealed to the Ohio Supreme Court, setting forth propositions of law relating to ineffective assistance of counsel by the attorneys who had represented him during his direct appeal. The Ohio Supreme Court declined to hear Petitioner’s appeal. See State v. Zuern, 65 Ohio St.3d 1463, 602 N.E.2d 1172 (1992). Zuern then initiated this action, requesting a writ of habeas corpus, alleging that his conviction and sentence violated a number of provisions of the United States Constitution. In particular, the Petitioner asserted 25 separate grounds or claims for relief. This Court referred the matter to Magistrate Judge Michael Merz for a Report and Recommendations on May 12, 1994. On December 8, 1998, after having resolved numerous discovery disputes and having conducted an evidentiary hearing, Judge Merz issued his Initial Report and Recommendations. See Doc. # 320. In particular, that judicial officer recommended that the Court deny the Petitioner’s request for a writ of habeas corpus, with respect to 24 of the asserted grounds, and that the Court conditionally grant the request with respect to one of the claims. Both the Respondent (Doc. # 321) and the Petitioner (Doc. # 326) filed Objections to that judicial filing. On April 19, 1999, Judge Merz filed a Supplemental Report and Recommendations, in which that judicial officer recommended that this Court overrule both the Respondent’s. and the Petitioner’s Objections. See Doc. #329. Once again, both the Petitioner and the Respondent filed Objections to that filing by Judge Merz. See Docs. #331 and # 332. On September 30, 1999, this Court, after noting that the Respondent had not filed a substantive response to the Petitioner’s 134-page Objections to the Magistrate Judge’s Initial Report and Recommendations (Doc. # 326), established a briefing schedule, whereby the Respondent would file a responsive memorandum and the Petitioner would, thereafter, be afforded the opportunity of filing a response. The Respondent has filed such a Memorandum (see Doc. # 335), and, on December 6, 1999, the Petitioner’s Reply Memorandum was filed, see Doc. # 337, bringing this matter finally to issue before this Court. This Court now rules upon the parties’ Objections to Judge Merz’ Initial and Supplemental Reports and Recommendations. As a means of analysis, this Court will initially address the Petitioner’s Objections, following which it will turn to that of the Respondent. However, before engaging in that analysis, the Court will briefly set forth the standard of review it must apply when ruling upon such Objections. In Flournoy v. Marshall, 842 F.2d 875 (6th Cir.1988), the Sixth Circuit reiterated that a District Court must apply a de novo standard of review to the Report and Recommendations of a Magistrate Judge in a habeas corpus proceeding. Accordingly, this Court reviews both Judge Merz’ factual findings and his legal conclusions de novo. I. Petitioners’ Objections (Docs. #326 and # 331) As is indicated, Judge Merz has recommended that this Court deny the Petitioner’s request for a writ of habeas corpus, with respect to 24 of the 25 asserted grounds for relief. With his Objections, the Petitioner argues that the Magistrate Judge erroneously recommended against relief with respect to 20 of those 25 grounds. In addition, the Petitioner has broadly objected to Judge Merz’ application of the presumption of correctness and the rule of procedural default. In his Objections to that judicial officer’s Supplemental Report and Recommendations, the Petitioner has merely incorporated his Objections to Judge Merz’ Initial filing. See Doc. # 331. Therefore, this Court will rule upon the Petitioner’s 134-page Objections to the Magistrate Judge’s Initial Report and Recommendations. See Doc. # 326. As a means of analysis, this Court will initially address the Petitioner’s broad attacks, following which it will turn to his Objections to Judge Merz’ recommendations that the Court deny the requested relief with respect to 20 of the grounds. A. Presumption of Correctness and Procedural Default Since the Petitioner filed this action before the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, the Respondent concedes that the amended version of 28 U.S.C. § 2254(d) is not applicable herein. See Doc. #335 at 3, n. 1. See also, Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Thus, this Court applies the pre-amendment version of § 2254(d). Recently, the Sixth Circuit reiterated that under the pre-AEDPA version of § 2254(d), state court findings of historical facts are presumed to be correct and are rebuttable only in certain circumstances. Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.), cert. denied, — U.S.-, 120 S.Ct. 369, 145 L.Ed.2d 284 (1999). An individual seeking a writ of habeas corpus must rebut the presumption of correctness by clear and convincing evidence. Id. In his Report and Recommendations, Judge Merz recommended that this Court hold that the Petitioner’s Fifth, Eighth, Tenth through Sixteenth and Twenty-Fifth Claims are barred by a procedural default, to wit: the failure to raise the issues set forth therein on direct appeal of his conviction and sentence, thus bringing into effect the Ohio doctrine of res judicata. Petitioner has mounted a broad two-pronged attack on that recommendation, arguing that Judge Merz erroneously deferred to the factual findings by the Ohio courts, when he improperly concluded that those 10 Claims were procedurally defaulted. With respect to the first such prong, the Petitioner contends that deference should not be afforded to the state court findings, because he was not given an adequate opportunity to pursue post-conviction relief in state courts. As the Petitioner points out, the pre-amendment version of § 2254(d) expressly provided that the presumption of correctness was inapplicable in instances where factual disputes were not resolved in state court proceedings (§ 2254(d)(1)), where the material facts were not adequately developed at the state court hearing (§ 2254(d)(3)), where a petitioner did not receive a full, fair and adequate hearing in the state court proceeding (§ 2254(d)(6)), where a petitioner was otherwise denied due process in the state court proceeding (§ 2254(d)(7)), and where the state court factual findings are not fairly supported by the record (§ 2254(d)(8)). According to the Petitioner, all of these exceptions to the presumption of correctness are demonstrated by the fact that, in Hamilton County, the trial courts have denied every request for post-conviction relief, filed by an individual who has been sentenced to death, by merely signing findings of fact and conclusions of law prepared by the Hamilton County Prosecutor’s office, a practice which was followed with regard to Petitioner’s request for post-conviction relief. Moreover, he points out that the state courts denied him both the opportunity to conduct discovery and a hearing on the claims he raised in conjunction with his request for such relief. As is indicated, this argument is directed at Judge Merz’ recommendation that this Court hold that Petitioner has procedurally defaulted on 10 of his Claims by virtue of failing to raise these claims on direct appeal, causing these claims to be foreclosed by the Ohio doctrine of res judi-cata. With those 10 Claims, the Petitioner asserted that his federal constitutional rights were violated by the introduction of character evidence relating to the victim during the guilt portion of his trial (Fifth Claim); by the use of his post-arrest silence to prove his guilt (Eighth Claim); by permitting members of the jury to view him during the trial, while he was in shackles (Tenth Claim); by an erroneous “acquittal first” instruction (Eleventh Claim); by improper voir dire (Twelfth Claim); by the prosecution’s systematic use of peremptory challenges to exclude, from the jury, individuals who had expressed reservations about the death penalty (Thirteenth Claim); by permitting him to waive his right to present mitigating evidence, without first determining whether he was competent to do so (Fourteenth Claim); by the trial court considering a presentence report (Fifteenth Claim); by an erroneous reasonable doubt instruction (Sixteenth Claim); and by the use of an invalid death penalty specification (Twenty-Fifth Claim). In State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), the Ohio Supreme Court recognized the applicability of the doctrine of res judicata in proceedings under Ohio’s post-conviction relief statute, holding in ¶ 9 of the syllabus: 9. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. The Hamilton County Court of Appeals applied Perry to conclude that Zuern could not proceed with the contentions which form the basis of the 10 Claims in question in his petition for post-conviction relief. As can be seen from ¶ 9 of the syllabus of Perry, the only possible factual findings that the Hamilton County Court of Appeals could have made, on the issue of the applicability of the doctrine of res judicata, in Petitioner’s appeal from the denial of his petition for post-conviction relief concern the question of whether the Petitioner could have raised any of the 10 above-listed Claims in his direct appeals. Courts in Ohio have held that a claim could have been raised, unless it is dependent upon evidence which is dehors the record. See e.g., State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975); State v. Sullivan, 1999 WL 1249529 (Ohio App.1999). It is apparent that none of these Claims raises an issue which could not have been resolved by an -examination of the record, and that, therefore, the state court findings concerning the applicability of res ju-dicata were correct. With the second prong of his broad attack, the Petitioner focuses upon the doctrine of procedural default, which can be traced to the decision by the United States Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Therein, the Supreme Court held that, in the absence of cause and prejudice, a District Court cannot grant a writ of habeas corpus, when the state courts have refused to address the merits of a federal constitutional argument, on the ground that the defendant failed to follow a state procedural requirement. In Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000), the Sixth Circuit noted that “[w]e have consistently held that, absent cause and prejudice, ‘a federal habeas corpus petitioner who fails to comply with a state’s rules of procedure waives his right to federal habe-as corpus review.’ Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.1996).” In Carpenter v. Mohr, 163 F.3d 938 (6th Cir.1998), cert. denied, — U.S. -, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999), the Sixth Circuit wrote: Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), the Sixth Circuit utilizes a four part analysis when a state argues that a federal habeas claim has been procedurally defaulted in state court. This court determines: 1) whether there is a procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to follow this rule; 2) whether the state courts actually enforced the state procedural rule; 3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so 4) the petitioner must establish cause for his failure to follow the rule and prejudice by the alleged constitutional error. Id. Id. at 943 n. 10. Accord, Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir.1998). The Petitioner has not challenged Judge Merz’ finding that the first prong of that test was met. Under that prong, there must be a state procedural rule that is applicable to the Petitioner’s Claims, and he must have failed to follow that rule. Herein, such a rule does exist, to wit: the failure to raise an issue on direct appeal, resulting in the Perry rule of res judicata foreclosing the Petitioner from litigating that issue in his post-conviction proceeding. It is apparent that the Petitioner failed to follow that rule, since he did not raise the 10 Claims in question during his direct appeal. He does, however, argue that the second and third prongs of the Sixth Circuit’s four-part test have not been met. In particular, the Petitioner contends that the Perry rule of res jtidicata is not actually enforced and, thus, is not an adequate and independent state ground, because, in death penalty cases, the Ohio Supreme Court has repeatedly addressed issues in instances where an objection was not made at trial or the issue was not presented in the intermediate court of appeals. Although the Petitioner has cited a number of decisions by the Ohio Supreme Court, in which it addressed issues under those circumstances, none of those decisions involved an application of the Ohio rule of res judicata in a post-conviction proceeding. On the contrary, each of those decisions was a direct appeal from a conviction and sentence of death. The Petitioner has not cited a single case in which an Ohio court has failed to apply res judicata and, thus, has permitted a defendant to raise an issue in a post-conviction proceeding which could have been raised on direct appeal. Moreover, in Mapes, supra, the Sixth Circuit rejected a similar argument. Therein, the petitioner had been convicted and sentenced to death. In his habeas corpus action in federal court, he alleged, inter alia, that the trial judge was biased against him. 171 F.3d at 420-21. He had not, however, raised that issue in his direct appeal from his conviction and sentence; rather, he raised it for the first time in a post-conviction proceeding in state court. The Ohio trial and appellate courts concluded that the judicial bias claim was barred by virtue of Perry. Before the Sixth Circuit, the petitioner argued that he should be permitted to present that claim in his federal habeas corpus proceeding, because Ohio courts do not regularly apply its procedural default rules. The petitioner also cited decisions in which Ohio courts addressed the merits of arguments, despite procedural defaults. The Sixth Circuit acknowledged that, in some instances, Ohio appellate courts have forgiven a procedural default (such as a failure to object at trial) and have addressed the merits of an assignment of error. 171 F.3d at 421. However, the Mapes court also noted that none of those cases involved a post-conviction proceeding and, further, that Ohio courts have consistently applied Perry to deny review of claims, in post-conviction proceedings, that were or could have been asserted on direct appeal. Since the petitioner had failed to present his claim concerning judicial bias on his direct appeal, he was precluded from doing so in his federal habeas corpus action in the absence of a showing of cause and prejudice. In accordance with Mapes, and pursuant to a review of the relevant Ohio law, this Court concludes that Ohio courts have consistently enforced Perry and the rule of res judicata. Given that the Petitioner merely contends that Perry and the rule of res judicata is not an adequate and independent state ground (the third prong), because it is not actually enforced, his argument with respect to the third prong of the test is without merit. Moreover, since the Sixth Circuit has repeatedly applied Perry and the rule of res judicata to preclude federal habeas review (see e.g., Mapes), the rule is an adequate and independent state ground. Accordingly, this Court concludes that the second and third prongs of the Sixth Circuit’s four-part test have been met. The Court will address the fourth prong (i.e., whether the Petitioner has demonstrated cause and prejudice for his failure to follow the Ohio procedural rule), with respect to each of the 10 Claims on which Judge Merz recommended that the Court find procedural default. However, as a general overview to the resolution of that question, it should be noted that the Petitioner contends that he can establish cause and prejudice for each of those Claims, by the failure of his trial counsel to raise the particular issue during trial and/or the failure of his appellate counsel to raise that issue on his direct appeal. The Sixth Circuit has held that constitutionally ineffective assistance of counsel can establish cause. See e.g., Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir.1999); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir.1996). It bears emphasis, however, that not every error by counsel can establish cause; rather, only representation that is constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), can establish cause. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Under Strickland, a claim of ineffective assistance of counsel is. comprised of two elements, to wit: that the representation afforded by counsel was deficient and that the deficient representation prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052. Consequently, when a habeas petitioner contends that he can establish cause and prejudice to excuse his procedural default, by virtue of his counsel’s ineffective assistance, the cause and prejudice prongs are conflated, since prejudice is one of the elements of a claim of ineffective assistance. In other words, if the Petitioner can establish cause, because his counsel were ineffective under Strickland, he has also established prejudice. Accordingly, the Court rejects the Petitioner’s two broad attacks on Judge Merz’ Initial Report and Recommendations. B. First and Second Claims With his First Claim, the Petitioner argues that his conviction for aggravated murder and resulting sentence of death violated the Eighth and Fourteenth Amendments, because he is not guilty of that offense. In particular, Zuern contends that post-trial evidence has established that he did not act with prior calculation and design. With his Second Claim, the Petitioner contends that his conviction and death sentence were obtained in violation of the Due Process Clause of the Fourteenth Amendment, because the evidence which was introduced during his trial failed to establish that he acted with prior calculation and design. Since both of these Claims challenge the sufficiency of the evidence to establish the element of prior calculation and design, this Court will address the two claims together. Ohio Revised Code § 2903.01(A) defines aggravated murder as purposefully causing the death of another, with prior calculation and design. Murder is defined as purposefully causing the death of another. Ohio Rev.Code § 2903.02(A). Only those individuals convicted of aggravated murder are eligible for the death penalty. See Ohio Rev.Code § 2929.02. Thus, the element of prior calculation and design was necessary, not only to convict Zuern for aggravated murder but also to impose the death penalty upon him. In Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir.2000), the Sixth Circuit restated the familiar test by which claims challenging the sufficiency of the evidence are to be analyzed in habeas corpus proceedings: When a defendant challenges the sufficiency of the evidence to support a conviction, we inquire “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir.1990) (en banc); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As an initial matter, it cannot be questioned that Petitioner committed the offense of murder. The evidence was un-contradicted that Petitioner purposefully caused the death of Pence by stabbing him in the heart with a shank. During his closing argument, Petitioner’s counsel did not contest that his client had taken the life of Pence. Rather, the Petitioner’s defense centered on the assertion that he had not acted with prior calculation and design. The evidence of that element was not overwhelming. For instance, there was no evidence that Zuern and Pence had interacted in any manner before the murder occurred. Thus, Zuern could not have formed a prior calculation and design to kill Pence, as opposed to some other corrections officer, before that officer arrived in front of the Petitioner’s cell. Nevertheless, reviewing the evidence presented at the Petitioner’s trial in the manner most favorable to the prosecution, this Court concludes that a reasonable jury could have found that the Petitioner acted with prior calculation and design, as that element has been defined by the Ohio courts. In State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82, cert. denied, 522 U.S. 851, 118 S.Ct. 143, 139 L.Ed.2d 90 (1997), the Ohio Supreme Court elaborated upon the meaning of the phrase “prior calculation and design:” In State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, at paragraph one of the syllabus, we agreed that “ ‘prior calculation and design’ is a more stringent element than the ‘deliberate and premeditated malice’ which was required under prior law.” The General Assembly’s apparent intention “was to require more than the few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill.” Id., 56 Ohio St.2d at 11, 10 O.O.3d at 6, 381 N.E.2d at 193. Also, in Cotton, at paragraph two of the syllabus, we held that “[i]n-stantaneous deliberation is not sufficient to constitute ‘prior calculation and design.’ ” In State v. Jenkins, 48 Ohio App.2d at 102, 2 O.O.3d at 75, 355 N.E.2d at 828, the court of appeals found three factors important in determining whether prior calculation and design exists: (1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or “an almost instantaneous eruption of events”? Id. 19, 676 N.E.2d at 89. The Ohio Supreme Court also cautioned that “it is not possible to draw a bright-line that emphatically distinguishes between the presence or absence of ‘prior calculation and design’ ” and that “each case turns on the particular facts and evidence presented at trial.” Id. at 20, 676 N.E.2d at 89. See also, State v. Goodwin, 84 Ohio St.3d 331, 343-44, 703 N.E.2d 1251, 1263, cert. denied, — U.S. -, 120 S.Ct. 118, 145 L.Ed.2d 100 (1999). With that review of the law, this Court turns to the evidence of prior calculation and design that was presented during the Petitioner’s trial. Wayne Lewis (“Lewis”), a fellow inmate of Zuern at the CCI, testified on behalf of the prosecution that he had observed the Petitioner sharpening a piece of metal into a shank or knife. Doc. # 98 at 854-55. Lewis also testified that, on another occasion, the Petitioner had indicated that somebody ought to do something to the guards, because they did not permit prisoners to use all of them allotted time on telephone calls. Id. at 853-54. In addition, another fellow inmate of the Petitioner, Gerald Steven Joseph (“Joseph”), testified about his conversations with the Petitioner, after Pence had been murdered. Joseph indicated that the Petitioner told him that he got his “nut” from killing. Id. at 864. Joseph also testified that the Petitioner had told him that he (Zuern) had been told by another inmate that his cell would be searched on the evening that Pence was killed. Id. at 865. According to Joseph’s description of his conversation with the Petitioner, Zuern, after having been warned about the planned search, got out of his bed, put on his pants and waited for the guards to reach his cell. Id. at 866. When his cell door had been partially opened, Petitioner lunged with his shank and used his shoulder to exert additional pressure and make the shank enter Pence’s body more deeply. Id. In addition, Burton, who along with Pence had attempted to search Petitioner’s cell on the evening of June 9th, testified that, when the officers arrived at the cell, Pence stood in front of the cell door and directed Zuern to come to the door and to stand in front of it. Id. at 935. Petitioner complied. Id. Pence then told Zuern to come outside the door and to put his hands against the wall. Id. When the cell door was opened, Zuern lunged at Pence, and stabbed that officer in the chest with his shank. Id. at 935-37. The foregoing evidence convinces this Court, after viewing the evidence in the light most favorable to the prosecution, that a rational jury could have found that the state proved beyond a reasonable doubt that the Petitioner acted with prior calculation and design. Applying the three factors to which the Ohio Supreme Court referred in Taylor, swpra, supports that conclusion. Although the Petitioner did not know Pence, he was familiar with other guards, and there was evidence that his relationship with the guards was strained. Moreover, Judge Morrissey instructed the jury that prior calculation and design could exist where a defendant plans to kill a member of a class of persons, rather than a particular person within that class. See Doc. # 99 at 1128. There was also evidence that the Petitioner gave thought and preparation to the selection of his weapon, by sharpening a piece of metal into a shank. Finally, although the act occurred quickly, there was evidence that it was not an instantaneous eruption of events. Joseph’s testimony concerning his conversations with the Petitioner could have convinced the jury of that fact. In addition, Burton’s testimony, to the effect that the Petitioner complied with Pence’s initial command to approach the cell door and to stand in front of it, also supports a finding that the Petitioner’s acts were not an instantaneous eruption of events. With respect to the Petitioner’s contention that newly discovered evidence establishes that he is innocent of the offense for which he was convicted (because that evidence establishes that he did not act with prior calculation and design), the Supreme Court has recognized that claims of actual innocence, predicated upon newly discovered evidence, “have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Therefore, the Petitioner’s mere assertion that such evidence establishes his innocence is not cognizable in this proceeding. Accordingly, the Court overrules the Petitioner’s Objections to the Magistrate Judge’s Initial and Supplemental Reports and Recommendations, as those Objections relate to the Petitioner’s First and Second Claims. C. Third Claim With this Claim, the Petitioner contends that the state violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, by withholding favorable and impeaching evidence from him. In particular, Zuern focuses upon three matters, to wit: a memorandum drafted by Deputy Kenneth Schweinefuss (“Schweinefuss Memorandum”), a statement that Wayne Lewis gave to officers at 1:43 a.m., on June 10, 1984, and evidence that could have been employed to impeach Lewis, a prosecution witness. Judge Merz recommended that this Court deny this Claim on its merits. As a means of analysis, this Court will briefly review the jurisprudence pertaining to Brady and its progeny, following which it will address the three matters in the above order, discussing together the Schweinefuss Memorandum and Lewis’ statement. As the Sixth Circuit has noted, Brady did not create a general constitutional right to discovery in criminal case; rather, the rule established therein “is concerned only with cases in which the government possesses information which the defendant does not, and the government’s failure to disclose the information deprives the defendant of a fair trial.” United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir.1994). Brady imposes upon the government “an obligation ‘to turn over evidence in its possession that is both favorable to the accused and material to guilt ....’” United States v. Phillip, 948 F.2d 241, 249 (6th Cir.1991) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)) (emphasis supplied by the Sixth Circuit). In Schledwitz v. United States, 169 F.3d 1003 (6th Cir.1998), the Sixth Circuit elaborated upon the materiality requirement of Brady: When the defendant, as in this case, asserts that the newly discovered Brady evidence is exculpatory, the defendant will be entitled to a new trial if he shows that the favorable evidence at issue was “material.” United States v. Frost, 125 F.3d 346, 382 (6th Cir.1997). In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme Court clarified the “materiality” analysis. The Court explained that a showing of materiality does not require the suppressed evidence in question establish the defendant’s innocence by a preponderance of the evidence. Rather, the “question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 434, 115 S.Ct. 1555; Frost, 125 F.3d at 382-83. Nor does the defendant need to “demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555; United States v. Smith, 77 F.3d 511, 515 (D.C.Cir.1996) (materiality requirement is not a sufflciency-of-the-evidence test). Instead, any favorable evidence, regardless of whether the defendant has made a request for such evidence, is “material” 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, 514 U.S. at 433-34, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); Frost, 125 F.3d at 382. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375; United States v. Presser, 844 F.2d 1275, 1281 (6th Cir.1988). Moreover, in determining whether undisclosed evidence is material, the suppressed evidence is considered collectively, rather than item-by-item, to determine if the “reasonable probability” test is met. Kyles, 514 U.S. at 436, 115 S.Ct. 1555; Frost, 125 F.3d at 383. Id. at 1011-12. In addition, “Brady recognizes no distinction between evidence which serves to impeach a government witness’ credibility and evidence which is directly exculpatory of the defendant. Both are ‘evidence favorable to the accused’ and must be disclosed.” Mullins, 22 F.3d at 1372. See also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within [Brady Y). The Sixth Circuit has said that “[n]o Brady violation exists where a defendant ‘knew or should have known the essential facts permitting him to take advantage of any exculpatory information.’ ” United States v. Clark, 928 F.2d 733, 738 (6th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991) (quoting United States v. Grossman, 843 F.2d 78, 85 (2nd Cir.1988), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988 (1989)). See also, Mullins, 22 F.3d at 1371-72 {“Brady is concerned only with cases in which the government possesses information which the defendant does not, and the government’s failure to disclose the information deprives the defendant of a fair trial”); United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990). Moreover, the Sixth Circuit has indicated that there is no violation of Brady, unless the undisclosed materials would have led directly to the discovery of admissible evidence. Phillip, 948 F.2d at 249-50. The Schweinefuss Memorandum was drafted June 10, 1994, the day after Petitioner had killed Pence. Therein, Deputy Schweinefuss relates a conversation between himself and Loyal Hearst (“Hearst”), an inmate at the CCI, and what he did in reaction to that conversation: On [William Zuern], at or between the hours of 1330 and 1400, I was on the second range of A-Block when inmate Loyal Hearst called me to his cell and stated that he and William Zuern had an argument on 6-8-84 and that Zuern stated he was going to kill him the first chance he got. Inmate Hearst stated that Zuern had in his possession a homemade knife which he had sharpened on his cell floor. I then walked to the A-Block rec. area and informed Deputy Fowler of the situation and we decided to bring the matter to the attention of the second shift supervisor Deputy [Supervisor-I] Menkhaus. Upon our belief, at approximately 1450 hrs., Deputy Fowler and myself informed [Supervisor-I] Menkhaus of the situation and he stated that he would conduct a shakedown to try and find the weapon. This statement is true and accurate to the best of my knowledge. This incident occurred on 6-9-84. Doc. # 90 at Ex. O. Schweinefuss, whom the prosecution called as a witness at the Petitioner’s trial, testified that an inmate (whom he did not identify) had told him that the Petitioner had a knife. He also testified how he responded, after having been informed of that fact. However, he did not tell the jury, during his direct examination, that Hearst had mentioned that the Petitioner had threatened to kill him (Hearst), and that he had memorialized this conversation in a memorandum. The sole contested issue at Zuern’s trial was whether he had acted with prior calculation and design when he had killed Pence, a corrections officer. It is apparent that presenting evidence that Zuern had threatened to kill another inmate could have cast doubt upon the prosecution’s theory that he had acted with prior calculation and design, with respect to Pence or the class of guards to which Pence belonged, as a whole. See Footnote 10, supra. Moreover, since the Petitioner had not been provided information concerning this conversation with Hearst and a copy of the Schweinefuss Memorandum, which set out this conversation, his counsel did not cross-examine the Deputy on that subject. In his statement, which was recorded and has been transcribed, Lewis indicated that Hearst had told him that Zuern had threatened to kill him. Nevertheless, the state argues that the failure to furnish the Schweinefuss Memorandum and Lewis’ statement did not violate Brady, because the Petitioner “knew or should have known the essential facts permitting him to take advantage of any exculpatory information.” Clark, 928 F.2d at 738 (internal quotation marks and citation omitted). Indeed, Judge Merz rejected the Petitioner’s assertion that the state had violated its obligations under Brady, in part, because his counsel could have easily discovered the fact that he had threatened Hearst from their client. As stated above, the prosecution did not violate Brady, unless the document or the statement was “material.” The Magistrate Judge concluded that the Schweine-fuss Memorandum and Lewis’ statement were not material, since it was possible that the Petitioner had made the knife for more than one purpose. As a means of analysis, the Court will initially address the issue of whether the Petitioner knew or should have known the essential facts contained in the Schweinefuss Memorandum and Lewis’ statement, so that he could take advantage of any exculpatory information. In the event that the Court rejects the Respondent’s contention that there was no violation of Brady, because Petitioner knew the essential facts necessary to permit him to take advantage of the exculpatory information contained in the Schweinefuss Memorandum and in Lewis’ statement, the Court will decide whether that withheld information was “material.” Unquestionably, as the Magistrate Judge found and the state argues, assuming the truth of the Schweinefuss Memorandum, the Petitioner knew of the ongoing feud at the CCI between himself and Hearst and of the fact that he had threatened to kill Hearst. That said, however, there is no indication that Petitioner knew that Hearst had informed officers of the existence of that feud or threat. Therefore, it cannot be doubted that the Schwei-nefuss Memorandum contained some information of which the Petitioner was not aware (i.e., that corrections officers had been informed of the existence of the feud and threat). Moreover, there is no indication that the Petitioner knew that Lewis had provided the same information to authorities, only hours after Pence had been killed. Given that the Petitioner was aware of the feud between himself and Hearst, this Court must decide whether the fact that the information concerning those matters was contained within a document written by a corrections officer and in a recorded statement given to officers is an essential fact that was not available to him, which would have permitted him to take advantage of the exculpatory information in that document and statement. To decide that question, the Court must examine the purpose to which Petitioner could have put that document and statement, if they had been provided to him for use at trial. The Petitioner could have used the Schweinefuss Memorandum to cross-examine its author. It will be remembered that Schweinefuss testified that an inmate (Hearst, whom he did not identify) had told him that Zuern had a weapon. That testimony was introduced for the purpose of explaining why the subsequent search of the Petitioner’s cell occurred, rather than for the truth of the matter asserted. Therefore, Schweinefuss’ testimony in that regard was not hearsay. See Ohio R. Evid. 801(C). See also, State v. Thomas, 61 Ohio St.2d 223, 231, 400 N.E.2d 401, 407 (1980). Similarly, Petitioner’s counsel could have cross-examined Schweinefuss about the entirety of Hearst’s statements (i.e., that the inmate also indicated that Zuern had threatened to kill him), in order to provide an complete explanation as to why it was decided to search the Petitioner’s cell. Therefore, if Petitioner had been provided the Schweinefuss Memorandum, he could have ensured that its contents were presented to the jury by way of cross-examining its author. Additionally, production of the Schwei-nefuss Memorandum could have made it possible for Petitioner’s counsel to call Hearst to testify. Although Petitioner knew that he had threatened Hearst, he was not aware that Hearst had so informed the authorities and that his disclosure had been incorporated into an official document. Without having been provided that document, calling Hearst to testify would have posed a grave danger to Petitioner and his counsel. Zuern had threatened to kill Hearst, and the latter, an inmate at the CCI, would obtain no benefit by providing testimony that might be favorable to an individual who had killed a guard at that facility. Thus, Hearst could not have been perceived as a potentially favorable witness to the defense. However, armed with the Schweinefuss Memorandum, Petitioner’s counsel could have avoided some of the dangers posed by calling Hearst. In particular, that document would have permitted Petitioner to call Hearst as a witness and to impeach him, if he had denied that Zuern had threatened him, or to refresh his recollection, if Hearst had said he did not remember the incident. Indeed, the information therein might have caused the trial court to permit Zuern to treat Hearst as a hostile witness. Therefore, disclosure of the Schweinefuss Memorandum would have made it far less dangerous and, thus, more advantageous for Zuern to call Hearst as a witness to testify to evidence that might have cast doubt on the presence of prior calculation and design to kill a corrections officer. In addition, disclosure of Lewis’ statement would have made it even more advantageous for Petitioner to call Hearst, since that statement could have provided a second source with which to impeach Hearst. In addition, it is possible that the Schweinefuss Memorandum, itself, could have been introduced as evidence during Petitioner’s trial, as evidence of the truth of the statements contained therein, under exceptions to the hearsay rule. At trial, Petitioner could have argued that the document was admissible pursuant to Rule 803(8) of the Ohio Rules of Evidence, which provides: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness. That Rule differs from Fed.R.Evid. 803(8), in that Ohio permits a criminal defendant to introduce police reports, while the federal rule prohibits the introduction such reports in criminal prosecutions. If Zuern had attempted to introduce the Schweinefuss Memorandum, the prosecution might have objected on the basis that the statements attributed to Hearst therein constitute hearsay within hearsay. See Ohio R. Evid. 805. Courts in Ohio have indicated that, for the entirety of a police report to be admitted under Rule 803(8), all of the persons contributing information to the report must be under “a duty to report,” unless some other exception to the hearsay rule is applicable. See e.g., State v. Gibson, 1999 WL 74532 (Ohio App.1999); State v. Settles, 1998 WL 667635 (Ohio App.1998). For instance, in Settles, the court indicated that, although police reports are generally admissible, the statements by witnesses to a crime, contained in such a report, could not be admitted, pursuant to Rule 803(8), since such witnesses are not under an official duty to make statements to police officers conducting an investigation. Similarly, there is no indication that Hearst, the witness, was under a duty to report that Zuern had threatened to kill him. Therefore, the Court will assume that the statements attributed to Hearst in the Schweinefuss Memorandum would not have been admissible under Rule 803(8), unless some other exception to the hearsay rule is applicable. However, by refusing to produce the Schweinefuss Memorandum to the Petitioner, the state denied to the Petitioner the opportunity of arguing that another exception to the hearsay rule was applicable to the statements attributed to Hearst in that document. In particular, the Petitioner was denied the opportunity to argue that Hearst’s statements constituted an excited utterance. See Ohio R. Evid. 803(2). On June 9, 1984, Hearst informed Schwei-nefuss that Zuern had threatened to kill him on June 8, 1984. However, the Ohio Supreme Court has held: There is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the statement must be made while the de-clarant is still under the stress of the event and the statement may not be a result of reflective thought. Therefore the passage of time between the statement and the event is relevant but not dispositive of the question. State v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316, 322 (1993) (emphasis in the original). When threatened by Zuern, Hearst was an inmate at the CCI, who was without means of escaping from the danger posed by Zuern. Therefore, the stress of the threat from Zuern (an individual who was being held in the CCI on a murder charge) would not have been likely to dissipate quickly, and the passage of one day might not have meant that Hearst’ statements to Schweinefuss were the result of reflective thought. Therefore, if Petitioner had been provided the Schwei-nefuss Memorandum, he would have had the opportunity to move and to argue for its introduction at his trial, an opportunity that was denied him by the prosecution’s failure to disclose that document. While it is always difficult to devise trial strategy in objective fashion after the fact, knowledge of the Schweinefuss Memorandum (and, for that matter, of the statement that Lewis had given to the law enforcement officials) might have emboldened Zuern’s counsel to call him to the stand, to testify in his own defense at trial that his anger was directed not to a nameless class of guards but to Hearst, secure in the knowledge that the Memorandum could have been utilized, along with more thorough cross-examination of Hearst, to rebut what undoubtedly would have been the prosecution’s claim that his testimony of no animus toward the guards was a recent fabrication. For that matter, had Hearst admitted the feud with Zuern and Zuern’s threat to kill him, if a proper foundation had been laid, the Schweinefuss Memorandum might well have been admissible, for the truth of the statements by Hearst contained within that document, as a prior consistent statement of Hearst, to rebut the State’s express or implied charge of recent fabrication. Such a statement would be specifically defined as non-hearsay. Ohio Evid. R. 801(D)(1)(b). Of course, that none of these hypothetical scenarios actually transpired at Petitioner’s trial can be directly attributable to the fact that his counsel had no knowledge of the existence of the Schweinefuss Memorandum or of Hearst’s statements therein. Accordingly, this Court concludes that the disclosure of the Schweinefuss Memorandum would have led to the discovery of admissible evidence, would have been useful as an impeachment tool, and, under certain circumstances, might have been admissible in evidence for the truth of the statements contained therein, either by way of an exception to the hearsay rule or to rebut the State’s claim of recent fabrication by Hearst. For that matter, disclosure of the Memorandum might have allowed Zuern to testify, secure in the knowledge that the document would have provided corroboration on the defense of lack of prior calculation and design to murder a guard. Based upon the foregoing, the Court rejects the Respondent’s contention that there was no violation of Brady, because Petitioner knew the essential facts necessary to permit him to take advantage of the exculpatory information contained in the Schweinefuss Memorandum. While Petitioner clearly knew the information contained within that memorandum, he did not know that the information had been included within a memorandum. It is the memorialization of facts within the memorandum that was non-disclosed and unknown to Zuern. The Court now turns to the question of whether the information contained within that document was “material.” As is indicated, evidence is material under Brady, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Schiedwitz, 169 F.3d at 1012. A reasonable probability is one that is sufficient to undermine confidence in the outcome of a trial. Id. The Petitioner argues that the information contained in the Schweinefuss Memorandum was material, because it could have been used to negate the element of prior calculation and design, by showing that he had manufactured a shank in order to do harm to Hearst, rather than to a guard. This Court agrees. Above, this Court has indicated that the evidence that Petitioner acted with prior calculation and design was, to say the least, not overwhelming. Therefore, the importance of any evidence that would tend to detract from the existence of that fact would tend to be magnified. The information contained in the Schweinefuss Memorandum would certainly have detracted from the existence of prior calculation and design. Thus, such evidence would have been relevant and admissible under Ohio law, since it would have made it less likely that Zuern had acted with prior calculation and design. See Ohio R. Evid. 401 (defining relevant evidence to include evidence that has a tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence). There was no evidence that Zuern had ever come into contact with Pence, before the night in question. However, the trial court instructed the jury that it could find that prior calculation and design exists, where a defendant plans to kill any member of a certain class of persons, even though he did not know in advance the identity of the particular victim. In closing argument, the prosecution asserted, inter alia, that the jury could find prior calculation and design from the very fact that Zuern had taken time to manufacture his weapon. Doc. # 99 at 1087-88. Evidence that Zuern had threatened to kill Hearst, someone who was not in the same class of persons as Pence, would have weakened the state’s theory that Zuern’s act of sharpening a piece of metal evidenced his prior calculation and design to kill a guard. This Court cannot disagree with Judge Merz that it is possible that Zuern made his weapon for more than one purpose; however, given the paucity of evidence concerning prior calculation and design, this Court nevertheless believes that there is a reasonable probability that the result of Petitioner’s trial would have been different (i.e., he would have been convicted of murder rather than of aggravated murder), if the prosecution had disclosed the Schweinefuss Memorandum. In other words, the failure to provide that document has undermined confidence in the outcome of that trial. In sum, the Court disagrees with Judge Merz’ recommendation that the Court reject the Petitioner’s Claim that the prosecution violated its obligations under Brady by failing to produce the Schweinefuss Memorandum. Accordingly, the Court sustains the Petitioner’s Objections to that judicial officer’s Initial and Supplemental Reports and Recommendations, as those Objections relate to the non-disclosure of that memorandum. Lewis was an inmate at the CCI, at the time that Pence was killed. He was the only witness who provided testimony that, prior to the killing of Pence, Zuern had expressed animus toward the guards. Thus, his testimony was important in establishing prior calculation and design. Petitioner contends that the state failed to provide evidence that could have impeached Lewis’ testimony. In particular, Petitioner points out that, two months before Pence was killed, Lewis’ probation had been revoked and he had been sentenced to a term of one to ten years. Within a matter of days after having testified for the state at Zuern’s trial, the state filed a motion to mitigate Lewis’ sentence. Shortly thereafter, the judge who had sentenced Lewis suspended further execution of that sentence. According to Zuern, the temporal proximity between Lewis’ testimony and the suspension of his sentence demonstrates that Lewis provided that testimony pursuant to an agreement with the prosecution. Petitioner contends that evidence of such an agreement should have been disclosed. Judge Merz rejected that argument, concluding that there was no evidence that Lewis testified in exchange for his sentence being suspended. For reasons