Full opinion text
COLE, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, J. (pp. 513-24), delivered a separate dissenting opinion. OPINION COLE, Circuit Judge. A Cuyahoga County, Ohio three-judge panel convicted Reginald Jells for the murder of Ruby Stapleton and sentenced him to death on October 6, 1987. After exhausting direct and post-conviction remedies in the State of Ohio, Jells timely filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio on October 27, 1998. The district court denied his petition on March 18, 2002. For the reasons below, we REVERSE the judgment of the district court. I. BACKGROUND A. Facts Under 28 U.S.C. § 2254(e)(1), Jells has “the burden of rebutting the presumption of correctness [accorded to a state court’s finding of facts] by clear and convincing evidence.” Jells has failed to rebut this presumption, and we therefore adopt the facts, but not the legal conclusions, as detailed by the Supreme Court of Ohio: On April 18, 1987, at about 10:30 to 11:00 p.m., the victim Ruby Stapleton and her four-year-old son Devon Staple-ton were kidnapped in front of several witnesses at the intersection of Lake-view and Euclid Avenues in Cleveland. Three witnesses to the kidnapping and Devon identified appellant Reginald Jells as the kidnapper. Also, the witnesses identified the victim as the woman the appellant picked up and threw into a van. Moreover, the witnesses identified the van used by the appellant during the kidnapping. Owen Banks, a witness to the abduction, testified that while he was a passenger in a car driven by his daughter, Camila Banks, he heard a woman’s screams and saw the victim and appellant “tussling.” He also noted that the van used to abduct the victim and her child had a sign which read “Keep on Trucking,” although the van which was linked to the appellant was found to display a sign which read “Keep on Van-nin.” During the abduction, Owen jumped out of the car and told his daughter to write down the license plate number of the van because he “sensed something was wrong.” Furthermore, Owen observed appellant pick up a little boy, later identified as Devon, and put him into the van. Owen approached appellant, who told him that the victim was drunk. Owen stated that he had a good look at appellant, since Owen was at the driver’s side of the van looking straight at him. At trial, Owen identified a photograph of the victim as the person who was struggling with appellant, and identified appellant as the perpetrator. Camila Banks, another witness to the abduction, testified that she was driving her father home when she heard a woman screaming “help me.” She observed the appellant as he dragged a woman, whom she later identified as the victim, to the van and “shoved her inside.” Next, she saw appellant pick up a little boy (Devon) and put him inside the van. Camila testified that the woman was trying to fight off the man. Camila recorded the license number of the van, “149 MJV.” Although the license number was listed in the name of “Reginald Gills,” appellant later acknowledged ownership of the van. At trial Camila identified the van from a photograph, and she identified the appellant as the kidnapper. Edward Wright, a third witness to the abduction, testified that at about 11:00 p.m., as he was concluding his shift as a security guard at Hough Bakery, he heard a woman scream. He walked to where he heard the screaming and observed a man with his arm around the waist of the screaming woman. He then saw the man throw the woman and the child into the van. Wright gave the Cleveland police a partial license number, “Y 169 or 165.” He was able to pick the appellant out of a lineup, and identify him at trial. Further, he identified Devon Stapleton and a photo of the victim. The testimony of Devon Stapleton, the son of the victim, indicates that he and his mother had entered appellant’s van and later they exited the van. It is not clear from his testimony exactly how they initially came to be in the van or how they later came to be out of the van at Lakeview and Euclid Avenues. He further testified that appellant put Devon’s mother back into the van, and that while they were in the van appellant hit the victim on the right side of her face with a circular object, causing her to bleed. Devon also stated that his mother was knocked out by the blows. As a result of the attack upon his mother, the hood and sleeve of Devon’s coat were wet with blood. Devon explained that appellant took his mother to a junkyard. There appellant removed his mother’s body from the van, carried her into the junkyard, and abandoned her. Then appellant drove to a gas station, purchased gas, and dropped off Devon at another junkyard. Later, Clyde Smith found Devon at this junkyard crying for his mother, so he picked him up and took him to his house and called the police. On April 26, 1987, appellant was arrested by Cleveland police. The van was identified by the license plate number that was given to police by Camila Banks. An examination of the van revealed appellant’s fingerprints. A transmission jack found in the van matched marks found on the victim’s body. A tennis shoe print was found on the inside of the van’s windshield. The shoe print was compared with the victim’s left tennis shoe and was believed to have been made by the shoe. On April 28, 1987, an off-duty Cleveland police officer found the victim’s body partially concealed by a barrel in a junkyard at East 84th and Grand Avenue in Cleveland. The body was partially nude with the pants and panties pulled down and the blouse in disarray. A piece of cardboard with a muddy shoe print was found near the body. The shoe print matched appellant’s right shoe. The coroner testified that the victim died as a result of multiple blunt impacts to the head, neck, trunk and extremities with multiple injuries to the brain and other internal organs. Altogether the victim suffered over ninety separate blows to her body. State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464, 466-67 (1990). B. Procedural History On August 31, 1987, a three-judge panel of the Cuyahoga County, Ohio Court of Common Pleas convicted Jells on two counts of kidnapping, in violation of Ohio Rev.Code § 2904.01, and one count of aggravated felony murder with a kidnapping specification, in violation of Ohio Rev.Code § 2903.01(B). On September 18, 1987, the same panel sentenced Jells to five to twenty-five years imprisonment on each of the kidnapping charges and death on the aggravated felony murder charge. State v. Jells, No. CR-217570 (Ohio Ct of Common Pleas, Oct. 6, 1987). On direct review, the Ohio Court of Appeals affirmed Jells’s convictions and sentence, State v. Jells, No. 54733, 1989 WL 43401 (Ohio Ct.App. Apr. 20, 1989), as did the Ohio Supreme Court, State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464 (1990). Jells filed his initial petition for post-conviction relief in the state trial court in November 1991 and an amended petition in April 1995. The trial court reviewed and denied Jells’s amended petition, and the Ohio Court of Appeals affirmed. State v. Jells, No. 72484, 1998 WL 213175 (Ohio Ct.App. Apr. 30, 1998). Jells filed a motion in support of jurisdiction for review by the Ohio Supreme Court on June 29, 1998. The Ohio Supreme Court declined to exercise jurisdiction and dismissed the case on September 23, 1998. State v. Jells, 83 Ohio St.3d 1431, 699 N.E.2d 946 (1998). On March 11, 1999, Jells filed an application to reopen his direct appeal in the Ohio Court of Appeals. That court denied his application, State v. Jells, No. 54733, 2000 WL 545963 (Ohio Ct.App. Apr. 26, 2000), and the Ohio Supreme Court affirmed, State v. Jells, 90 Ohio St.3d 454, 739 N.E.2d 345 (2000). On September 21, 1999, Jells filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of Ohio, alleging twenty-three grounds for relief. On March 18, 2002, the district court concluded that Jells’s claims were without merit and dismissed his ha-beas petition. The district court issued Jells a certificate of appealability (“COA”) on whether trial counsel rendered constitutionally ineffective assistance at sentencing. On appeal, this Court, on October 3, 2006, granted Jells a COA on the following additional issues: (1) whether the prosecution withheld material, exculpatory information from Jells in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) whether trial counsel rendered ineffective assistance of counsel by encouraging Jells to waive his right to a jury trial without properly informing him of the consequences of the waiver; (3) whether the trial court adequately informed Jells of the consequences of his jury trial waiver so that the waiver was knowing and voluntary; and (4) whether a line-up shown to a prosecution witness was unduly suggestive and rendered the witness’s in-court identification unreliable. II. STANDARD OF REVIEW Because Jells filed his federal ha-beas corpus petition after the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, became effective, the standard of review set forth in AEDPA applies to his petition: AEDPA prohibits a federal court from granting a writ of habeas corpus to a person in custody pursuant to a state court judgment with respect to a claim that was adjudicated on the merits in state court unless the adjudication of that claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Morales v. Mitchell, 507 F.3d 916, 928 (6th Cir.2007) (quoting Moss v. Hofbauer, 286 F.3d 851, 858 (6th Cir.) (quoting AEDPA, 28 U.S.C. § 2254(d)), cert. denied, 537 U.S. 1092, 123 S.Ct. 702, 154 L.Ed.2d 639 (2002)). With respect to the first of these bases for habeas relief, the Supreme Court has clarified that the phrase “clearly established” federal law refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state court decision.” Williams v. Taylor ("Williams”), 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is “contrary to” clearly established federal law as determined by the Supreme Court if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Id. at 412-13, 120 S.Ct. 1495. As to 28 U.S.C. § 2254(d)(2), a decision involves an “unreasonable application” of clearly established Supreme Court law if a “state court identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case,” id. at 407, 120 S.Ct. 1495, or if it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context.” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000) (citing Williams, 529 U.S. at 407, 120 S.Ct. 1495). That is, the federal habeas court “should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495 (emphasis added). “The Court has made clear that its relevant precedents include not only bright-line rules but also the legal principles and standards flowing from precedent.” Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002). Likewise, the statute’s plain language “restricts the source of clearly established law to [the Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. However, this Court “may look to lower courts of appeals’ decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court.” Foley v. Parker, 488 F.3d 377, 382 (6th Cir.2007). This Court applies AEDPA deference to the state courts’ determinations regarding the merits of a claim, but we review de novo all issues not reached by the state courts. Williams v. Anderson, 460 F.3d 789, 804 (6th Cir.2006). III. PROCEDURAL MATTERS A petitioner seeking a writ of habeas corpus “must meet certain procedural requirements to permit review of his habeas claims by a federal court.” Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir.2006). “The petitioner must first exhaust the remedies available in state court by fairly presenting his federal claims to the state courts; unexhaust-ed claims will not be reviewed by the federal court.” Id. (citing Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004); Lott v. Coyle, 261 F.3d 594, 601 (6th Cir.2001)). The exhaustion requirement “is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.” Lott, 261 F.3d at 608 (quotations and citations omitted). If a state court did not entertain a claim, a federal court will not review it where the state court’s omission is due either to the petitioner’s failure to raise those claims in the state courts while state remedies were available or to the petitioner’s failure to comply with a state procedural rule that prevented the state courts from reaching the merits of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006). In addition, this Court “may not consider a claim for habeas corpus relief if the claim was procedurally defaulted in state court — i.e., if the last state court to render a judgment in the case rejected the claim because it was not presented in accordance with the state’s procedural rules.” Girts v. Yanai, 501 F.3d 743, 753 (6th Cir.2007) (quoting Hargrave-Thomas v. Yukins, 374 F.3d 383, 387 (6th Cir.2004)). However, noncompliance with a state procedure will bar habeas review only if the state procedure satisfies the standards set forth in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). First, there must be a state procedure in place that the petitioner failed to follow. Maupin, 785 F.2d at 138. Second, the state court must have denied consideration of the petitioner’s claim on the ground of the state procedural default. Id. Third, to preclude habeas review, the state procedural rule must be an “adequate and independent state ground,” id., that is “firmly established and regularly followed.” Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A state procedural rule is an independent ground when it does not rely on federal law. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Further, this inquiry “generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Maupin, 785 F.2d at 138. If these three factors are satisfied, a petitioner can overcome the procedural default by either “demonstrating] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrating] that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. “Cause” for default requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel can constitute cause, so long as the ineffective assistance of counsel claim is not itself procedurally defaulted. Id. at 489, 106 S.Ct. 2639. “Prejudice” requires a showing that the errors at trial “worked to [petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Additionally, under the miscarriage-of-justice exception, the Court may consider an otherwise defaulted claim if it concludes that the petitioner has shown that the “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639). IV. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING A. The Ohio Court of Appeals Decision The Ohio Court of Appeals rejected Jells’s claim that counsel were ineffective in preparing for the sentencing phase of his trial: Petitioner next asserts that his trial counsel were ineffective in failing to introduce evidence regarding his troubled family and early life and in failing to utilize expert assistance. As an initial matter, we “must recognize that trial counsel is afforded broad authority in determining what evidence will be offered in mitigation.” State v. Frazier (1991), 61 Ohio St.3d 247, 255, 574 N.E.2d 483. We also reiterate that post-conviction proceedings were designed to redress denials or infringements of basic constitutional rights and were not intended as an avenue for simply retrying the case. Laugensen [Laugesen] v. State, [(1967), 11 Ohio Misc. 10, 227 N.E.2d 663] supra; State v. Lott, [(Nov. 3, 1994), Cuyahoga App. Nos. 66338, 66389, 66390, 1994 WL 615012] supra. Further, the failure to present evidence which is merely cumulative to that which was presented at trial is, generally speaking, not indicative of ineffective assistance of trial counsel. State v. Combs (1994), 100 Ohio App.3d 90, 105, 652 N.E.2d 205. In this matter, the mitigation presented at trial tended to focus upon petitioner’s loving behavior to his family, his good behavior at school, his obedience to authority and his teachers, his strong work ethic, and his tendency to walk away from an argument. In addition, trial counsel indicated that petitioner’s family had moved many times, and also presented expert opinion evidence that petitioner was of borderline intelligence and over-controlled his hostility. Finally, petitioner presented an unsworn statement in which he emphasized his work ethic, his empathy for Devon, his sadness at the tragic manner in which Stapleton must have met her death, and his disagreement with the verdict reached by the panel. Further, in its written opinion, the three judge panel observed that petitioner had presented evidence of, inter alia, character, family relationships, employment history, and emotional stability. Examining the evidence now offered de hors the record, we find that a certain measure of the evidence which petitioner now claims should have been admitted to be cumulative of what was presented at trial, i.e., the frequent moves, change of caregivers, borderline intelligence, superficial personality style. We are therefore unable to conclude that there is a reasonable probability that, but for this alleged omission of counsel, the result of his trial would have been different, and petitioner’s challenge to the effectiveness of counsel in this respect fails. See Sowell, supra, at 681, 598 N.E.2d 136. As to the remaining items concerning the other more tragic circumstances which petitioner now claims should have been admitted, i.e., his mother’s alcoholism and the abuse which he often witnessed, this information would appear to be completely inconsistent with the favorable portrait of petitioner which counsel presented at trial. That is, trial counsel emphasized the favorable aspects of petitioner’s life and chose to present him as someone who over controlled his negative feelings and had “no pathological difference” or “condition requiring treatment or * * * thought disorder.” (Tr. 584) Considered in light of the nature of petitioner’s defense at trial, we are compelled to conclude that the more negative information produced in connection with the amended petition for post-conviction relief is inconsistent with the essential trial strategy of working to establish reasonable doubt and in turn residual doubt that petitioner committed these offenses. We are therefore unable to conclude that counsel was ineffective in failing to present this information. Accord State v. Combs (1994), 100 Ohio App.3d 90, 103, 652 N.E.2d 205 wherein the court stated: A post conviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial. State v. Jamison (Nov. 10, 1992), Hamilton App. No. C-910736, 1992 WL 333011. The affidavits of Keefe and Smith presented mitigation theories that were no more than alternative or cumulative to the theories used by Fisher. Therefore, they do not support substantive relief under either prong of the Strickland-Lockhart-Bradley test. Accord State v. Lott, supra; State v. Williams (1991), 74 Ohio App.3d 686, 695, 600 N.E.2d 298 (rejecting the argument that trial counsel was ineffective by failing to put forth mitigation evidence on that defendant’s troubled childhood). Indeed, social worker Linda Pudvan’s averment that even negative family history is relevant to provide an “explanation of Mr. Jells life and behavior during his offense” and attorney Ken Murray’s averment that unfavorable information “further serves to explain the stresses and traumatic events that culminated the night of the offense” seem odd in light of the complete denial presented at trial. Jells, 1998 WL 213175, at *5-6. Because the Ohio Court of Appeals found that counsel’s performance was not deficient, it did not reach the prejudice prong of the Strickland analysis. B. The Legal Standard Jells claims that his counsel was ineffective during sentencing because counsel failed to investigate relevant evidence that could have been presented. We engage in a two-part inquiry when reviewing ineffective-assistance-of-counsel claims: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard applies to Jells’s claim: [Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Id. at 690-91, 104 S.Ct. 2052. We do not decide “whether counsel should have presented a mitigation case,” but rather “whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [Jells’s] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis in original). A Strickland violation is established where the scope of an attorney’s investigation into mitigating evidence prior to trial was “unreasonable in light of what” counsel knew about their client. Id. at 525, 123 S.Ct. 2527. C. Analysis The Ohio Court of Appeals correctly identified the Strickland standard as the governing federal rule. State v. Jells, No. 72484, 1998 WL 213175, at *2 (Ohio Ct. App. Apr. 30, 1998); see also Williams, 529 U.S. at 391, 120 S.Ct. 1495 (2000) (“It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ”) (quoting 28 U.S.C. § 2254(d)(1)); Bell v. Cone, 535 U.S. 685, 697-98, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (clarifying that Strickland is the rule that courts must apply to claims challenging the effectiveness of trial counsel during a capital sentencing hearing). However, we conclude that the Ohio court applied this standard to the facts of Jells’s case in an objectively unreasonable manner. 1. Deficient Performance In addition to the general Strickland standard regarding deficient performance, the Supreme Court has provided specific guidance with respect to reasonable professional assistance during the sentencing phase of a capital case. See Rompilla, 545 U.S. at 381-90, 125 S.Ct. 2456; Wiggins, 539 U.S. at 521-29, 123 S.Ct. 2527; Williams, 529 U.S. at 395-97, 120 S.Ct. 1495. In particular, the Court has recognized that counsel in a capital case has an “obligation to conduct a thorough investigation of the defendant’s background” to determine the availability of mitigating evidence. Williams, 529 U.S. at 396, 120 S.Ct. 1495 (citing ABA Standard for Criminal Justice 4-4.1 (2d ed.1980)); see also Anderson, 460 F.3d at 802 (“Defense counsel’s complete failure to investigate before deciding not to present mitigating evidence is deficient performance as a matter of law under Strickland.”); Harries v. Bell, 417 F.3d 631, 637 (6th Cir.2005) (“Counsel’s constitutional duty to investigate a defendant’s background in preparation for the sentencing phase of a capital trial is ‘well-established.’ ”) (quoting Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir.2001)). Counsel’s “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’” Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989)); accord Hamblin, 354 F.3d at 486 (finding Wiggins to “stand[] for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the ‘prevailing professional norms’ in ineffective assistance cases”). This constitutionally required background investigation is necessary to enable counsel to make strategic choices about presenting a mitigation defense. See Williams, 529 U.S. at 397, 120 S.Ct. 1495. Indeed, the deference owed to counsel’s strategic judgments about mitigation is directly proportional to the adequacy of the investigations supporting such judgments. See Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. Accordingly, when evaluating the reasonableness of counsel’s mitigation strategy in a capital case, “a reviewing court must consider the reasonableness of the investigation said to support that strategy.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527. “In assessing the reasonableness of an attorney’s investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Id. “[A]ny decision to forego mitigation evidence is unreasonable if not made after a reasonable determination to cease further investigation.” Spisak v. Mitchell, 465 F.3d 684, 704 (6th Cir.2006). In the instant case, Jells claims that his trial counsel were ineffective by: (1) failing to prepare for the mitigation phase of the case until after he was convicted; (2) failing to utilize a mitigation specialist to gather information about his background, including his educational, medical, psychological, and social history; (3) failing to request a continuance so that a proper mitigation defense could be prepared; and (4) failing to develop a mitigation strategy. For the reasons below, we conclude that the state courts’ failure to grant relief on the first two grounds was an unreasonable application of Strickland. (a) Failure to Timely Prepare Dr. James Eisenberg, Jells’s mitigation phase expert, testified at the habeas evidentiary hearing that he was not contacted by Jells’s trial counsel until September 2, 1987, two days after Jells had been convicted and only sixteen days prior to the mitigation hearing. Prior to that, counsel had failed to employ a mitigation specialist or expert who would have gathered evidence of Jells’s personal history and any available records. When Jells’s trial counsel contacted Dr. Eisenberg, they asked him to perform a psychological evaluation of Jells, but failed to provide him with Jells’s personal history records — records that would have been collected had they used a mitigation specialist — that were necessary for the evaluation. Without the history and records, Dr. Eisenberg was unable to perform the requested psychological evaluation. Thus, his testimony at the mitigation hearing was not supported by a complete evaluation of Jells, but was supported by the limited psychological test he had time to administer. In addition, Jells’s counsel “failed to conduct an investigation that would have uncovered extensive records” describing Jells’s difficult youth. Williams, 529 U.S. at 395, 120 S.Ct. 1495. Jells’s counsel interviewed only three family members, neglecting to speak with many other family members who had lived with Jells and were available. When speaking with the family members they did contact, their inquiry was brief and they failed to ask sufficiently probing questions; as a result they failed to discover the abuse that Jells received from his mother’s live-in boyfriend and his stepfather. Jells counsel did not obtain a psychological report prior to trial, and failed to obtain accessible school records — reports and records that would demonstrate that Jells had mental impairments, including learning difficulties that led to disruptions in the classroom and an extremely low reading level. Further, even if counsel could have claimed ignorance of Jells’s difficulties as a result of their abdication of responsibility to inquire into Jells’s background, information that would have “prodded” them into action was readily available to them in the Competency Report. This Competency Report provided the same sort of “prodding” information as the Department of Social Services records or the Presentence Investigation Report described in Wiggins, and, given such information, any “reasonably competent” attorney would have expanded the search for mitigating evidence beyond the three witnesses and would have questioned Jells and the three witnesses in further detail. See Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. The failure of Jells’s trial counsel to begin mitigation preparations prior to the end of the culpability phase of Jells’s trial was objectively unreasonable under Strickland. See Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995) (concluding that counsel’s “fail[ure] to make any significant preparations for the sentencing phase until after the conclusion of the guilt phase ... was objectively unreasonable”); see also Williams, 529 U.S. at 395, 120 S.Ct. 1495 (finding it significant that “counsel did not begin to prepare for [the mitigation] phase of the proceeding until a week before the trial”); Hamblin, 354 F.3d at 487 n. 2 (noting that, under the professional norms established by the ABA, a “mitigation investigation should begin as quickly as possible”); Greer v. Mitchell, 264 F.3d 663, 676-678 (6th Cir.2001) (“Under circumstances where a finding of guilty cannot come as a surprise, failure to anticipate such a finding so as to adequately prepare for the sentencing phase is constitutionally impermissible”)- Accordingly, the Ohio Court of Appeals unreasonably applied Strickland when it neglected to find that Jells’s trial counsel’s failure prepare for the mitigation hearing in a timely fashion constituted deficient performance. (b) Failure to Use a Mitigation Specialist We also conclude that Jells’s counsel were ineffective in failing to use a mitigation specialist who would have gathered information about Jells’s educational, medical, psychological, and social background necessary to prepare a proper mitigation defense. In a post-conviction affidavit, Dr. Susan Shorr, a mitigation specialist for the Cuyahoga County Public Defender’s Office, stated that Jells’s trial counsel initially requested her assistance but “never followed through on their request by formally involving [her] in the case.” Had her assistance — which she was willing to give — been obtained, she would have gathered evidence pertaining to Jells’s “developmental experiences,” “family dynamics and functioning,” “academic capacities and concomitant academic success or failure,” “interpersonal relationships and social adjustments,” “history of drug and alcohol abuse,” and general “psychological functioning.” Similarly, Dr. Eisenberg testified that Jells’s trial counsel did not appear to have consulted with any mitigation specialist or to have gathered the evidence that such a specialist would typically collect. In fact, Dr. Eisenberg testified that he could not recall ever having been involved in a mitigation case where he was provided absolutely no school records, medical records, psychological test results, or any social history to evaluate. Dr. Eisenberg stated that he not only never met with a mitigation specialist, but that the necessary information that is generally gathered by such a specialist was never presented to him. Jells confirms that no mitigation specialist was used in his case. In his affidavit, Jells states that he was never visited by anyone “who could assist [his] attorneys in preparing for mitigation. There were no mitigation specialists or investigators who visited or talked with [him] concerning [his] case or mitigation.” Due to the absence of a mitigation specialist, Jells “was unable to provide [his attorneys] with any background concerning [himself] or to assist in the mitigation phase of [his] trial.” In the context of Jells’s case, his counsel’s failure to employ a mitigation expert who would have fully investigated Jells’s educational, social, and psychological background was objectively unreasonable. In Williams v. Taylor, the Supreme Court found counsel ineffective where they failed to interview all available witnesses and failed to present evidence of “mistreatment, abuse, and neglect during [the defendant’s] early childhood, as well as testimony that he was ‘borderline mentally retarded,’ had suffered repeated head injuries, and might have mental impairments organic in origin.” 529 U.S. at 370, 120 S.Ct. 1495. The Supreme Court held that defendants have “a right — indeed a constitutionally protected right — to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.” Id. at 393, 120 S.Ct. 1495. Similarly, in Wiggins v. Smith, the defendant was found to have been deprived of competent counsel when his “counsel abandoned their investigation of [his] background after having acquired only rudimentary knowledge of his history from a narrow set of sources.” 539 U.S. at 524, 123 S.Ct. 2527. In Wiggins, counsel obtained the Presentence Investigation Report and records kept by the department of social services and procured a psychological investigation prior to trial. The Supreme Court held that “[e]ounsel’s decision not to expand their investigation beyond the [Presentence Investigation Report] and the [Department of Social Services] records fell short of the professional standards” that prevailed at that time, which required the preparation of a social history report, and below the standards promulgated by the American Bar Association, “standards to which we have long referred as ‘guides to determining what is reasonable.’ ” Id. (citing Strickland, at 466 U.S. at 688, 104 S.Ct. 2052; Williams, 529 U.S. at 396, 120 S.Ct. 1495). There, “[t]he scope of their investigation was also unreasonable in light of what counsel actually discovered in the [Department of Social Services] records,” which revealed evidence of alcoholism and neglect on the part of Wiggins’ mother. Id. at 525, 123 S.Ct. 2527. The Court held that “any reasonably competent attorney would have realized that pursuing these leads was necessary.” Id. See also Rompilla, 545 U.S. at 382, 125 S.Ct. 2456 (holding that counsel had a duty to examine Rompilla’s school records and incarceration records and to look for evidence of a history of dependence, as discovered information could have an “extenuating significance”). While Jells’s counsel did not have a specific obligation to employ a mitigation specialist, they did have an obligation to fully investigate the possible mitigation evidence available. See, e.g., Williams, 529 U.S. at 397, 120 S.Ct. 1495. Under Ohio law, the range of potential mitigation evidence is quite broad. To determine whether a sentence of death is appropriate, the Ohio death penalty statute provides that a three-judge panel must weigh against the aggravating factors, “the nature and circumstances of the offense, the history, character, and background of the offender ” and other relevant factors. Ohio Rev.Code § 2929.04(B) (emphasis added). Ohio law also give defendants “great latitude in the presentation of evidence of [mitigation] factors.” Ohio Rev. Code § 2929.04(C). Thus, to provide professionally competent assistance in Ohio capital cases, defense counsel must conduct a reasonably thorough investigation into all possible mitigation evidence that would present a sympathetic picture of the defendant’s family, social, and psychological background. See Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (noting that, according to ABA standards, “among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences”); Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir.2000) (concluding that defense counsel’s failure to investigate the defendant’s “family, social or psychological background ... constituted representation at a level below an objective standard of reasonableness”). Jells’s counsel failed to fulfill their duty to investigate Jells’s background prior to the mitigation hearing. That Jells’s counsel conducted some investigation of Jells’s background is evident from their limited presentation of Jells’s unstable childhood and academic difficulties during the mitigation hearing. However, while counsel generally has the discretion to determine that further investigation into available mitigating evidence is unnecessary, see Strickland, 466 U.S. at 699-700, 104 S.Ct. 2052, counsel’s awareness of Jells’s unstable home environment and academic difficulties should have alerted them that further investigation by a mitigation specialist might proved fruitful. See Wiggins, 539 U.S. at 524-25, 123 S.Ct. 2527 (finding counsel ineffective for having “abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources” and critiquing counsel for not pursuing leads discovered during his minimal investigation); Harries, 417 F.3d at 638 (critiquing counsel for “declin[ing] to seek the assistance of a mental health expert or conduct a thorough investigation of [petitioner’s] mental health, even after [petitioner’s] mother alerted them that [petitioner] suffered from mental illness”). (c) Failure to Request a Continuance We find Jells’s third argument, that his counsel were ineffective in failing to request a continuance to gather mitigation evidence, to be unpersuasive. Dr. Eisenberg testified that, when initially contacted by Jells’s counsel, he informed them that he did not have sufficient time to prepare a psychological evaluation because he needed more time “to collect records, to interview family members, [and] to work with the social worker to prepare a complete and thorough social history of [Jells].” Jells’s counsel did not request a continuance from the Ohio trial court. While the Court should not generally second guess trial strategy decisions such as requests for a continuance, see Strickland, 466 U.S. at 698, 104 S.Ct. 2052, counsel’s choice in this case not to seek more time to prepare adequately for the mitigation phase violated their obligation to “conduct a thorough investigation” of potential mitigating evidence. Williams, 529 U.S. at 397, 120 S.Ct. 1495. Because Jells’s counsel were under an obligation to investigate fully any potential mitigation evidence and were aware that gathering records of Jells’s social history would have assisted in presenting a psychological evaluation of Jells during the mitigation hearing, counsel’s failure to request more time to gather such evidence was objectively unreasonable. See Tucker v. Prelesnik, 181 F.3d 747, 756 (6th Cir.1999) (finding that counsel was ineffective in failing to request a continuance when “he was unprepared for trial and had not obtained critical evidence of which he was aware”). Nonetheless, it was not an unreasonable application of Strickland for the Ohio Court of Appeals to conclude that counsel’s failure to request a continuance did not constitute ineffective assistance. As noted above, this Court has generally afforded counsel great deference with regard to requesting continuances. See, e.g., Poindexter v. Mitchell, 454 F.3d 564, 575 (6th Cir.2006). It was not unreasonable for the Ohio court to afford counsel the same deference in this case. (d) Failure to Employ Any Mitigation Strategy Finally, we reject Jells’s argument that his counsel erred by failing to develop a mitigation strategy. In support of this contention, Jells points to Dr. Eisenberg’s testimony that Jells’s counsel never discussed a mitigation strategy with him nor indicated that they even had a strategy. Similarly, Jells states in his own affidavit that he does not recall his attorneys ever “discussing with [him] the purpose of mitigation, what the judges would be looking for as mitigating, or what qualifies for mitigation.” However, the fact that trial counsel did not share their mitigation strategy with Jells or with Dr. Eisenberg does not necessarily demonstrate that his trial counsel did not have a mitigation strategy. On the contrary, the Ohio Court of Appeals found that Jells’s counsel were operating “with the essential trial strategy of working to establish reasonable doubt and in turn residual doubt that petitioner committed these offenses.” State v. Jells, No. 72484, 1998 WL 213175, at *5 (Ohio Ct.App. Apr. 30, 1998). Jells contests this finding as an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Yet, Jells fails to offer any evidence, let alone the “clear and convincing evidence” needed, to rebut this factual determination of the Ohio Court of Appeals. 28 U.S.C. § 2254(e)(1). Moreover, even if the Ohio Court of Appeals’ characterization of counsel’s trial strategy can be viewed as unreasonable, the record clearly demonstrates that defense counsel, at a minimum, employed the “strategy” of presenting Jells as an appropriate candidate for life imprisonment rather than for the death sentence. This conclusion does not negate our earlier conclusion that’the Ohio courts unreasonably applied Strickland when they rejected Jells’s ineffective assistance of counsel claim, as “defense counsel’s decision to focus on residual doubt alone could not constitute a reasonable trial strategy because defense counsel never conducted an investigation into mitigation before deciding to pursue residual doubt.” Anderson, 460 F.3d at 804. In this case, Jells’s counsel failed to conduct an adequate investigation into potential mitigation evidence. This failure to investigate was objectively unreasonable, see id., and counsel’s decision to pursue a residual doubt strategy based upon that ineffective investigation was also unreasonable. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”). (e) Conclusion Regarding Deficiency Prong Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s background in preparation for mitigation. The Ohio Court of Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of professionally competent assistance constituted an unreasonable application of federal law as determined by the Supreme Court in Strickland. 2. Prejudice In addition to unreasonably determining that Jells’s trial counsel were not ineffective during the mitigation hearing, to the extent that it actually addressed prejudice, the Ohio Court of Appeals unreasonably determined that the alleged errors of Jells’s trial counsel did not prejudice Jells’s case. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Prejudice exists where the petitioner shows that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In capital cases, “the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating factors did not warrant death.” Id. at 695, 104 S.Ct. 2052. In Williams, the Supreme Court instructed that a prejudice determination must be made by “evaluating] the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the ha-beas proceeding — in reweighing it against the evidence in aggravation.” 529 U.S. at 397-98, 120 S.Ct. 1495. Further, “Mitigating evidence unrelated to dangerousness may alter the [sentencer’s] selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Id. at 398, 120 S.Ct. 1495. Prejudice is established where, taken as a whole, the available mitigating evidence “might well have influenced the [sentencer’s] appraisal of [the petitioner’s] moral culpability.” Id. at 398, 120 S.Ct. 1495. See also Wiggins, 539 U.S. at 536, 123 S.Ct. 2527 (concluding that “had the jury been confronted with [the] considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence”). (a) Evidence Presented at Mitigation Hearing In the instant case, the Ohio Court of Appeals reached the following conclusion concerning the evidence introduced at Jells’s trial: [T]he mitigation presented at trial tended to focus upon petitioner’s loving behavior to his family, his good behavior at school, his obedience to authority and his teachers, his strong work ethic, and his tendency to walk away from an argument. In addition, trial counsel indicated that petitioner’s family had moved many times, and also presented expert opinion evidence that petitioner was of borderline intelligence and over-controlled his hostility. Finally, petitioner presented an unsworn statement in which he emphasized his work ethic, his empathy for Devon, his sadness at the tragic manner in which Stapleton must have met her death, and his disagreement with the verdict reached by the panel. Further, in its written opinion, the three judge panel observed that petitioner had presented evidence of, inter alia, character, family relationships, employment history, and emotional stability- Jells, 1998 WL 213175, at *5. At the mitigation hearing, Jells’s counsel produced four witnesses — (1) Dora Jells Michael, Jells’s mother; (2) Barabaray Lee Jones, Jells’s uncle; (3) Anna Bee Jells, Jells’s maternal grandmother; and (4) Dr. Eisenberg — as well as unsworn testimony from Jells himself. Jells’s mother testified that Jells moved frequently as a child, from Mississippi to New York to Cleveland, and that he was raised by multiple family members. She further stated that Jells was “quiet,” “liked to work,” and “never gave [her] any problems, except what normal kids would do with parents.” Jones testified that he had helped raise Jells. Jones described Jells as a “happy-go-lucky” and nonviolent person, and, as far as Jones was aware, someone who did not have any disciplinary problems in school. Jells’s grandmother likewise testified that she assisted in raising Jells and was a strong influence in his life. She indicated that Jells did not have any problems at school, worked several jobs, and had an even temperament. Finally, Dr. Eisenberg provided expert testimony concerning the results of various psychological tests that he had administered to Jells. According to Dr. Eisenberg, an intelligence test showed that Jells has an IQ of 77, which “place[d] him in a borderline area of intelligence.” Other tests showed that Jells “has trouble in the area of dealing with feelings,” “tends to deny unpleasantness and hold things in,” has “a need for a strong nurturing figure,” and “doesn’t have the ability to cope well in unstructured situations.” In short, the tests showed that Jells has “a tendency to brush things under the rug ... minimize some of the unhappy experiences in his life, and ... prevent emotions such as sadness [from] coming to the surface.” Based on these tests, Dr. Eisenberg concluded that Jells did not suffer from any antisocial personality disorder or any other mental illness. Jells also offered his own unsworn testimony detailing his social and educational background. Jells described that he had moved frequently as a child, and that the moving had frightened him. He explained that he had difficulty with some subjects in school, and that he had been “beaten up” by bullies and occasionally got into fights at school. Jells further indicated that as a teenager he regularly did odd jobs for neighbors until he was sent to a juvenile detention camp for a year for stealing a purse. At the camp, Jells obtained a General Educational Development (“GED”) and, following his release, was consistently employed until the time of his arrest. Besides this testimony and that of the four witnesses, Jells offered no other mitigation evidence. (b) Withheld Evidence In contrast to the evidence produced during the mitigation hearing, the withheld evidence, which Jells’s counsel could have produced at Jells’s sentencing hearing if they had conducted an adequate mitigation investigation, paints a significantly more detailed picture of Jells’s troubled background. Jells’s school records reveal a history of serious cognitive learning and socialization impairment. These records detail Jells’s inability to function academically and his evolving behavioral response — from verbally acting out as the class clown to more openly aggressive tactics — to this frustration. In particular, Jells suffered from a learning disability which led to feelings of inadequacy and insecurity. Jells’s below-average intelligence affected his classroom performance. Jells also suffered “serious maladjustment” resulting from his frequent moves. Jells expressed these problems by angrily acting out at school. While school officials recommended that Jells receive counseling on a regular basis and suggested that a referral to a psychiatric clinic should be considered, such actions were never taken. Likewise, the school records reveal several missed opportunities to deal with Jells’s cognitive difficulties through special education and remedial classes. Jells’s educational troubles were compounded by his family situation. Jells’s mother had seven children with different men and she constantly moved in and out of relationships while Jells was living with her. Many of these relationships were abusive and Jells was a witness to the violence and cruelty that were inflicted upon his mother by her partners. The only two men who were somewhat permanent in Jells’s childhood home, Henry Delts and Ted Michaels, according to various affidavits, were aggressive and abusive to both Jells and his mother. Jells’s mother attested in her affidavit: “Whenever Henry would beat me, [Jells] would usually stand back and watch. [Jells] would then comfort me after the beating.” According to the affidavit Jells’s aunt submitted, Jells’s mother “was very frightened of Henry because of the physical and verbal abuse. Henry had been in the Army and he acted like he had been tortured in a concentration camp. He acted like he was torturing Dora the way he had been tortured. I believe [Jells] saw Henry beating Dora. Henry would also beat [Jells].” Another aunt attested: “I believe that [Jells] witnessed verbal abuse by Ted towards Dora. I believe that [Jells] does not like Ted.... [Jells] would rather not see the abuse.” Likewise, the abuse inflicted on Jells’s mother by Michaels was so upsetting that Jells would occasionally flee from his mother’s home to his grandmother’s house. Dr. Eisenberg and Dr. Nancy Schmidtgoessling, a psychologist who reviewed Jells and submitted a post-conviction affidavit, both concluded that this abusive home environment had a profound impact on Jells’s psychological development and lead to feelings of victimization that added to the frustrations he experienced in school. (c) Conclusion Regarding Prejudice Prong In light of the significantly greater detail about Jells’s psychological background provided by the evidence that Jells’s attorneys would have discovered if they had conducted a timely and complete mitigation investigation, there is a reasonable probability that at least one of the judges may have reached a different conclusion regarding the imposition of the death penalty. As opposed to the evidence presented at the hearing, the additional evidence shows that Jells experienced significant learning disabilities which caused him great frustration and led to increasingly aggressive behavioral responses. This additional evidence further demonstrates that Jells experienced a profound sense of victimization due to his mother’s abusive relationships. In short, rather than being cumulative, this evidence provides a more nuanced understanding of Jells’s psychological background and presents a more sympathetic picture of Jells. This Court’s recent decision in Morales confirms that Jells has made the required showing of prejudice. There, “the available information that Morales’s trial counsel failed to discover and present to the jury included many specific details about his tumultuous life, continued and uncontrolled alcohol and drug abuse, dysfunctional family history, potential mental health problems, and detailed cultural background. In light of the volume and compelling nature of this evidence, there is a reasonable probability that effective counsel could have achieved a different outcome.” Morales, 507 F.3d at 985 (quotation and citations omitted). See also Dickerson v. Bagley, 458 F.3d 690, 698-99 (6th Cir.2006) (holding that petitioner satisfied the prejudice requirement by showing that his counsel failed to discover evidence that he was nearly mentally retarded, did not have an active biological father, and grew up in an unstable environment surrounded by “pimps, prostitutes, and drug dealers”); Hamblin, 354 F.3d at 489-93 (holding that a petitioner satisfied the prejudice requirement by showing that his trial counsel neglected to discover that he “grew up in extreme poverty and neglect, surrounded by family violence and instability, had a poor education and likely suffers from mental disability or disorder”). The undiscovered and omitted evidence detailed above could have shifted the balance between aggravating circumstances and mitigating evidence for at least one judge on the panel, leading him to find that a sentence of life rather than death was appropriate. See State v. Ruppert, 54 Ohio St.2d 263, 375 N.E.2d 1250, 1254 (1978) (noting that Ohio Rev.Code Ann. § 2929.03(E), now codified at § 2929.03(D)(3), required unanimity of the panel of three judges in imposing the death sentence). That is all that is required for a showing of prejudice in a capital case during habeas review, and for the reasons above Jells has made this showing. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Wiggins, 539 U.S. at 535, 123 S.Ct. 2527. V. WITHHOLDING OF INFORMATION IN VIOLATION OF BRADY A. Legal Standard Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution must disclose all material, exculpatory evidence to a defendant, irrespective of whether the failure to disclose was done in good or bad faith. To assert a successful Brady claim, a ha-beas petitioner must show that (1) the withheld evidence was favorable to the petitioner, (2) the evidence was suppressed by the government, and (3) the petitioner suffered prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The Brady rule encompasses both exculpatory and impeachment evidence when such evidence is material. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). This Court explained in United States v. Bencs that “Materiality pertains to the issue of guilt or innocence, and not to the defendant’s ability to prepare for trial.” 28 F.3d 555, 560 (6th Cir.1994) (citing United States v. Agurs, 427 U.S. 97, 112 n. 20, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Evidence is material under Brady if a reasonable probability exists that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A reasonable probability is one that sufficiently undermines confidence in the outcome of the trial. Id. “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.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). When determining whether the withheld information was material and therefore prejudicial, we consider it in light of the evidence available for trial that supports the petitioner’s conviction. See Towns v. Smith, 395 F.3d 251, 260 (6th Cir.2005); Clinkscale v. Carter, 375 F.3d 430, 445 (6th Cir.2004). B. Procedural Concerns It is undisputed that the prosecution withheld from Jells during his trial the thirteen items of evidence that Jells presents in his petition. In fact, the City failed to provide much of this information despite Jells’s filing of a Freedom of Information Act request. In response to the Ci