NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0527n.06

                                          No. 08-3411
                                                                                       FILED
                                                                                    Jul 31, 2009
                                                                              LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

FREDRICK HALL,                                       )
                                                     )
       Petitioner-Appellant,                         )
                                                     )      ON APPEAL FROM THE
v.                                                   )      UNITED STATES DISTRICT
                                                     )      COURT FOR THE SOUTHERN
HARRY RUSSELL, Warden,                               )      DISTRICT OF OHIO
                                                     )
       Respondent-Appellee.                          )


Before:        CLAY and ROGERS, Circuit Judges; JORDAN, District Judge.*

               LEON JORDAN, District Judge. Petitioner Fredrick Hall appeals the district

court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. For the reasons

that follow, we affirm.

                                                I.

               In 1999, an Ohio jury convicted Hall of felonious assault and attempted

murder. The charges pertained to the shootings of Kevin Davis and Johann Hart.

               Lolita Moore and Jimmie Martin claim to have at least partially witnessed the

shootings. Both were interviewed at the scene by responding Officer Stephen Fromhold.

According to Moore, she and Martin told police that the shots came from a moving vehicle


       *
        The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
containing three clean-shaven males in their early twenties. That version contradicts the

testimony of the victims, both of whom identified petitioner (middle-aged, not clean-shaven,

and sitting in a stationary car) as their shooter.

                Although subpoenaed by both sides, neither Moore nor Martin testified at

either of petitioner’s trials.1 Hall was aware of the content of Moore and Martin’s potential

testimony, however, because his attorney cross-examined Officer Fromhold extensively

during the first trial regarding those witnesses’ identities and oral statements.

                Soon after Hall’s conviction, defense counsel located Moore via an arrest

records search. Hall then learned of Moore’s claim that after the shooting both she and

Martin were taken to the police station where each produced a handwritten statement.2 The

police deny the existence of those documents, or that the two witnesses were ever even taken

to the station. No written statement by Moore or Martin was turned over to the defense.

                Alleging in part that the purported withholding of Moore and Martin’s written

statements violated Brady v. Maryland, 

(1963), Hall moved for a new trial. That

motion was denied. The Court of Appeals of Ohio subsequently affirmed the conviction,

State v. Hall, No. C-990639, 

(Ohio Ct. App. Aug. 18, 2000), and the

Supreme Court of Ohio denied leave to appeal.




       1
           Hall’s first trial ended in a mistrial for reasons unrelated to the proof.
       2
          Citing years of drug abuse, Martin is unable to recall whether he was taken to the police
station that night.

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              Hall then filed his petition for habeas relief, continuing to allege a Brady

violation. The district court directed the magistrate judge to conduct an evidentiary hearing

on that issue. The district court subsequently adopted the magistrate judge’s supplemental

report and recommendation denying the habeas petition. Hall v. Moore, No. 1:02-CV-00034,

(S.D. Ohio Feb. 29, 2008). A certificate of appealability was issued only

with respect to the Brady claim.

                                             II.

              In a habeas proceeding, we review a district court’s legal conclusions de novo

and its factual findings for clear error. Miller v. Webb, 

, 671 (6th Cir. 2004).

Further, Hall’s application cannot be granted with respect to any claim adjudicated on the

merits in a state court proceeding unless the adjudication:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States; or

       (2) resulted in a decision that was based on an unreasonable determination of
       the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

                                            III.

              To establish a Brady violation, Hall must show: (1) that the prosecution

willfully or inadvertently suppressed evidence; (2) that the evidence was favorable to him;

and (3) that the evidence was material. Strickler v. Greene, 

, 281-82 (1999).




                                             3
To satisfy the materiality prong, Hall must demonstrate “a reasonable probability that the

suppressed evidence would have produced a different verdict.” 

                The state appellate court addressed and rejected the materiality element of

Hall’s claim.

       Based upon Moore’s affidavit, we hold that her testimony would not have been
       exculpatory, but would have been cumulative evidence regarding the
       conflicting identification of the number of persons inside the Honda Accord
       and the identification of Hall as the driver of that vehicle. Moore was listed as
       a witness by the state, was subpoenaed by both parties, but was not called to
       testify by either party. Since Hall failed to call Moore as a witness, to seek a
       continuance, or to proffer Moore's expected testimony, Hall cannot claim that
       the discovery of this witness provided the basis for a new trial.

State v. Hall, 

, at *3. That decision was not based on an unreasonable

determination of the facts nor was it contrary to, or an unreasonable application of, Brady.

                Furthermore, at trial, Hall was aware of Moore and Martin’s identities and the

content of their potential testimony. Although the state court did not distinguish between the

oral and written statements, it was nonetheless reasonable to conclude that Hall had the

ability to obtain all of the information contained in the evidence he now claims was

suppressed. There is no Brady violation where the defense knew or should have known of

the exculpatory information, or where the disputed evidence was available from another

source. See Coe v. Bell, 

, 344 (6th Cir. 1998).

                We therefore AFFIRM the denial of habeas relief.




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