ROGERS, Circuit Judge. Richard Wayne Miller, convicted by an Ohio jury of aggravated murder and aggravated robbery in connection with the March 2002 slaying of Paul Brown, appeals the denial of his petition for a writ of habeas corpus. Miller argues that the state courts violated his constitutional right to present a defense by excluding evidence No. 09-3151 Miller v. Brunsman Page 2

that a third party, Scottie Guenther, had robbed and killed Brown. Because the evidence Miller proffered in support of his third-party perpetrator defense failed to show a sufficient nexus between Guenther and the Brown murder, and because the state courts’ weighing of the probative value of the evidence against its tendency to confuse the issues or mislead the jury was a reasonable application of clearly established federal law, Miller is not entitled to the habeas relief he seeks.

I.

The Court of Appeals of Ohio, on direct appeal, summarized the criminal case underlying this habeas petition:

On March 27, 2002, the body of 33-year-old Paul Brown was discovered lying face down in Two Mile Creek behind an apartment complex in the city of Hamilton, Ohio. Brown had been stabbed 14 times and his throat had been deeply slit from ear to ear. His wallet was found some distance downstream, his front pants pockets had been turned out, and $7.07 was found in his rear pants pocket. On May 26, 2004, [Miller] was indicted on one count of aggravated murder in violation of R.C. 2903.01(B) with two robbery specifications pursuant to R.C. 2929.04(A)(3) and 2929.04(A)(7), and one count of aggravated robbery in violation of R.C. 2911.01(A)(3). [Miller] entered a plea of not guilty on all charges. On February 8, 2005, following a seven- day trial, the jury returned a guilty verdict on the aggravated murder and aggravated robbery charges, including one of the robbery specifications. [Miller] was subsequently sentenced to life in prison without the possibility of parole.

State v. Miller, No. CA2005-02-048, 2006 WL 1519602, at *1 (Ohio Ct. App. June 5, 2006).

The victim, Paul Brown, was last seen alive on Saturday, March 23, 2002. See id. at *2. After attending a family birthday party, relatives had dropped him off at a bar called BW3’s around 9:30 p.m. Id.

Video surveillance placed Brown at a nearby Meijer store where he withdrew $50 from an ATM at approximately 10:00 p.m. . . . [T]he forensic pathologist who performed Brown’s autopsy[] opined that Brown may have died anywhere from the late hours of Saturday, March 23[,] to Monday, March 25. However, . . . Brown probably died before Monday.

Id.

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As a substantial part of his defense at trial, Miller had planned to present evidence that a third party, Scottie Guenther, had actually robbed and killed Brown. The defense called as its first witness Tamara Holcomb, who had dated Guenther for about two-and-one- half weeks in mid-March 2002. After Holcomb testified regarding her drug habits and those of Guenther during that period, the State objected to the relevance of her testimony. The court overruled the State’s objection. Holcomb then resumed her testimony, explaining that Guenther had been unemployed in March 2002 and “would hustle people out of their money” to support his drug habit; that he had been “out of control” when using or seeking out drugs; that, while they were both on drugs at a crack house on Heaton Street in Hamilton, Guenther had attacked a woman, “pull[ing] a knife up on her and thr[o]w[ing] her up against the wall and h[o]ld[ing] the knife to her throat”; and that there had been another “episode of violence” between Guenther and a man named JR at the same crack house later that month.

When the State again objected to Holcomb’s testimony, the parties, at sidebar, argued at length about the relevance of evidence showing Guenther’s whereabouts, drug usage, and violent outbursts during March 2002. Defense counsel stated, for example,

[O]ur next witness is going to say that on the day Paul Brown was found missing, demonstrated missing, Guenther was at [Roberta Turner’s crack] house and left and came back acting out of character, white face and wet, like he had been in a creek, and said I have to get rid of my clothes, and got rid of his clothes and threw it in a dumpster . . . .

However, defense counsel’s arguments did not persuade the court. When defense counsel asserted, for example, that Guenther’s drug addiction gave him a motive to rob Brown, the court responded, “That’s true with probably 1,000 people in Hamilton.” The court also asked, rhetorically, whether anyone could place Guenther at BW3’s, and then explained:

These are things we need to know if you are going to take somebody in here and say this is a drug addict and on that particular night had wet clothes and wanted to get rid of his clothes. That’s not enough, and especially when it is at least three miles or four miles away. Heaton Street is about three miles away from BW3’s.

The court concluded that defense counsel had not shown a sufficient nexus between Guenther and the Brown murder to overcome the State’s objection. As a result, the court

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sustained the objection, struck Holcomb’s testimony from the record, and instructed the jury not to consider her testimony during their deliberations. At that point, the court excused the jury for the day and gave defense counsel the opportunity to proffer additional evidence of Guenther’s involvement in the murder.

To make the proffer, defense counsel called Detective Cifuentes, the investigating officer assigned to the case, to question him about several witness statements and the investigation more generally. Detective Cifuentes confirmed that Guenther had been a suspect and that police had interviewed him multiple times. Guenther had been named as a suspect after Timothy Tidwell had called police on March 28, 2002, to report that Guenther and Holcomb “had gone out on Saturday night, early Sunday morning, and had come back to his [Tidwell’s] house and had bloody clothes.” Later in the day on March 28, Tidwell had delivered a bag of clothes to the police, but the clothes had been Holcomb’s, not Guenther’s, and they had not been stained with blood. Tidwell had explained to police that there were no stains because Holcomb had washed the clothes, but Detective Cifuentes testified that the clothes in the bag had smelled bad and were obviously dirty. By March 28, Guenther had been arrested for an unrelated breaking and entering; after Tidwell’s call, a detective had gone to the county jail to “inspect [Guenther’s] clothes for the presence of blood” and assess whether Guenther’s footprints matched those found at the scene of the crime. The detective had found no blood on Guenther’s clothes or shoes.

Tidwell also gave a statement on March 28. Tidwell said that when Guenther and Holcomb had come back to the house late on March 23 or early on March 24, they had said “they had just made a big score” and “that they had hurt somebody and got their money.” Tidwell claimed he could not remember what clothes Guenther had been wearing, but Tidwell could remember having seen blood on Guenther’s gym shoes. Detective Cifuentes remarked that Tidwell must have remembered what Holcomb had been wearing, because Tidwell had brought Holcomb’s clothes to the police station on the same day he had given the statement.

The police followed up on Tidwell’s statement by taking a statement from Holcomb on March 29. Detective Cifuentes testified, however, that by the time police had taken Holcomb’s statement, “we were not feeling that Scottie Guenther was a suspect anymore,

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but we still ha[d] to pursue the lead and peruse [sic] the complaint.” In her statement, Holcomb said she had been hanging around Tidwell’s house for a couple of days, starting on Wednesday or Thursday night before the weekend that Brown was killed. She also said, in relevant part, that she had “smoked dope with Tim,” “slept almost all day Saturday, and Saturday night,” and gone with Tim to visit his mother after waking up on Sunday morning.

Continuing their proffer, defense counsel read from two statements Guenther had given to police. In one statement, Guenther said there were rumors he had killed Brown and that “[i]t was so bad I couldn’t get a girlfriend because they all thought I [had] killed him.” In the other statement, made six days before the start of Miller’s trial, Guenther said, “I did not kill Paul Brown. I did not know Paul Brown,” and “I have never told anyone that I have killed Paul Brown.” Defense counsel noted that police had given Guenther a polygraph. Detective Cifuentes testified that police had seen the need for a polygraph “because even after we cleared [Guenther], rumors kept coming to surface and with the rumors coming to surface with no concrete evidence, we wanted to put to bed once and for all whether or not he could have been involved, and he was advised of that.”

Next, defense counsel asked Detective Cifuentes about Cindy Lou Rader’s statement, taken by police almost a year after the Brown murder. Rader, who claimed to have been Guenther’s girlfriend, indicated that Guenther had been released from jail on March 8, 2002, but that police had arrested him at her house on March 26 for a March 20 breaking and entering. Believing Guenther to be increasingly violent, police had looked for him at Rader’s house on March 23 and had told her to call them if he resurfaced.

Before Guenther’s arrest on March 26, Rader had last seen him on the afternoon of March 23, the same day Brown went missing. According to Rader, that afternoon, Guenther had taken a pocketknife off a dresser, opened and closed it, and then embraced her and given her what felt like a goodbye kiss. Guenther had told her, “I’m going to kill somebody”; then he had left.

Rader remembered that when Guenther had returned on March 26, he had been wearing different clothes. While packing, he had told her that “he wanted to go to Sojourner.” Detective Cifuentes disagreed with defense counsel’s interpretation of what Rader said Guenther had said next:

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Q . . . . [H]e makes a strange quote, this is on the 26th, right? A. Yes. Q. And his quote is, he would like to kill twice? A. No, that’s not what this says. Q. Made a strange quote to me and said he would like to kill twice? A. He would like to kill me twice. Q. No. A. In other words, he says it two times. Q. The copy I have has the “me” is [sic] crossed out? A. The “me” is written in. Q. On my copy it’s written—it’s crossed out.

Rader also stated that a woman named Tanya Holland had told her that Guenther had killed Brown. Rader recalled that Holland had said, “[Guenther] came to me and Tammy, and he was all covered in blood and him and J Dog were together and they came to [me]” and that Guenther had told Holland, “I killed him for ten bucks. All I got was ten bucks.” Holland had allegedly also told Rader that “Tammy” had cleaned the blood off Guenther and J Dog.

To follow up on Rader’s statement, police had taken a statement from Holland. Holland said Guenther had been at her house before he had gone to Rader’s on March 26. Holland then described Guenther’s activities during the weekend before his arrest: Guenther had been at the crack house and “hanging around a guy named L Dog”; Guenther and L Dog had left for a couple of hours in a car that belonged to one Darryl Hall, without Hall’s knowledge, although a woman named Amanda had given them permission; Guenther and L Dog had come back with $10 around 5:00 a.m. and had tried to buy crack from a dealer named JR; Guenther had then left for Rader’s house. At this point in the proffer, defense counsel stated, “I would . . . like to indicate that this statement indicates that Scottie Guenther left and came back with unexplained money.”

On cross-examination, however, the State pointed out that Holland’s statement continues:

Tammy Hatton was not the person that was with me in the room, Amanda was. We did not clean up anyone that was bleeding. Scottie never bragged to me about killing anybody. I listened to what you read to me from Cindy Rader. She is not telling it like I told her. Scottie and J Dog never came to me. I never cleaned up anyone that had blood on them. If I had seen Scottie come to me with blood on him and I knew he killed somebody, I would have

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turned him in. I like Scottie, but I don’t believe in killing anybody for anything, and I would have turned him in . . . .

Defense counsel also asked Detective Cifuentes about a statement given by Katherine Powers about a year after the murder. Powers stated that she had talked to Chris Rutledge, who had told her about an encounter between Travis Wright and Guenther. Rutledge had told Powers that Guenther had approached Wright wanting to trade a jacket for cocaine and that Guenther had told Wright “he had just got done beating a guy to death.”

Rutledge gave his own statement to police at about the same time as Powers. Rutledge said that Guenther had shown up at Rutledge’s house at some unspecified time; that Guenther had been “[a]cting wild and crazy”; that he had said he had “just” robbed and beat up a gay man, cut off the man’s penis, and hidden the man’s body in some woods; and that he had wanted to sell a Cleveland Brown’s jacket and some other items for drugs. Rutledge claimed he had learned about the Brown murder while watching television a few days later.

Defense counsel also introduced the statement of Tyrone Jasper, made almost two years after the murder. Jasper said Eddie Mack had heard Guenther confess to killing Brown. Detective Cifuentes testified, however, that a year after Jasper had given the statement, he had made a second statement, which implicated Miller, not Guenther. Similarly, although Eddie Mack had told police that “Guenther did it,” Mack later recanted that statement and implicated Miller.

Defense counsel concluded their proffer by arguing for the admission of their evidence:

The fact that Scott Guenther is out during the relevant period, which is March 8th to March 26th, and he is seen handling a knife on March the 23rd, the same day that Paul Brown is missing, making expressions of intent to kill on that particular day. Coming back on March the 26th and making further comments about killing and to his girlfriend who he would—who you could consider that he would provide that information to because of their relationship, consistent with the fact that during those three days in which we can account for Scott Guenther, the proffered evidence in the case that he is at a crack house on Heaton Street, and we have identified the witnesses at that crack house in the statements, Roberta Turner and Mike Sandlin [the apparent proprietors of the crack house], who were in our discovery, who are going to testify during that period of time, those three days, after he leaves with a knife and says he’s going to kill somebody, and

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he shows up at the house and leaves and comes back a period of hours later in a different demeanor than he was when he left, wet, and getting rid of his clothes. That alters the probabilities of the issue of identity in this case. The standard of relevance is low. You had some questions about whether or not there would be any connection or sense that Guenther came from Heaton Street to the west side and back. We now have evidence that he was in a car from the witness statements. Whether or not this Scottie Guenther defense is believable or not is not an issue for the Court. All you have to do, we submit, is determine whether or not the evidence that we could permit, that we would present would alter the probabilities. Moreover, we have presented evidence that Scottie Guenther would have a motive to kill somebody because he is a drug addict. He didn’t have a job. That’s already been testified to, and he had to steal and rob and do what he could to get his money to satisfy his fixes. There is certainly enough relevant evidence here to at least go to the jury, so this man in a capital murder case can present a defense. And I think one of the more important things that we learned from our proffer today is that immediately the day after the body is found the Hamilton police have focused on Scottie Guenther. There is a reason for that. We just followed it up.

Nevertheless, the court excluded the Guenther evidence from trial:

The action that we are here trying is whether the evidence presented by the State of Ohio can convince this jury beyond a reasonable doubt that Richard Miller committed a crime of aggravated murder and with a specification of aggravated robbery. .... The fact that there were other suspects in this murder and that the investigation was conducted by the police department and apparently[,] according to the detective[,] that satisfied that there was no evidence linking Guenther to the murder of Paul Brown[,] does not mean that all of that evidence, which they accumulated, all of a sudden becomes admissible. . . . I have found no link . . . between Guenther, the actions on the 23rd and the 24th and the 25th—to have anything to do with Paul Brown. I’m sure there are a lot of crimes that were committed in the City of Hamilton during that period of time. The fact that Guenther committed some crime and people indicated that he committed some crime and, again, I agree with counsel for the prosecution, most of what we have heard today ha[s] been chit-chat innuendo, and much of it has been disclaimed by the person that ma[d]e[] the statement. And presenting that to a jury, in my estimation, absolutely confuses the issue. If it is minimally relevant, I think it is still excluded by virtue of

No. 09-3151 Miller v. Brunsman Page 9 [Evidence Rule] 403(A), which although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues, or of misleading the jury. . . . The fact that there were other suspects and that the defense wants to present evidence of other suspects that the police developed, and who were eventually cleared, to me, is either not relevant or even minimally relevant[, and] is excluded by Evidence Rule 403(A).

After the case went to the jury, defense counsel made an additional proffer for the record. Defense counsel indicated that Holcomb’s testimony would have described in greater detail the “episode of violence” between Guenther and JR, including the fact that Guenther had put a knife to JR’s throat and attempted to take drugs from JR’s person. Holcomb also would have testified that on March 23, 2002, Guenther had threatened to hit her in the face with a beer bottle because he wanted her drugs, and that she had then taken him to the crack house on Heaton Street. Defense counsel would have called Roberta Turner to testify that Guenther had frequented her crack house in March 2002 and that, a few days after the March 20 breaking and entering, Guenther and Holcomb had come over to the house and then left for a few hours. Upon their return, Guenther had been “crestfallen and ashen and acting out of character,” “wet from head to toe,” and had “said he needed to get rid of his clothes because he had been involved in a crime.” Turner would have testified that she had thrown the wet clothes in a dumpster and lent him others. Finally, defense counsel would have called Dina Stingley, who would have testified that in 2003 “Turner had told her all of the things . . . put forward in this proffer.”

Miller sought review of his conviction in the Court of Appeals of Ohio, arguing that the trial court had violated his constitutional right to present a defense by excluding the Guenther evidence. Miller, 2006 WL 1519602, at *1, *4. The court of appeals concluded, however, that the trial court had not abused its discretion in finding the evidence only minimally relevant or in excluding the evidence under Rule 403(A). Id. at *6. The court of appeals distinguished the United States Supreme Court’s then-