Lead Opinion
OPINION
In 1987, Abu-Mi Abdur’Rahman was convicted of first-degree murder, assault with intent to commit first-degree murder, and armed robbery. He now appeals the district court’s denial of relief on his Rule 60(b) motion. For the following reasons, we AFFIRM.
BACKGROUND
On February 16, 1986, Abdur’Rahman purchased marijuana from Patrick Daniels and Norma Norman at the couple’s shared apartment in Nashville, Tennessee.
A jury convicted Abdur’Rahman of murder, assault with intent to commit first-degree murder, and armed robbery. At sentencing, Abdur’Rahman testified that he was encouraged to commit the robbery by a “quasi-religious paramilitary group” called the Southeastern Gospel Ministry (“SEGM”). He stated that the goal of the SEGM was to “cleanse the black community of drug dealers and other undesirable elements.” He also testified that Allen Boyd, a leader within the SEGM, furnished the shotgun he used during the crime, and aided him and Miller after-wards. Abdur’Rahman received the death penalty for his murdеr conviction and two consecutive life terms for each of his other convictions. The Tennessee Supreme Court affirmed Abdur’Rahman’s convictions and sentences, see State v. Jones,
Abdur’Rahman filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Abdur’Rahman v. Bell,
DISCUSSION
A. Standard of Review
We review a district court’s denial of a petitioner’s habeas claims de novo. Joseph v. Coyle,
Abdur’Rahman filed his § 2254 habeas petition on April 23, 1996- — one day before the effective date of the Antiterrorism and Effective Death Penalty Act. As a result, the pre-AEDPA standard of review applies here. See Coleman v. Mitchell,
B. Abdur’Rahman’s Cumulative Error Arguments
In addition to his individual Brady claims, Abdur’Rahman argues that these claims should be cumulated with the prosecutorial misconduct or Strickland claims he raised in his initial § 2254 petition. Even if these errors do not deny him due process when considered in isolation, Abdur’Rahman argues that the prejudice resulting from either cumulation makes his death-sentence unfair.
Because Abdur’Rahman raised these cumulative error arguments for the first time on habeas review, we may not consider them here. He suggests that we follow Derden v. McNeel,
Review of his cumulative error arguments is also foreclosed because the COA does not certify the claims for appeal. A COA is a “jurisdictional prerequisite” to the consideration of the merits of an appellant’s habeas claims, see Miller-El v. Cockrell,
C. Brady Claims
Abdur’Rahman argues that the prosecution violated Brady by withholding two pieces of evidence: Miller’s pre-trial statements explaining the influence of the SEGM over their crime, and Detective Garafola’s police report describing Abdur’Rahman’s self-destructive behavior at the time of his arrest.
“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment.” Bell v. Bell,
1. Miller’s Pre-Trial Statements about the SEGM
Abdur’Rahman’s first Brady claim concerns pre-trial statements that Miller made to the prosecution concerning the SEGM’s role in his murder of Daniels. No contemporaneous record of these statemеnts exists. Rather, Ross Aider-man, Miller’s state trial counsel, testified that Miller made pre-trial statements to the prosecution that conflicted with his eventual testimony at Abdur’Rahman’s trial. Abdur’Rahman derives the substance of Miller’s pre-trial statements from Miller’s testimony at a post-conviction hearing and at Miller’s sentencing hearing, and alleges that Miller said the following:
(1) The purpose of the SEGM was to rid the community of drug dealers; (2) the “sole” purpose of going to Daniels’s apartment was to effect the SEGM’s plan to
Abdur’Rahman argues that the district court erred because the prosecution never informed him before sentencing that Miller made these statements. At trial, Miller stated that the robbery was Abdur’Rahman’s idea and was committed for the purpose of stealing drugs. At the sentencing phase of the trial, Abdur’Rahman explained that he was influenced by the SEGM to rob Daniels, but the prosecution called this explanation “bunk.” Abdur’Rahman argues that Miller’s pre-trial statements could have been used at the sentencing phase not only tо corroborate his own testimony that the SEGM influenced him to go to Daniels’s apartment and attempt the robbery, but also to discredit Miller’s testimony that Abdur’Rahman masterminded the crime.
Because, at the time of the trial, Abdur’Rahman knew about the SEGM and knew that Miller had discussed the SEGM with the prosecution before trial, the district court correctly held, that withholding Miller’s pre-trial statements did not violate Brady. The Brady rule “only applies to evidence that was known to the prosecution, but unknown to the defense, at the time of trial.” Apanovitch v. Houk,
Here, Abdur’Rahman knew the essential facts reflected in Miller’s pre-trial statements before the sentencing phase. In fact, Abdur’Rahman’s testimony repeated the substance of Miller’s pre-trial statements, and Abdur’Rahman decided not to call Miller as a witness for this very reason. Abdur’Rahman testified that he and Miller were both members of the SEGM, that its purpose was to rid the black community of drug dealers, and that Beard and Boyd were leaders within the SEGM. Abdur’Rahman,
Nor does the impeachment value of Miller’s pre-trial statements require that we reverse the district court’s holding. Abdur’Rahman argues that the ultimate value of the withheld statements is not what was said, but rather that Miller said them. Abdur’Rahman, however, knew that Miller had discussed the SEGM with the prosecution before trial. Abdur’Rahman’s trial counsel wrote a letter to the prosecutiоn before the sentencing phase, acknowledging that Miller “ha[d] advised your office of the existence of [the SEGM].” The prosecution confirmed Abdur’Rahman’s understanding, stating that it had learned about the SEGM through its conversations with Miller. Given what Abdur’Rahman already knew about the SEGM and its influence, the prosecution’s acknowledgment that Miller discussed the SEGM with it before trial provided Abdur’Rahman sufficient information to enable him to impeach the credibility of Miller’s testimony at trial. Abdur’Rahman’s decision not to do so was not the fault of the prosecution. See Byrd,
2. Abdur’Rahman’s Head Banging upon Arrest
Abdur’Rahman’s second Brady claim concerns Detective Garafola’s report detailing his conduct upon arrest. On February 19, 1986, whén Abdur’Rahman was arrested for murdering Daniels, Detective Garafola authored a report that read, in part:
When we returned to our office Det Elmore and myself attempted to interview [Abdur’Rahman]. He was in an interview room and when we entered the room [Abdur’Rahman] was crying. He would not respond to our questions. The only statement he made was “I only killed one man in my life and that was because he was trying to fuck me.” He then started to hit his head on the table and then he jumped up still handcuffed to the chair and banged his head up against the wall. We got him under control and then took him to the booking room. In the booking room he started to bang his head on the wall again. Det Elmore was able to control him. We took Polaroid pictures of him and also mug shots with his glasses on and off.
The government concedes that this portion of Detective Garafola’s report was redacted and not shown to Abdur’Rahman at trial or before sentencing. Abdur’Rahman
As an initial matter, we are not convinced that, at the time of the sentencing phase, Abdur’Rahman did not know the essential facts of the behavior described in Detective Garafola’s repоrt. Although it is possible that Abdur’Rahman was not personally aware of his own head-banging, his trial counsel indicated that “something happened at the time [Abdur’Rahman] was arrested and he might have been put in a padded cell if he maybe lost his temper or something of that nature.” Trial counsel interviewed Detective Garafola and “talked about what happened at the point of arrest.” Moreover, a Davidson County Sheriffs Department incident report indicated that, four hours after his interview with Detective Garafola, “[Abdur’Rahman] started beating his head against the floor.” Abdur’Rahman has never claimed that this report was suppressed; apparently, however, his trial counsel apparently never took steps to obtain it. If Abdur’Rahman’s counsel did not know the essential facts of Abdur’Rahman’s head-banging as dеscribed by Detective Garafola, he likely should have discovered them through further investigation.
Because the prosecution’s suppression of this part of Detective Garafola’s report does not undermine our confidence in Abdur’Rahman’s sentence, the district court did not err in rejecting the second Brady claim. A failure to disclose evidence favorable to the defense is “ ‘material,’ and therefore ‘prejudicial,’ only ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Apanovitch,
To determine whether the nondisclosure of Detective Garafola’s report was material, Abdur’Rahman urges us to also consider the prejudice arising from his first Brady claim along with that arising from “the prosecutor’s further misconduct” — in particular, the presentation of his “prejudicial” indictments at sentencing and the suppression of a transcript from his 1972 murder trial. His request is over-broad. When granting a COA in this case, we “permitted [Abdur’Rahman] to make cumulative-effect arguments with respect to the subclaims on which [the COA was granted], even it if invоlves referring to the factual allegations that underpin prosecutorial-misconduct subclaims on which [the COA was denied].” In so stating, we merely acknowledged the well-established rule that, when considering the materiality of alleged Brady evidence, we consider the cumulative effect of all of the undisclosed
In analyzing materiality, we begin by looking at any prejudice arising from the suppression of part of Detective Garafola’s report. Had it been admitted in its entirety, it would have done little to establish Abdur’Rahman’s mental illness at the time of the offense or before. Abdur’Rahman was evaluated at the time of trial and found not to be incompetent or insane. As evidence of mental illness, Detective Garafola’s report is far from conclusive. Head banging like Abdur’Rahman’s could be a manifestation of many things (including frustration, anger, sadness, or mental illness) and therefore, in and of itself, is hardly dispositive of mental illness. Placing Abdur’Rahmаn in a padded cell is no more conclusive, and only represents the decision of law enforcement, not a mental health expert, that Abdur’Rahman was a potential danger to himself. The only other corroborating evidence of mental illness that Abdur’Rahman presented at sentencing was the testimony of himself and his wife. The addition of Detective Garafola’s report adds little to Abdur’Rahman’s narrative that he was mentally ill, and had it been presented, the prosecution could have rebutted it with considerable expert testimony to the contrary.
Nor would admission of Detective Garafola’s report have disproved the prosecution’s narrative characterizing Abdur’Rahman as a depraved killer. Abdur’Rahman’s head banging, under the circumstances described above, does not cоntradict the prosecution’s description of Abdur’Rahman as “not someone suffering from several emotional disturbance.” Further, because Abdur’Rahman testified to the contrary at his sentencing phase, Detective Garafola’s report does little to establish that Abdur’Rahman was susceptible to manipulation by the SEGM. Abdur’Rahman testified that the SEGM did not turn him into a murderer, and that Beard and Boyd were not involved in the crime. Abdur’Rahman,
In fact, based on Detective Garafola’s report alone, the jury could just as easily have viewed Abdur’Rahman’s head banging as evidence of his culpability rather than as mitigation. Abdur’Rahman had already been convicted of a prior murder at the time of his arrest and was now accused of stabbing another man to death. Once in custody, Abdur’Rahman surely knew that he faced either a death sentence or life in prison. Rather than mental illness, then, the jury could have viewed Abdur’Rahman’s head banging as evidence of guilt, distress or frustration that under
Our conclusion remains unchanged, even when considering materiality in light of any prejudice arising from the suppression of the 1972 murder trial transcript. As the district court noted in an earlier phase of Abdur’Rahman’s habeas proceedings, any prejudice arising from the suppression of that evidence was immaterial. See Abdur’Rahman,
AFFIRMED.
Notes
. The facts underlying Abdur'Rahman's Tennessee convictions are derived from this court’s review of his first habeas aрpeal, see Abdur’Rahman v. Bell, 226 F.3d 696, 699 (6th Cir.2000).
. As the warden notes, Abdur'Rahman argued in his petition for a writ of habeas corpus that the prosecution’s suppression of Miller’s statements was wrongful only because the statements contained exculpatory information. Abdur’Rahman did not argue that the statements would have impeached Miller’s trial testimony. While Abdur’Rahman may have waived this particular argument for purposes of appeal, see Barker v. Shalala,
. The dissent suggests our analysis on this point is flawed because we erroneously presume Abdur’Rahman's trial counsel was competent. While we did acknowledge Abdur’Rahman's counsel was ineffective in failing to investigate his background and mental health history, see Abdur’Rahman,
Dissenting Opinion
dissenting.
This saga appears to be drawing to an unjust close. Eleven years ago we reviewed Abdur’Rahman’s ineffective assistance of counsel claim after the district court found it meritorious and granted Abdur’Rahman a new penalty-phase trial. See Abdur'Rahman v. Bell (Abdur'Rahman I),
My colleagues disagreed. While leaving undisturbed the district court’s finding that counsel performed deficiently, they undid its prejudice determination — even though the Warden had never quarrelеd with it. See Abdur'Rahman II,
The majority’s prejudice analysis was wrong then and it has aged poorly. In Rompilla v. Beard,
This would all be water under the bridge if the majority’s Brady analysis did not ironically presume that Abdur’Rahman’s counsel was competent. But the fiction that the defense had the time and aptitude to discover what the prosecution had a constitutional obligation to provide underpins the majority’s dismissal of the exculpatory evidence at issue in the instant petition. With respect to the Garafola report, the majority washes its hands of the prosecution’s deliberate withholding of this evidence by insisting that Abdur’Rahman’s counsel knew the fuzzy contours of the report and that through investigation he “should have discovered,” Maj. Op. at 476, the essential facts that it contained. For the same reason, the majority dismisses compelling evidence from Devalle Miller’s own mouth that he lied on the stand. See Maj. Op. at 474-76.
The majority’s conclusion that this evidence — proving that the government’s star witness lied under oath and depicting Abdur’Rahman’s mental deficiency — falls outside Brady’s scope confounds me. The rationale offered is tenuous. The proposition that Abdur’Rahman’s testimony could substitute for the impeachment evidence because it too could be used to contradict Miller, or that, with the magic of cross-examination, Abdur’Rahman’s counsel could have forced Miller to confess the truth, reflects a poor understanding of the mechanics of trial. The notion that Abdur’Rahman’s counsel should have discovered the facts contained in the Garafola report presumes a competence that, as mentioned above, our prior deficient performance holding belies. See Abdur’Rahman II,
Still, these findings are of a piece with other significant decisions the majority has made in this case over the years: declining to find that Abdur’Rahman’s counsel’s performance prejudiced him, though the state never argued this point; refusing to cumulate all evidence of prosecutorial misconduct in the instant appeal, though the Certificate of Appealability (“COA”) permits it, the Supreme Court requires it, see Kyles v. Whitley,
Getting there is easier than you think. It merely requires a ceaseless commitment to privilege formalism over every other legal value; nowhere is that simpler to do than in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all the errors vanish. The spell does break eventually, when someone looks hard enough to see past the sleight of hand. Whether the revelation will come to a person with the authority to spare Abdur’Rahman, and in time, I do not know.
I. Brady Claims
A fair look at the suppressed Brady evidence, in the context of the penalty-phase trial that actually took place, undermines confidence in the verdict and demands issuance of the writ. The central issue there was whether Abdur’Rahman’s life should be spared because he was mentally disturbed. His psychological instabilities explained why he was susceptible to the Southeastern Gospel Ministry’s quasi-religious and militaristic message and why he erupted into the uncontrolled violence that resulted in Daniels’s death. The prosecution rejеcted this view out of hand, calling it “bunk,” (Penalty-Phase Tr., App’x at 727), and insisting to the jury that Abdur’Rahman was not impaired in the slightest. Through the prosecutor’s lens, the jury saw Abdur’Rahman as a base and depraved killer, in control of his actions, and who had killed wantonly before, in 1972.
To be clear, the prosecutor is required to do battle forcefully. But there are limits. The Constitution forbade him from fixing the fight by withholding every scrap of evidence that undermined the state’s case or would have allowed the jury to see Abdur’Rahman’s actions in a more sympathetic light. The prosecutor knew that Abdur’Rahman had raised insanity as a defense to the 1972 killing, but rather than comply with his ethical and constitutional obligations and disclose the transcript of that proceeding to the defense, the prosecutor lied to defense counsel, telling him that no evidence mitigated Abdur’Rahman’s prior crime, and (the morе pernicious invention) that it was committed in furtherance of a drug turf-war. The drug-turf-war fabrication devastated the defense, and the fallout entailed much more than the missed opportunity to present the suppressed evidence.
Stretched thin by a crushing caseload, defense counsel ran triage on Abdur’Rahman’s trial, see Mark Curriden, A Life in the Balance, A.B.A. J., Mar. 2011, at 47; his harried state and the rapport he felt with the prosecutor (they had opposed each other in several prior cases) explain why the prosecutor’s lies were so terribly successful. (See Zimmerman Post-Conviction Dep., App’x at 415-22 (admitting he aimed to prevent defense counsel from “getting into ... the 1972 murder”)); Curriden, supra, at 51. Making up a false motive for the prior crime that was consistent with the prosecution’s theory of the instant one (drug-related robbery) had two mutually reinforcing effеcts: it (1) bolstered the trustworthiness of the prosecutor’s core misrepresentation that no evidence mitigated the prior assault, and (2) left defense counsel with the intimidating impression that there might be something
The lie inflicted damage at another level because the prosecutor parroted it to the professional mental health evaluators at the Middle Tennessee Mental Health Institute who analyzed Abdur’Rahman’s mental state. (See Zimmerman Letter to MTMHI, App’x at 268-69.) It is hard to see how the professionals there could correctly assess the health of Abdur’Rahman’s mind without knowledge of his prior psychosis. So this single deception created a cascade nullifying every legal and administrative safeguard meant to ensure that the existence of Abdur’Rahman’s mental deficits reached the jury. A verdict resulting from a falsehood this disruptive cannot command confidence.
The prosecution’s mayhem continued with the suppression of the Garafola Report; its depiction of Abdur’Rahman banging his head against every surface of the police interrogation room would leave any reader with the impression that he was seriously disturbed. Armed with this evidence, defense counsel not only would have put on a more persuasive mitigation case to the jury, he also would have received a signal — in neon lights — urging him to delve further into Abdur’Rahman’s background. And the report would have prodded defense counsel to seriously doubt the prosecutor’s representations regarding the 1972 assault, as it quotes Abdur’Rahman saying “I only killed one man in my life and that was because he was trying to fuck me.” (Garafola Report, App’x at 178-75.)
Had defense counsel then inquired into the veracity of that statement, he would have discovered that Abdur’Rahman was involved in a trio of coercive and violent sexual relationships with other inmates in 1972, (see Elmer Bishop Dep., App’x at 617-18), and that the man he stabbed in 1972, Michael Stein, was a sexual “predator” who “preyed on ... younger, weaker inmates[, like Abdur’Rahman,] for sex.” (Id. at 624.) Furthermore, when Stein’s mother sued the prison for wrongful death under the Federal Tort Clаims Act, the government took the position, based on an FBI investigation, that Stein “was a member of a group of inmates who were attempting to apply extortionate pressures on [Abdur’Rahman] to submit to Stein’s demands for homosexual activities. The assault ... [on Stein] arose out of an attempted assault on [Abdur’Rahman] approximately two weeks earlier by members of this group.” (Id. at 627-28.) The absence of this evidence depicting an abused man lacking normal psychological brakes, and the compounding, down-the-line, effects of that omission on an overtaxed defense counsel, prejudiced Abdur’Rahman.
There is more. Testifying for the prosecution, Devalle Miller sold the lie that sent Abdur’Rahman down the river. Instead of telling the jury what Miller told the prosecutors, that he and Abdur’Rahman went to Daniels’s home tо further the mission of the SEGM to stop drug dealing in the community, and that both he and Abdur’Rahman were given weapons for that purpose by the charismatic leaders of the group, William Beard and Allen Boyd, Miller recited a motive that dovetailed with the prosecution’s case for death. In this alternative reality, Abdur’Rahman was the intimidating figure who compelled Miller to go to Daniels’s house and rob him — end of story. Miller left out that he had lied to Beard about where he would go into hiding
Lastly, on top of secreting away exculpatory evidence, the prosecutor had the .gall to taint the jury by showing them indictments from Abdur’Rahman’s prior crimes, in direct contravention of the trial court’s order and the prosecutor’s agreement. Those indictments revealed more than the admissible fact of the prior conviction, they also showed a separate robbery charge which never yielded a conviction. Though the jury was instructed by the trial court to disregard this improper evidence, the prejudicial effect of the indictments could not so easily be undone. Thus, through means that the Tennessee Court of Appeals found “bordered on deception” and “impropеr,” the prosecution received yet another affirmation of its view of Abdur’Rahman’s character, one which tracked precisely the prosecution’s theory of the crime of conviction — a depraved murder/robbery with no mitigating qualities. State v. Jones,
How to make sense of these discrete but mutually-reinforcing acts of malfeasance? The Supreme Court has emphasized that Brady “omission[s] must be evaluated in the context of the entire record,” United States v. Agurs,
The majority’s refusal to conduct this cumulative Brady analysis with the claims on which the cоurt denied a stand-alone COA (the 1972 transcript and the prejudicial indictments) has no support in the case law or the instant COA. Smith v. Secretary, Department of Corrections,
II. Brady/Strickland Claim
Abdur’Rahman mounts a final attack by banding together the Brady violations with his long-settled Strickland claims. See Abdur’Rahman II,
Were I able to reach this last claim, I would grant it for the reasons detailed above. The Brady violations and Strickland ineffective assistance fed off each other at trial in a perverse symbiosis that infected the verdict with constitutional error. Perhaps if Abdur’Rahman could have pursued his petition in another circuit his life might be spared in this procedural posture. See, e.g., Derden v. McNeel,
III. Conclusion
A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims, one thing about this case is undeniable: the prosecutor desecrated his noble role. He failed grossly in his duty to act as “the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States,
I dissent.