Case Information
*1 Before GREGORY, Chief Judge, WYNN and DIAZ, Circuit Judges.
Vаcated in part and remanded by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Diaz concurred.
ARGUED: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Elizabeth Hambourger, Johanna Jennings, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
WYNN, Circuit Judge:
Following a bifurcated jury trial in the Circuit Court, City of Norfolk, Virginia, a jury convicted and sentenced to death Petitioner Anthony Juniper (“Petitioner”) for the January 16, 2004 murders of Keshia Stephens, her younger brother Rueben Harrison, and her two daughters Nykia Stephens and Shearyia Stephens. After unsuccessfully pursuing collateral relief from his conviction and death sentence in Virginia courts, Petitioner filed an action under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Virginia against Respondent David W. Zook, in his official capacity as Warden, Sussex I State Prison (“Respondent”). Before the district court, Petitioner asserted numerous bases for relief, including that his prosecutors failed to turn over certain pieces of “material” exculpatory and impeaching evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963). The district court granted Petitioner limited documentary discovery, denied Petitioner’s request for an evidentiary hearing, and rejected all of Petitioner’s claims and dismissed his petition.
After conducting a careful review of the record, we conclude that the district court abused its discretion in dismissing Petitioner’s Brady claim without holding an evidentiary hearing because it failed to assess the plausibility of that claim through the proper legal lens. Accordingly, we vacate the district court’s decision as to the claim and remand the case to the district court for further proceedings consistent with this opinion. [1] *3 I.
A.
According to the evidence presented at trial, Petitioner and Keshia Stephens had
been involved “in an on-again, off-again tumultuous relationship for approximately two
years.”
Juniper v. Commonwealth
,
Rashid drove to the house of Gwendolyn Rogers, Petitioner’s mother, where she met Rogers and Keon Murray, a friend of Petitionеr. Murray, also testifying under a grant of immunity, said that while at Rogers’s house he received a call from Petitioner, which originated from Keshia’s phone number. According to Murray’s testimony, Petitioner told Murray over the phone that “They gone,” and that Petitioner “killed them,” but did not name whom he had killed. Id. at 395.
Murray then called his friend Tyrone Mings, a twice-convicted felon who lived with
his girlfriend, Melinda Bowser, one block from Keshia’s apartment building. According
to Mings’s testimony, Murray asked Mings to check on Keshia’s apartment because
“[Murray] heard some shots.” J.A. at 412. Some time later, Mings walked down the street
to Keshia’s apartment and found that Keshia’s front door appeared to have been “kicked
in.” ,
Upon entering Keshia’s apartment, Mings testified that he saw [Petitioner] standing in the living room with a white substance on his face and holding an automatic pistol. When Mings asked [Petitioner] about Keshia, [Petitioner] directed Mings to the back of the apartment. Upon entering the master bedroom, Mings saw Rueben and a young girl lying on the bed. Mings did not see Keshia and asked [Petitioner] where she was. [Petitioner] told Mings she was “between the bed and the dresser.” Mings returned to the bedroom and called to thе people in the room, but no one answered. Mings departed Keshia’s apartment, leaving [Petitioner] in the living room, still holding the pistol. Mings testified that he then returned to his apartment and told Bowser what he had
seen at Keshia’s apartment.
Meanwhile, according to Rashid’s and Murray’s testimony, Rashid and Murray left Rogers’s apartment in Rashid’s car, picked up Petitioner’s cousin, John Jones, and *5 proceeded to Keshia’s apartment building. While Rashid waited in the car, Murray and Jones got out of the car and searched for Petitioner. Jones called out several times for Petitioner to “[c]ome out.” J.A. 406. Petitioner came down to the car and got into the passenger seat, beside Rashid. Murray and Jones got in the back seats. Both Rashid and Murray testified that Petitioner was holding a handgun when he got in the car. Id. at 390, 408. Rashid further testified that Petitioner “appeared to be jittery” and “was breathing real hard.” Id. at 389. And according to Murray, Petitioner “look[ed] nervous.” Id. at 407.
After telling Bowser what he had seen, Mings walked back from his apartment toward Keshia’s apartment. Mings testified that while he was walking to Keshia’s apartment, he saw Petitioner, Murray, and Jones leaving Keshia’s apartment. Mings then observed Petitioner, Murray, and Jones get into a car, which was driven by “a female,” and drive off. Id. at 415-17. At that point, Mings walked back to his apartment. Mings testified that when he returned to his apartment, Bowser called the police. At trial, a Norfolk Police officer testified that at 12:44 p.m. he responded to a call reporting a disturbance and possible gunshots at Keshia’s apartment. The officer, who was later joined by another officer, walked around the complex, talked to two residents, and, finding nothing troubling, “left the apartment complex believing the call to have been a false report.” , 626 S.E.2d at 395.
Meanwhile, Rashid drove Petitioner and Jones to Jones’s apartment, and then returned to her own apartment. Rashid testified that, after arriving at home, she called Petitioner’s mother. Phone records introduced at trial established that this call occurred at 1:10 p.m.
In the meantime, Mings walked back to Keshia’s apartment a third time, this time accompanied by Bowser. On the way to her apartment, Mings and Bowser saw the officers who had responded to the 12:44 p.m. call leave. Mings and Bowser returned to their apartment, and Bowser called the pоlice a second time. At approximately 2:20 p.m., a large number of Norfolk Police Department officers responded to a second call regarding a disturbance at Keshia’s apartment. Mings and Bowser were waiting outside the apartment when the officers arrived. Mings testified that he told the officers there were victims inside, but did not tell the officers that he had observed Petitioner inside the apartment with a gun because Mings “feared for [his] safety.” J.A. 419.
One of the officers who responded to the 2:20 p.m. call testified that, when he
reached the front door of Keshia’s apartment, the “whole center part of the door was
completely knocked . . . inward into the apartment, and wooden debris from the door was
lying inside the apartment.” ,
Nykia’s body lying across Rueben on the bed in the master bedroom. They then observed Shearyia’s body lying across Keshia’s body on the floor beside the bed. The officers received no response from any of them. . . .
All four victims . . . died as a result of gunshot wounds. Keshia was stabbed through her abdomen, shot three times, and grazed by a fourth bullet. . . . The stab wound did not fatally wound Keshia, but tore through the muscle of her abdominal wall. There was a great deal of blood accompanying the wound, however, which led the medical examiner performing the autopsy to conclude that the stab wound was probably the first injury inflicted on Keshia. . . . Two-year old Shearyia was shot four times while in her mother’s arms. . . . Rueben Harrison was shot three times. . . . Four-year old Nykia was shot one time behind her left ear. at 394–95.
At the crime scene, police officers found the handle and blade of a steak knife, which originally were joined. According to expert testimony, the “stab wound was consistent with a wound that would have been caused by the knife blade found at the scene of the crime.” Id. at 394. Investigators found Petitioner’s latent thumbprint on the part of the knife blade nearest the handle, and Petitioner’s DNA on the knife handle. Investigators also found a cigarette butt bearing Petitioner’s DNA at the threshold of the apartment.
Although law enforcement officers never recovered the firearm used to kill the victims, a firearms expert concluded “the bullets recovered from the victims’ bodies were fired from a single nine-millimeter, Luger semi-automatic pistol.” at 395. At the crime scene, law enforcemеnt officers found an ammunition box that contained the type of bullets used to kill the victims, as well as a number of cartridges and cartridge casings. Although the investigators did not identify any prints of value on the cartridges or cartridge casings, they did find a print of value on the ammunition box. Investigators could not identify to whom the print on the ammunition box belonged, but concluded it was not Petitioner. On the bed in the master bedroom, beside the victims, law enforcement officers found an ashtray with a cigarette butt. DNA found on the cigarette butt belonged to an “unknown individual,” not Petitioner nor any of the victims. J.A. 385.
B.
On April 7, 2004, a grand jury indicted Petitioner for capital murder, use of a firearm in commission of a felony, and statutory burglary. A jury convicted Petitioner of four counts of capital murder, statutory burglary while armed with a deadly weapon, and four *8 counts of use of a firearm in commission of a felony. , 626 S.E. 2d at 393. Following a separate sentencing hearing, the jury sentenced Petitioner to death.
Petitioner directly appealed his conviction and death sentence to the Supreme Court of Virginia, asserting numerous grounds for relief. Finding no reversible error, the Supreme Court of Virginia affirmed Petitioner’s conviction and sentence on March 2, 2006. at 427–28.
On December 11, 2006, Petitioner filed a petition for state collateral relief. The
120-page petition exceeded the relevant 50-page limit, and Petitioner concurrently filed a
motion for relief from the page limitation. The Supreme Court of Virginia denied
Petitioner relief from the page limit and directed Petitioner to refile his petition in
compliance with the 50-page restriction. Petitioner refiled his state collateral relief petition
on March 2, 2007, alleging, among other claims, that the prosecution failed to turn over
material exculpatory evidence, that the prosecution failed to correct testimony it knew to
be false, and that he was denied effective assistance of trial counsel. Petitioner also twice
moved the court to permit additional factual development, specifically requesting, among
other materials, that the court “order the Commonwealth to provide habeas counsel copies
of all taped, typed, or otherwise memorialized interviews or statements taken in connection
with investigating [Petitioner in] the above-captioned case.” J.A. 746. Respondent
opposed Petitioner’s request for discovery, twice representing that Petitioner “was
provided everything required by law[.]”
Id.
at 682, 764. On March 4, 2011, the Supreme
Court of Virginia denied Petitioner’s request for additional factual development and
*9
dismissed his habeas petition.
Juniper v. Warden of Sussex I State Prison
,
In 2011, the lead investigator in Petitioner’s case, Detective R. Glenn Ford, was federally prosecuted for and convicted of taking bribes from drug defendants in exchange for falsely representing to judges and prosecutors that those defendants had cooperated in homicide investigations. During that prosecution, it was revealed that investigative notes maintained by Ford related to Petitioner’s case had not been turned over to Petitioner’s trial counsel. Among several pieces of allegedly exculpatory information included in the investigative notes, the notes stated that, in the immediate aftermath of the murders, investigators interviewed one of Keshia’s neighbors, Wendy Roberts, and asked her to view a photo line-up. Petitioner’s trial counsel did not know that Wendy had discussed Petitioner’s case with investigators.
Investigators assisting in Petitioner’s habeas proceedings approached Wendy, who provided an affidavit averring that the night before the murders she heard a man and woman arguing in Keshia’s apartment. She heard arguing again the following morning. And then in the afternoon, as she was taking her dog outside, she heard “a series of loud pops.” J.A. 885. Soon after, a man came down the stairs from Keshia’s apartment and told Wendy “What the fuck are you looking at lady?” Id. at 886. The man then got into an “older” “large four-door car” (not a truck, van, or SUV) and drove off. Wendy stated that the man, who was one of three African-American men who regularly visited Keshia’s apartment, was the only person in the car. Wendy further averred that this occurred *10 sometime between 1:00 and 2:30 p.m. and approximately five minutes before a large number of police officers arrived.
Wendy’s son, Jason, also provided an affidavit to Petitioner’s habeas investigators. Jason, who lived with Wendy at the time of the murders, averred that he heard “gunshots” and looked out his window and saw an African-American man running to a car parked in front of Keshia’s building. Id. at 888. Jason said he immediately ran outside and saw the man get into the driver’s seat of the car and drive off. According to Jason, within five minutes, approximately thirteen police officers arrived.
Attaching the Roberts’s affidavits and the investigative notes, Petitioner filed with the Supreme Court of Virginia a new motion seeking factual development related to the newly uncovered evidence. Petitioner’s motion specifically sought, among numerous requests:
All documents, reports, records, notes, memoranda, and recordings of whatever sort and in whatever meeting medium of meetings and contact between law enforcement authorities for the Commonwealth (including prosecutors, police, and agents or representatives of the Commonwealth) and Melinda Bowser, Tyrone Mings, Kevin Waterman, Wendy Roberts, Jason Roberts, Bernadette Patterson, John Jones, Jr., Sharon Louise Shell, Derrick ‘Breon’ Banks, Renee Rashid, Keon Murray, and Carlisha Stephens, that in any way involved the investigation or prosecution of [Petitioner] for murder, capital murder, or related offenses.
Id. at 920. Respondent opposed Petitioner’s request for additional factual development, arguing that the motion was untimely аnd that Petitioner’s “assertion of a violation is without merit.” Id. at 890–91. Petitioner also filed a second petition with the Supreme Court of Virginia seeking collateral relief from his conviction based on the newly uncovered information. The Supreme Court of Virginia denied the second petition on the *11 ground that it was not timely filed and denied the request for additional factual development.
On January 30, 2012, having exhausted his state remedies, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Virginia. The federal habeas petition asserted many of the same bases for relief as Petitioner’s state habeas petitions, and also asserted a claim under related to the withheld Roberts evidence. Petitioner sought extensive discovery related to the information revealed in the withheld investigative notes. Respondent opposed Petitioner’s request for discovery and moved to dismiss the petition. In opposing Petitioner’s request for discovery, Respondent again represented that Petitioner “received all the discovery that state and constitutional law required at his trial.” Warden’s Opp. tо Pet’r’s Mem. in Supp. of Mot. for Leave to Conduct Disc., Juniper v. Pearson , No. 3:11-cv-746, at 4 (E.D. Va. Aug. 6, 2012), ECF No. 64.
After initially denying Petitioner’s discovery request in its entirety, the district court granted Petitioner limited documentary discovery regarding the Roberts’s statements to investigators. In particular, the district court ordered production of the following documents:
1. Notes, reports, and memoranda—whether handwritten, typed, dictated, or transcribed—relating to or including information about conversations between the Norfolk Police Department and Wendy Roberts or Jason Roberts on or about January 16-17, 2004.
2. Notes, reports, and memoranda—whether handwritten, typed, dictated, or transcribed—from the Norfolk Police Department officers who showed Wendy and Jason Roberts a photo lineup at their home on January 17, 2004, or were present when they viewed that photo lineup, regarding this interaction with them.
3. The photo lineup shown to Wendy and Jason Roberts on January 17, 2004, along with the names and identifying information of each person whose photograph was included in the lineup.
4. Any memoranda, letters, or notes—whether handwritten, typed, dictated, or transcribed—between the Norfolk Poliсe Department personnel and the Norfolk Commonwealth Attorney’s Office regarding Wendy and Jason Roberts, the photo lineup they viewed, statements they made, and conversations they had with Norfolk Police Department personnel.
J.A. 1147.
In response to the district court’s discovery order, the State produced three pages of typed investigative notes from Petitioner’s case, a six-picture photo array, and sworn affidavits from Deputy Commonwealth’s Attorney Phillip G. Evans II, who handled Petitioner’s case at trial, and Detective William A. Conway of the Norfolk Police Department, who participated in the investigation of the Stephens’s murders. Two pages of the typed notes were excerpted from the investigative notes Petitioner had already obtained as a result of Ford’s criminal trial. The final page of notes was purportedly prepared by Investigator D.I. Jones, who worked in the Norfolk Police Department’s Forgery Unit and also responded to the Stephens’s murders. Investigator Jones’s notes reported that he interviewed Wendy and Jason Roberts on the day of the murders, who, according to the notes, stated as follows:
Ms. Roberts stated that on 1-16-04 about 9:30 to 10AM a B/M in an older red Toyota pulled into the apt lot and was arguing with a B/F. She stated that they argue about three or four times a week. She thinks he is an ex-boyfriend. He came back around 12:30 or 12:45 today and they were arguing again. She heard the B/M tell the female that she had not better be there when he returned. About 1:30 PM today she heard what she thought was firecrackers. She said it was three or four bangs. She said the female moved into apt 1 around Christmas time. She said the B/M comes around in the Toyota all hours of the day and night and beeps the horn for her. He comes around the *13 apt about 7:30 AM each morning wanting to see the kids. She said the male is about 6-2 150 lbs late 20’s in an older red Toyota like a Corolla. [2] The female is small 5-1 in her 20’s. [3] There is also another B/M that drives a older blue and white Ford 150 with a white camper shell that also goes to the apt. He is a very large fat guy. Jason was not home at the time of the argument, but has seen the people and the vehicles many times. He also heard the bangs when he got home and thought it was someone hammering. Both will call if they see the vehicles and will write down the license plates. The[y] believed there were 3 children that lived there, but they were not sure.
Id. at 1161. According to the investigative notes revealed in Ford’s trial, on the night of the murders Ford and Detective Conway “spoke with Wendy Roberts, whose statement was consistent with that of the interview given to Detective D.I. Jones.” Id. at 1162. Deputy Commonwealth’s Attorney Evans’s and Detective Conway’s affidavits highlighted several inconsistencies between Jones’s notes and Wendy’s 2011 affidavit, and Detective Conway further averred that the “2011 Affidavit included numerous assertions which she never said to me on January 17, 2004[.]” Id. at 1175.
Deputy Commonwealth’s Attorney Evans’s and Detective Conway’s affidavits stated that the State could not confirm that the six-photo array, which included Petitioner, was the array shown to Wendy on the day of the murders, but that the array was in the State’s file and resembled the black-and-white array Detective Conway recalled showing *14 to Wendy on the night of the murders. [4] According to the investigative notes, Wendy, although not “100 percent sure[,] . . . picked out the lower left” photo, which was not Petitioner. Id. at 1163.
Deputy Commonwealth’s Attorney Evans’s affidavit also described the prosecution’s rationale for not disclosing the Roberts materials to Petitiоner’s trial counsel before trial. According to Deputy Commonwealth’s Attorney Evans, a 911 chronology— which, according to Petitioner, the prosecution also did not disclose to Petitioner’s trial counsel—coupled with Mings’s trial testimony that Petitioner committed the murders before Mings first called 911, “clearly proved that the murders of the four victims occurred prior to the first Norfolk Police Department response initiated at 12:44 p.m. on January 16, 2004.” Id. at 1156. Deputy Commonwealth’s Attorney Evans’s affidavit further maintained that the Roberts materials were not “material[ly]” exculpatory—and thus not subject to disclosure under —because (1) “Wendy Roberts’ statements on January 16, 2004 were factually inconsistent with the documented event chronology of the Norfolk Police Department response and activities in and around [Keshia’s apartment] on January 16, 2004” and (2) “[t]he objective record to include the 911 calls [Event Chronology] and the eyewitness statements [memorialized on the 911 calls] proves that the murders did not occur at 1:30 p.m. [Roberts’s statement in 2004] or ‘between 1:00 p.m. and 2:00 p.m.’ [per *15 Roberts’ 2011 Statement].” Id. at 1159–60 (final four bracketed phrases retained). Deputy Commonwealth’s Attorney Evans and Detective Conway further averred that, based on a thorough review, the documents produced in response to the district court’s order were all documents in the Commonwealth’s files responsive to the order.
After receiving the additional materials, Petitioner moved the district court for leave to conduct additional documentary and deposition discovery, asserting that “the affidavits and attached exhibits raise additional questions” warranting such discovery. Id. at 1195. Respondent again opposed further discovery. The district court denied Petitioner’s request for additional discovery on March 12, 2013.
On March 23, 2013, the district court denied Petitioner’s Section 2254 petition in
its entirety. ,
II.
On appeal, Petitioner argues that the district court erred in dismissing on the merits his claim premised on the withheld Roberts materials, or, in the alternative, that the *16 district reversibly erred in dismissing the Brady claim without conducting an evidentiary hearing and allowing further factual development. For the reasons that follow, we conclude that the district court reversibly erred in ruling on the merits of Petitioner’s claim without holding an evidentiary hearing, and therefore do not reach Petitioner’s contention that the district court incorrectly denied that claim on the merits.
A.
We review a district court’s decision to deny a habeas petitioner an evidentiary
hearing for abuse of discretion.
Conaway v. Polk
,
*17
A petitioner diligently has pursued his habeas claim in state court if he “‘made a
reasonable attempt, in light of the information available at the time, to investigate and
pursue claims in state court.’”
Id.
at 589 (quoting
Williams (Michael) v. Taylor
, 529 U.S.
420, 435 (2000)). “At a minimum, a diligent petitioner must ‘seek an evidentiary hearing
in state court in the manner prescribed by state law.’” (quoting
Williams
, 529 U.S. at
437)). “Importantly, . . . in determining whether a petitioner has been diligent, the question
is not whether the facts could have been discovered but instead whether the prisoner was
diligent in his efforts.”
Wolfe v. Johnson
,
The parties also do not dispute that Petitioner can satisfy at least one of the six
factors set forth in
Townsend
. Specifically, state courts did not afford Petitioner the
opportunity to develop the facts underlying his claim premised on the withheld
Roberts materials and dismissed the claim without addressing the merits.
See Conaway
,
Townsend
,
The key question, therefore, is whether Petitioner has alleged facts sufficient to
obtain relief under Section 2254.
Conaway
,
To prevail on his
Brady
claim, Petitioner must establish: (1) “[t]he evidence at issue
[is] favorable to [Petitioner], either because it is exculpatory, or because it is impeaching;”
(2) “that evidence [was] suppressed by the State, either willfully or inadvertently;” and (3)
*19
“prejudice [] ensued.’”
Banks v. Dretke
,
The district court also correctly determined that the Roberts materials were
impeaching. As the district court explained, “if Roberts saw Stephens alive [at 12:30 to
12:45 p.m.], such an observation would have impeached Tyrone Mings’ testimony about
going to the apartment, seeing the petitioner with a gun after he committed the murders,
and seeing petitioner gesturing to Stephens’ dead body[.]” ,
Regarding the second Brady element—suppression—the district court held that “the record before the Court compels the conclusion that the prosecution did not give the defense information about the Roberts[,]” noting that “[t]he Court has seen no sign in the voluminous record that the Roberts’ names came up before the police corruption *21 prosecution.” Id. at *15. The district court further stated that if, as Respondent maintained before the district court,
it is “highly likely that the prosecutor did provide the information to [Petitioner’s] trial counsel,” then why has [Respondent], throughout years of habeas proceedings steadfastly opposed production of the documents when [P]etitioner’s habeas counsel has sought them? If prosecutors had already shared the documents with trial counsel, what is it precisely that the Commonwealth and its various representatives have been so desperate to protect, and for what reason? The events leading up to this point, far from demonstrating a lack of concealment, show the Commonwealth’s entrenched resistance to transparency in this criminal prosecution and subsequent post- conviction proceedings. We agree with this analysis, and note that additional evidence in the record before the
district court pointed to suppression. For example, Deputy Commonwealth’s Attorney
Evans asserted in his affidavit that he did not believe the Roberts materials were subject to
disclosure under
Brady
because the Roberts’s statements were “factually inconsistent” with
the prosecution’s conclusion, based on the time of the first 911 call and Mings’s testimony
that murders occurred prior to the first 911 call. J.A. 1159–60. But the “factual
inconsisten[cy]” between the Roberts materials and the statements of the first 911 caller
and Mings is precisely what renders the Roberts materials exculpatory and impeaching for
purposes of
Brady
.
See, e.g.
,
Williams v. Ryan
, 623 F.3d 1258, 1265 (9th Cir. 2010)
(holding that prosecution violated
Brady
by failing to disclose evidence “inconsistent with
the State’s theory at trial”);
United States v. Tavera
,
Although the district court concluded that the Roberts materials were exculpatory and impeaching and suppressed, the court nonetheless denied Petitioner relief on grounds that Petitioner failed to establish the third Brady element—“material[ity]” of the withheld Roberts materials—the element to which we now turn. , 2013 WL 1333513, at *17.
B.
The Supreme Court has held that suppressed, exculpatory evidence is “material” if
it “could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.”
Kyles v. Whitley
,
Applying this test, the district court concluded that Petitioner failed to plausibly
allege that the withheld Roberts evidence was material because that evidence “cannot
unsettle certain basic facts about the murders.” ,
The district court did not apply the proper legal standard in determining whether Petitioner alleged or established sufficient facts regarding materiality to warrant an evidentiary hearing. We reach this conclusion for several reasons. First, the district court failed to “construe facts in the light most favorable to the plaintiff . . . and draw all reasonable inferences in his favor.” Oberg , 745 F.3d at 136 (internal quotation marks omitted). For example, the district court said it “stretches the imagination” to beliеve that the person the Roberts saw leaving Keshia’s apartment between 1:00 and 2:30 p.m. was the murderer or also involved in the murders because the police received the first call reporting gunshots at Keshia’s apartment at 12:44 p.m. , 2013 WL 1333513, at *17. But as described in the petition and further detailed in the 911 “Event Chronology” produced in response to the district court’s discovery order, the officers who responded to the 12:44 p.m. call surveyed the complex and spoke with the residents of the apartment below Keshia’s who reported that they “did not hear any gun shots.” J.A. 1003, 1166. The officers, therefore, concluded the call to be a false report. And the petition alleged that at least three disinterested witnesses—Wendy and Jason Roberts and Kevin Waterman— heard sounds resembling gunshots after 1:00 p.m. Id. at 997–98. Additionally, in a fact not mentioned in the district court’s materiality analysis, Investigator Jones’s notes of Wendy Roberts’s statement on the day of the murders reported that she saw a woman resembling Keshia alive and arguing with a black male who was not Petitioner between 12:30 and 12:45 p.m. Viewing these facts in the light most favorable to Petitioner, the *25 murders plausibly occurred аfter 1:00 p.m., at the time the Roberts saw the unidentified individual fleeing Keshia’s apartment.
Second, the district court failed to properly account for the impeachment value of
the withheld Roberts statements. In determining whether “‘there is a reasonable
probability’ that the result of the trial would have been different[,]”
Strickler
, 527 U.S. at
289, a court must consider “the aggregate effect that the withheld evidence would have had
if it had been disclosed[,]”
Smith v. Sec’y, Dep’t of Corr.
,
Here, the district court failed to “subtract” from the weight of the evidence on the
prosecution’s side the “force and effect” of the impeachment value of the withheld Roberts
materials. In particular, notwithstanding the district court’s conclusion that the Roberts’s
2004 statements “flatly contradicted those of the prosecution’s key witnesses: Rashid,
Mings, and Murrаy,” , 2013 WL 1333513, at *14, the district court nonetheless
relied on Rashid’s, Mings’s, and Murray’s testimony to hold that the withheld evidence
was not material. For example, the district court appealed to Petitioner’s “conduct and
statements after the killings [as] additional strong evidence of his guilt,” even though the
testimony regarding Petitioner’s incriminating conduct and statements came from Rashid,
Mings, and Murray. at *17. Likewise, the district court relied on the first 911 caller’s
report of hearing gunshots at Keshia’s apartment an hour earlier as definitive evidence that
*26
the murders occurred before 1:00 p.m. However, according to the facts adduced at
trial, the petition, and Deputy Commonwealth Attorney Evans’s affidavit, that call was
made by Bowser, who did not personally hear the alleged gunshots, but instead had
received the information fourth-hand—
i.e.
, through Mings by way of Murray, who in turn
relied on Rashid’s statement that she had heard gunshots when she left Keshia’s apartment
earlier in the morning. And again, Rashid’s, Mings’s, and Murray’s testimony was subject
to impeachment by the Roberts’s statements. The district court, therefore, improperly
failed to “subtract” the full force and effect of the impeachment value of the withheld
Roberts еvidence.
Smith
,
Third, the district court improperly made credibility determinations based on the
written record. In particular, the district court refused to credit Wendy’s statement to
Investigator Jones that she saw a woman resembling Keshia alive between 12:30 and 12:45
p.m. and the Roberts’s and Waterman’s statements that they heard sounds resembling
gunshots after 1:00 p.m. The district court reasoned that crediting these statements would
require accepting them “over the word of people who claim to have seen the petitioner
either at or leaving the crime scene with a gun” before 12:44 p.m. , 2013 WL
1333513, at *18. But in determining whether a petitioner is entitled to relief under Section
2254 based on undisclosed exculpatory evidence, “credibility should be assessed on the
basis of an in-court hearing where the judge can see and hear the witnesses.”
Williams
,
Viewing the withheld Roberts evidence in the light most favorable to Petitioner,
disregarding the testimony by Rashid, Mings, and Murray subject to impeachment by the
Roberts evidеnce, and resolving all credibility determinations in Petitioner’s favor—as we
must in determining whether Petitioner is entitled to an evidentiary hearing—the
only
fact
on which the district court properly relied in concluding that the withheld Roberts evidence
was not material is the knife handle and blade bearing Petitioner’s DNA and thumbprint,
respectively. Accordingly, we must determine whether the exculpatory value of the
withheld Roberts materials, when evaluated relative to the inculpatory value of the knife
blade and handle, would “put the whole case in such a different light as to undermine
confidence in the verdict.”
Kyles
,
To be sure, the knife handle and blade provided strong evidence of Petitioner’s guilt.
See Strickler
,
Whereas the forensic evidence inculpating Petitioner was strong, but not
unassailable, the withheld Roberts materials—viewed in the light most favorable to
Petitioner—had significant exculpatory value. First, Wendy’s statement to the
investigators and identification of a different individual in the photo array would have
allowed Petitioner to mount an “other suspect” defense. Courts have long recognized that
“new evidence suggesting an alternate perpetrator is ‘classic
Brady
material.’”
Williams
,
623 F.3d at 1265 (9th Cir. 2010) (quoting
Boyette v. Lefevre
, 246 F.3d 76, 91 (2d Cir.
2001));
Hart
, 798 F.3d at 588 n.1. To that end, courts have found withheld evidence
*29
material when the evidence pointed to a different individual as perpetrating the convicted
offense. For example, in
Clemmons v. Delo
, 124 F.3d 944 (8th Cir. 1997), the Eighth
Circuit concluded that an inter-office investigative report in which an investigator stated
that a witness had identified another individual as perpetrating the crime was material. at 947, 950–53;
see also Kyles
, 514 U.S. at 441–42 (holding withheld statements of
witnesses material when statements described perpetrator who did not resemble
defendant);
Dennis v. Sec’y, Penn. Dep’t of Corr.
,
Second, by establishing that Keshia was alive between 12:30 and 12:45 p.m.,
Wendy’s statement to Investigator Jones, if proven credible, would call into question the
government’s theory that the murders occurred at 11:44 a.m. And when coupled with
Waterman’s statement, the Roberts’s statements indicate that the murders occurred after
2:00 p.m., when Petitioner had already left Keshia’s apartment. Courts have found
withheld evidence material when the evidence undermined the government’s theory as to
*30
when a petitioner committed a crime.
Dennis
, 834 F.3d at 295-96 (holding that time-
stamped receipt calling into question eyewitness’s testimony that the petitioner was in the
vicinity of the crime scene at the time оf the crime was material because it “would have
necessarily bolstered [the petitioner’s] alibi defense narrative and ‘put the whole case . . .
in a different light’”);
Bies v. Sheldon
,
Third, the withheld evidence “would have raised opportunities to attack . . . the
thoroughness and even the good faith of the investigation.”
Kyles
, 514 U.S. at 445
(concluding withheld evidence describing potential alternative perpetrator was material, in
part because it could have been used to cast doubt on adequacy of government’s
consideration of alternative suspects). Had Petitioner’s attorneys known that Wendy
identified an alternative perpetrator, they could have raised doubts about the thoroughness
of the investigation by questioning whether the police adequately pursued that alternative
suspect, and if thеy did not, why they did not.
See Dennis
,
Fourth, the withheld evidence was not cumulative of other evidence.
Cf. Johnson
v. Folino
, 705 F.3d 117, 129 (3d Cir. 2013) (“Suppressed evidence that would be
cumulative of other evidence . . . is generally not considered material for
Brady
purposes.”).
On the contrary, Petitioner lacked any factual basis to assert an alternative perpetrator
defense at trial. Likewise, the Roberts’s statements provided new avenues for impeaching
the prosecution’s key witnesses. For example, Wendy’s statement that Keshia was still
alive at 12:30 p.m. directly undermined Rashid’s, Murray’s, and Mings’s testimony that
the murder occurred at 11:45 p.m. To be sure, Petitioner had already impeached Rashid,
Murray, and Mings on other grounds, but this new line of impeachment, based оn
statements by allegedly disinterested witnesses, would have cast their testimony in a
different light by “seriously undermin[ing] the testimony of . . . key witness[es].” ;
see
also Dennis
,
Finally, Petitioner’s trial counsel could have used the investigative notes of the
Roberts’s statements to pursue evidence of Petitioner’s innocence that could have been
used at trial. For example, had they known of the Roberts’s statements and Wendy’s
*32
identification of an alternative perpetrator, they could have interviewed the Roberts and
searched for the individual Wendy reported seeing in repeated arguments with Keshia,
including after the murders allegedly occurred.
See Williams
,
In light of the foregoing, we do not believe the inculpatory value of the knife handle
and blade is so great as to preclude the Roberts evidence, if found to be sufficiently credible
during an evidentiary hearing, from “put[ting] the whole case in such a different light as to
undermine confidence in the verdict.”
Kyle
,
That we conclude the district court erred in denying Petitioner’s request for an
evidentiary hearing does not mean that Petitioner’s
Brady
claim premised on the withheld
Roberts materials will ultimately succeed. After having the opportunity to assess the
credibility of the relevant witnesses, the district court may conclude that the Roberts’s
recollections of the events surrounding the murders are not sufficiently credible; are
sufficiently distinguishable from Rashid’s, Mings’s, and Murray’s testimony as to be non-
impeaching; or otherwise fail to “put the whole case in such a different light as to
undermine the confidence in the verdict.”
Kyle
,
III.
Without question, the perpetrator of the Stephens’s murders committed a heinous
crime and should be vigorously pursued and prosecuted. However, the prosecution’s
pursuit of justice must keep faith with the principles of due process that separate societies
that adhere to the rule of law from those that do not. The withheld Roberts materials were
exculpatory and “impeaching evidence that was unquestionably subject to disclosure under
.”
Wolfe II
,
VACATED, IN PART, AND REMANDED result of its limited grant of discovery, coupled with Deputy Commonwealth Attorney Evans’s and Dеtective Conway’s affidavits and any evidence adduced during the evidentiary hearing, warrant authorizing additional discovery. The district court also, of course, may reconsider its previous rulings on any related issues.
Notes
[1] Petitioner obtained a certificate of appealability as to three additional claims. The first and second claims, which Petitioner raised pursuant to the Supreme Court’s opinion in Martinez v. Ryan , 566 U.S. 1 (2012), asserted (1) that Petitioner’s state trial counsel 2
[2] At the time of the murders, Petitioner was 6-1, weighed over 300 pounds, and did not drive a Toyota.
[3] Wendy’s description of the black female resembled Keshia. , 2013 WL 1333513, at *14 n.8 (noting that Wendy’s description of the black female was “similar” to appearance of Keshia and that Keshia moved into the apartment at the time Wendy said the black female moved into the apartment).
[4] Petitioner subsequently amended his petition to assert a claim under California v. Trombetta , 467 U.S. 469 (1984), premised on the government’s failure to preserve evidence establishing whether the line-up was the one in fact shown to Wendy. It is unclear from the record whether the district court resolved that claim.
[5] The six Townsend factors are: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
[6] Respondent asserts that Petitioner procedurally defaulted his
Brady
claim because
the Supreme Court of Virginia dismissed Petitioner’s second petition, which raised that
claim, as untimely. “Under the well-established doctrine of procedural default, a federal
habeas court may not review a claim that a state court has found to be clearly and expressly
defaulted under an independent and adequate state procedural rule unless the prisoner can
demonstrate [1] cause for the default and [2] prejudice resulting therefrom or demonstrate
that a failure to cоnsider the claims will result in a fundamental miscarriage of justice.”
Weeks v. Angelone
,
[7] We have repeatedly rebuked the Commonwealth’s Attorney and his deputies and assistants for failing to adhere to their obligations under . See Wolfe II , 691 F.3d at 423 (“lambast[ing]” Assistant Commonwealth’s Attorney for “not produc[ing] evidence to a criminal defendant unless he first deems it to be ‘material[]’ and credib[le]”); Muhammad v. Kelly , 575 F.3d 359, 370 (4th Cir. 2009) (refusing to “condone” suppression of exculpatory and impeaching evidence by prosecution, notwithstanding that such evidence was not material, because “[a]s a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of executiоn”). We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth’s Attorney’s office continue to stake out positions plainly contrary to their obligations under the Constitution.
[8] Testimony by Rashid, Murray, and Mings placed a firearm in Petitioner’s hands at
the crime scene. However, as the district court recognized, that testimony is subject to
impeachment by the withheld Roberts materials, ,
[9] Petitioner also seeks the opportunity for “fuller development of the evidence,”
Appellant’s Br. at 20, which we construe as a request to conduct additional discovery on
his
Brady
claim. Under Rule 6(a) of the Rules Governing Section 2254 Cases in the United
States District Court, a district court may authorize discovery upon a showing of “good
cause” by a petitioner. “‘[G]ood cause’ will exist when ‘specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.’”
Wolfe I
,