Ryаn Heath Dickson, a Texas death row inmate, appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition. He claims that the State failed to disclose the existence of two audiotapes containing potential impeachment evidence under
Brady v. Maryland,
I
On November 27, 1994, police in Amarillo, Texas, were called to a small grocery store operated by Carmelo Surace and his wife, Marie. When they arrived, the officers found Marie dead and Carmelо critically injured. The police learnéd that four young males — Petitioner, his younger brother Dane Dickson, Freddie Medina, and Jeremy Brown — had been involved in an attempt to steal beer from the store. After first gathering outside the store, the two brothers entered while Medina and Brown remained outside. Sometime thereafter, Petitioner shot and injured Carmelo with a sawed-off rifle he had carried into the store. Before fleeing, Petitioner allegedly shot and killed Marie. Carmelo later died from his injuries.
The State charged Petitioner separately for the murder of each victim. Without multiple victims, the State had to prove that Petitioner intentionally killed Carmelo Surace during the course of a robbery to establish capital murder under Texas Penal Code section 19.03(a)(2). See Tex. Penal Code § 19.03(a)(2) (2003) (stating that a person commits capital murder if he commits murder under section 19.02(b)(1) and, inter alia, “the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat”)'.' Although Petitioner acknowlеdged responsibility for killing Carmelo, he denied that he did so intentionally. He argued that Carmelo was killed during a struggle as Petitioner and *473 his brother attempted to steal items from the store.
The testimony of Medina and Brown (the boys who remained outside the store) was an important piece of the State’s proof of intent at trial. Medina testified that, before going into the store, Petitioner showed the boys a gun. Brown asked him what it was for, and Petitioner responded that he was going to shoot the store owners. Brown also testified that Petitioner expressed an intent to shoot the store owners but could not recall whеther he saw Petitioner with the gun outside the store or at an earlier time that day. Defense counsel argued that the only direct evidence of intent was the testimony of Brown and Medina and that this testimony was fabricated.
The jury found Petitioner guilty of capital murder, and the state court sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal.
After conviction, the State revealed that prosecutors had not given the defense access to audiotapеs of pretrial interviews with Brown and Dane Dickson. 1 During these interviews, prosecutors questioned the two about the day’s events and used written statements the young men had given to police at the time of the killings to both confirm and refresh their recollection prior to trial. Transcripts of these sessions indicate that Brown and Dane Diek-son questioned the accuracy of their prior written statements and expressed doubt regarding certain factual assertions that were relevant to the State’s case.
Brown asserted in his written statement that Petitioner vеrbalized an intent to shoot Carmelo and Marie Surace prior to entering the store: “I asked [Petitioner] if they were going to shoot them and he said, ‘yeah.’” During the pretrial interview, however, Brown equivocated and seemed unsure that Petitioner had done so.
Q. Alright. Do you recall asking [Petitioner] whether or not he was going to shoot somebody?
A. I may have said do not shoot nobody but I don’t think I woúld’ve asked him what he was going to do.
Q. Okay. And you don’t recall — in the statement here, it says, I asked [Petitioner] if they were going to shoot them, and he said yeah. You don’t recаll that?
A. It may have happened like that.
Q. I know it may have happened that way, but what I need to know is did it or did it not happen that way? See what I mean? Because that’s important, don’t you think?
A. That is an important piece.
Q. Did that happen or did that not happen? And that’s what I need to know.
A. I don’t know.
*474 Over the course of the interview and after persistent questioning by prosecutors, Brown became more certain that Petitioner expressed an intent to kill prior to entering the store.
Q. Okay. And before going in the store, how clear do you recall him ever talking about shooting them before he actually went in the store?
A. I think it was pretty clear.
Q. You guys knew that wаs what was fixing to happen before the store-— before he went in that store and [you] backed out.
A. I don’t know. We may have.
Q. Okay.
A. I knew at one point before they went in the store that — what he was going to do, yes.
Q. That he was going to shoot them?
A. Right. I don’t know if it was before we left the house or not.
Q. But you knew before he went in the store?
A. Yes, sir.
Toward the end of the interview, prosecutors assured Brown that he did not need to worry about being prosecuted for murder because his version of events was consistent with those of the other boys: “Otherwise, you would’ve been in deep trouble, okay? But I — again, I want you to know right now, I mean, I — you don’t need to sit and worry that we’re gоing to drag you into the capital murder, because it’s pretty clear that you did not have anything to do with the capital murder.” Ultimately, Brown’s trial testimony supported the State’s theory that Petitioner possessed an intent to kill prior to entering the store.
Under questioning by prosecutors before trial, Dane Dickson retracted certain factual assertions in his written statement. In that statement, he claimed to have been in the store when his brother shot Marie Surace. During his pretrial interview, however, Dane Dickson stated that he did not witness the shooting but, rather, mistakenly “incorporated” what his brother told him about the shooting into his written statement to the police. Although different from his written statement, Dane Dickson’s statements during the suppressed pretrial interview are consistent with his later trial testimony and the defense theory that Carmelo was killed during a struggle.
After prosecutors disclosed the existence of the audiotapes, Petitioner filed an application for writ of habeas corpus in state court based, in part, on his claim that the State improperly withheld evidence that could have been used to impeach both witnesses. After receiving evidence and argument, the state trial court found, inter alia, the following facts:
13. Evidence at trial reveals that Car-mel[l]o Surace and his wife, Marie Surace, had both been shot during a robbery of their grocery store. Evidence also suggested the weapon used was a single-shot, bolt-action, .22 caliber rifle, which had been sawed off. Some evidence was adduced showing that Mr. Su-race might possibly have struggled with his assailant, might possibly have grabbed the barrel of the weapon, and might possibly have been shot as a result of the struggle. Evidence suggested that Mrs. Surace was probably shot after her husband.
14. The trial testimony of Jeremy Brown indicated that Applicant had told Jeremy of his intent to shoot the “two old people” before entering the store. The first portion of his tape recorded interview, however, is not so conclusive.
*475 15. The trial testimony given by Dane Dickson was essentially the same as his tape recorded statement, but still there were some differences.
Ex Parte: Dickson, No. 38005-01-A, slip op. at 3-4 (47th Dist. Ct., Potter County, Tex. Sep. 22, 2000). The state trial court then issued conclusions of law:
3. Even if the non-disclosure оf the tapes was inadvertent, the fact remains that Defense counsel could possibly have used the contents of the tape recorded statements during cross-examination of these witnesses at trial.
4. Especially regarding Jeremy Brown’s tape recorded interview, Defense [counsel] might have been able to impeach Mr. Brown’s trial testimony by showing that for the first 40 to 50 pages of said interview he wasn’t sure about Mr. Dickson’s intent.
5. Defense might also have shown that in Mr. Brown’s tape recorded interview, it is only after he is informed that he is not likely to be prosеcuted for his involvement in this crime that he reveals Mr. Dickson’s statement concerning his intent to kill. Although, not a direct “deal” with a witness, Defense counsel might have been able to use the recorded interview to impeach Mr. Brown’s trial testimony by showing his rebanee on an implied grant of immunity, or to expose his possible bias as a witness in the case.
6. While the contents of the tape recorded interviews do not contain any directly exculpatory evidence, they do contain potential impeachment material. Harm from the non-disclosure (еven though not intentional) of such impeachment material may be presumed from the result obtained in this case.
7.Had the trial testimony of Jeremy Brown been effectively impeached by the use of the recorded statement, the jury might have chosen to disregard or disbelieve Mr. Brown’s trial testimony about Applicant’s acknowledgment of intent, and, since this conviction is for the alleged capital murder of Carmel[l]o Surace, only, (the alleged capital murder of Marie Surace is a separate indictment which has not yet been tried), the jury might have reached a different conclusion.
Id. at 4-6. Although the state trial court was “not sure that the disclosure of the recorded interviews and their use by Defense counsel at trial would have caused the jury to reach a different verdict” it recommended that Petitioner receive a new trial “[bjecause of the importance of preserving and maintaining the integrity of the adversarial trial process, and because of the obvious import of a capital murder verdict and death sentence.” Id. at 6.
The Texas Court of Criminal Appeals (“TCCA”) adoptеd the state trial court’s “findings and conclusions with the exception of conclusion number six wherein the trial judge determined that harm from the non-disclosure of the tape should be presumed.”
Ex Parte: Dickson,
No. 47314-01, slip op. at 2 (Tex.Crim.App. Feb. 21, 2001). Citing
Strickler v. Greene,
After exhausting his state remedies, Petitioner filed a federal petition for writ of habeas corpus and renewed his Brady claim. The district court reviewed the record and recounted the evidence supporting the conviction. Applying the deferential *476 habeas standard in AEDPA, the district court concluded that the petition for writ of habеas corpus should be denied. Dickson v. Dretke, 2:01-CV-0095, slip op. at 1-2 (N.D.Tex. Mar. 23, 2005). 2
Out of an abundance of caution and based upon the admonition of the Supreme Court in
Miller-El v. Cockrell,
II
Under AEDPA, Petitioner is not entitled to federal habeas relief unless the state court’s adjudication of his Brady claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Section 2254(d)(1) applies to pure questions of law as well as mixed questions of law and fact.
Martin v. Cain,
Section 2254(d)(2) applies to questions of fact.
Martin,
Petitioner argues that the state court adjudication of his Brady claim resulted in a decision that is contrary to, or involves an unreasonable application of, fеderal law. 28 U.S.C. § 2254(d)(1). He argues that the recorded pretrial interviews with Brown and Dane Dickson contained “material” impeachment evidence under Brady on the issue of intent to kill. 3 Respondent argues that the district court should be affirmed because the state determination that the evidence was not material is not objectively unreasonable.
“[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, irrespective of the good faith оr bad faith of the prosecution.”
Banks v. Dretke,
Under AEDPA, we do not decide
de novo
whether a state prisoner has sufficiently proven a
Brady
violation.
See Yarborough v. Alvarado,
Here, the TCCA accepted every factual finding and conclusion of law of the state habeas court except the conclusion that “harm” may be “presumed” from the result in the case. In citing
Strickler
and
Kyles,
the TCCA rejected the state trial court’s conclusion that any impeachment evidence in the withheld pretrial interviews was material. We review this dispositive determination through the deferential lens provided by Congress in AEDPA.
See Rompilla v. Beard,
Dickson argues that Brown’s pretrial interview was material to the issue of intent because “[o]ne can only speculate on the outcome of the trial if the corroboration testimony of Mr. Medina was challenged at trial with the undisclosed tape of Mr. Brown. Both Mr. Brown and Mr. Medina may have been impeached since one story corroborated another.” But alleging a speculative outcome is insufficient. Rather, a petitioner must demonstrate a reasonable probability that the result at trial would have been different.
Banks,
Even if we assume the defense could have effectivеly impeached Brown and Dane Dickson, other probative evidence of an intent to kill prevents us from concluding that the state court determination of immateriality resulted in a decision that involves an unreasonable application of federal law. The State offered evidence that Petitioner: (1) carried a loaded gun into the store; (2) admitted to firing the gun that killed Carmelo Surace; and (3) killed Marie Surace shortly thereafter. Furthermore, the prosecution presented evidence that Petitioner intended to rob the storе by force or threat of force, including: (1) testimony that, in the weeks before the offense, Petitioner stated a desire to rob a store; (2) evidence that Petitioner stole three .22 caliber rifles prior to the robbery; and (3) evidence that Petitioner sawed off the barrel of the rifle and whittled the stock so that it could be concealed. The state court could reasonably conclude that this combined evidence rendered the undisclosed impeachment evidence immaterial because confidence in the outcomе was not undermined.
See Kopycinski v. Scott,
We affirm the district court’s denial of relief because, even assuming the pretrial interview recordings contained beneficial impeachment evidence, other evidence of Petitioner’s intent to kill prevents this court from concluding that the state court’s immateriality determination resulted in a decision that involved an unreasonable application of federal law.
See Yarborough,
We pause, however, to express our concern regarding the State’s failure to turn over pretrial interview statements by two key witnesses in a death penalty case. The duty of a prosecutor, as the representative of the sovereign in a criminal case, is “not that it shall win a case, but that justice shall be done.”
Berger v. United States,
At oral argument, the State conceded the tapes contain impeachment evidence and implied that an attorney with a “better understanding” of Brady would have disclosed them. 6 Although the trial prosecutor apparently believed these recordings were protected work product, these recorded pretrial interview statements contain no protected attorney opinion. 7 Even *480 if the prosecutor wrongly believed the statements contained some protected attorney opinion, he should have known that the duty lay with the trial judge, not the prosecutor, to weigh the need for confidentiality against the defendant’s need to use the material to obtain a fair trial. 8
“Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] ... plainly resting] upon the prosecuting attorney, will be faithfully observed.’ ”
Banks,
Ill
We AFFIRM the district court’s denial of relief under 28 U.S.C. § 2254.
Notes
. One of the State’s trial attorneys tape recorded his interviews with certain witnesses in criminal cases. He acknowledged that he may have recorded his interviews with other witnesses in addition to Brown and Dane Dickson but never made any of the tapes or transcripts available to the defense team. According to the prosecutor, he never considered whether the tapes should be provided to the defense team. "I don't know that I consciously thought about it one way or the other. I believed it was like — it was like taking notes to me. It was like my work product.” Although other State prosecutors were present during the interviews, none of them ensured that the audiotapes were placed in the "open file” for the defense team. Although not entirely clear, it appears that a State attorney, before or during the state habeas proceeding, discovered the audiotapes of the Brown and Dane Dickson interviews and disclosed them. No other аudiotapes were discovered in the State's files.
. First, despite acknowledging that Brown’s pretrial interview could have been used to impeach, the district court concluded that disclosure of his earlier interview statements would not have undermined confidence in the verdict because other evidence of Petitioner’s intent to kill, including Medina’s trial testimony that Petitioner said he was “going to shoot the two old people in the store” before entering, corroborated his testimony. Second, the district court stated that Brown's pretrial interview wоuld not support a showing of bias because the prosecutor’s assurance of non-prosecution took place only after Brown affirmed that Petitioner had expressed an intent to kill. Finally, the district court concluded that Dane Dickson’s pretrial interview could not be used to impeach because his testimony at trial was "favorable” to the defense and consistent with his statements in the pretrial interview.
. Petitioner also contends that the federal district court erroneously held a
de novo
eviden-tiary hearing and failed to defer to statе trial court findings of fact.
See
28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.”). He asserts that the state trial court’s findings survived the denial of habeas relief by the TCCA because the TCCA expressly adopted all findings and conclusions of the state trial court, except conclusion six which "presumed” harm from the result obtained in this case.
See Craker v. Procunier,
. “The statute compels federal courts to review for reasonableness the state court’s ultimate decision, not every jot of its reasoning."
Santellan v. Cockrell,
. Although a competent defense attorney might have used the taint of bias and misre-collection as to Brown to diminish the effectiveness of Medina’s testimony, we cannot say that the TCCA unreasonably concluded that the evidence was immaterial given the other evidence of intent presented at trial.
See United States v. Weintraub,
. Concession of a disclosure obligation under
Brady
does not, of course, concede a redressa-ble
Brady
violation.
See Strickler,
.The Supreme Court has not decided "whether
Brady
requires a prosecutor to turn over his work product.”
Mincey v. Head,
.
See In re: United States,
.
See Brady,