*1 to, Lindsay tes- spoken coherent when HARBISON, Edward Jerome standing
tified she observed Stanford Petitioner-Appellant, occasion, On one Stanford at least once. suggested Holley for a snack and asked might the cause sugar low blood BELL, Ricky Warden, Respondent- The record reflects headache. Appellee. reported request
deputy promptly officers that the corrections Lindsay, and No. 02-5392. sugar a blood test and administered ascer- sugar Appeals, tained that Stanford’s blood United States Court of range. Stanford’s condition within normal' Sixth Circuit. improved throughout nor
neither worsened Argued: 2004. Dec. dispute appears There to be no night. medical promptly summoned Leavell April Decided Filed: when she observed Stanford assistance short, apparent seizure.
having an record
nothing indicates Officer Defendants
remaining Corrections
possessed “deliberateness tantamount Horn, 22 at 660. F.3d punish.”
intent to fully supports the record
Accordingly, summary judg- grant
District Court’s remaining
ment Corrections Officer
Defendants.
III. CONCLUSION reasons, foregoing we find that
For the
Miller failed to evidence dem- has adduce act- Defendants
onstrating sufficiently culpable
ed mental state We establish deliberate indifference. find that the District Court did
further for leave to denying
err in Miller’s motion Complaint ground
amend the futile. proposed amendment would be we AFFIRM the District
Accordingly, in all adjudication this matter
Court’s
respects. *2 hereafter,
cussed the denial of Harbison’s is AFFIRMED.
I. BACKGROUND *3 15, 1983, January Frank Russell re- On turned home work to discover that wife, Edith, had been murdered. The an Russells rented at the back apartment Chavis, Dana C. Hansen ARGUED: Tennessee, Chattanooga, of their house to Knoxville, Services, Federal Defender who, time, away a tenant at that was Tennessee, W. Appellant. for Gordon vacation, body and Mrs. Russell’s was General, Smith, Attorney Office apartment. inside found Medical ex- Tennessee, Nashville, ON Appellee. for of her aminers determined that the cause Chavis, BRIEF: Dana C. Hansen Federal was “massive multiple death skull frac- Services, Knoxville, Tennessee, Defender marked scalp tures with lacerations of the Shumacker, Witt, Bryan, L. Rosemarie head, expelling and brain tissue and liter- Whitaker, Chattanooga, Tennes- Gaither & ally crushing disfigur- face and the victim’s Smith, see, Of- Appellant. for Gordon W. ing beyond State recognition.” her Nhshville, General, Attorney fice of the (Tenn. 704 S.W.2d Tennessee, Appellee. for 1986). Mrs. Russell last seen was SILER, CLAY, COOK, and Before: market, at a neighborhood afternoon Judges. Circuit spoke her between where witnesses Bags approximately p.m. 2:30 and 2:45 of SILER, J., opinion delivered the groceries ignition keys’ and were found in COOK, J., court, joined. in which car, parked Mrs. Russell’s which was CLAY, 837-46), a (pp. delivered J. driveway, body when her discover- was dissenting opinion. separate in the midnight. Nothing near record ed precise time of death. The indicates a
OPINION is Russell logical inference that Mrs. was time purchasing killed a short after SILER, Judge. Circuit afternoon, in the middle of the groceries Petitioner Edward Jerome and have taken them her else she would murder, sec- first-degree convicted of was Moreover, porch of her car. keys out larceny burglary, grand and ond-degree off. said she lights were Her husband unsuc- to death. After and was sentenced lights protec- on for always left outside appeal post-convic- direct and state cessful tion. filed a proceedings, tion Russells’ and the rented corpus for a writ of habeas in the United The house Missing apartment burglarized. for Dis- were District Court the Eastern States television, “an included XL-100 argues trict of Tennessee. Harbison items RCA converters, quartz a failing erred in to issue cable television district court two camera, heater, a a Polaroid silver appealability of writ. Certificates set, pencil jeweler’s pen loop, and a granted consideration Cross were allow box, jewelry, a marble alleged jewelry antique claims to an relating Harbison’s Id. violation, vase, Mrs. purse.” and Russell’s ineffective assistance heater, counsel, found quartz later appellate conflict of interest camera, set, pen pencil dis- counsel. For reasons Polaroid appellate sion, jeweler’s loop and the in the which played jury, residence had Duckett, girl- Janice who Harbison’s Finally, been altered. he testified he friend and David co-defendant Schreane’s purchased jeweler’s loop pawn jeweler’s loop sister. was found shop. adjacent kit. shaving Vaughn Carter and Miller rep- William unoccupied apartment, found resented Harbison at trial. Before the boxf, purse, jewelry Mrs. Russell’s trial, the following discovery made large two paper bags containing antique requests exculpatory evidence: a mo- glassware and brassware. The stolen tele- (4/13/1983), discovery tion for motion vision was in the found residence of Sehre- (4/13/1983), exculpatory evidence and a *4 girlfriend. ane’s (10/21/1983). motion to compel disclosure custody Schreane was taken into and below, they As discussed not did receive February questioned on when he Chattanooga Department certain Police police missing led vase. marble records, however. testing-later pres- Chemical revealed the Harbison was convicted and sentenced Furthermore, ence of blood on the vase. sentencing, to At death. his trial attor- carpet that was vacuumed from debris neys presented mitigation little evidence. crystalline Harbison’s car revealed cal- offered witness was Harbison’s fragments cite that were consistent n mother, briefly who testified that he was a
the marble vase. son, good regularly employed, was and February Harbison also arrested on was of completed grade the eleventh school. statement, In a he taped con- trial attorneys After Harbison’s filed a fessed to killing Mrs. Russell. Harbison trial, motion new Harbison stated that girlfriend after he drove his counsel, new court appointed and the Rod- work, home from and went to he Schreane ney. Strong. Strong filed an amendment home, Russell determined that was trial, adding allega- to the motion for new empty, and used a screwdriver to break tions ineffective of counsel. assistance into he the residence. While and Schreane asserted that attorneys He Harbison’s trial carrying were the stolen from the items they were ineffective because failed to ade- car, apartment house and the to their Mrs. quately investigate and witnesses Russell returned' home. con- Harbison support Strong argued defense. 'thought tended he Mrs. was Russell appeal attorneys the trial reaching gün, grabbed for a he her. He so made no effort locate to pur- witnesses stated he hit her with marble sue Harbison’s alibi defense. The convic- vase, “at the most” two times. by tion were sentence affirmed trial, At his Harbison that he testified Harbison, Supreme Court of Tennessee. had not killed Mrs. Russell and that he . S.W.2d 319-20. day was at the not Russell house on Thereafter, the murder. He said he was' his filed post-convic- girlfriend’s home that eve- afternoon and tion the trial court. Harbison alia, ning. He asserted that his was argued, Strong, appel- confession inter his coerced, counsel, police and that had threat- late was ineffective because he did ened arrest girlfriend away argue attorneys his and take not that Harbison’s trial her children 'if failing he did confess. He were ineffective for investigate police family further testified that had told his background purposes miti- him to say taped what that his confes- gation'. hearing, represented Rodney Strong, post-convietion
At the who previously undis- appointed ap- evidence of later was to be presented family tragedy. Harrison, When he was a pellate closed counsel. upon Strong’s child, fourteen-year-old sister shot and advice, his a polygraph refused take exami- young killed her two children. She concerning nation Russell’s murder. hospital, where she committed to state Strong did not disclose Harbison his mother, committed suicide. Harrison, prior representation of however. family and another sister testified that the files indicate Harrison’s was affected these events. Harbison wife told David Boss that Harrison had rightly say ... stated that he “couldn’t admitted to her that he was at the Russell impact it had on [him].” what kind house at the time of the murder. Accord- addition, they testified that Harbison’s tri- Boss, said, ing to she “He was in the attorneys al had never asked about the house, he didn’t kill her ... but when the family background. door ran.” opened Boss told the Carter, attorneys, trial one of Harbison’s shaky that Harrison was that he and also testified Miller did day “scared to death” the after the mur- *5 significant investigation a into complete Another witness stated that der. Harri- only family background Harbison’s son’s wife was concerned because she a passing psychologi- discussed in possible jacket could not find the Harrison was for Harbison. fur- cal examination Carter wearing day of the murder. These acknowledged ther had files also indicate that a Harrison had dis- briefly mother for her prepared Harbison’s agreement with Mrs. Russell the week be- testimony during a break at sentencing ring a concerning fore her murder that he trial. attempted to sell to her. Mrs. Russell took court Harbison’s The trial dismissed ring appraiser, to an who determined post-conviction petition being as without ring suspect- was fake. Harrison The merit. Tennessee Court Criminal ring ed Mrs. Russell switched the real for decision, Appeals affirmed this Harbison v. a fake one. The file indicated that Harri- 03C01-9204-CR-00125, No. with men who in son associated lived (Tenn.Crim.App. May WL house, Lynn which was across the street 1996), Supreme and the Court of Tennes- previ- from the Russells. Schreane had see denied further review. smoking admitted that he was mari- ously juana Lynn in a in parked with Linda car February
In moved in day Lynn front of the house on the federal district court for appointment murder, establishing very thus a tenuous stay mo- counsel execution. These connection between Harrison and Schre- granted. appointed tions were The coun- Finally, ane. the file indicated that Harri- public-records request sel made a for the previously son in a similar involved Chattanooga Police Department’s records burglary, in which a home owner returned relating to the Russell murder. These struggle and a ensued. documents were received October and it was determined documents police files also contained informa- file were not the district Schreane, implicated Har- tion about who attorney’s file. in the crime. Prior to Harbison’s bison detainment, a Schreane told witness files contained evidence re- Harrison, Ray dating who was Schreane’s sis- garding initially who ter, suspect previously attempted relationship in this Harrison had to start a case. girlfriend with Schreane’s appealability granted when Sehreane have been con- were was arrested on an unrelated offense. Ac- in these proceedings. sidered state In cording witness, to a holding evidentiary Sehreane asserted March after that Harbison had Mrs. Russell hearing, killed the state court dismissed the mo- that he would with him up reopen, “be there tion noting circum- that murder case.” in which a proceed- stances ing reopened could be strictly were limited a petition filed for writ of ha- § Ann. Tenn.Code 40-30-217.1 The corpus in beas November He as- court also dismissed Harbison’s twenty-six grounds serted claims as for writ of error eoram nobis because relief, claim, including a claim of timely was not filed and if determined conflict of interest of appellate counsel who elapsed too much time had between Harbi- previously represented suspect discovery son’s of the evidence and his case, and an ineffective-assistance-of- filing in state court. The court concluded appellate-counsel claim for failure raise was no process there due violation appeal direct that trial issue counsel because Harbison had been a rea- afforded for failing investigate was ineffective litigate sonable amount time to these time, background. Harbison’s At the issues. Brady and conflict-of-interest claims had yet state advanced to a court. May Harbison moved supplement the record with the new The district court dismissed state-proceeding evidence hold in and/or petition as meritless March 2001. It abeyance pending the resolution of the granted following Harbison COA for the *6 appeal. state-court These motions were 1) prosecution issues: whether the with- denied, and the record before district material, exculpatory held from court in appeal. is considered this violation of v. Mary- land, 1194, 373 U.S. 83 S.Ct. 10 II. STANDARD OF REVIEW 2) (1963); 215
L.Ed.2d and whether Harbi- received ap- son ineffective of assistance petition Harbison filed the of for writ counsel pellate because counsel did not corpus after habeas the effective of date on argue appeal direct that his trial attor- the Antiterrorism and Death Effective neys rendered by ineffective assistance (“AEDPA”). Therefore, Penalty Act this failing adequately investigate pres- court’s is by review limited 28 U.S.C. family ent evidence of his troubled back- 2254(d), § as by amended AEDPA. Un- ground. This court granted Harbison a der provision, application this for writ COA one additional issue: whether corpus may of habeas if granted appellate counsel under a labored conflict adjudication of the claim in state- of interest. court proceeding “resulted in a decision June, 2001, to, contrary after the district court that was or involved an unrea- of, denied petition, he filed a mo- application clearly sonable established reopen law, tion to post-conviction his state by Federal as determined the Su- proceeding. States,” He later of preme Court or if United pleadings be adjudication treated as a for a the state court in a “resulted of writ error coram nobis. Claims involv- decision that was based an unreason- ing the issues for which certificates of able of of light determination the facts provision 1. This has been renumbered to 40-30-117 (2003). § presented in the court and on appeal, the evidence State direct was ineffective be- 2254(d). § proceeding.” 28 U.S.C. argue cause he failed to that Harbison’s attorneys trial were failing ineffective for Supreme emphasized has Court investigate evidence of Har- statutory phrase “clearly estab family bison’s background. This claim was law, lished Federal as determined post-conviction asserted Harbison’s peti- States,” Supreme Court of the United tion. The Tennessee of Court Criminal 2254(d)(1), § to the U.S.C. “refers hold Appeals affirmed the court’s trial dismissal dicta, ings, as of opposed [the Su merits, of claim on the Su- preme decisions as of the time of Court’s] preme Court of Tennessee denied Harbi- relevant state-court decision.” request son’s for further review. Taylor, Williams v. U.S. (2000) 1495, 146 (empha S.Ct. L.Ed.2d 389 The Tennessee Court of Criminal Ap added). “clearly
sis
Once
established
peals
performance
determined that the
of
identified,
Federal law” has been
this court
attorneys
Harbison’s trial
did not fall be
considers whether the state-court decision
objective
low an
competency.
standard of
“contrary to”
A
is
such law.
state-court
considered,
alia,
The court
inter
the fact
contrary
clearly
decision is
established
attorneys
that the trial
had no knowledge
if
law that court
at a conclusion
“arrive[d]
that Harbison or
family
mem
opposite
to that reached
Supreme
[the
history
bers had a
of mental illness. The
question
on a
law if
Court]
the state
court also noted that
the mental
illness
differently
court
decide[d]
case
than [the
provided
information
Supreme
materially
has on a
Court]
set
hearing
solely
family
related
to Harbishn’s
indistinguishable facts.” Id. at
directly
and not
to Harbison himself. The
S.Ct. 1495. The court also considers
court
analysis
considered the
Strickland
whether the state court’s decision involved
668, 687, 104
Washington,
application
clearly
an unreasonable
es
(1984),
830
Brady
prejudiced
defense so
B.
Claim
formance
as to
trial unfair
the result
render the
unre
To demonstrate
the with
Strickland,
(citing
466
liable.” Id.
U.S.
holding
police reports
was
vio
2052).
687, 104 S.Ct.
(1)
lation,
prove
must
attorneys’
Harbison’s trial
fail
Although
(2)
him;
evidence at issue is
favorable
investigate
family
ure to
Harbison’s
back
willfully
inadvertently,
either
arguably
ground
may have been- deficient
(3)
evidence;
preju
suppressed
performance,
presented
evidence
Greene,
Strickler
527
dice ensued.
v.
U.S.
state court post-conviction pro
Harbison’s
263,
1936,
281-82, 119
144
S.Ct.
L.Ed.2d
did not
ceeding
prejudice.
establish
(1999).
“[T]here
286
is never
real ‘Bra
Therefore,
Harbison failed
establish in
dy violation’ unless the nondisclosure was
“[A]ny
effective assistance of counsel.
de
proba
so serious that there is
reasonable
performance
ficiencies
counsel’s
must be bility
suppressed
evidence would
prejudicial to the
order to
defense
con
produced
have
different verdict.” Id. at
ineffective
under
stitute
assistance
281, 119
1936. To determine wheth
S.Ct.
692,
Strickland, 466
Constitution.”
U.S. at
probability,
er there
such
the withheld
is
104 S.Ct.
Harbison “must show that
collectively.
evidence must be considered
that,
there
probability
is
reasonable
but
a:
286,
v.
Castleberry Brigano, 349 F.3d
291
errors,
unprofessional
for counsel’s
re
(6th Cir.2003) (citing Kyles Whitley,
514
proceeding
sult of the
would have been
436,
1555,
U.S.
S.Ct.
L.Ed.2d
probability
A
different.
reasonable
is a
(1995)).
probability sufficient to undermine confi
dence in the
Id. at
outcome.”
The district
court concluded
At
S.Ct. 2052.
Harbison’s
procedurally
claim
was
he,
mother,
hearing,
and his sister
below,
agree.
defaulted. As discussed
we
regarding
testified
another sister’s murder
procedurally
“Where a defendant has
de
subsequent
of her children and her
suicide.
to raise it
failing
faulted a claim
While
testified that Harbison was af
review,
may
direct
the claim
be raised in
events,
testimony
fected
these
their
if the
can
habeas
defendant
first dem
vague
and did not address
manifesta
‘preju
onstrate
‘cause’
actual
either
Indeed,
impact.
tions of this
”
dice,’
‘actually
or that he is
innocent.’
himself
“couldn’t rightly
testified
he
States,
Bousley v. United
say
impact
... what kind of
it had on
(1998)
Harbison also would
omitted).
Supreme
Court of Tennes
a writ of error
pursue
,
apply
bright-line
see has refused “to
coram nobis at the time he filed
period of time in which to raise later-
may
district court. “Coram
claims
be
nobis
three,”
arising
year
issues be it one
or
upon any ‘newly discovered evidence
based
(Tenn.
State,
Wright v.
987 S.W.2d
relating
litigated
at the trial’ so
matters
1999), but has instead instructed that the
petitioner
as
also establishes that
long
“in
analysis
completed
light
spe
be
failing
‘without fault’ in
[he]
cific
facts
the case.” Id.
proper
at the
time.” Id. at
the evidence
must be
within
592-93. These claims
filed
Although Harbison did not receive the
year
a conviction
final.
one
after
becomes
police files
contained the evidence that
§
Tenn.Code Ann.
The Tennes-
27-7-103.
is the
of this claim until October
basis
times,
have,
excep-
allowed
see courts
he
have
and ob-
could
tion to
enforcement of statutes of
strict
years
tained those files more than five
limitations,
process
however.
re-
January
“[D]ue
the. Tennessee
earlier.
litigants
provided
quires
potential
in an
Appeals
unpublished
Court of
held
opportunity
presentation
police investigation
for the
decision that
files were
in a
meaningful
exempt
claims at a
time and
mean-
from disclosure under the Pub-
ingful
Capital
manner.”
v.
845 lic Records Law.
Case Res. Ctr. of
Burford
(Tenn.1992).
Tenn.,
Woodall,
As noted
Inc. v.
No. 01-A-
S.W.2d
(Tenn.Ct.
Tennessee,
019104CH00150,
“due
iting their but “one of the got there somebody have out of unless investigating detectives stole it. It’s still there. post-triahthat the.police chief testified rec- If anything, exchanges between Har- located.” A ords could not be review of attorney bison’s and Detective Wilhoit and which transcripts refers Chief Davis would have Detective indicat- suggests simply the individuals were un- ed to attorney very there was a location, particular aware of a file’s strong possibility the relevant files charged individuals these requested would if through be available locating that particular with the task of appropriate channels. examination, post-conviction file. At the Furthermore, because disclosure of the stated, simply Detective Wilhoit “I don’t prohibited files was when any knowledge have as to [Detective Fos- them, Harbison had last it is not ter’s location. It’s an old case and file’s] expect again unreasonable to he normally our keep we old files after the request would them within a reasonable with, case is over so what he did I with it they time after could be released. The have no information.” The following ex- files became but available Harbi- change when occurred Chief Detective years son waited five to request another questioned Davis at a was result, by them. As a the time Harbison evidentiary hearing: petition filed his in the district court in Q: you any Do access to have longer Tennessee courts were no police department former files at the able to consider a writ of error you where could refer to these? coram nobis. The aforementioned state- A: No. ments from Wilhoit Detective and Chief Q: told justify We’ve been C.L. Detective Davis are insufficient to Wilhoit five-year Foster’s death It they delay. since Ed cannot be said that lost apparently have his file on the basis of claim was “reasonably Harbi- son. any petitioner’s lawyers. Would there be other? unknown” to they A: I how don’t see could have lost claim argues course, it. I don’t know. Of not procedurally defaulted because this procedural adequate scheme is neither nor Q: he testified That’s what to is that See, e.g., Collins, independent. Hicks v. they they lost it because couldn’t it bring (6th Cir.2004) (“[T]he 384 F.3d you to court. have Would idea that procedural state rule must have been an anywhere would have one another adequate and independent procedural state might that we able to get access to it? ground upon which the state rely could they’d A: They just it. if find foreclose review of a federal constitutional Q: Okay. think you they’ve So mis- claim.”). Bell, In Hutchison v. this court placed losing it as it? opposed recognized that “Tennessee courts consis- IA: know it still there I when left. tently enforce scheme that Q: you When did leave? encompasses one-year both the limitations A: period court-recognized procedure ’83. and a pursuant Tennessee Public Records Law to the decision in Freeman.
833 tolling specific that statute when due cause and prejudice. Bousley, 523 at U.S. 622, 1604. presented.” are 303 F.3d 118 S.Ct. process grounds argues - (6th Cir.2002). the provide State’s failure to him the 720, with Harbison asserts 738 police files demonstrates cause. He as- procedural repre- that these rules do serts that cause inquiry ... turns on “[t]he grounds adequate procedural state sent events or circumstances external the to may principle create because Burford Dretke, 668, defense.” Banks v. 540 U.S. asserts inconsistent results. He further 696, 1256, 124 S.Ct. 157 1166 L.Ed.2d procedural grounds that the are inde- (2004) omitted). Banks, (quotation In pendent of federal law application because Supreme rejected argu- Court a state’s later-arising Brady to a claim of Burford ment cause inquiry should revolve consideration of the requires merits petitioner’s conduct,, around which habeas, “In Brady claim. if the decision of an alleged case included lack appro- court to which petitioner last state priate diligence in pursuing Brady claim. his claim presented fairly appeared rest 695, Id. 124 at S.Ct. 1256. Court claims, on primarily resolution of those noted that rule .. declaring ‘prosecu- “[a] claims, interwoven with and be those hide, may tor seek,’ defendant must is not clearly expressly rely and on an did not system tenable constitutionally bound adequate ground, independent state process.” accord defendants due Id. may petition.” court federal address the Banks, however, 696. addressed a situa- 722, 735, Thompson, v. Coleman tion in the prosecution which re- had (1991). 115 L.Ed.2d 640 peatedly asserted that all Brady material An of the adequacy evaluation and inde- disclosed, but nevertheless continued hypothetical of a pendence state de- to conceal such material. In particular, case, unnecessary cision is however: “[ejach.time the Court noted that wit- [a petitioner failed to exhaust state [I]f misrepresented his dealings ness] and the court remedies to which police, the testi- prosecution allowed that petitioner required would be mony to uncorrected.” stand Id. at claims in order to exhaus- meet the S.Ct. 1256. Court “In concluded: requirement tion would now find the short, persisted because the State in hid- proeedurally ... there claims is barred ing informant [the witness’s] status default purposes of fed- represented misleadingly that it com- had regardless eral habeas the decision of plied in full with its obli- disclosure petition- state court to last which the gations, failing Banks cause for actually presented er his claims. post pro- in state investigate, conviction 1,n. (emphasis Id. at S.Ct. 2546 ceedings, connections to [the witness’s] added). police].” [the S.Ct. 1256. Id. proce Because this claim hás prosecutorial There is no of such evidence defaulted, durally may misrepresentation considered concealment only case, post- its merits if Harbison demonstrates Harbison’s however.5 At the Similarly, prosecution deliberately attorneys,” though with- even the claim discov- evidence held material in Freshwater ered Id. far after Freshwater’s conviction. (Tenn.Crim.App.2004). 160 S.W.3d Significantly, the case material in this Freshwater, the Tennessee of Crimi- Court es- was discovered after Freshwater had "delay Appeals nal determined that the caped large prison and had remained at obtaining [Brady] not at- [was] thirty years. for over The court noted: petitioner tributable fault of the or her *11 hearing, prejudice conviction officers did less here address the issue of not indicate that the files did not exist or may Harbison that be attributed to the they would to provide refuse them to withholding of this evidence. Harbison Harbison, but rather did not prejudice. has demonstrated such know where the files were located. There may While relevant evidence raise no in is the record before the question some about potential Harrison’s court that district those individuals were proximity to the Russell murder charged par- with the task of locating in identifying Sehreane’s motivation Harbi- ticular file. Nor has Harbison presented murderer, son as the this evidence is not any evidence that would indicate probabili- sufficient to create a reasonable intentionally files were concealed. ty that the result of the trial would have concerning been different. The evidence If Harbison had time, initially Harrison reveals that he was files within reasonable he would murder, in suspect the Russell and this options have had various for state-court consideration of this claim. Because evidence could have used his Harbi- post-conviction proceeding appeal attempt was on son’s counsel in an to shift culpa- through opportunity he had the bility However, to another individual. this evidence, move to remand for consideration new even when considered in combi- State, Laney evidence. See 826 S.W.2d allegations regarding nation with Schre- (Tenn.1992). addition, had he identifying ane’s reasons for requested the files within a reasonable does not create a reasonable doubt that time, he could have filed a petition writ differently. the trial would have ended or, of error prior coram nobis an The court meticulously analyzed district post-conviction petition.6 By additional this evidence and found that it was not the time Harbison filed the for Brady violation and it was not material to court, corpus of habeas writ federal agree. defense. We Harbison’s con- however, opportunities long- these were no strong fession to the murder is evidence of er available him. Because Harbison has guilt, which this new evidence was failed to demonstrate cause for his failure unlikely to overcome. argue courts, claim this before the state Although proeedural- the claim has been may
this claim not be considered defaulted, ly and we therefore do not di- court. rectly case, reach the merits of this
Although prejudice par- Harbison has not demon above cause and discussion strated cause for pursue requirements Brady analysis. his failure to allels for the court, these claims state we Because neverthe- Harbison has demonstrated Indeed, position appeal directly responsible causing if the State's in this and is defendants, delay finality.” prevail, were to criminal in or- (quoting Id. Harris v. 102 S.W.3d protect rights der to their to file a coram (Tenn.2003) (Anderson, dissenting)). J. petition, required every nobis would Again, we observe that Freshwater involved every prosecution case to examine file fol- the intentional concealment of materi- lowing their in order to convictions deter- discussed, previously al. As there is no evi- exculpatory mine whether evidence was prosecutorial dence such concealment in We withheld. cannot believe this is some- Harbison’s case. thing really State wants. State's "[T]he finality seriously compromised interest amendments, is petitioners Prior prosecution suppressed when the has evi- were not limited to one duty petition. dence in violation of its constitutional Tommy Larry Lynn Ogle- he has not estab- with Ft. prejudice, cause and such *12 lished a violation. thorpe they Saturday and returned night at 1- between 10:30 and 11:00 P.M. on decide the case on While we Thus, put 15.”7 no one court, Harrison default, it makes as did the district murder, in Lynn day little sense to discuss detail house on the of the Nevertheless, explanations certain issue. unlike the admission of Schreane that he First, the district court may be in order. marijuana Lynn smoked with Linda in alleged that even if the claim was found front of the house on the afternoon of the defaulted, there was no procedurally not murder. Second, the district court Brady violation. Second, although Charlene Harrison victim’s involving found that evidence placed Ray Harrison the scene of the buying selling nefarious activities of and crime, she said that he was there with at was not relevant to the stolen merchandise Third, person. least one other This did not involving help on the evidence case. Schreane, alibi, the court found that either most Harbison’s Schre- trial, was admitted at ane both could have1been with Harrison at material, wholly not or was not identify the time. never did She who the prosecution. As the dissent control of the Moreover, person persons other were. observes, the district court found after Boss had told the officers of his angry by statement Schreane that he was conversation with Charlene Harrison on making at Harbison for romantic overtures 19, 1983, January the officers an un- sent al- girlfriend to Schreane’s could named informant a “tape” get with judgment jury, because tered Charlene Harrison admit what she had testify Finally', did not at trial. Schreane Boss, allegedly convey but she did not told concerning the evidence which involved same information and would not con- Harrison, material, because previously firm the information received. an Harbison raised alibi defense testi- Third, says the dissent that Boss asserted fied his confession to the crime was that Harrison the morning was “scared” false. However, after the murder. there are agree We with the district on the why might several reasons Harrison merits, but we will further discuss some of police concerned interest from the explanation these details our of this in searching his residence with a search ruling. Several assertions the dissent warrant, drug because he was involved in First, to be need clarified. the dissent trafficking and was wanted the authori- states that Charlene Harrison told Detec- Florida, eventually ties where he was tive Foster that her husband was with the fact, allegedly told arrested. Harrison Lynns, who lived the street from across Boss that when he found the were victim, day on the of the murder. warrant, coming he went search part, That is correct in but the full state- apartment got over to his mother’s rid Ray ment was that “she knew did not kill spent evening pills.” Ms. Russell because he all of “some suggests likely, put 7. The dissent that this Harrison cal from the record. More conclusion afternoon, proximity "in close to the Russell home at the she was killed in the sometime murder, p.m. time Edith Two Russell's which took after 2:45 witnesses testified place point midnight.” at some before That had tried to call Mrs. Russell at 5:30 depends entirely upon p.m., p.m. p.m. whether Mrs. Russell 6:30 and 8:30 without an midnight, logi- day was killed near which is not a answer on the of the murder. claim Finally, suggests Harbi- failure to assert this until his the dissent jailhouse son could have used Schreane’s court. district examination Detec- statement cross Again, although has not dem Foster, pur- tive as to whether for his pursue onstrated cause failure to light of Harrison investigation sued court, these claims in state we neverthe falsely implicate of Schreane’s motive prejudice Har- less address the issue question Harbison. There is as to *13 coun may bison that be to his attributable statement, admissibility if of that but even sel’s conflict. has not alleged Harbison admissible, was some inves- there detailed A prejudice. possibili demonstrated such tigation the Harrison files Jan- between ty of to establish a conflict is insufficient 16-31, uary Apparently, it was not violation Harbison’s Sixth Amendment February until when the detec- rights, no violation and occurs where tives first learned that had told Schreane hypotheti or merely conflict is irrelevant Omenys killed West that Harbison had States, cal. See Moss v. United 323 F.3d Later, day, Russell. admit- Schreane (6th Cir.2003). ar 463-64 Harbison ted that he had been .at the Russell house gues Strong rendered ineffective as day of with Harbison on the the murder. raising in by sistance not certain issues Thereafter, police found some of the volving potential Harrison’s involvement custody items in stolen Harbison’s Relying new evi Russell’s death. on the to girlfriend, Schreane led the stolen claim, dence in his Harbi discussed weapon, set to the murder TV Strong pursue son to asserts failed finally hitting confessed to Mrs. Harbison present concerning evidence Harrison twice vase. Russell with the that could have created about Harbi- doubt However, above, guilt. son’s as noted Appellate Conflict of In- C. Counsel’s presented concerning new Harri evidence terest unlikely son to the result of change Strong, claims that Harbison Furthermore, Harbison’s trial. counsel, from conflict appellate suffered presented has no facts to demonstrate rep had previously of interest because he Strong evi was aware additional Harrison, initially a sus resented who concerning dence and that he Harrison result, murder. pect the Russell As a decided not to additional evi Strong was unable to argues, representation dence to his of Harri due Har arguments support make that would Finally, Strong repre son. the fact that that he had not commit bison’s assertions during sented Harbison his motion for e that, alleges had ted th crime. He than appeal, new trial and on direct rather Strong not this conflict been burdened trial, during danger would reduce the aware of the and had he been posed by any conflict. Harbison has files, in the concerning Harrison any specific cited in the record instances Strong have able make the would impaired where his interests were argument opportunity that Harrison Strong’s prior representation of Harrison. and motive commit the crime. This introduced claim also was not before THE REC- IV. MATTERS OUTSIDE state courts until after the district court ORD result, As petition. denied Harbison’s has matters much of the anal dissent referenced above default review, ysis part is relevant to this claim. Harbison which are not record from state has failed to cause for his as are records the second demonstrate (1963). subsequent to L.Ed.2d 215 post-conviction review held Harbison has shown by the district herein. and actual judgment prejudice cause for his failure denied Harbison leave to raise his claim in prior Inasmuch as we state court seeking supplement provide the record sec- habeas relief in federal court. materials, it post-convictions ond would not appropriate for us to comment about I. This case is on appeal
those matters. Brady Violation court, did not the district which any of subsequent those materials before trial, counsel filed several it. cannot a report “We consider that is pre-trial discovery, motions for requesting part of the record.” United States v. exculpatory information and witness state- (6th Cir.1993). Bonds, 12 F.3d (motion ments. See J.A. 24 discovery Bell, Thompson But see 373 F.3d documents “which are material *14 (6th Cir.2004) (allowing ap- record on defense”); (mo- preparation of the J.A. 26 peal supplemented under “our equi- be tion for compelling order “the State to cert, power”), granted table on other furnish with all [Harbison] and excul- — U.S.-, grounds, S.Ct. patory which the its (2005). L.Ed.2d 609 agents, employees, attorney generals and law knowledge enforcement officials have Similarly, the from a quotes dissent sub- that may tend to exonerate defendant of poena bring directed to Wilhoit to charge may mitigate any the or punish- him post-conviction hearing “[a]ny to the ment,for (motion him”); J.A. 28 compel records, all files or documents disclosure of materials relevant to possession possession sentencing). Despite several court orders Chattanooga Department Police relative to materials, compelling disclosure of these the case of State of Tennessee v. Edward the State did not produce evidence con- Jerome Jr.” That also not in is in Chattanooga Department tained Police court, from the record the district nor was records favorable to the defense. mentioned briefs to this Harbison’s Additionally, court. Harbison did not ask undisclosed, Excerpts from the files of supplement with that docu- record Foster, Larry princi- Detective the officer Appellate ment under Federal Rule of pally responsible investigating Edith 10(e). Therefore, Procedure it would also murder, Ray Russell’s indicate that Harri- appropriate to comment about a burglarize son had motive to mur- and/or subpoena. Ray der Edith Russell. Harrison told De- tective Foster that he had tried to sell y. CONCLUSION week, ring a previous Russell but that reasons, For foregoing judgment (J.A. 918.) buy it. she did Harrison’s of the district denying the writ is cousin, Goins, Benny confirmed that he AFFIRMED. given ring Ray Harrison a week before death and that Harrison Russell’s
CLAY, Judge, dissenting. Circuit him. supposed ring to sell the (J.A. 961-62.) wife, I Ray dissent because the district court Harrison’s Char- lene, granted should told Detective Foster that Russell for a corpus ground ring jeweler writ of habeas on the had taken the to a for an prosecution appraisal purportedly violated v. Ma- determined that (J.A. 1077.) ryland, 373 U.S. 10 it contained fake diamond. Ray reasonably material could suggest Detective Foster’s interview with proximity Harrison’s brother-in-law indicated that Harrison was close at “Ray Benny mad Russell home the time of Edith Rus- Harrison Goins were murder, place which took sell’s some at Edith Russell because believed ” point midnight. before rings Ray.’ that she had ‘switched on (J.A. 978.) asserting possibility In midnight Russell was murdered near “is
Other in Detective Foster’s file entries record,” logical not a conclusion Ray suggest Harrison and David Maj. Op. majority n. inappro- at 835 (who participated robbery in the Schreane priately assumes the role of factfinder and home) together of Russell’s were On the jury actually denies that the which convict- day proximity of the murder and in close ed Harbison and sentenced him to death to the Russell residence. Charlene Harri- permitted would have been to find to the son told Detective Foster that her husband Because, notes, contrary. majority as the Lynns, was with the Russell’s across-the- nothing there is in the record that indi- day mur- neighbors, street death, precise Op. cates a time of (J.A. 1077.) addition, der. David Harbison was un- entitled Schreane admitted that he smoked mari- jury in light disclosed evidence to most juana Lynn with Linda in front of the favorable to him. Lynns’ during house the afternoon *15 (J.A. 976.) murder. Ultimately, majority’s view about Russell’s time of death is irrelevant be- majority The discounts this evidence be- actually cause other undisclosed evidence put Lynn cause “no one Harrison at the places Harrison at the scene of her mur- day Maj. house on the the murder.” der. David told Boss Detective Foster Op. support, at 835. As the majority that Charlene Harrison had told him that quotes Charlene Harrison’s statement Ray actually Harrison was inside Edith Detective Foster “ Harrison night on Russell’s house of murder ‘spent evening Tommy Larry all and (J.A. 921-23.) person. with another She Lynn in Ft. Oglethorpe they returned Ray also told Boss that Harrison did not Saturday night at between 10:30 11:00 ” Russell, kill but that when Russell entered 1077). P.M. on 1-15.’ Id. It (quoting J.A. Harrison) house, “they” (including her ran is true that Charlene Harrison’s statement away. certainly Id. Boss’s statement necessarily place does not her husband at support theory would a defense that Harri- house, Lynns’ jury but the could have only opportuni- son not had the motive and inferred this fact from her statement. Russell, ty actually partici- to murder but Significantly, she did not tell Detective crime, pated thereby potentially in that Foster that her husband “returned to her ” shifting away blame from Harbison. house p.m., only between 10:30 and 11:00 (cid:127) Lynns majority argues her husband and the “re- that this evidence turned” between those times. Charlene would not have assisted Harbison’s alibi they Harrison could meant that re- defense because Charlene Harrison’s ref- Lynns’ turned to the “they” house 10:30 or erence to is consistent with the p.m. According 11:00 possibility to the Tennessee Su- that both Schreane and Harbi- Court, preme Edith Russell’s husband dis- son were with Harrison at the time of the body Maj. covered her at midnight. Op. Although dead State murder. at 835. (Tenn. majority’s 704 S.W.2d characterization of this state- 1986). Therefore, plausible, the undisclosed ment is Harbison should have (J.A. 1011-12.) present Later, Elmo opportunity been afforded the area. Schre- and reasonable alter- equally plausible ane told that he upset West that his jury supported native to the his alibi (Harbison) tryin’ brother-in-law “had been only defense: that Harrison and Schreane lady, to talk to his old and that his broth- were Edith Russell’s murder. er-in-law was the one that killed wom- on, (J.A. 1012.) an out there Elmo.” St. Detective that he Boss also told Foster West Ray morning Harrison on the after reiterated Detective Foster that saw Schreape that, him the murder and observed to be “a him had told Harbison had shaky” little scared and and “scared to Elmo,” killed “that namely bitch St. 926.) (J.A. death.” Harrison asked Boss (J.A. 1016-17.) Edith Russell. In a sum- “if polices [sic] had been there” mary West, however, of his interview of said “that were cornin’ back with Detective stated that Foster Schreane had Moreover, warrant.” Id. Harri- search told West that Schreane’s “brother-in-law son’s brother-in-law told Detective Foster messing girlfriend with his [Harbison] that Charlene Harrison was concerned be- stop and if he did not Schreane said he jacket Ray cause she could not locate the put would the murder St. Elmo on him.” wearing night Harrison had (J.A. 1082.) (J.A. 978-79.) the murder. The district court discounted Schreane’s form, majority True discounts this jailhouse statement because Schreane did by insisting material that there is and, testify at Harbison’s trial there- plausible one view the evidence. fore, Schreane’s statement could not have majority speculates as to “several rea- to impeach been used him. It is conceiva- why might sons Harrison be concerned ble, however, that Harbison could have searching the interest from the used Schreane’s statement on cross-exami- his residence with a search warrant.” Foster, nation of Detective princi- who was Maj. Although majority’s atOp. *16 pally responsible investigating Rus- explanations plausible, equally are is murder. could sell’s have asked plausible that Harrison to was scared the detective whether and to what extent death because he had murdered Edith police an pursued investigation Ray of night deeply Russell the before and was in light Harrison of Schreane’s motive to police apprehending concerned about the him. falsely implicate Harbison in the murder. potential Such cross-examination had the
Finally, excerpt an undisclosed from De- of undermining prosecutor’s argument suggests tective Foster’s file that David police thorough had conducted falsely implicated Schreane Harbison in investigation possible suspects for all A Russell’s murder. witness named Ome- the murder. 1676-77. See J.A. Armed nys told Detective West Foster he knowledge legiti- with Harrison was a knew David Schreane because he used to murder, suspect mate in the Harbison like- burglaries commit him in with the St. ly strategy. would have altered his trial area, Elmo where Edith lived. Russell (J.A. attempting In addition to to 1010.) establish murder, Subsequent arguing alibi that his confes- defense happened and Schreane to be in the West by police sion had been coerced threats to regard same courthouse cell with to their (J.A. 1011.) children, away girlfriend’s take he respective burglary charges. time, At that additional told West that he could have introduced evidence Schreane committing burglaries shifting had been in the for the St. blame murder Harrison. 840 possibility passes impeachment undermines confidence in evidence as well as
This
evidence,
exculpatory
Bagley,
at
guilty
Harbison’s
verdict.
473 U.S.
676,
comply
105
3375. “In order to
S.Ct.
According
Brady Maryland,
v.
“the
...
Brady,
prosecutor
with
‘the individual
prosecution
of
suppression
evidence
duty
has
learn
favorable evi
to an accused .. .violates due
favorable
acting
on the
dence known to
others
the evidence is material ei
process where
case,
in this
government’s
including
behalf
guilt
punishment, irrespective
ther to
or to
” Strickler,
281,
police.’
527
at
U.S.
prose
faith or
faith of the
good
bad
at
(quoting Kyles,
fore, bring did not court. 1778- II. 79.) Prejudice
Cause Excuses The majority dismisses Wilhoit’s testi- Any Default Procedural mony, concluding that Wilhoit stated majority proce holds that he was unaware the location of durally Brady claim. defaulted his Harbi- file, any Detective Foster’s not that indi- default, may avoid son department vidual had been however, “by showing that there was cause charged locating that par- the task resulting the default and prejudice Maj. Op. ticular file. See 834. This is default, a miscarriage of patently untrue. Because Detective Fos- justice enforcing pro will result from ter was deceased the time of Harbison’s default in case.” petitioner’s cedural hearing in Adams, Lancaster v. 324 F.3d 436 subpoenaed Wilhoit, who had assisted Fos- (6th Cir.2003) (internal quotation marks investigation ter of Edith Russell’s omitted). and citation “Cause is shown murder. The commanded subpoena Wil- when the factual basis of claim was bring post-convic- hoit to with him to the ‘reasonably unknown’ to defendant’s records, hearing all “[a]ny tion files or Collins, 291 counsel.” Jamison v. F.3d or in possession pos- documents (6th Cir.2002) (quoting Amadeo v. Chattanooga Depart- Police session Zant, 214, 222, 108 1771, 100 *18 486 S.Ct. U.S. cause ment relative to the of State of (1988)). L.Ed.2d 249 Harbison has made Tennessee v. Edward Jerome just showing. such Thus, contempt, of pain Jr.” Wilhoit charged making with the task of was A. Cause diligent Chattanooga Police search of the Department’s trial for that The Harbison’s counsel made at least records file. separate import testimony of sworn requests exculpatory three clear Wilhoit’s information, granted, which court he could not locate Detective the trial that Foster’s that, 32-22, Chattanooga (arguing Br. Respondent’s
file
as far as the
was
concerned,
procedurally
his
Department
Detec-
that Harbison
defaulted
Police
was
file
mur-
made a
Foster’s
on the Edith Russell
claim because he could have
tive
request
was lost.
records
for Detective Fos-
public
der
file).- The
majority’s
ter’s
assertion is
testimony of former
post-conviction
The
argument,
first
time
new
raised for the
Detective James
Davis from 1991
Chief
M.
today.
knowing
way
Harbison had no
of
Although
prove
does not
otherwise.
Davis
rele-
subpoena
that the Wilhoit.
would be
that
Foster’s file
insisted
Detective
that he
vant and
therefore should have
police department,
at the
he further
still
it in the
or includ-
introduced
district court
department
that he
testified
had left
it in the
Appendix.
ed
Joint
years
eight
before he testified at
hearing. Ac-
this
real
“Because
court sits to decide
Harbison’s
cases,
law, and
questions
his bald
not abstract
of
cordingly,
assertion
Detective
adequate understanding
utter-
an
of a
file still existed in 1991 was
because
Foster’s
Nevertheless,
decision,”
essential to
Rodic v.
ly without foundation.
case is
our
Club, Inc.,
majority
speculations
Racing
615 F.2d
credits Davis’s
over Thistledown
(6th
Cir.1980),
should
employee
that of a current
the Court
(Wilhoit),
charged
fully examine the
in Harbison’s
department
who was
record
of
locating
post-conviction proceeding
the task
the file
1991 state
and take
with
time,
judicial
subpoena.
notice of
but could
locate it at
the Wilhoit
(“
may
judi-
the remarkable conclusion that See id.
‘Federal courts
take
reaches
testimony
proceedings
and Davis’s
shows that
cial notice of
in other courts
Wilhoit’s
”)
very
Pub.
strong possibility
(quoting
was a
record.’
Granader
v.
“there
Cir.1969)).
Bank,
(6th
files
the relevant
would be
if
417 F.2d
82-83
available
through
Alternatively,
chan-
this
can and should
appropriate
Court
Slip Op.
equitable
I cannot fathom how
the record under our
supplement
nels.”
8.
though
ap-
court
majority
power,
reaches this conclusion when
even
the district
subpoena
(clearly
tecum
did not
sub-
parently
ducus
consider Wilhoit
]”)
Bell,
yield
Thompson
373 F.3d
“appropriate
poena.
an
failed
See
channel[
(6th Cir.2004)
(invoking the
files.
690-91
these
to ex-
equitable powers
Court’s “inherent
majority
significance
dismisses the
though
pand
appeal”
the record on
even
it “is
subpoena
of the Wilhoit
because
part
the evidence was not made
court,
in the record from the district
nor
cert,
record),
granted
on oth-
district
it mentioned in Harbison’s brief to
—
-,
grounds,
er
U.S.
Maj.
this court.”
at 837.
It is
Op.
(2005).
160 L.Ed.2d
The interests
however,
majority,
has made the Wil-
who
this
justice require
to consider
Court
case.
subpoena
hoit
issue in this
subpoena in order to assess
Wilhoit
majority asserts that there is no evidence
majority’s argument
merits of the
in the
indi-
district court record
has
failed to
Depart-
Chattanooga
viduals at the
Police
anyone at the
Police De-
Chattanooga
charged
the task of locat-
ment “were
task
partment
charged
was ever
with the
Id. at
ing” Detective Foster’s file.
locating Detective
file.
Foster’s
Bell, however, never
Warden
advanced
reading of
position
A fair
the available record
support
court,
did
argument
nor
this case demonstrates that Harbison
default
in the district
*19
claim.
Brady
default his
presented
procedurally
has he
it to this Court. See not
duty
on counsel to
a
Supreme
The
Court’s decision
Strickler
advance
claim for
There,
gave
the State
evidentiary
is instructive.
which
no
support.”
ha[d]
access to all of the evidence
petitioner
286,
Id. at
was reasonable
both
rely
sel was entitled to
on not
on,
rely
just
conviction
“to
counsel
presumption
prosecutor
would ful-
presumption
prosecutor
would
ly perform
duty
all exculpa-
his
to disclose
fully perform
duty
to disclose all excul-
materials,
tory
implicit repre-
but also the
materials,
patory
rep-
implicit
but also the
(including
sentation that such materials
resentation
such materials would be
file)
complete
Foster’s
Detective
would
open
included
files tendered to de-
actually
included in the tendered
fense counsel for examination.”
Id. at
for examination. The
defense counsel
ar-
respondent
Warden
104-05.
produced
records were
in response.
Id. at
respon-
the same reasons advanced
Moreover,
106.
dent in Strickler.
Harbison’s counsel fol-
Warden Bell assumes
up
requests
had a factual
lowed
basis to make
record
with a tele-
a public
request
phone
records
for Detective
Stanley
Fos-
call to
Lanzo of the District
6, 2004,
(with
issues,
By
August
panel
tion/petition
including
order of
raised seven
J.,
Clay,
dissenting) unjustifiably
Brady
denied Har-
issue. The Criminal Court held an
supplement
evidentiary hearing
bison leave to
record
order
on Harbison's claims on
provide
regarding
additional information
October
2003. See Attachment "C” to
May
the exhaustion of his
Supplement
claim in state
2004 Mot. to
Bell,
(6th
30, 2004,
court. Harbison v.
No. 02-5392
the Record.
March
On
the state
6, 2004).
Aug.
re-open
Cir.
It is clear
from attach-
court dismissed Harbison’s motion to
pursuant
ments to that motion that Harbison did even-
to Harris v.
845
696,
Office,
Attorney’s
informed counsel
In
Harbison failed
dem-
tions that there was either no other Brady
default,
procedural
onstrate cause
his
evidence to discover or that requesting
majority ignores
similarity
the
the
be-
discovery
further
of such material would
tween this case and the facts in Strickler
Accordingly,
be futile.
there was cause for
upon
Supreme
instead relies
default,
notwithstanding the
Dretke,
Court’s decision
Banks v.
540 purported lack of evidence of deliberate
1256,
668, 124
U.S.
Brady
misrepre-
evidence and intentional
There,
Crim.App.2004).
petitioner,
sentation,
Brady
the merits of Harbison’s
Freshwater,
Margo
had been tried and
claim
hinge
prosecu-
do not
on whether his
degree
convicted of first
murder in 1969.
intentionally
deliberately
tors
withheld
trial,
Id. at 550. At
attorney
Freshwater’s
Strickler,
Brady evidence. See
U.S.
requested
the written statement of
282,
(holding
year statute of limitations. Id. at 558. The nondisclosure Freshwater. argued petitioner was at State non-disclosure was more deliberate in Har- failing bring case; fault for claim bison’s for when a fugitive sooner because she had been counsel records in *22 years. Id. at 556. 1991, he that the records was told could located, and in request not be after his disagreed with the ar- State’s nothing was informed was avail- in gument delay and held that the obtain- beyond already pro- able what had been ing the evidence was not attributable to Freshwater, If duced. who waited 32 petitioner attorneys. the fault of the or her years making before a postconviction re- explained: Id. at 556. The court quest Brady for information because she Despite petitioner the fact that the es- fugitive, procedur- was a had cause for her caped prison large from and remained at default, follows, fortiori, al then it thirty years, petitioner’s for over who made least two additional specifically requested trial counsel requests Brady material and was told “any written statement of informer once that no such information could be located County [Mississippi] held in the DeSoto existed, to did not have make what part discovery request. Jail” as of a reasonably appeared would have abe provided That information was not request third futile in order to establish petitioner at trial. fact that cause. petitioner escaped jail and re- fugitive many years mained a does Prejudice B. from Non-Disclosure of Po- change the fact that the evidence lice Records
was withheld the State. Even if the petitioner escaped had not we have no I, For in the reasons discussed Part reason believe this evidence would I would supra, hold the evidence con- voluntarily. have been In- disclosed tained in Detective Foster’s file denied deed, position if in ap- the State’s Harbison a fair trial and demonstrates peal prevail, were to criminal defen- guilty unworthy that his verdict is of confi- dants, protect rights order their Accordingly, dence. I would hold that file a coram petition, nobis would be Harbison the prejudice prong satisfied required every every case to examine analysis default and that prosecution following file their convic- granted the district court should have Har- tions order to determine whether ex- a writ of corpus bison habeas on his culpatory evidence was withheld. We claim. something cannot believe this is really State wants. III. Id. The court therefore pro- held due precluded cess Conclusion the dismissal Freshwa- statutory ter’s claim based upon reasons, For all foregoing I dissent. time bar. Id. at 557. Freshwater, As was the case Harbi- attorneys
son’s trial exculpa-
tory information contained
records, produce but the State did not
them years. for another 14 The State’s just
nondisclosure was as as deliberate