Kenneth Andrew JEFFERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 12-1182
United States Court of Appeals, Sixth Circuit
September 12, 2013
November 8, 2013
730 F.3d 537
KAREN NELSON MOORE, Circuit Judge.
Argued June 20, 2013. Decided and Filed Sept. 12, 2013. Rehearing and Rehearing En Banc Denied Nov. 8, 2013.
Lubecore is not a U.S. citizen but a Canadian corporation, which weighs heavily against extraterritorial application of the Lanham Act. See Aerogroup Int‘l, Inc. v. Marlboro Footworks, Ltd., 955 F.Supp. 220, 227 (S.D.N.Y.1997). On the other hand, the рarties agree that there is no conflict with foreign law (as Lubecore has no claim to the trade dress in Canada) and thus there would be no interference with Canadian sovereignty if the Lanham Act were applied against Lubecore in Canada.
Groeneveld‘s central argument is that Lubecore‘s Canadian activities have a substantial effect on United States commerce, but its discussion rests on speculation—that it is “likely” that Canadian trucks with installed Lubecore pumps will cross in and out of the United States and that Lubecore pumps marketed and sold in Canada are “likely” to affect sales and Groeneveld‘s reputation in the United States. Even if (as Groeneveld asserts) U.S. consumers can access Lubecore‘s web sites and order products online, that does not prove that Lubecore‘s Canadian activities have a substantial effect on domestic commerce. Although it is true that Eisses desired to expand his business in the United States, Groeneveld‘s аssertion that Lubecore‘s strategy is to “lay the groundwork in Canada for expansion into the U.S.” presupposes that Lubecore will violate the district court‘s injunction and is unsupported by record evidence. The most Groeneveld has shown is the possibility that Lubecore‘s foreign activities might impact commerce in this country, but that is not enough to extraterritorially apply the Lanham Act.
III.
For these reasons, I dissent.
Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*
OPINION
KAREN NELSON MOORE, Circuit Judge.
In this case, an internal investigation by the U.S. Attorney‘s Office found evidence suggesting that during the trial of Petitioner-Appellant Kenneth Jefferson (“Jefferson“) on drug-conspiracy charges, the prosecution failed to disclose to the defense the extent of the promises of leniency that the prosecution made to several cooperating witnesses. In a motion to vacate his sentence filed pursuant to
I. BACKGROUND
This appeal stems from Jefferson‘s conviction in June 1999 for conspiring to distribute and to possess with intent to distribute cocaine and cocaine base in violation of
Several coconspirators, including Tali Alexander (“Alexander“), Reese Palmer (“Palmer“), Rasul Warren (“Warren“), and Eva Taylor (“Taylor“), cooperated with the government in exchange for favorable plea agreements and testified as to the nature of the conspiracy and defendants’ connections to it. On cross-examination, these witnesses testified that the sentences the government agreed to recommend pursuant to the plea agreements were far lower than the sentences they would face for the full scope of criminal activity to which each admitted. Another witness, Samuel Mullice (“Mullice“), testified that in 1996 Jefferson gave him a ride home from the parole office and told Mullice that “he was doing something” and that if Mullice “need[ed] to do something, get in contact.” R. 331 (Trial Tr. at 2767) (Page ID # 6749). Mullice interpreted this statement to mean that Jеfferson was selling drugs. Id. at 2768 (Page ID # 6750). Witness Labron Nunn (“Nunn“) testified that in 1997 he bought two and a half ounces of crack cocaine from Jefferson, and that Jefferson asked Nunn to join “the family.” Stines, 313 F.3d at 915. The jury returned a verdict of guilty as to all defendants, and Jefferson was sentenced to 240 months of imprisonment, followed by five years of supervised release.
In July 1999, one of Jefferson‘s codefendants filed a motion for a new trial, joined by Jefferson, asserting that their trial was tainted by prosecutorial misconduct because “the government clearly had either a tacit agreement or an overt agreement with ... witnesses [including Alexander] that they would receive certain additional consideration following their testimony which they did not reveal and which the Government did not reveal.” R. 209 (Mot.
In 2002, we affirmed Jefferson‘s conviction and sentence on direct appeal. Stines, 313 F.3d at 913. Jefferson was not a party to the petition for a writ of certiorari from the Supreme Court filed by some of his codefendants, and accordingly, Jefferson‘s “conviction became final on May 12, 2003, upon the expiration of the 90-day period for seeking the writ.” Jefferson v. United States, 392 Fed.Appx. 427, 429 (6th Cir.2010). Jefferson filed a motion to vacate his sentence under
In March 2004, five months before Jefferson filed his initial
Without recounting the information set forth in that Memorandum, we note that it suggests there is evidence that Convertino met with some cooperating witnesses in this case without defense counsel; entered written plea agreements and made some, at least tacit, promises of further sentencing reductions; had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed. The fairness of Jefferson‘s trial was not the focus of the investigation, but it produced evidence that the government felt compelled to disclose to Jefferson.
Jefferson, 392 Fed.Appx. at 432. Adding to concerns regarding Convertino‘s conduct as an AUSA was United States v. Koubriti, in which the district court dismissed—with the agreement of the gov-
On March 25, 2005, Jefferson filed an Amended Motion for New Trial or in the Alternative Defendant‘s Renewed Motion for Mistrial and for Evidentiary Hearing and a Motion to Recall Mandate or, In the Alternative, Motion under
Six months after Jefferson filed these motions, on September 30, 2005, the gov-ernment disclosed to Jefferson memoranda of interviews with Thomas, Warren, and Alexander conducted in late 2004 in connection with the internal investigation into Convertino‘s conduct. See Appellant Br. at 14-15. Following these disclosures, as well as Stines‘s counsel‘s efforts to unseal sentencing records for several of the witnesses who testified at Stines‘s and Jefferson‘s trial, Stines filed a supplemental motion on March 27, 2006, adding to his previously filed
The district court denied Jefferson‘s
On appeal, we reversed and remanded. Jefferson, 392 Fed.Appx. at 433. We agreed with the district court that Jefferson could not rely on the September 2, 2004 dismissal of the terrorism charges in Koubriti as the factual predicate of his claims. Id. at 431. We also agreed that Jefferson could not use the September 2005 disclosures as the basis for his March 2005 motions. See id. We concluded, however, that the district court “did not resolve the critical question of whether Jefferson‘s additional claims were brought within one year of ‘the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.‘” Id. (quoting
On remand, the district court again denied Jefferson‘s
II. ANALYSIS
A. Standard of Review
“In reviewing the denial of a
B. Statute of Limitations
“A motion filed pursuant to
1. Brady Claims
Jefferson argues that he could not have discovered the facts underlying his claims earlier than March 2005 because Convertino deliberately hid the plea agreements and sentencing records of the cooperating witnesses. R. 667 (Pet.‘s Br. After Remand at 4) (Page ID # 3513). The district court rejected this argument and found that using due diligence, Jefferson could have discovered the facts underlying the claims raised in his March 2005 motions more than a year before he filed the motions. The district court faulted Jeffer-
We must determine what diligence a reasonable person in Jefferson‘s circumstances would have exercised to discover the facts underlying his claim that the prosecution withheld information relating to promises made to government witnesses. Prior to Jefferson‘s trial, the defense requested “information relating to ... any consideration, reward, agreement, or promise ... given by the government to [any witness that the government intends to call at trial].” R. 97 (Mot. for Discovery at 5) (Page ID # 9039). In response, the government represented that it was “aware of its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and will provide impeachment information as contemplated in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).” R. 139 (Gov‘t Resp. to Def.‘s Various Mots. for Discovery at 1-2) (Page ID # 8875-76). After their convictions, in July 1999 and again in Junе 2000, the defendants filed motions for a new trial, each of which explicitly raised the claim that the government had failed to disclose the full extent of the promises made to cooperating witnesses. See R. 209 (Mot. for New Trial at 5) (Page ID # 9090); R. 305 (Am. Mot. for New Trial at 19) (Page ID # 9772). The government responded to both motions, arguing that defendants’ challenges regarding the impeachment of government witnesses lacked merit and were based on pure speculation. See R. 213 (Gov‘t Resp. in Opp. to Def.‘s Mot. for New Trial) (Page ID # 9116); R. 349 (Gov‘t Resp. to Def.‘s Am. Mot. for New Trial at 2-3) (Page ID # 10264–65). This procedural history demonstrates both that the prosecution was clearly on notice that the defendants sought all information relating to promises made to government witnesses, and that the prosecution made a representation that it would disclose all impeachment evidence in its possession to the defense.
The Supreme Court has held that a defendant may rely on exactly this kind of reрresentation of full disclosure by the government, and that a defendant may “assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction.” Banks v. Dretke, 540 U.S. 668, 694, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Accordingly, given the prosecution‘s representation that it would disclose impeachment evidence, a defendant such as Jefferson “had no basis for believing [the prosecution] had failed to comply with Brady.” Strickler v. Greene, 527 U.S. 263, 287, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In Banks, despite representing to the defendant that the government would “provide her with all discovery to which [she was] entitled,” the government failed to disclose certain evidence that would have aided the defense in impeaching the government‘s witnesses. Banks, 540 U.S. at 675. Further, at trial, “the prosecution raised no red flag when the informant testified[] untruthfully.” Id. The Court rejected the Fifth Circuit‘s conclusion that the defendant was not sufficiently diligent in pursuing her post-conviction claims because she did not seek out evidence to support her claim of a Brady violation. Id. at 688, 698,
Likewise, in Strickler, the Court explained that “[t]he presumption, well established by tradition and experience, that prosecutors have fully discharged their official duties, is inconsistent with the novel suggestion that [a] conscientious [defendant] [has] a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” 527 U.S. at 286-87, 119 S.Ct. 1936. Especially when the prosecutor “was an active pаrticipant in shielding any evidence of the facts underlying the [Brady] claim,” a prisoner does not have a burden to investigate whether there exists evidence that the government had a constitutional obligation to disclose, but did not. Douglas v. Workman, 560 F.3d 1156, 1181 (10th Cir.2009) (holding that petitioner could not, “exercising due diligence,” have “uncovered the existence of a deal” between the prosecutor and a cooperating witness any sooner); see United States v. Tavera, 719 F.3d 705, 711-12 (6th Cir.2013) (rejecting a rule that would require defendants to exercise due diligence to discover exculpatory evidence in the government‘s possession); Starns v. Andrews, 524 F.3d 612, 619 (5th Cir.2008) (holding that “there was no requirement that [petitioner] act diligently to investigate further assuming the state could be taken at its word“).
Accordingly, the government‘s position that Jefferson failed to exercise due diligence because he did not seek information “the very existence of which the [government] had improperly withheld in violation of Brady ... is fundamentally at odds with Brady itself.” Willis v. Jones, 329 Fed.Appx. 7, 16-17 (6th Cir.2009). The prosecution in Jefferson‘s trial had a cоnstitutional obligation to disclose the full extent of the consideration given to the cooperating witnesses in exchange for their testimony. This obligation existed regardless of whether the defendants in Jefferson‘s trial asked for the information—which they did, repeatedly. We hold that
On the other hand, we also reject the government‘s argument that Jefferson “discovered facts underlying the
Although we do not decide at what point in time Jefferson could have discovered the factual predicate underlying his claims, we note that it was not until March 29, 2004, that Alexander wrote to the district court asking about the status of his sentencing reduction. And it was not until October 2004 that Stines filed a
2. Ineffective-Assistance-of-Counsel Claim
With respect to his ineffective-as-sistance-of-counsel claim, Jefferson argues that “the predicate fact was that Labron Nunn had testified for Convertino in USA v. Eric Hinton a few weeks before he testified against Petitioner Jefferson,” and that Jefferson did not discover this fact until the spring of 2006 when Hinton and Jefferson were in the same prison facility. Appellant Br. at 15. This argument is not persuasive, because Jefferson could have discovered that Nunn testified in the Hinton trial years before 2006. Specifically, Nunn was cross-examined during Jefferson‘s trial regarding inconsistencies between Nunn‘s testimony in the Hinton trial and his testimony at Jefferson‘s trial, and regarding the fact that Convertino was involved in both cases. R. 334 (Trial Tr. at 3442-46, 3455-56) (Page ID # 4545-49, 4558-59). Accordingly, Jefferson was aware of the factual predicate that Nunn testified in the Hinton trial and that his testimony may have been inconsistent with his testimony at Jefferson‘s trial—at the time of Jefferson‘s trial in 1999. Jefferson could have filed a claim of ineffective assistancе of counsel based on counsel‘s failure to get a copy of Nunn‘s trial testimony in
C. Equitable Tolling
The district court also was instructed by the prior panel to determine whether any of Jefferson‘s claims were entitled to equitable tolling. “The one-year statute of limitations for filing a
On appeal, Jefferson argues that the extraordinary circumstance that prevented him from timely filing his
D. Merits of Jefferson‘s § 2255 Motion—Brady Claims
Jefferson argues that the district court erred when it determined that the Brady claims raised in his
The first prong of the Brady test is met with respect to all of the witnesses with whom Jefferson alleges Convertino had undisclosed agreements, because a prosecutor‘s duty under Brady extends to impeachment evidence in addition to exculpatory evidence. See Strickler, 527 U.S. at 280, 119 S.Ct. 1936. Both express agreements between the prosecution and cooperating witnesses, as well as “less formal, unwritten or tacit agreement[s]” are “subject to Brady‘s disclosure mandate.” Bell v. Bell, 512 F.3d 223, 233 (6th Cir.2008) (en banc); see Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Evidence that the witnesses in Jefferson‘s trial were going to be granted more favorable deals than they disclosed could have been used to discredit their testimony to a greater degree than was possible without the impeaching evidence. Thus, Jefferson has demonstrated that the evidence allegedly withheld was favorable to him.
Nonetheless, we agree with the district court that for each of the witnesses at issue, Jefferson either failed to demonstrate the existence of an undisclosed agreement or failed to meet the prejudice prong of the Brady test. The prejudice analysis under Brady evaluates the materiality of the evidence. “Evidence is material under Brady if a reasonable probability exists that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Jells, 538 F.3d at 501-02. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Accordingly, “where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.” Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.2000) (quoting United States v. Avellino, 136 F.3d 249, 257 (2d Cir.1998)); see Akrawi v. Booker, 572 F.3d 252, 264 (6th Cir.2009) (holding that when “the jury heard substantial evidence of the potential for a charge-reduction deal,” the failure of the prosecution to disclose an informal agreement with a witness did not meet the prejudice prong of the Brady analysis). We address below the testimony of each witness who allegedly had an undisclosed deal with the prosecution.
The district court found that evidence of additional deals with witnesses Alexander, Palmer, and Warren, even if disclosed, would not have been material. We agree. Assuming that the impeachment evidence was suppressed, the evidence was not material because Alexander, Palmer, and Warren were each cross-examined regarding their deals with the government resulting in favorable sentences, as well as their willingness to lie to prevent incarceration. See Brooks v. Tennessee, 626 F.3d 878, 891 (6th Cir.2010) (“assum[ing] without deciding that the evidence was suppressed” for purposes of a Brady analysis).
Alexander was cross-examined extensively on the fact that his testimony was made in exchange for a deal with the government to avoid a life sentence for shooting multiple people, including a police officer, and for drug and firearm offenses that he admitted he had committed. See R. 329 (Trial Tr. at 2534-41) (Page ID # 7170-77). Defense counsel made clear to the jury that Alexander had a strong incentive to tеstify to the prosecutors’ satisfaction:
Q: If for any reason the two [prosecutors] decide not to [make a motion for a downward departure], sir, you are looking at spending the rest of your life plus 10 years in a federal penitentiary, correct?
A. Right.
...
Q. To avoid that, sir, you will do anything to get out rather than spend the rest of your life in a federal penitentiary?
A. Yep.
Id. at 2541 (Page ID # 7177). Alexander also admitted that he repeatedly had lied to police officers, that he would lie to avoid criminal charges, and that he would lie to avoid receiving a life sentence. See id. at 2600-01 (Page ID # 7236-37); id. at 2673 (Page ID # 7309) (admitting that he “cooperated to keep from getting life“).
Similarly, Palmer was cross-examined about his motives for cooperating with the government and testifying against his coconspirators. Palmer stated that he decided to cooperate after learning that he had unwittingly sold crack cocaine to an undercover police officer, stating, “I couldn‘t deny it ... because the [undercover agent] was right before me.” R. 325 (Trial Tr. at 1970) (Page ID # 6482). The jury was aware that pursuant to his plea agreement, Palmer pleaded guilty to delivering only 13.57 grams of cocaine base and 225.75 grams of cocaine, even though he had informed police that he had been dealing cocaine in much larger quantities, upwards of three kilograms. See R. 327 (Trial Tr. at 2250-53) (Page ID # 7818-21). In other words, the jury was made aware that had Palmer not cooperated, he would face 324 to 405 months in prison. Id. at 2267 (Page ID # 7836). Instead, because he cooperated, Palmer received a plea agreement that calculated an agreed-to guidelines range of seventy to eighty-seven months. Further, if the government was satisfied with Palmer‘s cooperation, it agreed to recommend a downward departure to sixty months. Id. at 2267-70 (Page ID # 7835-38). Palmer also admitted to lying repeatedly to his parole officer about selling drugs to avoid additional penalties. R. 326 (Trial Tr. аt 2211-13) (Page ID # 6722-24). Accordingly, the jury had reason to believe that Palmer had a strong incentive to give perjured or exaggerated testimony against the defendants in exchange for a more lenient sentence, and that he had a history of lying to law enforcement officers to protect himself.
Finally, Warren was cross-examined on his incentives for cooperating with the government. He stated: “The reason I coop-
This summary of the relevant cross-examinations demonstrates that Alexander, Palmer, and Warren had their credibility impeached regarding their incentives to give favorable testimony in exchange for significantly more lenient sentences: Alexander was avoiding a life sentence in exchange for a downward departure that would leave the maximum sentence at twenty-five years; Palmer would receive a downward-departure recommendation for a sentence not to exceed five years, instead of facing between twenty-seven and thirty-three years in federal prison for larger drug quantities; and in exchange for Warren‘s testimony, the government would recommend ten years in prison, rather than the twenty-two-year sentence he would face absent any cooperation. Despite the fact that these witnesses ultimately received even more lenient sentences, the jury already was aware of the witnesses’ significant motives to exaggerate or fabricate to please the government. Each witness also had admitted that he would lie to avoid harsh penalties. Accordingly, under our precedents, the additional basis on which to attack these witnesses’ credibility was not material, and Jefferson‘s Brady claims regarding these witnesses fail. See Byrd, 209 F.3d at 518.
2. Labron Nunn and Samuel Mullice
The testimony of Nunn and Mullice at Jefferson‘s trial helped connect Jefferson to the Stines conspiracy. Jefferson argues that the fact that both Nunn and Mullice were not charged or prosecuted for crimes they admitted to committing demonstrates that they had undisclosed agreements with Convertino. Appellant Br. at 33. The district court rejected this argument, finding that Jefferson‘s claims regarding Nunn and Mullice were entirely speculative, and that Jefferson had presented no evidence to establish the existence of an undisclosed deal. We affirm the district court‘s determination that Jefferson did nоt establish that a secret deal existed with respect either to Nunn or Mullice. We have held that “[t]he mere fact that [some witnesses‘] sentences were later altered is not evidence that a deal existed prior to their testimony at trial.” Williams v. Coyle, 260 F.3d 684, 707 (6th Cir.2001); see also Matthews v. Ishee, 486 F.3d 883, 896 (6th Cir.2007). Accordingly, the fact that both Nunn and Mullice were not prosecuted for particular crimes, without more, is insufficient, under our precedents, to establish that an undisclosed deal existed.
Even assuming that there was an undisclosed agreement with Nunn, the additional impeachment evidence would not be prejudicial, because the jury was made aware that Nunn was admitting in open court to criminal acts, but stated he did not expect to be prosecuted. Nunn testified at trial that he did not have an agreement with anyone from the state or federal prosecutor‘s office regarding any benefit he would receive for his testimony. R. 334 (Trial Tr. at 3437) (Page ID # 4540). However, on cross-examination, Nunn also stated that he knew the government could
Mullice similarly denied receiving benefits from the government for his testimony. R. 331 (Trial Tr. at 2780) (Page ID # 6762). However, Mullice admitted to the jury that he had pending charges against him for possession of crack cocaine (and that he was guilty of those offenses), but that he did not expect the government to pursue the case against him. However, on cross-examination, he could not come up with an answer for why he did not expect to be charged or prosecuted for these crimes. Id. at 2782-86 (Page ID # 6764-68). The jury understood that Mullice had a motive to testify favorably for the government and that he may have stood to benefit significantly through his cooperation. Thus, any undisclosed impeachment evidence would have been cumulative. Accordingly, even if Convertino suppressed evidence of deals with Nunn and Mullice, the additional impeachment evidence would not “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. We hold that Jefferson‘s Brady claims relating to Nunn and Mullice fail.
3. Eva Taylor
Like Warren, Palmer, and Alexander, Taylor was cross-examined about her plea agreement with the government. She admitted that, absent her cooperation with the government, she would fаce a mandatory minimum of ten years in prison and would likely receive a sentence of between twenty-five and thirty years in prison. R. 322 (Trial Tr. at 1472) (Page ID # 7087). However, pursuant to her plea agreement, if Taylor cooperated with the government and testified against her coconspirators, the government would make a recommendation to the sentencing judge that she receive a sentence of only four years. Id. at 1473 (Page ID # 7088). Taylor also admitted lying to the government in the past. See id. at 1416 (Page ID # 7031). After Jefferson‘s trial ended, Taylor ultimately was sentenced to only two years of probation. Assuming there was an undisclosed deal, as the circumstantial evidence of Taylor‘s grossly reduced sentence suggests, the cross-examination repeated above demonstrates that Taylor‘s credibility was impeached thoroughly regarding her incentives to testify favorably towards the government. Accordingly, the undisclosed evidence would be cumulative and not рrejudicial.
4. Aaron Bowles
Like Jefferson‘s Brady claims with respect to the trial witnesses, Jefferson‘s Brady claim regarding an undisclosed promise with Aaron Bowles (“Bowles“) in exchange for his testimony at sentencing fails, because even if such an undisclosed promise existed, it would not
More significantly, the primary basis for the district court‘s drug-quantity determination was Jefferson‘s admissions to law enforcement officers when he was initially arrested. See R. 425 (Sent. Hr‘g Tr. at 23-24) (Page ID # 3171-72). Jefferson conceded that if his statement to law enforcement officers was considered reliable evidence, it would establish that he was responsible for three-and-a-half kilograms of cocaine. R. 285 (Def.‘s Supp. Sent. Mem. at 3) (Page ID # 9849). The district court found this statement reliable, and thus found that Jefferson was responsible for at least one-and-a-half kilograms of cocaine. R. 425 (Sent. Hr‘g Tr. at 23-24) (Page ID # 3171-72). Although the district court also credited Bowles‘s testimony, even with additional impeachment evidence, there is not a reasonable probability that the district court would have found Jefferson liable for less than one-and-a-half kilograms of cocaine. Thus, Jefferson‘s claim relating to Bowles fails.
5. Donald Bailey
Jefferson‘s assertions regarding Officer Donald Bailey (“Bailey“) lack merit. Jefferson asserts that Convertino withheld information regarding Bailey‘s disciplinary history from the court, or otherwise lied about that history. Appellant Br. at 41-42. However, the trial transcript indicates that defense counsel was aware of the information, and that Convertino did not deny it, but only objected to the questioning on evidentiary grounds. R. 319 (Trial Tr. at 907-17) (Page ID # 5259-69). Jefferson has not established that Convertino withheld any information from defense counsel relating to Bailey‘s conduct in unrelated state-court cases.
*
Although the record in this case suggests egregious prosecutorial misconduct, the bad faith of the prosecutor does not impact our Brady analysis. See Strickler, 527 U.S. at 288, 119 S.Ct. 1936 (“If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” (quoting United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976))). We affirm the district court‘s conclusion that Jefferson‘s Brady claims fail on the merits.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Terrence HENDERSON, Petitioner-Appellant,
v.
Carmen PALMER, Warden, Respondent-Appellee.
No. 11-1943.
United States Court of Appeals, Sixth Circuit.
Sept. 12, 2013.