*1 739 Gutierrez-Ortiz, 729, v. they Fed.Appx. when were 86 730 discretionary relief for (5th trial.”); Cir.2004); Duarte, felony after Cham- United States v. of a convicted (4th Cir.2002) (2d Cir.2003) Reno, 206, (rejecting F.3d 284 327 F.3d 207 bers v. 307 argument produces given by “[f]or IIRIRA no retroac- the reasons (holding that Orihuela). in ... applied pre- to alien’s Eleventh Circuit tive effect when trial). agree go We with our sister circuits and find IIRIRA decision 843(b) Zuñiga’s § that conviction constitut- retroac- perceive impermissible no We a drug trafficking ed offense. of AED- application in the IJ’s tive effect Accordingly, Zuñiga fails Zuñiga. PA to Zuñiga challenges also the district unfairness in to demonstrate fundamental authority court’s supervised order his affirm his convic- deportation, his we release tolled in the event that he is de entry following deportation. illegal tion for ported. acknowledges He that argu ment conflicts binding prece circuit Sentencing C. dent, Isong, see United States v. 111 F.3d Zuñiga challenges also the sentence (6th Cir.1997), argues 428 that our imposed. that the district court The dis precedent “fundamentally unsound.” court, determining trict the relevant authority We lack the to overrule a advisory-Guidelines range, applied a 16- decision, panel’s Hosp. Ahearn v. Jackson Zuñiga’s prior con level enhancement (6th Cir.2003), Corp., 351 F.3d 234-35 viction for unlawful use of a communication accordingly reject Zuñiga’s argu and we 843(b). § facility in violation of U.S.C. ment. the crime
The district court characterized Ill trafficking offense” within the “drug as meaning Sentencing of United States Because we find no unfair- fundamental Zuñiga argues § 2L1.2. that a Guidelines Zuñiga’s prior ness in deportation, and 843(b) § conviction under cannot consti Zuñiga sentencing because identifies no in “drug trafficking tute a offense” but error, judgment we affirm the of the dis- nothing stead should be considered more trict court. felony” “aggravated garners than an
only an 8-level enhancement under Guide §
lines 2L1.2. Orihuela, 320 F.3d United States (11th Cir.2003), the Eleventh Circuit ably Zuñiga’s argument. answered Stephen BELL, M. Petitioner- 843(b) § that a conviction reasoned Appellant, proving entails the Government employed facility accused a communication Ricky Warden, BELL, Respondent- (such com- telephone) to facilitate “the Appellee. underlying mission someone of an con- No. 04-5523. offense,” trolled substance such aiding abetting conduct amounts to Appeals, Court of United States 1304-05; underlying Id. at offense. Sixth Circuit. Dotson, F.2d see United States v. Argued: Feb. 2006. Cir.1990) (6th (discussing the elements Aug. Decided and Filed: 843(b) violation). § Every of a circuit to question consider the has followed the
Eleventh Circuit’s lead. See United States *3 Swift, L.
ARGUED: Gretchen Federal Office, Nashville, Public Defender’s Ten- nessee, Lustre, Appellant. for Alice B. General, Nashville, Attorney Office of the Tennessee, BRIEF: Appellee. for ON Swift, Lenahan, Gretchen L. Jude T. Fed- Office, Nashville, eral Public Defender’s Tennessee, Appellant. for Michelle C. Mclntire, General, Attorney Office of the Nashville, Tennessee, Appellee. for COLE, CLAY, GIBBONS, Before: and Judges. Circuit CLAY, J., opinion delivered the court, COLE, J., joined. in which - GIBBONS, 768), (pp. J. delivered concurring in and separate opinion part dissenting part.
OPINION CLAY, Judge. Circuit Stephen appeals M. Bell Petitioner 26, 2004 order of the United States March District Court for the Middle District of granting summary judgment in Tennessee Bell, Warden, Ricky Respondent favor of dismissing petition Petitioner’s habeas § pursuant filed to 28 U.S.C. 2254. For below, RE- the reasons set forth we the district court order VERSE petition for writ of habeas GRANT corpus.
I. BACKGROUND
A.
HISTORY
PROCEDURAL
5, 1987, a
state
On March
Tennessee
guilty of one count of
jury found Petitioner
per-
count
defender
Petitioner’s counsel and
degree
murder
the first
one
degree.
in the second
On
murder
mitted Petitioner to file an amended com-
17, 1987, the
trial court sen-
6, 2000,
March
state
plaint.
September
On
to a life
and a
tenced Petitioner
sentence
complaint.
Septem-
filed an
On
amended
twenty-year
respective
for the
sentence
Respondent
supple-
ber
filed a
crimes, with the sentences to run consecu-
or,
previous
ment to his
motion to dismiss
3, 1989,
tively.
August
the state court
On
alternatively,
summary judg-
motion
appeals
affirmed the convictions. State ment.
Bell,
88-138-11,
No.
C.C.A.
WL
26, 2002,
April
On
the district court
1989) (un-
(Tenn.Crim.App. Aug.4,
summary
granted
judgment
Peti-
published opinion). The Tennessee Su-
(1)
tioner for all but five of his claims:
*4
preme
permission
appeal.
denied
Court
(2)
evidence;
of
insufficiency
ineffec-
1990,
On
Petitioner
filed a
March
appellate
tive assistance of trial and
coun-
petition
post-conviction
for state
relief.
(3)
(4)
sel;
violation;
Brady
to al-
failure
2, 1992,
On November
the state trial court
low trial counsel to
because of a
withdraw
4,1994,
August
denied relief. On
the state
(5)
interest;
improper
conflict of
and
re-
appellate court affirmed
denial of re-
questioning
jurors during
striction of
of
State,
lief. Bell v.
No. 01C01-9304-CR-
granted
voir dire. The district court
an
(Tenn.Crim.App.
Officer Moore was Wal- Hospi- lace been moved to General camp had ered at the site. Later at the although appeared tal and he to have Sergeant read the police station Jacobs times, only many as three been shot as rights. Miranda defendant his When hospital. found at the slug one had been murder, charged told he would be with crime made an The officers at the scene responded that he had not defendant and were able to recov- extensive search anyone, gun shot had not shot a and had slug bloody from the mattress with- er gun. never shot a lain in the tent where Mr. Wallace had Darryl Ryan performed Officer a nitric when shot. acid test on the defendant’s hands. The talking Hedges After and Stans- laboratory. were sent to the crime swabs bury getting general description Spain Officer Archie was sent to General suspect, the officers broadcasted Hospital. possession He took of a .38 pick-up. Other detectives took the de- slug laying caliber that was beside Mr. him custody fendant in and returned body emergency in the room. Wallace’s an area near the crime scene. Due The State introduced from fading light camp in and around the laboratory three technicians. The first bridges, sites and under the other offi- technician had examined the defendant’s setting up line-up cers were street type people open nearby. in an area clothing blood stains but found none. explained Officer Moore that facial iden- technician, criminalist, The second had strong tification was not examined the swabs from the defen- scene, clothing crime details and the gunshot dant’s hands for residue. This participants overall characteristics of the “antimonium, technician testified that strong were in the witnesses’ minds. *6 gunshot barium and lead of indicative Wynn Officer and Mark two other offi- in significant residue was found concen- responded cers to a call that a man 5, trations on exhibit hand swabs. fitting description suspect the of the was subject These results indicate that believed to in the area of be Fessler’s gun.” could have fired or handled a Lane Hermitage They Avenue. ob- The third technician was firearm ex- suspect sitting served the on the curb aminer. He the two identified lead drinking dog .and He had a with beer. slugs being filed earlier as exhibits as custody him. He was taken in fired from the same firearm. He had unspent found to have six .38 caliber cartridges disassembled one of the live Special grain in Winchester bullets taken from pockets the defendant’s pants pockets, weapon his but no compare slugs. the lead to the other lead dog found. He was concerned about opinion He was of the the three were agreed so the to transport officers from the same manufacturer. The elev- (A dog place line-up. to the of the spent en shells taken from defendant’s picture dog wearing the choke camp compared site were with the four chain and belt leash was shown the spent shells recovered at the victims’ jury) camp upon microscopic site. Based his Sergeant Tommy Jacobs testified that opinion they examination he was of the shortly p.m., September after 5:30 all had been fired from the same fire- camp he visited the site of the arm. defendant and recovered eleven spent The casings .38 caliber shell medical examiner testified detail and Winches- ter lying ammunition box that were on as to two gunshot upon wounds found body. opinion ei- Wallace’s his vice Merchandise on lower Broadway. Jean ther one of these would have caused her purchase Camden made the at the re- death. From his examination of Her- quest of the defendant. they While Wallace, man he concluded that death together were the defendant did not pulmonary the result of a saddle dog have his with him. After pur- embolus, gun- clot a blood caused they chase of the ammunition went their artery shot wounds which occluded the separate ways. go He did not to the lungs. camp defendant’s site nor witness him The State rested its case chief. De- a gun. fire He was taken from River- judgments motion ac- fendant’s for front Park for the line-up. Camden tes- quittal were overruled. tified that he owned a .22 caliber rifle morning Defendant testified that on the but never owned a .38 pistol. caliber 6, 1986, September he went to River- Following argument of attorneys front Park. met There he two men with court, and instructions from the jury pooled money pur- whom he his retired and jury deliberated. The re- fifth chase of a of wine. He and one of turned to the courtroom and delivered general the men moved about guilty verdicts of first-degree [of during area of town which time the man guilty murder and of second-degree having pistol mentioned .38 caliber murder]. They needed shells. went to Service person pur-
Merchandise where this Bell, State v. at WL *1-4. cartridges upon signing chased a box of following presented facts were at log entering an identification evidentiary hearing conducted They number. returned to Riverfront district court: Park and camp then to defendant’s site target practice where defendant did (“Auble”), Dr. expert Pamela Auble an pistol. the man’s At noon he went to Petitioner, witness for testified that she lunch and returned to camp. conducted a neuropsychological evaluation men camp. were still Later de- on November 2001. She fendant walked to Lebanon Road and indicating reviewed numerous records Fessler’s Lane where he was arrested. *7 history Petitioner suffered a of alcoholism acknowledged being brought He back to depression. In her interview with Pe- the Riverfront Park. He testified that he titioner, Petitioner stated that he had been line-up. did not know he was in a When drinking heavily for the month to picture line-up shown a of the he identi- murders, date of the and he had also been participant fied one as the man who drinking heavily day on the of the mur- purchased morning. the shells that ders. He stated that he could not remem- explained Defendant that his statement periods day ber certain of time on the of Sergeant of having Jacobs never fired the murder. Auble concluded that Peti- gun had gun reference to a used to significantly tioner was intoxicated on the murder someone. He was unable to day the shootings opined occurred. She explain why dog he had first said his had that if shootings, Petitioner committed the him day changed been with all he did so significant under inebriation and say dog was not him all day. depression. severe of shooting He denied the Wallaces. Auble was the belief that Petitioner would have been unable to Billy The State called Joe Camden as a premeditated plan form a and deliberate rebuttal witness. This was the man who purchased had the box of kill shells at Ser- the victims. concealing (“Alderman”), larceny and two counts of grand Pe-
Next, Ross Alderman counsel, after against Davenport Aider- property trial testified. stolen titioner’s (cid:127) requested an prosecution that he had con- Davenport testified contacted man of Petition- health evaluation initial mental with Petitioner. cerning his conversation representation. early on er that he was unaware Alderman testified that Petitioner request this reason for received concurrent Davenport had lengthy history of substance admitted to concealing for two convictions sentences did not recall and that Petitioner abuse Davenport after contacted property stolen murders day any events on concerning his conversa- Alderman stated of blackouts. because Alderman testified tion with Petitioner. investigation an initial that he had made prosecu- also unaware that the that he was history of alcohol abuse. Petitioner’s into going to write a letter to the tion was that an that he believed Alderman testified Davenport on behalf of after parole board most effective defense was the intoxication trial terminated. Alderman Petitioner’s Petitioner; however, Petitioner for defense was also unaware that testified that he ie., defense, identity he was on an insisted contacted the Davenport originally had cross-examination, not shooter. On for testify against that a defense of identi- Alderman testified of facilities or a work release transfer of intoxication would ty and a defense cross-examination, Aider- program. On inconsistent. been man that he knew that Daven- admitted Daven- Alderman testified that William hearing, and port upcoming parole had an port (“Davenport”) key was a witness for argued point had to the that Alderman at Davenport testified prosecution. jury impeachment Davenport. with Peti- trial that he had conversation (“Miller”), at Miller Ross custody tioner while the two men were testified at the evi- Petitioner’s also shooting the where Petitioner admitted to that he dentiary hearing. Miller testified Also, that Pe- Davenport victims. testified promise Davenport anything did not shooting Mrs. titioner admitted Wallace testimony at Pe- exchange Davenport’s shooting to the because she was witness titioner’s trial. Miller testified while Mr. stated that the of Wallace. Alderman wrote a letter to the board on he damaging ways: in two - behalf, promise he Davenport’s did first, identity; negated it defense that he would do so. Miller Davenport second, provided premedita- a basis for approached admitted that first shooting tion with of Mrs. testifying against about Wallace. Petitioner, “[everybody wants requested testified that he Alderman something, and I’m sure want- any exculpatory impeach- potentially (J.A. 476.) tak- something.” *8 prosecution, ment evidence from meeting at en Miller the first between any produce that the did not Davenport Miller and indicated that Dav- such evidence. Alderman stated that he enport wanted a transfer of facilities or a custody in was aware that program. work release directly preceding at the time Petitioner’s During closing arguments, argued Miller govern- but he did not know that the “say- ment had nolle jury any counts of to the that he did not have prosequied2 two words, (7th ed.1999). Dictionary government withdrew Law 1070 In other charges. its of these See Black's 747 First, Davenport’s the court must parole board ascertain whether so” with evidentiary hearing, At the Miller applicable procedural case. there is an state that he did in fact write a letter Second, admitted rule. the court must determine board; in that letter Davenport’s whether the actually state courts enforce did not Miller wrote that the Third, the rule. the court must decide strong Davenport’s case without procedural whether the state forfeiture testimony. im- Davenport’s adequate is an and independent state portant provided in that it Petitioner’s mo- ground rely on which the state can shooting and what tive for the established foreclose review of a federal constitu- actually happened shooting. had ..., Finally tional claim. if the criminal was the Miller admitted rule, comply defendant did not with the prosecution’s final witness its case. Mil- the defendant must demonstrate there promises reiterated that he made no ler was cause for him not to follow the Davenport. rule, procedural actually and that he was prejudiced by alleged constitutional II. DISCUSSION error. A. THE COURT ERRED DISTRICT Collins, 380, Jamison v. 291 F.3d 385-86 IN RELIEF ON PETI- DENYING (6th Cir.2002). Court, Supreme how- THAT THE TIONER’S CLAIM ever, has outlined an inquiry alternate MA- PROSECUTION WITHHELD party when a fails to exhaust his state TERIAL IMPEACHMENT INFOR- remedies with to a claim: MATION REGARDING WITNESS petitioner failed to [I]f exhaust state DAVENPORT, IN WILLIAM VIO- remedies and the court to which the BRADY v. MARY- LATION OF petitioner required would be to present LAND, 373 (1963). 83 U.S. his claims in order to meet the exhaus-
1. Preservation of the Issue
tion requirements would now find the
barred[,]...
procedurally
claims
there is
Respondent contends
Petitioner’s
procedural
purposes
default for
of fed-
defaulted,
Brady
procedurally
claim is
regardless
eral
habeas
decision
present
Petitioner did not
claim
petition-
the last state court to
which
any
agree
state court.
we
While
defaulted,
actually presented
er
his claims.
procedurally
this claim is
we
conclude that Petitioner has demonstrated
Thompson,
501
Coleman
U.S.
adequate
prejudice
cause and
to overcome
n.
S.Ct.
L.Ed.2d 640
that default.
(1991). Petitioner
failed to exhaust his
remedies,
present
state court
as he did not
general
§
rule in the
2254 con
claim to the state courts. As
text
that if
claim proce
Petitioner’s
noted,
correctly
the district court
courts,
durally
defaulted
the state
claim would now be barred
the state
may
federal courts
that claim
consider
courts,
statutory
as Tennessee
law estab-
on habeas review unless Petitioner demon
one-year
lishes a
statute of limitations as
prejudice. Wainwright
strates cause and
filing
post-conviction peti-
of state
72, 86-90,
Sykes,
U.S.
97 S.Ct.
(1977).
petitioner
only
tions and limits a
one
gener
748 preju- prosecution failed to disclose demonstrated cause and tioner has Moreover, this default. dice to overcome pros- once the such evidence. responded request ecution to Petitioner’s Supreme specifically Court has exculpatory empty for evidence with an for his petitioner held that a shows cause hand, Brady duty claim in state Petitioner was under no failure to raise failure to court “when the reason investigation in engage further deter- in develop proceedings facts state-court in prosecution mine fact whether of the relevant suppression the State’s Banks, evidence. 540 U.S. withheld See Dretke, 668, Banks v. 540 U.S. evidence.” (“Our 695, at 124 1256 decisions S.Ct. 1166 157 L.Ed.2d S.Ct. notion that support lend no defen- (2004). Generally speaking, the fac “when scavenge must for hints of undis- dants ‘reasonably tual basis of claim was Brady prosecu- material when the closed counsel,” the to the defendant’s unknown’ represents tion that all such material has to raise defendant shows cause for failure disclosed.”). Petitioner’s valid ex- been during proceedings. the claim Jami state raising Brady not claim planation for (internal son, at 388 citation omit 291 F.3d proceedings in the state court is that he ted). reasonably Brady may A claim be prosecution was unaware that had defendant, as the claim is unknown to material, Brady and that he was withheld entirely prosecu on the fact that the based justified prosecu- in his reliance on the exculpatory tion from withheld evidence representation tion’s that it had not with- the defendant. As this Court viewed the Brady held material. situation, “[suppression exculpatory or evidence the state impeaching favorable in deny To cause this case would be to inability in an that results to raise claims prosecution doubly allow the benefit in court relating to evidence state prosecution ig- from its actions: could ensuing establishes cause for the default.” duty provide nore its constitutional ex- (6th Bell, Hutchison v. 303 F.3d evidence, culpatory and it could evade re- Cir.2002). by asserting for its view behavior state case, In the instant Petitioner’s counsel procedural jurisprudence default. The any requested exculpatory impeach- Supreme both the Court this Court prosecution ment evidence that the had rejects this result and leads to the conclu- possession, prosecution pro- its sion that Petitioner has shown cause for nothing. prosecution vided did not Brady his failure to raise his claim before Davenport ap- inform had the state courts. proached testify ex- change building for a transfer or a work prejudice In order to demonstrate with program; release did not claim, Brady respect to Petitioner must shortly meeting reveal that after a prove suppressed by that the evidence Davenport, government dropped four prosecution was material so as to establish - criminal counts Banks, Brady violation. U.S. Davenport received concurrent sentences explained, infra, 1256. As S.Ct. counts; for two additional criminal prosecution failed to disclose im- material any made no mention of peachment Davenport, evidence of and this upcom- intention to aid in his in a failure resulted violation. ing parole, hearing. Petitioner thus could Thus, prejudice Petitioner has satisfied the have made his claim state way knowing prong. because he had no
749 Legal a. of Review Framework 2. Standard In Brady Maryland, v. the Supreme court denies a habeas district When held that Court has a con con- legal this Court reviews its petition, obligation stitutional under the Due Pro de novo and its factual conclusions clusions cess Clause of the Fourteenth Amendment O’Dea, Lucas v. 179 F.3d for clear error. exculpatory to disclose evidence that is Cir.1999). (6th 412, 416 material guilt punishment. to either or 83, 87, 373 U.S. 83 S.Ct. 10 L.Ed.2d peti Because Petitioner filed his habeas (1963). emphasized The Court tion to the enactment of the Anti- purpose of such a rule was “avoidance Penalty and Effective Death Terrorism of an unfair trial to the accused.” Id. The (“AEDPA”), § Act of 1996 U.S.C. Supreme Court has held that Brady pre-AEDPA applies standard of review impeachment rule extends to witness evi respect to the conclusions of the state See, States, e.g., dence. Giglio United standard, courts.3 Under this the Court 150, 154, 405 U.S. 92 S.Ct. 31 L.Ed.2d the correctness of the state “presume[s] (1972) (“When reliability given of a by unless rebutted findings, court factual may guilt witness well be determinative of evidence, convincing re [it] clear innocence, nondisclosure of evidence af law, or mixed determinations view[s] fecting credibility Brady falls within [the ] law, de questions of fact and novo.” Smith (internal quotations rule.” and citation (6th Mitchell, 348 F.3d Cir. omitted).). 2004) (citations omitted). claim,
In order to make a
(1)
prove
Petitioner must
three elements:
Analysis
3.
“[t]he evidence
issue must be favorable
that a
Petitioner has established
accused,
either because it is exculpa
during
(2)
violation occurred
his trial. As a
tory,
it
impeaching”;
or because
result,
in denying
the district court erred
suppressed
“that evidence must have been
State,
by
willfully
relief.
either
or inadver-
Petitioner habeas
argues
complaint
upon
Respondent
applies
that AEDPA
the amended
to act
is incon-
case; Respondent’s logic
the instant
is that
sistent with his
actions: after the
own
district
original petition
while Petitioner filed his
be-
granted
reopen, Respon-
court
the motion
AEDPA,
original
enactment of
this
fore the
or,
dent
to dismiss
alternative-
filed motion
petition was dismissed
the district court
ly,
summary judgment.
a motion for
If in-
result,
and erased out of existence. As
existed,
nothing
Respondent was
deed
then
petition,
filed his amended
when Petitioner
non-case,
filing
this motion
an ab-
amend,
nothing
there was
so that his
proposition.
surd
When the district
petition
actually re-filing
amended
reopen,
granted
it
the motion to
resuscitated
occurred after
enactment of AEDPA.
original complaint that
Petitioner’s
had been
ignore
Respondent would have this Court
previously
complaint
dismissed. Since this
how Petitioner was able to file
amended
his
enactment, AEDPA
was filed before AEDPA's
petition;
previously granted
the district court
apply.
does not
reopen
motion to
the case that derived
exercise,
ultimately
This is
an academic
original petition.
from the
While it is certain-
presented
the two
to this Court were
claims
ly true that the district court dismissed this
courts,
presented to the state
and the state
case,
equally
it
true that the district court
findings
no relevant
of fact or
courts made
reopened
undid
action
this case.
when
Thus,
legal
as to these claims.
conclusions
Thus, the
court as
case before
district
stringent
under
the more
standard of review
grant
reopen
its
of the motion to
was that
effect,
Moreover,
noth-
AEDPAwould have no
as there is
original petition.
created
ing
Respondent's
nothing
to review.
existed for
claim
*11
(3)
definition,
By
Brady
if this
found a
must have en-
Court
tently”;
“prejudice
and
263,
Greene,
violation,
it
have had to have found
v.
U.S.
would
sued.” Strickler
281-82,
1936,
that disclosure of the evi- dence that the did not disclose: ultimately dence would have resulted (1) Davenport approached acquittal.... ques- the defendant’s Petitioner, testify to motivated tion'is not whether the defendant would his desire for a transfer of facilities or for likely more than not received a (2) program; shortly after evidence, work release different verdict with the Davenport spoke prosecution, whether in its absence he received a fair with the in a resulting government understood as a trial prosequied nolle two counts of worthy of verdict confidence. grand larceny two of concealing and counts property against Davenport, stolen 434, 115 Id. at S.Ct. 1555. Davenport received concurrent sentences Second, materiality is not a suffi concealing for two convictions of stolen test, ciency meaning of the evidence (3) property; wrote a evidence, if including sup even letter to the on behalf of board evidence, pressed exculpatory is sufficient Davenport. Petitioner’s is that position conviction, party may support still n such evidence was favorable it because maintai a claim. A party Id. impeached testimony would have a Brady “by showing makes claim that the Davenport, prosecution’s key witness reasonably favorable evidence could be only source of evidence re- put taken to whole case such spect premeditation first-degree under light different as to undermine confidence murder. in the verdict.” Id. at 115 S.Ct. verdict, It is the lack of confidence Respondent argues that this evidence
not ability the verdict with support Petitioner, not favorable because evidence, entirety that is critical. Petitioner failed to that an has show Third, prosecu- existed “once a ... between reviewing has Respondent tion Davenport. points found constitutional error there is no need Miller, specifically further harmless-error review.” Id. who way promise anything agreement, there would be an that he did stated *12 testimony for his exchange impeachment, would be usable for and it words, In other there against Petitioner. would have to be disclosed to the de- Davenport’s between was -no connection fense. treatment, so testimony and his lenient (7th Cir.2005). 408 F.3d 323-24 im- that his lenient treatment was not The Ninth Circuit has also found that a In response, evidence. . Peti- peachment agreement tacit between witness and the Brady requires that the dis- tioner asserts prosecution is favorable evidence under any may impeach that closure evidence Brady. In Shaffer, United States v. a co- witness, including evidence outside of an conspirator testified against another co- between and the agreement conspirator on charges. narcotics 789 prosecution. (9th Cir.1986). F.2d govern- The an parties interesting The raise ment failed disclose that the witness had yet by question not addressed this Court: assets that were acquired profits from agreement prose an between the
whether operation, the narcotics gov- and that the required cution and a witness is under ernment knew about these assets and their prosecution Brady before the must dis nature but did not pro- initiate forfeiture potential close evidence actual lenient ceedings against the witness’ assets. Id. Supreme The treatment. Court has at 689. The court concluded that a tacit issue; spoken only on this it has found agreement hád been created between the express agreement that evidence of an be prosecution whereby witness prosecution tween a witness and the keep ill-gotten witness could his assets Brady. Giglio, favorable evidence under testimony. return for his Id. The court 152, 154-55, 92 405 U.S. at S.Ct. 763. responded to the claim express that no specifically Two circuits have addressed agreement had been reached: agreement the circumstance of a-tacit be- that, government The contends because tween the and a witness and explicit there no on agreement agreement have found that such an is fa- matter, nothing it had to disclose.... vorable to be disclosed under evidence government Apparently the misunder- Davis, Brady. In Wisehart Seventh ruling. stands the district court’s While explained, Circuit it is clear that an explicit agreement [way The first most common would have to be disclosed because of its impeach a on giv- witness based benefits credibility, effect on it is [the witness’] prosecution] en to the witness equally imply clear facts which an showing given the benefits were would agreement [the also bear on wit- in-return for the providing witness’s tes- credibility and would have to be ness’] timony that help prosecution. would disclosed. might He have told the what omitted). (internal Id. at 690 citations testify he would to if called and the Eighth gone Circuit has even fur- prosecutor might explicitly agreed ther, holding agreement that no between give specified him if he benefits testi- and a required witness is consistently proffer.... with his fied Or Brady, long under so as the withheld evi- might there a tacit have been under- impeach dence can the witness. In Reut- standing if help- Solem, had failed to ter ful to prosecution, the state would applied that its had give him a break on some disclose star witness pending crimi- tacit, that, nal charge.... Express or either for sentence commutation and coinci- dentally, hearing spectrum, for sentence commu- On the other end of the place tation was to take soon after his Second Circuit has held that favorable petitioner’s at the trial. 888 appearance treatment for a witness is insufficient (8th Cir.1989). F.2d agreement show an between the prosecu- violation, despite the lack of found Artuz, tion and the witness. Shabazz v. any prose- form of between the peti- two witnesses testified cution witness: shooting in a death that occurred tioner depend conclusion does not on a Our (2d robbery. during a 336 F.3d *13 an an im- finding express of either Cir.2003). testimony, At the time of their plied agreement witness] between [the they charged with various were narcotics regarding pros- the prosecution and additional offenses. Id. at 156. Just ecution’s favorable recommendation to case, prosecutor as in this the testified at parole the board. The District Court evidentiary hearing an promised that.he agreement found there was no and this nothing exchange in the witnesses finding clearly is not erroneous. The testimony. prosecu- their Id. at 163. The agreement, fact that there is no howev- tor, however, appear sentencing did at the er, is not determinative of the whether hearing of one of the witnesses and asked prosecution’s actions a Bra- constituted leniency. the to show Id. at 165. .... dy requiring violation reversal We Moreover, prosecutor approved a rec- that, peti- hold viewed in the context of attorney’s ommendation from the district trial, tioner’s the fact of [the witness’] office for a lenient sentence for the other impending hearing commutation petitioner argued witness. Id. The that ... petitioner material that there- the fact that the two witnesses in fact fore is entitled relief. received favorable treatment after their addition, Id. at 582. the court found an testimony agreement evidenced be- prosecution’s jury comment to the tween the and the witnesses. “nothing the witness had that he could disagreed: Id. The court gain” testimony “misleading from his is correct that wit- [Petitioner [the two highly improper” coupled when they received benefit because nesses] prosecution’s failure to disclose the However, testified him. hearing. commutation Id. the court While fact, alone, standing does not establish did not decide whether the comment alone that, trial, petitioner’s the Dis- would warrant a that it new found Attorney’s trict promised further undermined the Office two [the court’s confidence in petitioner.4 the conviction of the leniency. government Id. witnesses] clear, holding appear To be in Reutter did not uled to before the board a prosecutor peti days rest on the fact that a at obviously few later. This information tioner's trial was also member of the sen could have been used defense panel tence commutation that would hear the Trygstad's credibility. attack We have little petition. Eighth witness' Circuit did not concluding difficulty prosecu- in that the disputed so hold because it was whether tion's failure to disclose this information prosecutor question even voted on the wit Brady was a violation. Instead, petition. ness Id. at 580. the court at Id. 581. The violation from derived found: prosecution's failure to disclose that the Here, hearing witness had a sentence commutation failed to inform the trial; witness, directly following petitioner’s key Trygs- defense that the state's tad, Eighth applied Circuit never even so much as men- had for sentence commutation gave prosecutor's disputed that when he tions involvement petitioner's already hearing. trial he had been sched- with the sentence commutation words, coop- for their other the witness is impar- free to reward witnesses See, favorable treatment 154-55, eration with tial. e.g., Giglio, 405 U.S. at criminal cases without disclos- pending par- S.Ct. 763. This same interest and its intention to do ing to the defendant tiality exist under a tacit agreement, and so, promise it does not provided so this evidence would be equally impeach- prior to their anything to the witnesses ing subject and thus to disclosure under say not to that a testimony. That is Brady. The fact that prosecutor may circumvent his unspoken does not lead to a diminishment obligations by failing to reduce to writ- agree- the witness’ interest under the ing plea agreement promise or a of ment. leniency.... only hold that the fact We approach The Second Circuit’s in Sha- afforded favorable that a markings bazz has the of potential prose- witness, a government treatment Shabazz, cutorial long abuse. Under so alone, standing does not establish the promise does not make a underlying promise existence of an *14 testimony, of assistance before the witness’ leniency exchange testimony. in for prosecution compelled the is not to disclose view, holding In this leaves little Id. our any understanding prosecu- between the a tacit petitioner room for a to establish tion and the witness. This holds true even definition, By agree- a tacit agreement. prosecution if the in fact intends to reward unspoken understanding ment is an and is the witness with favorable treatment. in a primarily by particu- identified actions While the Shabazz court stated that this petitioner lar context. If a cannot use say prosecutor may “is not to that a cir- part favorable action alone on the of the Brady obligations by failing cumvent his an prosecution agreement to establish be- witness, writing plea agreement reduce to or a the and a prosecution tween the petitioner a diminished chance promise leniency,” has 336 F.3d at prove agreement, a tacit absent an admis- prosecutor would be able to circumvent parties sion the of the unsaid under- Brady obligations by her simply not ver- Moreover, standing. language the in Sha- balizing memorializing or otherwise her prosecution bazz that indicates the need help intent to the witness. Such a formal- aiding not disclose its intention of a wit- istic and technical evasion would eviscerate promise ness absent an actual to the wit- the rule. ness demonstrates that the Second Circuit Moreover, tacit in agreement this is, least, very at the to view a tacit hesitant transparent context is based on incen the agreement as favorable evidence under prosecu tives for both the witness the Brady. jailhouse tion. The fact that a is informant analysis find the We Seventh and likely is one of least candidates for persuasive Ninth Circuits and find that a behavior; testify altruistic his offer to is agreement tacit is favorable evidence un- always coupled expectation almost with an Brady. der principled No reason exists prosecu some benefit return. The differentiating spoken between and un- expectation, tion is not naive as to this spoken agreements prosecu- between prosecution also knows that when the tion and witness. The relevant fact under value of the informant’s reaches exculpa- is whether the evidence is level, in the prosecution’s sufficient tory impeaching. express agree- or An expectation. interest to fulfill this At the prosecution ment between the and a wit- level, arrangement most fundamental impeaching ness is because it is evidence stake; an informant quid pro quo; the witness has interest at is a knows he expects early parole Davenport. on behalf of giving something of value and return; letter, something prosecution explicitly noted value, receiving something it is writing part knows that he was the letter in be something in return. No writ gives Davenport’s testimony: cause of “Based spoken required or word is to under ten ... upon [Davenport’s] cooperation, we agreement. stand the nature of this tacit be requesting are William say expecta “a This is not to nebulous eligi considered for at the earliest help tion of from the state” is sufficient (J.A. 501-02.) prosecu ble date.” agreement. for such an evidence Goodwin tor no words as to the quid pro minced (5th Johnson, F.3d Cir. quo Davenport’s testimony. involved with 1997). But if a that a petitioner proves of a tacit agree This is abundant evidence to tes approached witness ment, and this evidence should have been benefit, tify expectation of with the some disclosed to Petitioner. and that the understood this agreement, tacit With this expectation expectation and fulfilled the that Davenport district court found did benefit, actually bestowing peti some approach testify indeed sufficiently tioner has demonstrated a tacit benefit, in search of some so that that must disclosed under be evidence should have been disclosed to Brady. Petitioner, agree. and we The district exactly This is what occurred Peti analyze did mention the fact tioner’s case. approached attorney’s dropped that the district office *15 prosecution testify against 'to Petitioner. against Davenport; four counts and we The evidence that Davenport shows agreement find a tacit based on this le- return; seeking prose some benefit in the treatment, nient that so this information building cutor’s notes indicate' that a trans should Finally, have been disclosed. with fer and a work release program were dis respect prosecutor’s letter to Daven- parties. prosecution cussed the board, port’s parole the district openly admitted that it knew of Daven found that the letter could have been port’s expectation; Miller testified that Petitioner; disclosed to prose- because the “[everybody something, wants Pm cutor wrote the letter after Petitioner’s (J.A. sure Davenport something.” wanted trial, no favorable evidence existed to be 476.) prosecution While claimed Brady. simplic- disclosed under While the any that it did not make formal promises ity logic appealing, of the district court’s Davenport, certainly it fulfilled its end inspection. it does not withstand closer unspoken bargain; shortly of the after the logical endpoint, Taken to its district meeting initial prosecution between the analysis court’s would shield the prosecu- and Davenport, attorney’s the district of lenient from Brady tion’s treatment prosecuting fice that was Petitioner’s ease a agreement rule tacit so dropped four criminal with charges against Moreover, long prosecution’s place as the actions took Davenport.5 shortly after Peti trial, prosecutor petitioner’s tioner’s after the trial. The error in wrote letter Davenport’s parole requested board a position proseeu- such is that when .the shortly attorney's The record also indicates that after clear as to whether the district of- meeting prosecution between fice had influence some as to the court's deci- sion, Davenport, sentencing a state trial court sentenced Dav- such as a recommendation. concurrent, result, enport opposed assumption to consecu- As we make no as to tive, concealing prosecution played any part sentences for two counts of whether record, however, property. Davenport. stolen is un- the court’s favorable treatment agreement place tacit assistance took after Petitioner’s tri- good makes on the tion agreement dictate whether the al. should not It be should have been disclosed. would Despite Respondent’s argument that the violation when to find a
inconsistent prosecution’s leniency towards tacitly agrees to write letter prosecutor was unconnected to his in Peti- parole board and does so to the witness’ trial, tioner’s it is difficult to believe as trial, but to not find petitioner’s before shortly mere coincidence after Daven- agree- tacit a violation with the same such port prosecution, prose- met with the prosecutor writes the letter ment when dropped grand cution counts of larce- two trial. If such a dis- petitioner’s after the ny concealing and two counts of stolen made, prosecution tinction were then the It property Davenport. is likewise just petitioner’s until the trial would wait difficult to believe as coincidence that any provided it the witness ended before shortly guilty after the verdict in Petition- A tacit benefits to avoid disclosure. case, er’s wrote a letter on regardless be disclosed of agreement must support behalf of of Daven- upon agree- acts when facts, early port’s coupled release. These short, formation of the ment. In Davenport’s expectation of benefits agree- agreement, not the execution prosecution’s acknowledgment ment, point is the critical of interest. expectation, ample are evidence of a that such a argument An can be made tacit that should have been dis- giv- from rule would chill the closed to Petitioner. to a ing any nondisclosed benefits witness Moreover, agree analysis we with the trial for fear that such conduct will after Eighth Circuit and find even ab- if the results of the even jeopardize otherwise, any tacit or agreement, sent part were not such nondisclosed benefits impeaching exculpatory evidence must any agreement, express or tacit. While still be disclosed to the defendant. theoretically possible for the Reutter, though the court found that even *16 benefits after trial that grant to witness agreement pros- there was no between the testimo- have no connection witness’ in ecution and its star witness the defen- assumption a fair that ny, it is more than case, prosecution’s failure to dant’s the generally grants a witness prosecution the that the had a sentence disclose witness testimo- exchange such benefits in for his hearing after defendant’s commutation the in ny. prosecution The is also not the trial constituted a violation. 888 altruism; leniency to grants business of key question F.2d at is whether an informant because it wants that infor- exculpatory impeaching. or the evidence testimony, mant’s and it wants to encour- admits, readily the fact Id. As the dissent age other informants to come forward and exchange to Davenport shopping that testify. requiring A rule disclosure of impeaching for benefits was the agreement regardless tacit of when that should been dis- information have prosecution grants leniency recognizes this closed, Peti- any agreement. even absent necessary prevent prose- fact and is the this evidence to tioner could used shirking Brady responsibil- cution from its Davenport testifying that demonstrate by simply waiting peti- ities until after the Likewise, the as an interested witness. agreement. tacit tioner’s trial to act on the dropped four result, government fact the should have prosecution As the Davenport right against criminal counts agreement its tacit to assist Dav- disclosed release, potential- also early though this Petitioner’s trial was enport with even before through a Even if there been discovered search of Dav- ly impeaching evidence. agreement quid pro quo were no be- enport’s parole prior records and convic- government tween tions. treatment, to this favorable respect with Second, importantly, assuming and more argued that fa- Petitioner could have said arguendo that the basis of Petitioner’s Dav-
vorable treatment colored or biased
Brady claim could indeed have
found
been
testimony by encouraging Daven-
enport’s
records,
Petitioner was under no
these
testify
advantageous
port to
a manner
obligation
guess
prosecu-
to second
to his benefactors. This fact
therefore
that no
representation
impeaching
tion’s
should have been disclosed.
Davenport.
As
evidence existed as
ex-
above,
prosecution
once the
re-
plained
Suppression
ii.
Prosecution
sponded
request
to Petitioner’s
for im-
prose-
The district court found that the
evidence,
peaching
Petitioner was under
cution
not disclose the fact that Daven-
did
duty
engage
investigation
no
in further
testify
port approached
prosecution’s
to determine whether the
re-
expectation
Petitioner in
of some
Banks,
sponse was truthful. See
540 U.S.
benefit,
finding
clearly
and this
is not
erro-
(“Our
(1).
Testimony
Davenport’s
Petitioner.
prosecution
Both Petitioner
(4).
Probability
Dif-
Reasonable
of a
Davenport’s testimony
readily admit that
ferent Result
prosecu-
critical.
was
was
witness;
admit-
prosecution
final
tion’s
We hold that had the
dis-
strong case
it did not have a
ted
closed to Petitioner
tacit
its
testimony. Daven-
Davenport’s
without
benefits,
with
and its attendant
re-
critical
two
port’s
was
proba-
there would have been a reasonable
identity
Petitioner’s
de-
spects:
negated
bility of a different result as to
Peti-
both
as
naming Petitioner
by specifically
fense
first-degree
tioner’s conviction for
murder
shooter;
only
provided
and it
evi-
second-degree
and his conviction for
mur-
with
premeditation
dence as to
cumulatively,
der.
considered
When
Wallace, Davenport
as
killing
of Mrs.
suppressed agreement
strong
im-
had told him that
testified that Petitioner
peachment
Davenport.
evidence of
Be-
she was a
shot Mrs.
because
he
Wallace
testimony, Davenport dodged
cause of his
Mr.
shooting
Wallace.
witness
four criminal
counts and secured
recom-
prosecutor
early
mendation from the
(2).
Remaining
The Prosecution’s
addition,
only
pros-
release.
did the
Evidence
agree-
ecution fail to
this tacit
disclose
remaining
case
ment,
but
went further
entirely
somewhat insubstantial and
jury
that it had
misrepresented
eyewit-
no
circumstantial. There were
“say-so”
parole
no
board.
Davenport’s
identify Peti-
positively
nesses who could
parole
The evidence
board’s decision
police
never
tioner as the shooter.
otherwise;
suggests
the “Notice of
weapon. Laboratory
murder
re-
found the
Action,”
parole
granted
Board
board
sults indicated that Petitioner could
release,
Davenport early
indicating under
gun.
fired a
When Petitioner was arrest-
“Final Board Action” to “see DA’s letter
ed,
type he was found with the same
498.)
(J.A. at
Not
supporting parole.”
used to shoot the victims. The
bullets
only
prosecution’s
did the
letter influence
cartridges at
crime scene also
spent
decision, it
parole
appears
board’s
at Peti-
spent cartridges
matched
found
of the
have been the basis
board’s decision.
hand,
other
labora-
camp.
tioner’s
On the
Certainly
require
cannot
no
tory results indicated that
there was
board,
parole
action of the
blood on Petitioner’s clothes.
testified,
the actual decision
Miller so
(3). Petitioner’s Defense
proof positive
board
*18
with
the
does have influence
defense was also anemic.
Petitioner’s
Moreover, the fact that
parole
the
board.
another man
Petitioner claims that he and
prosecu-
board took heed to the
parole
the
caliber bullets for this man’s
purchased .38
that
be
Davenport
tion’s recommendation
gun.
gun
Petitioner
then shot
the
outcome; a
paroled
is no novel
camp.
at
target practice
his
potential parol-
returned,
may appear on behalf of
again,
camp,
then
left
left
assistance,
pa-
and the
give
ee or
similar
and he
then arrested.
board,
mony
strongest
the
required
piece
while not
to act ac-
evidence
role
prosecutor,
prosecution,
of the
the
cording
presented
posi
to the wishes
as
prosecu-
tively
often takes into consideration the
identified
the shooter.
Petitioner as
proclama-
tor’s recommendation. Miller’s
veracity
testimony
the
of the
in
With
jury
“say-so” doubt,
tion to the
that he had no
the
would
had to
have
parole
with the
board was therefore mis-
rely on the
that
circumstantial evidence
leading.
carrying
type
Petitioner was
the same
victims,
that were
to kill
bullets
used
the
prosecution’s
The harm from the
mis-
that spent cartridges
found at
the
representation
jury
to the
is similar to that
spent cartridges
crime scene matched
Reutter,
Eighth
in
where the
Circuit found
at
camp.
prosecu
found
Petitioner’s
prosecution’s
the
statement
negated by
tion’s case was also
the fact
jury
nothing
gain
that the witness had
to
that no blood was found on Petitioner’s
testifying
from
exacerbated the
vio-
clothes,
testimony
and Petitioner’s
that he
light
lation in
of undisclosed
evidence
handgun
belonged
fired a .38 caliber
seeking a
the witness was
commutation of
camp.
to Camden at Petitioner’s
These
his sentence.
tance of counsel
because
any state court.
legal
raise the claim before
We
that such
present
did not
basis
agree.
objectively
perform-
deficient
action was
prejudicial under
ance and
Strickland
above,
peti
when a
explained
As
2052,
668,
Washington, 466
104 S.Ct.
U.S.
procedurally
claim
defaulted
tioner’s
is
(1984).
L.Ed.2d 674
80
court,
may
the federal courts
not
state
review unless
Vasquez
review the claim on habeas
Petitioner’s citation to
v. Hil-
petitioner
prejudice.
254,
617,
shows cause and
474
lery,
U.S.
106 S.Ct.
Here, Petitioner failed to exhaust his state
(1986),
L.Ed.2d 598
is to no avail. That
to
remedies with
his ineffective
petitioner
case involved a
who claimed
assistance of counsel claim. Because a
systematically
the state
excluded blacks
rule would bar Petitioner
procedural
state
in-
grand jury
eventually
from the
which
court,
raising
from
this claim in state
Peti
256,
dicted him. Id. at
761
claim,
attempting
Petitioner here is
argues
same
Petitioner also
that he has cause
entirely
underlying claim to for
raising
to add an
new
the claim before a state
his claim of ineffective assistance of coun
court because of the ineffective assistance
would work a fundamental alter
of counsel during
post-conviction
sel. This
his state
legal
already
claim
considered
proceedings.
problem
ation to the
with Petition-
courts,
say
position
state
so that we cannot
er’s
is that attorney
only
error can
opportunity
the state courts had the first
be
if
considered cause
the error meets the
Coleman,
claim.
to review the
See
threshold of ineffective assistance of coun-
(“[I]n
731,
III. CONCLUSION was not informed of the of Daven- outcome reasons, foregoing RE- Third, For we port’s case. Miller sent a letter the order of the VERSE district Davenport’s board on behalf petition GRANT the for writ of habeas ended, recommending parole after the trial corpus. The district court an shall enter possible “at the earliest date.” requiring order Petitioner to be released was, fact, granted early parole. custody from unless the of Tennes- State only undisclosed material at the time of guilt phase see commences new trial trial was thus Miller’s notes and Daven- days within 180 of the district or- court’s port’s sentencing documents.
der.
majority
holds that the
required
to disclose the first
two
GIBBONS,
JULIA SMITH
Circuit
pieces of cited evidence and that all three
Judge, Concurring
Dissenting
in Part and
pieces
prove
of evidence were sufficient to
in Part.
the existence of a wrongfully-suppressed,
I concur in
majority opinion
as to
*24
implied agreement
Davenport
Bell’s ineffective assistance of counsel
him
grant
exchange
benefits in
for his
claim,
disagree
majority’s
but
with the
dis-
Further,
testimony.
majority
the
holds
position
Brady
major-
of Bell’s
claim. The
that the
letter —or at
pros-
least the
ity
prosecutor
holds that the
had
“tacit
agreement
ecution’s
to write such a let-
understanding” with the witness and was
wrongfully
ter —was
withheld because it
required
agreement
to disclose this
to the
tangible
purported
result of this
Brady Maryland,
defense under
373
agreement.
tacit
The evidence in this
83, 87,
1194,
U.S.
83 S.Ct.
Finally, Reutter, in trial thought someone I was was dan- one of gerous, three members of and I parole board felt he would now be snitch, that was scheduled to labeled as a might hear the and it witness’s be best commutation petition. The that I witness’s hear- did whatever I could get do to him ing delayed several times without prison, rea- out of parole whenever the board eventually son and occurred immediately thought would eligible.” be
767 finding no even Second, Davenport agreement, of room for when the treatment fails to range prosecuto- support of normal the evidence its well within the existence. court, counts I hold prosequied rial behavior. The nolle Like the Shabazz would agreement that was part plea government of a treatment were “favorable wit- Davenport’s testimony. ness, completed prior alone, standing does not establish the incentives to defer such joint underlying promise Given the of an of existence le- exchange until after the testimo- charging niency testimony.” decisions in for 336 testimony is a condition of ny when the at 165. F.3d Shabazz, at leniency, 336 F.3d see II. actually sug- here
timing
plea
of the
could
parties
agreement
had no
gests that
Although
Brady
Miller did not violate
charges.
regarding those
to disclose a
he
failing
agreement,
tacit
did
not disclose the notes from his meeting
Third,
prosecutor’s letter to
though the
Davenport’s
sentenc-
parole
is evidence of a benefit
board
documents,2
could
ing
both of which
Davenport,
bene-
given by Miller to
such
Thus,
impeachment.
been used
necessarily
and are not
fits are common
contrary
failure to disclose them was
agreement
of an
between
result
of
and its
requirements
proge-
to testi-
prior
and the witness
ny.
Bagley,
States v.
473 U.S.
United
mony.
are other reasons for such
There
(1985).
676, 105 S.Ct.
ment, again Davenport’s al., Alderman noted James et W. SMOAK criminal status: Plaintiffs-Appellees, got you [Y]ou have to decide whether somebody
want to believe who was on al., Defendants, Eric HALL et parole, that parole, jail, violated was in all involving a crime involving fraud Bush; Phann; McHood; David Tim Jeff dealings, and false .... I theft [Daven- Brock; Jerry Andrews, Brian Lieuten- port] you [my want to believe testimony] ant, Defendants-Appellants. ... I got parole hearing because have coming up a matter of if I months and No. 05-6511. go can to the Parole Board and I can United States of Appeals, Court
say, T helped Stephen convict Mi- Sixth Circuit. Bell,’ they might chael cut me some they slack my pa- because violated last Argued: July 2006. role when I committed another crime Aug. Decided and Filed: .... That why is I called the District office; Attorney’s that why spoke I
the police and the Attorney District Iwhy testify, came to you
believe me.
The documentary evidence of Daven
port’s guilty plea request facility
transfer in connection with
might have bolstered credibility Bell’s ar
gument, but the benefit thus accrued Wisehart,
would have been minimal. See Further,
evidence would not have allowed Bell to
develop any new or different argu lines of
ment or testimony. Given Alderman’s
cross-examination of the witness based on
the parole issue argument and his at clos
ing, disclosure of the withheld ma
terial “reasonably could not be taken to
put the whole case such a light different
as to undermine confidence in the verdict.”
Kyles Whitley, 419, 435, 514 U.S. 1555, 131 (1995).
S.Ct. L.Ed.2d 490 reasons,
For foregoing I af- would
firm the decision of the district court and
deny petition Bell’s for a writ of habeas
corpus. ed Notes
Notes
notes disclosed, implied agreements that must be express an divulge must supports majority’s in relation to a witness none of cases agreement with regardless of testimony, that witness’s ultimate conclusion. written or oral. agreement whether noted in The Seventh Circuit Wisehart States, 154- U.S. Giglio United must dis- implied agreement that an be (1972). In L.Ed.2d 104 92 S.Ct. closed, 408 F.3d at that court however, majority extends opinion, its agree- declined to find such an expressly encompass a situation Giglio’s holding solely testifying ment based on witness’s a future merely hoped for where a witness plea bargain. in a Id. at lenient treatment doing, one. so benefit and received Instead, the court denied Wisehart’s hope and the benefit mischaracterizes First, Brady claim for several reasons. our and mischaracterizes as an difficulty in determin- noted precedent. sister circuits’ existed; ing agreement” when a “tacit majority’s finding Beginning with plea bargaining— nature of commonplace primary component of its agreement, an leniency necessary inherent speculation its that faulty reasoning is bargaining process require to the —would sentencing Davenport’s plea bargain scrutiny all and would intense of witnesses a connection to to Bell’s trial had imply agreement nearly all similar testimony. Yet no evidence Davenport’s Second, Id. the court noted the cases. No evidence such a connection. supports minimal value of such lenien- impeachment prose- that either the permits an inference cy charging practices explained once were knew Davenport’s case judge cutor or jury. Id. The fact Johnson Miller or approached had testimony was expected to benefit anticipated that Miller “A trial must not be immaterial: criminal