Thomas R. SOCHA, Petitioner-Appellant, v. Reed A. RICHARDSON, Respondent-Appellee.
No. 16-2540
United States Court of Appeals, Seventh Circuit.
Argued September 6, 2017. Decided November 3, 2017
881 F.3d 983
AFFIRMED.
Daniel J. O‘Brien, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Respondent-Appellee.
Before WOOD, Chief Judge, and ROVNER and SYKES, Circuit Judges.
WOOD, Chief Judge.
Thomas Socha has won two battles in his effort to obtain relief from his Wisconsin conviction for murder. See Socha v. Pollard, 621 F.3d 667 (7th Cir. 2010) (Socha I); Socha v. Boughton, 763 F.3d 674 (7th Cir. 2014) (Socha II). He is now hoping to win the war. Perhaps he would have been able to do so, if federal courts had plenary authority to review state-court criminal proceedings. But they do not. Especially since the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, state prisoners seeking federal habeas corpus relief have been required to overcome a set of rules that, in the aggregate, require every benefit of the doubt to be given to the state courts. Socha would like us to find that the state prosecutor in his case violated the obligation recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose potentially exculpatory evidence to him. But even though the prosecutor indeed withheld potentially impeaching evidence from Socha, the state courts concluded that there was no reasonable probability that this evidence would have changed the verdict. Because this conclusion was not so outlandish as to be unreasonable, we must affirm the decision of the district court refusing to issue the writ. See
I
In November 2001, Socha and his acquaintances, Lance Leonard and Victor Holm, each forged a stolen check. On November 17, police officers began asking questions. They went to Holm‘s apartment, seeking Leonard, but Leonard was not there. Holm agreed to go with them to the station house, where he admitted his forgery and said that Leonard had also forged a check. Socha‘s name did not come up.
In the days after November 20, news of the murder quickly spread. Drews bragged about it to Mrazik, who told a friend, who in turn informed the police. By December 6, Holm and Drews were arrested. No one had yet implicated Socha. That did not happen until a few months later when Mrazik, Drews, and Holm alleged that Socha was involved in the plan to kill Leonard. Eventually Mrazik, Drews, and Holm entered into plea agreements with the state.
In August 2002, Socha was tried for being a party to the crime of first-degree intentional homicide. See
Meanwhile, on April 11, 2002, the police had interviewed Roy Swanson, Holm‘s cellmate. While the recording and transcript of the interview were turned over to Holm‘s counsel, a slip-up in the prosecution‘s office resulted in a failure to turn them over to Socha. Consequently, Socha was not aware of the Swanson interview until after his trial. In the interview, Swanson discussed his impressions of Holm. He commented that “[a] lot of times [Holm is] still lying.” He recounted statements exhibiting Holm‘s lack of remorse about Leonard‘s death, saying at one point that he “should get a medal for killing [Leonard].” This was in marked contrast to the performance Holm gave at trial, where he was wiping away tears in supposed contrition. Swanson said that Holm had admitted that he and Lance “were the ones who stole the checks in the first place,” and even that Holm confessed that he had “killed before in Arizona.” Swanson got the impression that Holm‘s accusation of Socha was concocted: Holm, he said, “talked to his lawyer [who] said, well if you were coerced in any way, or forced to say something, you know what I‘m saying, do something against your will, you know, that‘s a ... Oh, and then all of a sudden a big light bulb pops up on his head and says, ‘Oh, Mexican Mafia and Tom Socha....‘” Nonetheless, Swanson‘s story was not entirely helpful for Socha. At one point Swanson went so far as to say that “Tom‘s a major player in the murder.”
Socha knew about the Swanson interview by the time he filed his direct appeal
Socha then turned to the federal court for habeas corpus relief under
II
Socha is entitled to habeas corpus relief under Brady only if he can show three things: first, that the evidence at issue was favorable; second, that the evidence was suppressed; and third, that it was material to his defense. United States v. Walker, 746 F.3d 300, 306 (7th Cir. 2014). And it is not really enough just to establish those points; instead, he must show that the decision of the state courts with respect to the Brady claim fails to meet the standards set out in AEDPA,
Socha contends that we should review the decision of the Wisconsin Court of Appeals, the last state court to consider his Brady claim, de novo because it was not “on the merits.” But this fails to give the state appellate court its due. Its Brady analysis addresses the prosecutor‘s failure to turn over “notes of a sheriff‘s deputy” who interviewed Swanson. Socha thinks that the “notes” to which it refers are not the same as the Swanson interview, but instead are notes that an officer took during Socha‘s trial. That dispute is immaterial, because the state appellate court‘s opinion also refers to “Swanson‘s interview” and contains a quote from the interview transcript. We grant that the court‘s Brady discussion was brief, but AEDPA does not require full-blown analysis. The state court did enough to earn the deference commanded by AEDPA. See Harrington v. Richter, 562 U.S. 86, 98-100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
A
With the proper perspective in mind, we turn to the merits. The first question is whether the Swanson interview was the type of favorable material that engages the prosecutor‘s duty to turn over evidence. The Wisconsin Court of Appeals disputed Socha‘s assertion that the Swan-
Socha‘s attorney could have used the Swanson interview for impeachment. It contained statements that directly contradicted Holm‘s testimony (for example, Holm‘s comment that he should get a medal for killing Leonard rebuts the remorse he described and showed on the witness stand). If Socha had had access to the interview before the trial, he could have used it to cross-examine Holm. See
B
That is not enough to win the day for Socha, however. The next issue is whether the prosecution “suppressed” the Swanson interview. Evidence is considered impermissibly withheld if “(1) the prosecution failed to disclose the evidence before it was too late for the defendant to make use of the evidence, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Harris v. Kuba, 486 F.3d 1010, 1015 (7th Cir. 2007) (citation omitted).
The Wisconsin Court of Appeals recognized that the prosecution did not provide the “notes” from the interview to Socha prior to his trial. In this Court, the state notes that the prosecutor‘s failure to disclose was inadvertent. That may be so, but the Supreme Court held in Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), it makes no difference “whether the non-disclosure was a result of negligence or design, it is the responsibility of the prosecutor.” The state also suggests that we should make something of the fact that the prosecutor shared the transcript and recording with Holm‘s counsel. But any such sharing is neither here nor there. Brady does not exempt a prosecutor from disclosure when the prosecutor has given evidence to a co-defendant—especially an adversarial co-defendant, as Holm surely was. It is also unrealistic to expect defense counsel to ask for the transcript of an interview he knows nothing about. While Socha had received a
C
That brings us to materiality. Evidence is “material” under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. Impeachment evidence is not material if it is “merely cumulative.” United States v. Dweck, 913 F.2d 365, 371 (7th Cir. 1990). Additional evidence describing a co-conspirator‘s criminal nature may not be material when the witness‘s credibility has already been impugned. See United States v. Ervin, 540 F.3d 623, 632 (7th Cir. 2008). This is particularly true when the witness who would be impeached by the evidence at issue was not the only one to testify about the existence of a conspiracy. See id.
The Wisconsin Court of Appeals found, as the state trial court had done, that the Swanson interview was “inconsequential.” It first noted that the Swanson interview included both inculpatory and exculpatory information. Had the exculpatory portions been introduced into evidence, it is a safe bet that the state would have introduced the inculpatory statements, such as the one labeling Socha as a “major player” in the murder. For what it is worth (which may not be very much), the state judge who conducted the bench trial ruled on the post-conviction motion that this interview would not have changed his mind.
Second, it is not as if the Swanson interview provided the only fodder for impeaching Holm. To the contrary, there was ample impeachment evidence against him, including his significant criminal history and his guilty plea to the offense of murder.
Third, and most importantly, Holm‘s testimony was not the only evidence of Socha‘s involvement in the conspiracy. Even if Holm was the state‘s star witness, his testimony did not stand alone. Other witnesses provided ample evidence to support a guilty verdict. Most damaging is Drews‘s testimony. He said things such as “[a]nd between me and Victor and Thomas Socha and Beth, we decided that Lance needed to die,” and “See, I remember Tom being there when the decision was made to kill Lance.” Mrazik testified that she overheard Socha say that if they were planning to kill someone (which she understood meant Leonard), they should use buckshot. A bartender witnessed a meeting among Socha, Holm, Drews, and Mrazik at a time just before the murder, when Socha was allegedly out of town. They fell silent every time she drew near.
The state also presented a significant amount of evidence that Socha acted suspiciously after the police began investigating. A friend testified that Socha got “upset” about Leonard‘s murder and was
III
It is always regrettable to see a failure to comply with an obligation as basic as the Brady rule, which is hardly new. Nevertheless, the question before us is only whether the Wisconsin Court of Appeals acted unreasonably when it found that the evidence in question was not, on this record, material. Its conclusion was not unreasonable, and so we AFFIRM the judgment of the district court denying Socha‘s petition for a writ of habeas corpus.