In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3679
W ALTER L EE G OUDY,
Petitioner-Appellant,
v.
JAMES B ASINGER, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:06-cv-00098-LJM-JMS—Larry J. McKinney, Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED M AY 3, 2010
Before B AUER, R IPPLE and K ANNE, Circuit Judges.
B AUER, Circuit Judge. An Indiana jury convicted Walter
Lee Goudy of murder and attempted murder in Decem-
ber 1995. After exhausting the remedies available to him
in Indiana courts, Goudy filed the instant habeas corpus
petition in the district court under 28 U.S.C. § 2254. That
court denied his petition. He timely appealed. At issue
in this case is whether the government’s failure to dis-
close three eyewitness statements that implicated one
2 No. 08-3679
of its main witnesses, and the failure of Goudy’s counsel
to introduce his brother’s tape-recorded confession as
evidence denied Goudy a fair trial.
I. BACKGROUND
Walter Goudy was convicted for fatally shooting the
driver of a car, Marvin McCloud, and wounding one of
its passengers in Anderson, Indiana, a town forty miles
northeast of Indianapolis. Goudy’s conviction was based
on the testimony of five eyewitnesses. The five were
Damon Nunn, Jill Barclay, Jackie Barclay, LaTonya Young
and Kaidi Harvell.
Nunn and Jill Barclay were passengers in McCloud’s
car. Nunn was in the front seat and was shot several
times. Jill Barclay was in the backseat, but was not
wounded. Both testified that McCloud pulled into a
parking lot near an after-hours hangout and picked up
Jill Barclay. They told the jury that as McCloud pulled
out of the lot, Goudy and a shorter accomplice ap-
proached on either side of the car and fired several shots,
killing McCloud; both testified that Goudy was the man
on the passenger side of the car. Nunn said Goudy wore
a brown or beige corduroy jacket, was around five
feet eight to five feet ten inches tall, had an Afro hairstyle
and wore a cap on his head. Jill Barclay said Goudy wore
a dark sweatshirt, had a jeri-curl hairstyle that was par-
tially covered by the hood from the sweatshirt. Both
witnesses said they saw Goudy and three other men
earlier in the evening at a nearby club called the Oasis.
No. 08-3679 3
Jackie Barclay, Jill’s sister, and LaTonya Young testified
that they witnessed the shooting from across the street.
Jackie Barclay and Young had also been at the Oasis that
night and both said they saw Goudy and three other
men. After the Oasis closed, both went to the after-
hours club. Jackie Barclay testified that she was talking
with some friends outside the club when she saw Goudy
and another man approach McCloud’s vehicle. She
said Goudy was around six feet tall and wore a dark
jacket, dark pants or jeans, and had braids in his hair
that were partially covered by his hood. The shooter on
the driver’s side was shorter, wore a “brown uniform,”
and had no facial hair. LaTonya Young told the jury that
Goudy was the shooter on the driver’s side, that he
was around five feet eight inches tall with braids and a
ponytail and wore no hat or hood. Young also testified
in court that a recording of Goudy’s car alarm was the
same alarm she heard in the Oasis parking lot that night.
A roommate of Goudy’s, Kaidi Harvell, was the
state’s primary witness and testified that he had been
with Goudy in Anderson on the night of the shooting.
He told the jury that he, Goudy and Goudy’s two
brothers, Romeo Lee and Lamont Thomas drove up
from Indianapolis together that night to go to some bars.
Harvell said that Goudy and Lee coveted the tires
and rims on McCloud’s car and had been talking about
“jacking” them. After the group left the Oasis, they
headed toward the after-hours club with other locals,
where Goudy and Lee planned to steal McCloud’s car.
According to Harvell, he and Thomas were instructed to
drive around the block while Goudy and Lee would steal
4 No. 08-3679
the car. Harvell told the jury that Goudy shot into the
driver’s side of McCloud’s car, and that he wore a brown
“prison coat,” black cap and gloves. Lee shot into the
passenger side.
In addition to the evidence produced at trial, the gov-
ernment possessed three police reports that outlined
statements by Jill and Jackie Barclay, Young, Harvell, and
another witness (who did not testify at trial) named
Donzetta Clay. The first report describes a phone call
to police from Jill Barclay in which she said she saw one
of the gunmen at an Indianapolis mall. She stated that
she thought he kept looking at her “over his shoulder” and
that she later saw him outside “attempting to look at
her license plate.” She later identified this man as
Harvell and said she was positive he was one of the
gunmen. The report additionally describes a photo
lineup viewed by the Barclay sisters and Young. All
three “positively and without hesitation” identified
Harvell as the gunman on the driver’s side of McCloud’s
car, and said he wore brown clothing. The second police
report details an in-person lineup viewed by Nunn, Jill
and Jackie Barclay, and Donzetta Clay. Clay and the
Barclay sisters identified Harvell; Nunn identified a non-
suspect as the shooter. The third report contains a state-
ment from Harvell indicating that he had been in con-
tact with one of Goudy’s alibi witnesses. He says he
“talked with” her and that she “wants to change her story.”
The government did not disclose any of these state-
ments to Goudy, even though they implicate Harvell and
conflict with Harvell’s version of events; contradict
No. 08-3679 5
Young’s statement at trial that Goudy was the driver’s
side shooter, and conflict with Nunn’s description of the
gunmen. Though it does not seem that the non-disclosure
was intentional, none of this information was heard by
the jury at Goudy’s trial.
Goudy was convicted on December 21, 1995. Goudy’s
counsel learned of the police reports in October 1997, when
the government disclosed the information they con-
tained during Romeo Lee’s subsequent murder trial. By
that time, Goudy’s direct appeal was pending in the
Indiana Supreme Court, which denied his petition
to reopen the record.
In addition to the undisclosed evidence contained in
the police reports, the jury did not hear a tape-recorded
confession given by Romeo Lee, Goudy’s brother. While
in prison in Arizona on another charge, Lee told Goudy’s
counsel and a private investigator that he and Harvell
had been the two shooters. Lee said he and his brother
were often confused for each other because of their
similar looks. In his confession, Lee said Harvell was the
gunman on the driver’s side of McCloud’s car and that
he wore brown work clothing. Lee said that he was on
the passenger side of the car and wore a black Raiders
jacket. He said the shooting was the culmination of a
verbal altercation between Harvell and McCloud that
began at the Oasis earlier that evening.
When authorities transported Lee from Arizona to
Indiana to testify at Goudy’s trial, Lee’s appointed
counsel advised him to assert his Fifth Amendment
right not to testify. When called, Lee refused to answer
6 No. 08-3679
any questions on cross-examination and the court struck
what little testimony he had given. The prosecution
later used the confession at Lee’s own trial to convict him
of the murders. Neither party offers an explanation for
counsel’s failure to introduce Lee’s confession. While
Goudy’s post-conviction petition suggests the possibility
that counsel was unaware that the confession was self-
authenticating and admissible under Indiana Rule of
Evidence 804(b)(3), the record is not clear as to exactly
why counsel never attempted its admission. At any rate,
the jury never heard Lee’s version of events.
Goudy appealed his conviction, claiming among other
things that the trial court erred in rejecting Goudy’s
request for an in-camera review of the police reports
to determine whether they contained exculpatory infor-
mation. The Indiana Supreme Court rejected Goudy’s
arguments. After receiving the police reports from
Lee’s counsel, Goudy filed a petition with the supreme
court to supplement or expand the record on appeal. The
supreme court denied Goudy’s petition, but noted that
“the documents . . . were not available to [Goudy’s coun-
sel] and that [he] acted with diligence.” Goudy v. State,
No. 48A02-0409-PC-740, at 3 (Ind. Ct. App. Jan. 12, 2006).
The court suggested Goudy seek post-conviction relief.
Goudy then petitioned for post-conviction relief, as-
serting that the failure to disclose the evidence in the
police reports was a violation of the rule in Brady v.
Maryland, 373 U.S. 83, 87 (1963). Goudy also argued that
the failure to introduce Lee’s tape-recorded confession
denied him a fair trial.
No. 08-3679 7
The Court of Appeals of Indiana denied Goudy’s peti-
tion. The court held that Goudy waived his claim
regarding the suppressed evidence because he could
have asserted it on direct appeal. And while it labeled
counsel’s conduct “deficien[t],” the court did not en-
gage in a detailed analysis of whether Goudy’s counsel
was constitutionally ineffective. Goudy v. State, No. 48A02-
0409-PC-740, at 12 (Ind. Ct. App. Aug. 26, 2005). It
instead rejected Goudy’s second claim on the basis that
he “suffered no prejudice” as a result of his counsel’s
failure to introduce Lee’s recorded confession. Id.
However, when it subsequently rejected Goudy’s
petition for rehearing, the appeals court acknowledged
that it had erred in holding that Goudy waived his
Brady claim. Goudy v. State, No. 48A02-0409-PC-740, at 3
(Ind. Ct. App. Jan. 12, 2006). It acknowledged the fact
that Goudy’s counsel could not have pressed that claim
on direct appeal because he was unaware that the sup-
pressed statements existed. Id. Addressing whether the
suppression of the statements denied Goudy a fair trial,
the court rejected the argument that the evidence, “even
if made available to Goudy prior to trial, would have led
to a different result.” Id. at 12. Goudy appealed to the
Indiana Supreme Court, which declined to hear the
case. Goudy then petitioned the district court for a writ
of habeas corpus, which was also denied.
II. DISCUSSION
Goudy presses two claims on appeal. He argues that
the prosecution violated his right to a fair trial under
8 No. 08-3679
Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to
turn over witness statements identifying Kaidi Harvell
as one of the shooters and suggesting that Harvell spoke
with one of Goudy’s alibi witnesses. Goudy also claims
that his counsel’s failure to introduce Romeo Lee’s re-
corded confession at trial deprived him of the effective
assistance of counsel under Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The district court denied both
claims and we review de novo.
A. Brady Claim
Goudy had to establish two things to prevail on his Brady
claim in the state court proceeding. He first had to
show that the government failed to give him evidence
favorable to his defense, that would tend to show his
innocence or which could be used to impeach witnesses
at trial. Brady, 373 U.S. at 87. It matters not whether the
defense requested the information or the government’s
failure was inadvertent; the government’s duty is to
turn over all exculpatory information in its possession.
United States v. Agurs, 427 U.S. 97, 106-07 (1976).
Goudy also had to show that the evidence was
material to an issue at trial; that had the evidence
been disclosed to the jury at trial, there is a reasonable
probability that the result would have been different.
Strickler v. Greene, 527 U.S. 263, 280 (1999); United States
v. Bagley, 473 U.S. 667, 682 (1985). The reasonable prob-
ability standard for materiality of suppressed evidence
is less rigorous than a preponderance of the evidence
standard in that a petitioner need only show that the
No. 08-3679 9
new evidence undermines confidence in the verdict. Kyles
v. Whitley, 514 U.S. 419, 434 (1995). When the cumulative
effect of all the suppressed information is to undermine
confidence in the verdict, such a reasonable probability
exists. See id.
Addressing the first Brady element, the Indiana court
found that the government suppressed information
during Goudy’s trial and that the information was ex-
culpatory. We agree with the court’s conclusion. The
three police reports not disclosed until after trial
contain several pieces of information which tend either
to exculpate Goudy or impeach witnesses against him.
The eyewitness statements identifying Harvell as the
gunman impeach his testimony and exculpate Goudy
by suggesting he was not one of the shooters. The state-
ments also impeach Nunn’s description that the
passenger side gunman wore a brown work outfit; and
impeach Young’s testimony that she saw Goudy on the
driver’s side of McCloud’s car. And they reveal that
Donzetta Clay identified Harvell as one of the gunmen.
On post-conviction review, the Indiana court held
that had this information been available at trial, Goudy
could have impeached the state’s witnesses in several
respects, demonstrated that witnesses misidentified him,
and bolstered his story that he was not at the scene of
the shooting.
But the court concluded that, though the government
failed to turn over favorable information, the sup-
pressed evidence was not material. Because this case
comes to us on habeas review from a state court decision,
10 No. 08-3679
our review of that conclusion is limited by 28 U.S.C.
§ 2254(d). Federal courts are not permitted to grant a
writ of habeas corpus unless the state court’s decision
was “contrary to, or involved an unreasonable ap-
plication of, clearly established federal law, as deter-
mined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or
if the decision “was based on an unreasonable deter-
mination of the facts in light of the evidence presented.”
28 U.S.C. § 2254(d)(2). A state court unreasonably
applies federal law if it identifies the correct legal
principle but unreasonably applies it to the facts of the
case, or if it unreasonably refuses to extend a principle
to a context in which it should apply. Williams v. Taylor,
529 U.S. 362, 407 (2000). Essentially, Goudy must show
that the Indiana court’s application of Brady was not just
incorrect, but also unreasonable, “that is, lying well
outside the bounds of permissible differences of opin-
ion.” Toliver v. McCaughtry, 539 F.3d 766, 774 (7th Cir.
2008) (internal citation omitted). Under § 2254(d)(2), a
decision involves an unreasonable determination of the
facts if it rests upon fact-finding that ignores the clear
and convincing weight of the evidence. Ward v. Sternes,
334 F.3d 696, 704 (7th Cir. 2003).
Using this deferential standard of review, we look first
to the standard of proof the state court followed in as-
sessing whether the suppressed evidence was material
to Goudy’s guilt or innocence.
The Supreme Court has clearly established that the
standard for determining whether suppressed evidence
is material is whether the cumulative effect of the new
No. 08-3679 11
evidence creates a reasonable probability of a different
result at trial. Kyles, 514 U.S. at 434. “A defendant need
not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there
would not have been enough left to convict.” Id. While
the state court initially identified this as the correct legal
principle for determining whether suppressed evidence
was material, its statements repeatedly dismissing the
materiality of evidence on the basis that it “does not mean
that Goudy was not the other shooter,” miss the point.
Goudy v. State, No. 48A02-0409-PC-740, at 10 (Ind.
Ct. App. Jan. 12, 2006). At least three times, the
court rejected the materiality of individual pieces of
evidence on the basis that the evidence did not conclu-
sively establish Goudy’s innocence. The court first
rejected the materiality of the identifications of Harvell
as the shooter in the brown clothing, saying it “does not
mean that Goudy could not have been the other shooter”
and “does not mean that Goudy was not the other shooter.”
Id. at 7 (emphasis added). The court then explained that
the reason Goudy received a fair trial is because he
could not show that the evidence, “even if made avail-
able . . . prior to trial, would have led to a different re-
sult.” Id. at 12. So while the Indiana court identified
the correct legal principle—that Goudy had to demon-
strate a reasonable probability that the new evidence
would lead to a different result—the statements
quoted above would require that Goudy prove the new
evidence necessarily “would have” established his inno-
cence. Placing this burden on Goudy was “diametrically
different,” Taylor, 529 U.S. at 406, than the clearly estab-
12 No. 08-3679
lished principle laid out in Kyles, 514 U.S. at 434, Bagley,
473 U.S. at 682, and Agurs, 427 U.S. at 112-14.
In addition to holding Goudy to a wrong standard of
proof on the materiality element of his Brady claim, the
Indiana court dismissed each piece of suppressed
evidence in seriatim, rather than assessing its cumulative
effect as required by Kyles, 514 U.S. at 440. When a
court’s opinion repeatedly dismisses “particular items
of evidence as immaterial” it “suggest[s] that cumulative
materiality is not the touchstone.” Id. In its opinion,
the Indiana court did not recognize cumulative
materiality as the relevant standard. See Goudy v. State,
No. 48A02-0409-PC-740, at 2-12 (Ind. Ct. App. Jan. 12,
2006). An example of this seriatim analysis is the
state court’s dismissal of any impeaching effect the iden-
tifications of Harvell might have had on his credibility.
According to the Indiana court, the jury knew Harvell
“had a motive to implicate Goudy” because it knew
Harvell was “charged for being involved in the killing[],”
and that the jury heard Goudy’s counsel accuse Harvell
of being one of the gunmen. Id. at 9. The jury heard five
witnesses say they saw Goudy firing a gun into
McCloud’s car, but four of them did not agree on
Goudy’s height, which side of the car he was on, whether
he wore a hat and whether he wore a dark jacket and
jeans or a full brown work uniform. Harvell even told
the jury that Goudy was the driver’s side gunman in
the brown uniform. But the jury never heard that three
of the four witnesses had previously identified Harvell
and said he was the gunman wearing brown clothing on
the driver’s side of McCloud’s car. And the jury heard
No. 08-3679 13
Nunn say that Goudy was the passenger side gunman
and wore a brown jacket. The jury did not hear that four
witnesses identified Harvell as the brown-clad gunman
and said he was on the driver’s side of McCloud’s car,
or that when he viewed the same lineup, Nunn
identified a non-suspect, rather than Harvell. Yet the
court “failed to see how the reports could have been
used to impeach Mr. Nunn’s testimony.” By not iden-
tifying the cumulative materiality standard required by
Kyles, 514 U.S. at 440, and analyzing suppressed evidence
in isolation, the court deprived Goudy of the full exculpa-
tory value of this evidence and unreasonably applied
clearly established law.
In short, Goudy has shown that the state court’s
decision on his Brady claim involved an unreasonable
application of clearly established federal law. Rather
than applying a “reasonable probability” standard for
materiality of suppressed evidence as required by United
States v. Bagley, 473 U.S. at 682, the court unreasonably
required Goudy to show that the suppressed evidence
would establish his innocence. The court did not recog-
nize Bagley’s requirement that the effect of suppressed
evidence be assessed cumulatively. Clearly established
federal law entitles Goudy to have the exculpatory evi-
dence considered under these standards.
B. Ineffective Assistance of Counsel
In addition to his Brady claim, Goudy asserts that the
Indiana courts unreasonably rejected his claim that he was
denied effective assistance of counsel when his attorney
14 No. 08-3679
failed to lay a foundation to introduce Romeo Lee’s
recorded confession. Under Strickland, 466 U.S. at 687, a
petitioner must demonstrate that his counsel’s perfor-
mance fell below an objective standard of reasonableness
based on prevailing professional norms. Id. Second, and
similar to the Brady materiality inquiry, he has to estab-
lish that a reasonable probability exists that, “but for”
those errors, the outcome of the trial would have been
different. Id.
The state post-conviction court described counsel’s
performance as “deficien[t],” stating that he “should
have sought to admit this evidence,” but it never thor-
oughly discussed the first Strickland element. Instead, it
based its holding on the idea that “Goudy suffered no
prejudice as a result.” The state court found Lee’s confes-
sion not material to Goudy’s guilt or innocence because
it was not credible and was overwhelmed by the testi-
mony of the other eyewitnesses. We cannot say this
determination was unreasonable. Lee “refused to verify
the accuracy of the statement” at trial. Though Goudy’s
counsel called him as a witness, he only questioned Lee
about the party at Goudy’s house. He asked nothing
about the details of the shooting or Harvell’s role in it,
and never sought to introduce the tape. When the pros-
ecution sought the tape’s admission to impeach a
minor detail in Lee’s story, Goudy’s attorney objected.
In light of counsel’s diligence in seeking out Lee and
obtaining the confession, his overt steps to avoid this
aspect of Lee’s story at trial justify the Indiana court’s
view that it was incredible.
No. 08-3679 15
In any event, since the granting of the writ will compel
the state to either retry Goudy (with new counsel) or
dismiss the charges, the question as to whether the deci-
sions and actions of his first attorney were appropriate
enough to provide Goudy with reasonable counsel will
be of no moment. In spite of our abstract interest, we
avoid the temptation to ponder the matter. That is to
say, because we hold that the Brady error alone denied
Goudy a fair trial, we need not reach the question of
whether he also was denied the effective assistance
of counsel.
III. CONCLUSION
For the reasons stated above, we conclude that the
Court of Appeals of Indiana unreasonably applied fed-
eral law when it determined that prior statements of
identification by witnesses the government suppressed
did not create a reasonable probability of a different
result in Goudy’s trial. Therefore, we R EVERSE the dis-
trict court’s holding and remand with instructions to
grant Goudy’s request for a writ of habeas corpus pursu-
ant to 28 U.S.C. § 2254. If the state elects not to retry
Mr. Goudy within 120 days, he shall be released from
confinement.
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