Brooks v. Tennessee

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0360p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DONALD GENE BROOKS,
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Petitioner-Appellant,
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No. 07-5415
v.
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Respondent-Appellee. -
STATE OF TENNESSEE,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-00821—William J. Haynes, Jr., District Judge.
Argued: March 10, 2010
Decided and Filed: November 23, 2010
Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Nashville, Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley,
Caryll S. Alpert, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
GILMAN, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. DAUGHTREY, J. (pp. 29–33), delivered a separate opinion concurring in the
judgment.

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No. 07-5415 Brooks v. State of Tennessee Page 2

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OPINION
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RONALD LEE GILMAN, Circuit Judge. Following a jury trial in the
Montgomery County Criminal Court in Tennessee, Donald Gene Brooks was convicted
of first-degree felony murder, especially aggravated robbery, theft of property valued
over $1,000, and setting fire to personal property. He was sentenced to life plus 27 years
of imprisonment. After Brooks’s conviction and sentence were affirmed on direct
appeal, he petitioned for state postconviction relief, but was turned down at all levels of
the state judiciary. He subsequently filed a petition for federal habeas corpus relief,
raising a total of 11 claims. The district court denied his petition, but certified five
claims for appeal. This court later certified two additional claims.

The certified claims all relate to purported prosecutorial misconduct involving
the failure to disclose material evidence, the alleged use of a jailhouse informant to elicit
incriminating statements from Brooks, and the presentation of allegedly false testimony
at trial. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

The following factual recitation (in Parts I.A. and I.B.) is derived from the
opinion of the Tennessee Court of Criminal Appeals, which affirmed Brooks’s
conviction and sentence on direct appeal. See State v. Brooks, No.
01-C101-9703-CC-00099, 1998 WL 299267, at *1-*6 (Tenn. Crim. App. June 9, 1998).

A. Factual background

Joseph J. Wisniewski was discovered bleeding from his neck on the side of Barge
Point Road in Clarksville, Tennessee shortly after 4:00 P.M. on October 28, 1994. His
throat had been cut. Emergency personnel were unable to save Wisniewski, and he died
at the scene.
No. 07-5415 Brooks v. State of Tennessee Page 3

Earlier that day, Wisniewski had left his home to go to the Pickle Factory bar in
Clarksville. He had approximately $200 in cash on his person. Brooks was also at the
bar, and Wisniewski drank with him and several other patrons, including Edwin
Lunceford and Randy Herdman.

That afternoon, Wisniewski offered Herdman a ride home from the bar.
Lunceford, believing that Wisniewski was too drunk to drive, convinced Wisniewski to
let Lunceford drive Wisniewski’s car. Brooks, Herdman, Lunceford, and Wisniewski
then left the bar and drove to a convenience store. Brooks went inside and purchased
a twelve-pack of Bud Light. The men then dropped Herdman off at his home.

Soon thereafter, Brooks, Lunceford, and Wisniewski pulled over on Barge Point
Road to relieve themselves. They all got out of the car and, when Lunceford had
finished relieving himself, he turned around to see Brooks holding a knife to
Wisniewski’s throat. Wisniewski’s wallet was on the trunk of the car. Brooks ordered
Lunceford to take the wallet. After Lunceford did so, he walked over to Wisniewski and
punched him in the jaw, purportedly to prevent Wisniewski from being able to identify
him. Brooks then cut Wisniewski’s throat with the knife.

Immediately afterwards, Brooks and Lunceford got back into Wisniewski’s car.
Brooks drove, leaving Wisniewski on the side of Barge Point Road. From there, Brooks
and Lunceford drove around the area, drinking and smoking crack cocaine. Brooks
threw his knife, Wisniewski’s wallet, and some of the wallet’s contents in a creek bank.
At one point, Lunceford asked Brooks why he had killed Wisniewski, and Brooks
replied that Wisniewski could not identify them now.

Brooks and Lunceford eventually drove to the home of Connie Gonzalez,
Brooks’s girlfriend, and parked Wisniewski’s car under the breezeway of a nearby
church. They carried some items that they had discovered in the trunk of the car into
Gonzalez’s home. The two men then went back to the car, doused it with charcoal
lighter fluid, and set it on fire. About ten minutes later, they returned to Gonzalez’s
house and drank alcohol and smoked crack throughout the night in an upstairs room.
Brooks hid Wisniewski’s car keys inside a stuffed animal that he found there.
No. 07-5415 Brooks v. State of Tennessee Page 4

Shortly after the homicide, Brooks came to Lunceford’s home on three or four
occasions to “work up a story” about the crimes. Lunceford did not promptly contact
law enforcement because Brooks threatened to harm Lunceford and his family if
Lunceford said anything. Finally, in April 1995, Lunceford called Officer Marty Watson
at the Clarksville Police Department concerning the crimes. Officer Watson in turn
contacted Detective Alan Charvis, the lead investigator on Wisniewski’s homicide.
Detective Charvis had no probable suspect until Lunceford came forward.

Lunceford informed the officers that he had information about the Wisniewski
homicide, but demanded immunity from prosecution and the presence of a representative
from the district attorney’s office as prerequisites to making a statement. After being
granted conditional immunity (which provided that he would not be prosecuted so long
as he was not the one who had killed Wisniewski), Lunceford told the officers about the
events of October 28, 1994. He also led law enforcement to a creek where he believed
that Brooks had disposed of the knife and Wisniewski’s wallet. Later, Lunceford told
Detective Charvis that the location where these items were discarded was in fact another
creek. Nothing was found at either location.

The police then arranged for Lunceford to initiate conversations with Brooks
while wearing a “wire” that would transmit and tape record the conversations.
According to Lunceford, Brooks admitted during the first such conversation that he had
killed Wisniewski, but the wire malfunctioned and the recording was inaudible. In
subsequent conversations, Brooks made statements such as “loose lips sink ships.” He
would also claim ignorance, saying “I don’t know nothing,” and then laugh. At one
point, Lunceford said that he was just as guilty as Brooks and that Brooks was in denial.
Brooks then repeated, “I am in denial,” and laughed. At another point, Lunceford
professed concern because his probation officer had been by his house to talk to
Lunceford about the Wisniewski homicide. Brooks responded by reassuring Lunceford
that there was nothing to worry about and that Lunceford should just follow the plan that
they had talked about the previous day.
No. 07-5415 Brooks v. State of Tennessee Page 5

Eventually, Brooks became suspicious of Lunceford. While they were in the
restroom at the Pickle Factory bar, Brooks asked Lunceford if he was wearing a wire and
told Lunceford to lift up his shirt. Brooks then searched Lunceford, but failed to
discover the wire. Soon thereafter, the police moved in and arrested Brooks for the
murder of Wisniewski.

B. State-court trial testimony

At trial, Lunceford was the main witness against Brooks. Lunceford was then
serving time for felony convictions of robbery and forgery, and he admitted to numerous
past offenses of driving under the influence, driving on a revoked license, and “simple
assaults or domestic disputes.” Most of the factual narrative set forth above is based on
Lunceford’s testimony.

The prosecution also introduced physical evidence, which included two Bud
Light cans discovered near Wisniewski’s body on Barge Point Road. Special Agent
Hoyt Phillips of the Tennessee Bureau of Investigation (TBI) testified that he had
processed the beer cans for latent fingerprints. He explained that he had found Brooks’s
left thumb print on one of the cans and Brooks’s left palm print on the other can.

In addition, TBI Special Agent Anthony Clark, formerly of the Clarksville Police
Department, testified that he was one of the officers who searched Connie Gonzalez’s
home as part of the police investigation. They discovered a stuffed animal that had been
torn or cut. A key ring with car keys belonging to Wisniewski was found inside of the
stuffed animal.

Finally, Michael Wayne Nelson, a convicted felon then serving time in prison,
testified that he and Brooks shared a cell in the Montgomery County Jail on June 7,
1996. Nelson stated that Brooks confessed his guilt to Nelson. Brooks provided Nelson
with details of the crime that were consistent with Lunceford’s testimony of what had
happened. He also told Nelson that the only evidence against Brooks was his companion
at the time of the crime, and that he wished that he had killed his companion as well.
No. 07-5415 Brooks v. State of Tennessee Page 6

Nelson admitted during his direct examination that he had prior convictions for
larceny from a person, grand larceny, and escape. He also acknowledged that he was
facing breach-of-trust charges at the time of his testimony for failing to return to the
Nashville Community Service Center after having been placed on parole.

When the prosecution rested, Brooks proceeded with several witnesses of his
own. These included Melissa Ann Springfield Conner, who was one of Lunceford’s
friends. She testified that Lunceford had told her that he was involved in a murder trial.
He said that the police had wired him and given him money and drugs to go into a bar,
where he was to “party” with a man and get the man sufficiently “messed up” to confess.
This testimony contradicted Lunceford’s testimony that he had not received any money
from the police. Conner also said that she doubted the veracity of Lunceford’s story that
he had no involvement with the crimes other than to have gone along with the
perpetrator.

Another defense witness was Debbie O’Bryan, a former bartender and manager
of the Pickle Factory bar. O’Bryan recalled Brooks, Lunceford, Wisniewski, and others
being at the bar on October 28, 1994. She did not recall Herdman being there.
Lunceford was in and out all day. Brooks left at times, but was never gone for more than
5 to 10 minutes. O’Bryan left the bar for around 45 minutes. Brooks was at the bar
when she left and was there when she returned. But O’Bryan conceded that separating
the events of one day from those of another as far back as the date of Wisniewski’s death
was difficult.

The next defense witness was Fred Lunceford (Fred), Edwin Lunceford’s
brother. He recalled a conversation that he had had with his brother about Wisniewski’s
death. Lunceford told Fred that a woman had been with him and Brooks at the time of
the killing. This contradicted Lunceford’s testimony that only he and Brooks were with
Wisniewski on Barge Point Road.

Dorothy Suggs, a part-time employee of the Pickle Factory bar on October 28,
1994, followed Fred as a witness. She did not learn of Wisniewski’s death until a long
time afterwards. When she heard of it, she asked Debbie O’Bryan whether the death
No. 07-5415 Brooks v. State of Tennessee Page 7

occurred on the same day that Suggs had sat at a table with Wisniewski and others at the
Pickle Factory bar, which O’Bryan confirmed. On that day, Wisniewski bought beers
for a large group of people, including Brooks and Lunceford. Wisniewski expressed his
desire to go to another bar at some point that afternoon. A patron nicknamed “Boston
Rick” (later identified as Richard Roberts) picked up Wisniewski’s car keys and said that
he would take Wisniewski. Lunceford said that he would go as well, and the three men
left. A female patron may have accompanied the men. Suggs admitted that she and
Brooks are good friends, and that Brooks had spent the night in her home on occasions
when he was too drunk to drive to his own home.

Lieutenant Douglas Tackett, a Sheriff’s Department administrator at the
Montgomery County Jail, was the final defense witness. He stated that he had known
Michael Nelson for about 15 years and did not believe him to be truthful.

In rebuttal, the State recalled Agent Clark, who said that Debbie O’Bryan had
told him during her interview that she had no knowledge of what had allegedly happened
at the Pickle Factory bar on October 28, 1994. This concluded all of the testimony at
trial.

Brooks was found guilty of first-degree felony murder, especially aggravated
robbery, theft of property valued over $1,000, and setting fire to personal property. His
timely appeal followed.

C. Further state-court proceedings

Brooks appealed his conviction and sentence to the Tennessee Court of Criminal
Appeals, challenging the sufficiency of the evidence and the length of the sentence
imposed. State v. Brooks, No. 01C01-9703-CC-00099, 1998 WL 299267 (Tenn. Crim.
App. June 9, 1998). His sufficiency-of-the-evidence claim focused on Lunceford’s lack
of credibility and Brooks’s two alibi witnesses who testified that he was at the Pickle
Factory bar when the murder occurred. After an extensive review of the evidence at
Brooks’s trial, the Tennessee Court of Criminal Appeals found that a reasonable jury
could have chosen to believe Lunceford and to disbelieve Brooks’s alibi witnesses. The
No. 07-5415 Brooks v. State of Tennessee Page 8

court therefore affirmed Brooks’s conviction, and the Tennessee Supreme Court declined
review.

Brooks then filed a pro se petition for postconviction relief in the Circuit Court
for the 19th Judicial District of Tennessee (Tennessee Circuit Court). He challenged
numerous aspects of his criminal investigation and trial, raising claims of prosecutorial
misconduct that primarily concerned the involvement of Lunceford. In addition, Brooks
claimed to have received ineffective assistance of trial counsel for reasons that included
counsel’s alleged failure (1) to investigate evidence implicating Boston Rick, (2) to
pursue evidence that an identifiable but unmatched latent fingerprint was discovered on
one of the beer cans recovered on Barge Point Road, and (3) to object to the perjured
testimony of Agent Phillips that Brooks’s prints were discovered on both beer cans
recovered at the scene of the killing, when in fact Brooks’s palm print was discovered
on one of the cans and no print matched to Brooks was found on the other.

The Tennessee Circuit Court appointed counsel to represent Brooks during the
postconviction proceedings. His counsel subsequently filed an amended petition for
postconviction relief, adopting and incorporating by reference all of the claims included
in Brooks’s pro se petition and adding 11 ineffective-assistance-of-counsel claims and
two additional bases for relief that are not relevant to the instant appeal. After an
evidentiary hearing, the Tennessee Circuit Court concluded that the claims raised in the
pro se petition either lacked merit, were waived, or had previously been rejected by the
Tennessee Court of Criminal Appeals. The court denied on the merits all issues raised
in the counseled petition except for Brooks’s claim that his appellate counsel was
ineffective for failing to challenge certain aspects of Brooks’s sentence.

Both Brooks and the State appealed. Brooks challenged the Tennessee Circuit
Court’s determination that he had received effective assistance of counsel at trial and on
most aspects of his appeal, and the State challenged the court’s conclusion that Brooks
had received ineffective assistance on appeal concerning his sentence. The Tennessee
Court of Criminal Appeals affirmed the portion of the trial court’s judgment denying
Brooks’s claims and reversed the portion granting Brooks’s ineffective-assistance-of-
No. 07-5415 Brooks v. State of Tennessee Page 9

appellate-counsel claim. Brooks v. State, No. M2002-00386-CCA-R3-PC, 2003 WL
288434 (Tenn. Crim. App. Feb. 11, 2003). As for the claim that Brooks’s trial counsel
failed to investigate evidence implicating Richard Roberts, also known as Boston Rick,
the court concluded that Brooks had not demonstrated ineffective assistance of counsel
because the State presented evidence at the postconviction hearing that the TBI had
compared Mr. Roberts’s prints to the Barge Point Road beer cans and found no match.
(A careful review of the record evidence, however, demonstrates that the factual basis
for this conclusion is erroneous because the TBI did not in fact compare Mr. Roberts’s
prints to the Barge Point Road beer cans.) The Tennessee Court of Criminal Appeals
denied Brooks’s petition, and the Tennessee Supreme Court declined to review the
intermediate court’s decision.

D. Federal habeas proceedings

In late 2003, Brooks filed in the district court a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The court appointed counsel to represent
Brooks. Relevant to the instant appeal are Brooks’s claims that (1) the prosecution
knowingly permitted false testimony by several witnesses, (2) the prosecution recruited
a jailhouse informant to elicit a confession of guilt from Brooks, and (3) the prosecution
failed to disclose material impeaching information about the informant. Brooks v.
Tennessee, No. 3:03-0821, 2007 WL 1047635 (M.D. Tenn. Mar. 30, 2007).

In response, the State argued that certain of Brooks’s claims were procedurally
defaulted, others were barred by the applicable statute of limitations, and the rest were
rejected by the Tennessee state courts in decisions that constituted reasonable
applications of federal law. Brooks replied that his claims were not procedurally
defaulted and, even if they were, that he could establish cause and prejudice to excuse
the defaults.

The district court held an evidentiary hearing on Brooks’s claims brought
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and on the issue of procedural
default. Brooks presented evidence at this hearing that was discovered by a private
investigator after the conclusion of the state postconviction proceedings. This included
No. 07-5415 Brooks v. State of Tennessee Page 10

the recantation testimony of Michael Wayne Nelson (who was then going by the name
of Michael Wayne Carter), the jailhouse informant who had testified against Brooks at
trial. The district court summarized the new testimony as follows:

In this Court, [Nelson] testified that his trial testimony was totally
false. According to [Nelson], a female representative of the district
attorney general’s office approached him at the jail and told him that she
had heard of his past assistance in [a previous] case and other
cooperation with law enforcement authorities. According to [Nelson],
this representative offered to “take care of” [Nelson’s] two pending
charges[:] driving under the influence and parole violation. In exchange,
[Nelson] would have to agree to move into Brooks’s cell and report what
Brooks told him about hiding keys in a stuffed animal at his girl friend’s
residence. [Nelson] insists that this prosecutor provided him with a
written statement with information about [Brooks’s] girl friend’s address
and that [Wisniewski’s] automobile ha[d] been burned at a nearby
church. In a word, [Nelson] agreed and testified at Brooks’s trial about
Brooks’s statements to him that [Brooks] killed [Wisniewski] and hid
[Wisniewski’s] car keys at his girlfriend’s house.
[Nelson] now insists that his trial testimony about [Brooks’s]
statements to him in the jail was provided by a state prosecutor. Contrary
to his trial testimony, [Nelson] testified in this Court that Brooks did not
tell him anything about the murder. According to [Nelson], his trial
testimony was based upon a written statement that the prosecutor read to
him. [Nelson] denies that he told the prosecutor any of the statements
that were in this written statement. [Nelson] also acknowledged that in
addition to his convictions cited by the Tennessee appellate courts, his
prior criminal history also includes convictions for perjury and passing
a forged instrument.
[Nelson] also asserts that he told the assistant district attorney that
he had a history of mental illness and at that time, was on medications for
those illnesses. According to [Nelson], he hears voices and is
schizophrenic. Excerpts of [Nelson’s] medical files from the Tennessee
Department of Correction (“TDOC”) that detail his multiple suicide
attempts and diagnoses of “organic mental disorder with hallucinations,”
and “schizophrenia” were introduced at the hearing. According to
[Nelson], TDOC officials placed [Nelson] in protective custody when he
was transferred to TDOC. On April 6, 2006, [Nelson] signed a
hand-written statement that sets forth his testimony at the evidentiary
hearing in this Court.
....
No. 07-5415 Brooks v. State of Tennessee Page 11

[Brooks’s trial attorney Edward] Dewerff characterized [Nelson]
as an important trial witness. Dewerff did not recall any disclosure by the
State that [Nelson], a state witness, had a perjury conviction. Dewerff
cross-examined [Nelson] on his grand theft and larceny convictions as
well as seven escapes. According to Dewerff, the jury was aware that
[Nelson] was considered a snitch.

(Record citations omitted.)

“Despite awareness of the issues for the hearing,” noted the district court, “the
State did not offer any proof at the hearing. If believed, [Nelson’s] testimony presented
serious issues of perjury, presentation of false testimony by state prosecutor(s),
withholding exculpatory evidence and violation of [Brooks’s] right to counsel.”
Accordingly, the court issued an order directing members of the district attorney’s office
who worked on the prosecution of Brooks to appear at an evidentiary hearing to respond
to Nelson’s recantation, as well as to Brooks’s assertion that Agent Phillips testified
falsely at trial concerning the latent fingerprints discovered by the TBI on the two beer
cans recovered at the scene of the homicide.

The district court summarized the testimony presented at the second evidentiary
hearing as follows:

Pursuant to Order of the Court, Helen Young, an assistant district
attorney general in the Nineteenth Judicial District at the time of the
investigation and [Brooks’s] subsequent trial, testified that she never
talked to [Nelson]. At that time, Young was the only female assistant
district attorney and was involved in awarding Lunceford immunity, but
was not involved in [Brooks’s] trial. . . . Young explained that witness
interviews were usually handled by the City’s police detectives.
According to police records, [Nelson’s] interview that was the basis for
his trial testimony, was conducted at the state prison and Young was not
present for that interview. Arthur Bieber, an assistant attorney general
since 1982 who was the state’s prosecutor at [Brooks’s] trial[,] testified
that he did not offer any deal to [Nelson]. Bieber does not go to the jail
to interview inmate witnesses unless they are victims. Bieber does not
solicit inmates at the jail to elicit information . . . . Bieber did interview
[Nelson] shortly before trial, but not at the jail.
As to the TBI reports on the fingerprints, Young and Bieber
explained that there is not any misrepresentation with the TBI agent’s
No. 07-5415 Brooks v. State of Tennessee Page 12

testimony or reports. As Young explained, there were two TBI
fingerprints reports: one in January, 1995 and the second in August,
1995. The former report reflected an analysis before the State had any
information on the identity of the perpetrator(s). The latter TBI
fingerprint report was generated after Lunceford came forth to implicate
himself and [Brooks] in this murder. The August TBI report finds
[Brooks’s] fingerprints on one of the beer cans at the murder scene.

After these two evidentiary hearings, the district court ruled on Brooks’s habeas
petition. The court first determined that Brooks’s claims were timely raised, but then
decided that the claims addressed in the instant appeal were procedurally defaulted.
Concerning Nelson’s recanting of his trial testimony, the court concluded that Brooks
had demonstrated cause for the procedural default because the recanting was “external
to” the defense. The court determined that there was no prejudice to excuse the
procedural default, however, because Nelson’s later testimony was not credible and
therefore did not establish prosecutorial misconduct:

On its face, [Nelson’s] testimony has obvious factual appeal.
[Nelson] has a history of being considered a “snitch” and this fact,
coupled with his presence in [Brooks’s] cell and his trial testimony, tend
to corroborate his testimony that state prosecutors approached him for
that purpose. [Nelson’s] testimony in this action is contrary to his
self-interest as such testimony exposes him to a charge of perjury. As to
[Nelson’s] testimony about his disclosure of his mental condition to the
state prosecutor prior to his trial testimony, the TDOC medical records
corroborate that he has such a mental condition. The state record reflects
that the state prosecutors should have had cause to question whether to
call [Nelson] as a witness. At trial, a local police officer testified that
[Nelson] was not credible, as the state appellate court noted: “Lieutenant
Douglas Tackett testified he had known Michel Nelson for about fifteen
years and did not believe him to be truthful.” As noted, [Brooks’s] trial
counsel filed a Brady motion with a specific request for evidence of the
State’s promises to any witness.
A[s] [a] general rule, “[t]he assessment of the credibility of
witness is generally beyond the scope of [habeas] review.” Schlup v.
Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 130 L.Ed.2d 808 (2003), but the
court must do so in such instances of new evidence that seriously
challenges [a habeas petitioner’s] conviction. Here, as found by the
Tennessee appellate court, Lunceford’s testimony was the critical basis
for [Brooks’s] conviction. Given [Nelson’s] mental history, his prior
convictions and reputation for untruthfulness, his inconsistent testimony
No. 07-5415 Brooks v. State of Tennessee Page 13

about his role in these matters, and the testimony of the state prosecutors,
the Court finds that [Nelson’s] testimony about the state prosecutors is
not credible.

(Record citations omitted.)

The district court next considered Brooks’s claim that the prosecution had failed
to disclose evidence of Nelson’s past convictions for crimes involving dishonesty. It
reasoned as follows:

The state counsel’s examination of the state prosecutors,
however, did not address [Brooks’s] assertions that disclosures of
[Nelson’s] criminal convictions for perjury and passing a forged
instrument were not disclosed to [Brooks’s] trial counsel as requested in
his Brady motion. Standing alone, this nondisclosure would be material
under Brady. Yet, the state trial court record reflects [Nelson’s] other
convictions, the testimony that [Nelson] was a snitch who testified for the
State in exchange for favorable treatment and significantly, the testimony
of a law enforcement official who had known [Nelson] for fifteen years,
that [Nelson] was an unreliable and untruthful witness not worthy of
belief. The latter testimony leads the Court to conclude that the State’s
failure to disclose these other convictions are not material for Brady
purposes because the Court’s confidence in the verdict is not
undermined. As a result, there is not any showing of prejudice to excuse
the procedural default.

The court did not address Brooks’s argument that he was also prejudiced by the
prosecution’s failure to disclose evidence of Nelson’s history of mental illness.

Regarding the claim that Agent Phillips testified falsely at trial about the
fingerprints lifted from the beer cans recovered at the scene of the homicide, the district
court provided the following brief analysis: “The Court also finds the state prosecutors’
testimony about the TBI fingerprint reports to be credible. . . . Thus, [Brooks’s] Brady
claim does not involve material evidence in light of . . . the explanation of the TBI
fingerprint reports.”

In sum, the district court denied Brooks’s petition for habeas relief. This appeal
followed.
No. 07-5415 Brooks v. State of Tennessee Page 14

II. ANALYSIS

A. Standard of review

“In a habeas corpus appeal, we review the district court’s legal conclusions de
novo, but will not set aside its factual findings unless they are clearly erroneous.” Ivory
v. Jackson, 509 F.3d 284, 291 (6th Cir. 2007). A factual finding is clearly erroneous
where, “although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

“The standard for reviewing state-court determinations on habeas, by contrast,
is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified
at 28 U.S.C. § 2254(d).” Ivory, 509 F.3d at 291. AEDPA provides that

a federal court may not grant a writ of habeas to a petitioner in state
custody with respect to any claim adjudicated on the merits in state court
unless (1) the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or (2) the state court’s decision “was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.”

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (citation omitted) (quoting
28 U.S.C. § 2254(d)).

A state-court decision is considered “contrary to . . . clearly established Federal
law” if the two are “diametrically different, opposite in character or nature, or mutually
opposed.” Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks
omitted) (quoting Webster’s Third New International Dictionary 495 (1976)).
Alternatively, to be deemed an “unreasonable application of . . . clearly established
Federal law,” a state-court decision on the merits must be “objectively unreasonable,”
not simply incorrect. Id. at 409, 412. The state court’s findings of fact are presumed to
be correct unless they are rebutted by clear and convincing evidence. Benge v. Johnson,
474 F.3d 236, 241 (6th Cir. 2007).
No. 07-5415 Brooks v. State of Tennessee Page 15

B. Certified claims and arguments of the parties

Brooks applied for a Certificate of Appealability (COA) in the district court,
which was granted as to the following five claims:

1. [Brooks’s] claim that the prosecution used false testimony of two
witnesses in violation of [Brooks’s] rights under the Fifth, Sixth,
and Fourteenth Amendments; []
2. [Brooks’s] claim that his statement to a state informant, whom
the State recruited, violated [Brooks’s] Sixth Amendment right
to counsel;
3. [Brooks’s] claim that the prosecution failed to disclose that the
informant witness had a history of mental disorders[;]
4. [Brooks’s] claim that the prosecution failed to disclose critical
portions of the informant’s prior criminal history involving
crimes of dishonesty; [and]
5. [Brooks’s] claim that the prosecution failed to disclose that the
informant-witness had a history of receiving special treatment
and privileges for providing information to law enforcement and
correctional authorities.

In addition, this court, pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, expanded the COA by agreeing to consider two more of Brooks’s claims on
appeal:

[6.] whether the prosecution failed to disclose that the informant had
testified falsely at a previous trial; and
[7.] whether the prosecution knowingly presented false testimony of
alleged coconspirator Edwin Lunceford, TBI Agent Hoyt
Phillips, and the informant Michael Nelson [], in violation of the
Fifth, Sixth, and Fourteenth Amendments.

Brooks has consolidated the seven certified claims into three issues on appeal.
First, Brooks contends that the prosecution violated his due process rights by failing to
disclose important impeaching information about Michael Nelson; specifically, that “he
suffered chronic mental illnesses,” that “he had prior felony convictions for forgery and
perjury,” that “he had a history of receiving privileges from authorities in exchange for
No. 07-5415 Brooks v. State of Tennessee Page 16

snitching,” and that “he reportedly had testified falsely at a previous trial.” Brooks next
argues that the prosecution violated his due process rights when it failed to correct the
false testimony “of Agent Phillips regarding fingerprint results, and the testimony of
Michael Nelson regarding Brooks’s putative confession.” Finally, Brooks asserts that
“the prosecution violated the Sixth Amendment by using Michael Nelson to question
Brooks after [Brooks] had been appointed counsel.”

Brooks has raised no argument in his briefs concerning the prosecution’s
purported presentation of false testimony by Edwin Lunceford. Accordingly, that issue
is deemed waived. See Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir. 1999) (holding that
a court may consider any claims not addressed in an appellant’s brief to be waived).

The State responds that all of Brooks’s certified claims are barred by procedural
default. Further, the State argues that Brooks is unable to demonstrate cause and
prejudice to excuse this procedural deficiency. It therefore urges us to affirm the
judgment of the district court.

C. The procedural-default doctrine

A habeas petitioner procedurally defaults a claim if the petitioner fails to comply
with a state procedural rule that the state actually enforces and that constitutes an
adequate and independent ground for denying review of a federal constitutional claim.
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). In order to excuse a procedural
default, the petitioner must demonstrate cause for the default and must show that “actual
prejudice resulted from the alleged constitutional error.” Ivory, 509 F.3d at 293 (quoting
Monzo, 281 F.3d at 576).

The “cause” factor requires the petitioner to show “some objective factor external
to the defense [that] impeded [the defense’s] efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples include “a
showing that the factual or legal basis for a claim was not reasonably available”
previously, or “some interference by officials.” Id. (citation omitted). Regarding the
“prejudice” factor, “[t]he habeas petitioner must show not merely that the errors at trial
No. 07-5415 Brooks v. State of Tennessee Page 17

created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at
494 (emphasis in original) (alterations, citation, and internal quotation marks omitted).

D. Failure to disclose the Nelson impeachment materials

Brooks argues that impeaching evidence concerning Nelson, the “jailhouse
snitch,” was withheld by the prosecution in violation of Brady v. Maryland, 373 U.S. 83
(1963). In Brady, the Supreme Court held that a defendant’s due process rights are
violated where the government withholds evidence favorable to a defendant that is
“material either to guilt or to punishment.” Id. at 87. To demonstrate a Brady violation,
a habeas petitioner must establish three elements: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A
habeas petitioner demonstrates prejudice by showing that the suppressed evidence is
“material.” Id. at 282.

A state’s suppression of Brady evidence constitutes cause under the procedural-
default doctrine. Banks v. Dretke, 540 U.S. 668, 691 (2004). The prejudice prong for
both analyses is the same. Id. Thus, a petitioner who proves a Brady violation
demonstrates cause and prejudice to excuse procedural default of the Brady claim. Id.

Brooks contends that the prosecution failed to disclose to defense counsel
significant impeaching materials concerning Nelson, either prior to or during Brooks’s
trial in the Montgomery County Criminal Court. He identifies two categories of
evidence that purportedly constitute Brady materials concerning Nelson: “(1) his
Tennessee Department of Corrections records showing his chronic mental illnesses, his
recurrent service as a snitch, and some perks of snitching; and (2) the Montgomery
Country records showing his prior felony convictions for forgery and perjury.” Brooks
concedes that this claim is procedurally defaulted because he failed to raise it before the
state courts, but argues that he has demonstrated cause and prejudice by setting forth a
No. 07-5415 Brooks v. State of Tennessee Page 18

meritorious Brady claim. He also argues that the only aspect of Brady at issue on appeal
is the materiality of the suppressed evidence.

The State disagrees with Brooks. It contends that the suppression prong of the
Brady analysis is also an issue on appeal. According to the State, Brooks has not
demonstrated cause for his procedural default because he is unable to show that the
Nelson impeachment materials were in fact suppressed by the State. The State also
asserts that, in any event, the purportedly suppressed impeachment evidence is not
material. Accordingly, the State reasons that Brooks has neither demonstrated a valid
Brady claim nor excused his procedural default.

Because this claim was not previously raised before or adjudicated by the state
courts, we review it under pre-AEDPA standards. Joseph v. Coyle, 469 F.3d 441, 469
(6th Cir. 2006) (explaining that this court reviews “a Brady claim based on evidence
disclosed during federal habeas proceedings under pre-AEDPA standards because no
state court reviewed the merits of that claim” (citation and internal quotation marks
omitted)). We therefore will not set aside the district court’s factual findings unless they
are clearly erroneous, but will review an alleged Brady violation de novo because
“whether a Brady violation occurred is a mixed question of law and fact.” Id.

Brooks does not provide any substantive argument that the State withheld
evidence of Nelson’s “recurrent service as a snitch, and some perks of snitching,” and
therefore this argument is deemed waived. See Spirko v. Mitchell, 368 F.3d 603, 612
(6th Cir. 2004) (“It is a settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” (citation and internal quotation marks omitted)). Regarding the evidence for
which Brooks provides substantive argument—Nelson’s history of mental illness and
his convictions for forgery and perjury—the State does not dispute that this evidence is
favorable to Brooks as impeachment material that could have been used to discredit
Nelson’s testimony about Brooks’s putative jailhouse confession. And, for the purposes
of this analysis, we will assume without deciding that the evidence was suppressed. This
leaves the third Brady factor of prejudice, also described as the “materiality” of the
No. 07-5415 Brooks v. State of Tennessee Page 19

evidence. See Strickler, 527 U.S. at 282 (describing the “third component” of the Brady
analysis as “whether petitioner has established the prejudice necessary to satisfy the
‘materiality’ inquiry”).

The standard for Brady materiality was set forth by the Supreme Court in Kyles
v. Whitley, 514 U.S. 419 (1995). As the Court there held, suppressed evidence is
material “if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. at 433-34 (citation
omitted). The reasonable-probability standard “does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have resulted ultimately
in the defendant’s acquittal (whether based on the presence of reasonable doubt or
acceptance of an explanation for the crime that does not inculpate the defendant).” Id.
at 434. As the Supreme Court explained,

[t]he question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence. A “reasonable probability” of a different result is
accordingly shown when the government’s evidentiary suppression
“undermines confidence in the outcome of the trial.”

Id. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In making this
determination, we review the evidence “collectively, not item by item.” Id. at 436.

The documents discovered by Brooks during the federal habeas proceedings
below and provided to this court demonstrate that, while incarcerated, Nelson
(1) engaged in multiple suicide attempts, heard voices, suffered from insomnia,
hallucinations, and alcohol abuse; (2) was diagnosed with malingering, antisocial
personality disorder, self-mutilation, borderline mental retardation, schizophrenia, and
“[o]rganic mental disorder with hallucinations”; and (3) was prescribed antipsychotic
medications. In fact, in the two months before Nelson testified as a State witness at
Brooks’s trial in August 1996, Nelson refused to take his recommended medication for
an infection in his leg, and he ingested paper clips. During the three months following
No. 07-5415 Brooks v. State of Tennessee Page 20

the trial, Nelson was prescribed “major tranquillizers” and was placed on a 30-minute
monitoring schedule.

These documents also reveal that Nelson informed prison authorities about the
smuggling of drugs and other impermissible items by other inmates, that he requested
to be isolated from these inmates, and that he once testified falsely against an inmate,
resulting in that inmate’s conviction. Nelson’s convictions in Montgomery County for
passing forged instruments (August 1977 and April 1979) and perjury (August 1981)
were also among the materials provided. The indictment for the perjury charge states
that Nelson falsely swore that a man shot him, which resulted in the man being arrested
and charged with attempted murder.

In the present case, the materiality question is a close one. As a professional and
ethical matter, the prosecution should have discovered this important background
information about Nelson before calling him as a witness. This is particularly true
regarding Nelson’s prior convictions for forgery and perjury, which were obtained by
the very same prosecutor’s office as was trying Brooks’s case. Moreover, Nelson gave
inaccurate testimony at trial concerning the extent of his prior criminal history, which
the prosecution failed to correct. This was a serious professional failing.

Nevertheless, the Brady standard for materiality is less demanding than the
ethical obligations imposed on a prosecutor. See Cone v. Bell, 129 S. Ct. 1769, 1783
n.15 (2009) (“Although the Due Process Clause of the Fourteenth Amendment, as
interpreted by Brady, only mandates the disclosure of material evidence, the obligation
to disclose evidence favorable to the defense may arise more broadly under a
prosecutor’s ethical or statutory obligations.”). As previously explained, under Brady,
we look to the undisclosed evidence as a whole to determine whether there is a
reasonable probability that, had this evidence been disclosed to the defense, the result
of the proceeding would have been different. Kyles, 514 U.S. at 433-34. Evidence that
is “merely cumulative” to evidence presented at trial is “not material for purposes of
Brady analysis.” Carter v. Mitchell, 443 F.3d 517, 533 n.7 (6th Cir. 2006).
No. 07-5415 Brooks v. State of Tennessee Page 21

At trial, both the prosecution and the defense introduced evidence that impeached
Nelson’s credibility. The prosecution elicited testimony from Nelson about his
convictions for larceny from a person, grand larceny, and jail escape. Nelson admitted
that he first went to prison when he was 18-years old and had spent about 10 years in
prison. During cross-examination, Nelson also testified that he had been convicted for
“breach of trust.” He further admitted that he had “gathered information and helped out
the authorities . . . several times in prison.” Nelson in fact acknowledged that he had
testified as a jailhouse informant in at least one other criminal case. And he stated that
he considered himself a “professional snitch” who received special privileges in prison
for his assistance.

In his closing argument, Brooks’s trial counsel vigorously attacked the credibility
of Nelson as a witness, arguing that this “professional snitch” was dishonest and had
ulterior motives for testifying. He emphasized the testimony of Lieutenant Tackett, who
had known Nelson for fifteen years. As counsel argued:

Can we understand why a high-ranking official with the Montgomery
County Sheriff’s Department may be a little reluctant to testify for a
Defense Attorney? Yes. A Defense Attorney, probably not something
they are in the habit of doing[.] But when he gets on the stand and he
gets under oath, he tells you what his opinion is[.] He wouldn’t believe
anything Mr. Nelson tells him.

The jury therefore heard evidence that Nelson was a “professional snitch,” that
he received benefits from snitching, that he had an extensive criminal history, and that
he was unworthy of belief. This impeaching evidence was highlighted for the jury by
defense counsel in his closing argument. As the district court recognized, if no
impeachment evidence had been disclosed concerning Nelson, this lack of impeachment
would certainly have been material. See Joseph v. Coyle, 469 F.3d 441, 472 (6th Cir.
2006) (“We have little trouble assuming that, if all five items [of impeachment evidence]
had been completely undisclosed, they certainly would have been material/prejudicial
under Brady.”). But here substantial evidence impeaching Nelson’s credibility was
disclosed and presented at trial.
No. 07-5415 Brooks v. State of Tennessee Page 22

The Supreme Court “has long recognized the serious questions of credibility
informers pose.” Banks v. Dretke, 540 U.S. 668, 701 (2004) (citation and internal
quotation marks omitted). This court has similarly concluded that an informant-witness
is sufficiently impeached, rendering the undisclosed impeachment materials nonmaterial,
where “[t]he jury was apprised of [the informant’s] status and the possible other reasons
for his decision to testify, namely, that he wished to secure early parole as a result of his
participation in the [defendant’s] case.” Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008)
(en banc).

As was the case in Bell v. Bell, the disclosure of the additional Nelson
impeachment materials in the present case “would not have permitted the development
of alternate theories or different lines of argument.” See id. Nelson’s credibility was
effectively impeached at trial. Evidence of his history of mental illness would have
provided additional reasons not to credit his testimony, but would have been cumulative
to the evidence already in the record. Moreover, under Tennessee evidentiary law,
Nelson’s convictions for perjury and forgery were presumptively inadmissible due to the
fact that they were over 15-years old at the time of Brooks’s August 1996 trial. See
Tenn. R. Evid. 609(b). We therefore conclude that, although this issue is uncomfortably
close to the constitutional line, the undisclosed evidence was not material under Brady.

E. Presentation of and failure to correct the false testimony of Agent Phillips

The second claim raised by Brooks on appeal is that the prosecution knowingly
presented, and failed to correct, the false testimony of Agent Phillips concerning the
fingerprint evidence discovered on the two beer cans found at the scene of Wisniewski’s
homicide. Brooks asserts that “procedural default is not an issue here since Brooks did
in fact raise his fingerprints/false-testimony claim in the state trial and appellate courts,
and because the prosecution obstructed those claims by presenting misrepresentations
to the trial court and the postconviction court about the fingerprints.” The State responds
that this claim was not in fact “fairly presented to the state courts” because the
fingerprint evidence was previously presented in the context of an ineffective-assistance-
No. 07-5415 Brooks v. State of Tennessee Page 23

of-counsel claim rather than a false-testimony claim, “and hence is barred by procedural
default.” “At any rate,” argues the State, “it is entirely meritless.”

The Supreme Court has long recognized that due process is denied where “[the]
state has contrived a conviction through the pretense of a trial which in truth is but used
as a means of depriving a defendant of liberty through a deliberate deception of court
and jury by the presentation of testimony known to be perjured.” Mooney v. Holohan,
294 U.S. 103, 112 (1935). Such conduct by the prosecution is “inconsistent with the
rudimentary demands of justice.” Id. The same holds true “when the State, although not
soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois,
360 U.S. 264, 269 (1959). As the Court explained in United States v. Agurs, 427 U.S.
97, 103-04 (1976), a false-testimony claim falls under the Brady disclosure doctrine.
The contours of this claim were predominantly shaped by two Supreme Court cases:
Napue v. Illinois, 360 U.S. at 269-72, and Giglio v. United States, 405 U.S. 150, 153-54
(1972).

This court has developed a three-part test for determining if the prosecution has
committed a Brady-Napue-Giglio violation:

The knowing use of false or perjured testimony constitutes a denial of
due process if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury. In order to establish
prosecutorial misconduct or denial of due process, the defendants must
show (1) the statement was actually false; (2) the statement was material;
and (3) the prosecution knew it was false. The burden is on the
defendants to show that the testimony was actually perjured, and mere
inconsistencies in testimony by government witnesses do not establish
knowing use of false testimony.

Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting United States v. Lochmondy, 890
F.2d 817, 822 (6th Cir. 1989)). A false statement is material under this standard, and
“[a] new trial is required[,] if the false testimony could in any reasonable likelihood have
affected the judgment of the jury.” Giglio, 405 U.S. at 154 (alterations and internal
quotation marks omitted) (quoting Napue, 360 U.S. at 271).
No. 07-5415 Brooks v. State of Tennessee Page 24

In the present case, Brooks argues that Agent Phillips falsely testified that both
beer cans recovered at the scene of Wisniewski’s homicide bore Brooks’s fingerprints,
when in fact the TBI lab reports show that Brooks’s palm print was found on only one
of the cans. The prosecution did not correct this inaccurate testimony, and Brooks’s trial
counsel declined to cross-examine Agent Phillips. (Brooks has not pursued an
ineffective-assistance-of-counsel claim on appeal.)

The inaccuracy of Agent Phillips’s testimony was demonstrated by materials
presented at the state postconviction hearing. During that hearing, Brooks’s counsel
entered into evidence the investigative file of Detective Charvis, the lead investigator in
the Wisniewski homicide case. The records contained in this file indicate that three beer
cans were recovered and submitted to Agent Phillips for latent fingerprint examination.
Two of these beer cans were recovered from Barge Point Road, where Wisniewski’s
body was found, and were labeled exhibits 40037890 and 40037891 in Agent Phillips’s
January 1995 report. The third beer can was recovered at the home of Brooks’s
girlfriend, Connie Gonzalez, and was labeled exhibit 50023469 in Agent Phillips’s
August 1995 report. Brooks’s palm print was found on one of the beer cans from Barge
Point Road, exhibit 40037891. Lunceford’s prints were found on the beer can from
Gonzalez’s house, exhibit 50023469. An identifiable but unmatched print was
discovered on the second beer can from Barge Point Road, exhibit 40037890. There is
no report in the record, however, indicating that Brooks’s prints were discovered on this
second beer can. (The TBI reports were not entered into evidence at trial.)

During oral argument before this court, the State reiterated the argument made
in its brief that “[t]here is no evidence . . . that the lab reports that Brooks presented at
the evidentiary hearing represent all the reports that were generated by the Tennessee
Bureau of Investigation.” The State appears to be suggesting that Agent Phillips could
have created another report that was not included in the lead investigator’s file but that
revealed Brooks’s fingerprint on the second Barge Point Road beer can, exhibit
40037890. Perhaps recognizing that this argument was at best speculative and
disingenuous, the State eventually conceded during oral argument that Agent Phillips’s
No. 07-5415 Brooks v. State of Tennessee Page 25

trial testimony was mistaken. The State argued, however, that his testimony was not
intentionally false and, in any event, was not material.

We find the State’s materiality argument persuasive. Even Brooks does not
contest the fact that his palm print was found on one of the two beer cans discovered at
the scene of the Wisniewski homicide, which implicates Brooks in the crime. Thus,
Agent Phillip’s inaccurate testimony—that Brooks’s prints were found on both beer cans
found at the scene of the homicide instead of only one—could not “in any reasonable
likelihood have affected the judgment of the jury.” See Giglio, 405 U.S. at 154 (quoting
Napue, 360 U.S. at 271).

Brooks tries to get around this inevitable conclusion by arguing that “the false
testimony was material because the fact of the identifiable yet unmatched fingerprints
on the second Barge Point can was powerful and objective exculpatory evidence.” But
no evidence concerning the unmatched print was elicited at trial, and Agent Phillips did
not testify that only Brooks’s prints were discovered on the two Barge Point Road beer
cans. He was asked if, after comparing the latent fingerprints recovered from the beer
cans with Brooks’s fingerprints, he had an opinion concerning a possible match. His
failure to further opine about other fingerprints found on the beer cans does not amount
to false testimony. Brooks is thus unable to demonstrate that Agent Phillips testified
falsely concerning the identifiable but unmatched fingerprint on the second Barge Point
Road beer can.

Moreover, both the prosecution and the defense apparently had access to the TBI
reports during trial, and therefore both parties were in equal positions to clarify Agent
Phillips’s testimony. See Norris v. Schotten, 146 F.3d 314, 334-35 (6th Cir. 1998)
(concluding that there is no Brady violation where the defense had in its possession
evidence that demonstrated the witness’s inconsistent statements, and remarking that
“there would be no need for a jury if trials did not contain such inconsistencies”).
Brooks has neither argued nor provided any evidence that the prosecution withheld
Agent Phillips’s TBI reports from the defense. And because Brooks has not
No. 07-5415 Brooks v. State of Tennessee Page 26

demonstrated that Agent Phillips’s inaccurate testimony was material under the Brady-
Napue-Giglio standard, he is not entitled to relief on this claim.

We do not reach Brooks’s further argument that the identifiable but unmatched
print on the second Barge Point Road beer can potentially implicates Richard Roberts,
also known as Boston Rick, as the real killer. Brooks has not pursued in this court an
ineffective-assistance-of-counsel claim concerning this evidence. Nor does Brooks
argue that the State’s presentation of witnesses who further compounded the inaccuracy
of Agent Phillips’s trial testimony during the state postconviction hearing and the federal
habeas evidentiary hearing constitutes an independent due process claim.

F. Nelson’s recantation testimony

Brooks’s final claim on appeal appears to be a catch-all argument concerning
prosecutorial misconduct that goes well beyond the issues certified for appeal. In
addition, Brooks attempts to argue the cumulative effect of the alleged errors by the
prosecution, which is also not an issue certified for appeal. Thus, distilled to the claims
that have been properly certified, Brooks in his final claim addresses (1) whether the
prosecution knowingly presented the perjured testimony of Nelson, and (2) whether the
prosecution recruited Nelson as an informant in violation of Brooks’s Sixth Amendment
right to counsel. He argues that the district court clearly erred in crediting the testimony
of the state prosecutors and discrediting the testimony of Nelson at the federal
evidentiary hearing.

The State responds by asserting that any claims arising out of Nelson’s recanting
of his trial testimony are procedurally defaulted. It contends that, “[h]ad [Nelson’s]
testimony been false, Brooks plainly had notice of that fact at the time it was uttered,”
and therefore Brooks is unable to demonstrate cause for the default. In addition, the
State argues that Brooks cannot demonstrate prejudice because the district court
correctly determined that Nelson’s testimony at the federal evidentiary hearing was not
credible.
No. 07-5415 Brooks v. State of Tennessee Page 27

The Supreme Court, in Massiah v. United States, 377 U.S. 201 (1964), held that
a criminal defendant is denied the Sixth Amendment right to counsel where the
prosecution “use[s] against him at his trial evidence of his own incriminating words,
which federal agents . . . deliberately elicited from him after he had been indicted and
in the absence of his counsel.” Id. at 206. This rule applies where the government
recruits an undercover jailhouse informant, or otherwise “intentionally creat[es] a
situation likely to induce [a defendant] to make incriminating statements without the
assistance of counsel.” United States v. Henry, 447 U.S. 264, 269, 274 (1980).

Because Brooks’s claims that the prosecution recruited Nelson as a State
informant and knowingly presented his false testimony at trial depend wholly on
Nelson’s testimony, Brooks’s argument hinges on the credibility of Nelson as a witness
at the federal habeas proceedings. But the district court discredited Nelson’s testimony,
and this court views with great suspicion the recantation testimony of trial witnesses in
postconviction proceedings. E.g., Carter v. Mitchell, 443 F.3d 517, 539 (6th Cir. 2006).

Brooks presents a plausible explanation for the placement of Nelson in Brooks’s
cell, the failure of the State to disclose Nelson’s convictions for perjury and forgery, and
the State’s failure to disclose Nelson’s history of mental illness; i.e., that the State
engaged in knowing and deliberate prosecutorial misconduct in violation of Brooks’s
constitutional rights. This is not, however, the “only reasonable explanation,” as Brooks
claims. The district court’s conclusion is also reasonable, where the court found that,
“[g]iven [Nelson’s] mental history, his prior convictions and reputation for
untruthfulness, his inconsistent testimony about his role in these matters, and the
testimony of the state prosecutors, . . . [Nelson’s] testimony about the state prosecutors
is not credible.”

We review the district court’s credibility determination under the highly
deferential clear-error standard. Anderson v. City of Bessemer City, 470 U.S. 564, 573-
74 (1985). There “can virtually never be clear error” where the “trial judge’s finding is
based on his decision to credit the testimony of one of two or more witnesses, each of
whom has told a coherent and facially plausible story that is not contradicted by extrinsic
No. 07-5415 Brooks v. State of Tennessee Page 28

evidence,” and where that finding is “not internally inconsistent.” Id. at 575. Brooks
presents on appeal an alternative, plausible explanation for Nelson’s testimony. But he
has failed to demonstrate that the district court’s rejection of Nelson’s story is
contradicted by extrinsic evidence or is internally inconsistent. See id. And because the
merits of Brooks’s claim depend entirely on the credibility of Nelson’s testimony, a
rejection of that credibility necessitates a finding that Brooks has not shown
prosecutorial misconduct.

G. Final admonition

Despite the fact that Brooks has not presented a claim to this court entitling him
to habeas relief, we have grave concerns about how the State handled Brooks’s trial,
postconviction, and habeas proceedings. The State turned what should have been a
strong, fairly clear-cut case into one raising serious constitutional questions. It presented
inaccurate testimony to the trial court, the state postconviction court, and the district
court concerning the fingerprint evidence discovered on the Barge Point Road beer cans.
The State also conducted an inadequate investigation into Nelson’s criminal and mental-
health background, causing it to elicit inaccurate testimony at trial concerning the extent
of Nelson’s criminal history. We strongly admonish the State that such conduct does not
meet the high standards of ethics and professionalism expected in a criminal prosecution.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
No. 07-5415 Brooks v. State of Tennessee Page 29

_______________________________________

CONCURRING IN THE JUDGMENT
_______________________________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in the judgment.
A separate concurring opinion that agrees only with the result reached by a majority of
one’s colleagues is a judicial construct both unusual and, generally, unwelcome. I would
not so burden the resolution of this appeal if I were not concerned about the majority’s
imprecise application of the standards of review in this case, caused – it would appear
– by a tendency to engage in an unnecessarily elaborate re-examination of the evidence
from both the original jury trial and the evidentiary hearing in the district court.

As the majority recounts at great length, Donald Eugene Brooks was convicted
of murder in the death of Joseph J. Wisniewski, who was found with his throat slit at the
side of Barge Point Road in Clarksville, Tennessee, in October 1994. What the majority
also notes, but fails to emphasize appropriately, is that following the jury verdict in state
court finding Brooks guilty of aggravated murder and three related offenses, the only
issue he raised on direct appeal was the legal sufficiency of the convicting evidence.
The Tennessee Court of Criminal Appeals reviewed the trial testimony witness by
witness, examining at length that of the state’s chief witness, Edwin Lunceford, the
accomplice who had been with defendant Brooks for much of the day of Wisniewski’s
murder. The state court’s opinion set out Lunceford’s testimony in detail, along with the
testimony of various other prosecution witnesses who were called by the state for the
purpose of corroborating Lunceford’s narrative. The jury also heard tape-recordings of
Lunceford’s conversations with Brooks, made without Brooks’s knowledge after
Lunceford came forward voluntarily and confessed his part in the offense to police.
Although the recordings do not contain an outright confession by Brooks, the statements
were clearly incriminating. See State v. Brooks, No. 01C01-9703-CC-00099, 1998 WL
299267, at **1-3 (Tenn. Crim. App. June 9, 1998).

The appellate court’s opinion also summarized the testimony of Mike Nelson,
who was Brooks’s cellmate and who plays a prominent role in the majority opinion in
No. 07-5415 Brooks v. State of Tennessee Page 30

this appeal. In that summary, the court commented on Nelson’s impeachment, noting
that “Nelson admitted convictions of larceny from a person, grand larceny and escape,”
id. at *4, n.7, and actually conceded on cross-examination that he was a “professional
snitch.” In addition, one of the law enforcement officers involved in the investigation
of the murder charge against Brooks testified that “he had known Michael Nelson for
about fifteen years and did not believe him to be truthful.”

With Nelson’s testimony thus fatally damaged, if not destroyed, Brooks’s
principal line of defense at trial consisted of an effort to demolish Lunceford’s
credibility, but to no avail. As the Court of Criminal Appeals observed:

[T]he record reflects that defense counsel ably and vigorously
cross-examined Lunceford and assailed his credibility through other
witnesses. Additionally, the state’s evidence at trial supported its theory
of the defendant’s guilt of each of the four crimes of which he was
ultimately convicted, although the defendant brought forward some
evidence of an alibi. Thus, the jury had before it evidence which would
allow it, on one hand, to convict the defendant, or on the other, to acquit
him. The decision was one which hinged on the jury’s assessment of the
credibility of the witnesses, particularly Edwin Lunceford, and the weight
and value which should be afforded the evidence. The decision was
wholly one for the jury to make as trier of fact. Unfortunately for the
defendant, the jury’s discharge of its function resulted in accreditation
of Lunceford’s testimony and weighing and evaluating the state’s
evidence over that brought forward by the defense. Clearly, a rational
trier of fact, such as the jury at the defendant’s trial, could find the
defendant guilty beyond a reasonable doubt of each of the four crimes on
the evidence presented.

Id. at *6 (emphasis added).

Because Brooks was found guilty by a jury, we are constrained to apply what has
been described as a “double layer of deference” in our review of the district court’s
denial of habeas relief. See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009), cert.
denied, __S.Ct. __, 2010 WL 2102202, 79 USLW 3198 (U.S. Oct. 4, 2010) (No. 09-
10999). In reviewing the legal sufficiency of the convicting evidence on direct appeal,
the Tennessee Court of Criminal Appeals was required by Jackson v. Virginia, 443 U.S.
307 (1979), to “view[ ] the evidence in the light most favorable to the prosecution” and
No. 07-5415 Brooks v. State of Tennessee Page 31

affirm if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319 (emphasis in original). At this first level –
deference to the jury’s verdict – the Jackson standard is so demanding that “[a]
defendant who challenges the sufficiency of the evidence to sustain his conviction faces
a ‘nearly insurmountable hurdle.’” United States v. Oros, 578 F.3d 703, 710 (7th Cir.
2009) (citation omitted). Moreover, “under Jackson, the assessment of the credibility
of witnesses is generally beyond the scope of [habeas] review.” Schlup v. Delo, 513
U.S. 298, 330 (1995). Added to this already heavy burden are the limitations of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (1996), which serve to create a second level of deference. Those standards permit
us to overturn a state court’s decision only if that court failed to apply the correct
constitutional precedent or when the court’s application of precedent was “objectively
unreasonable” and not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510,
520-21 (2003).

The import of this double level of deference is significant in this case. The
Tennessee Court of Criminal Appeals found that Brooks’s conviction withstood his
challenge to the legal sufficiency of the evidence, based on the extensive testimony of
Edwin Lunceford, which the court credited. That testimony clearly established the
essential elements of each of the statutory offenses for which Brooks was convicted,
based on factual determinations that are presumptively correct. See Brown v. Konteh,
567 F.3d 191, 205 (6th Cir. 2009) (“[E]ven were we to conclude that a rational trier of
fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas
review, we must still defer to the state appellate court’s sufficiency determination as
long as it is not unreasonable.”), cert. denied, 130 S.Ct. 1081 (2010). Although it is true,
as the petitioner now argues, that the legal questions controlled by Brady v. Maryland,
373 U.S. 83 (1963), must be reviewed de novo because there is no prior state-court
ruling on those issues, see Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006), they must
also be seen in context, i.e., whether the Brady violations did anything to undermine
Lunceford’s testimony and the evidence introduced to corroborate that testimony. As
the district court noted, the evidence of Brooks’s guilt, as established by the record and
No. 07-5415 Brooks v. State of Tennessee Page 32

accredited by the jury, was overwhelming. Put simply, it is immaterial that Nelson may
have been schizophrenic and that his testimony about Brooks’s jail cell confession was
therefore suspect. The majority’s labored exposition of the historical facts is likewise
immaterial.

Moreover, in this case we actually have a third level of deference, because the
district court heard new testimony offered by Brooks in connection with his
constitutional claims, found that it was not credible and, therefore, not material, and held
that it could not serve as the basis for the issuance of a writ of habeas corpus. That
credibility determination is, of course, not subject to review on appeal. See United
States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993) (“In addressing sufficiency of the
evidence questions, this Court has long recognized that we do not weigh the evidence,
consider the credibility of witnesses or substitute our judgment for that of the [fact-
finder].”) (citing United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989)). Moreover,
it is well-established that:

If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently. Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.

Anderon v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985). As a result, the
record wholly fails to establish that Nelson perjured himself at the state trial, or that
members of the prosecutors’ office solicited false testimony from Nelson.

The district court also found that the additional, undisclosed evidence about
Nelson’s background was insufficient to establish prejudice because the jury was fully
aware of Nelson’s reputation as a “professional snitch,” his status as a convicted felon,
and his lack of credibility in the eyes of law enforcement, all leading to his impeachment
by defense counsel at Brooks’s trial. Nor does the speculation about the ephemeral
“Boston Rick” or the presence or absence of his fingerprints rise to the level of proof.
No. 07-5415 Brooks v. State of Tennessee Page 33

That, in my judgment, should be the end of our review of Brooks’s habeas
petition. Put bluntly, I do not think it serves any purpose to engage in elaborate parsing
of the facts, as the majority has done in this case, because it suggests to lawyers and
potential habeas litigants that we are re-weighing the evidence in the record de facto if
not de jure. Thus, I would hold simply that the evidence credited by the jury established
Brooks’s guilt and that the district court did not err in refusing to grant habeas relief after
determining that the evidence offered in support of Brooks’s Brady claims was not
creditable and was, therefore, insufficient to support the issuance of a writ.