United States Court of Appeals
For the First Circuit
No. 04-1160
RANDY LAVALLEE,
Petitioner, Appellant,
v.
JANE COPLAN, Warden, New Hampshire State Prison,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Porfilio, Senior Circuit Judge,*
and Lynch, Circuit Judge.
Christopher M. Johnson for appellant.
Jonathan V. Gallo, Assistant Attorney General, with whom Peter
W. Heed, Attorney General, was on brief, for appellee.
July 8, 2004
*
Of the United States Court of Appeals for the Tenth Circuit,
sitting by designation.
LYNCH, Circuit Judge. Randy Lavallee appeals from the
denial of his habeas corpus petition under 28 U.S.C. § 2254.
In early 1998, Lavallee was convicted in New Hampshire
state court of multiple counts of sexual assault against his step-
daughter, who was between the ages of twelve and fourteen at the
times of the assaults. He was sentenced to twenty-two and a half
to forty-five years confinement in New Hampshire state prison.
Before his state criminal trial started, Lavallee asked
the state court judge to order the disclosure of files concerning
his step-daughter that were in the possession of the New Hampshire
Department of Health and Human Services, Division of Children,
Youth, and Families (DCYF). DCYF had initiated abuse and neglect
proceedings against Lavallee and neglect proceedings against the
step-daughter's mother (Lavallee's wife) after the step-daughter
had made allegations of sexual abuse by Lavallee to the police.
DCYF files are confidential under New Hampshire's Child Protection
Act, N.H. Rev. Stat. Ann. § 169-C:25, III, and absent a court
order, even the prosecution may not access them, see State v.
Gagne, 612 A.2d 899, 899-900 (N.H. 1992) ("neither the prosecution
nor the defendant ha[s] access to the DCY[F] file"). The court
allowed Lavallee's motion, and DCYF provided the file materials to
the prosecutor, who gave them to the defense.
After the jury began deliberations, but before it reached
a verdict, a DCYF employee notified the prosecutor that some
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portions of the step-daughter's DCYF files had inadvertently been
omitted when the materials had been produced earlier. The omitted
materials detail a DCYF caseworker's contacts with the step-
daughter, her family, and her foster-care providers beginning
shortly after the accusations against Lavallee were made and
continuing through the time of trial. The prosecution immediately
gave the new materials to the defense, and before a verdict was
reached, Lavallee moved to dismiss all of the charges because of
the late production of the documents. The trial judge reviewed the
new file materials that the defense said were pertinent, heard
arguments, and denied the motion.
The belatedly-produced materials from the DCYF files now
form the heart of Lavallee's habeas corpus claim. Lavallee argues
that the failure to disclose the complete file materials violated
the rule of Brady v. Maryland, 373 U.S. 83 (1963), which requires
the government to produce to defendants exculpatory and impeachment
evidence that is within its custody, possession, or control, id. at
87; see also Giglio v. United States, 405 U.S. 150, 154 (1972). To
constitute a Brady violation, "[t]he 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 whether willfully or inadvertently; and
prejudice must have ensued." Strickler v. Greene, 527 U.S. 263,
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281-82 (1994); United States v. Josleyn, 206 F.3d 144, 153 (1st
Cir. 2000).
For purposes of the analysis here, we can assume that the
omitted file materials were favorable to Lavallee and focus on the
state court's handling of the second and third components of the
test. The second component is present only if the exculpatory or
impeaching evidence at issue (here, the omitted file materials) is
the type of evidence covered by the Brady rule; exculpatory or
impeaching evidence is so-called "Brady material" only if it is
within the government's custody, possession, or control. See
Josleyn, 206 F.3d at 151-53; see also Strickler, 527 U.S. at 280-
81. The third component captures the so-called "Brady materiality
requirement" and is satisfied where there is a reasonable
probability that the evidence would have changed the result. See
Josleyn, 206 F.3d at 151-52; see also Strickler, 527 U.S. at 280.
If Lavallee's Brady claim "was adjudicated on the merits
in State court proceedings," then we must accept the state's legal
ruling on that claim unless it is "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). If his claim was not adjudicated on the merits in
the state court proceedings, then we review the claim de novo. See
Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003); Fortini v.
Murphy, 257 F.3d 39, 47 (1st Cir. 2001).
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The Brady claim formed the basis of Lavallee's motion to
dismiss to the state trial court. As noted, the state trial judge
reviewed the newly-produced DCYF materials and denied the motion
for dismissal. The trial judge ruled that the materials were not
within the scope of Brady, and, in any event, that they did not
meet Brady's materiality requirement. The late production of the
DCYF materials then became one of the two bases for Lavallee's
direct appeal to the New Hampshire Supreme Court. State v.
Lavallee, 765 A.2d 671, 672 (N.H. 2000). That court also rejected
the Brady claim. The court held that the DCYF files were not the
type of evidence covered by Brady-type disclosure rules under the
New Hampshire Constitution, because neither the investigating law
enforcement agency nor the prosecution was in possession of them.
Id. at 672-73. The court also implicitly concluded that the
evidence was not covered under the Brady rule, reasoning that the
protections concerning Brady material under the New Hampshire
Constitution are at least as broad as those under the federal
constitution. Id. As a result, the New Hampshire Supreme Court
did not reach the issue of Brady materiality, unlike the state
trial judge.
In April 2002, Lavallee filed a federal habeas corpus
petition. It was heard by a magistrate judge in the United States
District Court for the District of New Hampshire. Contrary to the
New Hampshire trial court and the New Hampshire Supreme Court, the
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federal court determined that the DCYF files were within the scope
of Brady. Lavallee v. Coplan, 239 F. Supp. 2d 140, 145-47 (D.N.H.
2003). In a subsequent order, the district court turned to the
questions of whether the files met the standard for materiality
under Brady and whether the state trial court's decision that the
undisclosed evidence was not material was "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" under 28
U.S.C. § 2254(d)(1). The federal court reviewed the state court
record and determined that the DCYF files did not meet the Brady
materiality requirement. Accordingly, it denied the petition.
Under conventional Brady doctrine, the New Hampshire
Supreme Court and trial court were correct in their respective
conclusions that the DCYF files did not trigger a duty under Brady
because they were not within the custody, possession, or control of
the prosecution. Whether we engage in deferential review or, as
Lavallee seeks, de novo review, the outcome would be the same: the
DCYF files are not the type of evidence covered under conventional
Brady doctrine. See United States v. Bender, 304 F.3d 161, 163-64
(1st Cir. 2002) (Brady doctrine does not require a prosecutor to
seek out and disclose exculpatory or impeaching material not in the
prosecution's possession). The files were self-evidently not
within the custody or possession of the prosecution, so the
question becomes whether they were nonetheless within the
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prosecutor's control. There is no claim that the prosecutor had
any reason to think that the original files turned over from DCYF
were incomplete. And while prosecutors may be held accountable for
information known to police investigators, Kyles v. Whitley, 514
U.S. 419, 437-38 (1995), DCYF is neither the police nor the
equivalent of the police in assisting the prosecution. DCYF was
not the prosecuting agency and is independent of both the police
department and the prosecutor's office. Indeed, in its decision on
Lavallee's direct appeal, the New Hampshire Supreme Court held that
DCYF shared no special relationship with the prosecutor or the
police.1 Lavallee, 765 A.2d at 673.
There is a wrinkle, though, and it lies in the Supreme
Court's 1987 opinion in Pennsylvania v. Ritchie, 480 U.S. 39
(1987). In Ritchie, a defendant in state criminal court sought the
production of files from a state child protection agency,
equivalent to DCYF. 480 U.S. at 43-44. The agency pointed to a
state statute that made its files confidential, subject to certain
exceptions, and refused to produce the files, which concerned the
alleged victim of sexual abuse by the defendant. Id. The trial
1
Lavallee argues that there are a number of "connections"
between DCYF and the police and prosecution and that those
connections support treating DCYF files as Brady material.
Lavallee points out, for example, that police officers had some
contact with DCYF and with the step-daughter while she was in
foster care and that members of the prosecutor's office had some
contact with DCYF workers. However, the New Hampshire Supreme
Court clearly resolved the issue against him and that determination
is entirely sound.
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court judge refused to order the disclosure of the files, the
defendant was convicted, and he appealed. Id. at 44-45. An
intermediate state appellate court vacated the conviction and
remanded on the ground that the failure to disclose the agency
files violated due process. Id. at 45. The state appealed, and
the Supreme Court of Pennsylvania agreed that the conviction had to
be vacated and the case remanded to determine if a new trial was
necessary in light of the information in the agency files. Id. at
46. The court also held that the defendant was entitled to review
the entirety of the agency's files to search for any useful
evidence. Id. On review of that ruling, the U.S. Supreme Court
noted the government's duty "to turn over evidence in its
possession that is both favorable to the accused and material to
guilt or punishment," citing United States v. Agurs, 427 U.S. 97
(1976), and Brady. 480 U.S. at 57. The Court did not ask the
question that usually begins the Brady analysis -- namely, whether
the agency file at issue was within the custody, possession, or
control of the prosecutor. The Court upheld the vacatur and remand
and held, under the Due Process Clause, that the defendant was
entitled to have the agency file reviewed by the trial court to
determine whether it contained information "that probably would
have changed the outcome of his trial." Id. at 58. However, the
Court reversed the state supreme court's ruling to the extent that
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it allowed the defendant immediate access to the entirety of the
agency's files. Id. at 61.
Because of our sense that there is some ambiguity about
the relationship between Ritchie and Brady, we would be very
hesitant to conclude, as the magistrate judge did, that the New
Hampshire Supreme Court opinion, which analyzed the Brady claim in
classic terms, was nonetheless "contrary to" the holding in Ritchie
or that the particular doctrine invoked here was "clearly
established" as a Brady doctrine. Moreover, petitioner did not
cite Ritchie to the New Hampshire Supreme Court on his appeal; he
cited it for the first time in his motion to that court for
reconsideration, so he may not have sufficiently raised it in state
court. In any case, the answer to those questions need not be
resolved because Lavallee's petition fails for other reasons.
Ritchie required that a state judge review the agency
file and determine whether it contained information that probably
would have changed the outcome of defendant's trial. That was done
here. The trial judge here concluded, pre-verdict, that even if
the documents were within the scope of Brady, there was no
reasonable probability of a different result if they had been
produced earlier (i.e., they failed the Brady materiality test).
The court accepted the defense argument that the additional
documents were pertinent in two ways to the defense theory that the
victim had fabricated her allegations of abuse against her step-
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father in order to be with her boyfriend, Brad. Defense counsel,
acknowledging that the victim had already testified that she was
still in love with Brad and still maintaining contact with him at
the time of trial, argued that the new documents would support the
defense theme that her strong, ongoing relationship with Brad had
colored her testimony and led to false accusations against her
father. He also argued that some of the notes in the newly-
produced DCYF materials could be used to undercut the step-
daughter's credibility as to her testimony about whether she had
made certain phone calls to Brad and whether she had told her
mother about the alleged abuse. The trial judge, citing Brady,
ruled that "[b]y and large, the material is cumulative and really
doesn't add a heck of a lot with regard to the Brad issue beyond
what is already in evidence." As to the impeachment value of the
evidence, the trial judge found it to be "not so weighty as to
produce a reasonable probability of a different result if there
were a guilty verdict on one or more of the charges." Even were
those sound determinations before us on direct review and not on
habeas, we would affirm. The new material, which was largely
cumulative of what the jury had already heard, would have added
little to the defense theme.
We affirm the denial of habeas corpus.
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