ABDUR'RAHMAN v. Colson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0223p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ABU-ALI ABDUR’RAHMAN,
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Petitioner-Appellant,
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No. 09-5307
v.
,
>
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Respondent-Appellee. -
ROLAND COLSON, Warden,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 96-00380—Todd J. Campbell, Chief District Judge.
Argued: February 2, 2011
Decided and Filed: August 17, 2011
Before: BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges.

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COUNSEL
ARGUED: Thomas C. Goldstein, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., for Appellant. Joseph F. Whalen, III, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: Thomas C. Goldstein, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., Bradley A. MacLean, OFFICE OF THE POST-CONVICTION
DEFENDER, Nashville, Tennessee, William P. Redick, Jr., Whites Creek, Tennessee,
for Appellant. Joseph F. Whalen, III, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.

SILER, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
joined. COLE, J. (pp. 14–22), delivered a separate dissenting opinion.

1
No. 09-5307 Abdur’Rahman v. Colson Page 2

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OPINION
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SILER, Circuit Judge. In 1987, Abu-Ali Abdur’Rahman was convicted of first-
degree murder, assault with intent to commit first-degree murder, and armed robbery.
He now appeals the district court’s denial of relief on his Rule 60(b) motion. For the
following reasons, we AFFIRM.

BACKGROUND

On February 16, 1986, Abdur’Rahman purchased marijuana from Patrick Daniels
and Norma Norman at the couple’s shared apartment in Nashville, Tennessee.1 This
purchase prompted Abdur’Rahman and his accomplice, Harold Devalle Miller, to plan
to rob Daniels and Norman. On February 17, Abdur’Rahman, armed with a shotgun, and
Miller, armed with an unloaded pistol, went to Daniels’s apartment under the pretense
of making another drug purchase. Brandishing their weapons once inside,
Abdur’Rahman and Miller bound Daniels and Norman with duct tape, and took
Daniels’s bank card, $300 in cash, and marijuana. Abdur’Rahman informed Daniels that
he had been sent from Chicago to “clean up everything” and that he was there to teach
Daniels a lesson. Abdur’Rahman then took a butcher knife from the kitchen and stabbed
Daniels six times in the chest. He also stabbed Norman several times in the back before
he and Miller fled. Daniels died from his wounds, but Norman survived.

A jury convicted Abdur’Rahman of murder, assault with intent to commit first-
degree murder, and armed robbery. At sentencing, Abdur’Rahman testified that he was
encouraged to commit the robbery by a “quasi-religious paramilitary group” called the
Southeastern Gospel Ministry (“SEGM”). He stated that the goal of the SEGM was to
“cleanse the black community of drug dealers and other undesirable elements.” He also
testified that Allen Boyd, a leader within the SEGM, furnished the shotgun he used

1
The facts underlying Abdur’Rahman’s Tennessee convictions are derived from this court’s
review of his first habeas appeal, see Abdur’Rahman v. Bell, 226 F.3d 696, 699 (6th Cir. 2000).
No. 09-5307 Abdur’Rahman v. Colson Page 3

during the crime, and aided him and Miller afterwards. Abdur’Rahman received the
death penalty for his murder conviction and two consecutive life terms for each of his
other convictions. The Tennessee Supreme Court affirmed Abdur’Rahman’s convictions
and sentences, see State v. Jones, 789 S.W.2d 545 (Tenn. 1990), and he unsuccessfully
pursued state post-conviction relief, see Jones v. State, No. 01C01-9402-CR-00079,
1995 WL 75427, at *1–3 (Tenn. Crim. App. Feb. 23, 1995).

Abdur’Rahman filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Abdur’Rahman v. Bell, 999 F. Supp. 1073 (M.D. Tenn. 1998). The district
court granted relief, but we reversed and vacated the judgment. Abdur’Rahman, 226
F.3d at 708–09. Abdur’Rahman then filed a motion for relief under Rule 60(b). See
Abdur’Rahman v. Bell, No. 3:96-0380, 2001 WL 1782874, at *1 (M.D. Tenn. Nov. 27,
2001). After several appeals, the district court granted Abdur’Rahman’s motion to
consider the merit of certain claims that it earlier concluded were procedurally defaulted
in Abdur’Rahman’s initial § 2254 petition. Abdur’Rahman v. Bell, No. 3:96:0380, 2009
WL 211133 (M.D. Tenn. Jan. 26, 2009).

Among his several claims for relief, Abdur’Rahman argued that the prosecution
withheld two pieces of evidence before sentencing, in violation of Brady v. Maryland,
373 U.S. 83 (1963): pretrial statements made by Miller regarding the influence of the
SEGM on the crime, and Detective Mark Garafola’s account of Abdur’Rahman’s self-
destructive behavior while in police custody. With this withheld evidence,
Abdur’Rahman argues that one or more jurors could have concluded that a term of life
imprisonment rather than death was a more appropriate sentence in his case. The district
court, however, denied relief. It held that the prosecution’s suppression of Miller’s pre-
trial statements did not violate Brady, either because Abdur’Rahman already knew of
this information or because the evidence was not material. Abdur’Rahman, 2009 WL
211133, at *7. It also held that Detective Garafola’s report was not material. Id. at
*9–10. We granted Abdur’Rahman a certificate of appealability (COA) to consider
whether the district court properly rejected these two Brady subclaims.
No. 09-5307 Abdur’Rahman v. Colson Page 4

DISCUSSION

A. Standard of Review

We review a district court’s denial of a petitioner’s habeas claims de novo.
Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006). Factual findings made by the district
court are reviewed for clear error, but mixed questions of law and fact are reviewed
de novo. Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008).

Abdur’Rahman filed his § 2254 habeas petition on April 23, 1996—one day
before the effective date of the Antiterrorism and Effective Death Penalty Act. As a
result, the pre-AEDPA standard of review applies here. See Coleman v. Mitchell, 268
F.3d 417, 427 (6th Cir. 2001) (citing Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999)).
Thus, we presume the correctness of state court factual findings, which are rebuttable
only by clear and convincing evidence. Id. We review determinations of law, or
determinations involving mixed questions of law and fact, de novo. Id. Because
Abdur’Rahman’s appeal was brought after AEDPA’s effective date, however, AEDPA’s
requirement that he secure a COA still applies. See Mackey v. Dutton, 217 F.3d 399,
406–07 (6th Cir. 2000).

B. Abdur’Rahman’s Cumulative Error Arguments

In addition to his individual Brady claims, Abdur’Rahman argues that these
claims should be cumulated with the prosecutorial misconduct or Strickland claims he
raised in his initial § 2254 petition. Even if these errors do not deny him due process
when considered in isolation, Abdur’Rahman argues that the prejudice resulting from
either cumulation makes his death-sentence unfair.

Because Abdur’Rahman raised these cumulative error arguments for the first
time on habeas review, we may not consider them here. He suggests that we follow
Derden v. McNeel, 978 F.2d 1453, 1456–57 (5th Cir. 1992), where an en banc Fifth
Circuit permitted a habeas petitioner to raise a cumulative error argument without first
making that argument before the state court below. Under our own circuit’s precedent,
however, cumulative error arguments must be raised separately in the state court and are
No. 09-5307 Abdur’Rahman v. Colson Page 5

subject to procedural default on habeas review. See Keith v. Mitchell, 455 F.3d 662, 679
(6th Cir. 2006) (citing Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002)).
Abdur’Rahman failed to raise these cumulative error claims on direct appeal or during
post-conviction relief in state court. Instead, he only raised a generalized cumulative
error argument for the first time in his habeas petition. Because we are bound by this
circuit’s prior precedents, see Sandusky Mall Co. v. N.L.R.B., 242 F.3d 682, 692 (6th Cir.
2001), Abdur’Rahman cannot raise either cumulative error argument here.

Review of his cumulative error arguments is also foreclosed because the COA
does not certify the claims for appeal. A COA is a “jurisdictional prerequisite” to the
consideration of the merits of an appellant’s habeas claims, see Miller-El v. Cockrell,
537 U.S. 322, 336 (2003), and we may not consider claims not certified for appeal, see
28 U.S.C. § 2253(c); Seymour v. Walker, 224 F.3d 542, 561 (6th Cir. 2000). Here, the
COA allows Abdur’Rahman to appeal the denial of two Brady subclaims and permits
him to make “cumulative-effect arguments” regarding only those Brady subclaims,
“even if it involves referring to factual allegations that underpin prosecutorial-
misconduct subclaims.” (emphasis added). As we explain more fully in Part C-2 below,
this language acknowledges the general rule that we consider Brady materiality
collectively, rather than looking at each suppressed item in isolation. It does not permit
Abdur’Rahman to make cumulative-effect arguments regarding claims based on distinct
legal theories. Because we treat cumulative error arguments as separate claims, and
Abdur’Rahman’s cumulative error arguments are not included within the COA, we
cannot consider them here.

C. Brady Claims

Abdur’Rahman argues that the prosecution violated Brady by withholding two
pieces of evidence: Miller’s pre-trial statements explaining the influence of the SEGM
over their crime, and Detective Garafola’s police report describing Abdur’Rahman’s
self-destructive behavior at the time of his arrest.

“[T]he suppression by the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either to guilt or to punishment.”
No. 09-5307 Abdur’Rahman v. Colson Page 6

Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008) (en banc) (quoting Brady, 373 U.S. at 87).
A successful Brady claim requires the defendant to demonstrate that: (1) the evidence
in question was favorable to him; (2) the prosecution suppressed the relevant evidence,
either purposefully or inadvertently; and (3) the state’s actions resulted in prejudice. Id.
(citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). This rule applies to evidence
that is exculpatory in nature as well as evidence that a defendant could use to impeach
a government witness. See United States v. Bagley, 473 U.S. 667, 676–77 (1985).

1. Miller’s Pre-Trial Statements about the SEGM

Abdur’Rahman’s first Brady claim concerns pre-trial statements that Miller made
to the prosecution concerning the SEGM’s role in his murder of Daniels. No
contemporaneous record of these statements exists. Rather, Ross Alderman, Miller’s
state trial counsel, testified that Miller made pre-trial statements to the prosecution that
conflicted with his eventual testimony at Abdur’Rahman’s trial. Abdur’Rahman derives
the substance of Miller’s pre-trial statements from Miller’s testimony at a post-
conviction hearing and at Miller’s sentencing hearing, and alleges that Miller said the
following:

(1) The purpose of the SEGM was to rid the community of drug dealers; (2) the
“sole” purpose of going to Daniels’s apartment was to effect the SEGM’s plan to stop
drug dealing in the community; (3) William Beard, a leader within the SEGM, provided
Miller with the pistol he used to rob Daniels, and Abdur’Rahman said he had obtained
the shotgun used in the crime from Alan Boyd; (4) Abdur’Rahman made a phone call
after the offense, and Boyd arrived at Miller’s apartment a short time later; (5) Miller
overheard a conversation between Boyd and Abdur’Rahman at his apartment after the
offense in which Boyd told Abdur’Rahman something like “just be cool, go back to
work”; and (6) Beard gave Miller money before he fled the state, and Miller misled
Beard about his getaway because he feared what Boyd and Beard might do.

Abdur’Rahman argues that the district court erred because the prosecution never
informed him before sentencing that Miller made these statements. At trial, Miller stated
that the robbery was Abdur’Rahman’s idea and was committed for the purpose of
No. 09-5307 Abdur’Rahman v. Colson Page 7

stealing drugs. At the sentencing phase of the trial, Abdur’Rahman explained that he
was influenced by the SEGM to rob Daniels, but the prosecution called this explanation
“bunk.” Abdur’Rahman argues that Miller’s pre-trial statements could have been used
at the sentencing phase not only to corroborate his own testimony that the SEGM
influenced him to go to Daniels’s apartment and attempt the robbery, but also to discredit
Miller’s testimony that Abdur’Rahman masterminded the crime.2

Because, at the time of the trial, Abdur’Rahman knew about the SEGM and knew
that Miller had discussed the SEGM with the prosecution before trial, the district court
correctly held that withholding Miller’s pre-trial statements did not violate Brady. The
Brady rule “only applies to evidence that was known to the prosecution, but unknown
to the defense, at the time of trial.” Apanovitch v. Houk, 466 F.3d 460, 474 (6th Cir.
2006). “No Brady violation exists where a defendant knew or should have known the
essential facts permitting him to take advantage of any exculpatory information,” United
States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (per curiam) (internal citations and
quotation marks omitted), and this principle applies equally in the impeachment context,
see Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000). Where the defense is provided
with enough information to enable counsel to impeach a witness, withholding that
witness’s statements does not violate Brady. Id. Ultimately, where the alleged Brady
evidence is available to the defense, “there is really nothing for the government to
disclose.” Bell, 512 F.3d at 235 (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)).

Here, Abdur’Rahman knew the essential facts reflected in Miller’s pre-trial
statements before the sentencing phase. In fact, Abdur’Rahman’s testimony repeated the
substance of Miller’s pre-trial statements, and Abdur’Rahman decided not to call Miller
as a witness for this very reason. Abdur’Rahman testified that he and Miller were both
members of the SEGM, that its purpose was to rid the black community of drug dealers,
and that Beard and Boyd were leaders within the SEGM. Abdur’Rahman, 2009 WL

2
As the warden notes, Abdur’Rahman argued in his petition for a writ of habeas corpus that the
prosecution’s suppression of Miller’s statements was wrongful only because the statements contained
exculpatory information. Abdur’Rahman did not argue that the statements would have impeached Miller’s
trial testimony. While Abdur’Rahman may have waived this particular argument for purposes of appeal,
see Barker v. Shalala, 40 F.3d 789, 793–94 (6th Cir. 1994), we nevertheless consider it here.
No. 09-5307 Abdur’Rahman v. Colson Page 8

211133, at *7. He also testified that Boyd and Beard provided the weapons used during
the offense, and that Boyd helped Miller escape afterwards. Id.; see Abdur’Rahman, 226
F.3d at 699. Abdur’Rahman did not testify that the SEGM’s mission was the “sole”
motive for the crime—in fact, he contradicted this, denying that the SEGM had turned
him into a murderer or that other members of the SEGM were involved in the crime. Id.
But his testimony did reveal that the SEGM provided some influence. He stated that
members of the SEGM had explained how to confront drug dealers and suggested that
they might be blackmailed for money. Id. Because Abdur’Rahman already knew of the
exculpatory information in Miller’s statements, there was little remaining for the
prosecution to disclose.

Nor does the impeachment value of Miller’s pre-trial statements require that we
reverse the district court’s holding. Abdur’Rahman argues that the ultimate value of the
withheld statements is not what was said, but rather that Miller said them.
Abdur’Rahman, however, knew that Miller had discussed the SEGM with the
prosecution before trial. Abdur’Rahman’s trial counsel wrote a letter to the prosecution
before the sentencing phase, acknowledging that Miller “ha[d] advised your office of the
existence of [the SEGM].” The prosecution confirmed Abdur’Rahman’s understanding,
stating that it had learned about the SEGM through its conversations with Miller. Given
what Abdur’Rahman already knew about the SEGM and its influence, the prosecution’s
acknowledgment that Miller discussed the SEGM with it before trial provided
Abdur’Rahman sufficient information to enable him to impeach the credibility of
Miller’s testimony at trial. Abdur’Rahman’s decision not to do so was not the fault of
the prosecution. See Byrd, 209 F.3d at 517. Accordingly, the district court did not err
in concluding that the prosecution’s nondisclosure of Miller’s pre-trial statements did
not violate Brady.3

3
The dissent suggests our analysis on this point is flawed because we erroneously presume
Abdur’Rahman’s trial counsel was competent. While we did acknowledge Abdur’Rahman’s counsel was
ineffective in failing to investigate his background and mental health history, see Abdur’Rahman, 226 F.3d
at 708, this does not compel that we presume his counsel was also ineffective in failing to discover the
details of Miller’s testimony or to cross-examine him about it.
No. 09-5307 Abdur’Rahman v. Colson Page 9

2. Abdur’Rahman’s Head Banging upon Arrest

Abdur’Rahman’s second Brady claim concerns Detective Garafola’s report
detailing his conduct upon arrest. On February 19, 1986, when Abdur’Rahman was
arrested for murdering Daniels, Detective Garafola authored a report that read, in part:

When we returned to our office Det Elmore and myself attempted to
interview [Abdur’Rahman]. He was in an interview room and when we
entered the room [Abdur’Rahman] was crying. He would not respond to
our questions. The only statement he made was “I only killed one man
in my life and that was because he was trying to fuck me.” He then
started to hit his head on the table and then he jumped up still handcuffed
to the chair and banged his head up against the wall. We got him under
control and then took him to the booking room. In the booking room he
started to bang his head on the wall again. Det Elmore was able to
control him. We took Polaroid pictures of him and also mug shots with
his glasses on and off.

The government concedes that this portion of Detective Garafola’s report was redacted
and not shown to Abdur’Rahman at trial or before sentencing. Abdur’Rahman argues
that this report could have been used to show that he was “seriously mentally ill when
he was arrested” and that he had been mentally ill for decades. He also argues this
evidence would have demonstrated that he was particularly susceptible to manipulation
by the SEGM, disproving the prosecution’s characterization of him as a depraved killer.
The mitigative effect of Detective Garafola’s report, he argues, would have caused one
or more jurors to vote in favor of a life sentence.

As an initial matter, we are not convinced that, at the time of the sentencing
phase, Abdur’Rahman did not know the essential facts of the behavior described in
Detective Garafola’s report. Although it is possible that Abdur’Rahman was not
personally aware of his own head-banging, his trial counsel indicated that “something
happened at the time [Abdur’Rahman] was arrested and he might have been put in a
padded cell if he maybe lost his temper or something of that nature.” Trial counsel
interviewed Detective Garafola and “talked about what happened at the point of arrest.”
Moreover, a Davidson County Sheriff’s Department incident report indicated that, four
hours after his interview with Detective Garafola, “[Abdur’Rahman] started beating his
No. 09-5307 Abdur’Rahman v. Colson Page 10

head against the floor.” Abdur’Rahman has never claimed that this report was
suppressed; apparently, however, his trial counsel apparently never took steps to obtain
it. If Abdur’Rahman’s counsel did not know the essential facts of Abdur’Rahman’s
head-banging as described by Detective Garafola, he likely should have discovered them
through further investigation.

Because the prosecution’s suppression of this part of Detective Garafola’s report
does not undermine our confidence in Abdur’Rahman’s sentence, the district court did
not err in rejecting the second Brady claim. A failure to disclose evidence favorable to
the defense is “‘material,’ and therefore ‘prejudicial,’ only ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Apanovitch, 466 F.3d at 475 (quoting Strickler,
527 U.S. at 280). This “reasonable probability” exists when the government’s
suppression of evidence undermines confidence in the outcome of the trial. Id. (citing
Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Here, because Tennessee’s capital
sentencing law requires a unanimous jury vote to impose a death sentence, see Tenn.
Code Ann. § 39-2-203(h) (1983), the relevant inquiry is “whether there is a reasonable
probability that the withheld evidence would have altered at least one juror’s assessment
of the appropriate penalty for [Abdur’Rahman’s] crime,” Cone v. Bell, 556 U.S. ---, ---,
129 S. Ct. 1769, 1773 (2009).

To determine whether the nondisclosure of Detective Garafola’s report was
material, Abdur’Rahman urges us to also consider the prejudice arising from his first
Brady claim along with that arising from “the prosecutor’s further misconduct”—in
particular, the presentation of his “prejudicial” indictments at sentencing and the
suppression of a transcript from his 1972 murder trial. His request is overbroad. When
granting a COA in this case, we “permitted [Abdur’Rahman] to make cumulative-effect
arguments with respect to the subclaims on which [the COA was granted], even it if
involves referring to the factual allegations that underpin prosecutorial-misconduct
subclaims on which [the COA was denied].” In so stating, we merely acknowledged the
well-established rule that, when considering the materiality of alleged Brady evidence,
No. 09-5307 Abdur’Rahman v. Colson Page 11

we consider the cumulative effect of all of the undisclosed evidence, rather than each
item in isolation. See Doan v. Carter, 548 F.3d 449, 460 (6th Cir. 2008) (citing Kyles,
514 U.S. at 436). Accordingly, our cumulative effect analysis looks only to other
evidence that was both suppressed and exculpatory. Cf. Smith v. Sec’y, Dep’t of Corr.,
572 F.3d 1327, 1348 (11th Cir. 2009) (cumulating the effect of only those Brady claims
“that do involve favorable evidence that was actually suppressed”) (emphasis added).
Because Brady does not apply to Miller’s pre-trial statements, as they were not
“undisclosed,” we will not consider their potential impact when determining the
materiality of the redacted portion of Detective Garafola’s report. Given that we did not
grant a COA on Abdur’Rahman’s other claims, and therefore do not review the merits
of those claims here, the only evidence that we may consider for cumulative effect is the
1972 murder trial transcript. See Abdur’Rahman, 999 F. Supp. at 1089–90 (holding that
1972 murder trial transcript was suppressed and exculpatory, but not material).

In analyzing materiality, we begin by looking at any prejudice arising from the
suppression of part of Detective Garafola’s report. Had it been admitted in its entirety,
it would have done little to establish Abdur’Rahman’s mental illness at the time of the
offense or before. Abdur’Rahman was evaluated at the time of trial and found not to be
incompetent or insane. As evidence of mental illness, Detective Garafola’s report is far
from conclusive. Head banging like Abdur’Rahman’s could be a manifestation of many
things (including frustration, anger, sadness, or mental illness) and therefore, in and of
itself, is hardly dispositive of mental illness. Placing Abdur’Rahman in a padded cell
is no more conclusive, and only represents the decision of law enforcement, not a mental
health expert, that Abdur’Rahman was a potential danger to himself. The only other
corroborating evidence of mental illness that Abdur’Rahman presented at sentencing was
the testimony of himself and his wife. The addition of Detective Garafola’s report adds
little to Abdur’Rahman’s narrative that he was mentally ill, and had it been presented,
the prosecution could have rebutted it with considerable expert testimony to the contrary.

Nor would admission of Detective Garafola’s report have disproved the
prosecution’s narrative characterizing Abdur’Rahman as a depraved killer.
No. 09-5307 Abdur’Rahman v. Colson Page 12

Abdur’Rahman’s head banging, under the circumstances described above, does not
contradict the prosecution’s description of Abdur’Rahman as “not someone suffering
from several emotional disturbance.” Further, because Abdur’Rahman testified to the
contrary at his sentencing phase, Detective Garafola’s report does little to establish that
Abdur’Rahman was susceptible to manipulation by the SEGM. Abdur’Rahman testified
that the SEGM did not turn him into a murderer, and that Beard and Boyd were not
involved in the crime. Abdur’Rahman, 2009 WL 211133, at *7. It is not likely that
Detective Garafola’s report would have changed the jury’s impression of
Abdur’Rahman.

In fact, based on Detective Garafola’s report alone, the jury could just as easily
have viewed Abdur’Rahman’s head banging as evidence of his culpability rather than
as mitigation. Abdur’Rahman had already been convicted of a prior murder at the time
of his arrest and was now accused of stabbing another man to death. Once in custody,
Abdur’Rahman surely knew that he faced either a death sentence or life in prison.
Rather than mental illness, then, the jury could have viewed Abdur’Rahman’s head
banging as evidence of guilt, distress or frustration that underscored the danger he posed
to himself and to others. As a result, while the redacted portion of Detective Garafola’s
report might have been favorable to Abdur’Rahman, it is highly unlikely that its
admission at sentencing would have caused any juror to alter his assessment that
Abdur’Rahman deserved the death penalty.

Our conclusion remains unchanged, even when considering materiality in light
of any prejudice arising from the suppression of the 1972 murder trial transcript. As the
district court noted in an earlier phase of Abdur’Rahman’s habeas proceedings, any
prejudice arising from the suppression of that evidence was immaterial. See
Abdur’Rahman, 999 F. Supp. at 1089–90. When that item is considered together with
the redacted portions of Detective Garafola’s report, the prospect of prejudice is no more
convincing. Although both items allegedly relate to Abdur’Rahman’s mental health
history, neither is especially strong evidence, and the combined effect of them by no
means tends to “put the whole case in a different light as to undermine confidence in the
No. 09-5307 Abdur’Rahman v. Colson Page 13

verdict.” See Cone, 129 S. Ct. at 1783 (internal quotation marks omitted); cf. Poindexter
v. Mitchell, 454 F.3d 564, 573 (6th Cir. 2006) (“[W]here one is left with pure speculation
on whether the outcome of the trial could have been any different, there is an insufficient
showing of prejudice[.]” (internal quotation marks, citation, and alteration in original
omitted).

AFFIRMED.
No. 09-5307 Abdur’Rahman v. Colson Page 14

_________________

DISSENT
_________________

COLE, Circuit Judge, dissenting. This saga appears to be drawing to an unjust
close. Eleven years ago we reviewed Abdur’Rahman’s ineffective assistance of counsel
claim after the district court found it meritorious and granted Abdur’Rahman a new
penalty-phase trial. See Abdur’Rahman v. Bell (Abdur’Rahman I), 999 F. Supp. 1073
(M.D. Tenn. 1998), aff’d in part and rev’d in part by Abdur’Rahman v. Bell
(Abdur’Rahman II), 226 F.3d 696 (6th Cir. 2000). I agreed with the district court’s
conclusion then because I believed, as I still do now, that had Abdur’Rahman’s lawyer
unearthed the breathtaking deprivations and serious mental impairments that shaped
Abdur’Rahman and used those events and disabilities to paint a human portrait, at least
one penalty-phase juror would have voted to spare his life.

My colleagues disagreed. While leaving undisturbed the district court’s finding
that counsel performed deficiently, they undid its prejudice determination—even though
the Warden had never quarreled with it. See Abdur’Rahman II, 226 F.3d at 708-09.
Deploying the familiar logic of the double-edged sword, the majority obliterated in a few
sentences the mitigating value of Abdur’Rahman’s horrific upbringing—the worst case
of abuse the testifying psychologist had seen in twenty-five years of practice—and litany
of psychotic disorders, with the spectre of his prior violent acts. Id. They reasoned
vaguely that the evidence cut both ways because it “contained a description of
Petitioner’s motive for killing a fellow prison inmate and a history of violent character
traits.” Id. at 709. No matter that competent counsel would have persuasively framed
these prior acts as symptomatic of Abdur’Rahman’s schizoid personality, and then
integrated them into a nuanced depiction of Abdur’Rahman worthy of a juror’s mercy.

The majority’s prejudice analysis was wrong then and it has aged poorly. In
Rompilla v. Beard, 545 U.S. 374 (2005), a case where the petitioner had a similar history
of prior violent acts and suffered from a comparable degree of abuse and psychological
impairment, the Supreme Court held the petitioner was prejudiced by the failure to
No. 09-5307 Abdur’Rahman v. Colson Page 15

present these forms of mitigating evidence, because a defense including such facts would
have borne “no relation to the few naked pleas for mercy actually put before the jury.”
Id. at 393. And, in another case where the petitioner endured an atrocious upbringing
and had a prior history of violence, a unanimous Court granted the writ after rejecting
as objectively unreasonable the Florida Supreme Court’s prejudice determination.
Porter v. McCollum, ___ U.S. ___, 130 S. Ct. 447, 448 (2009) (per curiam). Indeed, the
Court reached this conclusion even though Porter offered in mitigation that he was not
“mentally healthy,” and Porter’s ex-wife testified that Porter had a good relationship
with his son. Id. at 449. Still, the Court found prejudice under AEDPA because “[t]he
judge and jury . . . heard almost nothing that would humanize Porter or allow them to
accurately gauge his moral culpability.” Id. at 454. Abdur’Rahman’s trial was
constitutionally deficient for the same reasons. See Abdur’Rahman II, 226 F.3d at
719-24 (Cole, J., concurring in part and dissenting in part).

This would all be water under the bridge if the majority’s Brady analysis did not
ironically presume that Abdur’Rahman’s counsel was competent. But the fiction that
the defense had the time and aptitude to discover what the prosecution had a
constitutional obligation to provide underpins the majority’s dismissal of the exculpatory
evidence at issue in the instant petition. With respect to the Garafola report, the majority
washes its hands of the prosecution’s deliberate withholding of this evidence by insisting
that Abdur’Rahman’s counsel knew the fuzzy contours of the report and that through
investigation he “should have discovered,” Maj. Op. at 10, the essential facts that it
contained. For the same reason, the majority dismisses compelling evidence from
Devalle Miller’s own mouth that he lied on the stand. See Maj. Op. at 8-9.

The majority’s conclusion that this evidence—proving that the government’s star
witness lied under oath and depicting Abdur’Rahman’s mental deficiency—falls outside
Brady’s scope confounds me. The rationale offered is tenuous. The proposition that
Abdur’Rahman’s testimony could substitute for the impeachment evidence because it
too could be used to contradict Miller, or that, with the magic of cross-examination,
Abdur’Rahman’s counsel could have forced Miller to confess the truth, reflects a poor
No. 09-5307 Abdur’Rahman v. Colson Page 16

understanding of the mechanics of trial. The notion that Abdur’Rahman’s counsel
should have discovered the facts contained in the Garafola report presumes a
competence that, as mentioned above, our prior deficient performance holding belies.
See Abdur’Rahman II, 226 F.3d at 707-09 (leaving undisturbed the district court’s
deficient performance finding).

Still, these findings are of a piece with other significant decisions the majority
has made in this case over the years: declining to find that Abdur’Rahman’s counsel’s
performance prejudiced him, though the state never argued this point; refusing to
cumulate all evidence of prosecutorial misconduct in the instant appeal, though the
Certificate of Appealability (“COA”) permits it, the Supreme Court requires it, see Kyles
v. Whitley, 514 U.S. 419, 436 (1995), and all the constituent claims were exhausted; and
forbidding Abdur’Rahman even to proceed on the instant claims pursuant to Federal
Rule of Civil Procedure 60(b) after a remand from the Supreme Court. See
Abdur’Rahman v. Bell, 493 F.3d 738 (6th Cir. 2007) (vacated en banc Oct. 19, 2007).
To be sure, the majority has put forth support for its positions, as I have for mine; but
viewed at a distance a pattern emerges, and it reveals that the majority’s animating
concern—even in this pre-AEDPA case—has not been to ensure that a conviction was
had without constitutional error, but to efface in the name of federalism, finality, and
comity any errors that were present.

Getting there is easier than you think. It merely requires a ceaseless commitment
to privilege formalism over every other legal value; nowhere is that simpler to do than
in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each
in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all
the errors vanish. The spell does break eventually, when someone looks hard enough
to see past the sleight of hand. Whether the revelation will come to a person with the
authority to spare Abdur’Rahman, and in time, I do not know.
No. 09-5307 Abdur’Rahman v. Colson Page 17

I. Brady Claims

A fair look at the suppressed Brady evidence, in the context of the penalty-phase
trial that actually took place, undermines confidence in the verdict and demands issuance
of the writ. The central issue there was whether Abdur’Rahman’s life should be spared
because he was mentally disturbed. His psychological instabilities explained why he
was susceptible to the Southeastern Gospel Ministry’s quasi-religious and militaristic
message and why he erupted into the uncontrolled violence that resulted in Daniels’s
death. The prosecution rejected this view out of hand, calling it “bunk,”(Penalty-Phase
Tr., App’x at 727), and insisting to the jury that Abdur’Rahman was not impaired in the
slightest. Through the prosecutor’s lens, the jury saw Abdur’Rahman as a base and
depraved killer, in control of his actions, and who had killed wantonly before, in 1972.

To be clear, the prosecutor is required to do battle forcefully. But there are
limits. The Constitution forbade him from fixing the fight by withholding every scrap
of evidence that undermined the state’s case or would have allowed the jury to see
Abdur’Rahman’s actions in a more sympathetic light. The prosecutor knew that
Abdur’Rahman had raised insanity as a defense to the 1972 killing, but rather than
comply with his ethical and constitutional obligations and disclose the transcript of that
proceeding to the defense, the prosecutor lied to defense counsel, telling him that no
evidence mitigated Abdur’Rahman’s prior crime, and (the more pernicious invention)
that it was committed in furtherance of a drug turf-war. The drug-turf-war fabrication
devastated the defense, and the fallout entailed much more than the missed opportunity
to present the suppressed evidence.

Stretched thin by a crushing caseload, defense counsel ran triage on
Abdur’Rahman’s trial, see Mark Curriden, A Life in the Balance, A.B.A. J., Mar. 2011,
at 47; his harried state and the rapport he felt with the prosecutor (they had opposed each
other in several prior cases) explain why the prosecutor’s lies were so terribly successful.
(See Zimmerman Post-Conviction Dep., App’x at 415-22 (admitting he aimed to prevent
defense counsel from “getting into . . . the 1972 murder”)); Curriden, supra, at 51.
Making up a false motive for the prior crime that was consistent with the prosecution’s
No. 09-5307 Abdur’Rahman v. Colson Page 18

theory of the instant one (drug-related robbery) had two mutually reinforcing effects: it
(1) bolstered the trustworthiness of the prosecutor’s core misrepresentation that no
evidence mitigated the prior assault, and (2) left defense counsel with the intimidating
impression that there might be something real in the prosecution’s view of
Abdur’Rahman’s moral culpability. Each of these, working in tandem with defense
counsel’s trust in the prosecution, allowed Abdur’Rahman’s unprepared and overworked
defense counsel to feel the false security that proceeding with his ad hoc trial strategy
and an underdeveloped record would not cause his client harm.

The lie inflicted damage at another level because the prosecutor parroted it to the
professional mental health evaluators at the Middle Tennessee Mental Health Institute
who analyzed Abdur’Rahman’s mental state. (See Zimmerman Letter to MTMHI,
App’x at 268-69.) It is hard to see how the professionals there could correctly assess the
health of Abdur’Rahman’s mind without knowledge of his prior psychosis. So this
single deception created a cascade nullifying every legal and administrative safeguard
meant to ensure that the existence of Abdur’Rahman’s mental deficits reached the jury.
A verdict resulting from a falsehood this disruptive cannot command confidence.

The prosecution’s mayhem continued with the suppression of the Garafola
Report; its depiction of Abdur’Rahman banging his head against every surface of the
police interrogation room would leave any reader with the impression that he was
seriously disturbed. Armed with this evidence, defense counsel not only would have put
on a more persuasive mitigation case to the jury, he also would have received a
signal—in neon lights—urging him to delve further into Abdur’Rahman’s background.
And the report would have prodded defense counsel to seriously doubt the prosecutor’s
representations regarding the 1972 assault, as it quotes Abdur’Rahman saying “I only
killed one man in my life and that was because he was trying to fuck me.” (Garafola
Report, App’x at 173-75.)

Had defense counsel then inquired into the veracity of that statement, he would
have discovered that Abdur’Rahman was involved in a trio of coercive and violent
sexual relationships with other inmates in 1972, (see Elmer Bishop Dep., App’x at 617-
No. 09-5307 Abdur’Rahman v. Colson Page 19

18), and that the man he stabbed in 1972, Michael Stein, was a sexual “predator” who
“preyed on . . . younger, weaker inmates [, like Abdur’Rahman,] for sex.” (Id. at 624.)
Furthermore, when Stein’s mother sued the prison for wrongful death under the Federal
Tort Claims Act, the government took the position, based on an FBI investigation, that
Stein “was a member of a group of inmates who were attempting to apply extortionate
pressures on [Abdur’Rahman] to submit to Stein’s demands for homosexual activities.
The assault . . . [on Stein] arose out of an attempted assault on [Abdur’Rahman]
approximately two weeks earlier by members of this group.” (Id. at 627-28.) The
absence of this evidence depicting an abused man lacking normal psychological brakes,
and the compounding, down-the-line, effects of that omission on an overtaxed defense
counsel, prejudiced Abdur’Rahman.

There is more. Testifying for the prosecution, Devalle Miller sold the lie that
sent Abdur’Rahman down the river. Instead of telling the jury what Miller told the
prosecutors, that he and Abdur’Rahman went to Daniels’s home to further the mission
of the SEGM to stop drug dealing in the community, and that both he and
Abdur’Rahman were given weapons for that purpose by the charismatic leaders of the
group, William Beard and Allen Boyd, Miller recited a motive that dovetailed with the
prosecution’s case for death. In this alternative reality, Abdur’Rahman was the
intimidating figure who compelled Miller to go to Daniels’s house and rob him—end of
story. Miller left out that he had lied to Beard about where he would go into hiding
because Miller was afraid that Beard, Boyd and other SEGM leaders might kill him, a
precaution difficult to square with the notion that Abdur’Rahman alone pulled the
strings. From these facts the jury might readily have concluded that Abdur’Rahman was
similarly intimidated by the SEGM leadership. Had defense counsel known that Miller
had told the prosecution something entirely different, the defense would have nullified
Miller’s testimony and provided more evidence that Abdur’Rahman was fertile ground
for the SEGM’s misguided message.

Lastly, on top of secreting away exculpatory evidence, the prosecutor had the gall
to taint the jury by showing them indictments from Abdur’Rahman’s prior crimes, in
No. 09-5307 Abdur’Rahman v. Colson Page 20

direct contravention of the trial court’s order and the prosecutor’s agreement. Those
indictments revealed more than the admissible fact of the prior conviction, they also
showed a separate robbery charge which never yielded a conviction. Though the jury
was instructed by the trial court to disregard this improper evidence, the prejudicial
effect of the indictments could not so easily be undone. Thus, through means that the
Tennessee Court of Appeals found “bordered on deception” and “improper,” the
prosecution received yet another affirmation of its view of Abdur’Rahman’s character,
one which tracked precisely the prosecution’s theory of the crime of conviction—a
depraved murder/robbery with no mitigating qualities. State v. Jones (Abdur’Rahman),
789 S.W.2d 545, 552 (Tenn. 1990).

How to make sense of these discrete but mutually-reinforcing acts of
malfeasance? The Supreme Court has emphasized that Brady “omission[s] must be
evaluated in the context of the entire record,” United States v. Agurs, 427 U.S. 97, 112
(1976), and then, “collectively, not item by item.” Kyles, 514 U.S. at 436. This is so
because “[t]he proper standard of materiality must reflect our overriding concern with
the justice of the finding of guilt.” Agurs, 427 U.S. at 112. That focus requires us to
consider whether withheld evidence would have “rebutted” the prosecution’s arguments,
Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1786 (2009), shown them to be “false and
misleading,” id., or “len[t] support” to the petitioner’s case for life, id. at 1784. The
evidence suppressed here would have had all those effects. Miller’s prior inconsistent
testimony undercuts dramatically the persuasive value of the prosecution’s case for death
by showing that the testimony of its key witness was false and misleading. See id. at
1783-86 (describing how the Brady evidence substantially enhanced the case for life and
diminished that for death). The transcript from Abdur’Rahman’s 1972 assault trial along
with the Garafola Report lends support to the case for life by strengthening the inference
that Abdur’Rahman was mentally disturbed. Showing the jury the prejudicial
indictments improperly biased it against the defense. The sum of these parts invalidates
the verdict. At least one juror could reasonably be predicted to see the case in a different
light and vote for life after considering all the withheld evidence in mitigation and the
No. 09-5307 Abdur’Rahman v. Colson Page 21

detrimental effect that evidence would have had on the prosecution’s case for death. See
id.; Kyles, 514 U.S. at 435.

The majority’s refusal to conduct this cumulative Brady analysis with the claims
on which the court denied a stand-alone COA (the 1972 transcript and the prejudicial
indictments) has no support in the case law or the instant COA. Smith v. Secretary,
Department of Corrections, 572 F.3d 1327, 1347 (11th Cir. 2009), did hold, as the
majority contends, that procedurally barred individual claims may not be cumulated, but
none of the claims Abdur’Rahman knits together was defaulted; all of them were raised
and exhausted over the long course of this litigation. Moreover, the COA plainly
contemplates a cumulative analysis of the prosecutorial-misconduct claims. (See Jan.
20, 2010 Order at 5 (“Abdur’Rahman is permitted to make cumulative-effect arguments
with respect to the subclaims on which we grant him a COA, even if it involves referring
to factual allegations that underpin prosecutorial misconduct subclaims on which we
have denied his COA request.”).) Finally, the Warden waived any challenge to the
inclusion of that material in the cumulative effect calculus. There is no support in the
law or the record for the majority’s dodge.

II. Brady/Strickland Claim

Abdur’Rahman mounts a final attack by banding together the Brady violations
with his long-settled Strickland claims. See Abdur’Rahman II, 226 F.3d at 707-09. I
agree with Abdur’Rahman that the COA creates no jurisdictional bar to our review of
this hybrid claim because the COA allows Abdur’Rahman to make cumulative effect
arguments related to his Brady subclaims. (See Jan. 20, 2010 Order at 5
(“Abdur’Rahman is permitted to make cumulative-effect arguments with respect to the
subclaims on which we grant him a COA.”).) The clause the majority reads to limit the
scope of those cumulative claims (“even if [bringing cumulative claims] involves
referring to factual allegations that underpin prosecutorial misconduct subclaims on
which we have denied his COA request”) is properly read to provide an example of one
kind of cumulative effect claim, not to limit the permutations of permissible Brady
hybrids. (Id.) Even so, I am constrained to agree with the majority that Abdur’Rahman
No. 09-5307 Abdur’Rahman v. Colson Page 22

procedurally defaulted the Strickland/Brady claim by failing to raise it in state court. See
Keith v. Mitchell, 455 F.3d 662, 679 (6th Cir. 2006) (citing Lorraine v. Coyle, 291 F.3d
416, 447 (6th Cir. 2002)).

Were I able to reach this last claim, I would grant it for the reasons detailed
above. The Brady violations and Strickland ineffective assistance fed off each other at
trial in a perverse symbiosis that infected the verdict with constitutional error. Perhaps
if Abdur’Rahman could have pursued his petition in another circuit his life might be
spared in this procedural posture. See, e.g., Derden v. McNeel, 978 F.2d 1453, 1456-57
(5th Cir. 1992) (permitting a hybrid cumulative error argument where none was raised
below). But I am powerless against our precedent and my colleagues’ contrary views.

III. Conclusion

A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims,
one thing about this case is undeniable: the prosecutor desecrated his noble role. He
failed grossly in his duty to act as “the representative . . . of a sovereignty . . . whose
interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall
be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Abdur’Rahman may face
the ultimate penalty as a result; Justice will bear a scar.

I dissent.