IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-30136
_______________________________
ERNEST LEWIS,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-924-F)
_________________________________________________
March 9, 2001
Before WIENER and STEWART, Circuit Judges, and SMITH, District
Judge.*
PER CURIAM**:
Petitioner-Appellant Ernest Lewis (“Lewis”) appeals the
district court’s dismissal of his habeas corpus petition, in which
Lewis alleged that during his armed robbery trial the prosecution
*
District Judge of the Western District of Texas, sitting
by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
suppressed exculpatory evidence in violation of Brady v. Maryland.1
Finding no constitutional error, we affirm the district court’s
decision and dismiss Lewis’s petition.
I.
FACTS AND PROCEEDINGS
Lewis, along with a co-defendant, was convicted after a jury
trial in Louisiana state court in 1985 on two counts of armed
robbery for the holdup of brothers Derrick and Benny Barnes.2 He
was sentenced to 198 years’ imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence. His
conviction was affirmed on direct appeal, but his sentence was
vacated and the case remanded for resentencing.3 On remand, Lewis
was resentenced to 198 years on the first count and 99 years on the
second count.4
In 1999, Lewis filed this successive federal petition for writ
of habeas corpus pursuant to 28 U.S.C.A. § 2254.5 Among other
claims, Lewis advanced that the state violated Brady by failing to
turn over to the defense a supplemental police report relating that
1
373 U.S. 83, 86 (1963).
2
State v. Rattler, 503 So.2d 168 (La. Ct. App. 1987).
3
Id. at 170, 172.
4
See State v. Lewis, 537 So.2d 1315, 1315-16 (La. App. 4th
Cir. 1989).
5
Lewis previously filed for habeas relief in federal court
in 1991.
2
five days after the robbery, Derrick Barnes, the only victim to
identify Lewis at trial, stated that “he did not get a good enough
look at the two men to identify them from photos.” Twelve days
after he made this statement, however, Derrick Barnes identified
Lewis from a photo array, and he repeated the identification at
trial.
In light of the police report newly discovered by Lewis,6 this
court granted him permission to file a successive habeas petition
pursuant to 28 U.S.C.A. § 2254(b)(2)(B).7 The district court for
the Eastern District of Louisiana dismissed the petition with
prejudice on the recommendation of the magistrate judge, who
concluded that Lewis’s failure to obtain the police report before
he filed a previous habeas petition in 1991 “does not equate with
a finding of due diligence” under § 2254(b)(2)(B)(i). The
6
The state concedes that it did not turn over the report
to Lewis at trial. He received it in 1993 on a writ of mandamus
from the Civil District Court for the Parish of Orleans.
7
28 U.S.C.A. § 2254(b)(2)(B) states:
(b)(2) A claim presented in a second or successive
habeas corpus application under section 2254 that was
not presented in a prior application shall be dismissed
unless —— . . .
(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in the light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
3
magistrate judge also recommended that Lewis’s claim be denied on
the merits.
The magistrate judge first noted that the police report, which
was not a verbatim account of the victim’s statements, might not
have been appropriately used for impeachment.8 Additionally, she
pointed out that the defense (1) learned before trial that Barnes
did not make an identification at the initial photographic lineup
and (2) had a full opportunity to cross-examine Barnes about his
identification of Lewis.9 Finally, the magistrate judge noted that
the Louisiana state courts had rejected Lewis’s Brady claim in his
attempts to obtain post-conviction relief in state court,
determinations entitled to great deference by the district court.10
The magistrate judge concluded that, “[w]hen viewed in the context
of the entire trial, the Court does not believe that the outcome of
Lewis’ trial would have been any different had the disputed report
been presented to the defense.” The district court adopted the
magistrate’s report and recommendation and dismissed the petition
8
See, e.g., United States v. Merida, 765 F.2d 1205, 1215-
16 (5th Cir. 1985).
9
Derrick Barnes testified that he identified Lewis’s
picture at the apartment the brothers shared. Actually, he was
unable to identify anyone when the police showed him photographs
there. Benny Barnes accurately testified later in the trial that
Derrick did not identify either robber during the first
photographic showing, but did pick Lewis from a photo array
subsequently shown at police headquarters.
10
See, e.g., Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th
Cir. 1996), overruled in part on other grounds, Lindh v. Murphy,
521 U.S. 320 (1997).
4
with prejudice.
Lewis appealed, proceeding pro se and in forma pauperis. We
granted him a certificate of appealability on the issue whether the
State improperly withheld exculpatory evidence in violation of
Brady.11
II.
ANALYSIS
A. Standard of Review
The standard for collateral federal review of state-court
convictions is given in 28 U.S.C. § 2254(d)12:
An application for writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ——
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
B. Discussion
We agree with the district court that Lewis did not exercise
due diligence within the meaning of § 2254(b)(2)(B)(i). Although
police reports were considered confidential and not subject to
11
Therefore, none of Lewis’s other claims, including an
ineffective assistance of counsel claim rejected by the district
court, are before us.
12
See Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.
1999).
5
disclosure under Louisiana law at the time of Lewis’s trial, they
became public records subject to disclosure through public records
requests effective August 31, 1986.13 Lewis states that he never
had access to the police report that was suppressed at trial, and
that he “had no knowledge of how to obtain any public records but
was assisted by several different prisoners over the years in
seeking discovery and preparation of Habeas Corpus applications.”
The district court noted, however, that in 1988 Lewis sought
post-conviction relief from the state courts on a Brady claim based
on a different police report withheld by the state at trial,
indicating that Lewis knew how to obtain police reports before he
filed his first application for federal habeas corpus relief in
1991. Lewis nevertheless failed to ask the district attorney for
a copy of the file regarding his arrest and prosecution until
October 1992. Because Lewis apparently could have obtained the
supplemental police report here at issue before he filed his first
federal habeas petition, he could have discovered the factual
predicate for this successive petition through the exercise of due
diligence, barring relief under § 2244(b)(2)(B)(i).14
In the alternative, we turn to the merits of Lewis’s claim.
After an accused requests exculpatory material, suppression by the
13
See Hudson v. Whitley, 979 F.2d 1058, 1061 (5th Cir.
1992) (citing State v. McDaniel, 504 So.2d 160, 161 (La. App. 2d
Cir. 1987)); State v. Shropshire, 471 So.2d 707, 708 (La. 1985).
14
See Graham v. Johnson, 168 F.3d 762, 789-90 (5th Cir.
1999), cert. denied, 529 U.S. 1097 (2000).
6
prosecution of favorable evidence violates due process if the
evidence is material either to guilt or to punishment.15 To prove
a Brady violation, a petitioner must show that (1) the prosecution
suppressed or withheld evidence; (2) the evidence was favorable;
and (3) the evidence was material to the defense.16 Brady
encompasses evidence that may be used to impeach a witness’s
credibility.17 Withheld evidence is “material” under Brady “only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.”18 A “reasonable probability” is shown “when the
government’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’”19
We again agree with the district court that there is no
reasonable probability that the result of Lewis’s trial would have
been different had the state disclosed the police report to the
defense. Significant to our determination is the fact that Lewis’s
photograph was not included in the initial array shown to the
victim. That array did include a photograph of Lewis’s co-
15
Brady, 373 U.S. at 87.
16
United States v. Stephens, 964 F.2d 424, 435 (5th Cir.
1992).
17
Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir. 1995)
(citing United States v. Bagley, 473 U.S. 667, 676 (1985)).
18
Bagley, 473 U.S. at 682.
19
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting
Bagley, 473 U.S. at 678).
7
defendant, Donald Lee Williams,20 who was convicted along with Lewis
of the armed robbery of the Barnes brothers. Benny Barnes
identified Williams from the first array; Derrick identified no
one. After Lewis had emerged as a suspect in the holdup, the
brothers were shown a second array less than three weeks after the
crime, which array included Lewis’s photograph, but not Williams’s.
Derrick Barnes identified Lewis; Benny identified no one. These
facts fit the description of the robbery given at trial, in which
the brothers explained that, because of the way that the robbery
transpired and the physical layout of the scene, each of them saw
only one of the perpetrators. Derrick Barnes testified at trial
that he had been able to see Lewis’s face.
The police report unquestionably should have been turned over
to the defense. Nevertheless, on these facts, we are not convinced
that there is a reasonable probability that Lewis would have been
acquitted had the defense obtained access to the withheld report’s
version of the victim’s statement that “he did not get a good
enough look at the two men to identify them from photos.”
III.
CONCLUSION
For the foregoing reasons, we are satisfied that the
supplemental police report is not “material” evidence under Brady,
and that the state adjudication of Lewis’s claim was not contrary
20
Also known as Ray A. Rattler.
8
to federal law or based on an unreasonable determination of the
facts. We therefore affirm the judgment of the district court
dismissing Lewis’s petition for habeas corpus.
AFFIRMED.
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