In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1742
ERNEST C. COLLIER,
Petitioner-Appellant,
v.
CECIL DAVIS, SUPERINTENDENT
OF THE INDIANA STATE PRISON,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 00 C 139—Allen Sharp, Judge.
____________
ARGUED APRIL 3, 2002—DECIDED AUGUST 29, 2002
____________
Before COFFEY, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Ernest T. Collier, after unsuc-
cessful direct and post-conviction appeals of his murder
and criminal recklessness convictions in Indiana state
court, seeks federal habeas corpus relief pursuant to 28
U.S.C. § 2254. After the district court denied Collier’s pe-
tition and declined to issue a certificate of appealability,
we issued a certificate of appealability to determine wheth-
er the State’s alleged failure to disclose an understand-
ing or informal agreement of leniency in exchange for
the key witness’s testimony violated Brady v. Maryland,
2 No. 01-1742
373 U.S. 83 (1963). Because Collier has failed to produce
sufficient evidence to support his Brady claim, we affirm
the district court’s judgment.
I. BACKGROUND
A. Facts
More than thirteen years ago, Frederick McGuire was
shot in the head at close range in front of his home in
Indianapolis, Indiana. He died three days later. Although
nobody saw the shooting, the State’s key witness, James
Merrill, testified that Collier was at the McGuire home
and possessed a gun at the time of the shooting. The
relevant portion of his testimony follows.
After a full day of drinking and driving around Indianap-
olis, Merrill went with Collier to a local fast-food restau-
rant, where Collier’s ex-girlfriend worked. While they
were there, Collier got into an argument with his ex-
girlfriend, and then left with Merrill. They drove for a
couple of miles and stopped when they reached a house
on 40th and Webster in Indianapolis. Chris Hollins, Jr.
(“Junior”), Collier’s ex-girlfriend’s brother, was in front
of the house. Junior was also a friend of Frederick Mc-
Guire, the victim. Collier got out of the car, began argu-
ing with Junior, and apparently threatened to shoot him.
While they were arguing, Chris Hollins, Sr. came outside
and told Collier, “You’re not the only one who has a gun.”
The elder Hollins went back inside the house and then
Collier returned to the car. At this point Merrill noticed
Collier was carrying a gun. Collier placed the gun in the
car console.
According to Merrill, he and Collier left Junior’s home
and headed North to 42nd and Catherwood in Indianap-
olis. Collier asked Merrill to drive and the two changed
positions. When they got to 42nd and Catherwood, Collier
No. 01-1742 3
asked Merrill to slow down as they approached a house.
Collier got out of the car and asked Merrill to turn the
car around. Merrill complied and heard a gunshot. At
that point, he also noticed that the car’s open console,
where Collier had originally laid his handgun, was empty.
Merrill drove back to the house on 42nd Street, where
he saw Collier waiting in the yard. Collier returned to the
car, sat down and said, “That’s the way I like to play.”
Merrill’s testimony linked Collier to the murder and
directly contradicted Collier’s claim at trial that Merrill
was the shooter.
Merrill was the only witness who linked Collier, in
possession of a gun, to Frederick McGuire’s home at the
time of the shooting. But other witnesses provided testi-
mony that was consistent with Merrill’s. Michael Johnson,
who lived across the street from McGuire, saw Collier’s
car approach, then saw someone he was later unable to
identify exit the car and shoot McGuire. Another witness,
Cory Wills, testified that he saw Collier in a beige car in the
vicinity of the McGuire house on the afternoon of the
shooting. According to Wills, Collier was sitting in the
passenger’s seat. A third witness, Junior, stated that he
saw Collier with a gun on the afternoon of the shooting.
The police caught Collier the evening of the murder. At
the time of his arrest, Collier was in the passenger’s seat
of a two-door brown car. Collier did not have a gun, and
the results of a gunshot residue test performed on his
hands shortly after the arrest were negative. But after a
search, the police found a slip of paper on Collier with
Merrill’s contact information. Merrill was apprehended
three days later. Although Merrill had been driving in the
car with Collier on the afternoon of the shooting and
was placed and identified in a lineup, he was never charged
with the shooting.
4 No. 01-1742
B. Procedural History
1. Trial
The critical issue at Collier’s trial was Merrill’s testimony
linking Collier to a firearm and placing him at the scene
of the murder. During cross-examination, Collier’s coun-
sel did not ask Merrill whether he had an agreement with
the State to testify against Collier in exchange for leniency
or other benefits. When the prosecutor asked Merrill on
redirect if he had entered into any agreements in exchange
for his testimony, Merrill responded, “I don’t know, [the
detective], just said he talked to my mom. . . .”
Collier took the stand after Merrill testified. Collier
agreed with much of Merrill’s version of that day’s events.
Their testimony began to diverge when recounting the
incidents relating to the shooting. Collier claimed that he
had only a baseball bat in the car and did not possess a
gun. Collier testified that he was driving the car and
dropped Merrill off at the victim’s house. When Merrill
returned to the car, Merrill had a gun in his hand. Merrill
grabbed Collier and said urgently, “Let’s go, man.” Although
Merrill’s and Collier’s testimony were diametrically op-
posed, Merrill was never questioned about the possibility
of his being Frederick McGuire’s murderer. Ultimately,
the jury found Collier guilty of murder, criminal reckless-
ness, and carrying a handgun without a license.
2. Post-conviction proceedings
Collier appealed his convictions directly to the Indiana
Supreme Court. He claimed there was insufficient evi-
dence to support the verdict and that the verdict was
contrary to law. The Indiana Supreme Court affirmed the
convictions. Collier v. State, 562 N.E.2d 722 (Ind. 1990).
Six years later, Collier claimed that he discovered that
a week after the McGuire shooting, Merrill had pled guilty
No. 01-1742 5
to a lesser charge in a burglary case in which he testified
against his co-defendant. Collier also said that he discov-
ered Merrill had a disorderly conduct case pending dur-
ing Collier’s murder trial which was dismissed shortly
after Collier’s conviction and that a criminal reckless-
ness case also pending against Merrill was dismissed a
year after Collier’s conviction. With this information in
hand, Collier filed a post-conviction petition arguing that
his defense counsel had been ineffective, the State had
withheld Brady material, and the State induced Merrill to
testify falsely in order to obtain Collier’s conviction.
Three post-conviction hearings were held; only two
are relevant here. During one post-conviction hearing,
Merrill testified that although he was arrested in connec-
tion with the McGuire murder he was never charged.
Merrill also testified that based on the detective’s state-
ments during the post-arrest interview, it was his under-
standing that he had to “either testify or confess.”
During another post-conviction hearing, Collier’s former
trial counsel, Frederick J. Frosch, testified that although
he never spoke to Merrill before trial, he had a conversa-
tion with one of the prosecutors.1 Although Frosch never
spoke with lead prosecutor Plath about any alleged under-
standings or agreements with Merrill, Frosch claimed
that he did speak with the first prosecutor, who told him
that the investigating detectives made a “verbal statement
to [Merrill] that he would not be charged if he was coopera-
tive.” Frosch also acknowledged that at the time of the
trial he knew that Merrill had received, pursuant to a
plea agreement, a sentence of two years’ probation for his
burglary conviction. After Frosch testified, arresting detec-
1
Two prosecutors were assigned to this case. The first prosecutor
performed only pre-trial work and Richard Plath tried the case
and testified at a post-conviction hearing.
6 No. 01-1742
tive Prater testified and said that he never made any
promises to Merrill in connection with the McGuire mur-
der and that any agreements made with Merrill did not
involve the Collier case.2
After considering the evidence presented at these post-
conviction hearings, the superior court found that the
State complied with the rules of discovery and the evi-
dence “convince[d] the court that no promise was made
to Merrill in return for his testimony.” The superior
court also concluded that Merrill’s testimony was not
perjurious and that Collier’s appellate counsel was not
ineffective for failing to pursue this issue during Collier’s
direct appeal. In the Indiana Court of Appeals, Collier
argued that Merrill had an informal agreement or under-
standing that the State would be lenient in exchange
for his testimony against Collier and that the non-disclo-
sure of this informal agreement or understanding vio-
lated rights guaranteed by state and federal law. See
Wright v. State, 690 N.E.2d 1098, 1113-14 (Ind. 1997)
(citing Giglio v. United States, 405 U.S. 150, 153 (1972)).
The court of appeals affirmed the decision below and re-
jected Collier’s main argument. Collier v. State, 715 N.E.
2d 940 (Ind. Ct. App. 1999).3 Collier then filed a petition to
transfer to the Supreme Court of Indiana, which was de-
nied.
2
Although the precise terms of the dismissal or reduction of
Merrill’s other charges are no longer available, the State testified
at Collier’s post-conviction hearings that any dismissals or
reduction of sentences in those cases had nothing to do with
Merrill’s testimony against Collier.
3
The court of appeals found that Collier’s counsel had been
ineffective on the firearm possession charge and reversed his con-
viction for that offense.
No. 01-1742 7
With his Indiana remedies exhausted, Collier filed a
petition for a writ of habeas corpus in the District Court
for the Northern District of Indiana, pursuant to 28 U.S.C.
§ 2254. The district court, after finding that the Indiana
courts’ rulings were not contrary to Giglio or Brady, dis-
missed the petition and denied a certificate of appeal-
ability. Collier requested that we grant him a certificate of
appealability on his ineffective counsel and Brady claims.
We granted the certificate only on the second issue.
II. ANALYSIS
We review de novo all questions of law arising from a
district court’s decision to grant or deny an application
for writ of habeas corpus. Todd v. Schomig, 283 F.3d
842, 848 (7th Cir. 2002). Collier filed his habeas petition
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (April 24, 1996) (“the AEDPA”). Therefore, the AEDPA
governs our review of Collier’s claims. The record is clear
that Collier exhausted his state remedies, see O’Sullivan
v. Boerckel, 526 U.S. 838, 839 (1999), and has not pro-
cedurally defaulted his Brady claim, see Chambers v.
McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001). Under
these circumstances, a federal court may grant a writ
of habeas corpus only if a petitioner demonstrates that
the state court’s adjudication of the claim was contrary
to or an unreasonable application of federal law as deter-
mined by the United States Supreme Court. See Williams
v. Taylor, 529 U.S. 362 (2000); Boss v. Pierce, 263 F.3d
734, 739 (7th Cir. 2001); 28 U.S.C. § 2254(d)(1).
Collier concedes that the “unreasonable application”
analysis does not apply here, so we focus on whether the
decision of the Indiana Court of Appeals was contrary to
Brady. A state court’s decision is “contrary to” Supreme
Court precedent if: (1) the state court applies a rule that
8 No. 01-1742
contradicts the governing law set forth in Supreme Court
cases or (2) the state court confronts a set of facts that
is materially indistinguishable from a Supreme Court
case but arrives at a different result. Williams, 529 U.S.
at 405. Although Collier’s claim on appeal is somewhat
murky, a generous reading of his argument reveals a
claim pursuant to the “contrary to” reasoning in Wil-
liams—that the Indiana courts contradicted the govern-
ing law of Brady by failing to find that (a) he had pro-
vided sufficient evidence of Merrill’s informal agreement
or understanding and (b) this evidence demanded disclo-
sure prior to trial.
According to Brady, the prosecution must disclose ex-
culpatory evidence if it is both favorable and material to
the defense. 373 U.S. at 87. Giglio expanded the Brady
rule to include impeachment evidence. 405 U.S. at 155.
The Court explained in Giglio that when the government
has entered into an agreement or understanding with a
key witness regarding his prosecution, the credibility of
the witness is at issue and failure to disclose details of
the deal may deny the accused due process. Id.
To establish a Brady violation Collier must demon-
strate that: (1) there was evidence of an agreement or an
understanding; (2) the prosecution suppressed the evi-
dence; (3) the evidence was favorable either because it was
exculpatory or impeaching; and (4) the evidence was
material to the defense. Brady, 373 U.S. at 87; United
States v. Young, 20 F.3d 758, 764 (7th Cir. 1994).
Collier’s case turns on the first two prongs of the Brady
analysis. As to the first prong, Collier and the State dis-
pute whether he has shown evidence of an agreement or
understanding and, with regard to the second prong,
whether the prosecution suppressed any evidence. As to
the third and fourth prongs, the first prosecutor doubted
that he could convict Collier without Merrill and Merrill
No. 01-1742 9
was the only direct witness to the crime. Therefore, the
State cannot seriously dispute that if Merrill had an
informal agreement and it was not disclosed, that evi-
dence would have been impeaching and material to
Collier’s defense. We therefore consider the evidence (and
alleged suppression) of an agreement or understanding,
which are the more difficult aspects of Collier’s Brady
claim.
1. No evidence of an agreement/understanding
Whether or not an agreement or understanding actually
existed is a factual determination. See Abbott v. United
States, 195 F.3d 946 (7th Cir. 1999). The state courts
found that no agreement existed of any kind (informal or
otherwise), and we presume that determination to be
correct unless Collier can rebut it with clear and convinc-
ing evidence to the contrary. See Mahaffey v. Schomig, 294
F.3d 907 (7th Cir. 2002); 28 U.S.C. § 2254(e)(1). Both the
district court and the Indiana Court of Appeals on post-
conviction review agreed with the State’s argument
and concluded that Collier had not provided sufficient
evidence to support the existence of an informal agreement
or understanding. During oral argument here, the State
and Collier conceded that even though the court of ap-
peals exclusively used the term “agreement,” (rather than
“understanding”) in its opinion, that court should have
understood that within the context of this case, the agree-
ment was an informal one—an understanding. Under
Collier’s reading of Giglio, an understanding is created
when the government during an interview or interroga-
tion of a witness makes certain statements that contain
“an implication that the Government would reward the
cooperation of the witness.” See Giglio, 405 U.S. at 153.
Collier claims that, when viewed cumulatively, this
evidence proves that Merrill and the State had an infor-
10 No. 01-1742
mal agreement or understanding: (1) Merrill’s testimony
during the post-conviction hearing; (2) the State’s failure
to file any charges against Merrill in connection with
the McGuire murder; (3) dismissals or favorable treatment
of Merrill’s other cases; and (4) the first prosecutor’s
admission that Merrill’s testimony was material to Col-
lier’s case. Collier says that the state court decisions
were contrary to Brady because they focused only on an
informal “agreement” and failed to explicitly ask wheth-
er there was an understanding—as that term is under-
stood in Giglio.
The State asserts that only a bilateral understanding
of leniency is sufficient to require Brady disclosure, regard-
less of what Merrill may have thought. So, regardless of
the precise words that were used, the Indiana courts
correctly decided the Brady claim, because an “informal
agreement” is the same type of understanding that Collier
failed to prove was reached in this case. The State also
contends that no agreement or promises were made to
Merrill in exchange for his testimony and that Collier’s
evidence does not reflect an agreement or understanding.
Indeed, Detective Prater said that Merrill had been prom-
ised nothing except that the prosecutor would make
the final determination as to whether to file charges based
on Merrill’s testimony.
After a thorough review of the record, we are convinced
that Merrill’s evidence does not show a Brady violation
or evidence of an understanding as interpreted in Giglio.
Merrill’s general and hopeful expectation of leniency is
not enough to create an agreement or an understanding.
See United States v. Baskes, 649 F.2d 471, 477 (7th Cir.
1980) (witness’s hopeful expectation that he could avoid
criminal proceedings if he testified against the accused
did not amount to an undisclosed promise of leniency).
Further, unlike Giglio, Collier has proffered no evidence
of an explicit promise, agreement, or statement made
No. 01-1742 11
to Merrill—either by police officers or state’s attorneys.
We contrast that lack of evidence with the testimony of
both Detective Prater and the trial prosecutor, Richard
Plath, that there was no agreement with Merrill.4
As to Merrill’s “understanding,” the record is not very
clear. At his post-conviction hearing, the Public Defender
asked him “[did] anyone involved in Mr. Collier’s case
promise you or give you anything, like probation on that
case, in return for your testimony?” Merrill responded
that “[it] is possible. I don’t recall. Do you understand what
I’m saying? It is possible.” Later, on cross-examination by
the State, Merrill added “If [the State] did promise me
something, like I said, to my knowledge it was either I
accept or I testify or either I don’t and he would charge
me with something or whatever. Something along that
nature.”
Thus Merrill admits that he was not explicitly told
that he would receive leniency based upon his testimony,
regardless of its content. This admission is also consistent
with the uncontroverted evidence that Merrill attempted
to avoid testifying in this case. Because the State was
unable to locate Merrill before trial, prosecutors sought
and received a continuance. Merrill eventually appeared
at the eleventh hour after his arrest on an outstanding
probation violation. This behavior, while not proof of his
lack of agreement or understanding, certainly does not
sound like the actions of one who knew he would escape
felony charges simply by taking the stand.
Given our deference to the findings of the Indiana
state courts, we cannot conclude that their resolution of
4
At the post-conviction hearing, Plath said “As far as I was
concerned, I had no deal with Merrill. . . . My review of the file
shows no evidence of any deal and I—Boy, I sure would have put
it in writing.”
12 No. 01-1742
Collier’s case was contrary to Brady because Collier has
not proved that an understanding actually existed. If
there was no understanding, there was no impeach-
ment evidence to disclose. In reaching our conclusion,
we note that Collier had two full opportunities in state
court to offer sufficient proof for his theory. Given these
full bites at the apple, we cannot second-guess the deci-
sions of those courts which found that Collier’s trial coun-
sel adequately investigated and pursued this theory—and
came up short.
2. No proof of suppression
Assuming arguendo that Merrill had an implied bilateral
understanding of prosecutorial leniency, Collier would
still be required under Brady to show that the State
suppressed evidence of Merrill’s special treatment. Here,
too, Collier has failed to meet his burden of proof. In or-
der for Collier to establish that the State suppressed
evidence, he must demonstrate that: (1) the State failed to
disclose known evidence before it was too late for him to
make use of the evidence; and (2) the evidence was not
otherwise available to him through the exercise of reason-
able diligence. See Boss, 263 F.3d at 740; United States v.
Earnest, 129 F.3d 906, 910 (7th Cir. 1997).
Collier cannot meet either prong of the suppression test.
Because all of the potential information about Merrill’s
supposed informal agreement or understanding was avail-
able to Collier before trial, Collier cannot show that the
evidence was not otherwise available. One critical reason
why he cannot make this showing is that he could have
fully explored this topic in cross-examination of Merrill
at trial—but did not do so.
As the record shows, Collier’s trial counsel was quite
aware of the likelihood that Merrill had something to
gain from implicating Collier as the triggerman in Mc-
Guire’s murder—namely the possibility that Merrill was
No. 01-1742 13
the shooter and would deflect blame to Collier instead.
Yet all of the questions at trial about Merrill’s burglary
conviction or alleged understanding came on direct and re-
direct examination by the prosecution.5 We cannot fault
the State for failing to more fully explore Merrill’s al-
leged understanding when Collier never bothered to se-
riously inquire about it in the first place.6 Given these
facts, even if a bilateral understanding did exist, Collier
did not exercise reasonable diligence in his efforts to dis-
cover it.
Because Collier had opportunities to explore Merrill’s
motives and unearth any statements by authorities to
Merrill regarding his potential prosecution, Collier’s failure
to provide sufficient proof is fatal to his claim. Further,
Frederick J. Frosch’s admission that the former prosecu-
5
At trial, the prosecution asked Merrill four questions about his
recent burglary conviction. On cross-examination, Frosch asked
no questions about either Merrill’s criminal record or possible
deals in this case. On redirect, the State asked: “Did Detective
Prater promise that you would not be arrested when you talked to
him?” Merrill: “I don’t know. He just said—he talked to my mom
and everything. I don’t know what he said. I don’t even remem-
ber.” State: “Did he say, in fact, that he couldn’t make that de-
cision, that it’d be the prosecutor’s office that would decide
whether or not you’d be charged with anything in connection with
this case that you testified to here today?” Merrill: “I don’t recall.”
On re-cross-examination, Frosch again asked no questions of
Merrill regarding his burglary conviction or any agreements or
understandings to testify against Collier.
6
During Collier’s post-conviction hearing, Collier’s attorney
asked former counsel Frosch: “Did you ever file any pleadings to
request the Court to order the State to disclose any deals made
with any witnesses against Mr. Collier?” Frosch: “That would have
been part of the standard discovery motion, but at that point
in time, I wouldn’t have done it and I can’t recall if my father
[Collier’s first attorney] did or not.”
14 No. 01-1742
tor alerted him to the possibility that there may have
been a “verbal statement made to [Merrill] that he would
not be charged if he was cooperative” demonstrates that
disclosure of Merrill’s alleged understanding, even if re-
quired by Brady, was done prior to Collier’s trial. Therefore,
there was no suppression and no Brady violation.
III. CONCLUSION
Because Collier has not shown that the decisions of
the Indiana state courts are contrary to Brady, we AFFIRM
the district court’s denial of the writ of habeas corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-29-02