PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7
ANTHONY BERNARD JUNIPER,
Petitioner-Appellant,
v.
DAVID W. ZOOK, Warden, Sussex I State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:11-cv-00746-JAG)
Argued: September 15, 2017 Decided: November 16, 2017
Before GREGORY, Chief Judge, WYNN and DIAZ, Circuit Judges.
Vacated in part and remanded by published opinion. Judge Wynn wrote the opinion, in
which Chief Judge Gregory and Judge Diaz concurred.
ARGUED: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: Elizabeth Hambourger, Johanna Jennings, CENTER FOR DEATH
PENALTY LITIGATION, Durham, North Carolina, for Appellant. Robert E. Lee, Jr.,
VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville,
Virginia, for Appellant. Mark R. Herring, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
WYNN, Circuit Judge:
Following a bifurcated jury trial in the Circuit Court, City of Norfolk, Virginia, a
jury convicted and sentenced to death Petitioner Anthony Juniper (“Petitioner”) for the
January 16, 2004 murders of Keshia Stephens, her younger brother Rueben Harrison, and
her two daughters Nykia Stephens and Shearyia Stephens. After unsuccessfully pursuing
collateral relief from his conviction and death sentence in Virginia courts, Petitioner filed
an action under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of
Virginia against Respondent David W. Zook, in his official capacity as Warden, Sussex I
State Prison (“Respondent”). Before the district court, Petitioner asserted numerous bases
for relief, including that his prosecutors failed to turn over certain pieces of “material”
exculpatory and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963). The district court granted Petitioner limited documentary discovery, denied
Petitioner’s request for an evidentiary hearing, and rejected all of Petitioner’s claims and
dismissed his petition.
After conducting a careful review of the record, we conclude that the district court
abused its discretion in dismissing Petitioner’s Brady claim without holding an evidentiary
hearing because it failed to assess the plausibility of that claim through the proper legal
lens. Accordingly, we vacate the district court’s decision as to the Brady claim and remand
the case to the district court for further proceedings consistent with this opinion. 1
1
Petitioner obtained a certificate of appealability as to three additional claims. The
first and second claims, which Petitioner raised pursuant to the Supreme Court’s opinion
in Martinez v. Ryan, 566 U.S. 1 (2012), asserted (1) that Petitioner’s state trial counsel
2
I.
A.
According to the evidence presented at trial, Petitioner and Keshia Stephens had
been involved “in an on-again, off-again tumultuous relationship for approximately two
years.” Juniper v. Commonwealth, 626 S.E.2d 383, 394 (Va. 2006). On the morning of
the murders, Renee Rashid, who testified under a grant of immunity, took Petitioner to
Keshia’s apartment to retrieve some of his belongings. Rashid and Petitioner arrived at the
apartment, which was on the second floor of a building in Norfolk, Virginia, at
approximately 10:20 a.m. While in the apartment, Rashid heard Petitioner and Keshia
arguing, with “Keshia repeatedly ma[king] comments such as, ‘[T]here’s nobody but you.
I told you I’m not seeing anybody but you.’” Id. at 393. Rashid left the apartment, and
Petitioner remained behind. Rashid testified that as she drove away, “she heard four
‘booms,’ which she described as ‘sound[ing] like gunshots.’” Id.
failed “to properly challenge the prosecutor’s violation of Batson v. Kentucky, 476 U.S. 79
(1986),” Juniper v. Zook, 117 F. Supp. 3d 780, 787 (E.D. Va. 2015), and (2) that his state
trial counsel failed “to make a constitutional objection to the trial court’s exclusion of
expert testimony on [Petitioner’s] future dangerousness,” id. The final claim alleged that
Petitioner’s appellate counsel failed to appeal an objection that the jury instructions did not
require the jury to find each aggravating factor unanimously and beyond a reasonable
doubt. Juniper v. Pearson, No. 3:11–cv–00746, 2013 WL 1333513, at *43 (E.D. Va.
March 29, 2013), vacated in part sub nom. Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013).
Because we conclude the district court improperly dismissed Petitioner’s Brady claim
without holding an evidentiary hearing, we decline to resolve Petitioner’s remaining three
claims as those claims would be moot if the district court rules in Petitioner’s favor on the
Brady claim and awards Petitioner a new trial.
3
Rashid drove to the house of Gwendolyn Rogers, Petitioner’s mother, where she
met Rogers and Keon Murray, a friend of Petitioner. Murray, also testifying under a grant
of immunity, said that while at Rogers’s house he received a call from Petitioner, which
originated from Keshia’s phone number. According to Murray’s testimony, Petitioner told
Murray over the phone that “They gone,” and that Petitioner “killed them,” but did not
name whom he had killed. Id. at 395.
Murray then called his friend Tyrone Mings, a twice-convicted felon who lived with
his girlfriend, Melinda Bowser, one block from Keshia’s apartment building. According
to Mings’s testimony, Murray asked Mings to check on Keshia’s apartment because
“[Murray] heard some shots.” J.A. at 412. Some time later, Mings walked down the street
to Keshia’s apartment and found that Keshia’s front door appeared to have been “kicked
in.” Juniper, 626 S.E.2d at 395.
Upon entering Keshia’s apartment, Mings testified that he saw [Petitioner]
standing in the living room with a white substance on his face and holding
an automatic pistol. When Mings asked [Petitioner] about Keshia,
[Petitioner] directed Mings to the back of the apartment. Upon entering the
master bedroom, Mings saw Rueben and a young girl lying on the bed.
Mings did not see Keshia and asked [Petitioner] where she was. [Petitioner]
told Mings she was “between the bed and the dresser.” Mings returned to
the bedroom and called to the people in the room, but no one answered.
Mings departed Keshia’s apartment, leaving [Petitioner] in the living room,
still holding the pistol.
Id. Mings testified that he then returned to his apartment and told Bowser what he had
seen at Keshia’s apartment.
Meanwhile, according to Rashid’s and Murray’s testimony, Rashid and Murray left
Rogers’s apartment in Rashid’s car, picked up Petitioner’s cousin, John Jones, and
4
proceeded to Keshia’s apartment building. While Rashid waited in the car, Murray and
Jones got out of the car and searched for Petitioner. Jones called out several times for
Petitioner to “[c]ome out.” J.A. 406. Petitioner came down to the car and got into the
passenger seat, beside Rashid. Murray and Jones got in the back seats. Both Rashid and
Murray testified that Petitioner was holding a handgun when he got in the car. Id. at 390,
408. Rashid further testified that Petitioner “appeared to be jittery” and “was breathing
real hard.” Id. at 389. And according to Murray, Petitioner “look[ed] nervous.” Id. at 407.
After telling Bowser what he had seen, Mings walked back from his apartment
toward Keshia’s apartment. Mings testified that while he was walking to Keshia’s
apartment, he saw Petitioner, Murray, and Jones leaving Keshia’s apartment. Mings then
observed Petitioner, Murray, and Jones get into a car, which was driven by “a female,” and
drive off. Id. at 415-17. At that point, Mings walked back to his apartment. Mings testified
that when he returned to his apartment, Bowser called the police. At trial, a Norfolk Police
officer testified that at 12:44 p.m. he responded to a call reporting a disturbance and
possible gunshots at Keshia’s apartment. The officer, who was later joined by another
officer, walked around the complex, talked to two residents, and, finding nothing troubling,
“left the apartment complex believing the call to have been a false report.” Juniper, 626
S.E.2d at 395.
Meanwhile, Rashid drove Petitioner and Jones to Jones’s apartment, and then
returned to her own apartment. Rashid testified that, after arriving at home, she called
Petitioner’s mother. Phone records introduced at trial established that this call occurred at
1:10 p.m.
5
In the meantime, Mings walked back to Keshia’s apartment a third time, this time
accompanied by Bowser. On the way to her apartment, Mings and Bowser saw the officers
who had responded to the 12:44 p.m. call leave. Mings and Bowser returned to their
apartment, and Bowser called the police a second time. At approximately 2:20 p.m., a
large number of Norfolk Police Department officers responded to a second call regarding
a disturbance at Keshia’s apartment. Mings and Bowser were waiting outside the
apartment when the officers arrived. Mings testified that he told the officers there were
victims inside, but did not tell the officers that he had observed Petitioner inside the
apartment with a gun because Mings “feared for [his] safety.” J.A. 419.
One of the officers who responded to the 2:20 p.m. call testified that, when he
reached the front door of Keshia’s apartment, the “whole center part of the door was
completely knocked . . . inward into the apartment, and wooden debris from the door was
lying inside the apartment.” Juniper, 626 S.E.2d at 395. Upon entering the apartment,
officers found
Nykia’s body lying across Rueben on the bed in the master bedroom. They
then observed Shearyia’s body lying across Keshia’s body on the floor beside
the bed. The officers received no response from any of them. . . .
All four victims . . . died as a result of gunshot wounds. Keshia was stabbed
through her abdomen, shot three times, and grazed by a fourth bullet. . . .
The stab wound did not fatally wound Keshia, but tore through the muscle of
her abdominal wall. There was a great deal of blood accompanying the
wound, however, which led the medical examiner performing the autopsy to
conclude that the stab wound was probably the first injury inflicted on
Keshia. . . . Two-year old Shearyia was shot four times while in her mother’s
arms. . . . Rueben Harrison was shot three times. . . . Four-year old Nykia
was shot one time behind her left ear.
Id. at 394–95.
6
At the crime scene, police officers found the handle and blade of a steak knife, which
originally were joined. According to expert testimony, the “stab wound was consistent
with a wound that would have been caused by the knife blade found at the scene of the
crime.” Id. at 394. Investigators found Petitioner’s latent thumbprint on the part of the
knife blade nearest the handle, and Petitioner’s DNA on the knife handle. Investigators
also found a cigarette butt bearing Petitioner’s DNA at the threshold of the apartment.
Although law enforcement officers never recovered the firearm used to kill the
victims, a firearms expert concluded “the bullets recovered from the victims’ bodies were
fired from a single nine-millimeter, Luger semi-automatic pistol.” Id. at 395. At the crime
scene, law enforcement officers found an ammunition box that contained the type of bullets
used to kill the victims, as well as a number of cartridges and cartridge casings. Although
the investigators did not identify any prints of value on the cartridges or cartridge casings,
they did find a print of value on the ammunition box. Investigators could not identify to
whom the print on the ammunition box belonged, but concluded it was not Petitioner. On
the bed in the master bedroom, beside the victims, law enforcement officers found an
ashtray with a cigarette butt. DNA found on the cigarette butt belonged to an “unknown
individual,” not Petitioner nor any of the victims. J.A. 385.
B.
On April 7, 2004, a grand jury indicted Petitioner for capital murder, use of a firearm
in commission of a felony, and statutory burglary. A jury convicted Petitioner of four
counts of capital murder, statutory burglary while armed with a deadly weapon, and four
7
counts of use of a firearm in commission of a felony. Juniper, 626 S.E. 2d at 393.
Following a separate sentencing hearing, the jury sentenced Petitioner to death.
Petitioner directly appealed his conviction and death sentence to the Supreme Court
of Virginia, asserting numerous grounds for relief. Finding no reversible error, the
Supreme Court of Virginia affirmed Petitioner’s conviction and sentence on March 2,
2006. Id. at 427–28.
On December 11, 2006, Petitioner filed a petition for state collateral relief. The
120-page petition exceeded the relevant 50-page limit, and Petitioner concurrently filed a
motion for relief from the page limitation. The Supreme Court of Virginia denied
Petitioner relief from the page limit and directed Petitioner to refile his petition in
compliance with the 50-page restriction. Petitioner refiled his state collateral relief petition
on March 2, 2007, alleging, among other claims, that the prosecution failed to turn over
material exculpatory evidence, that the prosecution failed to correct testimony it knew to
be false, and that he was denied effective assistance of trial counsel. Petitioner also twice
moved the court to permit additional factual development, specifically requesting, among
other materials, that the court “order the Commonwealth to provide habeas counsel copies
of all taped, typed, or otherwise memorialized interviews or statements taken in connection
with investigating [Petitioner in] the above-captioned case.” J.A. 746. Respondent
opposed Petitioner’s request for discovery, twice representing that Petitioner “was
provided everything required by law[.]” Id. at 682, 764. On March 4, 2011, the Supreme
Court of Virginia denied Petitioner’s request for additional factual development and
8
dismissed his habeas petition. Juniper v. Warden of Sussex I State Prison, 707 S.E.2d 290,
311 (Va. 2011).
In 2011, the lead investigator in Petitioner’s case, Detective R. Glenn Ford, was
federally prosecuted for and convicted of taking bribes from drug defendants in exchange
for falsely representing to judges and prosecutors that those defendants had cooperated in
homicide investigations. During that prosecution, it was revealed that investigative notes
maintained by Ford related to Petitioner’s case had not been turned over to Petitioner’s trial
counsel. Among several pieces of allegedly exculpatory information included in the
investigative notes, the notes stated that, in the immediate aftermath of the murders,
investigators interviewed one of Keshia’s neighbors, Wendy Roberts, and asked her to
view a photo line-up. Petitioner’s trial counsel did not know that Wendy had discussed
Petitioner’s case with investigators.
Investigators assisting in Petitioner’s habeas proceedings approached Wendy, who
provided an affidavit averring that the night before the murders she heard a man and woman
arguing in Keshia’s apartment. She heard arguing again the following morning. And then
in the afternoon, as she was taking her dog outside, she heard “a series of loud pops.” J.A.
885. Soon after, a man came down the stairs from Keshia’s apartment and told Wendy
“What the fuck are you looking at lady?” Id. at 886. The man then got into an “older”
“large four-door car” (not a truck, van, or SUV) and drove off. Id. Wendy stated that the
man, who was one of three African-American men who regularly visited Keshia’s
apartment, was the only person in the car. Wendy further averred that this occurred
9
sometime between 1:00 and 2:30 p.m. and approximately five minutes before a large
number of police officers arrived.
Wendy’s son, Jason, also provided an affidavit to Petitioner’s habeas investigators.
Jason, who lived with Wendy at the time of the murders, averred that he heard “gunshots”
and looked out his window and saw an African-American man running to a car parked in
front of Keshia’s building. Id. at 888. Jason said he immediately ran outside and saw the
man get into the driver’s seat of the car and drive off. According to Jason, within five
minutes, approximately thirteen police officers arrived.
Attaching the Roberts’s affidavits and the investigative notes, Petitioner filed with
the Supreme Court of Virginia a new motion seeking factual development related to the
newly uncovered evidence. Petitioner’s motion specifically sought, among numerous
requests:
All documents, reports, records, notes, memoranda, and recordings of
whatever sort and in whatever meeting medium of meetings and contact
between law enforcement authorities for the Commonwealth (including
prosecutors, police, and agents or representatives of the Commonwealth) and
Melinda Bowser, Tyrone Mings, Kevin Waterman, Wendy Roberts, Jason
Roberts, Bernadette Patterson, John Jones, Jr., Sharon Louise Shell, Derrick
‘Breon’ Banks, Renee Rashid, Keon Murray, and Carlisha Stephens, that in
any way involved the investigation or prosecution of [Petitioner] for murder,
capital murder, or related offenses.
Id. at 920. Respondent opposed Petitioner’s request for additional factual development,
arguing that the motion was untimely and that Petitioner’s “assertion of a Brady violation
is without merit.” Id. at 890–91. Petitioner also filed a second petition with the Supreme
Court of Virginia seeking collateral relief from his conviction based on the newly
uncovered information. The Supreme Court of Virginia denied the second petition on the
10
ground that it was not timely filed and denied the request for additional factual
development.
On January 30, 2012, having exhausted his state remedies, Petitioner filed a petition
for writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern
District of Virginia. The federal habeas petition asserted many of the same bases for relief
as Petitioner’s state habeas petitions, and also asserted a claim under Brady related to the
withheld Roberts evidence. Petitioner sought extensive discovery related to the
information revealed in the withheld investigative notes. Respondent opposed Petitioner’s
request for discovery and moved to dismiss the petition. In opposing Petitioner’s request
for discovery, Respondent again represented that Petitioner “received all the discovery that
state and constitutional law required at his trial.” Warden’s Opp. to Pet’r’s Mem. in Supp.
of Mot. for Leave to Conduct Disc., Juniper v. Pearson, No. 3:11-cv-746, at 4 (E.D. Va.
Aug. 6, 2012), ECF No. 64.
After initially denying Petitioner’s discovery request in its entirety, the district court
granted Petitioner limited documentary discovery regarding the Roberts’s statements to
investigators. In particular, the district court ordered production of the following
documents:
1. Notes, reports, and memoranda—whether handwritten, typed, dictated, or
transcribed—relating to or including information about conversations between the
Norfolk Police Department and Wendy Roberts or Jason Roberts on or about
January 16-17, 2004.
2. Notes, reports, and memoranda—whether handwritten, typed, dictated, or
transcribed—from the Norfolk Police Department officers who showed Wendy and
Jason Roberts a photo lineup at their home on January 17, 2004, or were present
when they viewed that photo lineup, regarding this interaction with them.
11
3. The photo lineup shown to Wendy and Jason Roberts on January 17, 2004, along
with the names and identifying information of each person whose photograph was
included in the lineup.
4. Any memoranda, letters, or notes—whether handwritten, typed, dictated, or
transcribed—between the Norfolk Police Department personnel and the Norfolk
Commonwealth Attorney’s Office regarding Wendy and Jason Roberts, the photo
lineup they viewed, statements they made, and conversations they had with Norfolk
Police Department personnel.
J.A. 1147.
In response to the district court’s discovery order, the State produced three pages of
typed investigative notes from Petitioner’s case, a six-picture photo array, and sworn
affidavits from Deputy Commonwealth’s Attorney Phillip G. Evans II, who handled
Petitioner’s case at trial, and Detective William A. Conway of the Norfolk Police
Department, who participated in the investigation of the Stephens’s murders. Two pages
of the typed notes were excerpted from the investigative notes Petitioner had already
obtained as a result of Ford’s criminal trial. The final page of notes was purportedly
prepared by Investigator D.I. Jones, who worked in the Norfolk Police Department’s
Forgery Unit and also responded to the Stephens’s murders. Investigator Jones’s notes
reported that he interviewed Wendy and Jason Roberts on the day of the murders, who,
according to the notes, stated as follows:
Ms. Roberts stated that on 1-16-04 about 9:30 to 10AM a B/M in an older
red Toyota pulled into the apt lot and was arguing with a B/F. She stated that
they argue about three or four times a week. She thinks he is an ex-boyfriend.
He came back around 12:30 or 12:45 today and they were arguing again. She
heard the B/M tell the female that she had not better be there when he
returned. About 1:30 PM today she heard what she thought was firecrackers.
She said it was three or four bangs. She said the female moved into apt 1
around Christmas time. She said the B/M comes around in the Toyota all
hours of the day and night and beeps the horn for her. He comes around the
12
apt about 7:30 AM each morning wanting to see the kids. She said the male
is about 6-2 150 lbs late 20’s in an older red Toyota like a Corolla. 2 The
female is small 5-1 in her 20’s. 3 There is also another B/M that drives a older
blue and white Ford 150 with a white camper shell that also goes to the apt.
He is a very large fat guy. Jason was not home at the time of the argument,
but has seen the people and the vehicles many times. He also heard the bangs
when he got home and thought it was someone hammering. Both will call if
they see the vehicles and will write down the license plates. The[y] believed
there were 3 children that lived there, but they were not sure.
Id. at 1161. According to the investigative notes revealed in Ford’s trial, on the night of
the murders Ford and Detective Conway “spoke with Wendy Roberts, whose statement
was consistent with that of the interview given to Detective D.I. Jones.” Id. at 1162.
Deputy Commonwealth’s Attorney Evans’s and Detective Conway’s affidavits highlighted
several inconsistencies between Jones’s notes and Wendy’s 2011 affidavit, and Detective
Conway further averred that the “2011 Affidavit included numerous assertions which she
never said to me on January 17, 2004[.]” Id. at 1175.
Deputy Commonwealth’s Attorney Evans’s and Detective Conway’s affidavits
stated that the State could not confirm that the six-photo array, which included Petitioner,
was the array shown to Wendy on the day of the murders, but that the array was in the
State’s file and resembled the black-and-white array Detective Conway recalled showing
2
At the time of the murders, Petitioner was 6-1, weighed over 300 pounds, and did
not drive a Toyota.
3
Wendy’s description of the black female resembled Keshia. Juniper, 2013 WL
1333513, at *14 n.8 (noting that Wendy’s description of the black female was “similar” to
appearance of Keshia and that Keshia moved into the apartment at the time Wendy said
the black female moved into the apartment).
13
to Wendy on the night of the murders. 4 According to the investigative notes, Wendy,
although not “100 percent sure[,] . . . picked out the lower left” photo, which was not
Petitioner. Id. at 1163.
Deputy Commonwealth’s Attorney Evans’s affidavit also described the
prosecution’s rationale for not disclosing the Roberts materials to Petitioner’s trial counsel
before trial. According to Deputy Commonwealth’s Attorney Evans, a 911 chronology—
which, according to Petitioner, the prosecution also did not disclose to Petitioner’s trial
counsel—coupled with Mings’s trial testimony that Petitioner committed the murders
before Mings first called 911, “clearly proved that the murders of the four victims occurred
prior to the first Norfolk Police Department response initiated at 12:44 p.m. on January 16,
2004.” Id. at 1156. Deputy Commonwealth’s Attorney Evans’s affidavit further
maintained that the Roberts materials were not “material[ly]” exculpatory—and thus not
subject to disclosure under Brady—because (1) “Wendy Roberts’ statements on January
16, 2004 were factually inconsistent with the documented event chronology of the Norfolk
Police Department response and activities in and around [Keshia’s apartment] on January
16, 2004” and (2) “[t]he objective record to include the 911 calls [Event Chronology] and
the eyewitness statements [memorialized on the 911 calls] proves that the murders did not
occur at 1:30 p.m. [Roberts’s statement in 2004] or ‘between 1:00 p.m. and 2:00 p.m.’ [per
4
Petitioner subsequently amended his petition to assert a claim under California v.
Trombetta, 467 U.S. 469 (1984), premised on the government’s failure to preserve
evidence establishing whether the line-up was the one in fact shown to Wendy. It is unclear
from the record whether the district court resolved that claim.
14
Roberts’ 2011 Statement].” Id. at 1159–60 (final four bracketed phrases retained). Deputy
Commonwealth’s Attorney Evans and Detective Conway further averred that, based on a
thorough review, the documents produced in response to the district court’s order were all
documents in the Commonwealth’s files responsive to the order.
After receiving the additional materials, Petitioner moved the district court for leave
to conduct additional documentary and deposition discovery, asserting that “the affidavits
and attached exhibits raise additional questions” warranting such discovery. Id. at 1195.
Respondent again opposed further discovery. The district court denied Petitioner’s request
for additional discovery on March 12, 2013.
On March 23, 2013, the district court denied Petitioner’s Section 2254 petition in
its entirety. Juniper, 2013 WL 1333513, at *1. Regarding the Brady claim premised on
the Roberts materials, in particular, the district court concluded that the Roberts materials
were exculpatory and impeaching and improperly withheld, but nonetheless denied
Petitioner relief because it concluded that the Roberts materials failed to satisfy Brady’s
“materiality” requirement. Id. at *14–17. In reaching its decision, the district court elected
not to hold an evidentiary hearing on grounds that the facts alleged by Petitioner were
insufficient, even if proven true, to entitle Petitioner to relief. Id. at *16 n.10. The district
court granted a certificate of appealability as to Petitioner’s Brady claim related to the
withheld Roberts statements.
II.
On appeal, Petitioner argues that the district court erred in dismissing on the merits
his Brady claim premised on the withheld Roberts materials, or, in the alternative, that the
15
district reversibly erred in dismissing the Brady claim without conducting an evidentiary
hearing and allowing further factual development. For the reasons that follow, we conclude
that the district court reversibly erred in ruling on the merits of Petitioner’s Brady claim
without holding an evidentiary hearing, and therefore do not reach Petitioner’s contention
that the district court incorrectly denied that claim on the merits.
A.
We review a district court’s decision to deny a habeas petitioner an evidentiary
hearing for abuse of discretion. Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006). “In
conducting such a review, we are mindful that, by definition, a court abuses its discretion
when it makes an error of law.” Id. (internal quotation marks and alterations omitted). “A
petitioner who has diligently pursued his habeas corpus claim in state court is entitled to
an evidentiary hearing in federal court, on facts not previously developed in the state court
proceedings, if the facts alleged would entitle him to relief, and if he satisfies one of the
six factors enumerated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 313
(1963).” 5 Id.
5
The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state hearing; (2)
the state factual determination is not fairly supported by the record as a
whole; (3) the fact-finding procedure employed by the state court was not
adequate to afford a full and fair hearing; (4) there is a substantial allegation
of newly discovered evidence; (5) the material facts were not adequately
developed at the state-court hearing; or (6) for any reason it appears that the
state trier of fact did not afford the habeas applicant a full and fair fact
hearing.
16
A petitioner diligently has pursued his habeas claim in state court if he “‘made a
reasonable attempt, in light of the information available at the time, to investigate and
pursue claims in state court.’” Id. at 589 (quoting Williams (Michael) v. Taylor, 529 U.S.
420, 435 (2000)). “At a minimum, a diligent petitioner must ‘seek an evidentiary hearing
in state court in the manner prescribed by state law.’” Id. (quoting Williams, 529 U.S. at
437)). “Importantly, . . . in determining whether a petitioner has been diligent, the question
is not whether the facts could have been discovered but instead whether the prisoner was
diligent in his efforts.” Wolfe v. Johnson, 565 F.3d 140, 167 (4th Cir. 2009) (“Wolfe I”)
(internal quotation marks omitted). Under this standard, Petitioner diligently pursued in
state court his Brady claim premised on the withheld Roberts statements. In particular,
Petitioner repeatedly requested that the Commonwealth turn over all records related to its
investigation of his role in the Stephens’s murders, including notes and summaries of
potential witnesses, like the Roberts. And after obtaining the investigative notes revealed
in Ford’s trial, Petitioner unsuccessfully sought to reopen his state habeas proceedings and
specifically requested further discovery and an evidentiary hearing related to the Roberts
materials, only to have those requests denied on timeliness grounds.
The parties also do not dispute that Petitioner can satisfy at least one of the six
factors set forth in Townsend. Specifically, state courts did not afford Petitioner the
opportunity to develop the facts underlying his Brady claim premised on the withheld
Roberts materials and dismissed the claim without addressing the merits. See Conaway,
Townsend, 372 U.S. at 313.
17
453 F.3d at 590 (holding fifth Townsend factor satisfied when the petitioner had “never
been afforded an opportunity to develop the facts underlying the Juror Bias claim”); see
also Wolfe I, 565 F.3d at 170–71 (stating that habeas petition asserting Brady claim
premised on exculpatory and impeachment evidence withheld by prosecution likely
satisfied the first, fourth, and fifth Townsend factors).
The key question, therefore, is whether Petitioner has alleged facts sufficient to
obtain relief under Section 2254. Conaway, 453 F.3d at 582. We evaluate the sufficiency
of Petitioner’s factual allegations “pursuant to the principles of Federal Rule of Civil
Procedure 12(b)(6).” Wolfe I, 565 F.3d at 169. Under that standard, we determine whether
the petition “states ‘a claim to relief that is plausible on its face.’” United States ex rel.
Oberg v. Penn. Higher Educ. Assist. Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “In doing so, we construe facts in
the light most favorable to the plaintiff . . . and draw all reasonable inferences in his favor.”
Id. (internal quotation marks omitted); Wolfe I, 565 F.3d at 169 (“[U]nder the Rule 12(b)(6)
standard, the court is obligated to assume all facts pleaded by the § 2254 petitioner to be
true.” (internal quotation marks and alterations omitted)).
To prevail on his Brady claim, Petitioner must establish: (1) “[t]he evidence at issue
[is] favorable to [Petitioner], either because it is exculpatory, or because it is impeaching;”
(2) “that evidence [was] suppressed by the State, either willfully or inadvertently;” and (3)
18
“prejudice [] ensued.’” Banks v. Dretke, 540 U.S. 668, 691 (2004). 6 The district court
concluded—and we agree—that Petitioner alleged sufficient facts to “meet[] the first prong
of the Brady test without any difficulty.” Juniper, 2013 WL 1333513, at *15. In particular,
the Roberts materials were exculpatory because, among other reasons, by indicating that
Keshia was alive at 12:30 p.m., they “contradict[ed]” the prosecution’s theory that the
murders occurred at 11:45 a.m.; they “peg[ged] the murders to a time when the
prosecution’s eyewitnesses all claimed [Petitioner] had already fled the scene”; and they
identified an alternative perpetrator who bore no resemblance to Petitioner, “drove a car
that obviously did not belong to [P]etition[er],” and “may have been angry with Stephens,
and even threatened her not to stay on the premises any longer, just hours before someone
killed her.” Id. at *14–15. Likewise, we agree with the district court that Wendy’s
identification of someone other than Petitioner in the photo array was exculpatory because
“[a]n eyewitness account pointing to a different suspect undoubtedly constitutes
6
Respondent asserts that Petitioner procedurally defaulted his Brady claim because
the Supreme Court of Virginia dismissed Petitioner’s second petition, which raised that
claim, as untimely. “Under the well-established doctrine of procedural default, a federal
habeas court may not review a claim that a state court has found to be clearly and expressly
defaulted under an independent and adequate state procedural rule unless the prisoner can
demonstrate [1] cause for the default and [2] prejudice resulting therefrom or demonstrate
that a failure to consider the claims will result in a fundamental miscarriage of justice.”
Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir. 1999). The Supreme Court, however, has
recognized that the “cause” and “prejudice” requirements to excuse a procedural default
“‘parallel two of the three components of the Brady violation itself’”—“suppress[ion]” of
evidence amounts to “cause” and the materiality requirement addresses “prejudice.”
Banks, 540 U.S. at 691 (quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).
Accordingly, if Petitioner succeeds on his Brady claim he “necessarily” meets the
requirement to excuse his procedural default. Wolfe v. Clarke, 691 F.3d 410, 419–20 (4th
Cir. 2012) (“Wolfe II”).
19
exculpatory material.” Id. at *15; see also, e.g., Hart v. Mannina, 798 F.3d 578, 588 n.1
(7th Cir. 2015) (“Whether recorded or not, any time a witness is presented with a photo
array, is asked to identify a suspect, and then fails to identify the suspect, if anyone in the
photo array is later prosecuted, he will be entitled under Brady . . . to know about the non-
identification.”).
The district court also correctly determined that the Roberts materials were
impeaching. As the district court explained, “if Roberts saw Stephens alive [at 12:30 to
12:45 p.m.], such an observation would have impeached Tyrone Mings’ testimony about
going to the apartment, seeing the petitioner with a gun after he committed the murders,
and seeing petitioner gesturing to Stephens’ dead body[.]” Juniper, 2013 WL 1333513, at
*14. Roberts’s statement that Keshia was alive at 12:30 and that she heard sounds
resembling gunshots later in the afternoon also would cast doubt on Rashid’s testimony
that she heard gunshots as she left the apartment earlier in the morning and Murray’s
testimony that, in the morning phone call, Petitioner admitted to committing the murders.
Id. Put simply, “the Roberts’ 2004 eyewitness accounts, as memorialized by D.I. Jones’
typed notes and confirmed by Detectives Conway and Ford in their interview of Wendy
Roberts, flatly contradicted those of the prosecution’s key witnesses: Rashid, Mings, and
Murray.” Id.
Regarding the second Brady element—suppression—the district court held that “the
record before the Court compels the conclusion that the prosecution did not give the
defense information about the Roberts[,]” noting that “[t]he Court has seen no sign in the
voluminous record that the Roberts’ names came up before the police corruption
20
prosecution.” Id. at *15. The district court further stated that if, as Respondent maintained
before the district court,
it is “highly likely that the prosecutor did provide the information to
[Petitioner’s] trial counsel,” then why has [Respondent], throughout years of
habeas proceedings steadfastly opposed production of the documents when
[P]etitioner’s habeas counsel has sought them? If prosecutors had already
shared the documents with trial counsel, what is it precisely that the
Commonwealth and its various representatives have been so desperate to
protect, and for what reason? The events leading up to this point, far from
demonstrating a lack of concealment, show the Commonwealth’s entrenched
resistance to transparency in this criminal prosecution and subsequent post-
conviction proceedings.
Id. We agree with this analysis, and note that additional evidence in the record before the
district court pointed to suppression. For example, Deputy Commonwealth’s Attorney
Evans asserted in his affidavit that he did not believe the Roberts materials were subject to
disclosure under Brady because the Roberts’s statements were “factually inconsistent” with
the prosecution’s conclusion, based on the time of the first 911 call and Mings’s testimony
that murders occurred prior to the first 911 call. J.A. 1159–60. But the “factual
inconsisten[cy]” between the Roberts materials and the statements of the first 911 caller
and Mings is precisely what renders the Roberts materials exculpatory and impeaching for
purposes of Brady. See, e.g., Williams v. Ryan, 623 F.3d 1258, 1265 (9th Cir. 2010)
(holding that prosecution violated Brady by failing to disclose evidence “inconsistent with
the State’s theory at trial”); United States v. Tavera, 719 F.3d 705, 708 (6th Cir. 2013)
(holding that prosecution violated Brady by failing to disclose statements to prosecutor that
“directly contradicted the story of the government’s main witness”); Mendez v. Artuz, 303
F.3d 411, 414 (2d Cir. 2002) (“Suppressed information is exculpatory and thus ‘favorable’
21
to the defense for Brady purposes when it directly contradicts the motive theory testified
to by prosecution witnesses.”); United States v. Zuazo, 243 F.3d 428, 431 n.2 (8th Cir.
2001) (explaining that evidence is exculpatory for purposes of Brady if it “contradict[s] the
government’s theory of guilt”). That Petitioner’s prosecutor seems to have fundamentally
misunderstood his obligation under Brady provides further grounds to conclude that the
prosecution suppressed the Roberts materials, and potentially other exculpatory or
impeaching evidence. 7 And Ford’s subsequent conviction for accepting bribes and making
false representations to courts only enhances the plausibility of improper suppression.
Although the district court concluded that the Roberts materials were exculpatory
and impeaching and suppressed, the court nonetheless denied Petitioner relief on grounds
that Petitioner failed to establish the third Brady element—“material[ity]” of the withheld
Roberts materials—the element to which we now turn. Juniper, 2013 WL 1333513, at
*17.
7
We have repeatedly rebuked the Commonwealth’s Attorney and his deputies and
assistants for failing to adhere to their obligations under Brady. See Wolfe II, 691 F.3d at
423 (“lambast[ing]” Assistant Commonwealth’s Attorney for “not produc[ing] evidence to
a criminal defendant unless he first deems it to be ‘material[]’ and credib[le]”); Muhammad
v. Kelly, 575 F.3d 359, 370 (4th Cir. 2009) (refusing to “condone” suppression of
exculpatory and impeaching evidence by prosecution, notwithstanding that such evidence
was not material, because “[a]s a matter of practice, the prosecution should err on the side
of disclosure, especially when a defendant is facing the specter of execution”). We find it
troubling that, notwithstanding these rebukes, officials in the Commonwealth’s Attorney’s
office continue to stake out positions plainly contrary to their obligations under the
Constitution.
22
B.
The Supreme Court has held that suppressed, exculpatory evidence is “material” if
it “could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). Put differently, to
establish materiality, a petitioner must show that “‘there is a reasonable probability’ that
the result of the trial would have been different if the suppressed documents had been
disclosed to the defense.” Strickler v. Greene, 527 U.S. 263, 289 (1999). Under this
standard, “[t]he question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at
434 (emphasis added). Likewise, the materiality inquiry “is not a sufficiency of the
evidence test[,]” and therefore “[a] defendant need not demonstrate that after discounting
the inculpatory evidence in light of the undisclosed evidence, there would have been
enough left to convict.” Id. at 434–35. Additionally, withheld evidence should be
“considered collectively, not item by item.” Id. at 436–37.
Applying this test, the district court concluded that Petitioner failed to plausibly
allege that the withheld Roberts evidence was material because that evidence “cannot
unsettle certain basic facts about the murders.” Juniper, 2013 WL 1333513, at *17. In
particular, the district court emphasized that Petitioner’s DNA and thumbprint were on the
handle and blade, respectively, of the knife used to stab Keshia. Id. And the district court
pointed out that the first 911 call reporting shots at Keshia’s apartment was registered at
12:44 p.m., a fact which “cannot [be] unsettle[d]” by other witnesses’ testimony that they
23
heard shots later. Id. at *18. Finally, the court stated that Petitioner’s “conduct and
statements after the killings are additional strong evidence of his guilt.” Id.
The district court did not apply the proper legal standard in determining whether
Petitioner alleged or established sufficient facts regarding materiality to warrant an
evidentiary hearing. We reach this conclusion for several reasons. First, the district court
failed to “construe facts in the light most favorable to the plaintiff . . . and draw all
reasonable inferences in his favor.” Oberg, 745 F.3d at 136 (internal quotation marks
omitted). For example, the district court said it “stretches the imagination” to believe that
the person the Roberts saw leaving Keshia’s apartment between 1:00 and 2:30 p.m. was
the murderer or also involved in the murders because the police received the first call
reporting gunshots at Keshia’s apartment at 12:44 p.m. Juniper, 2013 WL 1333513, at
*17. But as described in the petition and further detailed in the 911 “Event Chronology”
produced in response to the district court’s discovery order, the officers who responded to
the 12:44 p.m. call surveyed the complex and spoke with the residents of the apartment
below Keshia’s who reported that they “did not hear any gun shots.” J.A. 1003, 1166. The
officers, therefore, concluded the call to be a false report. And the petition alleged that at
least three disinterested witnesses—Wendy and Jason Roberts and Kevin Waterman—
heard sounds resembling gunshots after 1:00 p.m. Id. at 997–98. Additionally, in a fact
not mentioned in the district court’s materiality analysis, Investigator Jones’s notes of
Wendy Roberts’s statement on the day of the murders reported that she saw a woman
resembling Keshia alive and arguing with a black male who was not Petitioner between
12:30 and 12:45 p.m. Viewing these facts in the light most favorable to Petitioner, the
24
murders plausibly occurred after 1:00 p.m., at the time the Roberts saw the unidentified
individual fleeing Keshia’s apartment.
Second, the district court failed to properly account for the impeachment value of
the withheld Roberts statements. In determining whether “‘there is a reasonable
probability’ that the result of the trial would have been different[,]” Strickler, 527 U.S. at
289, a court must consider “the aggregate effect that the withheld evidence would have had
if it had been disclosed[,]” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1347 (11th Cir.
2009). In order to determine “the aggregate effect” of the withheld evidence, the court
must both “add[] to the weight of the evidence on the defense side . . . all of the undisclosed
exculpatory evidence” and “subtract[] from the weight of the evidence on the prosecution’s
side . . . the force and effect of all the undisclosed impeachment evidence.” Id.
Here, the district court failed to “subtract” from the weight of the evidence on the
prosecution’s side the “force and effect” of the impeachment value of the withheld Roberts
materials. In particular, notwithstanding the district court’s conclusion that the Roberts’s
2004 statements “flatly contradicted those of the prosecution’s key witnesses: Rashid,
Mings, and Murray,” Juniper, 2013 WL 1333513, at *14, the district court nonetheless
relied on Rashid’s, Mings’s, and Murray’s testimony to hold that the withheld evidence
was not material. For example, the district court appealed to Petitioner’s “conduct and
statements after the killings [as] additional strong evidence of his guilt,” even though the
testimony regarding Petitioner’s incriminating conduct and statements came from Rashid,
Mings, and Murray. Id. at *17. Likewise, the district court relied on the first 911 caller’s
report of hearing gunshots at Keshia’s apartment an hour earlier as definitive evidence that
25
the murders occurred before 1:00 p.m. Id. However, according to the facts adduced at
trial, the petition, and Deputy Commonwealth Attorney Evans’s affidavit, that call was
made by Bowser, who did not personally hear the alleged gunshots, but instead had
received the information fourth-hand—i.e., through Mings by way of Murray, who in turn
relied on Rashid’s statement that she had heard gunshots when she left Keshia’s apartment
earlier in the morning. And again, Rashid’s, Mings’s, and Murray’s testimony was subject
to impeachment by the Roberts’s statements. The district court, therefore, improperly
failed to “subtract” the full force and effect of the impeachment value of the withheld
Roberts evidence. Smith, 572 F.3d at 1347.
Third, the district court improperly made credibility determinations based on the
written record. In particular, the district court refused to credit Wendy’s statement to
Investigator Jones that she saw a woman resembling Keshia alive between 12:30 and 12:45
p.m. and the Roberts’s and Waterman’s statements that they heard sounds resembling
gunshots after 1:00 p.m. The district court reasoned that crediting these statements would
require accepting them “over the word of people who claim to have seen the petitioner
either at or leaving the crime scene with a gun” before 12:44 p.m. Juniper, 2013 WL
1333513, at *18. But in determining whether a petitioner is entitled to relief under Section
2254 based on undisclosed exculpatory evidence, “credibility should be assessed on the
basis of an in-court hearing where the judge can see and hear the witnesses.” Williams,
623 F.3d at 1266; Wolfe I, 565 F.3d at 170 (holding that district court applied improper
legal standard in denying habeas petitioner’s request for evidentiary hearing when it found
affidavit attached to complaint “not credible”).
26
Viewing the withheld Roberts evidence in the light most favorable to Petitioner,
disregarding the testimony by Rashid, Mings, and Murray subject to impeachment by the
Roberts evidence, and resolving all credibility determinations in Petitioner’s favor—as we
must in determining whether Petitioner is entitled to an evidentiary hearing—the only fact
on which the district court properly relied in concluding that the withheld Roberts evidence
was not material is the knife handle and blade bearing Petitioner’s DNA and thumbprint,
respectively. Accordingly, we must determine whether the exculpatory value of the
withheld Roberts materials, when evaluated relative to the inculpatory value of the knife
blade and handle, would “put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 435; see also Smith, 572 F.3d at 1347 (“Once
the evidence on the scales is adjusted to take into account the combined force and effect of
the undisclosed evidence favorable to the defense, the standard that is applied is . . . whether
what is left on both sides of the scale after adjusting for the withheld evidence creates a
reasonable probability that a jury would acquit, and a reasonable probability is one
sufficient to undermine our confidence in the guilty verdict.”).
To be sure, the knife handle and blade provided strong evidence of Petitioner’s guilt.
See Strickler, 527 U.S. at 293 (holding withheld impeachment evidence not material when
“there was considerable forensic and other physical evidence linking petitioner to the
crime”). But the forensic evidence did not uniformly inculpate Petitioner. Most
significantly, although the forensic evidence linked Petitioner to the knife used to stab
Keshia, it did not link Petitioner to the gun used to kill Keshia and the other three victims.
On the contrary, law enforcement officers never recovered the gun, and could not identify
27
any prints of value on the cartridges or cartridge casings. Indeed, the only forensic evidence
related to the gun—the unidentified print of value on the ammunition box—did not point
to Petitioner as the triggerman. Because the prosecution did not introduce any forensic
evidence linking Petitioner to the gun, no forensic evidence directly linked Petitioner to the
murders of the three victims who were not stabbed. 8 Likewise, although Petitioner’s DNA
appeared on a cigarette butt at the threshold of Keshia’s apartment, a cigarette butt on the
bed adjacent to the victims bore the DNA of an unidentified individual. And given
Petitioner’s admitted frequent presence in Keshia’s apartment, including on the morning
of the murders, finding Petitioner’s DNA on items in and around the apartment does not
irrefutably prove he committed the murders.
Whereas the forensic evidence inculpating Petitioner was strong, but not
unassailable, the withheld Roberts materials—viewed in the light most favorable to
Petitioner—had significant exculpatory value. First, Wendy’s statement to the
investigators and identification of a different individual in the photo array would have
allowed Petitioner to mount an “other suspect” defense. Courts have long recognized that
“new evidence suggesting an alternate perpetrator is ‘classic Brady material.’” Williams,
623 F.3d at 1265 (9th Cir. 2010) (quoting Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir.
2001)); Hart, 798 F.3d at 588 n.1. To that end, courts have found withheld evidence
8
Testimony by Rashid, Murray, and Mings placed a firearm in Petitioner’s hands at
the crime scene. However, as the district court recognized, that testimony is subject to
impeachment by the withheld Roberts materials, Juniper, 2013 WL 1333513, at *14, and
therefore is not properly considered when determining whether Petitioner is entitled to an
evidentiary hearing.
28
material when the evidence pointed to a different individual as perpetrating the convicted
offense. For example, in Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997), the Eighth
Circuit concluded that an inter-office investigative report in which an investigator stated
that a witness had identified another individual as perpetrating the crime was material. Id.
at 947, 950–53; see also Kyles, 514 U.S. at 441–42 (holding withheld statements of
witnesses material when statements described perpetrator who did not resemble
defendant); Dennis v. Sec’y, Penn. Dep’t of Corr., 834 F.3d 263, 302 (3d Cir. 2016) (en
banc) (holding withheld investigative statement that eyewitness had identified perpetrator
as attending different school than defendant was material); Castleberry v. Brigano, 349
F.3d 286, 295 (6th Cir. 2003) (holding withheld statement by victim describing assailant
that differed in appearance from defendant material); United States v. Curry, 57 F.3d 1071,
1995 WL 331471, at *1 (6th Cir. 1995) (table) (“Goen’s statement that directly contradicts
Robinson’s identification raises a reasonable doubt concerning the defendant’s possession
of the stolen firearms. It is material in that it identifies another individual in possession of
the guns[.]”); Floyd v. State, 902 So.2d 775, 784–85 (Fla. 2005) (holding statement by
witness identifying other perpetrators of crime material).
Second, by establishing that Keshia was alive between 12:30 and 12:45 p.m.,
Wendy’s statement to Investigator Jones, if proven credible, would call into question the
government’s theory that the murders occurred at 11:44 a.m. And when coupled with
Waterman’s statement, the Roberts’s statements indicate that the murders occurred after
2:00 p.m., when Petitioner had already left Keshia’s apartment. Courts have found
withheld evidence material when the evidence undermined the government’s theory as to
29
when a petitioner committed a crime. Dennis, 834 F.3d at 295-96 (holding that time-
stamped receipt calling into question eyewitness’s testimony that the petitioner was in the
vicinity of the crime scene at the time of the crime was material because it “would have
necessarily bolstered [the petitioner’s] alibi defense narrative and ‘put the whole case . . .
in a different light’”); Bies v. Sheldon, 775 F.3d 386, 401 (6th Cir. 2014) (“The undisclosed
contradictory evidence suggesting that [the victim] was in fact alive much later in the
evening could have been used by the defense to disrupt the State’s timeline and narrative
of the crime.”); D’Ambrosio v. Bagley, 527 F.3d 489, 498–99 (6th Cir. 2008) (holding that
police report stating that witness saw victim alive “the night after” the alleged murder was,
in conjunction with other withheld evidence, material).
Third, the withheld evidence “would have raised opportunities to attack . . . the
thoroughness and even the good faith of the investigation.” Kyles, 514 U.S. at 445
(concluding withheld evidence describing potential alternative perpetrator was material, in
part because it could have been used to cast doubt on adequacy of government’s
consideration of alternative suspects). Had Petitioner’s attorneys known that Wendy
identified an alternative perpetrator, they could have raised doubts about the thoroughness
of the investigation by questioning whether the police adequately pursued that alternative
suspect, and if they did not, why they did not. See Dennis, 834 F.3d at 302 (explaining that
had defendant received withheld evidence of witness’s inconsistent statements to police,
“defense counsel could have highlighted the investigatory failures for the jury”); Bies, 775
F.3d at 401 (finding withheld evidence that witnesses identified alternative perpetrators
material because, in part, defense could have pointed to government’s failure to pursue
30
alternative suspects as evidence that “the ‘investigation [w]as shoddy’” (quoting Kyles, 514
U.S. at 445)).
Fourth, the withheld evidence was not cumulative of other evidence. Cf. Johnson
v. Folino, 705 F.3d 117, 129 (3d Cir. 2013) (“Suppressed evidence that would be
cumulative of other evidence . . . is generally not considered material for Brady purposes.”).
On the contrary, Petitioner lacked any factual basis to assert an alternative perpetrator
defense at trial. Likewise, the Roberts’s statements provided new avenues for impeaching
the prosecution’s key witnesses. For example, Wendy’s statement that Keshia was still
alive at 12:30 p.m. directly undermined Rashid’s, Murray’s, and Mings’s testimony that
the murder occurred at 11:45 p.m. To be sure, Petitioner had already impeached Rashid,
Murray, and Mings on other grounds, but this new line of impeachment, based on
statements by allegedly disinterested witnesses, would have cast their testimony in a
different light by “seriously undermin[ing] the testimony of . . . key witness[es].” Id.; see
also Dennis, 834 F.3d at 300 (“[W]e have granted habeas relief on the basis of a ‘significant
difference’ between the suppressed impeachment and other types of impeachment evidence
used at trial.”); United States v. Wilson, 481 F.3d 475, 480–81 (7th Cir. 2007) (explaining
that “evidence that provides a new basis for impeachment is not cumulative and could well
be material” and finding that withheld evidence providing new basis for impeachment of
key witness was material).
Finally, Petitioner’s trial counsel could have used the investigative notes of the
Roberts’s statements to pursue evidence of Petitioner’s innocence that could have been
used at trial. For example, had they known of the Roberts’s statements and Wendy’s
31
identification of an alternative perpetrator, they could have interviewed the Roberts and
searched for the individual Wendy reported seeing in repeated arguments with Keshia,
including after the murders allegedly occurred. See Williams, 623 F.3d at 1268 (holding
withheld exculpatory evidence material when evidence could have “le[]d to evidence
material to [the petitioner’s] culpability”).
In light of the foregoing, we do not believe the inculpatory value of the knife handle
and blade is so great as to preclude the Roberts evidence, if found to be sufficiently credible
during an evidentiary hearing, from “put[ting] the whole case in such a different light as to
undermine confidence in the verdict.” Kyle, 514 U.S. at 435. Accordingly, the district
court abused its discretion in dismissing Petitioner’s Brady claim premised on the withheld
Roberts materials without holding an evidentiary hearing. See Burgess v. Comm’r, Ala.
Dep’t of Corr., 723 F.3d 1308, 1320 (11th Cir. 2013) (holding that a district court abuses
its discretion in denying a habeas petitioner an evidentiary hearing “where ‘such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief.’” (quoting Schriro v. Landrigan, 550 U.S. 465,
474 (2007))); Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000) (“To find an abuse of
discretion that would entitle Murphy to an evidentiary hearing, we must find that the state
did not provide him with a full and fair hearing and we must be convinced that if proven
true, his allegations would entitle him to relief.”); cf. Walker v. True, 399 F.3d 315, 327
(4th Cir. 2005) (explaining that Townsend holds that “[w]here the facts are in dispute, the
federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did
not receive a full and fair evidentiary hearing in a state court” (some emphasis removed)).
32
That we conclude the district court erred in denying Petitioner’s request for an
evidentiary hearing does not mean that Petitioner’s Brady claim premised on the withheld
Roberts materials will ultimately succeed. After having the opportunity to assess the
credibility of the relevant witnesses, the district court may conclude that the Roberts’s
recollections of the events surrounding the murders are not sufficiently credible; are
sufficiently distinguishable from Rashid’s, Mings’s, and Murray’s testimony as to be non-
impeaching; or otherwise fail to “put the whole case in such a different light as to
undermine the confidence in the verdict.” Kyle, 514 U.S. at 435. Likewise, the district
court may conclude, after receiving evidence from the parties, that the withheld Roberts
materials would not have “le[]d to evidence material to [Petitioner’s] culpability.”
Williams, 623 F.3d at 1268. And the district court may conclude, after receiving testimony
from Deputy Commonwealth’s Attorney Evans, Detective Conway, and other state
officials, that notwithstanding the prosecution’s troubling disregard of its obligations under
Brady, the prosecution did not withhold other evidence related to or supporting the Roberts
statements warranting further investigation. But those determinations should not—and
cannot—be made in the absence of an evidentiary hearing. 9
9
Petitioner also seeks the opportunity for “fuller development of the evidence,”
Appellant’s Br. at 20, which we construe as a request to conduct additional discovery on
his Brady claim. Under Rule 6(a) of the Rules Governing Section 2254 Cases in the United
States District Court, a district court may authorize discovery upon a showing of “good
cause” by a petitioner. “‘[G]ood cause’ will exist when ‘specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.’” Wolfe I, 565 F.3d at 165 n.36 (2009)
(quoting Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)). On remand, the district court
may consider whether the withheld exculpatory and impeaching evidence produced as a
33
III.
Without question, the perpetrator of the Stephens’s murders committed a heinous
crime and should be vigorously pursued and prosecuted. However, the prosecution’s
pursuit of justice must keep faith with the principles of due process that separate societies
that adhere to the rule of law from those that do not. The withheld Roberts materials were
exculpatory and “impeaching evidence that was unquestionably subject to disclosure under
Brady.” Wolfe II, 691 F.3d at 423 (internal quotation omitted). By failing to disclose such
evidence before trial—and unjustifiably continuing to resist its disclosure for years
thereafter—“the prosecution arrogated to itself a central function belonging to the criminal
jury and pursued its role as adversary to the exclusion of its role as architect of a just trial.”
United States v. Jernigan, 492 F.3d 1050, 1056–57 (9th Cir. 2007). In such
circumstances—and in light of the conflicting and unresolved facts bearing on the
materiality of the Roberts materials—the district court should not have disposed of
Petitioner’s Brady claim without holding an evidentiary hearing.
VACATED, IN PART, AND REMANDED
result of its limited grant of discovery, coupled with Deputy Commonwealth Attorney
Evans’s and Detective Conway’s affidavits and any evidence adduced during the
evidentiary hearing, warrant authorizing additional discovery. The district court also, of
course, may reconsider its previous rulings on any related issues.
34