United States Court of Appeals,
Eleventh Circuit.
No. 97-6162.
Judith A. NEELLEY, Petitioner-Appellant,
v.
John E. NAGLE, Warden, State of Alabama, Respondents-Appellees.
April 9, 1998.
Appeal from the United States District Court for the Northern District of Alabama. (No. CV-96-PT-
1381-M), Robert B. Propst, Judge.
Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.
COX, Circuit Judge:
Judy Neelley appeals the district court's denial of her habeas corpus petition in connection
with her conviction for the kidnaping and murder of a 13-year-old girl. In her petition Neelley
alleges that her trial counsel was ineffective because he operated under a conflict of interest. The
district court considered the petition under the standards found in the Anti-Terrorism and Effective
Death Penalty Act of 1996. We affirm.
I. BACKGROUND
Judy Neelley participated in a scheme in which she attempted to lure girls and young women
into her car for the ultimate purpose of making them available to her husband, Alvin Neelley, for
his sexual pleasure. As a part of this scheme, Judy Neelley abducted 13-year-old Lisa Ann Millican
from a mall in Rome, Georgia, taking her to a motel room and handcuffing her to a bed to prevent
her escape. After Alvin Neelley raped the girl over the course of several days, the Neelleys took
Millican to the rim of Little River Canyon near Fort Payne, Alabama. There, Judy Neelley injected
Millican with drain cleaner six times in an attempt to kill her. When this failed, Neelley shot her
in the back and pushed her into the canyon.
Eventually, the Neelleys were arrested in Tennessee on bad check charges, and Judy Neelley
was extradited to Alabama to stand trial for Millican's murder. She was tried in the Circuit Court
for DeKalb County, Alabama. The trial judge found that Neelley was indigent and appointed local
attorney Robert B. French, Jr. to represent her.
At trial, French presented the defense that Neelley was not criminally responsible for her
actions because her husband had forced her to abduct and kill Lisa Ann Millican. Neelley testified
that her husband habitually abused her and that her will had been subjugated to his through fear.
The jury did not accept Neelley's defense and found her guilty of the capital crime of murder during
the course of a kidnaping. At the penalty phase of the trial, the jury recommended by a vote of ten
to two that Neelley be sentenced to life imprisonment without parole. The trial judge, however,
overrode the jury's sentencing recommendation and sentenced Neelley to death.
On direct appeal, the Alabama state courts affirmed Neelley's conviction and death sentence,
see Neelley v. State, 494 So.2d 669 (Ala.Crim.App.1985), aff'd, Ex parte Neelley, 494 So.2d 697
(Ala.1986), and the United States Supreme Court denied her petition for a writ of certiorari, see
Neelley v. Alabama, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987). Neelley then filed a
petition for post-conviction relief in state court. That court denied this petition, a decision that the
Alabama appellate courts upheld. See Neelley v. State, 531 So.2d 69 (Ala.Crim.App.1988), cert.
denied, Ex parte Neelley, 537 So.2d 65 (Ala.1988), cert. denied, Neelley v. Alabama, 488 U.S. 1020,
109 S.Ct. 821, 102 L.Ed.2d 810 (1989). French represented Neelley throughout this time.
Next, represented by new counsel, Neelley filed in state court a second petition for
post-conviction relief that included a claim that French's representation was unconstitutionally
inadequate. The trial court held an evidentiary hearing on the ineffective-assistance-of-counsel
claim, but denied the petition; the Alabama Court of Criminal Appeals affirmed. See Neelley v.
State, 642 So.2d 494 (Ala.Crim.App.1993). The Alabama Supreme Court initially granted Neelley's
request for certiorari, but after hearing oral argument quashed the writ as improvidently granted.
See Ex parte Neelley, 642 So.2d 510 (Ala.1994) (Almon and Steagall, JJ., dissenting). Neelley
petitioned the United States Supreme Court for a writ of certiorari, which was denied. See Neelley
v. Alabama, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995).
Neelley then filed a § 2254 petition in the United States District Court for the Northern
District of Alabama. The district court adjudicated her petition under 28 U.S.C. § 2254, as amended
by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, § 104,
110 Stat. 1214, 1218-19, which established new standards for habeas review of state court decisions.
The court denied the petition without an evidentiary hearing, but issued a certificate of appealability,
noting that Neelley's petition raised novel issues regarding attorney conflicts of interest and the
proper application of the AEDPA standards. Neelley now appeals.
II. DISCUSSION
A. Did the District Court Err in Applying the Amended Version of 28 U.S.C. § 2254 to Neelley's
Petition?
On April 24, 1996 President Clinton signed AEDPA into law. Title I of AEDPA amended
the habeas corpus provisions of the United States Code, establishing new procedures and standards
for use in habeas cases. Most significantly for purposes of this case, AEDPA establishes a more
deferential standard of review of state court adjudications. Neelley contends that the district court
erred in deciding to apply the amended version of § 2254(b), arguing (1) that AEDPA is an
unconstitutional ex post facto law as applied to her petition, and (2) that the new habeas provisions
are inapplicable to her case because Alabama has not taken advantage of AEDPA's "opt-in"
provision.
1. As Applied to Neelley's Petition, Is AEDPA an Unconstitutional Ex Post Facto Law?
Neelley first argues that application of AEDPA to her petition would be fundamentally
unfair and a violation of the Constitution's Ex Post Facto Clause, as AEDPA was not enacted until
after she exhausted her state court remedies. This argument is without merit. In Lindh v. Murphy,
--- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court addressed AEDPA's
constitutionality as applied to pending habeas cases, specifically holding that AEDPA may
constitutionally be applied to habeas cases filed after AEDPA's effective date. AEDPA's relevant
provisions were enacted and became effective on April 24, 1996; Neelley filed her habeas petition
a month later, on May 29, 1996. Under Lindh, AEDPA constitutionally may be applied to Neelley's
petition.
2. Are the Amended Sections of Chapter 153 Applicable to Habeas Petitions From Prisoners in
States That Do Not "Opt In" to AEDPA's "Expedited" Habeas Provisions?
AEDPA also added Chapter 154, "Special Habeas Procedures in Capital Cases," to Title 28
of the U.S.Code, providing for the expedited resolution of habeas cases in states that "opt in" to its
provisions. To opt in, a state must establish procedures "for the appointment, compensation, and
payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings
brought by indigent prisoners whose capital convictions and sentences have ... become final for State
law purposes." See 28 U.S.C.A. § 2261(b) (West Supp.1997).
Neelley argues that the amended version of § 2254 does not apply to her petition because
Alabama has not instituted the required counsel appointment procedures. She misreads the "opt-in"
statute, which states specifically that "[t]his chapter [i.e., Chapter 154] is applicable," if a state
establishes the required procedures for appointment of counsel. 28 U.S.C.A. § 2261(b) (West
Supp.1997) (emphasis added). Section 2254, on the other hand, is part of Chapter 153, the
"non-expedited" habeas procedures that apply to all habeas cases. Therefore, the applicability of
amended § 2254 is unaffected by whether a state has put appropriate counsel appointment
mechanisms in place.1 The district court did not err in applying the amended § 2254 to Neelley's
petition.
B. Did the District Court Err in Its Analysis of Neelley's Claims Under 28 U.S.C. § 2254(d) as
Amended by AEDPA?
Amended § 2254(d) states in pertinent part:
(d) An application for a 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.
28 U.S.C.A. § 2254 (West Supp.1997). Neelley challenges the district court's review of the state
court's actions, arguing that the state court's adjudication of her claims indeed "resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law."
Our task is to construe the meaning of this phrase consistent with Congress' intent, this being a
question of first impression in this circuit. We start with the plain language of the statute, see Reiter
v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume
"that the legislative purpose is expressed by the ordinary meaning of the words used," Richards v.
United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962).
1. What Is the Proper Standard of Review Under § 2254(d) as Amended by AEDPA?
1
Neelley also argues in the alternative that the district court should have conducted an
evidentiary hearing to determine whether Alabama has put in place the necessary counsel
appointment mechanisms. Because the new § 2254 applies regardless of whether Alabama has
opted in, an evidentiary hearing is unnecessary.
a. "Clearly Established"
Section 2254 forbids federal courts from granting habeas relief for claims previously
adjudicated by state courts, unless the state court adjudication was contrary to or represented an
unreasonable application of "clearly established Federal law, as determined by the Supreme Court
of the United States." Thus, the first step in resolving a petitioner's claim is to determine the "clearly
established" law at the relevant time. The "clearly established" language echoes the concerns
underlying the Supreme Court's decisions in Teague v. Lane2 and its progeny:
Our holding in Teague rested upon the historic role of habeas corpus in our system
of law, which is to provide a deterrence, the threat of which serves as a necessary additional
incentive for trial and appellate courts throughout the land to conduct their proceedings in
a manner consistent with established constitutional standards. Deterrence and threat are
meaningless concepts as applied to a situation in which the law is so uncertain that a judge
acting in all good faith and with the greatest of care could reasonably read our precedents
as permitting the result the habeas petitioner contends is wrong.
Penry v. Lynaugh, 492 U.S. 302, 352, 109 S.Ct. 2934, 2964, 106 L.Ed.2d 256 (1989) (Scalia, J.,
concurring in part, dissenting in part) (quotations and citations omitted); see also, e.g., Hogan v.
Hanks, 97 F.3d 189, 192 (7th Cir.1996) ("Both Teague and the amended § 2254(d)(1) are designed
to ensure that state judgments are not affected by legal rules established or materially expanded after
the conviction has become final."), cert. denied, --- U.S. ----, 117 S.Ct. 1439, 137 L.Ed.2d 546
(1997). Under Teague, a federal court evaluating a petitioner's claim that he should have had the
benefit of a rule of constitutional law must "survey the legal landscape" to determine whether the
rule is "new." Glock v. Singletary, 65 F.3d 878, 884 (11th Cir.1995) (en banc), cert. denied, --- U.S.
----, 117 S.Ct. 616, 136 L.Ed.2d 540 (1996). A rule is not "new" if a state court considering a habeas
petitioner's claim would have felt "compelled by existing precedent" to conclude that the rule the
petitioner seeks was required by the Constitution. See Caspari v. Bohlen, 510 U.S. 383, 390, 114
2
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). We think that a similar analysis obtains under the "clearly
established" language of § 2254, as a rule that is "new" cannot be "clearly established." See Hogan,
97 F.3d at 192 ("[A] rule [is] not "clearly established' unless it [is] "compelled by existing
precedent.' "). Thus, a district court evaluating a habeas petition under § 2254(d) should "survey the
legal landscape" at the time the state court adjudicated the petitioner's claim to determine the
applicable Supreme Court authority; the law is "clearly established" if Supreme Court precedent
would have compelled a particular result in the case.3
b. "Contrary To"/"Unreasonable Application Of"
The other standard within § 2254(d) that requires interpretation is the requirement that the
state court adjudication "result[ ] in a decision ... contrary to, or involve[ ] an unreasonable
application of" the law. At first glance each of these phrases could be read to swallow the other.
On one hand, it is difficult to imagine a decision "contrary to" existing Supreme Court precedent that
does not "involve an unreasonable application" of law. On the other hand, a federal court reviewing
a state court decision in the context of a habeas petition could read the "contrary to" language as
permitting issuance of the writ whenever a state court errs, thereby vitiating the "unreasonable
application" clause. Our interpretation of the statute, however, should not nullify either clause, but
should give effect to both. See United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct.
1011, 1015, 117 L.Ed.2d 181 (1992).
Giving the phrase "contrary to" its plain meaning, we can readily think of two situations in
3
The overlap between the statute and Teague is not complete. For example, under Teague a
rule is new if it is not clearly established at the time a habeas petitioner's conviction becomes
final, whereas the language of § 2254 would seem to indicate that the law must be clearly
established at the time the state court makes the adjudication under review. However, we have
no need to determine the exact overlap between Teague and § 2254 in this case because the
Supreme Court case law governing Neelley's contentions was manifestly clear at all relevant
times.
which a state court decision would be "contrary to" clearly established Supreme Court case law. The
first is when a state court faces a set of facts that is essentially the same as those the Supreme Court
has faced earlier, but given these facts the state court reaches a different legal conclusion than that
of the Supreme Court. A second situation is one in which a state court, in contravention of Supreme
Court case law, fails to apply the correct legal principles to decide a case. Such a result would be
"contrary" in the sense that the state court has not adjudicated the claim in the manner prescribed
by the Supreme Court. Both of these types of errors are errors of pure law; in the first case, a state
court has denied a petitioner a constitutional right defined by the Supreme Court in its role as
interpreter of the Constitution, while in the second the state court has failed to apply the proper law
to a case. In either case, the federal court reviewing a petition under § 2254 independently
determines what is "clearly established Federal law as determined by the Supreme Court" and may
grant habeas relief if the state court has decided a question of law incorrectly.
If the state court has applied the proper law, the federal court must then determine whether
the state court's application of that law was "unreasonable."4 By its very language, "unreasonable
application" refers to mixed questions of law and fact,5 when a state court has "unreasonably"
4
Like the "clearly established" requirement, this standard is akin to the Teague doctrine:
At bottom ... the Teague doctrine validates reasonable, good-faith interpretations
of existing precedents made by state courts even though they are shown to be
contrary to later decisions.... Accordingly, we will not disturb a final state
conviction or sentence unless it can be said that a state court, at the time the
conviction or sentence became final, would have acted objectively unreasonably
by not extending the relief later sought in federal court.
O'Dell v. Netherland, --- U.S. ----, ----, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997)
(citations and quotations omitted).
5
The Fifth and Seventh Circuits have considered the meaning of the statutory language and
likewise have concluded that the two clauses give standards for review of questions of law
("contrary to") and mixed questions of law and fact ("unreasonable application of"). See
applied clear Supreme Court precedent to the facts of a given case. See Lindh v. Murphy, 96 F.3d
856, 870 (7th Cir.1996) ("[W]hen the dispute lies not in the meaning of the Constitution, but in its
application to a particular set of facts ... sec. 2254(d)(1) restricts the grant of collateral relief...."),
reversed on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
What does it mean to say that a state court has "unreasonably" applied the proper law? It
does not mean that a federal court may grant habeas relief simply because it disagrees with the state
court's decision. This would amount to de novo review, which Congress clearly did not intend. See
H.R.CONF.REP. No. 104-518 at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944 (stating that
the amended section "requires deference to the determinations of state courts that are [not] an
"unreasonable application' " of federal law). Moreover, the mere fact that a district court disagrees
with a state court does not render that state court's decision "unreasonable"; certainly two courts can
differ over the proper resolution of a close question without either viewpoint being unreasonable.
The Fifth Circuit has incorporated this principle into its interpretation of the statute, holding that
under § 2254 a federal court can grant the writ "only if a state court decision is so clearly incorrect
that it would not be debatable among reasonable jurists." Drinkard v. Johnson, 97 F.3d 751, 769
(5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). We find this
reasoning persuasive and adopt the Fifth Circuit's standard.
Thus, as we read the statute, a court evaluating a habeas petition under § 2254(d)(1) must
engage in a three-step process: First, the court must "survey the legal landscape," using an inquiry
similar to that under Teague, to ascertain the federal law applicable to the petitioner's claim that is
Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir.1996); Lindh v. Murphy, 96 F.3d 856, 870 (7th
Cir.1996), reversed on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). But
see Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF.L.REV. 381, 442 n. 192
(1996) (disagreeing with this interpretation).
"clearly established" by the Supreme Court at the time of the state court's adjudication. Second, the
court must determine whether the state court adjudication was contrary to the clearly established
Supreme Court case law, either because the state court failed to apply the proper Supreme Court
precedent, or because the state court reached a different conclusion on substantially similar facts.
If the state court's decision is not contrary to law, the reviewing court must then determine whether
the state court unreasonably applied the relevant Supreme Court authority. The state court decision
must stand unless it is not debatable among reasonable jurists that the result of which the petitioner
complains is incorrect.
2. Did the District Court Err in Applying § 2254(d)?
a. Ineffective Assistance of Counsel
We now evaluate the district court's resolution of Neelley's claims. Neelley claims that her
trial counsel, Robert French, provided ineffective assistance in violation of her Sixth Amendment
right to counsel. She first argues that French was ineffective because he operated under a conflict
of interest while representing her. Neelley asserted this claim in her second petition for state
collateral relief, and the Alabama Court of Criminal Appeals ruled against her on the merits. See
Neelley v. State, 642 So.2d 494, 504-05 (Ala.Crim.App.1993). Thus, this claim was "adjudicated
on the merits in State court proceedings" and must be evaluated under § 2254(d).
Neelley points to a publicity contract between her and French entitling him to one-half of
the profits from the commercialization of her story, in clear violation of the Alabama Rules of
Professional Conduct. See ALA.RULES OF PROFESSIONAL CONDUCT Rule 1.8(d) (1991). Although
this contract was not signed until three months after Neelley's trial, Neelley alleges that the
execution of the contract was a mere formality, and that throughout her trial French exhibited signs
that he was motivated by the possibility of profit. She asserts that French's conflict of interest
manifested itself in actions taken during his representation. She alleges that during the trial French
told Neelley of his plans to write a book about her case; that French has subsequently copyrighted
the brief he wrote for Neelley's direct appeal; and that he has incorporated the majority of that brief
into a 400-page manuscript for publication. She also alleges that French began referring to her as
his "million dollar baby" almost two months before she signed the contract. Neelley notes that
French by his own admission did not have previous experience with contracts of this kind, and that
the presentation and execution of the contract so soon after the trial indicates that French must have
researched and drafted the contract at least in part during the trial. Finally, she points to various
actions taken by French that she contends were designed to sensationalize her trial and give her story
more media appeal. Specifically, she argues that French failed to object to shocking and graphic
evidence of the horrific nature of her crime, had her testify in gory detail regarding the crime and
her motivation, failed to consult with her about the possibility of a plea bargain, and made
inflammatory and sensational statements to the press.
Under the first step of the § 2254(d) inquiry we must ascertain the clearly established federal
law as determined by the Supreme Court. The cases that govern Neelley's claim are Strickland v.
Washington6 and Cuyler v. Sullivan.7 The Alabama Court of Criminal Appeals evaluated Neelley's
claim under Strickland and Cuyler. The facts of those two cases are different from the facts of
Neelley's case; thus, the state court's result cannot be said to be "contrary" to Strickland or Cuyler.
Its decision therefore is not "contrary to" clearly established federal law, and passes the second part
of the § 2254(d) inquiry. All that remains is for us to determine whether the Alabama court
unreasonably applied Strickland and Cuyler to the facts of this case.
6
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
7
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
Under Strickland, a petitioner claiming ineffective assistance of counsel must prove both
that her attorney was ineffective and that this ineffectiveness prejudiced her. Prejudice for
Strickland purposes may be presumed if a defendant demonstrates that counsel "actively represented
conflicting interests" and that this actual conflict of interest "adversely affected [her] lawyer's
performance." Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718. The record indicates that the
publicity contract in question was not signed until June 24, 1983, three months after Neelley's trial
and the filing of her motion for a new trial. The state trial court found that the publicity contract
created an actual conflict of interest, but ruled that the conflict did not adversely affect French's
performance. The Alabama Court of Criminal Appeals disagreed, concluding that Neelley had
failed to prove that French labored under an actual conflict of interest. On the contrary, the court
stated that "it is clear from the record that [Neelley's] attorney zealously and wholeheartedly
represented [Neelley's] interests ..., and earnestly participated in all aspects of the proceeding."
Neelley, 642 So.2d at 504. As the court concluded that French had not operated under an actual
conflict of interest as required for relief under Cuyler, it declined to address Neelley's particularized
allegations of ineffectiveness. See Neelley, 642 So.2d at 504 (citing Cuyler, 446 U.S. at 349-50, 100
S.Ct. at 1719).
We cannot say that the Alabama appellate court unreasonably applied Cuyler to the facts
of this case. Although it certainly appears that French's actions represent a serious violation of
Alabama's ethics rules, it also appears that he competently represented her interests, and no others,
throughout the course of the trial. Based on the record, it was not unreasonable for the Alabama
Court of Criminal Appeals to find only the existence of a potential conflict of interest, rather than
an actual conflict. The district court did not err in rejecting Neelley's
ineffective-assistance-of-counsel claim.8
b. Failure to Turn Over Materially Exculpatory Evidence
Neelley also argues that the prosecution failed to turn over material exculpatory evidence.
Soon after Neelley was arrested, authorities, including Investigator Tony Gilliland of the Chattooga
County Sheriff's Office, searched the mobile home where she and her husband had lived and seized
several documents, mostly correspondence between Neelley and her husband. Neelley's attorneys
attempted to acquire these letters prior to trial, but Investigator Gilliland claimed that he did not
know where the letters were. Neelley did not acquire the letters until February 1985, when
Gilliland's estranged wife contacted Neelley's attorney and told him about the letters and their
whereabouts. Neelley claims that this evidence would have aided her in her defense at trial because
it would have shed light on her role in the offenses and her relationship with her husband. Neelley
raised this claim in her first petition for state collateral relief and was denied relief by the Circuit
Court of DeKalb County, Alabama.9
For purposes of this claim, the clearly established federal law is set out in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S.
667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Under Brady, the government may not lawfully
8
Neelley's ineffective-assistance-of-counsel claim also rested on other factual predicates. She
alleged that French solicited and encouraged an improper sexual relationship with her, and that
he failed to put on a defense based on battered-woman syndrome. The Alabama Court of
Criminal Appeals rejected both of these claims. See Neelley, 642 So.2d at 497-509. Except to
say that the Alabama court did not unreasonably apply clearly established law in rejecting these
claims, they do not merit further discussion, see 11TH CIR.R 36-1, and we affirm the district
court's denial of relief as to them.
9
The Alabama Court of Criminal Appeals affirmed the denial of relief without opinion, see
Neelley v. State, 531 So.2d 69 (Ala.Crim.App.1988), and both the Alabama Supreme Court and
United States Supreme Court denied certiorari, see Ex parte Neelley, 537 So.2d 65 (Ala.1988);
Neelley v. Alabama, 488 U.S. 1020, 109 S.Ct. 821, 102 L.Ed.2d 810 (1989).
convict a defendant if the government has suppressed material exculpatory evidence when the
defense requested it. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Bagley holds that evidence
is material if there is a reasonable probability—that is, a probability sufficient to undermine
confidence in the outcome—that the result of the proceeding would have been different had the
defense had the evidence. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. The DeKalb County circuit
court determined that the state had indeed wrongfully withheld the letters from Neelley's attorneys,
but concluded there was no reasonable probability that introduction of the letters would have
changed the outcome of the trial. In so doing, however, the court contravened the Supreme Court's
command that evidence must be analyzed collectively, not item by item, for Bagley materiality. See
Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995).10 The DeKalb
County circuit court, the only Alabama court to have written on this point, analyzed each letter for
its likely individual effect on the outcome of the trial, but did not analyze the letters' collective
effect. This piecemeal approach is "contrary to" clearly established federal law; therefore, we must
independently consider the merits of Neelley's claim.
The majority of the withheld evidence consists of correspondence between Neelley and her
husband. Neelley argues that these letters would have supported her defense at trial that she was
completely dominated by her husband. Some of these letters contain references that might have
10
Although Kyles was decided in 1995, eight years after the Alabama court's denial of
Neelley's petition for collateral relief, the Kyles Court characterized its opinion as a mere
explanation of the rule already set forth in Bagley. See Kyles, 514 U.S. at 434, 115 S.Ct. at
1565-66. In fact, this court has stated that Kyles did not announce a new rule. See Hays v.
Alabama, 85 F.3d 1492, 1498 (11th Cir.1996) ("The Supreme Court recently decided Kyles v.
Whitley ..., which discussed the "reasonable probability' standard of Brady. Without announcing
new rules, the Court cited four guideposts for determining materiality."), cert. denied, --- U.S. ---
-, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997) (citations omitted). Thus, for purposes of this case we
consider this aspect of materiality analysis to have been clearly established in 1985 in Bagley,
and thus clearly established at the time the DeKalb County circuit court ruled on Neelley's claim.
been helpful to Neelley's defense; in some letters Neelley refers to her husband as having telepathy
or "ESP," and others show that she feared what he would do to her if he became angry. However,
most of the letters are written in a loving and spirited, rather than meek or submissive, tone. Indeed,
in some of the letters Neelley plainly defies some of her husband's demands and threats that she feels
are excessive. The remaining three documents in question are barely probative, much less
exculpatory.11 Considering the possible effect of all of the documents at issue, there is no reasonable
probability that their introduction would have enhanced Neelley's chances of a favorable outcome
at trial. To the extent that the documents could be read to support Neelley's claim of total
domination by her husband, they were merely cumulative of many other similar pieces of
correspondence that were introduced by the defense at trial. Cf. Arizona v. Youngblood, 488 U.S.
51, 71, 109 S.Ct. 333, 344, 102 L.Ed.2d 281 (1988) (to be material, exculpatory evidence must be
more than merely cumulative). Thus, we affirm the district court's denial of relief on Neelley's
Brady claim as well.
CONCLUSION
For the aforementioned reasons, we conclude that the district court did not err in denying
Neelley's petition for a writ of habeas corpus.
AFFIRMED.
11
One of the pieces is a letter written on Neelley's behalf from Marion Mixon, an attorney in
Albany, Georgia, to the Georgia Department of Human Resources, which Neelley claims would
have aided her in contacting this former attorney. However, Neelley made no showing that she
could not have contacted Mixon without the letter; indeed, a letter from Alvin Neelley
introduced at trial refers to Mixon. The second piece is a letter to Alvin Neelley's mother from
his former wife, which has no bearing on Judy Neelley's defense. The final piece is a document
with the heading "Classification Committee Actions" that shows Alvin Neelley's job assignment
in prison as that of Chaplain's Aide.