Scott v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit

AUG 26 2002
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SIDNEY SOREN SCOTT,

Petitioner - Appellant - Cross-
Appellee,
v.
Nos. 00-7103, 00-7106
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee - Cross-
Appellant.

Appeal from the United States District Court
for the E. District of Oklahoma
(D.C. No. CIV-97-475-S)

Randy A. Bauman, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, (W. A. Drew Edmondson,
Attorney General of Oklahoma, with him on the brief), Oklahoma City,
Oklahoma, for Respondent-Appellee.

Before SEYMOUR, LUCERO, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.
 Sidney Soren Scott, an Oklahoma state prisoner, appeals the denial, in part,

of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Scott was

convicted of first-degree murder and sentenced to death after the jury found the

existence of two aggravating circumstances—that the murder was committed to

avoid arrest and that Scott was a continuing threat to society. The district court

denied habeas relief on fifteen grounds, but granted relief upon concluding that

Morgan v. Illinois, 504 U.S. 719 (1992), was violated during voir dire. Scott

raises seven claims of error on appeal, and the State of Oklahoma in turn

challenges the district court’s grant of habeas relief based on Morgan. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s grant of

habeas relief on the alternate ground that the prosecution suppressed material

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Because we

affirm the grant of relief based on Scott’s Brady claim, we do not address the

Morgan claim.

I

On February 16, 1990, Henry A. Mattocks was found dead with his throat

cut. His partially burned pickup truck was found east of where his body was

discovered. Evidence presented at trial revealed that Neal Rinker, Ramona

Rinker, Janie Bishop, Edwin Monks, Dean Monks, Ronald “Pete” Seymour, Keith

Boggs, and Scott had a party at the Brooken Cove Motel in Enterprise, Oklahoma,

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where they consumed tequila and two or three cases of beer during the evening of

February 15, 1990, and the early morning hours of February 16, 1990. After

arriving at the Brooken Cove Motel, the group walked to Jack’s Lounge, located

across the parking lot from the motel, where they met Mattocks. Neal Rinker

testified that Scott told him that he needed about $150 to pay a citation and that

he planned on taking the money from Mattocks. After the lounge closed, the

group moved the party back to the motel. Mattocks was on his way home when

he discovered he had a flat tire. He approached the group in their motel room to

ask for assistance and socialized with them after the tire was changed.

Scott left the motel room after apologizing for an argument he previously

had with Bishop, stating that he had found a ride and that no one should worry

about him getting home. Remaining members of the group left the room around

2:00 a.m. and drove to Monks’s mother’s house in Stigler, Oklahoma, arriving

between 4:00 and 4:30 in the morning—after taking an indirect route that would

have taken them in the direction of the homicide scene.

Two witnesses testified that they saw Scott walking along the highway

between Quinton, Oklahoma, and Enterprise, just north of Quinton around 6:30 or

7:00 on the morning of February 16, 1990. One of the witnesses testified that she

did not see any stains or spots on Scott’s clothing and that she would have noticed

if there had been any.

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 Several individuals present at the motel on February 15, 1990, testified that

Scott later made inculpatory statements to them concerning the murder. Neal

Rinker testified that Scott told him that he killed Mattocks. He stated that Scott

said that he had an altercation with Mattocks that began as a wrestling match, but

that he then cut Mattocks’s throat, left him “lying dead,” and took eleven dollars

from his wallet. (Tr. at 420.) Rinker also testified that Scott mentioned that he

had burned Mattocks’s truck. Bishop said that she heard Scott say something

about the homicide both at Monks’s house and while a small group was walking

to Ramona Rinker’s grandmother’s house. Ramona Rinker testified that she heard

Scott tell Bishop that there was no way Mattocks could be alive because he had

cut him “from jugular to jugular.” (Id. at 512.)

Finally, Monks testified that Scott confessed to him and that Scott tried to

get Monks to provide an alibi for him. When Monks refused, Scott held up a

knife and asked if someone would get rid of it for him. Monks said he would and

Boggs drove Monks and Bishop to a coal strip pit north of Stigler where Monks

threw the knife in the pit. Law enforcement officers found the knife in the strip

pit based on information provided by Monks.

Scott was found guilty of first degree murder. During the sentencing stage

of the trial, Neal Rinker again testified on the State’s behalf. Rinker’s testimony

was instrumental in supporting the continuing threat aggravator. He stated that

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Scott told him that the murder did not bother him “because it wasn’t his first

time” and that Scott often told people that Mattocks’s murder was not his first.

(Tr. at 763, 782.) In addition, Ramona Rinker testified that Scott sent her an

envelope from jail with three letters, one for herself, one for Neal Rinker, and one

for Bishop. Bishop stated the letter she received from Scott was “[a] letter

threatening my life.” (Id. at 807.)

Scott was sentenced to death after the jury found the existence of two

aggravating factors—that he committed murder to avoid arrest and that he was a

continuing threat to society. On direct appeal the Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed Scott’s conviction and sentence, Scott v. State, 891

P.2d 1283 (Okla. Crim. App. 1995), and the Supreme Court denied certiorari,

Scott v. Oklahoma, 516 U.S. 1077 (1996). Scott’s application for post-conviction

relief was also denied by the OCCA. Scott v. State, 942 P.2d 755 (Okla. Crim.

App. 1997). Scott subsequently filed a petition for a writ of habeas corpus, which

the district court granted based on the trial court’s failure to determine whether

the jurors that sentenced Scott to death were qualified to consider life

imprisonment and life imprisonment without parole as appropriate punishments

for a first degree murder conviction, as required by Morgan v. Illinois, 504 U.S.

719, 733–34 (1992). Arguing that the Morgan claim is unexhausted and is

procedurally barred, the State has challenged this grant of habeas relief. Scott

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contends the district court erred in denying relief on five claims: that the

prosecution suppressed material evidence in violation of Brady; that his right to

confront a state witness was violated when the trial court prohibited two lines of

cross-examination; that the trial court’s determination of his competency was

made under an unconstitutional standard; that his trial counsel was ineffective in

failing to conduct adequate investigation, failing to obtain a mental health expert,

and failing to obtain an alcohol intoxication expert; and that his appellate counsel

was ineffective in failing to raise the Brady and ineffective assistance of trial

counsel claims. Because Scott filed his petition for a writ of habeas corpus after

the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), this appeal is governed by the Act’s provisions. Under AEDPA, we

review those claims that were adjudicated on the merits by the Oklahoma courts

to determine whether the adjudication “(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. § 2254(d).

II

Scott contends that the prosecution concealed material evidence of another

individual’s confession to the Mattocks murder in violation of Brady, and that this

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violation of his due process rights entitles him to a new trial.

A letter written by Rinker to Douglas Fitzgerald is the first piece of

potentially exculpatory evidence withheld from Scott. Scott’s attorneys did not

become aware of its existence until after the trial ended. March 9, 1990, is the

date on the letter, which was just after the murder of Mattocks on February 16,

1990, and months before the trial. Rinker wrote the following:

I just read your letter and I don’t fucking like it. You write
about Andrea only. Ramona is my wife and always will be so face it.
Doug I’m not the kid you used to know. I’ll kill some-body deader
than hell over my family. So don’t try taking it, all you have to do is
write some-one here they’ll tell you how I am now you could asked
some-one else but as you have already heard he got his throat cut and
his head detached.

(Initial Applic. Post-Conviction Relief (“Applic.”) App. 2 Ex. A at 2.) In April

1990 the lead prosecutor received this letter from a state investigator. The

prosecutor admits that he did not notify Scott’s counsel of its existence until after

Scott was convicted of murder and sentenced to death. (See M. New Trial Tr. at

71–73.) Once Scott learned of the letter, he moved for a new trial, characterizing

the contents as a confession by Rinker to the murder of Mattocks. That motion

was denied because the trial judge was “not sure that that letter would have done

anything other than to possibly impeach or aid in impeaching Rinker’s testimony;

I don’t think it would make that much difference.” (Id. at 88.)

J.C. Marshall’s statements are the second piece of potentially exculpatory

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evidence withheld from Scott. Marshall had spoken to police investigators prior

to Scott’s trial concerning statements that Rinker had made about the Mattocks

murder. This evidence was discovered by Scott’s appellate counsel while

preparing Scott’s application for post-conviction relief. Marshall, who was

working at the home of Rinker’s mother fixing one of her cars, told investigators

first that he had overheard Rinker confess to his mother that he had murdered

Mattocks, and second that Rinker had repeated the confession directly to him. In

an affidavit filed with the application for post-conviction relief, Marshall stated:

1. Following the death of Henry Mattocks and prior to the trial of
Sidney Scott I walked in on a conversation between Charlotte Rinker
and her son Neal Rinker at Charlotte’s house. This was shortly after
Sidney Scott was arrested.

2. I was over at Charlotte (McCoy) Rinker’s house working on one of
her cars. I went into the house to get a cup of coffee. As I walked
through the back door of the house, I heard Neal Rinker say that he
had killed the old man. Charlotte asked him if it was true and he said
“yes, I killed him.” I asked what he was talking about. Neal said
“didn’t you know they got Sid for killing that old man? It wasn’t
Sid, it was me.” Neal said he cut the old man’s throat.

(Applic. App. 2 Ex. B at 1.) Before Scott’s trial, police investigators spoke with

Marshall, and he told them about his conversation with Rinker. According to

Marshall’s affidavit, however, the investigators told him “because it was hearsay I

didn’t have the right to say anything. They said that they would not need me at

trial. I never heard anything more from them.” (Id.) Shelly Marshall, Marshall’s

wife at the time of these events, was present during this conversation with the

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police investigators and submitted an affidavit corroborating Marshall’s account

of the conversation.

Scott also notes a third situation involving an alleged confession by Rinker.

According to an affidavit submitted by Carl McConnell, Ramona Rinker told

McConnell that Neal Rinker “wrote her a letter from prison admitting he had cut

Henry Mattock’s [sic] throat.” (Applic. App. 2 Ex. Q at 1.) Scott does not

contend that this statement, reputedly made post-trial, was ever in the possession

of prosecutors or improperly withheld from him. Therefore, this alleged

confession will not be considered in our Brady analysis.

A

Scott raised his Brady claims during the Oklahoma post-conviction

proceedings, and the OCCA deemed them procedurally barred. Scott, 942 P.2d at

758–59. Under Oklahoma’s post-conviction procedure act, for each of Scott’s

Brady claims, he had to demonstrate (1) that the claim was not and could not have

been raised on direct appeal and (2) that the claim supports a conclusion that

either the outcome of the trial would have been different but for the errors or that

the defendant is factually innocent. Okla. Stat. tit. 22, § 1089(C). Because

Rinker’s March 9 letter was the subject of a motion for a new trial, the OCCA

concluded that Scott waived the Brady claim based on this evidence because the

trial court’s ruling was not appealed. Scott, 942 P.2d at 758. In reviewing the

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Brady claim based on the Marshall evidence, the OCCA stated that it was “unable

to conclude that this claim could not have been raised on direct appeal” and

moreover that it could not “conclude that this claim would have changed the

outcome of the trial or that it supports a claim that Scott is factually innocent.”

Id. at 758–59. 1

Because the OCCA decided that Scott defaulted his Brady claims by failing

to raise them on direct appeal, the State contends that this is an adequate and

independent state procedural ground for denying Scott relief. We are precluded,

under Coleman v. Thompson, from reviewing procedurally defaulted claims

unless “the prisoner can demonstrate cause for the default and actual prejudice as

a result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.” 501 U.S.

722, 750 (1991). Scott responds that he can establish cause to excuse this default

based on the State’s concealment of the Brady evidence and ineffective assistance

of appellate counsel.

1
The OCCA’s procedural-bar determination that disclosure of the Marshall
evidence would not have changed the outcome of Scott’s trial is not a
determination on the merits of Scott’s Brady claim. The standard applied by the
OCCA—whether “the outcome of the trial would have been different,” Scott, 942
P.2d at 758 (emphasis added)—is more stringent than Brady’s materiality test,
which, as stated below, requires only a showing that“there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different,” United States v. Bagley, 473 U.S. 667,
682 (1985) (emphasis added).

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 Cause for a procedural default can exist when “some objective factor

external to the defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Such an external

factor might, for example, be proven by “a showing that the factual or legal basis

for a claim was not reasonably available to counsel, . . . or that some interference

by officials made compliance impracticable.” Id. (quotations omitted). Scott

contends that his appellate counsel was unable to comply with the procedural

rules of the OCCA because the State suppressed the Marshall evidence. 2 In

examining whether there is cause to excuse Scott’s failure to raise this claim on

direct appeal, we must evaluate counsel’s actions in light of the information

counsel had, or reasonably could have had, at the time of the direct appeal.

In Strickler v. Greene, the Court noted that “[i]n the context of a Brady

claim, a defendant cannot conduct the ‘reasonable and diligent investigation’

mandated by [McCleskey v. Zant, 499 U.S. 467 (1991),] to preclude a finding of

procedural default when the evidence is in the hands of the State.” 527 U.S. 263,

287–88 (1999). As the Court explained in Amadeo v. Zant,

2
One of the prosecution’s duties is to disclose exculpatory evidence to the
defense even when there has been no request by the accused, United States v.
Agurs, 427 U.S. 97, 107 (1976), reversed on other grounds by United States v.
Bagley, 473 U.S. 667, 682 (1985), and this duty encompasses impeachment
evidence, Bagley, 473 U.S. at 676.

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 If [material evidence] was not reasonably discoverable because it was
concealed by [government] officials, and if that concealment, rather
than tactical considerations, was the reason for the failure of
petitioner’s lawyers to raise the jury challenge in the trial court, then
petitioner establishes ample cause to excuse his procedural default
under this Court’s precedents.

486 U.S. 214, 222 (1988).

There is no evidence that Scott was aware of the existence of the Marshall

evidence at the time of his direct appeal; at that time he was only aware of the

Rinker letter. Scott, of course, had no reason to believe that the State was

concealing additional potentially exculpatory evidence. See Strickler, 527 U.S. at

286 (“Mere speculation that some exculpatory material may have been

withheld . . . [should not] impose a duty on counsel to advance a claim for which

they have no evidentiary support.”). Simply stated, appellate counsel could not

have raised the Brady claim based on the Marshall evidence during direct appeal

because she was unaware of it due to the State’s concealment. 3

There are two factual bases underlying the Brady claims: the first is

Rinker’s March 9 letter, and the second is the Marshall evidence. Appellate

3
Although the Supreme Court in Strickler specifically did not address “the
impact of a showing by the State that the defendant was aware of the existence of
the documents in question and knew, or could reasonably discover, how to obtain
them” because that issue was not before the Court, 527 U.S. at 288 n.33, we do
not have to address this issue because Scott was not aware that the Marshall
evidence existed until he and his counsel were preparing his petition for post-
conviction relief.

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counsel was aware of the letter evidence but did not pursue it on appeal. Counsel

could have made a reasonable tactical decision not to pursue this claim on appeal

because the letter did not directly tie Rinker to Mattocks’s murder and it is

questionable whether, on its own, the letter would satisfy the Brady materiality

requirement. Counsel could not, however, have made a tactical decision not to

pursue a Brady claim based on the Marshall evidence because she was unaware of

it. This evidence is much stronger than the March 9 letter because it specifically

mentions facts that enable one to conclude that Rinker explicitly confessed to the

murder of Mattocks. As noted earlier, Marshall informed state investigators that

he overheard Rinker tell his mother that he had killed Mattocks by slicing his

throat, and that Rinker then confessed the same information to Marshall himself,

with Rinker noting that law enforcement officials “got” Scott for the crime.

(Applic. App. 2 Ex. B at 1.)

Scott’s Brady claim based on the Marshall evidence was determined to be

procedurally defaulted by the OCCA because it found that the claim could have

been raised on direct appeal. This conclusion is based on a factual determination.

Pursuant to 28 U.S.C. § 2254(e)(1) this fact is “presumed to be correct” and Scott

has “the burden of rebutting the presumption of correctness by clear and

convincing evidence.”

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 There can be no dispute that the OCCA was presented with the factual

argument underlying Scott’s Brady claims. In his application for post-conviction

relief, Scott stated that the State withheld two pieces of exculpatory evidence in

violation of Brady—the Rinker letter and the Marshall evidence. Scott noted that

the claim, “as it was available on direct appeal, has now been further bolstered by

discovery of [a] second withheld confession of the same State’s witness.”

(Applic. App. 1 at 25 n.7.) He informed the OCCA that the Marshall evidence

had not been supplied to the defense and had been “discovered only recently in

the course of the post-conviction investigation.” (Id. at 7.)

Without knowledge of the Marshall evidence, Scott could not argue on

direct appeal that the prosecution impermissibly suppressed it. It is not a

petitioner’s responsibility to uncover suppressed evidence. Cf. United States v.

Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999) (noting that defense counsel’s

knowledge of exculpatory evidence is only relevant in determining materiality

because “whether a defendant knew or should have known of the existence of

exculpatory evidence is irrelevant to the prosecution’s obligation to disclose the

information” (citing Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995))).

Despite knowledge of these facts, the OCCA did not state how Scott could have

raised this claim earlier. Because the State concealed this evidence, Scott was

prevented from making the Brady claim on appeal, and we conclude that Scott has

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rebutted the presumption that he could have raised his Brady claim based on the

Marshall evidence on direct appeal. 4

The State’s failure to disclose the information constitutes cause to excuse

Scott’s procedural default because the State’s concealment of the evidence is an

4
Although it is possible to see Scott’s Brady claims as being predicated
upon one factual basis—Rinker’s confession—such a conception would lead, in
some circumstances, to an untenable result. If appellate counsel is faced with a
weak Brady claim and does not raise it on direct appeal, counsel will most likely
not be deemed ineffective for having chosen to focus on arguments that are more
likely to prevail. As we explained in United States v. Cook:

The Sixth Amendment does not require an attorney to raise every
nonfrivolous issue on appeal. Consequently, appellate counsel
engage in a process of winnowing out weaker arguments on appeal
and focusing on those more likely to prevail. The weeding out of
weak claims to be raised on appeal is the hallmark of effective
advocacy, because every weak issue in an appellate brief or argument
detracts from the attention a judge can devote to the stronger issues,
and reduces appellate counsel’s credibility before the court.

45 F.3d 388, 394–95 (10th Cir. 1995) (quotations and citations omitted). An
appellate counsel’s decision to raise particular claims on appeal is based on
evaluating the strength of those arguments in light of the available facts and law.
If additional, stronger Brady evidence subsequently emerges, counsel’s initial
calculus for deciding what claims to raise on appeal would presumably have been
altered. If we were to treat this later Brady evidence as subject to the same
procedural default as the weaker evidence, we would only be encouraging counsel
to protect against such a potentiality by continuing to press weak claims in all
circumstances. We will not require counsel to raise borderline claims on appeal
in order to prevent a procedural default of a subsequent claim based on related,
but previously unavailable, evidence.
The OCCA reasonably analyzed the two evidentiary bases for this claim
separately, and we likewise conclude that each piece of concealed evidence
constitutes a separate basis for a Brady violation.

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“objective factor external to the defense [that] impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray, 477 U.S. at 488. For the

reasons discussed below, we conclude that the Marshall statements constitute

Brady evidence that the prosecution had a duty to disclose to Scott. Therefore

Scott has also established prejudice to overcome his procedural default.

B

To establish a Brady violation, Scott must demonstrate that “(1) the

prosecution suppressed evidence; (2) the evidence was favorable to the accused;

and (3) the evidence was material to the defense.” Banks, 54 F.3d at 1516. Scott

satisfies the first prong of this test because the State does not refute that the

Marshall evidence was known by police investigators—and by inference the

prosecution, see Kyles v. Whitley, 514 U.S. 419, 437–38 (1995)—before Scott’s

trial but was nevertheless not given to Scott. Scott also meets the second Brady

prong because an alleged confession by an individual other than Scott is

undeniably “favorable” to Scott. In order for the Marshall affidavit to be

material, there must be a reasonable probability that, “had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is

a “probability sufficient to undermine confidence in the outcome.” Id. (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)); see also Banks, 54 F.3d at

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1518. A showing of materiality “does not require demonstration by a

preponderance that disclosure of the suppressed evidence would have resulted in

the defendant’s acquittal (whether based on the presence of reasonable doubt or

acceptance of an explanation for the crime that does not inculpate the

defendant).” Kyles, 514 U.S. at 434; cf. Williams v. Taylor, 529 U.S. 362, 406

(2000) (noting, in the context of an ineffective assistance of counsel claim, that to

require a prisoner to show by a preponderance of the evidence that the result of

his criminal proceedings would have been different would be “diametrically

different, opposite in character or nature, and mutually opposed to our clearly

established precedent . . . that the prisoner need only demonstrate a reasonable

probability that . . . the result of the proceeding would have been different”

(quotations omitted)).

Based on its reading of Oklahoma law, the district court concluded that the

suppressed evidence at issue is hearsay and would have been admissible only for

impeachment purposes and not as substantive evidence. Although Rinker’s

statement was one against penal interest, such a statement is only an exception to

the hearsay rule under Oklahoma rules if the declarant, Rinker, was unavailable at

the time of trial. See Okla. Stat. tit. 12, § 2804(B)(3); Cooper v. State, 671 P.2d

1168, 1173 (Okla. Crim. App. 1983). Under Oklahoma law a witness is

unavailable if he invokes his constitutional privilege against self-incrimination

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and refuses to testify, Funkhouser v. State, 734 P.2d 815 (Okla. Crim. App. 1987),

refuses to testify concerning the subject matter despite a court order to do so,

testifies to a lack of memory regarding the subject matter, or is not present to

testify. See Okla. Stat. tit. 12, § 2804(A). Scott argues that the Marshall

evidence could have been admitted as substantive evidence if, when confronted

with the evidence, Rinker admitted he confessed or took the Fifth Amendment and

refused to answer. Had Rinker denied making the alleged confession, the

Marshall evidence would have been admissible only for impeachment purposes.

Whether the evidence would have been admissible as substantive 5 or

impeachment evidence does not alter our conclusion that the evidence is subject

to disclosure under Brady. Even assuming the evidence is only admissible as

impeachment evidence, the Supreme Court has held that such evidence is subject

5
Addressing the importance of third-party confessions in murder cases,
Justice Holmes dissented from the Court’s affirmance of a trial court’s decision to
exclude a third party’s confession to a murder in Donnelly v. United States, 228
U.S. 243 (1912). He noted that “no other statement is so much against interest as
a confession of murder.” Id. at 278 (Holmes, J., dissenting). Later the Court
adopted Justice Holmes’s view in Chambers v. Mississippi, stating that the
mechanical application of hearsay rules can “defeat the ends of justice” because
constitutional rights are directly affected and “the ascertainment of guilt [is]
implicated.” 410 U.S. 284, 302 (1973). Rinker’s confessions to his mother and
Marshall were made a short time after Mattocks was murdered, the confessions
were “self-incriminatory and unquestionably against interest,” and because Rinker
testified at the trial he was present “if there was any question about the
truthfulness of the extrajudicial statements.” Id. at 300–01; see also Green v.
Georgia, 442 U.S. 95, 97 (1979). Therefore it is possible that the Marshall
evidence could have been admitted as substantive evidence.

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to disclosure under Brady: “[W]hen ‘the reliability of a given witness may well

be determinative of guilt or innocence,’ nondisclosure of evidence affecting

credibility falls within [the] general rule [of Brady].” Giglio v. United States,

405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 317 U.S. 264, 269 (1959)).

Nonetheless, impeachment Brady material will only require a new trial “if the

false testimony could . . . in any reasonable likelihood have affected the judgment

of the jury.” Id. (quotation omitted).

Scott contends that impeaching Rinker with Marshall’s testimony would not

only have undermined Rinker’s credibility, but also that of Monks, Bishop, and

Ramona Rinker: “If the jury had disbelieved Rinker, they would have inevitably

discounted the ‘party line’ espoused by the witnesses associated with Rinker . . . .

Jurors could readily have believed the State’s witnesses associated with Rinker

were protecting him at Mr. Scott’s expense.” (Appellant’s Br. at 22.) Based on

the testimony presented at trial, Rinker, Monks, Bishop, and Ramona Rinker were

together from the time that Scott left the motel room in Enterprise to the time that

Scott returned to Monks’s home the following day, where he allegedly confessed

to killing Mattocks. Impeaching Rinker’s testimony could reasonably call into

question the credibility of Monks, Bishop, and Ramona Rinker because their

interests were bound together due to their testimony that they were together at the

time Mattocks was killed and at the time Scott confessed.

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 When analyzing a Brady claim, we do not “reweigh evidence, assess the

credibility of witnesses, and decide whether the [suppressed evidence] establishes

the guilt of [a third party] beyond a reasonable doubt or exonerates [petitioner].”

Banks, 54 F.3d at 1521. We also do not determine “whether the State would have

had a case to go to the jury if it had disclosed the favorable evidence, but whether

we can be confident that the jury’s verdict would have been the same.” Kyles,

514 U.S. at 453. In this case our confidence in the jury’s verdict is undermined

by the prosecution’s failure to provide Scott with the Marshall evidence. There is

a reasonable probability that the outcome of the trial would have been different

had the prosecution provided Scott with the evidence that Rinker allegedly

confessed to killing Mattocks. This evidence could have been used to impeach

Rinker, and it also could have cast serious doubt on the testimony of Monks,

Bishop, and Ramona Rinker.

Having determined that Scott has shown cause and prejudice to excuse the

procedural bar with respect to the Brady claim based on the suppressed Marshall

evidence, and having concluded that the Marshall evidence is both exculpatory

and material, we grant Scott habeas relief on this claim.

III

We GRANT Scott habeas corpus relief based on a violation of Brady and

order a new trial. Because of our grant of habeas relief on this claim, we decline

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to address the remaining claims of error.

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