FILED
United States Court of Appeals
Tenth Circuit
March 26, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
YANCY LYNDELL DOUGLAS,
Petitioner-Appellant,
v. Nos. 01-6094
& 06-6091
RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,
Respondent-Appellee.
_______________________
PARIS LAPRIEST POWELL,
Petitioner-Appellee/
Cross-Appellant,
v.
Nos. 06-6093
*
RANDALL G. WORKMAN, Warden, & 06-6102
Oklahoma State Penitentiary,
Respondent-Appellant/
Cross-Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(Douglas D.C. Nos. CV-99-75-C and CV-02-101-C;
*
Pursuant to Fed. R. App. P. 43(c)(2), Randall G. Workman is substituted
for Marty Sirmons as Warden of the Oklahoma State Penitentiary, effective
December 15, 2008.
Powell D.C. No. CV-00-1859-C)
Cases Argued Separately But Combined on Disposition:
Randy A. Bauman, Assistant Federal Public Defender, Oklahoma City, Oklahoma
(John M. Stuart of Stuart, Frieda & Hammond, P.C., Duncan, Oklahoma, with him
on the briefs), for Petitioner-Appellant Douglas.
Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General, with him on the briefs), State of Oklahoma, Oklahoma City,
Oklahoma, for the State.
Jack Fisher of Edmond, Oklahoma, for Petitioner-Appellee/Cross-Appellant
Powell.
Before HENRY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.
Per Curiam.
Following the death of Shauna Farrow and the wounding of Derrick Smith,
Yancy Lyndell Douglas and Paris LaPriest Powell were each convicted of first
degree malice murder and shooting with intent to kill. Mr. Douglas and Mr.
Powell were tried separately, almost two years apart, 1 and both juries found that
their respective defendants knowingly created a great risk of death to more than
one person. Both juries also assessed the death penalty to their defendants for the
murder of Shauna Farrow, and sentenced them to life imprisonment for the
1
The cases were severed for trial. Mr. Douglas was tried in October 1995.
Mr. Powell was tried in May 1997.
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shooting of Derrick Smith. Smith was the key witness at both trials.
Both defendants exhausted their state court remedies. Douglas v. State,
951 P.2d 658 (Okla. Crim. App. 1997) (Douglas I) (direct appeal); Douglas v.
State, 953 P.2d 349 (Okla. Crim. App. 1998) (Douglas II) (collateral review);
Powell v. State, 995 P.2d 510 (Okla. Crim. App. 2000) (direct appeal) (Powell I);
Powell v. State, PCD-1999-719 (Okla. Crim. App. Mar. 17, 2000) (Powell II)
(collateral review). The defendants then initiated federal habeas proceedings.
In his federal habeas petition filed on August 2, 1999, Mr. Douglas asserted
that numerous constitutional errors infected his trial. The district court denied the
petition. Douglas v. Gibson, No. CIV-99-75-C (W.D. Okla. Jan. 10, 2001)
(Douglas III). Before Mr. Douglas’s appeal was heard in this court, however,
Smith recanted his identification of Mr. Douglas and Mr. Powell and alleged that
the prosecuting attorney, Brad Miller, had suborned perjured testimony from him,
which he provided in exchange for favorable treatment, and that Miller had also
elicited false testimony from him denying the existence of any deal for his
testimony. On December 12, 2001, we granted Mr. Douglas’s request to file a
second habeas petition pursuant to 28 U.S.C. § 2244 (b)(3)(c) and we abated his
pending appeal of the first petition. 2
2
When we briefly reviewed Mr. Douglas’s petition for permission to file a
second or successive § 2254 petition, we concluded he had made a prima facie
showing that he could meet the requirements of § 2244(b)(2), and we remanded
(continued...)
-3-
On September 20, 2001, Mr. Powell filed his federal habeas petition
incorporating allegations concerning the newly discovered evidence. After a joint
evidentiary hearing was held on the new allegations in the Douglas and Powell
petitions, the district court granted Mr. Powell’s petition 3 and denied Mr.
Douglas’s. 4
On appeal, Mr. Douglas asserts, inter alia, due process claims relating to
the prosecutor’s egregious conduct when he vouched for the credibility of the key
witness, Derrick Smith, by using false testimony he elicited from Smith,
suppressed exculpatory evidence of his agreement to assist Smith with his
numerous legal difficulties in exchange for his favorable testimony, and failed to
correct Smith’s false testimony that no deals were made. The State of Oklahoma
appeals the grant of Mr. Powell’s petition, and Mr. Powell cross-appeals the
2
(...continued)
the matter to the district court to determine whether the petition did in fact satisfy
the requirements of that section. See 28 U.S.C. § 2244(b)(3)(C) (“The court of
appeals may authorize the filing of a second of successive application only if it
determines that the application makes a prima facie showing that the application
satisfies the requirements of this subsection.”). Rather than review Mr. Douglas’s
claim under § 2244(b)(2), the district court proceeded directly to the merits of the
claim. Mr. Douglas’s appeal of that determination gives us another opportunity to
assess whether his claim is second or successive. As discussed infra, we have
concluded that it is not.
3
Powell v. Mullin, No. CIV-00-1859-C (W.D. Okla. Jan. 31, 2006) (Powell
III).
4
Douglas v. Mullin, No. CIV-02-101-C (W.D. Okla. Jan. 31, 2006)
(Douglas IV).
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conditional nature of the writ granted to him. We consolidated the appeals. We
affirm the district court’s order granting Mr. Powell conditional habeas relief.
We reverse the district court’s refusal to grant habeas relief to Mr. Douglas, and
we remand to the district court with instructions to grant the writ as to Mr.
Douglas’s convictions and sentence, subject to the State’s right to retry him.
I
The Murder 5
Derrick Smith, a member of the Southeast Village Crips, spent the
afternoon and evening of June 24, 1993, with his friends at the Ambassador Court
Apartments in Oklahoma City. Smith, then seventeen, was drinking alcohol and
smoking numerous marijuana joints with his gang associates. Fourteen-year-old
Shauna Farrow was also at the apartment complex. Around 11:00 p.m., Smith
began riding his bike home. When he caught up with Farrow, who had left
shortly before, he dismounted his bike to walk along with her. Other than the
light from nearby porch lamps, it was a dark night.
According to Smith’s testimony at the trials, he and Farrow were passed
from behind by a grey Datsun hatchback playing loud rap music. The car turned
5
To the extent possible, this narrative draws upon uncontested facts from
testimony at the Douglas and Powell trials, or from the findings of the federal
district court after its evidentiary hearing.
-5-
around at the end of the block and came slowly back toward them, the music no
longer playing. Just as the car passed Smith and Farrow, it stopped and the
driver’s side door opened. Smith saw the driver and front passenger were
crouched forward, as though to let the rear passenger exit the car. 6 Smith saw
something chrome in the driver’s hand aimed at him, and then saw flashes as
gunfire came from the car’s occupants.
Smith was hit once in the left hip and fell over his bicycle onto the nearby
grass. Farrow was backing away with her hands raised when she was hit in the
chest and killed. When Smith saw Farrow collapse, he glanced quickly at the car,
saw continued gunfire, and buried his face in the ground and closed his eyes.
Smith was carrying a loaded .380 semiautomatic pistol; however, he was so
inebriated that he forgot he was armed. After the shooting stopped, Smith heard
the car door shut and one of the shooters say “Fuck ‘em” as the car drove away.
Smith testified at trial that he recognized the voice as Mr. Douglas’s.
Smith crawled behind a camper trailer parked in a nearby driveway. From
there, he testified he saw the assailants’ car stop at a driveway seven houses down
the street. The car doors opened and closed again, and the car drove away. As
6
Both Smith’s identification of the car and identification of the occupants
of the car varied. As detailed below, Smith has at various times identified various
individuals, including both Yancy Douglas and Paris Powell, as being occupants
of the car. Smith has made inconsistent statements about the number of
occupants in the car as well. His description of the make and model of the
vehicle has been similarly inconsistent.
-6-
Smith was crawling, a bag of crack cocaine fell out of his pocket. Smith threw
his gun into the backyard of the house and laid in the yard between the houses
until the police and ambulance arrived. Later investigation of the crime scene
revealed bullets and casings from three different weapons used in the assault.
Smith’s weapon was never recovered.
Earlier on the night of June 24, LaDana and Winter Milton and their friend
Ebony Rhone saw Yancy Douglas and other members of the 107 Hoover Crips at
Pitts Park. The young men were excited and were talking of shooting someone on
the south side of Oklahoma City. The girls watched Mr. Douglas leave the park
in a two-door hatchback. As he left, he fired his gun out of the window of the
vehicle.
Between 12:00 and 1:00 a.m. on June 25, Yancy Douglas drove Paris
Powell to the home of Lawrence Kuykendoll. Mr. Powell had been shot in the
left hand, and Kuykendoll took him to the hospital. Mr. Douglas left
Kuykendoll’s home in the blue two-door Plymouth hatchback in which he and Mr.
Powell had arrived. Mr. Powell was hospitalized for two days and then released
into police custody. On the afternoon of June 25, Mr. Douglas drove the blue
hatchback to Leon Washington’s body shop, apparently at Mr. Powell’s request.
Douglas IV at 21.
Pre-Trial Developments
Smith made several statements to the Oklahoma City police shortly after
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the shooting. At 12:50 a.m. on June 25, he told Officer Williams that four black
men in a four-door blue or grey Datsun shot at him and Farrow, and he identified
Paris Powell, a member of the 107 Hoover Crips, as the car’s driver. Before his
surgery later that day, Smith repeated to Detective Mullenix his identification of
Mr. Powell as the driver, although Smith said he was only fifty percent certain
Mr. Powell was in the car. He also told Detective Mullenix that Anthony Hishaw
and Yancy Douglas were passengers in the car. Finally, shortly after his surgery,
Smith gave Officer Dycus several conflicting versions of the previous night’s
events. First he stated that Mr. Powell was driving the vehicle, then that Mr.
Douglas was. Smith also said he believed the car was Hishaw’s and that Hishaw
was in the vehicle the night of the shooting. Hishaw was, in fact, in prison on
June 24 and 25, 1993. Smith testified he had seen Mr. Powell in the vehicle
before as well. He told Officer Dycus he thought there were seven or eight
people in the car, but then changed his story when the officer said he did not
believe Smith was telling the truth. Smith finally said there were four occupants,
that Mr. Powell was driving, that Mr. Douglas was in the front passenger seat, and
that there were two other passengers he could not identify. In none of his
statements to the police did Smith mention the car stopping in a nearby driveway.
At the preliminary hearing on August 27, 1993, Smith testified in a manner
largely consistent with what his later trial testimony would be: that he was certain
Mr. Powell was the driver and one of the shooters, that the car stopped in a
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driveway up the street from the shooting, and that he guessed the car stopped to
allow a change of driver. However, Smith described the assailants’ car as a grey
Datsun with black louvers on the rear window. Based on how the car sounded as
it drove away, Smith was certain that it had a standard transmission. At the time
of the preliminary hearing, the police had not located the vehicle used during the
shooting.
At the time of the shooting, Smith was facing pending charges in a 1992
cocaine trafficking case. By the time of the preliminary hearing for Mr. Powell
and Mr. Douglas in August 1993, Smith had also been charged with throwing a
rock at a police car. As part of a plea bargain, Smith pled guilty in the drug case
on February 1, 1994, receiving a sentence of 10 years on a reduced charge of
possession with intent to distribute, while the charge in the rock throwing incident
was dismissed. Powell III at 6. In June 1994, after serving four months of his
ten-year sentence, Smith was released on pre-parole under the supervision of the
Oklahoma Department of Corrections (ODOC). Id. Smith’s pre-parole status was
revoked, however, and he was reincarcerated after he was arrested in September
1994 for receiving stolen property. Id.
In March 1995, the police located the vehicle they believed was driven by
the assailants on the night of Farrow’s murder. The vehicle that would become
State Trial Exhibit 2 was not a grey Datsun with black rear-window louvers,
standard transmission, and a loud stereo, but rather a light blue Dodge Omni with
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no window louvers, an automatic transmission, and no stereo.
Also in March 1995, Smith became aware that he would again be
considered for pre-parole release during the parole board’s July 1995 docket. A
parole board investigator interviewed Smith on May 22, 1995, in preparation for
the July review, but issued a negative recommendation on pre-parole based on
Smith’s history of reincarceration and failure to complete prison programs.
In final preparation for Mr. Douglas’s trial, Assistant District Attorney
Brad Miller, who would prosecute both Mr. Douglas and Mr. Powell, issued a
writ of habeas corpus ad prosequendam for Smith, releasing him from ODOC
custody so he could testify about the shooting. Miller wrote a note in his file on
May 25, 1995, three days after Smith’s pre-parole investigation interview, noting
that he had caused the writ to issue and stating that he had spoken to Smith about
the murder case. This was apparently Miller and Smith’s first contact regarding
the Douglas and Powell trials.
Mr. Douglas’s Trial
Mr. Douglas’s trial began on June 20, 1995, with Miller as the lead
prosecutor. Smith’s testimony, and, in particular, his identification of Mr. Powell
and Mr. Douglas as the shooters, was the “linchpin” of the prosecution’s case. 7
7
Although Smith was certainly the prosecution’s key witness, the State also
presented the testimony of Ebony Rhone, Winter Milton, and LaDana Milton, who
placed Mr. Douglas in the car identified at trial as State Trial Exhibit 2 at Pitts
(continued...)
-10-
Douglas IV at 21. For example, he identified State Trial Exhibit 2 as the car
driven by the shooters despite the apparent inconsistencies with his prior
descriptions of it. 8 Miller elicited testimony from Smith denying there was any
deal for Smith’s testimony or even any discussions of help from the District
Attorney’s office. On cross-examination, Smith further denied any quid pro quo
for his testimony, including a denial that he expected Miller to write a letter to the
parole board approving his application for pre-parole status. Indeed, on redirect,
Miller elicited further testimony that Smith never asked Miller to help him and
that Smith received no special treatment on the charges he faced prior to
Douglas’s trial.
Mr. Douglas presented an alibi defense at trial. He testified that he spent
the day of the shooting at his mother’s apartment, leaving only after midnight
when two fellow members of the 107 Hoover Crips drove Paris Powell to his
7
(...continued)
Park on the evening of Farrow’s murder. An additional portion of important
testimony is that of Andrea Laster, who testified at both trials to having seen Mr.
Douglas in the same car the day before the shooting, driving through the
Ambassador Court Apartments and brandishing a gun. Andrea and her sister
Jackie, who did not testify at either trial, subsequently executed affidavits
contradicting Andrea’s identification of the car at trial and suggesting that Miller
abused his authority to coerce testimony they had told him was false. Evid. Hr’g
Exs. 9, 31; see Evid. Hr’g Tr. 310-11. The Lasters allege Miller repeated his
coercive tactics in Mr. Powell’s trial. See Evid. Hr’g Tr. 272-73; Evid. Hr’g Ex.
31.
8
Smith acknowledged in his testimony that he identified the car after being
shown only one photograph of it.
-11-
house and told him that Mr. Powell had been shot. Mr. Douglas testified that he
got into their car with Mr. Powell, who asked Mr. Douglas to drive him to
Lawrence Kuykendoll’s house so that Kuykendoll could take Mr. Powell to the
hospital. After dropping him off, Mr. Douglas testified that he spent the night at
Kim Barnett’s house, arriving sometime after midnight. He also testified that the
next day Mr. Powell contacted him by pager and asked him to take the car to
Leon Washington’s body shop. Mr. Douglas did so that afternoon and was
arrested later the same day.
In his closing argument during the guilt phase of Mr. Douglas’s trial, Miller
emphasized that Smith’s testimony was trustworthy because there was no quid pro
quo between Smith and Miller. Miller pointed to the ten-year sentence Smith
received on the reduced distribution charge as evidence there was no deal, and
contended Smith’s admission that he was carrying drugs and a gun when he was
shot indicated there was no deal. Miller then implored the jury members to
ask yourself if you have seen anything that would indicate to you that
anybody’s trying to convict someone that’s not guilty, trying to be
unfair. Ask yourself again, do you think we don’t have enough to do
over there in the D.A.’s office not to try to work this hard to convict
someone that’s innocent?
Douglas Trial Tr. at 1870-71. Miller made a number of additional comments
during his cross-examination and his guilt-phase closing argument with which Mr.
Douglas takes issue in his habeas petition and this appeal; these statements will
be more fully reviewed in the context of the prosecutorial misconduct challenges
-12-
Mr. Douglas asserts.
Following the guilt-phase closing arguments and the court’s instructions,
the jury convicted Mr. Douglas of one count of murder in the first degree, O KLA .
S TAT ., tit. 21 § 701.7(A), and one count of shooting with intent to kill, O KLA .
S TAT ., tit. 21 § 652. It then considered whether a death sentence was appropriate.
During the penalty phase of Mr. Douglas’s trial, the prosecution sought to
prove aggravating circumstances, including that Mr. Douglas “knowingly created
a great risk of death to more than one person” and “the existence of a probability
that [Mr. Douglas] would commit criminal acts of violence that would constitute a
continuing threat to society,” pursuant to O KLA . S TAT . tit. 21 § 701.12(2) and (7).
Douglas I, 951 P.2d at 658 n.1. Mr. Douglas, in turn, presented mitigating
evidence, including the testimony of Dr. Herman Jones, a psychologist who had
examined him in 1992 to determine his amenability to rehabilitation in connection
with a juvenile offense, but who had not seen him since that time. Id. at 680.
Based in part on Jones’s testimony, defense counsel argued that Mr. Douglas did
not pose a continuing threat. Id.
In his closing arguments at the penalty phase, Miller made further
comments to which Mr. Douglas objects. Of particular note, Miller told the jury
that “[n]one of us has the job of sometime in the future carrying out the
execution. There are other people that do that, if it ever happens. Your job is
simply to make a decision with as much neutrality as you can about what’s
-13-
appropriate in this case.” Douglas Trial Tr. at 2362. Discussing unadjudicated
acts which he argued supported the continuing threat aggravating factor, Miller
suggested to the jury that
if you think for a minute that [Mr. Douglas] had — he had an excuse
for any of these acts of misconduct, could he really show that he was
actually physically, factually not guilty of something, anybody doubt
that he would have done that? . . . Bottom line, he couldn’t prove he
wasn’t guilty because he was guilty.
Id. at 2364. In addition, discussing a potential witness to one of these
unadjudicated acts who refused to testify, Miller noted that
Charles McGee didn’t come in here. You know how difficult it is.
You’ve heard from officers how difficult it is to get these people to
cooperate with the police, even if they’ve been shot. There’s an
example. Nevertheless, it doesn’t diminish — just because no one
will cooperate — it doesn’t in any way diminish [Mr. Douglas’s]
tendency toward violence and the proof that allows for his
probability of violence in the future in whatever society that he’s in.
Id. at 2314. And while discussing another unadjudicated act — a gang fight at the
Crossroads Mall in which Mr. Douglas allegedly participated — Miller asked the
jury, “Anybody know where they were 3-7 of ‘92? . . . I don’t know where I was,
but I could have been at Crossroads. My little kids could have been at
Crossroads.” Id. at 2316.
The jury agreed on two aggravators, the great risk of death to more than
one person and the continuing threat to society. They recommended a sentence of
death for the charge of first degree murder and life imprisonment for the charge
of shooting with intent to kill.
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Post-Trial Developments and Mr. Powell’s Trial
Just one day after Mr. Douglas’s trial concluded, Miller sent a letter to the
parole board in support of Smith’s application for parole from his ten-year
sentence for cocaine possession. Powell III at 7. In the letter, Miller maintained
that his “office gave [Smith] no special treatment in his case. However, he was
required to testify at [the] preliminary hearing and the trial of Yancy Douglas. . . .
[H]e has fully cooperated and truthfully testified in both instances.” Id. Lauding
Smith for “[standing] up like a responsible citizen,” the letter stated Smith was
motivated by the “wrongness of Shawna’s [sic] death.” Id. Miller maintained he
had no agreements with Smith but noted that Smith understood “that he will be
required to testify in Paris Powell’s trial,” as well. Id. at 7-8. Smith was once
again granted pre-parole status and released in October 1995. Id. at 8. Smith
again violated the terms of his release and was reincarcerated in February 1996.
On April 20, 1997, still in ODOC custody, Smith wrote a letter to his
mother. Id. at 8-9. In it, Smith asked her to contact Miller about his
confinement:
What’s up Momma? Have you been calling Cuz? Probably not man
call O Dude and get that hook up to where I can come home from the
county jail or tell him he’s short because I ain’t gone let him put me
in the cross again like he did last time, but he ain’t gone to do shit if
ya don’t continue to call him and let him know what’s going on, it’s
fifteen days before the trial starts and I don’t wanna be up in that
county jail if he ain’t talking write. Tell $em I want 365 days for
helping the state to kill some body cause that’s what he plans to do. .
. . Stay own brad miller and I’ll Holler at you’ll later.
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Id. On April 23, 1997, Brad Miller received a call from the home of Smith’s
aunt, whose phone Smith’s mother commonly used. Apparently in response to the
call, Miller telephoned David Petite, a sentence administration auditor at ODOC.
Miller wrote the following notes regarding the call: “Warden Ron Ward”;
“Derrick Smith”; “coop credits”; and “with credits -> 225 days = 11/11/97.” Id.
at 9. None of this was disclosed to the defense.
Mr. Powell’s trial on charges of first degree murder and shooting with
intent to kill began one week after Miller’s call to ODOC. Id. Smith was again
the State’s key witness, identifying Mr. Powell and Mr. Douglas as the shooters
and State Trial Exhibit 2 as the car they drove. Over defense counsel’s objection,
Miller elicited testimony from Smith that he had not “receive[d] any benefit, any
sort of help on [Smith’s unlawful possession] case as a result of what happened to
[him] in this case.” Powell Trial Tr. at 1066. Miller further elicited a denial from
Smith that at no time during the pendency of the Douglas and Powell charges had
Smith requested any help from Miller. During closing arguments, Miller argued
Smith’s credibility in these terms:
He came to court, he followed the law, he never tried to retaliate, he
told what he knew, he told the truth. He went to prison on his own
case and never asked for a thing. . . . He got a ten year to do [sic]
sentence at 17 years of age for having some cocaine on him. He got
whacked. And nobody interceded because he didn’t want it that way.
Id. at 1612 (emphasis added). Mr. Powell was convicted on both counts. Upon
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the jury’s finding that he had knowingly created a great risk of death to more than
one person, Mr. Powell was sentenced to death on the malice murder charge. He
was sentenced to life imprisonment on the charge for shooting with intent to kill.
On June 27, 1997, a little more than a month after Mr. Powell’s trial
concluded, Warden Boone of ODOC’s Alford Correctional Center replied to a
letter from Smith, stating that Miller had contacted Boone about merit days and
lost credit days for application to Smith’s sentence. As Warden Boone had
explained to Miller, he informed Smith that the “meritorious earned credit policy .
. . was not intended for a reward for testifying in felony cases,” so no merit days
would be awarded to Smith. Evid. Hr’g Ex. 1C. At the same time, Warden
Boone promised to give “serious consideration to the restoration of lost [earned]
credits which would discharge [Smith’s] sentence.” Id. On July 24, Warden
Boone approved the restoration of 400 days’ credit, effectively discharging
Smith’s sentence. Smith was released by ODOC in August 1997.
Subsequent Procedural History and Continuing Assistance to Smith
Both Mr. Douglas and Mr. Powell appealed their convictions to the
Oklahoma Court of Criminal Appeals (OCCA) and later pursued state collateral
relief. In Douglas I, the OCCA affirmed Mr. Douglas’s direct appeal of his
convictions and sentence in the face of some nineteen asserted propositions of
error. 951 P.2d at 681. The asserted errors overlap with grounds Mr. Douglas
would later assert in his federal habeas petition, including prosecutorial
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misconduct, ineffective assistance of counsel, and failure to instruct claims. See
id. at 673-74 (prosecutorial misconduct), 678 (failure to instruct), 679-80
(ineffective assistance of counsel). Mr. Douglas raised an additional claim of
cumulative error in the original application for postconviction relief that he filed
in the OCCA while his direct appeal was still pending. Douglas II, 953 P.2d at
352-54. The OCCA rejected the claims Mr. Douglas raised in the state post-
conviction collateral proceedings. Id. at 354. As with Mr. Douglas, the OCCA
later rejected a broad range of claims asserted by Mr. Powell on direct appeal,
although none of those claims are currently before this court. Powell I, 995 P.2d
at 542. The OCCA likewise denied Mr. Powell’s application for postconviction
relief in an unpublished opinion.
Mr. Douglas filed his initial petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on August 2, 1999, raising ten grounds for relief including the
failure to instruct, prosecutorial misconduct, cumulative error, and ineffective
assistance of counsel. Douglas III (Ground D - failure to instruct); id. at 30-49
(Ground G - prosecutorial misconduct); id. at 53-54 (Ground J - cumulative
error); id. at 54-66 (Ground B - ineffective assistance). The district court denied
all relief on January 10, 2001. Notably, Mr. Douglas filed a timely Rule 59
motion for a new trial and a motion for time to submit affidavits regarding newly
discovered evidence, but these motions were denied. Mr. Douglas then filed a
notice of appeal and, simultaneously, motions in the district court for
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reconsideration and to hold the court’s decision in abeyance to allow exhaustion
of new issues in state court. These motions were likewise denied on March 21,
2001. The district court then granted Mr. Douglas a certificate of appealability
(COA).
While Mr. Powell and Mr. Douglas sought relief from their convictions,
Smith continued his criminal career and his contacts with Brad Miller, the
prosecutor. In October 1997, Smith was arrested for the shooting of Joe Shells
and was charged with assault with a deadly weapon in case No. CF-98-1545.
Miller dismissed the case against Smith, citing insufficient evidence of
identification. In February 1998, Smith committed a drive-by shooting, according
to an information filed in case No. CF-98-1162, but Miller approved dropping the
charges against Smith, purportedly due to lack of cooperation from the victims.
In May 1999, Smith allegedly beat his girlfriend with a baseball bat and was
charged in case No. CF-99-3338 with assault and battery with a dangerous
weapon. On March 8, 2000, before his trial on the assault charge, Smith was
again arrested, and charged in case No. CF-00-1683, this time for trafficking in
crack cocaine. On March 16 of that year, even though he was no longer in the
district attorney’s office, Miller contacted the assistant district attorney
prosecuting Smith in the trafficking case to inform him that Smith had testified in
the Douglas and Powell trials. While again in jail in July 2000, Smith was
arrested on a Texas warrant for a June 2000 murder in Wichita Falls. After his
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conviction in the assault case in January 2001 yielded a fifteen-year sentence,
Smith was offered a deal in March 2001 on the trafficking charge that resulted in
a five-year sentence to run concurrently with his sentence for the assault. This
unusually lenient sentence was a result of Miller’s call to the prosecuting district
attorney. Evid. Hr’g Ex. 32 (affidavit of Smith’s counsel in trafficking case). 9
Smith was indicted for the Texas murder charge in October 2001, pled guilty to a
reduced aggravated robbery charge in December 2002, and received a twelve-and-
a-half-year sentence concurrent with his Oklahoma sentences.
Smith’s Recantation
On May 17, 2001, four months after the district court denied Mr. Douglas’s
initial habeas petition, Smith executed a handwritten affidavit recanting his
identification of Yancy Douglas and Paris Powell as the shooters and asserting
that he had received Miller’s assistance in exchange for his testimony, contrary to
his denials at both trials. Specifically, Smith asserted that he told Miller he was
unable to identify any of the shooters and that he would not testify against either
Mr. Douglas or Mr. Powell unless Miller provided assistance on Smith’s then-
pending trafficking case. Evid. Hr’g Ex. 4, at ¶4. Smith stated that, at his
request, Miller contacted the parole board in 1995 and Warden Boone in 1997 to
9
In fact, Smith’s counsel in that case testified that the assistant district
attorney handling the plea would not initially honor the proposed deal, but was
eventually convinced otherwise by Miller. Evid. Hr’g Ex. 32.
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secure Smith’s release from prison. Miller’s assistance continued after the
conclusion of both trials, according to Smith’s affidavit, including when Miller
dismissed an assault charge against Smith in 1998 under the threat by Smith that
he would reveal his perjury in the trials. Id. at 3. A week later, Smith executed a
second affidavit containing the same allegations. Evid. Hr’g Ex. 1.
Given this evidence, on October 29, 2001, Mr. Douglas filed a motion
asking us to remand to the district court his pending appeal, docketed as case No.
01-6094. Alternatively, he sought permission to file a second habeas petition
pursuant to 28 U.S.C. § 2244(b)(3)(A), asserting as grounds for relief claims
stemming from Smith’s recantation and the suppression of impeachment evidence.
We determined he had made a prima facie case that his application satisfied the
prerequisites of § 2242(b)(2), and we granted him permission on December 12,
2001, to file a second habeas petition in the district court. We entered an order in
No. 01-6094 abating proceedings in the appeal pending disposition by the district
court of the second petition. Mr. Douglas filed the new habeas petition on
January 28, 2002. The district court abated proceedings on that petition on
December 2, 2002, to permit Mr. Douglas to return to state court to exhaust new
claims. Mr. Douglas filed an original application for postconviction relief in the
OCCA on June 12, 2003. The OCCA denied relief on procedural grounds on
August 7, 2003.
In the meantime, Mr. Powell timely filed his initial petition for a writ of
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habeas corpus on September 20, 2001. His first two asserted grounds for relief
were based on Smith’s recantation and allegations that Miller knowingly had
suborned Smith’s perjury and suppressed impeaching evidence. Mr. Powell filed
a motion seeking to excuse his failure to exhaust these claims or, alternatively, to
abate proceedings pending state exhaustion. On December 2, 2002, the district
court abated proceedings on Mr. Powell’s petition and ordered him to return to
state court. Mr. Powell filed a second state application for postconviction relief,
which the OCCA denied on procedural grounds on June 11, 2003.
Even as Mr. Douglas and Mr. Powell filed their habeas petitions based on
Smith’s recantation, however, further developments complicated the picture. On
January 17, 2002, Smith executed a third affidavit repudiating his recantation and
confirming the veracity of his trial testimony. But on May 16, 2002, Smith
executed his fourth affidavit, recanting his repudiation of his recantation and
claiming that his third affidavit had been executed at the direction of investigators
from the Oklahoma State Bureau of Investigation (OSBI) under the threat of a
perjury charge if he did not repudiate his earlier recantations. When Mr.
Douglas’s habeas counsel learned about the OSBI investigation, he filed a joint
application with Mr. Powell’s counsel in the district court for a protective order
and discovery, alleging that witnesses in petitioners’ habeas proceedings were
being threatened with prosecution for perjury. Subsequently, on March 26, 2004,
counsel for Mr. Douglas and Mr. Powell obtained access for the first time to the
-22-
Oklahoma County District Attorney’s files on the prosecutions and were finally
provided documents that lent support to the factual allegations made by Smith in
his recantation affidavits.
Joint Evidentiary Hearing and District Court’s Decisions
Upon requests from Mr. Douglas and Mr. Powell, the district court held a
joint evidentiary hearing on questions raised by Smith’s recantation of his trial
testimony. Although fifteen witnesses testified at the hearing, of particular
importance to the district court was the testimony of Smith and Miller. Smith
testified that everything in his first affidavit recanting his trial testimony was
true, that he was unable to identify anyone in the car during the shooting because
he was intoxicated by marijuana and alcohol and because of the lighting
conditions, that his initial indications were prompted by the statements of
someone else present at the scene of the shooting, and that he told Brad Miller he
could not identify the assailants. Douglas IV at 9. Smith also testified that in his
first meeting with Miller, Miller mentioned his pending trafficking charge and the
crack cocaine Smith had been carrying at the scene of the shooting. Evid. Hr’g
Tr., vol. I at 36-37. Smith said he told Miller he would not testify unless Miller
helped him on his pending trafficking case. Douglas IV at 9; Evid. Hr’g Tr., vol.
I at 37-38. Smith reaffirmed the falsity of his trial testimony identifying Mr.
Powell and Mr. Douglas as the shooters and denying the existence of a deal
between himself and the prosecution. Notably, Smith stated that prior to Mr.
-23-
Douglas’s trial, he and Miller had discussed Smith’s hearing before the parole
board and that Miller promised to help, but only after the trial in order to preserve
Smith’s credibility. Evid. Hr’g Tr., vol. I at 49, 61.
Miller also testified at the evidentiary hearing. He denied that Smith ever
asked for his help prior to either trial or that there was a deal for Smith’s
testimony. Evid. Hr’g Tr., vol. IV at 617-20, 627, 637. Miller stated that Smith
initially did not want help because he did not want to be labeled a snitch. Id. at
614-15. Miller explained that his contact with the parole board after Mr.
Douglas’s trial was motivated by Miller’s respect for Smith’s willingness to
testify, not by a deal, and that Smith was unaware of Miller’s letter. Douglas IV
at 10. Miller also opined that such assistance did not trigger his duty as a
prosecutor to disclose exculpatory or impeaching evidence. Id. at 11.
On January 31, 2006, the district court announced its decision with respect
to Mr. Douglas. It found that the testimony at the evidentiary hearing of both
Smith and Miller was not credible. It stated that no other evidence had been
submitted “to contradict . . . Smith’s testimony in [Mr. Douglas’s] trial denying
the existence of any deals.” Id. at 18. Thus, the court held that Mr. Douglas had
not “presented sufficient facts to raise a serious question about the use and
suppression of false evidence by the State or regarding the existence of a deal
[prior to Mr. Douglas’s trial] in exchange for . . . Smith’s . . . testimony.” Id. at
18, 21. Under the facts presented, the court held that there was “no reasonable
-24-
probability of a different result, and that [Mr. Douglas’s] trial resulted in a verdict
worthy of confidence.” Id. at 21. The court therefore denied Mr. Douglas’s
petition on the merits. The court later granted a COA on the grounds raised in
Mr. Douglas’s petition.
The district court reached a different conclusion as to Mr. Powell. It found
that the testimony at the evidentiary hearing of both Smith and Miller was “highly
suspect.” Powell III at 20. Despite Smith’s repeated changes in testimony, the
court determined that a “[r]eview of the facts convinces the Court that Derrick
Smith’s testimony at [Mr. Powell’s] trial regarding no help or assistance with his
ten-year sentence was false.” Id. at 20. The court found that Miller’s failure to
correct these statements, his emphasis of the point in his own closing argument,
and his failure to turn over to the defense his letter to the parole board and
Smith’s letter to his mother all constituted violations of Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Concluding
that these violations rendered Mr. Powell’s verdict unworthy of confidence, the
court conditionally granted his petition. It dismissed as moot, without prejudice,
Mr. Powell’s other claims. The district court granted a COA permitting Mr.
Powell to appeal the conditional nature of the writ granted him.
The Appeals
In Part II of this opinion, we address in general the applicable standards of
review governing the various claims raised in these appeals. In Part III, we
-25-
discuss Mr. Powell’s Brady and Giglio claims and Mr. Powell’s cross-appeal. We
affirm the district court’s order granting a conditional writ of habeas corpus to
Mr. Powell. In Part IV, we address Mr. Douglas’s petitions, which present a more
complicated procedural challenge. We are persuaded that the unique
circumstances of this case warrant treating Mr. Douglas’s Brady and Giglio
claims as part of his initial habeas petition, specifically as a supplement to his
prosecutorial misconduct claim involving vouching for the credibility of the
eyewitness, Derrick Smith. On that basis, we reverse the district court’s denial of
his habeas petitions. 10
II
Standards of Review
The petitions here were filed after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Thus, our review of the
claims in this appeal are governed by AEDPA’s standards to the extent that the
claims were adjudicated on the merits by an Oklahoma state court. See Williams
v. Taylor, 529 U.S. 420, 429 (2000). We may grant habeas relief on such claims
only if the state court’s decision “was contrary to, or involved an unreasonable
10
Because we reverse Mr. Douglas’s convictions on this basis, we need not
reach the other issues he raises as to the constitutionality of his trial and his
sentence.
-26-
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2). We presume that the state court’s findings
of fact are correct unless rebutted by the petitioner by clear and convincing
evidence. See § 2254(e)(1). We review de novo a district court’s legal analysis
of the state court’s merits decision. Bland v. Sirmons, 459 F.3d 999, 1009 (10th
Cir. 2006).
A state court decision
is contrary to clearly established federal law under section
2254(d)(1) “if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] has on a set
of materially indistinguishable facts.”
Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001) (quoting Williams, 529
at 412-13). “It is not enough that the state court decided an issue contrary to a
lower federal court’s conception of how the rule should be applied; the state court
decision must be ‘diametrically different’ and ‘mutually opposed’ to the Supreme
Court decision itself.” Bland, 459 F.3d at 1009 (quoting Williams, 529 U.S. at
406).
A state court decision is an unreasonable application of federal law
under section 2254(d)(2) “if the state court identifies the correct
governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413. The reasonableness of the state
-27-
court's application of federal law is to be evaluated by an objective
standard. See id. at 409-10. The Supreme Court has cautioned “that
an unreasonable application of federal law is different from an
incorrect or erroneous application of federal law.” Id. at 412
(emphasis in original).
Mitchell, 262 F.3d at 1045.
The deferential AEDPA standards of review do not apply “if the state court
employed the wrong legal standard in deciding the merits of the federal issue.”
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). In addition, the
§ 2254(d) standards “do[] not apply to issues not decided on the merits by the
state court.” Bland, 459 F.3d at 1010. For claims that the state court did not
address on the merits, we review legal conclusions of the district court de novo.
Id. If the district court held an evidentiary hearing pursuant to 28 U.S.C. §
2254(e), as here, we review its factual findings for clear error; if it “based its
factual findings entirely on the state court record, we review that record
independently.” Id. As we discuss further infra, when a state court applies plain
error review in disposing of a federal claim, the decision is on the merits to the
extent that the state court finds the claim lacks merit under federal law. Cargle,
317 F.3d at 1206. Where a state court denies relief “for what it recognizes or
assumes to be federal error, because of the petitioner’s failure to satisfy some
independent state law predicate,” the decision is not on the merits and, assuming
an excuse to procedural bar, “the federal court would be left to resolve the
substantive claim de novo, unconstrained by § 2254(d).” Id.
-28-
Even where we determine an error occurred that might establish relief
under these standards of review, “[u]nless the error is a structural defect in the
trial that defies harmless-error analysis, we must apply the harmless-error
standard” enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993), which holds
that “habeas relief is proper only if the error had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Bland, 459 F.3d at 1009
(quoting Brecht, 507 U.S. at 623). A “substantial and injurious effect” exists
when the court holds at least a “grave doubt” about the effect of the error on the
jury’s verdict. See O’Neal v. McAninch, 513 U.S. 432, 436 (1995). Grave doubt
exists when, “in the judge’s mind, the matter is so evenly balanced that he feels
himself in virtual equipoise as to the harmlessness of the error.” Id. at 435. 11
Because procedural posture determines our standard of review under
AEDPA, which, in turn, is often determinative in habeas cases like this one, a
brief recap of the current posture of Mr. Powell’s and Mr. Douglas’s claims is
appropriate. Our review of Mr. Douglas’s initial habeas claims are governed by
the standards set forth previously. Review of both petitioners’ Brady claims is
more complicated. Neither Mr. Powell nor Mr. Douglas raised a Brady claim in
either of their direct appeals or in their initial applications for state postconviction
11
As we note infra at page 33, note 12, the Brecht standard is met when a
petitioner establishes the Brady prejudice standard. See Mitchell v. Gibson, 262
F.3d 1036, 1062 n.13 (10th Cir. 2001).
-29-
collateral review. The facts underlying the claims came to light before Mr.
Powell filed his federal habeas petition, but only after the district court entered its
decision on Mr. Douglas’s federal habeas petition and his appeal was pending
before us. Although Mr. Powell was able to include the Brady claim in his habeas
petition, it was necessary for Mr. Douglas to request permission from us to file an
additional petition to include his similar Brady claim because the claim was
unavailable to him earlier through no fault of his own, as we discuss infra. As we
also discuss infra, we have concluded that because of the unique circumstances of
this case, Mr. Douglas’s Brady claim is more appropriately characterized as a
supplement to his initial claims of prosecutorial misconduct, and we address it
accordingly.
With respect to the Brady claims, the district court stayed its proceedings
on the respective pending petitions to permit Mr. Douglas and Mr. Powell to file
second applications for state postconviction collateral relief to exhaust their
claims. The OCCA denied both applications on strictly procedural grounds,
holding that the claims were barred by Rule 9.7(G)(3), Rules of the Court of
Criminal Appeals, 22 O KLA . S TAT . Ch. 18, app. (2003), which requires successive
postconviction petitions to be filed “sixty (60) days from the date the previously
unavailable legal or factual basis serving as the basis of the claim for the new
issue is . . . discovered.” The district court determined that the State’s procedural
bar was inadequate to prevent its review because the bar had not been
-30-
evenhandedly applied to similar claims. Douglas IV, Dkt. No. 86, filed October
4, 2004. The court subsequently held a joint evidentiary hearing on both Mr.
Powell’s and Mr. Douglas’s similar Brady claims. As noted above, it denied
relief to Mr. Douglas and conditionally granted relief to Mr. Powell.
The State does not include in its appeal of the district court’s grant of the
writ to Mr. Powell, nor in its response to Mr. Douglas’s appeal, any argument that
the district court erred in finding the state procedural bar inadequate or in
granting the evidentiary hearing. Accordingly, given that the state court never
addressed the Brady claims on the merits, we owe it no AEDPA deference.
Because the district court held an evidentiary hearing, we review the district
court’s legal conclusions on the Brady claims de novo and its factual findings for
clear error. See Bland, 459 F.3d at 1010.
When we are not bound by AEDPA deference, we review de novo the
existence of a Brady violation. Foster v. Ward, 182 F.3d 1177, 1192 (10th Cir.
1999). The subsidiary question of whether suppressed evidence is material is a
mixed question of law and fact which we also review de novo. United States v.
Trujillo, 136 F.3d 1388, 1393 (10th Cir. 1998). We review for clear error the
district court’s factual finding that Smith’s testimony at Mr. Powell’s trial
regarding the lack of a deal with the prosecutor was false. See Romano v. Gibson,
239 F.3d 1156, 1175 (10th Cir. 2001). We review de novo the court’s
determination that Mr. Douglas’s evidence was insufficient to support the same
-31-
conclusion. See United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir. 2006)
(“Sufficiency of the evidence is a question of law that we review de novo. . . .”).
Applying these standards, we turn to an assessment of the claims raised in
these two appeals. Because of their different procedural postures, we treat Mr.
Powell’s appeal separately from Mr. Douglas’s appeal.
III
Mr. Powell’s Napue/Brady/Giglio Violations
Beginning with its seminal decisions in Napue v. Illinois, 360 U.S. 264
(1959), and Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
established the principle that criminal convictions obtained by presentation of
known false evidence or by suppression of exculpatory or impeaching evidence
violates the due process guarantees of the Fourteenth Amendment. “[D]eliberate
deception of a court and jurors by the presentation of known false evidence is
incompatible with rudimentary demands of justice.” Giglio v. United States, 405
U.S. 150, 153 (1972) (internal quotations omitted). “The same result obtains
when the State, although not soliciting false evidence, allows it to go uncorrected
when it appears.” Napue, 360 U.S. at 269. The government’s obligation to
disclose exculpatory evidence does not turn on an accused’s request. Strickler v.
Greene, 527 U.S. 263, 280 (1999). “In order to comply with Brady, . . . the
individual prosecution has a duty to learn of any favorable evidence known to the
-32-
others acting on the government’s behalf.” Id. at 281 (quotation marks omitted).
Under this framework, no distinction is recognized between evidence that
exculpates a defendant and “evidence that the defense might have used to
impeach the [State’s] witnesses by showing bias and interest.” United States v.
Bagley, 473 U.S. 667, 676 (1985). We emphasize that the duty to disclose such
information continues throughout the judicial process. Smith v. Roberts, 115 F.3d
818, 820 (10th Cir. 1997).
A Brady violation has three essential elements: “[t]he evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Banks v. Dretke, 540
U.S. 668, 691 (2004) (quoting Strickler, 527 U.S. at 281-82 (1999)). Prejudice
satisfying the third element exists “when the suppressed evidence is material for
Brady purposes.” Id. (internal quotations omitted). Favorable evidence “is
material . . . ‘if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’”
Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting Bagley, 473 U.S. at 682). 12
12
The Supreme Court previously articulated a separate materiality standard
applicable to Giglio violations in United States v. Agurs, 427 U.S. 97, 103 (1976),
where it held that “a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.”
(continued...)
-33-
As the Court has noted, this is not a requirement that the evidence be sufficiently
strong to ensure an acquittal had it been presented at trial:
The 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. A “reasonable probability” of a
different result is accordingly shown when the government’s
evidentiary suppression “undermines confidence in the outcome of
the trial.”
Id. at 434 (quoting Bagley, 473 U.S. at 678). Nor is the materiality requirement a
sufficiency of the evidence test:
A defendant need not demonstrate that after discounting the
inculpatory evidence in light of the undisclosed evidence, there
would not have been enough left to convict. . . . One does not show a
Brady violation by demonstrating that some of the inculpatory
evidence should have been excluded, but by showing that the
favorable evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.
Id. at 434-35. The petitioner “bears the burden of presenting evidence to
establish a Brady or Giglio violation.” Foster, 182 F.3d at 1191. However, once
Brady error is established under the Kyles materiality standard, “there is no need
for further harmless-error review.” Kyles, 514 U.S. at 435. This is because a
12
(...continued)
As we subsequently noted, however, assuming the Giglio ‘reasonable likelihood’
standard is in fact less demanding than the Kyles ‘reasonable probability’
standard, a petitioner who succeeds under that standard will still have to meet the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993), which the
Supreme Court has held is met by the Kyles test. See Kyles, 514 U.S. at 435-36.
Thus for all practical purposes the two standards ultimately mandate the same
inquiry. Mitchell v. Gibson, 262 F.3d 1036, 1062 n.13 (10th Cir. 2001).
-34-
reasonable probability of a different result in the proceeding “necessarily entails
the conclusion that the suppression must have had ‘substantial and injurious effect
or influence in determining the jury’s verdict.’” Id. (quoting Brecht, 507 U.S. at
623).
On appeal, the State contends the district court erred in granting habeas
relief to Mr. Powell on the Brady claims 13 because it failed to give proper
consideration to the evidence in calculating whether the suppressed and false
evidence was material. Mr. Powell cross appeals, contending the district court
erred in refusing to grant his writ unconditionally.
A. Merits
At Mr. Powell’s trial, Derrick Smith’s testimony played the indispensable
role of identifying Mr. Douglas and Mr. Powell as the gunmen, thereby providing
the only direct evidence linking them to the murder of Shauna Farrow and the
shooting of Smith. Having reviewed the entire state trial record, we agree with
the district court’s characterization of Smith’s testimony as “the linchpin to a
conviction.” Powell III at 23. Had the jury discounted Smith’s testimony as not
credible, it almost certainly would not have had sufficient evidence on which to
13
Although we recognize each claim is distinct, for ease of reference we
hereinafter sometimes refer generally to the combined Napue/Brady/Giglio claims
simply as Brady claims or Brady violations.
-35-
convict. Smith’s credibility, and Mr. Powell’s inability to impeach him by
presenting evidence of his expectation of a benefit in exchange for his testimony,
thus played a critical role in determining the verdict. As the Supreme Court
stated in originating the Brady line of cases, “[t]he jury’s estimate of the
truthfulness and reliability of a given witness may well be determinative of guilt
or innocence, and it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant’s life or liberty may depend.”
Napue, 360 U.S. at 269.
The standard of materiality for Brady claims such as those presented here
“is met when ‘the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.’” Banks,
540 U.S. at 698 (quoting Kyles, 514 U.S. at 435). “In short, [the petitioner] must
show a ‘reasonable probability of a different result.’” Id. (quoting Kyles, 514
U.S. at 434). We have discarded as immaterial under this standard undisclosed
impeachment evidence where it was cumulative of evidence of bias or partiality
already presented “and thus would have provided only marginal additional
support for [the] defense.” Trujillo, 136 F.3d at 1394. In contrast, we have
upheld the materiality of nonduplicative impeachment evidence where the witness
provided the sole evidence linking the petitioner to the crime. See Nuckols v.
Gibson, 233 F.3d 1261, 1266 (10th Cir. 2000). Read together, these cases support
the principle that evidence insignificantly impacting the degree of impeachment
-36-
may not be sufficient to meet the Kyles materiality standard, while evidence
significantly enhancing the quality of the impeachment evidence usually will.
The evidence suppressed here falls into the latter category.
In Nuckols, the admissibility of the only evidence linking the petitioner to
the crime hinged on the testimony of a single witness, the deputy sheriff, Ware, to
whom Nuckols confessed after initially invoking his Miranda rights. Id. at 1263-
64.
[I]t was critical for the State to establish the admissibility of that
confession, but its admissibility hinged upon proof that Mr. Nuckols
initiated the interview which produced the incriminating
statements. . . . The only witnesses on this critical point were Ware
and [Nuckols], each of whom negated the other’s testimony. If
Ware’s testimony that Mr. Nuckols initiated the interrogation were
impeached, the entire support for the State’s case would have been
significantly undermined, if not destroyed altogether.
Id. at 1266. The State failed to disclose facts about Ware which would have
“provided the defense with the opportunity to call into question whether Ware had
a motive for his testimony” or “whether Ware had a motive to goad Nuckols into
waiving his right to counsel during the interrogation and confessing to the crime.”
Id. at 1267. Although we did no more than suggest the possibility for the sake of
argument that Ware had ulterior motives, we still concluded that the denied
opportunity to cross-examine him on these points due to the State’s suppression
of evidence raised a reasonable probability of a different result sufficient to
undermine confidence in the verdict. Id.
-37-
The parallel between Nuckols and the Powell trial is clear. Like Ware,
Smith was an indispensable witness for the State’s case against Mr. Powell. And
although Mr. Powell’s counsel attempted to impeach Smith on the issue of his
motive to testify, he was stonewalled by Smith’s repeated denials of the existence
of a deal, and stymied from rebutting those denials by the State’s failure to
produce relevant impeaching evidence. This combination was as effective at
deflecting counsel’s attempts at impeachment as was the court order in Nuckols
excluding counsel’s attempts to raise Ware’s motives. Id. at 1265. Given the
paramount importance of Smith to the State’s case, we agree with the district
court’s conclusion that there is a reasonable probability the result of Mr. Powell’s
trial would have been different if the defense had had the ability to impeach
Smith with evidence of the deal the prosecution made in exchange for his
testimony.
Relying on Mataya v. Kingston, 371 F.3d 353 (7th Cir. 2004), the State
contends Smith’s earliest identification of Mr. Douglas and Mr. Powell as the
gunmen was somehow “self-validating.” But the facts in Mataya are not
comparable to this case. There the witness, whose deal with the prosecution was
not disclosed, revealed details about the crime that he could not have known
unless they had been revealed to him by the murderer. Id. at 357. Hence, his
testimony that Mataya had confessed to him was validated by the details he knew.
Here, Smith’s identification of Mr. Powell as the shooter was not verifiable in the
-38-
same fashion. The more accurate characterization of Smith’s statement is that it
was somewhat corroborated, not that it was self-validating. That one of Smith’s
several contradictory post-shooting statements was corroborated by other
evidence is not an especially strong argument on this record, where Smith was the
only eyewitness to the shooting and there was no other direct evidence connecting
Mr. Powell to the crime. As in Nuckols, 233 F.3d at 1267, the State offers
contentions that should have been resolved by a jury but were not because the
prosecution withheld or concealed crucial impeachment evidence.
Because impeachment of the witness who held the key to the successful
prosecution of Mr. Powell was denied to the defense, the district court correctly
concluded that the State’s Brady violations were material. In so deciding, the
court found that, “at a minimum, Mr. Smith used his identification testimony in
an effort to benefit himself, Mr. Miller was aware of Mr. Smith’s requests for
assistance, had acted on his request, and that this information was not known by
or conveyed to [Mr. Powell’s] trial counsel.” Powell III at 21-22. Under these
facts and in light of the necessity of the jury believing Smith’s testimony to
support a verdict of guilty, we agree with the district court that Mr. Powell’s trial
did not yield a verdict worthy of confidence. Accordingly, the district court
correctly granted Mr. Powell’s petition for a writ of habeas corpus.
B. Conditional Writ
-39-
In his cross-appeal, Mr. Powell contends the district court should have
granted the writ with an unconditional directive releasing him from prison and
barring a retrial. We review the district court’s formulation of an appropriate
habeas corpus remedy for abuse of discretion. See Paxton v. Ward, 199 F.3d
1197, 1219 (10th Cir. 1999).
A federal writ of habeas corpus “does not generally bar a retrial of the
petitioner on the charges underlying his defective conviction.” Capps v. Sullivan,
13 F.3d 350, 352 (10th Cir. 1993). “In fact, rather than barring a new trial, the
district court normally should facilitate it by suspending the writ for a time
reasonably calculated to provide the state an adequate opportunity to conduct the
new trial.” Id. Nevertheless, “[i]n issuing a writ of habeas corpus, a federal court
has the power and authority to dispose of habeas corpus matters as law and justice
require.” Paxton, 199 F.3d at 1219 (internal quotation and citation omitted). The
statutory basis for the federal courts’ authority to render habeas corpus relief, 28
U.S.C. § 2243, “vests the federal courts with ‘the largest power to control and
direct the form of judgment to be entered in cases brought . . . on habeas
corpus.’” Capps, 13 F.3d at 352 (quoting Hilton v. Braunskill, 481 U.S. 770, 775
(1987)) (alteration in original). Barring a new trial may be necessary, for
instance, “when the error forming the basis for the relief cannot be corrected in
further proceedings,” and it may be a permissible form of relief when “other
exceptional circumstances exist such that the holding of a new trial would be
-40-
unjust.” Id. at 352, 353. The classic example of such an irremediable error,
necessitating the grant of an unconditional writ, is “when a [new] trial would
violate the Double Jeopardy Clause of the Fifth Amendment.” Id. at 352. But
where nothing in the record suggests that the constitutional violation on which
habeas corpus relief is predicated could not be redressed by holding a retrial,
granting an unconditional writ constitutes an abuse of discretion. See id. at 353.
Nothing in the record of Mr. Powell’s trial indicates irremediable error, and
he suggests none, arguing only that the duration of the State’s continuing Brady
violations rises to the level of extraordinary circumstances justifying an
unconditional writ. Without speculating as to whether granting an unconditional
writ would be an abuse of discretion under these circumstances, it is plain that
granting a conditional writ is not.
IV
Mr. Douglas’s Due Process Claims
Mr. Doulgas contends we should overturn his convictions because the
prosecutor violated his due process right to a fair trial by vouching for the
credibility of Smith, the lynchpin witness, by knowingly eliciting false testimony
from Smith to bolster his credibility, by failing to correct testimony he knew to be
false, and by failing to disclose that Smith was testifying against Mr. Douglas
pursuant to an agreement by the prosecutor to assist Smith in extracting him from
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numerous ongoing and potential legal difficulties. In addressing these arguments,
we also determine the standard of review applicable to each.
A. Prosecutorial Misconduct
“Inappropriate prosecutorial comments, standing alone, would not justify a
reviewing court to reverse a criminal conviction obtained in an otherwise fair
proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). But habeas relief is
appropriate when a prosecutor’s comments “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). If an improper comment implicates
“specific guarantees of the Bill of Rights,” federal courts “ha[ve] taken special
care to assure that prosecutorial conduct in no way impermissibly infringes
them.” Id.
When analyzing prosecutorial misconduct claims, we have rejected prior
invitations “to parse the prosecutor’s argument word by word in a vacuum.”
Paxton, 199 F.3d at 1217. Rather, we have stated that
[i]nquiry into fundamental fairness requires examination of the entire
proceedings, including the strength of the evidence against the
petitioner, both as to guilt at that stage of the trial and as to moral
culpability at the sentencing phase. Any cautionary steps — such as
instructions to the jury — offered by the court to counteract improper
remarks may also be considered. Counsel’s failure to object to the
comments, while not dispositive, is also relevant to a fundamental
fairness assessment.
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Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations omitted & emphasis
added). “Ultimately, we must consider the probable effect the prosecutor’s
statements would have on the jury’s ability to judge the evidence fairly.”
Tillman, 215 F.3d at 1129 (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th
Cir. 1998)) (alteration omitted). In making that assessment, we must consider
whether “the prosecutor’s argument . . . manipulate[d] or misstate[d] the
evidence, “whether it impacte[d] other specific rights of the accused such as the
right to counsel or the right to remain silent,” whether “the objectionable content
was invited by or responsive to the opening summation of the defense,” and
whether “[t]he weight of the evidence against petitioner was heavy.” Darden v.
Wainright, 477 U.S. 168, 181-82 (1986).
1. Oklahoma’s Plain Error Review
Of the guilt phase comments we address here, none were addressed
expressly on the merits by the OCCA. Those raised in Mr. Douglas’s first request
for post-conviction relief were summarily dismissed under the OCCA’s plain
error doctrine. See Douglas I, 951 P.2d at 674 (“[W]e have reviewed the
remaining comments not properly preserved and find no plain error.”).
In Cargle, we explained “the effect of state plain-error review on
procedural bar and § 2254(d) deference principles”:
As for procedural bar, the question is: does a state court’s plain-error
review of an issue otherwise waived for lack of a trial objection
constitute a merits decision under Harris v. Reed, 489 U.S. 255
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(1989), thus negating application of procedural bar, or does OCCA’s
use of the heightened standard of plain error constitute the
enforcement of a state waiver rule under Harris, thus necessitating
application of procedural bar? . . . As for § 2254(d), the question is:
does a state court’s use of a plain-error standard affect the deference
that the federal court owes to the state court’s determination? . . .
In our view, the answer to both questions depends on the substance
of the plain-error disposition. A state court may deny relief for a
federal claim on plain-error review because it finds the claim lacks
merit under federal law. In such a case, there is no independent state
ground of decision and, thus, no basis for procedural bar. Consistent
with that conclusion, the state court’s disposition would be entitled
to § 2254(d) deference because it was a form of merits review. On
the other hand, a state court could deny relief for what it recognizes
or assumes to be federal error, because of the petitioner’s failure to
satisfy some independent state law predicate. In such a case, that
non-merits predicate would constitute an independent state ground
for decision which would warrant application of procedural-bar
principles on federal habeas. If the state procedural bar were then
excused for some reason, the federal court would be left to resolve
the substantive claim de novo, unconstrained by § 2254(d).
317 F.3d at 1205-06 (citation omitted).
In certain cases, however, we may not be able to assess the substance of the
state court’s plain error disposition to determine whether it was merits or non-
merits based. In this case, for instance, the state court’s opinion merely states
that it “reviewed” Mr. Douglas’s prosecutorial misconduct claims that were not
properly preserved and found no plain error. Douglas I, 951 P.2d at 674. We
thus have no way to determine whether the court’s review was or was not merits
based. In situations like this one, our cases require us to assume that the state’s
review is on the merits and thus afford it § 2254(d) deference. See Hawkins v.
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Mullin, 291 F.3d 658 (10th Cir. 2002); Aycox v. Lytle, 196 F.3d 1174 (10th Cir.
1999). In Aycox, for example, a New Mexico state court “denied [the
petitioner’s] state habeas petition in a summary order of dismissal which simply
provided that ‘as a matter of law, Petitioner is not entitled to relief.’” Aycox, 196
F.3d at 1177 (citation omitted). Where there was “no evidence . . . that the state
court did not consider and reach the merits of [the petitioner’s] claim,” we held
that “we owe[d] deference to the state court’s result even if its reasoning [was]
not expressly stated.” Id. Consequently, we are required to uphold the state
court’s decision, “unless our independent review of the record and pertinent
federal law persuades us that its result contravenes or unreasonably applies
clearly established federal law, or is based on an unreasonable determination of
the facts in light of the evidence presented.” Id. at 1178.
Similarly, in Hawkins, the petitioner asserted “that three categories of
improper comments made by prosecutors violated the Eighth and Fourteenth
Amendments.” Hawkins, 291 F.3d at 674. But the Oklahoma Court of Criminal
appeals had “specifically addressed only some of these challenged remarks.” Id.
“Nonetheless,” we observed, “we still afford deference to that court’s decision
denying relief on these claims, even though the state appellate court did not
specify the reasons underlying its decision.” Id. We then applied the AEDPA
deference standard to the OCCA’s determination that the petitioner did not meet
Oklahoma’s plain error standard. Id.
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We further refined our AEDPA review of the OCCA’s plain error review in
Thornburg v. Mullin, 422 F.3d 1113 (10th Cir. 2005). In that case, the petitioner
asserted several instances of prosecutorial misconduct and alleged that together
they deprived him of due process under the Donnelly standard. “Without
enumerating each specifically contested comment,” the OCCA concluded
generally that the comments complained of “were not so egregious as to rise to
the level of plain error.” Id. at 1129 (quotations and citation omitted). We said
that “[b]ecause the OCCA did not identify the comments it thought improper, we
conduct our own independent review of the record and federal law.” Id.
Although we recognized a number of improper prosecutorial comments, we then
afforded “due deference to the OCCA under AEDPA,” id. at 1138, and concluded
that “[i]n light of the strength of the evidence of guilt, the OCCA could
reasonably conclude that the prosecutor’s misconduct did not necessitate a new
trial.” Id.
Applying these principles, we assume the OCCA addressed Mr. Douglas’s
individual prosecutorial misconduct claims on the merits, we review each
assertion of improper prosecutorial comments independently under federal law,
and we afford § 2254(d) deference to the OCCA’s ultimate conclusion that a new
trial was not warranted on the basis of prosecutorial misconduct.
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2. Vouching for Derrick Smith’s Credibility
In his initial habeas petition, Mr. Douglas asserted that Miller improperly
vouched for Smith’s credibility in several comments Miller made during his
closing argument. The district court concluded, and the State contends on appeal,
that the statements were permissible commentary on Smith’s credibility, rather
than an improper expression of prosecutorial opinion. Viewed in the context of
this trial and the remainder of Miller’s closing argument, we disagree.
Under Young, vouching for the credibility of witnesses is equally as
improper as other methods of “offering unsolicited personal views on the
evidence.” See 470 U.S. at 7-8 (noting further that ABA Standards hold “[i]t is
unprofessional conduct for the prosecutor to express his or her personal belief or
opinion as to the truth or falsity of any testimony”). “It is clearly impermissible
to bolster a State witness by suggesting that information available to the
prosecution but not presented to the jury supports a witness’s testimony.” Cargle,
317 F.3d at 1219.
The theme of Smith’s credibility ran throughout Miller’s closing argument,
and the challenged remarks by Miller spanned some six pages of the trial
transcript. The following passage is particularly illustrative of the unacceptable
remarks:
Derrick Smith’s life will never be the same, whether that’s
good or bad, not even remotely the same. He will never be safe
again. He knows it. He’s going to have to leave the State of
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Oklahoma. He cannot function in this world any more in Oklahoma
City, which may be the best thing for him. But all that’s because he
followed the law, and he did what he was supposed to do, and he
came into this courtroom.
Was he partial? Folks, remember this. Every time that Mr.
Kirk’s investigator, every time Peanut, every time anybody wanted to
talk to Derrick Smith, he didn’t say, no, Brad’s got to be here. He
didn’t say, no, I’m not talking to you, you hear me in court. He
talked to them. He read their notes. He listened to their little tapes.
He talked to them because he’s got nothing to hide. We have nothing
to hide because it’s the truth.
Was he motivated to lie? Was he motivated to lie? I suggest
to you that everything about his background, all the people he knew,
every life experience that he’s ever had motivated him to lie. He was
motivated to lie.
He was motivated to tell the police that he didn’t see who did
it, handle the perpetrators on the street on his own, tell the D.A. they
had masks on and he couldn’t see their faces. He could have done
all those things and uphold his gang identity. He could still be — he
could be a hero on the street in the gang culture, if he wanted to be.
And he even did that for a while. For the first 15 hours he did
conceal things from police officers. For 15 hours before he finally
talked with his mother and Dave Dycus, he did in fact conceal and
try to divert and try to decide. He was confused, should he handle
this on his own. There’s no question about that.
....
It’s a defining moment in his young life, and he made a
decision to tell it. And ever since that 15th hour that he finally told
straight up what Dave Dycus who was paid to ferret out the truth —
wonderful statement, the quote of the case. People lie to me every
day. That’s what Dave Dycus said.
There’s a job for you. People lie to him every day. And they
pay him to try to get to the truth, and sometimes, as he told you, he
can. And after he talked to Derrick in the pen, he told exactly what
he’s told at prelim, exactly what he’s told us in this courtroom. He
told what Dave Dycus believed was straight up the truth. And it’s
never changed since.
Douglas Trial Tr., vol. IX at 1876-78 (emphasis added). Unlike the district court,
we read this as a clear expression of Miller’s opinion that Smith is telling the
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truth, going well beyond commentary that Smith should be believed by the jury.
In so doing, Miller raised the implication that his belief in the truthfulness of
Smith’s testimony is rooted in his knowledge of facts outside the evidence already
presented. Miller’s comments constitute error. 14 This is particularly so given
what surfaced later, that the prosecutor had made an offer to assist Smith with his
numerous legal difficulties in exchange for his favorable testimony and had then
suborned perjury by having Smith repeatedly deny the existence of a deal, matters
to which we now turn. 15
B. Mr. Douglas’s Brady/Napue/Giglio Claims
In Mr. Douglas’s trial, as in Mr. Powell’s trial, Smith’s eyewitness
testimony played the indispensable role of identifying Mr. Douglas and Mr.
Powell as the gunmen, thereby providing the only direct evidence linking them to
14
Added to this, the OCCA found error in the prosecution’s bolstering of
Smith’s credibility by erroneously arguing that Mr. Douglas attempted to
intimidate Smith as a witness before he testified. Douglas I, 951 P.2d at 669.
15
AEDPA deference prevents us from saying that, standing alone, Miller’s
comments “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly, 416 U.S. at 643. As we
previously discussed, although the OCCA summarily dismissed this claim under
its plain error doctrine, we afford § 2254(d) deference because our case law
requires us to assume the OCCA addressed the claims on the merits. Hawkins,
291 F.3d at 674; Aycox, 196 F.3d at 1177. The OCCA’s refusal to overturn the
conviction on the basis of Miller’s comments was not an unreasonable application
of Supreme Court law. However, as we determined above, because the OCCA
never addressed the Brady claim at all, we may review that claim de novo.
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the murder of Shauna Farrow. Smith’s testimony was therefore key to the
convictions of Mr. Douglas. Mr. Douglas contends the district court erred in
holding there was insufficient evidence offered at the evidentiary hearing that
Brad Miller made a deal with Smith to help him with his pending criminal matters
in exchange for his favorable testimony, and then not only failed to disclose that
agreement to the defense in violation of Brady but also solicited from Smith false
denials of any deal in violation of Napue and failed to correct assertions by Smith
he knew to be false in violation of Giglio, thereby giving the jury a false
impression of Smith’s credibility. The State contends that these claims are barred
by the one-year statute of limitations period set forth in AEDPA, 28 U.S.C. §
2244(d)(1), that they are also barred under 28 U.S.C. § 2244(b)(2) because Mr.
Douglas has not met the standards for bringing a second or successive habeas
petition, and that, in any event, the district court was correct to hold Mr. Douglas
failed to present sufficient evidence of the validity of the claims.
1. Statute of Limitations
Section 2244(d)(1) requires that petitioners file their application for a writ
of habeas corpus within a one-year period of limitation which runs from the latest
of four critical dates, only one of which is relevant here: “the date on which the
factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” In support of its contention that Mr.
Douglas could have discovered the factual basis for the instant Brady claims
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within the statutory period, the State cites only Smith’s testimony from the
federal evidentiary hearing that his conscience had been bothering him and that
“[t]his was not a new development.” Douglas Aple. Response Br. 19 (citing Evid.
Hr’g Tr., vol. I at 14, 17).
The State’s argument that Mr. Douglas could have, through the exercise of
greater diligence, uncovered the existence of a deal for Smith’s testimony fails to
take into account the evidence that Miller continued to entice Smith’s silence by
helping him even after Miller left the district attorney’s office. Moreover, other
agents of the State prevented the facts underlying the claim from becoming
known when they failed to turn over to Mr. Douglas or Mr. Powell additional
undisclosed evidence of the alleged deal uncovered by the OSBI investigation,
despite the ongoing federal habeas proceedings.
The diligence question here is not unlike that present in the Supreme
Court’s decision in Banks, 540 U.S. 668. As in Banks, a prosecution witness here
“repeatedly misrepresented his dealings with [the prosecution]; each time [the
witness] responded untruthfully, the prosecution allowed his testimony to stand
uncorrected.” Id. at 694. It was “appropriate for [Mr. Douglas] to assume that
his prosecutors would not stoop to improper litigation conduct to advance
prospects for gaining a conviction,” and he can thereby show cause for any
alleged failure to exercise due diligence in investigating Smith’s connections to
Miller. Id. And, as in Banks, “[t]he state here nevertheless urges, in effect, that
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the prosecution can lie and conceal and the prisoner still has the burden to . . .
discover the evidence, so long as the ‘potential existence’ of a prosecutorial
misconduct claim might have been detected.” Id. at 696 (alteration in original).
Not surprisingly, the Court in Banks rejected this claim, holding that “[w]hen
police or prosecutors conceal significant exculpatory or impeaching material in
the State’s possession, it is ordinarily incumbent on the State to set the record
straight.” Id. at 675-76.
In light of the district court’s conclusion that Miller was an active
participant in shielding any evidence of the facts underlying the instant claim
from both Mr. Powell and Mr. Douglas, we are not persuaded by the State’s
contention that Mr. Douglas could have uncovered the illicit dealings between
Miller and Smith prior to Smith’s recantation. Therefore, we conclude Mr.
Douglas, exercising due diligence, could not have discovered this Brady claim
any sooner.
2. § 2244(b)(2) and the Merits
Despite its determination that the State unconstitutionally failed to disclose
a deal between Miller and Smith with respect to Mr. Powell, the district court
held there was insufficient evidence of a similar deal between Smith and Miller
before or during Mr. Douglas’s trial to support the asserted Brady violations. The
court noted that “the key question is whether [Mr. Douglas] has demonstrated that
the trial testimony of Derrick Smith was false.” Douglas IV at 17. In assessing
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this question, the court found the “veracity of each of the primary witnesses
[Smith and Miller] who testified [at the evidentiary hearing] to be highly
suspect.” See id. at 18. This toss-up about who was telling the truth led the court
to evaluate only the sufficiency of the non-testimonial evidence supporting Mr.
Douglas’s claim of a deal between Smith and Miller. After reviewing that
evidence, the court held “[t]he evidence presented at the evidentiary hearing is
insufficient to support [Mr. Douglas’s] claims of a deal in exchange for
testimony, or that Derrick Smith’s testimony at Mr. Douglas’s trial was
untruthful.” Id. at 17. Consequently, the court concluded that “there is no
reasonable probability of a different result, and that [Mr. Douglas’s] trial resulted
in a verdict worthy of confidence.” Id. at 21.
At the evidentiary hearing, Smith testified he told Miller at their initial
meeting he could not identify the gunmen who shot him and Shauna Farrow and,
in response, Miller mentioned the trafficking charge then pending against Smith
and the crack cocaine he had been carrying at the scene of the shooting. Evid.
Hr’g Tr., vol. I at 11-12. When Smith asked Miller what he might get in
exchange for testimony identifying Mr. Douglas and Mr. Powell, Smith testified
that Miller told him he would get nothing until after the trial in order to avoid
raising questions about his credibility before the jury. Id. at 36-38. The problem,
in the district court’s view, was that, setting aside Smith’s testimony, the version
of events described by Smith was “not supported by any evidence other than
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supposition and innuendo extracted from post-trial actions of Brad Miller —
many of which occurred years after [Mr. Douglas’s] trial.” Douglas IV at 17.
With what it considered insufficient evidence, the district court refused to draw
an inference that there was a deal between Smith and Miller in the Douglas trial.
Insufficiency of the evidence is a legal question which we review de novo.
See, e.g., Chavis, 461 F.3d at 1207; see also Griffin v. United States, 502 U.S. 46,
58-59 (1991) (indicating that insufficiency of proof is legal error). We therefore
must determine whether Mr. Douglas provided sufficient evidence on the record
before us to support his claim.
The evidence establishes the following. The day after the shooting, Smith
made several statements to police investigators that diverged widely from each
other and from the scenario the prosecution sought to prove at trial: the
description of the vehicle, the number of shooters, and the identification of the
assailants. See supra at 6-9. In addition, several witnesses testified at Mr.
Douglas’s trial that Smith had told them he could not accurately identify the
shooters. See, e.g, Douglas Trial Tr., vol. VII at 1442-44 (testimony of Devin
Pope: “[t]here were some guys in [a car Smith] couldn’t recognize because it was
dark . . . and he didn’t really see nobody.”); id. at 1474 (testimony of Joanne
Paul: “And I asked [Smith], did he see who shot him, and he said, no, because it
was too dark.”); id. at 1493 (testimony of Esi McNeil: “I asked him, did he see
who shot him, and he was like, man, I was so high, man, I didn’t see nobody.”);
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id. at 1531 (testimony of Craig Laster “I said who was it? And he was like, man,
I was so high and I was so drunk, I didn’t know who it was . . . . And I said, are
you sure you didn’t see nobody? And he was like, well, I thought I seen Paris,
but, you know, it could have been anybody.”). Notably, at Mr. Powell’s trial,
Smith admitted he had told Joanne Paul that he did not really see either Mr.
Douglas or Mr. Powell in the car. Powell Trial Tr., vol. V at 1172. This evidence
tends to support the likelihood of Miller offering to assist Smith in order to ensure
Smith’s identification of Mr. Douglas as one of the shooters.
Moreover, two witnesses testified at trial that Smith told them he had made
a deal for his testimony with Miller. See Douglas Trial Tr., vol. VII at 1495
(testimony of Esi McNeil); id. at 1532 (testimony of Craig Laster). Both
witnesses testified that Miller was to assist Smith on his trafficking case and a
pending gun case in exchange for testimony favorable to the prosecution. On
cross-examination of the witnesses, Miller noted that Smith’s gun case was
dismissed before the relevant time period, id. at 1514, 1552, but Miller did not
mention the trafficking case.
In regard to Miller’s assistance to Smith with his pending criminal matters,
Smith was charged in 1992 with drug trafficking. He was sentenced to ten years
but released after four months on pre-parole status (PPS). Three months later,
after violating his parole conditions, Smith was reincarcerated. Shortly before
Mr. Douglas’s trial, Smith received notification that he would be reviewed for
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parole once again. This time he was not recommended for pre-parole release.
(Ex. 81.) Three days later, he met with Brad Miller to prepare his trial testimony.
At the evidentiary hearing, Miller acknowledged that Smith’s pre-parole situation
was probably discussed at the pretrial meeting between him and Smith and that
information from Smith “possibly” formed the basis of Miller’s subsequent post-
trial letter to the Pardon and Parole Board. Evid. Hr’g Tr., vol. IV at 693-94. On
July 1, 1995, the day after Mr. Douglas was sentenced to death, Miller wrote a
letter recommending that Smith receive parole and noting that Smith would “be
required to testify in Paris Powell’s trial,” as well. Evid. Hr’g Ex. 2A. The letter
evidenced a fairly detailed understanding of Smith’s situation. See id.; Evid. Hr’g
Tr., vol. IV at 693-94 (“During his incarceration, [Smith] was placed on the PPS
program. In October ‘94 marijuana was detected in his urine sample. As a result,
[Smith] was returned to Ardmore CTC. He has lived in that facility doing day
work in the community since that time. It is my understanding [Smith] has
received no negative write-ups from supervisors.”) Smith was released on PPS in
October 1995. Additionally, although Miller knew Smith had been carrying both
crack cocaine, which he intended to sell, and a loaded firearm at the time he was
shot, he was never charged for possession of either of those items. See Evid. Hr’g
Tr., vol. I at 36-39 (reflecting that Miller knew about these crimes and the
absence of charges against Smith); see also Douglas Trial Tr., vol. IX at 1870
(prosecuting attorney Miller says Smith admitted the cocaine was his).
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Two years later, and a month before Mr. Powell’s trial began, Smith wrote
a letter to his mother stating his expectation that he would receive credit against
his sentence in exchange for his testimony against Mr. Powell and intimating he
had previously received benefits for his testimony against Mr. Douglas. Miller’s
notes of a telephone call with David Petite confirm he had discussions about
crediting days against Smith’s sentence. After Mr. Powell’s trial, Smith wrote to
Warden Boone, inquiring whether Miller had contacted him about the length of
Smith’s sentence; Warden Boone confirmed he had been contacted by Miller, and
Smith was later awarded 400 lost credit days and released. Subsequently, Miller
personally dismissed an assault charge against Smith and intervened in a later
trafficking case on Smith’s behalf. Notwithstanding this evidence, at the
evidentiary hearing Miller denied the existence of any deal for Smith’s testimony.
As the district court held with respect to Mr. Powell, “Miller’s statements denying
any deal or promises in exchange for . . . Smith’s testimony is contradicted by . . .
Miller’s letter to the parole board, . . . Smith’s letter to his mother, and Mr.
Miller’s conversation with David Petite regarding ‘coop credit,’ for . . . Smith
immediately before trial.” Powell III at 20. The State does not contest on appeal
that these facts establish Smith received a benefit from Miller prior to Mr.
Powell’s trial and, consequently, that Smith’s testimony to the contrary at his trial
was known by Miller to be false.
As Mr. Douglas points out, finding the evidence insufficient to demonstrate
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a deal prior to Mr. Douglas’s trial requires belief in an unlikely scenario.
[T]o accept the district court’s ruling in Mr. Douglas’s case virtually
requires acceptance of two . . . exceedingly improbable premises: 1)
that Miller suddenly became dishonest between the two trials, and 2)
that [Smith’s] interest in help and Miller’s willingness to provide
help suddenly sprang to life between the two trials.
Aplt’s Br. at 38. The fact that Smith met with Pardon and Parole investigators
only three days before he met with Miller and then discussed the denial of pre-
parole with Miller, as Miller admits, suggests the two men might have arrived at
an agreement prior to Mr. Douglas’s trial in which Miller would intervene in the
parole process in exchange for testimony helpful to the prosecution. Moreover,
the level of detail included in the letter Miller wrote on Smith’s behalf the day
after Mr. Douglas’s trial and Miller’s compromised credibility at the evidentiary
hearing, together with Smith’s inconsistent pretrial statements about events the
night of the shooting, raises the reasonable inference that Smith and Miller had an
agreement prior to Mr. Douglas’s trial. When viewed in light of the evidence that
surfaced after Mr. Powell’s trial regarding Miller’s continuing efforts on behalf of
Smith during and long after the trials ended, including the district court’s findings
that Miller committed Brady violations in the Powell case, misrepresented facts to
the contrary to the capital jury and to the district court, and sponsored false
testimony to hide incentives requested by and provided to Smith, we are
persuaded that the reasonable inference becomes inescapable.
Our case law provides some support for this conclusion. For example, we
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have previously noted that a record strikingly similar to this one raised significant
suspicions about the existence of a deal for the witness’s testimony, “particularly
in light of the timing of these events and the significant benefit [the witness]
derived . . . .” Romano v. Gibson, 239 F.3d at 1175 (nevertheless refusing to find
deal where, unlike here, district court’s determination to contrary was a factual
finding and standard of review was therefore clear error). We have also stated
that where a witness’s trial testimony does not vary from a pretrial statement
offered without any inducement by the state, “we have no reason to believe the
prosecution needed to make a deal . . . in order to make its case.” Foster, 182
F.3d at 1192. But where, as here, the indispensable witness’s trial testimony
varied significantly from his pretrial statements, an inference arises that the
prosecution needed a deal to make its case.
In Cargle v. Mullin, 317 F.3d 1196, 1214 (10th Cir. 2003), we held that
counsel can be constitutionally ineffective for failing to synthesize known facts
and assume a quid pro quo existed in similar circumstances. There, a key witness
and participant in the murders, Jackson, previously had been given a deferred
five-year sentence which would be reinstated if Jackson committed any state law
violations. Because Jackson’s conduct made him a potential accessory to the
murder, he received a tacit assurance from the prosecutor “that nothing would
come up in court about the deferred sentence.” Id. at 1215. Even though an
agreement between Jackson and the prosecution purporting to memorialize “the
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entire agreement” id. at 1214, had been introduced at trial, we held that defense
counsel was ineffective for failing to assume the deal with the prosecution also
applied to Jackson’s deferred sentence and to highlight this point for the jury:
Counsel knew about Jackson’s deferred sentence. Any competent
attorney would have discerned the legal connection between
Jackson’s conduct in this case and the conditions sufficient to trigger
acceleration of the deferred sentence. Quite apart from the tacit quid
pro quo assurances, Jackson’s mere exposure to this punitive threat
was pertinent to the jury’s assessment of his motivation for
testifying. Like a pending criminal charge or possible probation
violation, this threat was “relevant to show pro-government bias on
the part of the testifying witness, on the theory that the witness might
tailor [his] testimony to please the prosecutor.” Yet counsel
erroneously confessed a pretrial motion in limine preventing the
defense “from mentioning, referring to, inferring or in any way
informing the jury” about Jackson’s deferred sentence.
Id. at 1215 (quoting Stephens v. Hall, 294 F.3d 210, 224 (1st Cir. 2002)).
Here, the operative facts suggesting an understanding between Smith and
Miller prior to Mr. Douglas’s trial are at least equally suspicious, and there is no
countervailing evidence of a merger clause as in Cargle. If counsel are expected,
under threat of a Strickland claim against their performance, to draw the inference
that a deal exists from suspicious or convenient facts, even in the face of an
admitted agreement that purports to exclude other deals as in Cargle, it seems
unreasonable in light of all the evidence here not to draw the inference that a tacit
agreement, if not more, existed in this case prior to Smith’s testimony at Mr.
Douglas’s trial.
Four circuits have found a duty to disclose under Brady where there was a
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tacit agreement promising potential or actual leniency. The Ninth Circuit has
held that a tacit agreement between a prosecution witness and a prosecuting
attorney constitutes exculpatory material subject to disclosure under Brady. See
United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (stating “[w]hile it is
clear that an explicit agreement would have to be disclosed because of its effect
on [the witness’s] credibility, it is equally clear that facts which imply an
agreement would also bear on [the witness’s] credibility and would have to be
disclosed”). In Shaffer, the “facts which impl[ied] an agreement” were that the
prosecution knew the witness had acquired assets through a drug operation and
had decided not to pursue forfeiture proceedings against him. Id. The court held
that these facts were exculpatory and the prosecution was required to disclose
them.
Similarly, in Wisehart v Davis, 408 F.3d 321, 323-24 (7th Cir. 2005), the
Seventh Circuit recognized “there might have been a tacit understanding that if
[the witness’s] testimony was helpful to the prosecution, the state would give him
a break on some pending criminal charge . . . . Express or tacit, either way there
would be an agreement, it would be usable for impeachment, and it would have to
be disclosed to the defense.”
Even in the absence of any agreement with the prosecution, the Eighth
Circuit has held the fact that a sentence commutation hearing was to take place
soon after the witness’s appearance at a criminal trial constituted exculpatory
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material that should have been disclosed under Brady. Thus, in Routter v. Solem,
888 F.2d 578, 582 (8th Cir. 1989), the court held “[t]he fact that there was no
agreement . . . is not determinative of whether the prosecution’s actions
constituted a Brady violation requiring reversal . . . . We hold that, viewed in the
context of petitioner’s trial, the fact of [the witness’] impending commutation
hearing was material . . . and that petitioner therefore is entitled to relief.” The
court also held it was highly improper for the prosecutor to comment to the jury
that the witness had nothing to gain from his testimony. Id. The court did not
find that the comment alone was enough for a new trial, but determined that it
further undermined the court’s confidence in the conviction. Notably, Miller
made similar comments at Mr. Douglas’s trial.
Most recently, in Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008), the court
acknowledged “[t]he existence of a less formal, unwritten or tacit agreement is
also subject to Brady’s disclosure mandate . . . . If [Defendant] could prove that
[the witness] and [the prosecutor] had reached a mutual understanding, albeit
unspoken, that [the witness] would provide testimony in exchange for the district
attorney’s intervention in the case against him, such an agreement would qualify
as favorable impeachment material under Brady.” The court in Bell declined to
infer a tacit deal due to insufficient evidence. Id. at 233-234. “[I]t is not the case
that, if the government chooses to provide assistance to a witness following a
trial, a court must necessarily infer a preexisting deal subject to disclosure under
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Brady.” Id. at 234; see also Shabazz v. Artuz, 336 F.3d 154, 162 (2d Cir. 2003)
(favorable treatment for a witness is insufficient to show an agreement between
the prosecution and the witness).
Like the majority of our sister circuits, we conclude that Brady requires
disclosure of tacit agreements between the prosecutor and a witness. A deal is a
deal — explicit or tacit. There is no logic that supports distinguishing between
the two. The dissent in Bell illustrates the importance of disclosing a tacit
agreement.
[The requirement that] prosecutors disclose tacit agreements is
undoubtedly the correct result, as the same policies justifying the
disclosure of explicit agreements also compel the disclosure of tacit
agreements. Like explicit agreements, tacit agreements are likely to
be relevant to credibility, and therefore should be disclosed to the
jury. Indeed, tacit agreements may be more likely to skew the
witness’s testimony. In the case of an explicit agreement, the
testifying witness will know what he can expect to receive in
exchange for his testimony, and will know the conditions he must
fulfill. When a witness is instead led to believe that favorable
testimony will be rewarded in some unspecified way, the witness
may justifiably expect that the more valuable his testimony, the more
valuable his reward.
The threat of incorrect jury verdicts is further increased by
tacit agreements because, when testifying, a witness whose
agreement is tacit, rather than explicit, can state that he has not
received any promises or benefits in exchange for his testimony . . . .
Likewise the prosecutor can argue to the jury that the witness is
testifying disinterestedly, [16] which artificially increases the witness’s
credibility-artificially, that is, because the premise of the argument is
false.
16
Miller did exactly this. See Douglas Trial Tr., vol. IX at 1867-68; 1870-
72, 1876-77.
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Bell, 512 F.3d at 244-45 (Clay, J., dissenting) (internal citations omitted.).
Here, we have much more than merely favorable treatment of Smith
immediately after Mr. Douglas’s trial. We have a continuing pattern of Miller
providing or instigating favorable treatment for Smith for several years, even after
Miller left his position with the district attorney’s office. We also have Smith
testifying that because of the favorable treatment, he lied when he identified Mr.
Douglas and Mr. Powell as the perpetrators of the murder, as well as the inference
that Smith did not recant his testimony earlier because he was still receiving
benefits. Based on our de novo review of the record, we disagree with the district
court’s conclusion that Mr. Douglas presented insufficient evidence of a tacit
agreement between Miller and Smith for Smith’s testimony at Mr. Douglas’s trial.
We need not rehash the details of whether the deal was material to Mr.
Douglas or whether it caused him prejudice. Everything we said in the Brady
discussion of Mr. Powell’s claims applies equally to Mr. Douglas. The evidence
was clearly favorable to Mr. Douglas because it was strong impeachment
evidence going to the credibility of the key witness. The State not only
suppressed the evidence by presenting false, uncorrected testimony denying the
existence of any deal between the prosecutor and Smith, it also relied heavily on
the lack of any deal in vouching for the credibility of Smith, which we discuss
infra. The denial of the opportunity to impeach Smith on this evidence clearly
prejudiced Mr. Douglas.
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When Mr. Douglas first raised his Brady claim to this court, while his
appeal from the denial of his initial habeas petition was pending here, we treated
that claim as a second or successive request for habeas relief. To obtain habeas
relief on a second or successive request, Mr. Douglas would have to show both
that 1) “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence;” and 2) “the facts underlying the
claim, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B). With the benefit of the
evidentiary hearing and upon further review, however, we conclude that under the
unique circumstances of this case as we now know them, it is more appropriate to
treat Mr. Douglas’s Brady claim as a supplement to the prosecutorial misconduct
claims he alleged in his initial habeas petition. As such, he need not satisfy 28
U.S.C. § 2244(b)(2)(B)’s requirements for pursuing a second or successive habeas
petition before he can obtain habeas relief. 17
In reaching this conclusion, we note that AEDPA itself “does not define the
terms ‘second or successive.’” United States v. Lopez, 534 F.3d 1027, 1033 (9th
17
It is clear, as previously discussed, see supra section IV.B.1, that Mr.
Douglas could not, through the use of due diligence, have discovered the factual
predicate for his Brady claim any earlier.
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Cir. 2008), reh’g granted, 2008 WL 5000037, at *1 (9th Cir. Oct. 30, 2008); see
also Panetti v. Quarterman, 127 S. Ct. 2842, 2853 (2007) (noting that “[t]he
phrase ‘second or successive’ is not self-defining,” but “takes its full meaning
from [the Supreme Court’s] case law, including decisions predating the enactment
of [AEDPA]”); United States v. Scott, 124 F.3d 1328, 1329 (10th Cir. 1997)
(noting AEDPA “does not define what is meant by ‘second or successive’”). And
“[t]he [Supreme] Court has declined to interpret ‘second or successive’ as
referring to all § 2254 applications filed second or successively in time, even
when the later filings address a state-court judgment already challenged in a prior
§ 2254 application.” Panetti, 127 S. Ct. at 2853 (emphasis added). In deciding
whether a pleading should be deemed a second or successive pleading subject to
28 U.S.C. § 2244(b)’s restrictions, the Supreme Court instead looks to the
purposes of AEDPA, which are “to further the principles of comity, finality, and
federalism.” Id. at 2854 (quotation marks omitted). The Court has further
indicated that “[t]hese purposes, and the practical effects of our holdings, should
be considered when interpreting AEDPA. This is particularly so when petitioners
run the risk under the proposed interpretation of forever losing their opportunity
for any federal review . . . .” Id. (quotation marks omitted) (addressing a
situation where petitioners might forever lose review of their unexhausted federal
habeas claims). The Court has, thus, “resisted an interpretation of the statute that
would produce troublesome results, create procedural anomalies, and close our
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doors to a class of habeas petitioners seeking review without any clear indication
that such was Congress’ intent.” 18 Id. (quotation omitted); see also Castro v.
18
In other circumstances, the Supreme Court, as well as this court, has
declined to require that a habeas petitioner meet 28 U.S.C. § 2244(b)(2)’s
requirements for asserting a second or successive habeas petition, even though
that petition was, in time, a second or successive challenge to a conviction. See
Panetti, 127 S. Ct. at 2848, 2852-53 (following Stewart v. Martinez-Villareal, 523
U.S. 637, 639, 643-46 (1998), and holding that a claim petitioner asserted under
Ford v. Wainwright, 477 U.S. 399 (1986) — which prohibits executing an inmate
who is insane — is not subject to 28 U.S.C. § 2244(b)(2)’s restrictions on second
or successive applications for federal habeas relief, even when the petitioner
failed to raise the Ford claim in his first habeas petition); Yellowbear v. Wyo.
Attorney Gen., 525 F.3d 921, 925 (10th Cir. 2008) (noting that petitioner’s first
habeas petition, asserted under 28 U.S.C. § 2254, was more appropriately
characterized as a 28 U.S.C. § 2241 petition and thus holding that a later filed
§ 2254 petition was not a second or successive habeas application); cf. Burton v.
Stewart, 549 U.S. 147, 153-54 (2007) (per curiam) (assuming, without deciding,
that the Ninth Circuit’s approach of deeming a habeas petition not to be second or
successive if the petitioner “had a legitimate excuse for failing to raise his
sentencing challenges” earlier, is correct; holding, however, that habeas petitioner
in that case did not have a “legitimate excuse”); Castro, 540 U.S. at 377, 383
(relying on Court’s supervisory power over lower federal courts to hold that a
“court cannot . . . recharacterize a pro se litigant’s motion as the litigant’s first
[28 U.S.C.] § 2255 motion unless the court informs the litigant of its intent to
recharacterize, warns the litigant that the recharacterization will subject
subsequent § 2255 motions to the law’s ‘second or successive’ restrictions, and
provides the litigant with an opportunity to withdraw, or amend, the filing).
Similarly, the Tenth Circuit has held generally that any habeas petition that
does not result in an adjudication of the merits of the habeas claims, whether that
adjudication be on procedural or substantive grounds, will not count as a first
habeas petition for purposes of determining whether later habeas petitions are
second or successive. See Haro-Arteaga v. United States, 199 F.3d 1195, 1196
(10th Cir. 1999) (per curiam) (citing cases and noting, among other things, that,
where first 28 U.S.C. § 2255 motion resulted in the reinstatement of the
defendant’s right to appeal federal conviction, AEDPA’s second or successive
restrictions did not apply to a later-filed § 2255 motion); id. at 1195-97 (holding
AEDPA’s second or successive restrictions did not apply to preclude § 2255
(continued...)
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United States, 540 U.S. 375, 380-81 (2003).
In this unusual case, we conclude Mr. Douglas’s Brady claim should be
treated, not as a second or successive request for habeas relief, but instead as a
supplement to his initial habeas petition. See Cummings v. Sirmons, 506 F.3d
1211, 1221 (10th Cir. 2007) (noting habeas petitioner in that case filed
“supplemental” habeas petition in district court, adding two habeas claims), cert.
denied, 128 S. Ct. 2943 (2008); United States v. Guerrero, 488 F.3d 1313, 1314,
1316-17 (10th Cir. 2007) (remanding to give inmate an opportunity to file an
amended § 2255 motion to add claims that were not time-barred under AEDPA);
see also Espinoza-Saenz, 235 F.3d at 504-05 (holding § 2255 movant can only
amend § 2255 motion to add claims that are not time-barred under AEDPA).
More specifically, we conclude Mr. Douglas’s Brady claim supplements the
prosecutorial misconduct claim he has asserted all along — that the prosecutor
deprived Mr. Douglas of due process when, during closing argument, he vouched
18
(...continued)
motion where petitioner filed, but then voluntarily withdrew, an earlier § 2255
motion); Scott, 124 F.3d at 1328-30 (holding second § 2255 motion was not a
second or successive motion under AEDPA where district court granted first §
2255 motion, resulting in the district court resentencing the defendant who
thereafter unsuccessfully challenged that sentence on direct appeal and then filed
his “second” § 2255 motion); Reeves v. Little, 120 F.3d 1136, 1137-40 (10th Cir.
1997) (per curiam) (holding that, where petitioner’s first § 2254 petition
challenged the excessive delay in the Oklahoma courts in resolving petitioner’s
direct criminal appeal, his second § 2254 petition, filed after the Oklahoma courts
resolved petitioner’s direct appeal, was not a second or successive federal habeas
petition subject to 28 U.S.C. § 2244’s requirements).
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for eyewitness Smith’s credibility as we have discussed above.
Admittedly, we would not ordinarily permit a habeas petitioner to
supplement his habeas petition in this way where, as here, his first habeas petition
was already pending before this court on appeal from the denial of relief. In fact,
the Tenth Circuit has previously held that even though a habeas petitioner is able
to assert the new claim for habeas relief while his appeal from the denial of his
first habeas petition is pending, the petitioner is not excused from having to meet
§ 2244(b)’s requirements for a second or successive habeas claim. See Ochoa v.
Sirmons, 485 F.3d 538, 540-41 (10th Cir. 2007) (per curiam) (rejecting Second
Circuit’s decision to the contrary in Whab v. United States, 408 F.3d 116 (2d Cir.
2005)).
But the circumstances in Mr. Douglas’s case are distinguishable from the
situation this court addressed in Ochoa. 19 Here, under the unusual circumstances
19
In Ochoa, the habeas petitioner, a state prisoner sentenced to death, filed
his first federal habeas petition, the district court denied relief, and he appealed
that determination to the Tenth Circuit. See 485 F.3d at 539-40. While his appeal
was pending before this court, the United States Supreme Court decided Atkins v.
Virginia, 536 U.S. 304, 306-07, 310, 321 (2002), overturning its prior precedent
and concluding that the Eighth Amendment precludes executing a mentally
retarded defendant. In light of Atkins, Ochoa argued to this court that he should
be permitted to pursue an Atkins claim without having to meet 28 U.S.C.
§ 2244(b)(2)(A)’s requirements for a second or successive habeas petition. See
id. at 539. Section 2244(b)(2)(A) specifically addresses the situation presented in
Ochoa, permitting a habeas petitioner to assert a second or successive habeas
petition when “the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
(continued...)
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presented in this case, it makes sense to allow Mr. Douglas to supplement his
previously asserted prosecutorial misconduct claim with his Brady allegations,
which involve proven willful misconduct by the prosecutor in eliciting Smith’s
false testimony at Mr. Douglas’s trial, in using that false testimony to improperly
vouch for Smith’s veracity to the jury during closing arguments, and in taking
affirmative action to cover up the tacit agreement the prosecutor made with Smith
in exchange for Smith’s testimony against Mr. Douglas. Because the prosecutor
acted willfully, and not just negligently or inadvertently, his conduct warrants
special condemnation and justifies permitting Mr. Douglas to supplement his
initial habeas petition. “It has long been established that the prosecution’s
‘deliberate deception of a court and jurors by the presentation of known false
evidence is incompatible with rudimentary demands of justice.’” Banks v. Dretke,
540 U.S. 668, 694 (2004) (quoting Giglio, 405 U.S. at 153).
There are seven factors on which we base our conclusion that Mr. Douglas
can supplement his previously-raised claim of improper prosecutorial conduct
19
(...continued)
Court that was previously unavailable.” This court rejected the petitioner’s
argument, concluding “that the pendency of an appeal from the denial of a first
petition does not obviate the need for authorization of newly raised claims” under
§ 2244(b)(2). Ochoa, 485 F.3d at 539. But in that case, unlike here, there was no
affirmative and egregiously improper action on the part of the government that
prevented the habeas petitioner from discovering and asserting his Atkins claim
any earlier.
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with his Brady claim. 20
a. Mr. Douglas’s initial habeas petition is still open and pending
First, Mr. Douglas’s initial habeas petition remained pending at the time he
was able to discover and assert his Brady claim, albeit pending before this court
on an appeal from the denial of habeas relief. Because Mr. Douglas’s first habeas
petition had never been finally resolved, to allow Mr. Douglas to supplement his
first habeas petition in this manner would not be contrary to one of the recognized
purposes of AEDPA — finality. See Panetti, 127 S. Ct. at 2854; United States v.
Mitchell, 518 F.3d 740, 746-47 & 747 n.9 (10th Cir. 2008). Moreover, because
the district court abated the habeas proceedings in order to permit Mr. Douglas to
exhaust his newly-discovered Brady claim in Oklahoma state court, our allowing
Mr. Douglas to assert that claim now also does not offend other recognized
purposes underlying AEDPA — comity and federalism, see Panetti, 127 S. Ct. at
2854.
b. Mr. Douglas’s pending prosecutorial misconduct claim
is closely related to the Brady allegations
Second, Mr. Douglas raised a claim in his first habeas petition that was
20
We do not hold that a habeas petitioner must establish all of these factors
in order to be able to supplement his initial habeas petition; instead, we conclude
only that, in this case, these are the factors that persuade us such supplementation
is justified here. But because it will be a rare case where such factors will be
present, they serve to narrow significantly the circumstances that would justify
permitting a habeas petitioner to supplement his first habeas petition in this same
manner.
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closely correlated to his later-discovered Brady allegations. Mr. Douglas has
argued all along that the prosecutor deprived him of due process by improperly
vouching for the credibility of the State’s key eyewitness, Smith, before the jury
during closing argument. Mr. Douglas just did not know how improper the
prosecutor’s vouching for Smith was until Mr. Douglas later discovered evidence
that the prosecutor had an undisclosed agreement exchanging Smith’s testimony
against Mr. Douglas for the prosecutor’s assisting Smith in numerous criminal
difficulties. Miller knowingly elicited Smith’s false testimony that he was not
testifying against Mr. Douglas pursuant to any agreement with the government.
Miller knowingly used that false testimony to argue to the jury that Smith’s
testimony was reliable. And Miller took affirmative steps, after Mr. Douglas’s
trial, to cover up the tacit agreement. See Engberg v. Wyoming, 265 F.3d 1109,
1112, 1116 (10th Cir. 2001) (treating claim alleging that government failed to
disclose that it had attempted to use hypnosis to enhance a witness’s recollection
and claim challenging prosecutor’s reference, during closing argument, that the
witness was “one calm and collected lady” as “aspects of the single issue of the
effect of the prosecution’s failure to disclose police attempts to hypnotize [the
witness]”); see also United States v. Mangual-Garcia, 505 F.3d 1, 10 (1st Cir.
2007) (considering whether prosecutor’s closing argument could provide the basis
for a Napue claim that the prosecutor knowingly elicited false testimony, but
rejecting such a basis in that case because the prosecutor’s argument was not
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contrary to any evidence), cert. denied, 128 S. Ct. 2081 (2008); Carriger v.
Stewart, 132 F.3d 463, 465-66, 481-82 (9th Cir. 1997) (en banc) (rejecting
government’s argument that habeas petitioner had failed to establish prejudice
from a Brady violation, based upon prosecution’s failure to disclose documents
suggesting State’s key witness was an habitual liar, where prosecutor strenuously
vouched for witness’s credibility during closing argument); United States v.
Udechukwu, 11 F.3d 1101, 1102, 1105-06 (1st Cir. 1993) (granting relief from
federal conviction, on direct appeal, where government failed to disclose the
results of its investigation into information the defendant had provided regarding
her drug supplier, and “prosecutor’s closing argument deliberately suggested the
contrary of the facts known to the government” following its investigation of the
defendant’s information; noting that “[h]ere we find a kind of double-acting
prosecutorial error: a failure to communicate salient information, which, under
Brady . . . and Giglio . . . should be disclosed to the defense, and a deliberate
insinuation that the truth is to the contrary”); Brown v. Wainwright, 785 F.2d
1457, 1458 (11th Cir. 1986) (granting habeas relief where “prosecution knowingly
allowed material false testimony to be introduced at trial, failed to step forward
and make the falsity known, and knowingly exploited the false testimony in its
closing argument to the jury”); United States v. Bigeleisen, 625 F.2d 203, 208-10
(8th Cir. 1980) (granting relief in part under Napue, based upon key witness’s
false testimony that he did not have an agreement with the prosecution to testify,
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where prosecutor failed to correct that false testimony and instead made
misleading closing argument to jurors from which they could have found that no
such agreement existed); United States ex rel. Wilson v. Warden Cannon, 538
F.2d 1272, 1274, 1277 (7th Cir. 1976) (granting habeas relief where prosecutor
knowingly used perjured testimony that witness did not have agreement with
government to testify, “emphasized the nonexistence of any agreements in his
questioning,” and “stressed the nonexistence of any agreements in his closing
argument”); Powell v. Howes, No. 05-71345, 2008 WL 4372632, at *6 (E.D.
Mich. Sept. 22, 2008) (holding habeas petitioner’s allegations that witness’s
“false testimony, the prosecution’s failure to correct it, and the prosecution’s
affirmation of the testimony during closing arguments” stated a Napue/Giglio
claim); Tassin v. Cain, 482 F. Supp. 2d 764, 773 (E.D. La. 2007) (noting that
prosecutor’s active participation in misleading jury, following witness’s
testimony that gave jury the false impression that witness faced up to ninety-nine
years in prison, when in fact the witness, pursuant to an agreement with the
prosecution, anticipated receiving only a ten-year sentence, is the “sort of
capitalization upon misleading testimony by the state [that] clearly runs afoul of
Napue and Giglio”), aff’d, 517 F.3d 770 (5th Cir. 2008); Bragan v. Morgan, 791
F. Supp. 704, 711, 712-15 (M.D. Tenn. 1992) (noting that prosecutor’s
ratification of false testimony prosecutor knowingly presented “is a clear
violation of Giglio”); cf. Byrd v. Collins, 227 F.3d 756, 758 (6th Cir. 2000)
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(Jones, J., dissenting from denial of reh’g en banc) (noting that the prosecutorial
misconduct in that case was “symbiotic”: “The Brady violations produced an
environment in which the testimony of convicted felon and jailhouse snitch
Armstead could be credited; the [prosecutor’s] vouching placed the State’s seal of
approval on Armstead’s testimony; and the [prosecutor’s] factual speculation
created an imaginary evidentiary predicate to undergird Armstead’s testimony.
The combined effect of these various forms of misconduct eviscerated
[defendant’s] right to a fair trial.”); United States v. Ringwalt, 213 F. Supp. 2d
499, 519, 521-22 (E.D. Pa. 2002) (using Brady’s materiality standard to analyze
claim alleging that prosecutor made improper closing argument to jury, where
prosecutor allegedly argued contrary to police interview notes which the
prosecution did not disclose to the defense), aff’d, 66 Fed. App’x 446 (3d Cir.
June 10, 2003) (unpublished). “[T]he basic [tenet] of Giglio does not depend on
whether misleading information was given to the jury in the form of a closing
argument by a prosecutor rather than through the testimony of a witness.”
Armour v. Salisbury, 492 F.2d 1032, 1037 (6th Cir. 1974).
c. The prosecutor’s misconduct here in violation of
Brady/Giglio/Napue was willful and intentional
Third, the prosecutor’s misconduct in Mr. Douglas’s case was not merely
inadvertent, but was instead willful and intentional. A habeas petitioner can
succeed on a Brady claim by establishing that the government suppressed
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evidence material to the defense while acting either intentionally or inadvertently.
See Strickler, 527 U.S. at 281-82. But in this case, Mr. Douglas has established
more than just a Brady violation. He has been able to establish a Giglio/Napue
violation — that the prosecutor knowingly presented false testimony. See Giglio,
405 U.S. at 153-55; Napue, 360 U.S. at 265, 269-72. Therefore, the prosecutor’s
conduct in this case warrants special condemnation. Cf. Ringwalt, 213
F. Supp. 2d at 522 (noting that, while prosecutor failed to disclose exculpatory
evidence, that failure did not “undermine confidence in the criminal justice
system” because “the conduct of government’s counsel can not be described as
intentional or constituting bad faith”). The prosecutor’s knowing use of false
testimony involves, not “just” prosecutorial misconduct, but “more importantly . .
. [the] corruption of the truth-seeking function of the trial process.” United States
v. Agurs, 427 U.S. 97, 104 (1976). Under these circumstances, this court is
obligated to censure such wilful prosecutorial misconduct.
d. The prosecutor’s active concealment of his violation
Fourth, and closely related to the third factor, it was the prosecutor’s
conduct in this case in taking affirmative action, after Mr. Douglas’s trial, to
conceal the tacit agreement the prosecutor had made in exchange for Smith’s
testimony that prevented Mr. Douglas from discovering the Brady claim in time to
assert that claim originally in his first habeas petition. If Mr. Douglas had
discovered this information even a few months earlier, he could have initially
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presented his Brady claim as part of his first habeas petition and would be,
procedurally, in the same position as his co-defendant Mr. Powell — entitled to
habeas relief from his capital murder conviction. In light of these circumstances
as we now know them, to treat Mr. Douglas’s Brady claim as a second or
successive request for habeas relief, subject to the almost insurmountable
obstacles erected by 28 U.S.C. § 2244(b)(2)(B), would be to allow the
government to profit from its own egregious conduct. See Lopez, 534 F.3d at
1034 (noting court was “not inclined to allow government in effect to profit from
its failure to meet its obligations under Brady,” and, therefore, construing appeal
as request to file second or successive habeas application). And “[a]
rule . . . declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a
system constitutionally bound to accord defendants due process.” Banks, 540
U.S. at 696 (rejecting argument that “the prosecution can lie and conceal and the
prisoner still has the burden to . . . discover the evidence so long as the ‘potential
existence’ of a prosecutorial misconduct claim might have been detected”
(quotation marks and citation omitted)). Certainly that could not have been
Congress’s intent when it enacted AEDPA. See Panetti, 127 S. Ct. at 2854
(noting that the Supreme Court has “resisted an interpretation of the statute that
would ‘produce troublesome results,’ ‘create procedural anomalies,’ and ‘close
our doors to a class of habeas petitioners seeking review without any clear
indication that such was Congress’ intent’”) (quoting Castro, 540 U.S. at 380-81).
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The prosecutor’s conduct at issue here, then, is akin to a fraud on the
federal habeas courts; that is, the prosecutor took affirmative actions to conceal
his tacit agreement with the state’s key witness until it was too late, procedurally,
for Mr. Douglas to use that undisclosed agreement successfully to challenge his
capital conviction. In other circumstances, the Supreme Court has noted that
fraud on a federal habeas court might exempt a petitioner from meeting the strict
limitations AEDPA places on second or successive requests for habeas relief. See
Gonzalez v. Crosby, 545 U.S. 524, 530-32 & 532 n.5 (2005) (noting that a habeas
petitioner could properly assert a Fed. R. Civ. P. 60(b) motion for reconsideration
of the denial of habeas relief, so long as that motion did not reassert previously
argued habeas claims, or assert new habeas claims, but instead challenged the
integrity of the federal habeas proceedings by, for example, alleging fraud on the
federal habeas court); Calderon v. Thompson, 523 U.S. 538, 553-54, 557-58
(1998) (indicating a habeas petitioner could not seek to recall the mandate issued
in an appeal from the denial of a first habeas petition, in order to permit the
petitioner to assert a new claim for habeas relief; but further noting that this was
“not a case of fraud upon the court, calling into question the very legitimacy of
the judgment”); see also Berryhill v. Evans, 466 F.3d 934, 937-38 (10th Cir.
2006) (applying Gonzalez, but concluding in that case that a habeas petitioner’s
Rule 60(b) motion was not one challenging the integrity of the federal habeas
proceeding, but instead presented a second or successive claim for habeas relief
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that was subject to 28 U.S.C. § 2244(b)(2)(B)’s requirements).
While these “fraud on the court” cases do not directly apply to the
circumstances of this case, they lend support to our decision to treat Mr.
Douglas’s Brady claim as part of his initial request for habeas relief. “Where a
prisoner can show that the state purposefully withheld exculpatory evidence, that
prisoner should not be forced to bear the burden of section 2244, which is meant
to protect against the prisoner himself withholding such information or
intentionally prolonging the litigation.” Workman v. Bell, 227 F.3d 331, 335 (6th
Cir. 2000) (en banc) (Merritt, J., dissenting). Further,
fraud upon the court calls into question the very legitimacy of a
judgment. That characterization of the situation which arises when
the prosecution fails to reveal exculpatory evidence to the defense
would seem to satisfy, at least in spirit, the requirement of section
2244. The difference between questions of fraud upon the court and
ordinary newly-discovered evidence situations is that an allegation of
fraud upon the court casts a dark shadow over the prosecution’s
intentions. The situation suggests that a judgment may have been
reached with the assistance of a prosecutor who may not have had the
intention of finding the true perpetrator. Such a judgment is
inherently unreliable, and therefore satisfies the requirements of
section 2244 in spirit.
Id. 21 Moreover,
21
This analysis garnered seven of the fourteen en banc votes available in
this Sixth Circuit case. See Workman, 227 F.3d at 332. On this basis, seven
Sixth Circuit judges voted to grant the habeas petitioner’s motion to reopen a
panel decision affirming the district court’s decision to deny the appellant’s first
habeas petition, concluding the petitioner had established a prima facie case for
asserting a second or successive Brady claim, and to remand for an evidentiary
(continued...)
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[p]rosecutors are subject to constraints and responsibilities that don’t
apply to other lawyers. While lawyers representing private parties
may—indeed, must—do everything ethically permissible to advance
their clients’ interests, lawyers representing the government in
criminal cases serve truth and justice first. The prosecutor’s job isn’t
just to win, but to win fairly, staying well within the rules. As
Justice Douglas once warned, “[t]he function of the prosecutor under
the Federal Constitution is not to tack as many skins of victims as
possible to the wall. His function is to vindicate the right of people
as expressed in the laws and give those accused of crime a fair trial.”
Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas,
J., dissenting).
United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (other citations
omitted). For similar reasons, in this case, which involves fraud perpetrated on
Mr. Douglas and analogous to fraud on the habeas court, we will permit Mr.
Douglas to supplement his claim alleging the prosecutor improperly vouched for
Smith’s credibility with Mr. Douglas’s newly-discovered Brady claim.
e. This is a death penalty case, with special considerations
Fifth, and importantly, this case involves the death penalty. “[D]eath is a
different kind of punishment from any other which may be imposed in this
country.” Gardner v. Florida, 430 U.S. 349, 357 (1977). Although we are
reluctant to create distinct rules applying differently to capital habeas
proceedings, we are also aware that the “qualitative difference between death and
21
(...continued)
hearing before the district court. See id. at 332-38. Another seven judges,
however, voted to deny that motion to reopen the panel decision. See id. at 332.
Because the en banc court was evenly divided, the original panel opinion denying
the motion to reopen remained in effect. See id.
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other penalties calls for a greater degree of reliability when the death sentence is
imposed,” Lockett v. Ohio, 438 U.S. 586, 604 (1978), as well as a heightened
scrutiny in reviewing such a decision, see Cartwright v. Maynard, 822 F.2d 1477,
1483 (10th Cir. 1987) (reh’g en banc), aff’d, 486 U.S. 356 (1988). For these
reasons, we apply a heightened concern for fairness in this case, where the state is
prepared to take a man’s life.
f. Inequity in treatment between Mr. Douglas and Powell leads to
the conclusion that death penalty for Mr. Douglas is capricious
Sixth, and building on the previous factor, “‘[i]t is of vital importance to
the defendant and to the community that any decision to impose the death
sentence be, and appear to be, based on reason rather than caprice or emotion.’”
Zant v. Stephens, 462 U.S. 862, 885 (1983) (quoting Gardner, 430 U.S. at 358)
(addressing decision to impose capital sentence); cf. Gregg v. Georgia, 428 U.S.
153, 188 (1976) (plurality) (noting that the death penalty’s “uniqueness” requires
that it not be imposed “under sentencing procedures that create[] a substantial risk
that it w[ill] be inflicted in an arbitrary and capricious manner”).
Here, there would be an obvious and unjustifiable inequity if we were to
grant Mr. Douglas’s co-defendant Mr. Powell habeas relief on the very same
Brady claim on which we deny Mr. Douglas such relief. Given our conclusion
regarding the prosecutor’s similar agreement in both trials to assist the key
witness in exchange for his testimony, it would constitute an arbitrary and
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irrational decision to treat the cases differently that cannot be explained by either
Mr. Douglas’s culpability or his lack of diligence in pursuing his Brady claim.
The only reason to deny Mr. Douglas habeas relief is that the government
successfully prevented Mr. Douglas from discovering this Brady claim earlier by
actively concealing the prosecutor’s improper conduct. To reach such an
arbitrary and irrational decision based only upon the degree of success the
government achieved in covering up the prosecutor’s egregious conduct would be
to invite disrespect upon the judicial system. Cf. United States v. Olano, 507 U.S.
725, 731-36 (1993) (holding a defendant will be entitled, on direct appeal, to
relief from a federal criminal conviction under Fed. R. Crim. Proc. 52(b), even
though he did not raise the error before the trial court, if the error is plain and
affected the defendant’s substantial rights and where such error “seriously affects
the fairness, integrity or public reputation of judicial proceedings” (quotation
marks and alterations omitted)).
g. Relief is not inconsistent with AEDPA purposes
Seventh, allowing Mr. Douglas to supplement his first habeas petition with
his Brady claim does not implicate the concerns underlying Congress’s enactment
of AEDPA’s severe restrictions on granting a habeas petitioner relief on second or
successive petitions. See 28 U.S.C. § 2244(b)(2). Congress enacted AEDPA in
part to “curb[] the abuse of the statutory writ of habeas corpus.” Montez v.
McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (quotation omitted). In this case,
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however, there is no indication that Mr. Douglas has, in any way, abused the writ
or unnecessarily delayed his federal habeas proceedings. Instead, the record
establishes that he acted with due diligence in pursuing his Brady claim once he
discovered it.
Congress also enacted AEDPA to reduce delays in the execution of state
and federal sentences, promote judicial efficiency, and conserve judicial
resources. See Panetti, 127 S. Ct. at 2854; Schriro v. Landrigan, 127 S. Ct. 1933,
1940 (2007). But again, here, any delay, inefficiency, or waste of judicial
resources stems from the prosecution, not Mr. Douglas. It cannot have been
Congress’s intent in enacting AEDPA to encourage the government to make and
conceal agreements with its key witnesses until it is too late, preventing the
habeas petitioner from asserting the existence of such secret agreements in his
initial habeas petition and thereby insulating egregious government behavior from
any habeas review.
Based upon these seven factors, we deem Mr. Douglas’s Brady claim to be
a supplement to his previously asserted claim alleging the prosecutor improperly
vouched for Smith’s credibility during the prosecutor’s closing argument to the
jury. Assessing the prosecutor’s egregious conduct in light of the trial record
leaves us with grave doubt about the validity of the jury’s verdict and persuades
us that Mr. Douglas is entitled to habeas relief from his capital murder conviction.
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V
Conclusion
For the reasons set forth above, we AFFIRM the district court’s decision
granting Mr. Powell’s petition for a writ of habeas corpus as to his convictions,
subject to the state’s right to retry Mr. Powell within a reasonable time. See
Fisher v. Gibson, 282 F.3d 1283, 1311 (10th Cir. 2002). We REVERSE the
district court’s decision denying Mr. Douglas’s petition for a writ of habeas
corpus. We REMAND the case to the district court with instructions to grant the
writ as to Mr. Douglas’s convictions, subject to the state’s right to retry him
within a reasonable time. Id.
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