UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-31375
CALVIN DUNCAN,
Petitioner-Appellant,
VERSUS
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
January 18, 2002
Before DUHÉ and BENAVIDES, Circuit Judges, and RESTANI1, District
Judge.
DUHÉ, Circuit Judge.
Petitioner-Appellant Calvin Duncan seeks habeas relief
following post-conviction relief proceedings in state court
pertaining to his first-degree murder conviction and life sentence.
First, Duncan contends that the state court improperly rejected his
Brady claim2 based on immateriality of exculpatory and impeachment
evidence withheld from him. Additionally, Duncan asserts error in
1
Judge, U.S. Court of International Trade, sitting by designation.
2
Brady v. Maryland, 373 U.S. 83 (1963), requires the state to disclose
material evidence favorable to the accused. See Little v. Johnson, 162 F.3d 855,
861 (5th Cir. 1998), cert. denied, 562 U.S. 1118 (1999).
the district court’s and the state court’s handling of a
reasonable-doubt jury instruction and related claim that the
instruction was constitutionally infirm under Cage v. Louisiana,
498 U.S. 39 (1990). For the following reasons, we affirm.
1. Brady Documents Found Immaterial.
Duncan contends that evidence withheld from him is exculpatory
Brady information, because it is contrary to the trial testimony of
a key eye witness, Kristie Emberling, and could have undermined an
officer’s testimony regarding Emberling’s selection of Duncan from
a photo line-up. Specifically, Duncan contrasts Emberling’s trial
testimony that the shooter was wearing a leather jacket and a knit
hat, with police reports from the night of the crime indicating
that Emberling and other unnamed eye witnesses described a white or
light shirt and leather sun visor. Duncan claims the reports
conflicted enough with Emberling’s trial testimony to have been
useful as impeachment, had they been duly disclosed under Brady.
The state court denied Brady relief on the ground that the
documents were immaterial. State v. Duncan, 648 So.2d 1090, 1097-
1100 (La. App. 4th Cir. 1994), writ denied, 657 So.2d 1028 (La.
1995), cert. denied, 516 U.S. 1148 (1996). Regarding the omitted
reports found to be immaterial, the district court quoted the state
appellate court’s finding that Emberling’s transcribed statement,
rather than the police reports, was the best evidence of what
Emberling actually said. An officer’s notes during an interview
2
are not documents to which a defendant is entitled under the Jencks
Act, 18 U.S.C. § 3500, if never adopted by the witness. Here, the
officer’s interpretation was not verbatim and not adopted by the
witness, so could not be useful to impeach what Emberling said. As
the state court found, the transcribed statement (mentioning a knit
cap and leather jacket) and trial testimony differ only slightly.
Similarly, her description of the murderer in her grand jury
testimony was essentially the same as that given at trial. The
district court found that the state court’s holding did not involve
an unreasonable application of clearly established federal law, as
determined by the Supreme Court.
We review the district court’s analysis of the Brady issues de
novo. Felder v. Johnson, 180 F.3d 206, 212 (5th Cir.), cert.
denied, 528 U.S. 1067 (1999). That is, we defer to the state
court’s adjudication unless it 1) was contrary to or involved an
unreasonable application of clearly established federal law as
determined by the Supreme Court, or 2) constituted unreasonable
fact-finding based on the evidence. 28 U.S.C. § 2254(d)(1) & (2).
We agree with the district court and do not find that the
state court unreasonably applied the materiality standard.
Evidence is “material” if there is a reasonable probability that,
had the evidence been disclosed, the result at the trial would have
been different; a reasonable probability is one that undermines
confidence in the outcome of the trial. United States v. Bagley,
3
473 U.S. 667, 682, 685 (1985); Spence v. Johnson, 80 F.3d 989, 998
(5th Cir.), cert. denied, 519 U.S. 1012 (1996). Duncan has not
convinced us that this undisclosed evidence would create a
reasonable probability of a different result at trial.
Duncan alleges a second Brady violation in that information
about Emberling’s identification of him from a photo line-up was
exculpatory and wrongfully withheld from the defense. Her
undisclosed grand jury testimony and an investigative report
revealed that Emberling expressed some reservations and trepidation
in selecting Duncan from a photo line-up seven months after the
crime, though Emberling’s and a detective’s trial testimony did not
reflect any hesitation on her part. Duncan also complains of not
knowing that a full week passed after her viewing the photos before
she phoned the detective to say she was sure of her identification.
The police report reflects, however, that a week did not
elapse; rather, Emberling told detectives thirty minutes later on
the very same day she viewed the photos. According to the report,
after first positively identifying Duncan, she then admitted being
“not sure and . . . very scared”; the very same morning she phoned
to state that she was positive and wavered because Duncan knew
where she lived and she was afraid that he might attempt to kill
her. Testifying before the grand jury, however, she did not
remember when she called back, and surmised that it “could have
been a week or so after.” Additionally, before the grand jury, she
4
did not mention fear that Duncan would kill her as a reason for her
hesitancy.
We disagree with Duncan’s contention that the foregoing would
have weakened Emberling’s identification at trial or shown
confusion or ingredients of suggestiveness. She did identify him
while looking at the photo. We find no reasonable probability that
a jury would have concluded that Emberling’s equivocation and the
circumstances resolving her tentativeness demonstrated uncertainty
rather than fear. Omitted evidence is not material if there is
only a reasonable possibility that either a total, or just a
substantial, discount of testimony might have produced a different
result. Felder, 180 F.3d at 213.
Finally, the materiality of suppressed evidence should be
considered collectively, not item by item. Kyles v. Whitley, 514
U.S. 419, 436-37 (1995). Duncan argues that the court erred in
considering the materiality of each piece of information in
isolation rather than collectively. The district court did make
clear that its holding pertinent to the Brady material was the same
whether the evidence was considered “individually or collectively.”
Undisclosed information must be evaluated in the context of
the entire record; if no reasonable doubt lingers irrespective of
the undisclosed matters, then the matters are not material to
guilt. United State v. Davis, 752 F.2d 963, 975-76 (5th Cir. 1985).
Emberling had a very close encounter with Duncan, indeed had a
5
conversation with him before the crime. She was only eight to ten
feet away when she witnessed the shooting of her fiancé in the
head. She identified Duncan twice from a photograph, and some
months later she again identified him from a physical line-up.
Considering the undisclosed evidence against the state’s total
case, we hold that Duncan has failed to show a reasonable
probability of a different outcome if he had had full disclosure of
the alleged Brady information.
2. Procedural Bar of Cage Claim.
The state court refused to review Duncan’s contention that a
reasonable-doubt jury instruction was unconstitutional under Cage
because the record did not reflect that Duncan made a
contemporaneous objection to the charge. Duncan, 648 So.2d at
1100; see La. Code Crim. Proc. Ann. art. 801 (West 1998). The
district court deferred to the state court’s finding that no
objection was made to the jury instruction. The district court
concluded accordingly that the Cage claim was subject to an
independent and adequate state procedural bar.3
A. Finding of No Contemporaneous Objection.
Duncan complains, first, that the state court’s ruling was not
3
A federal court will not review a question of federal law decided by a
state court if the decision rests on a state procedural default that is both
adequate to support the judgment and independent of the merits of the federal
claim, absent a showing of cause and prejudice for the default, or a showing that
the failure to review the federal claim would result in a complete miscarriage
of justice. Coleman v. Thompson, 501 U.S. 722 (1991); Muhleisen v. Ieyoub, 168
F.3d 840, 843 (5th Cir.), cert. denied, 528 U.S. 828 (1999).
6
a finding of fact, and the district court erred in deferring to it
as such. We are unconvinced. On post-conviction relief, the state
court did hold a hearing4 to determine the very question whether an
objection was made when there was none of record.
The trial court found that the record showed no objection was
lodged and rejected the argument after the hearing. The appellate
court concluded that counsel did not object during the jury
instruction period and held the matter was procedurally barred.
Even if the court did not in its ruling specifically mention the
attempted filing of an objection that was not reflected in the
record, Duncan had his evidentiary hearing on the very point. The
court simply rejected his position as a question of fact. A
federal court defers to such a finding unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Adequacy of Procedural Bar.
The state court barred Duncan’s allegation that the
reasonable-doubt jury charge was unconstitutional under Cage, based
on his violation of Louisiana’s contemporaneous-objection rule. A
state procedural rule enjoys a presumption of adequacy when the
state court expressly relies on it in deciding not to review a
claim for collateral relief. Glover v. Cain, 128 F.3d 900, 902 (5th
4
Duncan presented the trial court with evidence that a) a written objection
to the offending jury instruction was made but not file-stamped, b) his
attorney’s office filed such motions in every felony case, c) he had filed one
in Duncan’s case, too, and d) the clerk of court did not routinely file-stamp
such documents.
7
Cir. 1997), cert. denied, 523 U.S. 1125 (1998). It is well-settled
that the contemporaneous-objection rule is an independent and
adequate state procedural ground. See, e.g., Wainwright v. Sykes,
433 U.S. 72, 87-88 (1977). So long as the state court relied on
the procedural default in dismissing the claim, as it did here, the
claim is immune from federal review. Id.
Duncan contends that his Cage claim is excepted from the
contemporaneous-objection rule, as it involves a jury instruction
“of such importance and significance as to violate fundamental
requirements of due process.” See State v. Williamson, 389 So.2d
1328, 1331 (La. 1980). Because a Louisiana appellate court has
recently applied this exception from the requirement of a
contemporaneous objection to a Cage-deficient jury charge,5 Duncan
argues, barring his Cage claim based on lack of contemporaneous
objection is not an independent and adequate state law ground.
Williamson involved a jury charge pertaining to elements of
felony-murder––“the very definition of the crime.” 389 So.2d at
1331. An element of the offense is “important and significant”
enough to warrant correction as an error of constitutional
magnitude, without a contemporaneous objection. Duncan contends
that his Cage claim involves such a basic constitutional trial
right as was involved in Williamson.
To be an “adequate” state law ground, the state rule must be
5
State v. Lowery, 781 So.2d 713, 729-31 (La. App. 2nd Cir. 2001).
8
“consistently or regularly applied;” Lott v. Hargett, 80 F.3d 161,
165 (5th Cir. 1996). The procedural bar is adequate if courts have
applied it in the vast majority of similar claims. Id.; Glover v.
Cain, 128 F.3d at 902.
In Muhleisen v. Ieyoub, 168 F.3d 840 (5th Cir.), cert. denied,
528 U.S. 828 (1999), a panel of this Court declared, “We believe
Louisiana’s use of the contemporaneous objection rule, as applied
specifically to Cage claims, is constitutionally adequate.” 168
F.3d at 843. In light of the Louisiana Supreme Court’s 1996
Quatrevignt6 and Taylor7 decisions, the Muhleisen panel nevertheless
addressed the Cage claim “out of caution,” despite the lack of
objection, and Duncan urges us to do the same. The Muhleisen panel
further declared, however, “Given Quatrevingt’s proximity to the
Louisiana Supreme Court’s decision in Taylor, we doubt Quatrevingt
can be cited for the proposition that the Louisiana Supreme Court
inconsistently follows its contemporaneous-objection rule.” 168
F.2d at 843.
Duncan also asks this Court to consider the state’s
jurisprudence with respect to the procedural rule in question only
at the time the state court barred the claim, which was 1994 (State
v. Duncan, 648 So.2d 1090, 1097-1100 (La. App. 4th Cir. 1994), writ
6
State v. Quatrevingt, 670 So.2d 197, 210-11 (La.), cert. denied, 519 U.S.
927 (1996), did not apply the contemporaneous-objection bar to a Cage claim.
7
State v. Taylor, 669 So.2d 364 (La.), cert. denied, 519 U.S. 927 (1996),
expanded the contemporaneous-objection bar, by limiting review in capital cases
to trial errors to which a contemporaneous objection was offered, abrogating the
previous rule of reviewing all claims, whether preserved by objection or not.
9
denied, 657 So.2d 1028 (La. 1995), cert. denied, 516 U.S. 1148
(1996). Barrientes v. Johnson, 221 F.3d 741, 761 (5th Cir. 2000),
cert. denied, 531 U.S. 1134 (2001), considered the “adequacy” of
the state law ground as of the date the state court determined that
a claim was procedurally defaulted. Notably, however, the
Barrientes court was bound by precedent––specific to cases
concerning the Texas abuse-of-the-writ doctrine--to determine
adequacy as of that date. Barrientes, 221 F.3d at 761.
Our precedent specific to Cage claims does not restrict us to
consideration of the jurisprudence at the time a state court
determined that the claim was procedurally barred. To determine
the adequacy of the state law ground, Muhleisen readily considered
the state jurisprudence without determining when a state court
ruled that a procedural default had occurred.8 The state
procedural bar to the Cage claim provides an adequate and
independent state law bar, so we do not reach the merits of this
claim.
Conclusion.
Given the evidence presented to the jury of Duncan’s guilt, we
do not find his alleged Brady violations undermine confidence in
the outcome of his trial. The state court indeed found that no
8
In 1995 the state court denied Muhleisen the same arguments as he raised
in his federal habeas petition. Muhleisen, 168 F.3d at 842 (citing Muhleisen v.
Whitley, 664 So.2d 418 (La. 1995)). Yet the Muhleisen panel considered the two
1996 Louisiana Supreme Court cases discussed above as well as 1997 jurisprudence,
State v. Hart, 691 So.2d 651 (La. 1997), in determining whether Louisiana’s use
of the contemporaneous-objection rule provided a constitutionally adequate state
law ground.
10
contemporaneous objection was lodged to the reasonable-doubt jury
charge, and we defer to that finding. The lack of a
contemporaneous objection to the jury charge acts as a procedural
bar to Duncan’s Cage claim in this habeas action. The judgment of
the district court is in all respects
AFFIRMED.
11