Donyelle Woods v. Willie Smith

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0502n.06

Case No. 15-2339

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 25, 2016
DONYELLE WOODS, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
WILLIE SMITH, Warden, ) MICHIGAN
)
Respondent-Appellee. )
)
)

BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.

BOGGS, Circuit Judge. On May 8, 2003, Eric Harris, a local narcotics dealer, was shot

dead as he made a telephone call from a pay phone in Detroit. Four days later, a police sketch

artist interviewed Chavez Johnson, who claimed to have witnessed the shooting, and created a

composite sketch of the perpetrator. Sandra Taylor, the only other eyewitness to have seen

Harris’s killer, later identified the shooter as Petitioner Donyelle Woods. The State of Michigan

twice tried Woods for Harris’s murder and introduced the composite sketch into evidence.

Johnson, who was killed in an unrelated shooting soon after Harris’s murder, did not testify. The

first jury hung. The second jury convicted. After Taylor apparently recanted, Woods exhausted

state postconviction remedies and filed a petition for a writ of habeas corpus in federal district

court, alleging that the State’s use of the police sketch violated his rights under the Sixth
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Amendment’s Confrontation Clause, and that the prosecutor failed to disclose exculpatory

evidence. The district court denied Woods’s petition. Because the standard that governs our

review mandates substantial deference to state-court decisions, we affirm.

I

A

Eric Harris, the victim whose death gave rise to this case, rented and operated the “Green

House,” a two-story green-painted “dope house” in southwest Detroit. Harris, who sold crack

cocaine for a living, used the Green House to conduct his business and also rented rooms to drug

users. The home was managed by Gloria Patton, the mother of Harris’s girlfriend.

In January 2003, Harris apparently exchanged some words with Donyelle Woods, who

also sold drugs, over the men’s respective drug territories. But apart from that January encounter

and an unsubstantiated rumor that Harris had “arguments with” Woods, there is no evidence that

Woods had a relationship with Harris, and Woods remained largely unknown to those who

frequented the Green House.

On May 7, 2003, Harris’s girlfriend, Tomeka Shaw, spotted Harris walking around the

neighborhood accompanied by an unknown man, later identified as Chavez Johnson, who was

dressed in a white jogging suit and a red cap. Shaw, who was driving on her way to pick her

children up from school, did not stop. Later that evening, Gloria Patton saw Harris return to the

Green House with Johnson, whom Harris was urgently asking, “What you going to do dog, what

you going to do[?]” A little while later, Darnell Hunter, another local drug dealer, walked into

the Green House with a man called “Big Dog.” Both men found Harris, and a heated argument

about money ensued. According to Patton’s trial testimony, Harris became agitated, and once

the men left, Harris told Patton to “get everybody out [of] the house” because “I [am] going to

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burn this m[–––]f[–––] down.” Patton recalled Harris frantically exclaiming, “If I ain’t going to

have this house, nobody [is] going to have it.”

Meanwhile, Sandra Taylor, a Green House regular who suffered from a crack-cocaine

addiction, paged Harris in order to arrange to pay him for some drugs she had taken on credit

earlier that day. Shortly before 1:00 am on Thursday, May 8, 2003, after receiving Taylor’s

page, as well as another page from an unknown person, Harris left the Green House with Chavez

Johnson to walk to a nearby Marathon gas station, presumably to meet Taylor. Harris arrived at

the gas station before Taylor did and called his girlfriend, Tomeka Shaw.

While Harris was on the phone with Shaw, a man walked up to him and brandished a

gun. Harris saw the man and exclaimed to Shaw, as she later testified, that “this whore ass

n[–––] got a gun on me[,] but that’s all right, here go the police.” The assailant fired seven

bullets at Harris, five of which struck him. According to two eyewitnesses, the assailant then

jumped into a blue or gray or brown Toyota sedan driven by a woman, who quickly accelerated

the vehicle out of the gas station. Johnson dashed across the street and ducked behind a nearby

church. After disappearing for a few minutes, he made his way back to the Marathon station.

Officers of the Detroit Police Department (“DPD”) soon arrived on the scene, where they

found Harris’s body by the pay phone. DPD Officer Michael Carlisle, who headed the initial

investigation into Harris’s death, ordered officers to detain Johnson and swab him for gunshot

residue. Officers took Johnson to a nearby police station, where he was swabbed and questioned.

But DPD could not find any weapons in the area around the Marathon station, and interviews

with Johnson failed to turn up any evidence that he was involved. Officers released Johnson

from custody late on Thursday morning. Upon his release, Johnson, who at the time was the

only witness who claimed to have seen Harris’s killer, agreed to speak with a DPD sketch artist

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to provide a description of the assailant. But because no artist was available on Thursday,

Officer Carlisle scheduled the interview for the following Monday.

After speaking with Gloria Patton and David Jennings, who also witnessed the argument

between Harris, Hunter, and “Big Dog,” Carlisle began to suspect that Hunter, who was known

on the street by the name “T,” was responsible for Harris’s death. Moreover, DPD officers

familiar with the neighborhood knew that Hunter frequented the area around the Marathon

station, and officers found a gray Toyota sedan parked outside of a house where they thought

that Hunter lived. But after officers interviewed Hunter and executed a search warrant at the

house, which turned out to have no relation to Hunter or the crime, Officer Carlisle ruled him out

as a suspect. A couple of weeks later, Johnson, who had been “very cooperative” with Carlisle’s

investigation, was killed in an unrelated shooting. Aside from Johnson’s sketch, Carlisle was left

without any promising leads.

Carlisle then received an anonymous tip that Sandra Taylor had also witnessed the

shooting. Carlisle tracked Taylor down at a Detroit halfway house and visited her in an effort to

gain more information about the case. Though Taylor confirmed that she had witnessed the

shooting, she declined to give Carlisle a formal statement out of fear for her safety. During a

subsequent interview in September 2003, more than five months after the shooting, Taylor stated

that a man named “Ferdinand” had shot Harris.

At around that time, Carlisle was transferred to a cold-case squad, and DPD Officer

Charles Zwicker took charge of the investigation into Harris’s murder. From speaking with

officers familiar with the area around the Green House, Officer Zwicker learned that Woods

went by the name “Ferdinand” in the neighborhood. On September 29, Zwicker tracked down a

photograph of Woods and showed it to Taylor. Taylor confirmed that “that’s the man that shot

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Eric Lee Harris,” and signed a written statement implicating Woods. Woods was arrested six

hours later.

B

The State of Michigan charged Woods with first-degree murder, possession of a firearm

during a felony, and possession of a weapon by a felon. The court subsequently dismissed the

third count and scheduled a trial in Woods’s case for January 2004. After two days of hearing

evidence, including Woods’s girlfriend’s testimony that Woods was at home at the time of

Harris’s shooting, the jury deadlocked. The court scheduled another trial for March 2004.

At the second trial, the State called several witnesses, among them Tomeka Shaw, Gloria

Patton, and David Jennings, who provided information about Harris’s whereabouts during the

day leading up to the killing, and about his altercation with Darnell Hunter and “Big Dog” at the

Green House. The State also called Maurice Harris, supposedly the victim’s cousin and fellow

drug dealer, who testified about Woods’s January 2003 disagreement with Harris over drug

territory. Officers Carlisle and Zwicker recounted DPD’s investigation of Harris’s murder,

including the fact that the sketch artist interviewed Chavez Johnson. Carlisle indicated that

Johnson’s murder, in which the prosecutor strongly, and inaccurately, implied Woods was

involved, remained unsolved. William Steiner, who worked in DPD’s crime lab, testified that he

had recently conducted the gunshot-residue analysis on Johnson’s samples, which revealed some

gunshot residue on Johnson’s right hand but not on his left hand or forehead. Steiner testified

that the residue was consistent with Johnson’s having fired a weapon, but that the residue could

also have accumulated on Johnson’s hand if he had been standing in close proximity at the time

of the shooting or had handled a firearm that had recently been discharged. Patrick Gray, a truck

driver who had been completing daily logs in his truck near the Marathon station when Harris

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was killed, also took the stand and explained that he heard gunshots, saw a blue or gray Toyota

“hightailing it” out of the station, and saw Johnson running down the street.

Finally, the State also called Sandra Taylor, the only living witness to actually connect

Woods to the scene of Harris’s murder. Taylor testified that she arrived at the Marathon station

and watched as Harris talked on the pay phone while standing next to Johnson. She stated that a

gray or brown vehicle soon pulled up, and Woods, whom Taylor recognized from a prior drug

purchase, got out of the vehicle. Without saying a word, Woods allegedly fired a weapon several

times at Harris, killing him. Taylor then saw Woods jump back into the car, which sped away.

Taylor’s trial testimony was inconsistent in some respects with previous sworn

statements that she had given and with other testimony at trial. Taylor had testified in a pretrial

examination that Harris was alone at the gas station and that Woods spoke to Harris before

shooting at him. But at Woods’s second trial, Taylor stated that Harris was with Johnson, not

alone, and that Woods never said anything to Harris. And while Gray and Officer Carlisle

confirmed that Johnson was wearing a red hat, Taylor testified that Johnson was not wearing

anything on his head. On top of these contradictions, Taylor also admitted that she was “high as

hell” during the entire incident.

To bolster Taylor’s somewhat inconsistent testimony, the State introduced the DPD

sketch made from Johnson’s interview and referred to it during opening and closing arguments.

During her opening argument, the prosecutor told the jury that Johnson “le[ft] behind a face, an

image that he created working with a DPD sketch artist of the person who committed this

offense. . . . You make up your own mind whether or not that sketch is that of this defendant

sitting there.” At closing, the prosecutor instructed the jury to “look at this sketch and . . . decide

whether or not[,] in addition to the testimony of Sandra Taylor, another eye-witness picked out

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this defendant as being the shooter.” The prosecutor went on, “[H]e’s speaking to you, telling

you who, in fact, committed this crime,” and asked the jurors, “isn’t it a coincidence . . . that

Chavez Johnson, a witness to this homicide, is killed three weeks later?”

Although Woods planned to present the testimony of a woman named Shaye Taylor,

who—according to a police report taken after the shooting—would have testified that she saw

Chavez Johnson shoot Harris, Shaye Taylor ignored a subpoena and did not appear in court.

Woods did not call any other witnesses in his defense. The jury convicted after deliberating for

approximately three-and-a-half hours. The court sentenced Woods to a mandatory term of life

imprisonment without the possibility of parole on the murder charge, and two years in prison on

the firearm charge.

C

On direct appeal, the Michigan Court of Appeals rejected a jury-instruction claim and

several claims of ineffective assistance of trial counsel and affirmed Woods’s conviction. The

Michigan Supreme Court denied leave to appeal. Woods then filed a motion for relief from

judgment in the state trial court, arguing that the admission of the sketch produced from DPD’s

interview with Chavez Johnson had violated his Sixth Amendment right to confront adverse

witnesses. The state trial court rejected the claim on its merits. The court relied on the Supreme

Court’s then-recent decision in Davis v. Washington, 547 U.S. 813 (2006), in which the Court

defined and distinguished “testimonial statements” of an unavailable witness, the introduction of

which the Confrontation Clause prohibits, from “nontestimonial statements,” which the

Confrontation Clause allows. Id. at 821–22. The Davis Court explained:

Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such

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ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822. Applying this distinction to the facts before it, the state trial court held that Johnson’s

statements, which resulted in the DPD sketch, were nontestimonial in nature:

In this case, as in Davis, the sketch, objectively considered, was to help capture
the person who gunned down the victim and the sketch was necessary to resolve
the present emergency, rather than learn what had happened in the past to
establish evidence of a crime. . . . Moreover, the circumstances of the drawing of
the sketch “objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency.”

For these reasons, the court concluded that Woods’s Confrontation Clause claim lacked merit

and denied his motion.

The Michigan Court of Appeals and Michigan Supreme Court denied Woods leave to

appeal, citing Michigan Court Rule 6.508(D). Rule 6.508(D) limits a Michigan court’s authority

to grant relief from judgment and, among other restrictions, provides that unless a litigant can

show cause and prejudice, Michigan courts may not entertain any nonjurisdictional postjudgment

claim that could have been raised on direct appeal or in a prior postjudgment motion. Mich. Ct.

R. 6.508(D)(3). The state trial court denied Woods’s second and third state postconviction

motions as well, citing Michigan Court Rule 6.502(G), which prohibits successive

postconviction motions except where premised on a “retroactive change in law that occurred

after the first motion for relief from judgment or a claim of new evidence that was not discovered

before the first such motion.” Mich. Ct. R. 6.502(G)(2). The Michigan Court of Appeals and

Michigan Supreme Court again denied leave to appeal in both instances.

In January 2010, Woods received several documents from DPD through a request under

Michigan’s freedom-of-information law. Among those items were Officer Zwicker’s previously

undisclosed case notes, in which Zwicker opined that Harris’s shooter was likely one of the two

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men who argued with Harris at the Green House on the night that Harris was killed. The items

also included a report from a DPD officer to Officer Carlisle, in which the authoring officer

recounted that Eric Harris, the victim, had been having “major problems” with his girlfriend,

Tomeka Shaw. The body of the report stated in full:

Sister stated [victim] was having major problems with Tameka. Eric had move[d]
back to Miss[issippi] on March 20, 2003[.] He came back to Detroit Ap[r]il 7,
2003. When he came back Tameka had another man staying at the house.
Tameka would constantly accuse Eric of cheating on her. She was trying to sell
Eric’s cars while he was in Miss[issippi]. He told Tameka he was going to leave
her. He called sister 12 hours before his death and told her he was coming and
leaving Tameka that day. Tameka had stabbed Eric in neck area on April 28, 29
or 30th. Eric said Tameka called the police on him that night.

Woods’s postconviction counsel also uncovered additional evidence of discord between

Harris and Shaw. In particular, in 2010, Harris’s brother Clarence Booker gave Woods’s

postconviction counsel an affidavit in which Booker stated that in the weeks before Harris’s

murder, Harris had told Booker that he planned to leave Shaw because of constant feuding, and

that a day before the murder, Shaw had slashed the tires on Harris’s car and smashed the

windows. Morris Mills, with whom Shaw had apparently been having an affair at the time of

Harris’s murder, also gave a written statement to Woods in which he stated that Shaw “told me

that she and her two partner’s [sic] ‘T’ & ‘Dog’ in the drug business with her hired a hit man to

kill her late husband because of money he owed to her (Tamika) and the partner’s [sic] ‘T’ &

‘Dog.’” According to Mills, Shaw “told ‘T’ and ‘Dog’ to hire the killer and that . . . she would

set [the murder] up at a pay phone where she and [Harris] always got in touch with each other

when [e]n route to different places. She said that she paged Eric [Harris] and knew that he

would be there to get killed that day.”

Woods’s postconviction counsel also learned that by the time of Woods’s trial, Officer

Carlisle believed that there was no connection between Harris’s murder and Chavez Johnson’s

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subsequent death, and that Taylor had an outstanding Tennessee warrant when she testified

against Woods in 2004. Additionally, in 2009, Taylor, who was by then incarcerated in

Tennessee, told a Nashville lawyer, who interviewed her on behalf of Woods’s postconviction

counsel, and who later testified to the conversation in a 2011 state-court evidentiary hearing, that

she was not at the scene of the murder, had lied during Woods’s two trials, and had heard that

Shaw had “put a hit out on” Harris. The attorney further testified that Taylor stated that she gave

false testimony at Woods’s trials because DPD officers promised not to take any action on her

outstanding warrant if she cooperated.

On the basis of Taylor’s outstanding warrant, Officer Carlisle’s belief that the Harris and

Johnson murders were unrelated, Officer Zwicker’s case notes, and the DPD officer’s report

detailing Shaw’s problems with Harris, Woods filed a fourth motion for relief from judgment in

state court, in which he alleged that the prosecutor should have turned over all of this evidence

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), which requires a new trial if the government

suppressed evidence that is both favorable and material, see Kyles v. Whitley, 514 U.S. 419, 421–

22 (1995). Woods also claimed that the newly discovered evidence of Taylor’s recantation

warranted a new trial under state law.

On May 12, 2011, the state trial court held an evidentiary hearing on Woods’s motion.

Woods called his trial counsel, Burke Keaty (the Nashville lawyer who interviewed Taylor), and

Officer Carlisle. Taylor, who could not be located after she left prison in 2010, did not appear.

Woods’s trial counsel testified that Woods had steadfastly maintained his innocence. She

explained that the withheld evidence that postconviction counsel discovered would have been

useful in impeaching Taylor, investigating Shaw’s involvement in the crime, and negating the

prosecutor’s intimation that Woods had killed Johnson in order to make him unavailable for trial.

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Keaty testified that Taylor recanted and stated that she lied about Woods’s involvement

in the crime, which she told Keaty she never actually witnessed. According to Keaty, Taylor

stated that she had actually been at the Green House in the early morning of May 8, 2003, until

somebody came in and “told everyone there that [Harris] had been” shot. Taylor also told Keaty

that Officer Carlisle approached her after the shooting and showed her a picture of Woods, but

that she told Carlisle that she did not know that Woods had been involved in a killing. Taylor

then told Keaty that she ultimately agreed to testify against Woods when DPD officers promised

to “help her out with” some open warrants and that once she agreed, a man, presumably Officer

Carlisle, gave her $1,000 in cash for her help with solving Harris’s murder.

Officer Carlisle testified that by the time of Woods’s trial, he had “concluded” that

Johnson’s death was unrelated to Harris’s. Carlisle also recounted that during his first meeting

with Taylor in 2003, Taylor was “very open” with him and explained her “[eye]-witness account

of this murder.” Carlisle denied that he ever threatened Taylor, that he bribed her to testify, or

that he indicated to her that he knew she had any open warrants. Carlisle also testified that he

did not recall hearing Taylor say that she did not witness Harris’s murder.

After considering the documentary and oral evidence, the trial court denied Woods’s

motion. The court ruled that Taylor’s recantation was not “newly discovered” evidence—as it

must have been in order to pass the threshold requirement for successive postconviction motions

imposed by Michigan Court Rule 6.508(D)(3)—because it was discovered prior to the court’s

ruling on Woods’s third state postconviction motion and should have been raised as a

supplemental pleading to that motion instead of in a new motion. The court also held that

Taylor’s recantation “lack[ed] sufficient indicia of trustworthiness” because (1) Taylor did not

testify at the evidentiary hearing, depriving the court of the opportunity to properly assess her

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credibility; (2) Taylor demanded that Woods’s postconviction counsel compensate her for the

time she spent speaking with Keaty; and (3) Taylor’s allegations, introduced as unsworn hearsay

testimony, were inconsistent with Officer Carlisle’s more reliable testimony. For these reasons,

the court denied Woods’s motion for a new trial on the basis of Taylor’s recantation alone.

Turning to the four undisclosed pieces of evidence that formed the basis of Woods’s

Brady claims, the court held that none was newly discovered for purposes of Rules 6.508(D)(3)

and 6.502(G)(2), and in any event did not need to be disclosed by the prosecution under Brady.

The court explained that the prosecutor had not suppressed information about Taylor’s open

warrant or Officer Carlisle’s opinion on the relationship between Harris’s and Johnson’s

murders. The court also held that Woods failed to show that the DPD report or Officer

Zwicker’s notes were material because their probative value was slight. The court denied

Woods’s motion, and the Michigan Court of Appeals and Michigan Supreme Court denied leave

to appeal, citing Michigan Court Rule 6.508(D).

D

While his third postconviction motion was pending in state court, Woods filed a petition

for a writ of habeas corpus in federal district court in April 2009. Upon motion, the district court

held the petition in abeyance pending the outcome of Woods’s state postconviction motions.

Once the Michigan Supreme Court denied Woods’s motion for reconsideration from the court’s

denial of his fourth state postconviction motion, Woods filed an amended habeas petition, in

which he alleged that the use of the police sketch violated his Confrontation Clause rights and

that the State’s failure to disclose Taylor’s outstanding Tennessee warrant, Officer Carlisle’s

conclusion that there was no connection between the Harris and Johnson murders, Officer

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Zwicker’s case notes, and the DPD report describing Shaw’s history of violence against Harris

amounted to violations of his Fourteenth Amendment due-process rights under Brady.

The district court denied Woods’s petition. The court explained that Woods’s

Confrontation Clause claim was not procedurally defaulted but held that the state court’s

adjudication of the claim did not result in a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). The district court declined to decide

whether Woods’s Brady claims were procedurally defaulted, and instead rejected them on the

merits because the new evidence was either not suppressed or did not meet Brady’s materiality

requirement. This appeal followed.

II

Our review of this case is subject to the restrictions imposed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.

Animated by the principles of “comity, finality, and federalism,” Williams v. Taylor, 529 U.S.

420, 436 (2000), AEDPA “sharply limits the circumstances in which a federal court may issue a

writ of habeas corpus to a state prisoner whose claim was ‘adjudicated on the merits in State

court proceedings,’” Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013) (quoting 28 U.S.C. §

2254(d)). When a state prisoner’s claim has been “adjudicated on the merits in State court

proceedings,” 28 U.S.C. § 2254(d), a federal court may not disturb the state-court judgment

unless the prisoner can show that either of two conditions are met.

First, a federal court may grant a prisoner habeas relief if the state court’s merits

adjudication “resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court.” Id. § 2254(d)(1).

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A state-court decision is “contrary to” federal law only 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.”

Metrish v. Lancaster, 133 S. Ct. 1781, 1786 n.2 (2013) (quoting Williams, 529 U.S. at 413).

A state court’s decision involves an “unreasonable application of” federal law if the “state-court

decision ‘identifies the correct governing legal principle’ in existence at the time,” but

“unreasonably applies that principle to the facts of the prisoner’s case.” Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (quoting Williams, 529 U.S. at 413).

Second, federal habeas relief may be warranted where the state-court adjudication

“resulted in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). To prove that a

state court’s factual assessment was “unreasonable,” a petitioner must show that “a reasonable

factfinder must” disagree with the state court’s assessment. Rice v. Collins, 546 U.S. 333, 341

(2006).

As the Supreme Court has repeatedly made clear, see, e.g., Woods v. Etherton, 136 S. Ct.

1149, 1152–53 (2016) (per curiam); White v. Wheeler, 136 S. Ct. 456, 461 (2015) (per curiam);

Woods v. Donald, 135 S. Ct. 1372, 1377–78 (2015) (per curiam); Parker v. Matthews, 132 S. Ct.

2148, 2149, 2151–53 (2012) (per curiam), these two provisions set forth a “highly deferential”

standard for reviewing state-court rulings, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997). To

prevail, a petitioner must show that the state court’s ruling “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

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On appeal, we review de novo the district court’s legal conclusions and mixed questions

of law and fact, including whether the state court’s adjudication was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” Moore v. Mitchell, 708 F.3d 760,

774 (6th Cir. 2013). Although this court ordinarily reviews the district court’s findings of fact

for clear error, ibid., it must give de novo review to any such findings that are based on a review

of state-court records, Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000). With this standard of

review in mind, we turn to the constitutional claims that Woods raises on appeal.

III

We start with Woods’s contention that the state court unreasonably applied clearly

established Supreme Court law when it denied his Confrontation Clause claim. Before we reach

the merits of that claim, however, we must address the Warden’s argument that Woods

procedurally defaulted it by failing to comply with state procedural rules. As we explain,

although Woods did not procedurally default his Confrontation Clause claim, the state court’s

adjudication of that claim did not result in a decision that was erroneous under AEDPA’s

deferential standard.

A

A four-part test determines whether a claim has been procedurally defaulted in state

court. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). First, there must be a state

procedural rule applicable to the petitioner’s claim, and the petitioner must have failed to comply

with that rule. Ibid. Second, the state court must actually have invoked the rule, using it as a

basis for declining to grant relief from the judgment. Ibid. Third, the procedural rule must be an

independent and adequate ground on which the state can rely to foreclose review of a federal

claim. Ibid. Fourth, even if all of the three preceding conditions are met, we may nonetheless

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consider a defaulted claim if the petitioner shows cause for the default and resulting prejudice, or

if he shows that our failure to review the claim would result in a miscarriage of justice. Ibid.

The Warden bears the burden of proving the first three requirements, see Mitchell v. Mason,

325 F.3d 732, 739 (6th Cir. 2003), and in this case he cannot show that the state court actually

relied upon a procedural rule that would prohibit federal consideration of Woods’s Confrontation

Clause claim.

Woods brought his Confrontation Clause claim in his first motion for relief from

judgment, which was subject to the requirements of Michigan Court Rule 6.508(D).

As mentioned above, paragraph (D)(3) of that rule provides that, unless a movant shows cause

and prejudice, Michigan courts may not grant the movant relief on any nonjurisdictional ground

that “could have been raised on appeal from the conviction and sentence or in a prior motion” for

relief from judgment. Mich. Ct. R. 6.508(D)(3). Although we have recognized paragraph (D)(3)

as an independent and adequate ground on which a state court may rest its decision,

see Alexander v. Smith, 311 F. App’x 875, 882 (6th Cir. 2009) (per curiam), another part of Rule

6.508(D) permits state courts to deny relief for the non-procedural, merits-based reason that the

defendant did not carry his “burden of establishing entitlement to the relief requested,” Mich. Ct.

R. 6.508(D); see Guilmette v. Howes, 624 F.3d 286, 290–91 (6th Cir. 2010) (en banc). For this

reason, a Michigan court’s summary order that simply cites to Rule 6.508(D) without elaboration

is ambiguous, and this court must “look [through that unexplained order] to the last reasoned

state court opinion to determine the basis for the state court’s rejection” of the petitioner’s claim.

Guilmette, 624 F.3d at 291; see also Ylst v. Nunnemaker, 501 U.S. 797, 801, 803–04 (1991).

In this case, the last state court to rule on Woods’s Confrontation Clause claim was the

Michigan Supreme Court, which denied Woods’s application for leave to appeal because Woods

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“failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule]

6.508(D).” Because this order does not clarify whether Woods’s claim failed for procedural or

merits-based reasons, the order is unexplained. See Guilmette, 624 F.3d at 291. The same is true

of the Michigan Court of Appeals’s opinion, which made the same cryptic reference to Rule

6.508(D). Thus, the last reasoned state-court opinion to address Woods’s Confrontation Clause

claim is the state trial court’s denial of Woods’s first postconviction petition. In that opinion, the

court squarely addressed the merits of Woods’s Confrontation Clause claim without any

reference to Rule 6.508(D) at all.

The Warden counters that toward the end of its opinion, “the [state] trial court

specifically cited Mich. Ct. R. 6.508(D)(3) and said that it found no good cause to excuse

Woods’[s] failure to previously raise ‘all of the aforementioned claims,’” which, according to the

Warden, obviously “included [the] confrontation claim” that the court had already discussed.

Appellee Br. 16. It is true that “[a]n alternative holding in which a state procedural bar is a

sufficient basis for the state court’s judgment is adequate to preclude a claim from being raised

on habeas review, even when the state court also relies on federal law.” Simpson v. Jones, 238

F.3d 399, 408–09 (6th Cir. 2000). But it is also true that “[t]o operate as a bar to habeas review,

[a state procedural] rule must be clearly and expressly invoked.” Henderson v. Palmer, 730 F.3d

554, 561 (6th Cir. 2013) (quoting Skinner v. McLemore, 425 F. App’x 491, 495 (6th Cir. 2011)

(emphasis added)). Otherwise put, “there must be unambiguous state-court reliance on a

procedural default to block” federal review. Ibid. (emphasis added) (quoting Skinner, 425 F.

App’x at 495).

In this case, it is far from clear the state trial court applied Rule 6.508(D)(3) to Woods’s

Confrontation Clause claim. After addressing the merits of that claim, the state court moved on

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to Woods’s other claims, including “arguments [that] his conviction was against the great weight

of the evidence, he was denied a fair trial when the prosecution bolstered its star witness[,] and

[was denied a fair trial] due to the cumulative effect of numerous constitutional errors.” The

court continued that it “finds no good cause to all of the aforementioned claims,” and then

explained Rule 6.508(D)(3). Context strongly suggests that the court mentioned and enforced this

procedural bar with respect to the “aforementioned” three claims—that Woods’s conviction was

against the great weight of evidence and that he was denied a fair trial for two reasons—not all of

the “aforementioned” claims that the court previously addressed in its opinion. For this reason,

although Rule 6.508(D)(3) is a consistently applied procedural bar capable of prohibiting federal

review, the state trial court did not “clearly and expressly” invoke that rule with respect to

Woods’s Confrontation Clause claim. That claim is thus not procedurally defaulted, and nothing

prevents us from addressing it here.

B

Although we may consider Woods’s Confrontation Clause claim, we may not do so de

novo. Rather, because the state court reached the merits of the claim, our review is subject to the

restrictions imposed by 28 U.S.C. § 2254(d). See Fleming v. Metrish, 556 F.3d 520, 530 (6th

Cir. 2009) (“[T]he question of whether a claim should be addressed on collateral review under

the judicially created doctrine of procedural default is independent of the question of whether

Congress requires deference pursuant to AEDPA.”); Brooks v. Bagley, 513 F.3d 618, 624–25

(6th Cir. 2008) (explaining that “an alternative procedural-bar ruling does not alter the

applicability of AEDPA”).

Woods’s claim is that the introduction of the police sketch made from Chavez Johnson’s

interrogation violated his rights under the Sixth Amendment’s Confrontation Clause, which

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provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” This procedural guarantee applies with equal force

to state criminal prosecutions. See Pointer v. Texas, 380 U.S. 400, 403–05 (1965). In Crawford

v. Washington, 541 U.S. 36 (2004), which “initiated a sea change in Confrontation Clause

jurisprudence,” McCarley v. Kelly, 801 F.3d 652, 662 (6th Cir. 2015), the Supreme Court held

that the Confrontation Clause prohibits the admission of “testimonial” hearsay against a criminal

defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-

examine him, Crawford, 541 U.S. at 68. “[N]ontestimonial hearsay,” on the other hand, is

“exempted . . . from Confrontation Clause scrutiny altogether.” Ibid.

The Supreme Court explained what it meant by “testimonial hearsay” in Davis. The

Davis Court, which also adjudicated a companion case captioned Hammon v. Indiana, 547 U.S.

813 (2006), confronted two sets of facts. In Davis, a woman named Michelle McCottry called

the police and told the emergency operator that her boyfriend was attacking her. Id. at 817–18.

The operator asked McCottry several questions, and the prosecution used McCottry’s answers

against her boyfriend at a subsequent trial. Id. at 818–19. In Hammon, police responded to

reports of a domestic disturbance at a residence to find Amy Hammon on her porch and her

husband inside the house. Id. at 819. Hammon “appear[ed] ‘somewhat frightened’ but she told

[the officers] that ‘nothing was the matter.’” Ibid. Officers then entered the house with

Hammon’s permission, saw evidence of a fight, and interviewed her about what had occurred.

Id. at 819–20. The State subsequently used Hammon’s testimony in a domestic-violence

prosecution against her husband. Id. at 820.

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Case No. 15-2339, Woods v. Smith

On direct review, the Supreme Court held that whereas McCottry’s statements were not

testimonial, and therefore admissible against her boyfriend, Hammon’s were testimonial, and

therefore inadmissible against her husband. As mentioned above, the Court explained:

Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822.

McCottry’s statements, which described events as they were happening, were obviously

necessary to resolve an immediate threat to her safety and were the product of relatively informal

questioning, and hence were not testimonial because these circumstances “objectively indicate

[that] [McCottry’s interrogation’s] primary purpose was to enable police assistance to meet an

ongoing emergency.” Id. at 828. Hammon’s statements, by contrast, were the product of an

“investigation into possibly criminal past conduct,” there was “no emergency in progress” or any

“immediate threat,” and the interview, which police conducted after taking Hammon to a

separate room, was somewhat more formal. Id. at 829–30 (emphasis added). These

circumstances led the Court to conclude that “the primary, if not indeed the sole, purpose of the

interrogation was to investigate a possible crime,” and Hammon’s responses were therefore

testimonial. Id. at 830.

Applying this framework to the facts of this case, there are serious doubts about whether

the state trial court placed Woods’s claim on the right side of the testimonial/nontestimonial

divide. Just as the officers in Hammon, the DPD sketch artist asked Johnson about a crime that

had already occurred, rather than a crime that was in progress. Ibid. Johnson’s conversation

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Case No. 15-2339, Woods v. Smith

with police, which occurred at a DPD station, took place in a far more formal setting than the

“formal enough” interview in Hammon, which took place in the victim’s living room. Ibid.

Perhaps most importantly, the time that elapsed between the shooting and Johnson’s

interview—four full days—was far more than the mere minutes that transpired between the fight

and McCottry’s statements to the emergency dispatcher. Id. at 817–18. This lapse of time is

quite significant. As the author of Crawford and Davis has observed, “[m]any individuals who

testify against a defendant at trial first offer their accounts to police in the hours after a violent

act. If the police can plausibly claim that a ‘potential threat to . . . the public’ persisted through

those first few hours,” then “a defendant will have no constitutionally protected right to exclude

the uncross-examined testimony of such witnesses.” Michigan v. Bryant, 562 U.S. 344, 388–89

(2011) (Scalia, J., dissenting) (alteration in original) (quoting id. at 359 (majority opinion)). That

concern is far more pronounced when the lapse of time is measured not in hours but in days.

But this case is not before us on direct appeal. Because the state court adjudicated

Woods’s Confrontation Clause claim on the merits, we may not disturb its ruling unless “there

could be no reasonable dispute that [it was] wrong.” Donald, 135 S. Ct. at 1376. Moreover,

where, as here, we apply AEDPA to a prisoner’s claim that a state court unreasonably applied

clearly established law, “our task is to ‘determine what arguments or theories supported’ the

state-court decision or ‘could have supported’ it; and then to determine whether ‘fairminded

jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

decision of’ the Supreme Court.” Davis v. Carpenter, 798 F.3d 468, 475 (6th Cir. 2015)

(quoting Richter, 562 U.S. at 102 (emphasis added)). Though we are well aware of the need for

some temporal limit beyond which Davis’s exception for “nontestimonial hearsay” does not

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Case No. 15-2339, Woods v. Smith

ordinarily extend, we are equally convinced there is room for reasonable agreement with the

state trial court’s decision on the facts of this case.

We are guided by the reality that the state court is “entitled to special ‘leeway’” in

applying Crawford and Davis because “it was applying a rule that was neither fully defined in its

meaning nor exhaustive in its scope.” Linton v. Saba, 812 F.3d 112, 126 (1st Cir. 2016) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Davis, 547 U.S. at 822 (refraining

from making an “exhaustive classification” of testimonial statements); Crawford, 541 U.S. at 68

(“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”).

Indeed, the Supreme Court has more recently cautioned that under Davis, “the existence vel non

of an ongoing emergency is [not] dispositive of the testimonial inquiry.” Bryant, 562 U.S. at

366. Moreover, the Supreme Court has never defined the scope or weight of the “ongoing

emergency” factor mentioned in Davis, which the Court decided during the same year that the

Michigan trial court decided Woods’s Confrontation Clause claim. Nor has the Court ever held

that the threat posed by an at-large killer is not an ongoing emergency. See id. at 363.

Not until 2011, years after the state trial court adjudicated Woods’s Confrontation Clause

claim, did the Supreme Court first apply Davis to a situation in which the general public was

arguably in danger because an armed shooter was at large. See id. at 359, 373. When it finally

did so, the Court emphasized that assailants with firearms pose a far greater threat to public

safety than do assailants like those in Davis and Hammon, who used their fists. See id. at 364

(faulting a lower court for “rel[ying] on Davis and Hammon, in which the assailants used their

fists, as controlling the scope of the emergency” in a case that “involved the use of a gun”).

Because Harris’s killer was unknown, on the loose, and obviously capable of vicious acts of

violence, there are material differences between the circumstances surrounding Johnson’s

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Case No. 15-2339, Woods v. Smith

interview and those surrounding the interview in Hammon, where the police knew the identity of

the unarmed assailant, the danger that the assailant posed to the general public was not great, and

whatever threat once existed had subsided. Davis, 547 U.S. at 819–20.

We emphasize that in most cases, as the criminal event that gives rise to an emergency

situation recedes into the past, it will surely become less and less likely that the “primary

purpose” of an interrogation is to enable police to meet an “ongoing emergency.” But as a

habeas court, it is not our role to define and enforce a temporal limit to the exception for

nontestimonial hearsay outlined in Davis. See Pinholster, 563 U.S. at 202 (“We have said time

and again that ‘an unreasonable application of federal law is different from an incorrect

application of federal law.’” (quoting Richter, 562 U.S. at 101)). It is sufficient that with little

direction from the Supreme Court, and with facts that differ from those in Hammon in many

important respects, a fairminded jurist could reasonably conclude that a four-day lapse of time

was not long enough to shift the “primary purpose” of DPD’s interview with Johnson away from

responding to an “ongoing emergency.” Cf. Colon v. Taskey, 414 F. App’x 735, 738–39 (6th

Cir. 2010). Whatever our concerns about the implications of the state trial court’s decision may

be, because AEDPA requires us to refrain from disturbing state-court decisions that are not “so

lacking in justification that there was an error well understood” and “beyond any possibility for

fairminded disagreement,” Richter, 562 U.S. at 103, Woods is not entitled to habeas relief with

respect to his Confrontation Clause claim.

IV

Woods also argues that the State deprived him of due process of law by failing to disclose

four items of exculpatory evidence, in violation of Brady. In particular, Woods complains that

Taylor’s outstanding Tennessee arrest warrant, Officer Carlisle’s “conclusion” that Harris’s and

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Case No. 15-2339, Woods v. Smith

Johnson’s murders were not related, Officer Zwicker’s case notes, and the DPD report about

Harris’s trouble with Shaw were all favorable, material evidence that the prosecutor had an

obligation to disclose. Just as with Woods’s Confrontation Clause claim, the Warden argues that

Woods is not entitled to the writ because his Brady claims are either procedurally defaulted or

without merit. Although the question of procedural default is not necessarily dispositive with

respect to Woods’s Brady claims, we agree with the Warden that Woods is not entitled to relief.

A

As mentioned above, we may not ordinarily review a federal constitutional claim that a

state prisoner has procedurally defaulted unless the prisoner can show cause for his default and

resulting prejudice. See Maupin, 785 F.2d at 138. As with Woods’s Confrontation Clause

claims, the Michigan Supreme Court and the Michigan Court of Appeals relied on Michigan

Court Rule 6.508(D) in denying Woods leave to appeal from the trial court’s denial of his four

Brady claims. As before, because these summary citations to Rule 6.508(D) say nothing about

whether the state appellate courts’ denials rested on procedural or merits-based grounds, we must

“look through” these appellate orders and determine whether the state trial court, which issued

the last reasoned opinion on Woods’s Brady claims, relied on a state procedural bar.

Nunnemaker, 501 U.S. at 806; see Guilmette, 624 F.3d at 291. In this case, the state trial court

addressed the merits of Woods’s Brady claims and also relied on two procedural bars, namely,

Rule 6.508(D)(3) and Michigan Court Rule 6.502(G)(2).

In considering whether to give preclusive effect to a procedural default, “this court must

consider whether the petitioner actually failed to comply with a state procedural rule,” Hodge v.

Haeberlin, 579 F.3d 627, 642 (6th Cir. 2009), and in this case the parties dispute whether the

state court properly applied Rules 6.508(D)(3) and 6.502(G)(2). As mentioned above, both of

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those rules effectively prohibit prisoners from bringing successive motions for relief from

judgment absent a retroactive change in the law or “new evidence.” Mich. Ct. R. 6.502(G)(2);

see also Mich. Ct. R. 6508(D)(3). Woods argues that he satisfied the requirements of the two

rules because his claims rely on newly discovered evidence that the State suppressed. Appellant

Br. 36–37, 43, 50, 54–55. The Warden, on the other hand, argues that the state trial court

properly determined that a petitioner seeking relief under Rule 6.508(D)(3) and 6.502(G)(2) must

not only show newly discovered evidence, but also that he could not have obtained the

information contained in the evidence with reasonable diligence by the time of direct appeal or a

previous postjudgment motion. Appellee Br. 39–40.

There is no need to resolve the question here. A prosecutor’s suppression of Brady

evidence constitutes cause under the procedural-default doctrine. Brooks v. Tennessee, 626 F.3d

878, 890–91 (6th Cir. 2010). Likewise, the “prejudice” requirement for procedural default

requires the same analysis as the Brady “materiality” requirement. Id. at 891. “Thus, a

petitioner who proves a Brady violation demonstrates cause and prejudice to excuse procedural

default of the Brady claim.” Ibid. The upshot is that whether or not the state court properly

applied the state procedural bars, the result is the same.

If, for example, we assume that the state court did not properly apply Rules 6.508(D)(3)

and 6.502(G)(2) to Woods’s claims, we would review the Brady claims through AEDPA’s

deferential lens because the state trial court also addressed those claims on the merits.

See Brooks, 513 F.3d at 624. If Woods could prevail under that standard, he would be entitled to

relief only if he also proves an actual Brady violation on de novo review. See Williams, 529 U.S.

at 406; West v. Bell, 550 F.3d 542, 553–54 (6th Cir. 2008). See generally Frantz v. Hazey,

533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas

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Case No. 15-2339, Woods v. Smith

relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the

habeas petition by considering de novo the constitutional issues raised.”).

The same is true if we assume that the state trial court properly applied Rules 6.508(D)(3)

and 6.502(G)(2). In that case, Woods can avoid the consequences of those procedural bars if he

shows on de novo review that the prosecutor withheld material evidence, in violation of Brady.

See Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir. 2011); Hall v. Vasbinder, 563 F.3d 222,

236–37 (6th Cir. 2009) (explaining that claim of ineffective assistance of counsel used as

“cause” to excuse the default of another claim is not reviewed under the deferential standard set

forth in 28 U.S.C. § 2254(d)). If Woods also shows that the state court’s adjudications of his

Brady claims resulted in a decision that is inconsistent with clearly established federal law or one

that was based on an “unreasonable determination” of the facts of his case, he would be entitled

to habeas relief.

In sum, if Woods can prove a Brady violation to this court on de novo review and also

show that the state court’s adjudication “resulted in a decision” that does not satisfy the standard

set forth in 28 U.S.C. § 2254(d), he would be entitled to habeas relief. If Woods cannot prove

both, he is not entitled to relief, whether because he cannot show cause and prejudice to excuse

his procedural default, or because he cannot succeed on the merits of his claims.

B

In criminal proceedings, the government has a constitutional duty to disclose certain

evidence that is favorable to a defendant. Brady, 373 U.S. at 87. The state’s suppression of any

favorable evidence violates due process “where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Ibid. In order to

comply with Brady, an “individual prosecutor has a duty to learn of any favorable evidence

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Case No. 15-2339, Woods v. Smith

known to the others acting on the government’s behalf in th[e] case, including the police.”

Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Kyles, 514 U.S. at 437).

In order to prevail on a Brady claim, a criminal defendant must satisfy three

requirements: The defendant must show (1) that the evidence in question is favorable; (2) that

the evidence was suppressed by the prosecutor; and (3) that the evidence is material. Id. at 280–

82. 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.” Id. at 280

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion)). “A ‘reasonable

probability,’” in turn, “is a probability sufficient to undermine confidence in the outcome.”

Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (quoting Bagley, 473 U.S. at 682 (plurality

opinion)). The Supreme Court has emphasized that the materiality inquiry asks “not whether the

defendant would more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Kyles, 514 U.S. at 434. Crucially, when a defendant alleges that the state has

failed to disclose several pieces of Brady evidence, the materiality of that evidence is determined

by examining the “cumulative effect of all such evidence suppressed,” id. at 421 (emphasis

added), not merely by examining the impact of each piece of evidence in isolation, id. at 440–41.

It appears that the state trial court ignored this last clearly established rule of law. As we

discuss in greater detail below, whereas the state court held that the prosecutor had not

suppressed Taylor’s open warrant or Officer Carlisle’s opinion about the Johnson murder, it did

not explicitly decide whether Officer Zwicker’s case notes or the DPD report about Shaw’s

history of violence with Harris were suppressed. Although the state trial court did hold that the

notes and report were not “newly discovered” for purposes of Rule 6.502(G)(2) because, in the

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Case No. 15-2339, Woods v. Smith

court’s view, Woods had already discovered most of the information that the notes and report

ultimately revealed, the court never held that they were not suppressed under Brady for that same

reason. Instead, the state court explained that even if Woods had met the requirements of Rule

6.502(G)(2), the prosecution was under no obligation to disclose the case notes or the

DPD report because neither was material when considered alone.

Neither of the state court’s individual materiality analyses is inconsistent with Supreme

Court precedent. But instead of undertaking a cumulative analysis after analyzing the materiality

of Zwicker’s case notes and the DPD report in isolation, the state court simply concluded that

Woods’s Brady claims lacked merit and denied his postjudgment motion. In doing so, the state

trial court ignored the Supreme Court’s clear instruction that courts must assess the materiality of

Brady claims cumulatively, not merely individually. See Kyles, 514 U.S. at 440–41; see also

Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016) (per curiam) (“[T]he state postconviction court

improperly evaluated the materiality of each piece of evidence in isolation rather than

cumulatively . . . .”). Because the “contrary to” clause applies when “the state court arrives at a

conclusion opposite to that reached by th[e] [Supreme] Court on a question of law,” Williams,

529 U.S. at 405, the state court’s assumption that Brady requires only individual materiality

assessments was “contrary to” clearly established federal law, see Castleberry v. Brigano,

349 F.3d 286, 291–92 (6th Cir. 2003).

C

Our observation that the state court’s adjudication of Woods’s Brady claims was

“contrary to” clearly established federal law does not end our inquiry, but it does raise questions

about whether and how “we may ‘complete’ the state court’s reasoning.” Kubsch v. Neal,

800 F.3d 783, 806 (7th Cir. 2015). Upon concluding that a state court’s adjudication is “contrary

28
Case No. 15-2339, Woods v. Smith

to” clearly established federal law, we ordinarily review a petitioner’s constitutional claim de

novo. See Williams, 529 U.S. at 405–06 (explaining that under the “contrary to” clause of

28 U.S.C. § 2254(d)(1), if a state court “applies a rule that contradicts the governing law set forth

in” Supreme Court precedent, a federal habeas court “will be unconstrained by § 2254(d)(1)

because the state-court decision falls within [that] clause”). Somewhat less clear is whether we

may review the favorability, suppression, and materiality of all of Woods’s Brady evidence de

novo, or whether we must continue to defer to those parts of the state court’s adjudication that

are consistent with clearly established federal law and the record in this case.

AEDPA’s text supplies part of the answer. AEDPA restricts federal habeas courts’

review of “any claim that was adjudicated on the merits in State court.” 28 U.S.C. § 2254(d)

(emphasis added). A “claim” is any “asserted federal basis for relief from a state court’s

judgment of conviction.” Gonzales v. Crosby, 545 U.S. 524, 530 (2005). Because even one item

of favorable, suppressed, and material exculpatory evidence is by itself sufficient to warrant

habeas relief under Brady, and because courts need not consider the materiality of any evidence

that was not favorable or suppressed, a petitioner’s Brady claim that is premised on unfavorable

or nonsuppressed evidence is an independent “claim” that is no way affected by a state court’s

adjudication of other claims premised on other evidence. AEDPA thus demands that we apply

28 U.S.C. § 2254(d)’s deferential standard when reviewing the state trial court’s denial of any of

Woods’s Brady claims on the ground that the relevant evidence was not favorable or was not

suppressed. Accord Monroe v. Angelone, 323 F.3d 286, 298 & n.18 (4th Cir. 2003).

Whether, on de novo review of the cumulative materiality of evidence that is favorable

and suppressed, AEDPA demands that we defer to the state court’s assessments of the individual

materiality of that evidence is a closer question on which other circuits have divided.

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Case No. 15-2339, Woods v. Smith

Compare Simmons v. Beard, 590 F.3d 223, 233–34, 237–38 (3d Cir. 2009), with Barker v.

Fleming, 423 F.3d 1085, 1095–101 (9th Cir. 2005). Given that a court must assess the individual

materiality of undisclosed evidence under Brady before considering its collective impact, see

Kyles, 514 U.S. at 436 n.10, the state court’s individual analyses would seem to remain highly

relevant. See Monroe, 323 F.3d at 299 n.19. Ignoring them would not only subvert AEDPA’s

goal of advancing “comity, finality, and federalism,” Williams, 529 U.S. at 436, but would also

be inconsistent with the Supreme Court’s recognition that the applicable “standard of review can

change [even] for individual elements of [one] claim,” Brady v. Pfister, 711 F.3d 818, 826 (7th

Cir. 2013) (discussing Wiggins v. Smith, 539 U.S. 510 (2003), in which the Court applied

AEDPA deference to performance element of petitioner’s ineffective-assistance-of-counsel claim

but reviewed prejudice element de novo).

Nonetheless, we need not conclusively resolve what deference, if any, we owe to the state

court’s individual materiality analyses in this case. Our de novo review of the import of Officer

Zwicker’s case notes and the DPD report about Shaw leads us to conclude that, individually or

together, they do not undermine confidence in the outcome of Woods’s trial. Because Woods’s

failure to succeed on de novo review precludes him from succeeding under the more deferential

AEDPA standard, see Holland v. Rivard, 800 F.3d 224, 237 (6th Cir. 2015), we need not decide

whether or how 28 U.S.C. § 2254(d) applies to our materiality analysis.

Accordingly, applying the standard set forth in 28 U.S.C. § 2254(d), we first review the

state court’s determinations of the favorability and suppression of each item of evidence that

Woods claims the prosecutor should have turned over. See Monroe, 323 F.3d at 298 n.18.

We then independently consider the materiality of any evidence that was both favorable and

suppressed. Because “the only way to evaluate the cumulative effect is to first examine each

30
Case No. 15-2339, Woods v. Smith

piece standing alone,” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1310 (11th Cir.

2005), we review the materiality of this evidence in isolation before undertaking the collective

analysis that the state court did not perform.

1

Woods’s first claim—that the prosecution’s failure to disclose that Taylor had an open

Tennessee warrant amounted to a Brady violation—is not grounds for granting his petition.

The state trial court rejected Woods’s claim and cited three independent reasons for why the

open warrant did not satisfy Brady’s suppression requirement, namely: (1) impeachment

evidence does not require a new trial under Brady; (2) there was no evidence that the prosecutor

or police ever possessed evidence of the open warrant; and (3) Woods failed to show that his trial

counsel was unaware of the open warrant. The state trial court’s first ground for rejecting

Woods’s claim is obviously “contrary to” the Supreme Court’s unambiguous holding that

“[i]mpeachment evidence . . . falls within the Brady rule.” Bagley, 473 U.S. at 676. But the

court’s second finding was consistent with the record before it. Even assuming that the court’s

third rationale is, as Woods argues, based on an unreasonable assessment of the facts, we must

thus accept the state court’s second explanation for why the State did not suppress evidence of

Taylor’s outstanding warrant. See Moody v. Polk, 408 F.3d 141, 147 (4th Cir. 2005) (“An error

in a state court’s analysis does not render the state court’s decision contrary to or an

unreasonable application of Supreme Court precedent when that analysis is not necessary to the

state court’s resolution of the claim.”); accord Morris v. Carpenter, 802 F.3d 825, 840–42 (6th

Cir. 2015), petition for cert. filed sub nom. Morris v. Westbrooks (U.S. Apr. 19, 2016) (No. 15-

9002).

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Case No. 15-2339, Woods v. Smith

To show that the state suppressed evidence, a petitioner must at the very least prove that

the evidence was in the possession of the prosecutor or those working on her behalf.

See Strickler, 527 U.S. at 280–82. Woods points out that at the state court’s evidentiary hearing,

Officer Carlisle testified that when investigating a crime, he would “typically” check to see

whether a witness had any outstanding warrants in order to better evaluate the witness’s

credibility. But Officer Carlisle never stated that he actually did so with Taylor’s criminal

record. Even if Carlisle had run a background check on Taylor, it is not clear from the record

whether such a check would have turned up Taylor’s Tennessee warrant. Importantly, Woods

has submitted no evidence showing that DPD actually had information about the warrant at the

time of Woods’s second trial.

Woods did submit evidence showing that in 2005, officers of the City of Taylor—a

Michigan municipality—arrested Taylor and subsequently discovered that she had an

outstanding warrant in Tennessee. But it is unclear how those officers acquired this information.

Indeed, City of Taylor records note only that Taylor volunteered that she had an open warrant in

Tennessee, and Woods’s proof of Taylor’s Tennessee warrant appears to have come from his

postconviction counsel’s check of a Tennessee-specific offender registry, not DPD’s or the City

of Taylor’s own records. And although Burke Keaty, the Nashville attorney, testified that Taylor

said that Carlisle threatened to arrest her on an open warrant if she did not incriminate Woods,

the reliability of Taylor’s testimony is, as the state court recognized, highly questionable given

that it is hearsay communicated through Keaty and is also inconsistent with Carlisle’s testimony

on several important points.

To prove that a state court’s factual determination was unreasonable, a petitioner has to

show that “a reasonable factfinder must” disagree with the state court’s assessment. Collins,

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546 U.S. at 341. Though it is possible that DPD did in fact conduct a background check on

Taylor at the time of its investigation into Harris’s murder, and that such a check turned up

Taylor’s outstanding Tennessee warrant, the evidence introduced at the state-court hearing would

not lead every reasonable trier of fact to draw the conclusion that this in fact happened. Ibid.

For this reason, the state court’s assessment of the prosecutor’s actual and constructive

knowledge of Taylor’s open warrant was not unreasonable, and Woods cannot show that the

State suppressed evidence of Taylor’s open Tennessee warrant. See Strickler, 527 U.S. at 280–

82.

2

Woods’s next claim, that due process required the prosecutor to disclose Officer

Carlisle’s conclusion that Johnson’s murder was unrelated to Harris’s, was also reasonably

adjudicated by the state trial court. The state court gave two reasons for rejecting Woods’s bid

for a new trial on the basis of Officer Carlisle’s conclusion. First, the state court explained that

Carlisle’s “conclusion” was in reality an opinion that reflected his preliminary thoughts, which

were never recorded or revealed to the prosecutor, suggesting that his knowledge could not be

imputed to or suppressed by the prosecutor. Second, the state court held that because Woods

could have discovered Officer Carlisle’s opinion before or during trial, the opinion was not

suppressed within the meaning of Brady. Because neither conclusion is inconsistent with

Supreme Court precedent or the facts of this case, we must defer to the state court’s disposition

of Woods’s second Brady claim.

The Supreme Court has repeatedly held that a prosecutor’s duty to disclose Brady

evidence does not depend upon the prosecutor’s actual knowledge of that evidence, so long as it

is in the possession of anyone “acting on the government’s behalf in the case, including the

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police.” Kyles, 514 U.S. at 437. Likewise, the proposition that the unrecorded nature of a fact

protects that fact from disclosure under Brady is somewhat at odds with Supreme Court

precedent, which has never drawn a distinction between recorded and unrecorded statements, and

instead distinguishes between evidence that is material and evidence that is not. See D’Ambrosio

v. Bagley, 527 F.3d 489, 499 (6th Cir. 2008). But as we have recognized, Supreme Court

precedent does not require “that every stray thought of a police detective about a case must be

imputed to the State, such that the prosecutor has a duty to disclose that information, simply

because a defendant could elicit the detective’s opinion during trial.” Ibid.; see also United

States v. Agurs, 427 U.S. 97, 109 n.16 (1976) (“[T]he State [does not have] an obligation to

communicate preliminary, challenged, or speculative information.” (quoting Giles v. Maryland,

386 U.S. 66, 98 (1967) (Fortas, J., concurring in the judgment))).

Although a “stray thought” is quite different from a “fact,” the state trial court did not

find that Officer Carlisle’s “conclusion” about the identity of Johnson’s killer was a “fact.” On

the contrary, the state court found that it was an “opinion” that “constitute[d] his preliminary

suspicion based on the evidence available at that time.” This was not an unreasonable appraisal

of the evidence introduced at the state evidentiary hearing, where Officer Carlisle provided little

information about the basis of his “conclusion” and did not explain the extent to which it was

shared by others in DPD. Because no clearly established Supreme Court law compelled the

conclusion that an officer’s “preliminary suspicion[s]” must be imputed to the prosecution under

Brady, the state court’s analysis did not result in an unreasonable disposition of the claim.

Likewise, the state court’s second reason for rejecting Woods’s second Brady claim—that

Woods “had ample opportunity to discover” Carlisle’s thoughts about Johnson’s death because

“Carlisle was available to be called as a witness at trial and defense trial counsel would have

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Case No. 15-2339, Woods v. Smith

been free to cross examine him on his opinions as [they] pertained to the related or unrelated

nature of the two cases”—was also not an unreasonable application of Brady’s suppression

requirement. Several courts have interpreted Brady’s suppression requirement as exempting

from the general rule of mandatory disclosure any favorable and material evidence that the

defendant could have discovered through the exercise of reasonable diligence. See, e.g., United

States v. Brown, 650 F.3d 581, 588 & n.10 (5th Cir. 2011) (“[T]o have been suppressed, the

evidence must not have been discoverable through the defendant’s due diligence.” Id. at 588.);

Maynard v. Gov’t of V.I., 392 F. App’x 105, 112 (3d Cir. 2010) (same); People v. McMullan,

771 N.W.2d 810, 816 (Mich. Ct. App. 2009) (same). The state trial court reasonably applied this

principle to the facts before it when it concluded that Woods could have discovered Officer

Carlisle’s opinion about Johnson’s death by asking him about it during trial.

Relying on the Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668 (2004),

Woods protests that a “diligence” requirement is inconsistent with Brady’s rule of disclosure. In

Banks, the Supreme Court rejected a diligence requirement where the “prosecution represent[ed]

that all [Brady] material ha[d] been disclosed” to the defendant. Id. at 695. But the Banks Court

did not clearly explain whether courts must apply a diligence requirement in a situation where, as

here, there is no evidence that the prosecutor made such a representation. Though we have read

Banks broadly to repudiate a “diligence” requirement in all Brady cases that we consider de

novo, see United States v. Tavera, 719 F.3d 705, 711–12 (6th Cir. 2015), we have never

purported to decide that Banks “clearly established” such a rule. Cf. Ross v. Petro, 515 F.3d 653,

662 (6th Cir. 2008) (explaining that only those parts of a Supreme Court decision that are

“integral to the holding” constitute “clearly established” Supreme Court law for purposes of 28

U.S.C. § 2254(d)). Indeed, given the unique circumstances before the Banks Court, other circuits

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Case No. 15-2339, Woods v. Smith

continue to apply a diligence requirement to Brady claims that do not involve a prosecutor’s

misleading representations. See Brown, 650 F.3d at 588; Maynard, 392 F. App’x at 112. In

short, the state trial court’s rejection of Woods’s second Brady claim was consistent with

“clearly established” Supreme Court law and the evidence that Woods presented.

3

Woods’s third Brady claim alleges that the State should have disclosed Officer Zwicker’s

case notes, in which Zwicker wrote that DPD needed to “round up the witnesses” and “put some

pressure on them” with the expectation that “one will admit to Donyelle [Woods] being the 2nd

man who came to the house with ‘T’ and argued with [Harris] prior to the shooting.” As we

have already mentioned, the state trial court did not explicitly decide whether the prosecutor

suppressed Officer Zwicker’s case notes, and instead reasoned that the evidence was not material

because the prosecutor had already “explained [at trial] that the argument [involving] the

decedent earlier on the day of the murder was a viable point of investigation for police, which

unfortunately resulted in no evidence to connect Defendant to the argument.”

We agree. Even if they would have been admissible as evidence at trial, Officer

Zwicker’s notes do not, as Woods argues, show that “police had concluded that the shooter had

to be one of the men from” Harris’s heated argument with Hunter and “Big Dog” at the Green

House. Appellant Br. 35 (emphasis added). Rather, the notes show Zwicker’s preliminary

thoughts about the case, suggesting one way of pursuing one avenue of proof. Moreover, the

notes would have been largely duplicative because the jury already heard evidence about the

argument at the Green House from both Patton and Jennings, and the jury would surely have

considered the possibility that Harris’s death had something to do with those two men, not

Woods. Indeed, Woods’s trial counsel explicitly made this very argument at trial. Nor does

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Case No. 15-2339, Woods v. Smith

Woods show how Zwicker’s notes would have “led directly” to other admissible evidence that

was not already available to him. Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014).

Admittedly, it is arguable that Zwicker’s reference to “round[ing] up” witnesses and

“put[ting] some pressure on them” could have raised some questions about the thoroughness of

the DPD investigation in this case, and might have allowed Woods to argue that police pressured

Taylor, who was obviously in a vulnerable position given her crack-cocaine addiction. But in

the context of this trial, Zwicker’s isolated reference to “put[ting] some pressure” on witnesses

would simply have reflected ordinary investigatory tactics; many of the State’s witnesses—who

were presumably among those to be “round[ed] up” and “pressure[d]”—testified that they did

not know Woods and had never seen him before. In short, because Zwicker’s preliminary notes

do not suggest that DPD officers believed that Harris’s killer “had to” be either Hunter or “Big

Dog,” and because they only weakly imply that a less-than-thorough investigation was

conducted, their probative value was slight. We thus agree with the state trial court that Officer

Zwicker’s case notes were not material when they are considered alone.

4

The fourth and last piece of evidence that Woods argues that the State should have

disclosed is the DPD report indicating that Harris had serious and violent disagreements with

Shaw shortly before he was killed. Though the DPD report is certainly of far greater value to

Woods than Zwicker’s notes are, it too is not material when considered alone. As mentioned

above, the body of the DPD report provided:

Sister stated [victim] was having major problems with Tameka. Eric had move[d]
back to Miss[issippi] on March 20, 2003[.] He came back to Detroit Ap[r]il 7,
2003. When he came back Tameka had another man staying at the house.
Tameka would constantly accuse Eric of cheating on her. She was trying to sell
Eric’s cars while he was in Miss[issippi]. He told Tameka he was going to leave
her. He called sister 12 hours before his death and told her he was coming and

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Case No. 15-2339, Woods v. Smith

leaving Tameka that day. Tameka had stabbed Eric in neck area on April 28, 29
or 30th. Eric said Tameka called the police on him that night.

Considering the trial record as a whole, we cannot conclude that the evidence in the

report sufficiently weakens the prosecution’s case as to undermine confidence in the verdict. As

the state court observed, Woods’s defense counsel argued at trial that because Harris was a drug

dealer, many individuals had an incentive to kill him. This was supported by Gloria Patton’s

testimony that Harris began to behave erratically after his argument over money with Hunter and

“Big Dog,” threatening to burn down the Green House because “if I ain’t going to have this

house, nobody [is] going to.” The jury also heard evidence that Johnson was discovered at the

scene of the crime with gunpowder residue on his hand. But despite these issues, the jury was

apparently convinced by Johnson’s and Taylor’s identifications of Woods as the perpetrator, and

rejected the evidence that suggested that someone else might have committed the murder.

In light of the evidence that the jury heard, evidence of the possibility that yet another third party

might have had a motive to kill Harris would very likely have had no impact on that verdict at

all.

We acknowledge that the DPD report would have had some impeachment value.

Assuming that DPD had never investigated Shaw, the report might have allowed Woods to

suggest that DPD had conducted an incomplete and hasty investigation into Harris’s murder.

The report would also have enabled Woods to undermine the prosecution’s presentation of Shaw

as a stable anomaly in this otherwise troubled community: Shaw had children and a steady job,

and testified that although she did not agree with Harris’s occupation, she stood by his side

because “you can’t help who you fall in love with.” Raising questions about Shaw’s reliability

might have enabled Woods to cast some doubt upon the veracity of her statement that Harris had

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Case No. 15-2339, Woods v. Smith

“arguments with a guy [named] Ferd.” Although Woods’s counsel successfully objected that

this statement was hearsay, the statement was heard by the jury.

But Woods’s counsel already contested the credibility of DPD’s investigation by drawing

the jury’s attention to the fact that officers did not conduct Johnson’s gunshot-residue analysis

until after releasing him and arresting Woods. Moreover, aside from her comment that Harris

had “arguments with a guy [named] Ferd,” the general focus of Shaw’s testimony was to provide

background evidence about Harris’s occupation and his whereabouts in the hours before his

death. Whether impeaching Shaw would have had any impact on the jury’s assessment of

Woods’s motive to kill Harris is also highly speculative because Shaw’s testimony on this point

was corroborated by Maurice, Harris’s cousin, who testified that he saw Woods arguing with

Harris over drug territory. Given this, we agree with the state trial court’s assessment that

“evidence impeaching [Shaw’s] testimony” would have been largely “cumulative when the

record is viewed as a whole,” and thus unlikely to impact the jury’s consideration of Woods’s

guilt.

Most importantly, nothing in the DPD report—or, for that matter, in Clarence Booker’s

affidavit—calls into doubt the State’s most critical evidence against Woods, namely, Taylor’s

and Johnson’s eyewitness identifications of Woods as Harris’s killer. Even after acknowledging

ancillary inconsistencies in her previous testimony, Taylor consistently maintained that she saw

Woods shoot Harris, and her identification was consistent with Johnson’s own, as evidenced by

the admitted sketch. What is more, the fact that Shaw had a motive to kill Harris says little about

whether Woods was involved. See Thorne v. Timmerman-Cooper, 473 F. App’x 457, 467 (6th

Cir. 2012) (“To be considered material . . . , there must be ‘direct or circumstantial evidence

linking the third person to the actual perpetration of the crime.’ Speculation . . . is not enough.”

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Case No. 15-2339, Woods v. Smith

(citations omitted) (quoting Spirko v. Anderson, No. 3:95CV7209, 2000 WL 1278383, at *7

(N.D. Ohio July 11, 2000))). Indeed, even if Woods could show that Shaw acted on her motive

and orchestrated Harris’s murder, that fact is not inconsistent with the State’s theory that Woods

actually carried out the killing.

5

This leaves the question whether Officer Zwicker’s notes add enough to the DPD report

to render both material when considered collectively. We have already mentioned that Officer

Zwicker’s reference to “round[ing] up” and pressuring witnesses weakly implies that DPD’s

investigation into this case was less than thorough. This could have supported the impeachment

value of the DPD report, which, if DPD turned out to have never investigated Shaw as a potential

suspect, might have cast some doubt upon whether DPD actually investigated all possible

suspects. But as discussed above, the impeachment value of the DPD report alone is far from

sufficient to undermine confidence in the result, and Zwicker’s notes do not add very much. Nor

does the combination of Zwicker’s notes and the DPD report in any way call into doubt Taylor’s

or Johnson’s identifications of Woods as the killer. In short, because we are not convinced that

the DPD report alone comes close to “undermin[ing] confidence” in the outcome of Woods’s

trial, Ritchie, 480 U.S. at 57, the addition of Officer Zwicker’s only slightly favorable notes,

which are preliminary and reflect little more than ordinary investigatory tactics, does not create

enough doubt either. For this reason, our independent cumulative materiality analysis does not

direct a result different from that reached by the state trial court.

V

We recognize that the correctness of the state court’s adjudications of Woods’s

Confrontation Clause and Brady claims is open to debate. But “federal habeas relief functions as

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Case No. 15-2339, Woods v. Smith

a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means

of error correction.” Greene v. Fisher, 132 S. Ct. 38, 43 (2011) (quoting Richter, 562 U.S. at

102). It is thus not enough that we might have reached a different result on direct appeal; we

may not grant Woods’s petition unless “fairminded jurists” would have to agree that the state

court’s decision was wrong. Richter, 562 U.S. at 101. Because the state court’s application of

Supreme Court precedent to Woods’s Confrontation Clause claim and two of Woods’s Brady

claims was not so patently unreasonable, Woods is not entitled to federal habeas relief on those

claims. Although the state court’s rejection of Woods’s remaining Brady claims was contrary to

clearly established federal law, after independently reviewing those claims, we conclude that

Woods has not met his burden of showing that the prosecutor suppressed material evidence. For

these reasons, we must AFFIRM the district court’s denial of Woods’s habeas petition.

41