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Jessie James GRACE, III v. Burl CAIN, Warden
SECTION “H”(2)
ORDER AND REASONS
Before the Court is Petitioner Jessie James Grace, III's Corrected Second Supplemental Petition under 28 U.S.C. § 2254 (Doc. 122) on remand from the Fifth Circuit Court of Appeals. For the following reasons, Petitioner's Corrected Second Supplemental Petition for habeas relief is GRANTED.
BACKGROUND
I. Status of the Case
On March 26, 2003, Petitioner Jessie James Grace, III filed pro se in this Court a federal petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 related to the 1994 Jefferson Parish second degree murder conviction for which he is serving a life sentence.1 His petition was dismissed without prejudice for failure to exhaust state court remedies.
On August 1, 2012, Petitioner was granted leave to re-open this case, and he, through counsel, filed an Amended Petition asserting only three claims: (1) The state trial court denied Petitioner's confrontation rights when it denied Petitioner the opportunity to cross-examine Derek Hudson about his then pending drug charges and any expectation of leniency in return for his testimony; (2) The prosecution allowed both eyewitnesses to the crime to give patently false testimony on crucially material matters, thereby denying Petitioner's due process rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and (3) Trial counsel rendered ineffective assistance of counsel in failing properly to use pretrial statements of Michelle Temple, Sherman Moses, and Derek Hudson. The magistrate judge recommended dismissal of these claims because they were procedurally defaulted. Petitioner objected to that recommendation, conceding that his claims were procedurally defaulted, but arguing that he was nonetheless entitled to review of the Amended Petition under the Supreme Court's decisions in Schlup v. Delo and its progeny.2 This Court granted in part Petitioner's objections and scheduled an evidentiary hearing on the actual innocence exception.3 Hearings were held April 16 and May 20, 2014, and post-trial briefing was ordered.4
On January 13, 2015, the Court ordered production of portions of the state grand jury transcript discovered during in camera review for Petitioner to exhaust potential claims under Napue v. Illinois, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and/or Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Court stayed this matter and withheld ruling on the procedural default/actual innocence exception to allow for exhaustion of state court review on any new claims arising out of the grand jury testimony.
On March 26, 2019, this matter was reopened, and having exhausted his state court remedies, Petitioner filed a Second Supplemental Petition asserting a Brady claim arising out of the grand jury testimony.5 The magistrate judge prepared a Report and Recommendation, recommending Petitioner's Second Supplemental Petition be denied and dismissed with prejudice.6 This Court declined to adopt the magistrate's recommendation.
Instead, this Court entered an order on December 2, 2021, denying the relief requested in Petitioner's Amended Complaint as procedurally defaulted but granting Petitioner habeas relief based on the Brady violations alleged in his Supplemental Petition.7 The State appealed this holding, and the Fifth Circuit Court of Appeals vacated the portion of this Court's opinion granting relief and remanded for further proceedings.8 Specifically, the Fifth Circuit instructed this Court to better tailor its analysis of Petitioner's claims to Supreme Court directives and the requirements of § 2254(d)(1).9 This Court will do so now. Because the portion of this Court's prior opinion denying Petitioner the relief requested in his Amended Complaint was not vacated by the Fifth Circuit, this Court does not reconsider it here. However, this order shall replace the Court's earlier opinion regarding the relief requested by Petitioner in his Supplemental Complaint.
II. Factual and Procedural Background
On March 11, 1993, a Jefferson Parish grand jury indicted Petitioner Jessie James Grace, III for the first degree murder of John Wayne Palmer.10 The charge was later amended on September 9, 1993, to second degree murder.11 The Louisiana Fifth Circuit Court of Appeal summarized the facts established at trial as follows:
During the afternoon of February 21, 1993, the victim, John Wayne Palmer, and his girlfriend [Michelle Temple],12 drove to the Jefferson Place Apartments in Marrero, Louisiana in order to purchase crack cocaine. Palmer exited the vehicle and asked two men, Derek Hudson and Sherman Moses, if they had any crack cocaine. Although Hudson and Moses were unable to supply the victim, they brought him to the defendant who was standing nearby. The defendant momentarily left the group and returned with drugs and a gun, identified by Moses as a “black 38, snub nose.” The defendant then requested that the victim follow him to a nearby alleyway. According to Hudson and Moses, the victim paid the defendant and the defendant gave the victim drugs. However, the defendant suddenly struck the victim in the mouth with his gun and demanded that he relinquish the drugs and his money. The victim complied and pleaded for his life and proceeded to turn in order to leave the area when he was shot from behind, twice, by the defendant.
The autopsy performed on the victim revealed that he died as result of gunshot wounds above the right ear and on the right side of his back. Both bullets were fired from a gun behind and to the right of the victim at a distance greater than twelve inches. There were lacerations near the victim's mouth indicated that the victim had been struck by a blunt instrument.13
Petitioner was tried before a jury on January 11 through 14, 1994, and found guilty as charged of second degree murder.14 On February 2, 1994, the state trial court sentenced Petitioner to life in prison without benefit of probation or parole.15
On direct appeal to the Louisiana Fifth Circuit, Petitioner argued that the state trial court erred in prohibiting his attorney from questioning Derek Hudson at trial about his arrest on drug charges and any promise of leniency in return for his testimony.16 On September 27, 1994, the appellate court affirmed Petitioner's conviction, finding the claim meritless and amended the sentence to include credit for time served.17
Petitioner's conviction became final 30 days later, on October 27, 1994, when he did not file for rehearing or seek review in the Louisiana Supreme Court.18 More than fourteen months later, on January 9, 1996, Petitioner submitted an application for post-conviction relief to the state trial court, challenging the constitutionality of his conviction and asserting Brady violations, insufficient evidence, unfair trial, and ineffective assistance of counsel in the presentation of alibi evidence.19 At a March 4, 1999 hearing, Petitioner's counsel narrowed the claims to Brady and ineffective assistance of counsel.20 The State sought dismissal because the claims could have been asserted on direct appeal and otherwise were not supported by the record. The state trial court granted the motion and dismissed Petitioner's application.21
Petitioner filed a writ application with the Louisiana Fifth Circuit that was granted on January 14, 2000, and the matter was remanded because the state trial court dismissed the application without allowing Petitioner to state reasons for his procedural default and without addressing the ineffective assistance of counsel claim.22
At a November 2, 2000 hearing, the state trial court heard testimony and received affidavit evidence related to the alleged alibi witnesses that were not called by the defense at trial.23 The state trial court thereafter orally denied Petitioner's application for post-conviction relief.
On May 22, 2001, the Louisiana Fifth Circuit denied Petitioner's writ application finding no merit in the ineffective assistance of trial counsel claim related to the failure to call alibi witnesses.24 On May 24, 2002, the Louisiana Supreme Court also denied Petitioner's subsequent writ application without stated reasons.25
More than eight-and-a-half years later, on December 1, 2010, Petitioner filed a second application for post-conviction relief in the state trial court based on alleged newly discovered evidence that Petitioner was not the shooter.26 On April 1, 2011, the state trial court denied the application as untimely under Louisiana Code of Criminal Procedure article 930.8 and as repetitive and/or successive under article 930.4(E).27
On June 24, 2011, the Louisiana Fifth Circuit denied Petitioner's subsequent writ application finding no error in the state trial court's ruling and held that Petitioner had not established a claim based on newly discovered evidence.28 On March 7, 2012, the Louisiana Supreme Court denied Petitioner's related writ application without stated reasons.29
On August 1, 2012, having exhausted his state remedies, Petitioner was granted leave to re-open this habeas petition in this Court. On January 13, 2015, the Court ordered production of portions of the state grand jury transcript and stayed this matter to allow for exhaustion of state court review on any new claims arising out of the grand jury testimony.
On February 10, 2015, Petitioner filed a third application for post-conviction relief in the state trial court asserting Brady violations based on the grand jury testimony.30 On July 17, 2017, after an evidentiary hearing and additional briefing, the state trial court granted Petitioner's post-conviction application, vacated Petitioner's conviction, and ordered a new trial.31 The State appealed.
On November 14, 2017, the Louisiana Fifth Circuit granted the State's writ application and reinstated Petitioner's conviction and life sentence.32 Although one judge dissented, the state appellate court found the grand jury testimony was not sufficiently material to raise a reasonable probability of a different outcome at trial under Brady. Thereafter, the Louisiana Supreme Court, with three justices dissenting, denied Petitioner's subsequent writ application because Petitioner failed to prove that the State withheld material exculpatory evidence in violation of Brady.33 Petitioner subsequently filed the Second Supplemental Petition at issue here.
LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996 34 and applies to habeas petitions filed after that date.35 The AEDPA therefore applies to Petitioner's Amended and Supplemental Petitions. The threshold questions in habeas review under the amended statute are whether the petition is timely and whether the petitioner's claims were adjudicated on the merits in state court. The petitioner must have exhausted state court remedies and must not be in “procedural default” on a claim.36
Sections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and mixed questions of fact and law in federal habeas corpus proceedings.37 Determinations of questions of fact by the state court are “presumed to be correct ․ and we will give deference to the state court's decision unless it ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ”38 The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear and convincing evidence” burden placed on a petitioner who attempts to overcome that presumption.39 A state court's determination of questions of law and mixed questions of law and fact are reviewed under 28 U.S.C. § 2254(d)(1) and receive deference, unless the state court's decision “ ‘was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent.]’ ”40 The United States Supreme Court has clarified the § 2254(d)(1) standard as follows:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.41
The “critical point” in determining the Supreme Court rule to be applied “is that relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.”42 “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts at hand,’ then by definition the rationale was not ‘clearly established at the time of the state-court decision.’ ”43
“ ‘[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.’ ”44 Rather, under the “unreasonable application” standard, “the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.”45 The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner.46
LAW AND ANALYSIS
Petitioner's supplemental Brady claims arise out of the grand jury testimony disclosed after the evidentiary hearing held in this Court in 2014. Petitioner has exhausted state court review of his supplemental Brady claim, and it is not in procedural default. This Court has already held that the unavailability of the grand jury transcript provided adequate excuse for Petitioner's delayed presentation of this claim.47 Accordingly, this claim is timely under the AEDPA.
In his supplemental claim, Petitioner asserts that the State violated his Brady due process rights when it withheld the grand jury testimony of Sergeant Maggie Snow,48 the lead investigator, and Michelle Temple, the victim's girlfriend. He argues that the grand jury testimony at issue is inconsistent with the witnesses’ trial testimony and tends to show that Derrick Hudson, not Petitioner, shot the victim.49
The Court will first outline the grand jury testimony at issue and the ways in which it differs from the testimony presented at trial. Then, the Court will detail the state courts’ opinions on Petitioner's post-conviction relief application regarding the grand jury testimony. Finally, the Court will consider whether the state court was reasonable in its application of Brady to this matter.
A. Grand Jury Testimony
a. Sgt. Snow
In the grand jury testimony recently disclosed to Petitioner, Sgt. Snow testified that she interviewed Moses during the course of the investigation. Sgt. Snow testified that Moses told her that Hudson and Petitioner beat and robbed Palmer before shooting him. As a result of this evidence, Sgt. Snow testified that “we'll be getting a warrant for him [Hudson] shortly.”50 In response to further questioning regarding Hudson's proposed charge, she testified, “First degree murder since he was with the subject. They robbed him and shot him. [Hudson] did the robbing. It was a cooperative effort on both of them.”51 Sgt. Snow also testified that Temple was able to identify Petitioner as being present at the scene.52
At trial, however, Sgt. Snow identified Hudson as merely a witness to the incident.53 She did not mention his involvement in the murder or any intention to charge him for that involvement. She testified that she showed a photograph lineup to Temple that included a picture of Hudson, but not Petitioner, and that Temple was unable to identify anyone she had seen at the scene.54 She testified that despite her efforts, she was unable to locate Hudson until shortly before trial.55
At trial, Hudson testified that it was Petitioner who attempted to sell crack to Palmer in the alley.56 Hudson testified that, after Petitioner sold the drugs to Palmer, Petitioner hit Palmer in the face with his gun, robbed him, and shot him as he ran away.57 Hudson claimed that he was a mere bystander to the shooting.58
The trial court held a hearing outside the presence of the jury to determine whether Hudson had been offered anything by the State in exchange for his testimony.59 Hudson testified that, in the weeks before trial, he was arrested on charges of possession and distribution of cocaine.60 While he was in jail, he was approached by Sgt. Snow and the District Attorney's office.61 He testified that they “reminded him about the shooting at Jefferson Place” and asked him if he remembered being there and seeing what happened.62 He testified that he told them his version of events and insisted that he was never promised anything in exchange for his testimony.63 On cross-examination, he admitted that he never made any attempt to contact anyone regarding the shooting and that he was interviewed for the first time approximately one week before trial.64 He also testified that he was offering testimony at the trial because he “wanted to get out” and he “didn't want to go down.”65 The trial judge found that there was no deal in place and ruled that the jury would not be permitted to know that Hudson was in jail or that he had pending criminal charges.66 The jury was likewise not informed of Sgt. Snow's original intention to charge Hudson in Palmer's murder.
At trial, Moses testified to the following: After Petitioner and Hudson went into the alley, Petitioner struck Palmer in the face with his gun.67 Hudson then reached over, took Palmer's jewelry, and told Petitioner that he could have the money.68 Palmer began pleading, “Please, don't shoot me,” just before Petitioner shot him.69 After he was shot, Palmer got up and ran a short distance.70 While he was running away, Petitioner shot Palmer three more times, hitting him in the back of the head.71
b. Michelle Temple
Temple gave the following testimony before the grand jury:
Q. Did you see the guy that shot him?
A. Yes.
Q. Did you see pictures of him later and were you able to identify him?
A. The pictures -- a detective has shown me some pictures and I said that that was him.
Q. And that was the man that you saw?
A. Yes.
Q. Did you actually see the shooting?
A. Yes.
Q. You actually saw him shoot John Palmer?
A. I seen the gun to his head and I had got out the car and he was already shot, but I had seen the gun to his head.
Q. You saw the guy Jessie Grace holding the gun to his head?
A. Yes.
Q. And you got out of the car and then he was shot?
A. Yes.
․
Q. What did you do then?
A. I ran after Jessie and the boy they called Nam [Hudson], but they were running down the street and I went back by John. He was on the ground.
․
A. I see him on the ground when I looked through the rearview mirror. And I turned around and he had the gun to his head and when I got out they had already shot him but I didn't hear any shots.72
At trial, the State called Temple to testify. Temple testified that she did not know who shot Palmer and that she had never told anyone that she knew who shot Palmer.73 She also testified that Sgt. Snow had showed her several photos but that she could not identify anyone that she had seen around Palmer's body.74 She testified that she saw many people running from the crime scene after the shooting but that the only people she recognized were Moses and “Jamal.”75 She described the person kneeling next to Palmer as 5’4” or 5’5”, 140–150 lbs., dark, medium build, between 19 and 20 years old and wearing “blue Dickey pants with a dark blue Raiders jacket.”76 She testified that she did not know what he had in his hand.77
B. State Court Decisions
Petitioner argued this Brady claim in his third state court post-conviction relief application. The state trial court held an evidentiary hearing, at which the trial prosecutor and Sgt. Snow testified.78 The state trial court found that the withheld grand jury transcript contained evidence favorable to Petitioner on each point asserted—Temple's possible identification of Hudson's photograph as the murderer, Snow's designation of Hudson as a co-perpetrator and failure to arrest him, and Snow's incorrect testimony that Temple placed Petitioner at the scene.79 The state trial court concluded that these portions of the grand jury transcript, in context with the entire record, constituted new evidence that called into question Snow's credibility, Hudson's credibility and motives, and the prosecution's relationship with or favorable treatment of Hudson.80 The court found that whether or not Hudson was given a “deal” by the prosecution, “he was obviously treated favorably by the State, as he was never arrested or charged for the homicide.”81 The court held that the withheld favorable information weakened confidence in the verdict and the direct appeal.82 The state trial court granted relief and ordered a new trial.83
The State sought review of this ruling in the Louisiana Fifth Circuit Court of Appeal. Because the State did not contest favorableness or suppression under Brady, the appellate court focused its review on materiality when it granted the State's writ application.84 The Louisiana Fifth Circuit found that the trial court abused its discretion and held that the grand jury testimony was not material, and its suppression did not undermine confidence in the outcome of Petitioner's trial.85
First, the court pointed out that, even if the jury did not hear about Sgt. Snow's intent to arrest Hudson, Moses testified as to Hudson's involvement in the crime and therefore the jury “heard the underlying evidence on which Detective [Snow] determined that Hudson was culpable.”86 While the court noted that the failure to charge Hudson was “suspect,” it concluded that the failure was likely “oversight” because no one took over the investigation while Sgt. Snow was out on maternity leave.87 It noted that there was “absolutely no evidence to suggest that there was a deal, formal or informal, between Hudson and the State for leniency in exchange for his testimony against defendant.”88 Finally, it concluded that “the fact that Hudson was not arrested for the instant murder has no bearing on defendant's culpability in the instant case.”89
Second, the court found that Temple's inconsistent grand jury testimony was not material where her multiple inconsistent statements throughout the investigation and trial were known to defense and available to attack her credibility.90 It further noted that despite her testimony that she identified the perpetrator from a photograph lineup, no evidence established any positive identification of Hudson as the shooter.91 The Louisiana Fifth Circuit found it significant that, because Temple had not seen the shooting, her trial testimony “was not relevant to the actual shooting or identity of theperpetrator,” and instead served only to outline the events leading up to and after the shooting.92 The appellate court also relied on the fact that the jury heard Sgt. Snow's trial testimony that Temple was shown a photographic lineup with Hudson's picture and that Temple was unable to positively identify anyone in it.93
Finally, the court found that Snow's unsupported grand jury testimony that Temple placed Petitioner at the scene was not material under Brady where, given Temple's multiple inconsistent statements, it was “not unreasonable to think” that she told Sgt. Snow that she had seen Petitioner at the scene at some point in the investigation.94 In addition, the court noted that Temple herself testified to the grand jury that Petitioner was at the scene with a gun in his hand.95
The Louisiana Fifth Circuit summarized its findings as follows:
In sum, we find that the district court erred in its finding that the suppressed evidence undermined confidence in the outcome of the trial. Rather, we find that the State's failure to disclose portions of the grand jury transcript does not constitute a Brady violation. Specifically, the suppressed evidence is not material because while it inculpates Hudson, it does not, in any way, exculpate defendant as to his participation in the commission of the murder. Considering the evidence presented at trial, there is not a reasonable probability that the result of the proceeding would have been an acquittal or a lesser verdict if the suppressed grand jury testimony had been disclosed to the defense.
Even discounting Hudson's testimony at trial about defendant's involvement in the crime, the jury heard Moses’ testimony that defendant shot the victim. Specifically, Moses testified that he saw defendant with a black .38 revolver; he saw defendant hit the victim in the mouth with the .38 revolver causing the victim to fall; he saw Hudson “snatch” the victim's jewelry; he heard the victim beg him not to shoot; and he saw the victim walk off and defendant shoot him in the back of his head. Moreover, on appeal, this Court stated:
As a witness to the shooting, Hudson's testimony was clearly important. However, his testimony was not only uncontradicted, it was also corroborated by the testimony of Sherman Moses. As did Hudson, Moses witnessed the defendant strike the victim in the face with a gun. An autopsy revealed that the victim's facial lacerations were the result of a blow by a blunt object. Further, both Hudson and Moses testified that the victim pled with the defendant prior to being shot by what Moses described as a “black 38, snubbed nose.” The testimony of a firearms expert revealed that the two bullets removed from the victim's body were fired from a thirty-eight-caliber revolver.96
Based on its conclusion that the grand jury testimony was not material under Brady, the Louisiana Fifth Circuit denied relief and reinstated Petitioner's conviction and life sentence.97
Petitioner sought review of this ruling in the Louisiana Supreme Court. The court denied his writ application stating only that “[r]elator fails to show that the state withheld material exculpatory evidence in violation of Brady.”98
C. Analysis
Under § 2254(d)(1), the question before this Court is whether the state court's denial of relief was contrary to or an unreasonable application of United States Supreme Court precedent or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.99 Under this highly deferential standard, a federal habeas court must look to the last reasoned state court decision to determine whether that ruling “so lack[ed] in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”100 As noted by Petitioner and the State, when faced with an unexplained decision, the habeas court “should ‘look through’ the unexplained decision to the last related state-court decision providing” particular reasons, both legal and factual, “presume that the unexplained decision adopted the same reasoning,” and give appropriate deference to that decision.101 Both Petitioner and the State contend that, under Wilson v. Sellers, the Louisiana Supreme Court's decision denying Petitioner's last writ application was not the last reasoned state court opinion because it did not explain its one sentence opinion.102 Thus, they conclude, this federal habeas court must look to the Louisiana Fifth Circuit's findings to apply the AEDPA standard of review.
In its first order considering Petitioner's Supplemental Petition, this Court held that Wilson did not apply here where the Louisiana Supreme Court's decision was not the type of “one-word” and “unexplained” denial of relief discussed by the United States Supreme Court in Wilson.103 The Court held that it therefore had to consider the Louisiana Supreme Court's denial of relief in analyzing Petitioner's § 2254 claim.104 On appeal, the Fifth Circuit declined to decide whether Wilson applies here or not. It advised instead that this Court should consider the reasoning of the Louisiana court of appeals either by “looking through” the Louisiana Supreme Court's opinion or as the “hypothetical lines of reasoning that would support the Louisiana Supreme Court's opinion.”105 The Fifth Circuit advised that “regardless of whether Wilson’s ‘look through’ method applies,” this Court should train its attention to the state court's reasons—either actual or hypothetical—for denying Petitioner habeas relief.106 Accordingly, this Court will do just that in considering whether the Louisiana higher state court's finding that there was no Brady violation in this case involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented. In order to do so, the Court must first discuss Brady law.
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request 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.”107 “To establish a Brady claim, the petitioner must demonstrate: (1) the prosecutor suppressed evidence, (2) favorable to the defense, and (3) material to guilt or punishment.”108 Here, the State does not contest the first two Brady elements, admitting that the grand jury testimony at issue was withheld and that it was favorable in part to Petitioner's defense. Accordingly, the only issue before the state court was whether the testimony was material to Petitioner's guilt.
In Kyles v. Whitley, the Supreme Court explained that suppressed evidence is material if there is “a reasonable probability” that the proceeding would have been different if the suppressed evidence had been disclosed.109 “A ‘reasonable probability’ of a different result is ․ shown when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ”110 A showing of materiality does not require that disclosure of the suppressed evidence would have resulted in the defendant's acquittal or that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.111 The defendant need only show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”112 Further, the materiality of suppressed evidence is considered “collectively, not item by item.”113
This Court finds that the state court erred in its consideration of the materiality of the suppressed evidence at issue here in three ways: (1) the court failed to properly consider the effect of the suppressed evidence on the credibility and motivation of trial witnesses, (2) it made unreasonable factual determinations not supported by the evidence, and (3) it failed to properly consider the cumulative materiality of the evidence. This Court will consider each issue in turn.
a. Credibility of Witnesses
In several instances, the state court failed to properly consider the effect of evidence on the credibility of trial witnesses as instructed by the Supreme Court in Davis v. Alaska.114 In Davis, the Supreme Court considered a trial court's limitation on cross-examination preventing defense counsel from inquiring as to a witness's probationary status.115 In its consideration thereof, the Court gave guidance on the importance of a defendant's right to cross-examine a witness on information bearing on the witness's credibility. It advised that the exposure of a witness's motivation or ulterior motive is a “proper and important function of the constitutionally protected right of cross-examination.”116 It held that a defendant should be “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.”117 Instead of considering what inferences relating to the reliability of the witnesses the jury might draw from the suppressed evidence, the state court emphasized reasons the jury might not draw these inferences and made assumptions and justifications to discount the suppressed evidence.
i. Hudson's Credibility
The undisclosed testimony suggesting that Sgt. Snow originally intended to arrest Hudson for his involvement in the murder bears on Hudson's credibility—one of the two eyewitnesses tying Petitioner to the crime. The state court disregarded this testimony because, it argued, Moses testified as to Hudson's involvement in the crime, and therefore the jury “heard the underlying evidence on which Detective [Snow] determined that Hudson was culpable.”118 It also emphasized the fact that there is no evidence of a formal or informal deal between Hudson and the State for leniency in exchange for his testimony against Petitioner.
The fact that the jury heard testimony that Hudson may have been involved in the crime is not, however, the same as hearing that (1) detectives believed he was involved in the crime, (2) planned to indict him, and (3) apparently did not indict him. While this failure may have been an “oversight” as the state court suggests, it could just as easily have been the result of a promise of favorable treatment in exchange for Hudson's testimony. Either way, it could reasonably have given Hudson motivation to provide testimony favorable to the prosecution. The Supreme Court has advised against emphasizing “reasons a juror might disregard new evidence while ignoring reasons she might not.”119 As the state court admitted, the failure to charge Hudson was “suspect” and whether or not there was evidence of a deal made, the jury could reasonably have found this fact to discredit Hudson's testimony.
Indeed, the Fifth Circuit has expressly held that, pursuant to Davis, whether a deal has been reached to provide leniency in exchange for a witness's testimony is not dispositive of the witness's possible bias or motivation to testify. In Carillo v. Perkins, the court considered whether the defendant's sixth amendment rights had been violated where he was not allowed to cross-examine a witness-accomplice regarding his vulnerability to prosecution at the time that he testified.120 The Fifth Circuit held that the state court's limitation on cross-examination was erroneous under the Sixth Amendment as interpreted by Davis.121 It specifically noted that whether a witness made a deal with the State was not dispositive.122 “What counts is whether the witness may be shading his testimony in an effort to please the prosecution.”123 It explained that “the crucial factor is whether the jury might have been persuaded that [the witness-accomplice's] vulnerability to prosecution made him wish to assist the state and that this motivation compromised his credibility.”124 Indeed, “[a] desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud his perception.”125
Here, the jury could have inferred from the fact that Sgt. Snow considered charging Hudson, but ultimately did not, either that Hudson had received favorable treatment for his testimony or that he had motivation to lie about his involvement in the crime and point the blame at Petitioner. “Certainly the fear of additional ․ charges and prosecution might motivate a witness to testify favorably on behalf of the government.”126 Had he been made aware of this information, Petitioner could have explored the effect of Hudson's vulnerability to prosecution in this matter on cross-examination and its impact on his credibility.127 The state court was incorrect in its finding that “the fact that Hudson was not arrested for the instant murder has no bearing on defendant's culpability in the instant case.”128 Davis advises that “[t]he partiality of a witness is ․ always relevant as discrediting the witness and affecting the weight of his testimony.”129 Indeed, “the effective impeachment of one eyewitness can call for a new trial.”130
ii. Temple's Credibility
Similarly, the state court discounted the significance of Temple's inconsistent grand jury testimony. Temple's sworn grand jury testimony differed so vastly from her sworn trial testimony that she could not have been telling the truth in both instances. The state court stated only that there were numerous inconsistencies in Temple's statements throughout these proceedings, and therefore the issue of her lack of credibility was already known to the defense. But the inconsistencies between Temple's sworn grand jury and trial testimonies are significant because her grand jury testimony—in which she recalled seeing a man matching Hudson's description holding a gun to Palmer's head as he lied on the ground—did not comport with the State's theory of the case—that Petitioner shot Palmer from behind as he ran away. The jury may reasonably have wondered why Temple's testimony at trial—that she did not see anything helpful—changed to comport with the State's theory of the case. Here again, Davis counsels that a defendant should be permitted to expose to the jury the facts bearing on the reliability and credibility of a witness.131 The Supreme Court has explained that “the evolution over time of a given eyewitness's description can be fatal to its reliability.”132
iii. Snow's Credibility
Finally, the grand jury testimony revealed several statements that call into question the credibility and reliability of the lead detective in this matter, Sgt. Snow. First, Sgt. Snow inexplicably failed to indict Hudson on murder charges. The State does not point to any instance in the investigation of Palmer's murder that Hudson's role in the matter reasonably went from co-perpetrator to eyewitness. Even assuming this failure was not the result of favorable treatment and was simply an “oversight,” as the state court suggested, it calls into question Sgt. Snow's credibility and also “the thoroughness and even the good faith of the investigation.”133
Second, Sgt. Snow gave unsupported testimony to the grand jury that Temple had placed Petitioner at the scene of the crime. And then at trial, Sgt. Snow testified that Temple was not able to identify anyone that had been at the scene. Petitioner explained:
Sgt. Snow told the grand jury that Temple did not see the shooting but that she did see that Grace “was there, but not that he shot.” This testimony not only conflicts with Temple's grand jury and trial testimony (in which Temple told the grand jury that she had seen the shooting and could identify the shooter but then told the trial jury that she did not see the shooting, the shooter, or Jessie Grace) but Snow's grand jury testimony conflicts with Snow's own trial testimony, in which she swore that Temple had not seen the shooting because Grace “had never been placed out in this area at all. He was placed back here in this area and Michelle did not see ․”134
The state court, however, found that Sgt. Snow's inaccurate grand jury testimony was not material under Brady where, given Temple's multiple inconsistent statements, it was “not unreasonable to think” that she had told Sgt. Snow that she had seen Petitioner at the scene at some point in the investigation.135 Whether an “unreasonable” assumption or not, there is simply no evidence in the record showing that Temple ever gave that testimony, and the state court erred in making that factual finding. Further, the state court ignored the fact that Sgt. Snow later gave inconsistent testimony at trial regarding what Temple had told her. Here again, Davis counsels that a defendant should be permitted to expose to the jury the facts bearing on the reliability and credibility of a witness.136 Sgt. Snow's grand jury testimony clearly calls into question her credibility and reliability where she gave unsupported, inconsistent testimony and, at best, forgot to charge Petitioner's accomplice with murder. The jury could reasonably have viewed the suppressed evidence to support a conclusion that the “lead police detective who testified was either less than wholly candid or less than fully informed.”137
At every turn, the state court viewed the suppressed evidence with an eye toward discounting its significance, making assumptions and post-hoc justifications for why it would not have undermined confidence in Petitioner's conviction. But the Supreme Court has advised against emphasizing “reasons a juror might disregard new evidence while ignoring reasons she might not.”138 In Davis, the Court instructed that the jury is the “sole judge of the credibility of a witness” and the court cannot speculate as to how it would have viewed impeachment evidence.139 Accordingly, the state court's reasoning was contrary to Davis, which highlights the importance of exposing the jury to the facts from which it could appropriately draw inferences relating to a witness's credibility, reliability, bias, and motivation to testify.
b. Factual Determinations
Next, the state court erred in finding that there was no evidence that established any positive identification of Hudson as the shooter and that, because Temple had not seen the shooting, her trial testimony “was not relevant to the actual shooting or identity of the perpetrator.”140 These are unreasonable interpretations of the facts in the record.
Before the grand jury, Temple testified that she saw the shooter and that a detective showed her a photograph lineup from which she was able to identify the shooter. Then, at trial, she denied seeing who shot Palmer or making any identification. At trial, Sgt. Snow testified that she had shown Temple a photograph lineup that included only a picture of Hudson, not Petitioner. Further, Temple's physical description at trial of the man that she saw holding something to Palmer's head also matched Moses's earlier description of Hudson, not Petitioner. Accordingly, there is evidence in the record supporting a positive identification of Hudson as the perpetrator. Suppression of the grand jury testimony prevented Petitioner from making the very logical argument that Temple had identified Hudson as the man she had seen holding a gun to Palmer's head immediately after he was shot. Temple's grand jury testimony was therefore clearly relevant to the identity of the perpetrator. The state court erred in finding otherwise.
Further, this Court takes issue with the state court's declaration that “the suppressed evidence is not material because while it inculpates Hudson, it does not, in any way, exculpate defendant as to his participation in the commission of the murder.”141 To be material under Brady, evidence need only undermine confidence in the verdict.142 Here, the evidence suggests that there was only one shooter. Therefore, any evidence that inculpates Hudson as the shooter necessarily exculpates Petitioner as the shooter. The state court's reasoning otherwise is an objectively unreasonable application of Brady.
c. Materiality
Finally, this Court finds that the state court erred in failing to consider the cumulative effect of the undisclosed evidence. The opinion of the Louisiana court of appeals contains “repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative materiality was not the touchstone.”143 Further, the court failed to consider the materially indistinguishable Supreme Court decisions of Wearry v. Cain and Smith v. Cain in reaching its holding.
In Wearry v. Cain, the Supreme Court considered the materiality of undisclosed information that cast doubt on the credibility of the two eyewitnesses tying the defendant to the crime.144 Specifically, one witness sought a plea deal in exchange for testifying, and the other instructed another inmate to lie about the incident and had been overheard making comments suggesting he wanted revenge against the defendant.145 In addition, undisclosed medical records made one of the witness's stories less convincing.146 The Court held that the newly revealed evidence sufficed to undermine confidence in the conviction where the only evidence directly tying the defendant to the crime was the dubious testimony of the two eyewitnesses.147 It found that the state court's denial of the defendant's Brady claim violated settled constitutional principles.148
In Smith v. Cain, the Court considered whether the failure to disclose prior conflicting statements of an eyewitness violated Brady.149 In Smith, the defendant was convicted based on the testimony of a single eyewitness who claimed to have been face-to-face with the defendant during a robbery.150 Undisclosed statements, however, revealed that the eyewitness initially told detectives that he could not supply a description of the perpetrators of the robbery because he could not see their faces.151 The Court noted that the undisclosed statements directly contradicted the eyewitness's testimony and held that because the eyewitness's testimony was the only evidence linking the defendant to the crime, the undisclosed statements alone sufficed to undermine confidence in the defendant's conviction.152 The Court found that the statement was material, and the failure to disclose it was a violation of Brady.153
Here, the grand jury testimony casts doubt on the credibility of two of the three witnesses who were present at the murder, as well as its lead investigator. It revealed possible favorable treatment of Hudson and a motivation for him to testify untruthfully. It revealed inconsistent and unsupported statements by Sgt. Snow and a concern over the thoroughness of the investigation. And it revealed inconsistent statements by Temple and a good faith argument that she had previously identified Hudson as the man holding a gun to Palmer's head just after the shooting. There was no physical or forensic proof connecting Petitioner to the murder, and Petitioner did not make a statement.
The revelations of the grand jury testimony leave only Moses's testimony unaffected. Moses's trial testimony, however, is also not above reproach. Therein, Moses admitted that he was on drugs at the time of the shooting—having smoked a “whole dime bag,” or eight or nine joints, of marijuana the day of the shooting. Moses testified that after the shooting occurred he heard that rumors were spreading that he was involved in the shooting—suggesting a motive for pointing the finger at anyone else. Indeed, Moses only spoke to the police after he was picked up for the murder. Finally, Moses also admitted that he had previously been convicted of purse snatching and motorbike theft and that he had a pending charge for possession of stolen property. He testified that, despite his pending charge, the State had not made any promises to him in exchange for his testimony.
Just as in Smith and Wearry, Petitioner is tied to the murder of Palmer only by eyewitness testimony, and the suppressed evidence calls into question the credibility of those eyewitnesses. The grand jury testimony raises serious credibility concerns regarding Hudson—and indeed may even inculpate him as the shooter—leaving only the eyewitness testimony of Moses, a felon high on drugs with a motive to point the finger elsewhere, to support the conviction. It is well settled that “withheld evidence is more likely material when the State presents a weaker case for guilt.”154 If the jury found Hudson to be unreliable in light of his motivation to testify favorably to the prosecution, they may have found the corroborating testimony of Moses to be less compelling as well.155 “The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.”156
This Court, like the state trial court and the dissenting judges at both the Louisiana Fifth Circuit Court of Appeal and Louisiana Supreme Court, finds that the grand jury testimony is sufficient to undermine confidence in the verdict and is therefore material. “Even if the jury—armed with all of this new evidence—could have voted to convict” Petitioner, this Court has “no confidence that it would have done so.”157
For the foregoing reasons, the Court finds that the state court's conclusion to the contrary is an objectively unreasonable application of Supreme Court law. To reach its conclusion, the state court failed to consider the materially indistinguishable Supreme Court cases of Wearry and Smith.158 It also failed to consider the cumulative materiality of the suppressed evidence in violation of Kyles, and it emphasized reasons the jury might disregard the new evidence while ignoring reasons it may not in violation of Wearry.159 It relied on the lack of any formal plea agreement entered into between Hudson and the State as dispositive in contravention of Davis.160 It discounted the importance of evidence bearing on the credibility of witnesses, also in contravention of Davis.161 It made factual assumptions not supported by the evidence. And most disturbingly, it summed up its finding that the evidence was not material because while it inculpated Hudson, it did not exculpate Petitioner. In addition to being logically flawed, this statement misapplies clearly established Brady law, which does not require a showing that “disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.”162 Considering the foregoing, the Court finds that the Louisiana higher court's finding that there was not a Brady violation in this case “so lack[ed] in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”163
CONCLUSION
For the foregoing reasons, Petitioner's Corrected Second Supplemental Petition for Habeas relief is GRANTED.
IT IS FURTHER ORDERED that the State of Louisiana is hereby ordered to either retry Petitioner or release him within 120 days of this Order.
FOOTNOTES
1. Doc. 2 at 1, 13. Petitioner asserted pro se eleven claims in that petition.
2. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Schlup held that a petitioner may obtain review of a successive habeas petition if he can demonstrate that he is actually innocent of the crime for which he was convicted. Id. at 316–17, 115 S.Ct. 851. The Supreme Court later held that a showing of actual innocence was sufficient to overcome procedural default, House v. Bell, 547 U.S. 518, 522, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), and a statute of limitations defense, McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1932, 185 L.Ed.2d 1019 (2013).
3. Doc. 36.
4. Docs. 85, 86, 90, 92–96.
5. Doc. 122.
6. Doc. 141.
7. Grace v. Cain, No. CV 02-3818, 2021 WL 5711942, at *1 (E.D. La. Dec. 2, 2021), vacated and remanded sub nom. Grace v. Hooper, No. 21-30753, 2023 WL 2810059 (5th Cir. Apr. 6, 2023).
8. Grace v. Hooper, No. 21-30753, 2023 WL 2810059 (5th Cir. Apr. 6, 2023).
9. Id.
10. St. Rec. Vol. 1 of 27, Indictment, 3/11/93; Grand Jury Return, 3/11/93.
11. Id. (handwritten amendment dated 9/9/93).
12. See Doc. 25-14 at 26–27 (Trial Transcript, 1/14/94) (testimony of Michelle Temple, identifying herself as the victim's girlfriend).
13. State v. Grace, 643 So. 2d 1306, 1307 (La. App. 5th Cir. 1994); St. Rec. Vol. 1 of 27, 5th Cir. Opinion, 94-KA-295, p. 2, 9/27/94.
14. St. Rec. Vol. 1 of 27, Trial Minutes, 1/11/94; Trial Minutes, 1/12/94; Trial Minutes, 1/13/94; Trial Minutes, 1/14/94; St. Rec. Vol. 4 of 27, Trial Transcript, 1/13/94; St. Rec. Vol. 5 of 27, Trial Transcript (continued), 1/13/94; Trial Transcript, 1/14/94; St. Rec. Vol. 6 of 27, Trial Transcript (continued), 1/14/94. The relevant trial transcripts are attached to Grace's Amended Petition (Rec. Doc. 25) at Docs. 25-13, 25-14, and 25-15.
15. St. Rec. Vol. 1 of 27, Sentencing Minutes, 2/2/94.
16. Grace, 643 So. 2d at 1307; St. Rec. Vol. 1 of 27, 5th Cir. Opinion, 94-KA-295, p. 2, 9/27/94; Assignment of Errors, 3/31/94.
17. Grace, 643 So. 2d at 1309; St. Rec. Vol. 1 of 27, 5th Cir. Opinion, 94-KA-295, p. 7, 9/27/94.
18. Butler v. Cain, 533 F.3d 314 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 694–95 (5th Cir. 2003)) (holding that appeal is final when the state defendant does not timely proceed to the next available step in an appeal process).
19. St. Rec. Vol. 1 of 27, Application for Post-Conviction Relief, dated by Grace 1/9/96. The application was filed February 2, 1996. See St. Rec. Vol. 1 of 27, Hearing Transcript, p. 4, 3/4/99.
20. St. Rec. Vol. 1 of 27, Hearing Transcript, pp. 4, 8–9, 3/4/99; St. Rec. Vol. 2 of 27, Hearing Minutes, 3/4/99; Naomi R. Brown's Affidavit, 1/9/99; Phyllis E. Montgomery's Affidavit, 1/18/99.
21. St. Rec. Vol. 1 of 27, Hearing Transcript, p. 17, 3/4/99.
22. St. Rec. Vol. 2 of 27, 5th Cir. Order, 99-KH-910, 1/14/00; 5th Cir. Writ Application (counsel), 99-KH-910, 8/13/99; 5th Cir. Writ Application (pro se), 99-KH-910, 8/16/99.
23. St. Rec. Vol. 2 of 27, Hearing Minutes, 11/2/00; St. Rec. Vol. 3 of 27, Hearing Transcript, 11/2/00.
24. St. Rec. Vol. 2 of 27, 5th Cir. Order, 01-KH-372, 5/22/01.
25. State v. Grace, 816 So. 2d 298 (La. 2002); St. Rec. Vol. 2 of 27, La. S.Ct. Order, 2001-KP-1880, 5/24/02; La. S. Ct. Letter, 2001-KP-1880, 6/25/01.
26. St. Rec. Vol. 3 of 27, Second Application for Post-Conviction Relief, 12/1/10.
27. St. Rec. Vol. 4 of 27, Trial Court Order, 4/1/11; see also State's Opposition, 3/1/11; Reply to State's Opposition, 3/9/11; Trial Court Order, 4/6/11. At the time, La. Code Crim. P. art. 930.8 allowed three years from finality of conviction for a defendant to file an application for post-conviction relief. La. Code Crim. P. art. 930.4(E) provides that “[a] successive application may be dismissed if it raises a new or different claim that was inexcusably omitted from a prior application.”
28. St. Rec. Vol. 4 of 27, 5th Cir. Order, 11-KH-551, 6/24/11.
29. State v. Grace, 83 So. 3d 1043 (La. 2012); St. Rec. Vol. 4 of 27, La. S. Ct. Order, 2011-KP-1664, 3/2/12; La. S. Ct. Writ Application, 11-KP-1664, 7/25/11; La. S. Ct. Letter, 2011-KP-1664, 7/25/11.
30. St. Rec. Vol. 12 of 27, Third Application for Post-Conviction Relief, 2/10/15; see also State's Response, 4/1/15; Reply Memorandum, 4/24/15; St. Rec. Vol. 18 of 27, State's Response, 2/8/17; St. Rec. Vol. 19 of 27, Reply Memorandum, 3/14/17.
31. St. Rec. Vol. 19 of 27, Trial Court Order, 7/17/17; Hearing Minutes, 4/28/17; Post-Hearing Memorandum, 5/31/17; State's Post-Hearing Brief, 6/2/17; see related matters, St. Rec. Vol. 13 of 27, Trial Court Order, 8/17/15; 5th Cir. Order, 15-KH-640, 12/17/15; St. Rec. Vol. 21 of 27, 5th Cir. Writ Application, 15-KH-640, 10/14/15; State v. Grace, 208 So.3d 376 (La. 2016); St. Rec. Vol. 18 of 27, La. S. Ct. Order, 2016-KP-120, 10/28/16; St. Rec. Vol. 25-27 of 27, La. S. Ct. Writ Application, 16-KP-120, 1/20/16.
32. State v. Grace, 17-KH-451 at 8 (La. App. 5 Cir. 2017); St. Rec. Vol. 19, 21–25 of 27; 5th Cir. Writ Application, 17-KH-451, 8/16/17.
33. State v. Grace, 264 So. 3d 431 (La. 2017); St. Rec. Vol. 19 of 27, La. S. Ct. Order, 2/25/19; La. S. Ct. Letter, 2017-KP-2070, 12/14/17; St. Rec. Vol. 27 of 27, La. S. Ct. Writ Application, 17-KP-2070, 1/22/18.
34. The AEDPA was signed into law on that date and did not specify an effective date for its non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir. 1992).
35. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).
36. Nobles v. Johnson, 127 F.3d 409, 419–20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
37. Id.
38. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)).
39. 28 U.S.C. § 2254(e)(1).
40. Penry v. Johnson, 215 F.3d 504, 507 (5th Cir. 2000) (quoting Miller v. Johnson, 200 F.3d 274, 280–81 (5th Cir. 2000)), aff'd in part, rev'd in part on other grounds, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (brackets in original); Hill, 210 F.3d at 485.
41. Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Penry, 532 U.S. at 792–93, 121 S.Ct. 1910; Hill, 210 F.3d at 485.
42. White v. Woodall, 572 U.S. 415, 427, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)); Shoop v. Hill, 586 U.S. 45, 139 S. Ct. 504, 506, 202 L.Ed.2d 461 (2019) (quoting Harrington, 562 U.S. at 103, 131 S.Ct. 770).
43. White, 572 U.S. at 426, 134 S.Ct. 1697 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)); Shoop, 139 S. Ct. at 509 (stating that habeas courts must rely “strictly on legal rules that were clearly established in the decisions of this Court at the relevant time”).
44. Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24–25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)) (citations omitted; brackets in original).
45. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
46. Price, 538 U.S. at 641, 123 S.Ct. 1848 (quoting Woodford, 537 U.S. at 24–25, 123 S.Ct. 357); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006).
47. See Doc. 97 at 15–16.
48. Sgt. Snow is now Deputy Chief Pernia.
49. Doc. 122 at 2.
50. St. Rec. Vol. 19 of 27, Grand Jury Testimony, 3/11/93.
51. Id.
52. Id.
53. Doc. 14-18, Trial Transcript Vol. 2.
54. Id.
55. Id.
56. Doc. 14-19, Trial Transcript Vol. 2.
57. Id.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Id.
67. Id.
68. Id.
69. Id.
70. Id.
71. Id.
72. St. Rec. Vol. 19 of 27, Grand Jury Testimony, 3/11/93.
73. Doc. 14-18, Trial Transcript Vol. 2.
74. Id.
75. Id.
76. Id.
77. Id.
78. St. Rec. Vol. 19 of 27, Trial Court Order, 7/17/17.
79. Id.
80. Id.
81. Id.
82. Id.
83. St. Rec. Vol. 19 of 27, Trial Court Order, 7/17/17.
84. St. Rec. Vol. 19 of 27; State v. Grace, 17-KH-451 at 8 (La. App. 5 Cir. 2017).
85. Id. at 6, 12.
86. Id. at 7
87. Id.
88. Id.
89. Id.
90. Id.
91. Id. at 7–8.
92. Id.
93. Id.
94. Id.
95. Id.
96. Id. at 9–10.
97. Id.
98. State v. Grace, 264 So. 3d 431 (La. 2019); St. Rec. Vol. 19 of 27; La. S. Ct. Order, 2017-KP-2070 (2/25/2019).
99. Reeder v. Vannoy, 978 F.3d 272, 276 (5th Cir. 2020).
100. White, 572 U.S. at 419–20, 134 S.Ct. 1697 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. 770).
101. Wilson v. Sellers, 584 U.S. 122, 138 S. Ct. 1188, 1191–92, 200 L.Ed.2d 530 (2018).
102. Id.
103. Id.
104. Doc. 146.; Grace v. Cain, No. CV 02-3818, 2021 WL 5711942, at *1 (E.D. La. Dec. 2, 2021), vacated and remanded sub nom. Grace v. Hooper, No. 21-30753, 2023 WL 2810059 (5th Cir. Apr. 6, 2023).
105. Grace, 2023 WL 2810059, at *3.
106. Id.
107. Brady, 373 U.S. at 87, 83 S.Ct. 1194.
108. Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir. 2005).
109. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
110. Id.
111. Id.
112. Id.
113. Id. at 436.
114. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
115. Id. at 313–14.
116. Id. at 316–17.
117. Id. at 318.
118. State v. Grace, 17-KH-451 at 7 (La. App. 5 Cir. 2017).
119. Wearry v. Cain, 577 U.S. 385, 394, 136 S.Ct. 1002, 194 L.Ed.2d 78 (2016).
120. Carrillo v. Perkins, 723 F.2d 1165, 1167 (5th Cir. 1984).
121. Id. at 1168.
122. Id. at 1169–70 (5th Cir. 1984). See also United States v. Bagley, 473 U.S. 667, 683, 105 S. Ct. 3375, 3384, 87 L. Ed. 2d 481 (1985) (“The fact that the stake was not guaranteed through a promise or binding contract, but was expressly contingent on the Government's satisfaction with the end result, served only to strengthen any incentive to testify falsely in order to secure a conviction.”).
123. Carrillo, 723 F.2d at 1169.
124. Id. at 1170.
125. Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir. 1981).
126. United States v. Crumley, 565 F.2d 945, 950 (5th Cir. 1978).
127. This Court does not find compelling the State's argument that Sgt. Snow's grand jury testimony would not be admissible at trial. Neither Louisiana Code of Evidence articles 609.1 nor 607 would prevent introduction of the statement on cross-examination of Sgt. Snow.
128. State v. Grace, 17-KH-451 at 7 (La. App. 5 Cir. 2017).
129. Davis, 415 U.S. at 316, 94 S.Ct. 1105.
130. Kyles, 514 U.S. at 445, 115 S.Ct. 1555.
131. Davis, 415 U.S. at 316, 94 S.Ct. 1105.
132. Kyles, 514 U.S. at 444, 115 S.Ct. 1555.
133. Id. at 445. Other evidence at trial called into question the thoroughness of Sgt. Snow's investigation into the shooting, including her failure to get a warrant to search the home of either Petitioner or Hudson, her failure to attempt to locate the jewelry that had been stolen or the gun used in the shooting, and her failure to develop any physical evidence of Petitioner's guilt.
134. Doc. 167 at 8.
135. Grace, 17-KH-451 at 9.
136. Davis, 415 U.S. at 316, 94 S.Ct. 1105.
137. Kyles, 514 U.S. at 453, 115 S.Ct. 1555.
138. Wearry, 577 U.S. at 394, 136 S.Ct. 1002.
139. Davis, 415 U.S. at 316–17, 94 S.Ct. 1105.
140. Grace, 17-KH-451 at 8.
141. Id. at 9.
142. Kyles, 514 U.S. at 434, 115 S.Ct. 1555.
143. Grace, 17-KH-451 at 8 (stating that “the suppressed evidence of Temple's grand jury testimony indicating that she possibly identified Hudson in a photographic lineup as the shooter is not material for purposes of a Brady violation” and “[w]ith regard to the suppressed evidence of Detective Pernia's [Sgt. Snow] misrepresentation to the grand jury ․, we also find it immaterial for purposes of a Brady violation.”).
144. Wearry, 577 U.S. at 392, 136 S.Ct. 1002.
145. Id. at 389.
146. Id.
147. Id. at 393.
148. Id. at 392.
149. Smith v. Cain, 565 U.S. 73, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012).
150. Id. at 76.
151. Id.
152. Id.
153. Id.
154. Floyd, 894 F.3d at 166 (citing Smith, 565 U.S. at 76, 132 S.Ct. 627).
155. See Wearry, 577 U.S. at 393, 136 S.Ct. 1002.
156. Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
157. Wearry, 577 U.S. at 394, 136 S.Ct. 1002.
158. Id.; Smith, 565 U.S. 73, 132 S.Ct. 627, 181 L.Ed.2d 571.
159. Kyles, 514 U.S. at 440, 115 S.Ct. 1555; Wearry, 577 U.S. at 394, 136 S.Ct. 1002.
160. Davis, 415 U.S. at 316, 94 S.Ct. 1105.
161. Id.
162. Kyles, 514 U.S. at 434, 115 S.Ct. 1555.
163. White, 572 U.S. at 426, 134 S.Ct. 1697.
JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE
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Docket No: CIVIL ACTION NO. 02-3818
Decided: March 15, 2024
Court: United States District Court, E.D. Louisiana.
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