|BANKS V. DRETKE (02-8286) 540 U.S. 668 (2004)
48 Fed. Appx. 104, reversed and remanded.
[ Ginsburg ]
[ Opinion of Thomas ]
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
BANKS v. DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
After police found a gun-shot corpse near Texarkana, Texas, Deputy Sheriff Willie Huff learned that the decedent had been seen with petitioner Banks three days earlier. When a paid informant told Deputy Huff that Banks was driving to Dallas to fetch a weapon, Deputy Huff followed Banks to a residence there. On the return trip, police stopped Bankss vehicle, found a handgun, and arrested the cars occupants. Returning to the Dallas residence, Deputy Huff encountered Charles Cook and recovered a second gun, which Cook said Banks had left at the residence several days earlier. On testing, the second gun proved to be the murder weapon. Prior to Bankss trial, the State advised defense counsel that, without necessity of motions, the State would provide Banks with all discovery to which he was entitled. Nevertheless, the State withheld evidence that would have allowed Banks to discredit two essential prosecution witnesses. At the trials guilt phase, Cook testified, inter alia, that Banks admitted kill[ing a] white boy. On cross-examination, Cook thrice denied talking to anyone about his testimony. In fact, Deputy Huff and prosecutors intensively coached Cook about his testimony during at least one pretrial session. The prosecution allowed Cooks misstatements to stand uncorrected. After Bankss capital murder conviction, the penalty-phase jury found that Banks would probably commit criminal acts of violence that would constitute a continuing threat to society. One of the States two penalty-phase witnesses, Robert Farr, testified that Banks had retrieved a gun from Dallas in order to commit robberies. According to Farr, Banks had said he would take care of it if trouble arose during those crimes. Two defense witnesses impeached Farr, but were, in turn, impeached. Banks testified, among other things, that, although he had traveled to Dallas to obtain a gun, he had no intent to participate in the robberies, which Farr alone planned to commit. In summation, the prosecution suggested that Banks had not traveled to Dallas only to supply Farr with a weapon. Stressing Farrs testimony that Banks said he would take care of trouble arising during the robberies, the prosecution urged the jury to find Farr credible. Farrs admission that he used narcotics, the prosecution suggested, indicated that he had been open and honest in every way. The State did not disclose that Farr was the paid informant who told Deputy Huff about the Dallas trip. The judge sentenced Banks to death.
Through Bankss direct appeal, the State continued to hold secret Farrs and Cooks links to the police. In a 1992 state-court postconviction motion, Banks alleged for the first time that the prosecution knowingly failed to turn over exculpatory evidence that would have revealed Farr as a police informant and Bankss arrest as a set-up. Banks also alleged that during the trials guilt phase, the State deliberately withheld information of a deal prosecutors made with Cook, which would have been critical to the jurys assessment of Cooks credibility. Banks asserted that the States actions violated Brady v. Maryland, 373 U.S. 83, 87, which held that the prosecutions suppression of evidence requested by and favorable to an accused violates due process where the evidence is material to either guilt or punishment, irrespective of the prosecutions good or bad faith. The State denied Bankss allegations, and the state postconviction court rejected his claims.
In 1996, Banks filed the instant federal habeas petition, alleging, as relevant, that the State had withheld material exculpatory evidence revealing Farr to be a police informant and Banks arrest as a set-up. Banks further alleged that the State had concealed Cooks incentive to testify in a manner favorable to the prosecution. Banks attached affidavits from Farr and Cook to a February 1999 motion seeking discovery and an evidentiary hearing. Farrs declaration stated that he had agreed to help Deputy Huff with the murder investigation out of fear Huff would arrest him on drug charges; that Huff had paid him $200; and that Farr had set [Banks] up by convincing him to drive to Dallas to retrieve Bankss gun. Cook recalled that he had participated in practice sessions before the Banks trial at which prosecutors told him he must either testify as they wanted or spend the rest of his life in prison. In response to the Magistrate Judges disclosure order in the federal habeas proceeding, the prosecution gave Banks a transcript of a September 1980 pretrial interrogation of Cook by police and prosecutors. This transcript provided compelling evidence that Cooks testimony had been tutored, but did not bear on whether Cook had a deal with the prosecution. At the federal evidentiary hearing Huff acknowledged, for the first time, that Farr was an informant paid for his involvement in Bankss case. A Banks trial prosecutor testified, however, that no deal had been offered to gain Cooks testimony. The Magistrate Judge recommended a writ of habeas corpus with respect to Bankss death sentence based on, inter alia, the States failure to disclose Farrs informant status. The judge did not recommend disturbing the guilt-phase verdict, concluding in this regard that Banks had not properly pleaded a Brady claim based on the September 1980 Cook interrogation transcript. The District Court adopted the Magistrate Judges report and rejected Bankss argument that the Cook transcript claim be treated as if raised in the pleadings, under Federal Rule of Civil Procedure 15(b).
The Fifth Circuit reversed to the extent the District Court had granted relief on Bankss Farr Brady claim. The Court of Appeals recognized that, prior to federal habeas proceedings, the prosecution had suppressed Farrs informant status and his part in the Dallas trip. The Fifth Circuit nonetheless concluded that Banks did not act diligently to develop the facts underpinning his Farr Brady claim when he pursued his 1992 state-court postconviction application. That lack of diligence, the Court of Appeals held, rendered the evidence uncovered in the federal habeas proceeding procedurally barred. In any event, the Fifth Circuit ruled, Farrs status as an informant was not material for Brady purposes. That was so, in the Fifth Circuits judgment, because Banks had impeached Farr at trial by bringing out that he had been an unreliable police informant in Arkansas, and because much of Farrs testimony was corroborated by other witnesses, including Banks himself, who had acknowledged his willingness to get a gun for Farrs use in robberies. The Fifth Circuit also denied a certificate of appealability on Bankss Cook Brady claim. In accord with the District Court, the Court of Appeals rejected Bankss assertion that, because his Cook Brady claim had been aired by implied consent, Rule 15(b) required it to be treated as if raised in the pleadings.
Held: The Fifth Circuit erred in dismissing Bankss Farr Brady claim and denying him a certificate of appealability on his Cook Brady claim. When police or prosecutors conceal significant exculpatory or impeaching material in the States possession, it is ordinarily incumbent on the State to set the record straight. Pp. 1734.
(a) Both of Bankss Brady claims arose under the regime in place prior to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). P. 17.
(b) Bankss Farr Brady claim, as it trains on his death sentence, is not barred. All three elements of a Brady claim are satisfied as to the suppression of Farrs informant status and its bearing on the reliability of the jurys verdict regarding punishment. Because Banks has also demonstrated cause and prejudice, he is not precluded from gaining federal habeas relief by his failure to produce evidence in anterior state-court proceedings. Pp. 1731.
(1) Pre-AE DPA habeas law required Banks to exhaust available state-court remedies in order to pursue federal-court relief. See, e.g., Rose v. Lundy, 455 U.S. 509. Banks satisfied this requirement by alleging in his 1992 state-court habeas application that the prosecution knowingly failed to turn over exculpatory evidence about Farr. Banks, however, failed to produce evidence in state postconviction court establishing that Farr had served as Deputy Sheriff Huffs informant. In the federal habeas forum, Banks must show that he was not thereby barred from producing evidence to substantiate his Farr Brady claim. Banks would be entitled to a federal-court evidentiary hearing if he could show both cause for his failure to develop facts in state court, and actual prejudice resulting from that failure. Keeney v. Tamayo-Reyes, 504 U.S. 1, 11. A Brady prosecutorial misconduct claim has three essential elements. Strickler v. Greene, 527 U.S. 263, 281282. Beyond debate, the first such elementthat the evidence at issue be favorable to the accused as exculpatory or impeachingis satisfied here. Farrs paid informant status plainly qualifies as evidence advantageous to Banks. Cause and prejudice in this case parallel the second and third of the three Brady components. Corresponding to the second Brady elementthat the State suppressed the evidence at issuea petitioner shows cause when the reason for the failure to develop facts in state-court proceedings was the States suppression of the relevant evidence. Coincident with the third Brady componentthat prejudice ensuedprejudice within the compass of the cause and prejudice requirement exists when suppressed evidence is material for Brady purposes. Ibid. Thus, if Banks succeeds in demonstrating cause and prejudice, he will also succeed in establishing the essential elements of his Farr Brady claim. Pp. 1719.
(2) Banks has shown cause for failing to present evidence in state court capable of substantiating his Farr Brady claim. As Strickler instructs, 527 U.S., at 289, three inquiries underlie the cause determination: (1) whether the prosecution withheld exculpatory evidence; (2) whether the petitioner reasonably relied on the prosecutions open file policy as fulfilling the prosecutions duty to disclose such evidence; and (3) whether the State confirmed the petitioners reliance on that policy by asserting during the state habeas proceedings that the petitioner had already received everything known to the government. This case is congruent with Strickler in all three respects. First, the State knew of, but kept back, Farrs arrangement with Deputy Huff. Cf. Kyles v. Whitley, 514 U.S. 419, 437. Second, the State asserted, on the eve of trial, that it would disclose all Brady material. Banks cannot be faulted for relying on that representation. See Strickler, 527 U.S., at 283284. Third, in its answer to Bankss 1992 state habeas application, the State denied Bankss assertions that Farr was a police informant and Bankss arrest a set-up. The State thereby confirmed Bankss reliance on the prosecutions representation that it had disclosed all Brady material. In this regard, Bankss case is stronger than was the Strickler petitioners: Each time Farr misrepresented his dealings with police, the prosecution allowed that testimony to stand uncorrected. Cf. Giglio v. United States, 405 U.S. 150, 153. Banks appropriately assumed police would not engage in improper litigation conduct to obtain a conviction. None of the States arguments for distinguishing Strickler on the cause issue accounts adequately for the States concealment and misrepresentation of Farrs link to Huff. In light of those misrepresentations, Banks did not lack appropriate diligence in pursuing the Farr Brady claim in state court. Nor is Banks at fault for failing to move, in the 1992 state-court postconviction proceedings, for investigative assistance so that he could inquire into Farrs police connections, for state law entitled him to no such aid. Further, Roviaro v. United States, 353 U.S. 53, which concerned the Governments obligation to reveal the identity of an informant it does not call as a witness, does not support the States position. Pp. 1926.
(3) The States suppression of Farrs informant status is material for Brady purposes. The materiality standard for Brady claims is met when the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles, 514 U.S., at 435. Farr was paid for a critical role in the scenario that led to Bankss indictment. Farrs declaration, presented to the federal habeas court, asserts that Farr, not Banks, initiated the proposal to obtain a gun to facilitate robberies. Had Farr not instigated, upon Deputy Huffs request, the Dallas excursion to fetch Bankss gun, the prosecution would have had slim, if any, evidence that Banks planned to continue committing violent acts. Farrs admission of his instigating role, moreover, would have dampened the prosecutions zeal in urging the jury to consider Bankss acquisition of a gun to commit robbery or his planned violence. Because Banks had no criminal record, Farrs testimony about Bankss propensity to violence was crucial to the prosecution. Without that testimony, the State could not have underscored to the jury that Banks would use the gun fetched in Dallas to take care of trouble arising during robberies. The stress placed by the prosecution on this part of Farrs testimony, uncorroborated by any other witness, belies the States suggestion that Farrs testimony was adequately corroborated. The prosecutions penalty-phase summation, moreover, left no doubt about the importance the State attached to Farrs testimony. In contrast to Strickler, where the Court found cause, 527 U.S., at 289, but no prejudice, id., at 292296, the existence of prejudice in this case is marked. Farrs trial testimony was the centerpiece of the Banks prosecutions penalty-phase case. That testimony was cast in large doubt by the declaration Banks ultimately obtained from Farr and introduced in the federal habeas proceeding. Had jurors known of Farrs continuing interest in obtaining Deputy Huffs favor and his receipt of funds to set Banks up, they might well have distrusted Farrs testimony, and, insofar as it was uncorroborated, disregarded it. The jury, moreover, did not benefit from customary, truth-promoting precautions that generally accompany informant testimony. Such testimony poses serious credibility questions. This Court, therefore, has long allowed defendants broad latitude to cross-examine informants and has counseled the use of careful instructions on submission of the credibility issue to the jury. See, e.g., On Lee v. United States, 343 U.S. 747, 757. The States argument that Farrs informant status was rendered cumulative by his impeachment at trial is contradicted by the record. Neither witness called to impeach Farr gave evidence directly relevant to Farrs part in Bankss prosecution. The impeaching witnesses, moreover, were themselves impeached, as the prosecution stressed on summation. Further, the prosecution turned to its advantage remaining impeachment evidence by suggesting that Farrs admission of drug use demonstrated his openness and honesty. Pp. 2631.
(c) The lower courts wrongly denied Banks a certificate of appealability with regard to his Brady claim resting on the prosecutions suppression of the September 1980 Cook interrogation transcript. The Court of Appeals rejected Bankss contention that Rule 15(b) required the claim to be treated as having been raised in the pleadings because the transcript substantiating the claim had been aired at an evidentiary hearing before the Magistrate Judge. The Fifth Circuit apparently relied on the debatable view that Rule 15(b) is inapplicable in habeas proceedings. This Court has twice assumed that Rules application in such proceedings. Harris v. Nelson, 394 U.S. 286, 294, n. 5; Withrow v. Williams, 507 U.S. 680, 696, and n. 7. The Withrow District Court had granted habeas on a claim neither pleaded, considered at an evidentiary hearing, nor even argu[ed] by the parties. Id., at 695. This Court held that there had been no trial of the claim by implied consent; and manifestly, the respondent warden was prejudiced by the lack of opportunity to present evidence bearing on the claims resolution. Id., at 696. Here, in contrast, the issue of the undisclosed Cook interrogation transcript was aired at a hearing before the Magistrate Judge, and the transcript was admitted into evidence without objection. The Fifth Circuits view that an evidentiary hearing should not be aligned with a trial for Rule 15(b) purposes is not well grounded. Nor does this Court agree with the Court of Appeals that applying Rule 15(b) in habeas proceedings would undermine the States exhaustion and procedural default defenses. Ibid. Under pre-AEDPA law, no inconsistency arose between Rule 15(b) and those defenses. Doubtless, that is why this Courts pre-AEDPA cases assumed Rule 15(b)s application in habeas proceedings. See, e.g., ibid. While AEDPA forbids a finding that exhaustion has been waived absent an express waiver by the State, 28 U.S.C. § 2254(b)(3), pre-AEDPA law allowed waiver of both defensesexhaustion and procedural defaultbased on the States litigation conduct, see, e.g., Gray v. Netherland, 518 U.S. 152, 166. To obtain a certificate of appealability, a prisoner must demonstrate that reasonable jurists could disagree with the district courts resolution of his constitutional claims or that the issues presented warrant encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327. This case fits that description as to the application of Rule 15(b). Pp. 3134.
48 Fed. Appx. 104, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, OConnor, Kennedy, Souter, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined.