                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2794
                                   ___________

Robert W. Odem,                         *
                                        *
      Appellee,                         *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Frank X. Hopkins, Warden, and           *
Tom Miller, Attorney General,           *
State of Iowa,                          *
                                        *
      Appellants.                       *
                                   ___________

                             Submitted: June 14, 1999
                                 Filed: September 23, 1999
                                  ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1
      District Judge.
                           ___________

BYRNE, District Judge.

       The State of Iowa (appellant or State) appeals the district court’s granting of
habeas corpus relief to Robert W. Odem (appellee or Odem), ordering the State to retry
or release him. Odem’s petition for habeas corpus alleged that Odem’s constitutional
rights were violated by the State withholding exculpatory evidence and by ineffective
assistance of counsel. We reverse the district court’s finding that the State withheld


      1
        The Honorable William Matthew Byrne, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.
exculpatory evidence and remand to the district court for consideration of the
ineffective assistance of counsel issue.

       Bill Smith and his wife Kimberly were murdered at their home the evening of
December 26, 1980. The two eyewitnesses to that event were Bill Smith’s children
from a former marriage, Chad, age 8 and Steven, age 5, who testified that they saw a
man wearing a red jacket and blue jeans come into the house. Chad at first told the
police that there was some white cursive writing on the jacket with the letters “C,” “R,”
“H,” and “A,” but at trial he testified that there was no lettering on the jacket. A few
minutes after the boys saw the man enter the premises, they heard gunshots from their
father’s bedroom and in the morning they went to alert a neighbor. When the Iowa
Department of Criminal Investigation (DCI) arrived, Bill and Kimberly Smith were
found dead on the floor from two gunshot wounds each. The DCI found no evidence
connecting Odem to the crime scene. Evidence at trial showed that on the night of the
murders, Odem was wearing blue jeans and a red jacket with no writing, and that for
most of the evening he had been bar hopping.

        In early January 1981, at the DCI’s request, Odem turned over a .22 caliber rifle
that Odem’s brother, Richard, owned. Odem stated that he had been in possession of
the rifle since 1979 and from November to the last week of December 1980, the gun
was in the back of his seldom locked car. After this period, Odem indicated that he
took the gun inside his house and hung it on the wall. Ballistics tests conclusively
proved that this was the weapon that killed Bill and Kimberly Smith.

      Odem was convicted of murder in the first degree. He received a sentence of life
without the possibility of parole. Odem appealed his conviction and the Iowa Supreme
Court affirmed. Odem subsequently filed two actions for postconviction relief in the
Iowa state courts in 1984 and 1987, both of which were denied.

      In 1992, Odem filed a petition for a writ of habeas corpus in federal district court
pursuant to 28 U.S.C. § 2254. The primary basis for the petition was that Odem

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claimed that the State had not disclosed to Odem’s trial counsel that it was in
possession of a red jacket with writing on the back that belonged to Odem’s brother,
inside of which the State had found a hair sample matching victim Kimberly Smith’s
hair. Odem claimed that this constituted an unlawful withholding of exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court
agreed and granted Odem relief on that basis. While on appeal, the State moved to
have the record expanded in light of new evidence that showed that the information
concerning the jacket had been disclosed to Odem’s counsel prior to his trial, and the
counsel had acknowledged its receipt. We granted the motion, and on remand with the
expanded record, the district court found that the information had been disclosed to the
defense in too piecemeal a manner which still amounted to a Brady violation. The
district court did not consider Odem’s ineffective assistance of counsel claim. The
State appeals this ruling.

                                    DISCUSSION

       We review the legal determinations of the district court in a habeas corpus case
de novo. See Mallett v. Bowersox, 160 F.3d 456, 459 (8th Cir. 1998). Findings of fact
by the district court relevant to its decision are reviewed for clear error. See Sloan v.
Delo, 54 F.3d 1371, 1383 (8th Cir. 1995). However, state court determinations on the
materiality of evidence are a mixed question of law and fact that are reviewed de novo.
See Reese v. Delo, 94 F.3d 1177, 1183 (8th Cir. 1996). In a habeas case, the central
question is whether the conviction and sentence are consistent with the dictates of the
Constitution. See Smith v. Armontrout, 888 F.2d 530, 539 (8th Cir. 1989). Only those
constitutional errors that have a substantial and injurious effect or influence in
determining a jury’s verdict warrant relief under a 28 U.S.C. § 2254 petition. See
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

                                  A. Procedural Bar

      Before a federal court can entertain a claim in a habeas petition, that same claim

                                          -3-
has to have been raised in the prior state court proceedings or it must be dismissed for
failure to exhaust available state court remedies. See Keithly v. Hopkins, 43 F.3d
1216, 1218 (8th Cir. 1995). The exhaustion requirement is satisfied if the prisoner gave
the state courts a “fair opportunity” to apply controlling legal principles to the facts that
are relevant to his constitutional claim. See Picard v. Connor, 404 U.S. 270, 276-77
(1971). Thus, in addition to the recitation of all the facts necessary for the state court’s
evaluation of the federal claim, the petitioner has to “fairly present” the “substance” of
his federal claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982).

       Appellant contends that Odem did not raise any Brady claim before the state
courts and therefore he has not exhausted his state court remedies. In particular, the
State argues that because Odem did not mention Brady in his state appellate briefs, and
his only argument concerning exculpatory evidence was in the context of his ineffective
assistance of counsel claim, the withholding of exculpatory evidence claim is now
procedurally barred.

       Even though the issue of the State’s turning over of exculpatory evidence is
contained solely within an argument pertaining to ineffective assistance of counsel, it
is clear that Odem raised both the facts and the legal argument pertaining to his Brady
violation before the state court. 2                     There is no ambiguity


       2
       The following is an excerpt from Odem’s appellate brief in his second petition
before the Iowa state courts. This excerpt represents the entirety of his state court
papers that can be construed as raising the Brady claim:

              Counsel’s failure in the case at bar to conduct any substantial
       investigation in Mr. Odem’s case, to make pretrial discovery requests and
       to request exculpatory evidence without question establishes that William
       Pappas neglected to perform several essential tasks which ultimately
       prejudiced his client’s opportunity for a new trial. But for counsel’s
       omissions, it is indeed reasonably probable that the result of Mr. Odem’s
       trial proceedings would have [been] different.

           The county attorney’s letter to Mr. Pappas of May 19, 1981 failed to

                                            -4-
contain critical information exculpatory to Mr. Odem. As has been
previously stated, the case against Odem was not strong -- there was no
physical evidence linking him to the crime scene and no eyewitness
identification. [Citation omitted]. The key evidence against Odem was his
rifle; which was established to have been the murder weapon and the fact
that the victim’s young sons testified that the murderer wore a red coat.
Mr. Odem was wearing a red nylon jacket with white stripes running
down the sleeves and no writing on the back on the evening of the
murders.

    In their initial statements to authorities following the murders, Chad
and Steven Smith, while unable to identify the murderer, stated that the
individual wore a red jacket that had white cursive writing on the back of
it. At trial, the boys testified that this was a lie on their part. When the
entire prosecution file in Mr. Odem’s case was presented to
postconviction counsel in this case, a DCI report, . . . , was discovered
which indicated that Mr. Odem’s brother, Richard Odem, owned a red
jacket with cursive writing on the back of it which had a head hair of Kim
Smith’s on it. . . .

   The above information was not disclosed to defense counsel; Mr.
Pappas made no requests for exculpatory evidence.

      It is a violation of due process for the prosecution to suppress,
mistakenly or otherwise, evidence favorable to the accused if the evidence
is material. State v. Todden, 364 N.W.2d 195, 198 (Iowa 1985). In
United States v. Bagley, 473 U.S. 667, 692 . . . (1985), the United States
Supreme Court adopted a single test for materiality to cover the “no
request,” “general request,” and “specific request” cases of prosecutorial
failure to disclose evidence favorable to the accused:

           The evidence is material only if there is a reasonable
      probability that, had the evidence been disclosed to the
      defense, the result of the proceeding would have been
      different. A “reasonable probability” is a probability
      sufficient to undermine confidence in the outcome.


                                    -5-
that the withheld evidence to which Odem refers to is the DCI report concerning
Richard Odem’s jacket. Equally unambiguous, is his claim that this withholding was
material to the outcome of the case.

        The State’s contention that Odem’s failure to cite Brady is dispositive in making
this issue procedurally barred for failure to exhaust state courts remedies is incorrect.
All Odem was required to do was to fairly apprize the state court of the facts and the
“substance” of his federal claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982). The
fact that Odem did not specifically mention Brady itself is immaterial because all the
cases he cites to in footnote 2 are cases that involve withholding of exculpatory
evidence claims and do not deal with ineffective assistance of counsel issues. An exact
duplicate of Odem’s state court argument is not required for exhaustion, but what
Odem had to do was to give a recitation that would give the state court a “fair
opportunity” to apply the relevant controlling legal principles. See Picard, 404 U.S. at
276-77. This Odem has done even though his briefs before the state court were not a
model of clarity. Therefore his Brady violation claim is properly before this Court.

                       B. Withholding of Exculpatory Evidence

       “[S]uppression by the prosecution of evidence favorable to an accused . . .
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.” Brady, 373 U.S. at 87.
The disclosure has to be made whether the defense requests the evidence or not. See


         See also State v. Anderson, 410 N.W.2d 231, 233-34 (Iowa 1987).
      Mr. Odem submits that it is reasonably probable that had a request for
      and disclosure of [the jacket] been made, the results of his criminal trial
      proceedings would have been different. Such evidence clearly would
      have generated reasonable doubt and, if used effectively, would have
      made the difference between conviction and acquittal. Prejudice to Mr.
      Odem by defense counsel’s omissions in this regard is clear.

      Joint Appendix at 63-66.

                                          -6-
United States v. Bagley, 473 U.S. 667, 682 (1985).

       As a threshold matter, Odem argues that this Court should not consider the
disclosure of the DCI report because the State only brought it into the record after the
district court had already ruled on Odem’s habeas petition. This argument is without
merit because the State sought, and this Court granted, the right to expand the record
to include the DCI report. Therefore, the DCI report is part of the record and is
properly before this Court for review.

      The evidence at issue consists of a red nylon jacket with the words “U Need A
Car Wash” written on the back in black letters. Inside the jacket, the investigators
found a hair that matched that of the victim Kimberly Smith. The jacket belonged to
Odem’s brother Richard. In a report dated February 27, 1981, the DCI summarized
the analysis of this evidence as follows:


       BD               The red nylon jacket (Item BD) was examined for the
                        presence of blood splatters or stains and none were
                        detected. Several hairs were recovered from the inside of
                        the jacket.
       BD vs Z&AJ       A light colored head hair recovered from the insides of the
                        red jacket (Item BD) was compared with the known head
                        hair from KIMBERLY SMITH (Item AJ). Similarities
                        were noted between the jacket (Item BD) and the known
                        hair from KIMBERLY SMITH (Item AJ) in color
                        diameter, length and microscopic characteristics. Based
                        on this comparison, it is the opinion of this examiner that
                        the hair from the red jacket (Item BD) may have
                        originated from the same sources as the known hair (Item
                        AJ). It should be noted that hairs lack sufficient
                        characteristics to affect a positive identification.

                        The known hair from WILLIAM SMITH (Item Z) was
                        determined to be dissimilar to the hair recovered from the
                        red jacket. (Item BD).

                                          -7-
Joint Appendix at 178. A second page of this DCI report references Exhibit BD as
“One (1) red ‘Aristo Jac’ Jacket with lettering ‘U NEED A CAR WASH.’” Id.

        Odem’s counsel’s billing records indicate that he received and reviewed a copy
of the DCI report before trial on April 6, 1981. Six weeks later, on May 19, 1981, the
State sent Odem’s counsel a 12-page letter (the letter) explaining a variety of
potentially exculpatory evidence. On page 11 of this letter, the State indicated that it
had seized Richard Odem’s red jacket with “You Need a Car Wash” printed in black
letters on the back. However, the letter did not mention that hairs that matched those
belonging to victim Kimberly Smith were found inside the jacket.

        The issue is therefore whether the two disclosures given six weeks apart were
sufficient to comply with the dictates of Brady. We conclude that they were. Viewed
as a whole, this evidence has four relevant elements: (1) it was a red jacket; (2) the
jacket had writing on the back; (3) the jacket contained a head hair that matched that
of one of the victims; and (4) the jacket belonged to Odem’s brother Richard. When
comparing the DCI report to the letter it is sufficiently clear that these two documents
are referring to the same red jacket. Both documents mention the same coloring of the
jacket, and more importantly, both documents describe the jacket as bearing the phrase
“You (or “U”) Need A Car Wash” on the back. Therefore, once Odem’s counsel
received the letter, he was in possession of all the possible exculpatory information
pertaining to Richard Odem’s red jacket.

       Brady imposes no obligation on the State to reveal the exculpatory nature of the
evidence being turned over but only requires complete disclosure to the defense. Brady
and its progeny do not require the State to connect the two disclosures especially in
circumstances such as those present here, where the connection is readily apparent. To
rule otherwise would impose a duty on the prosecution to do the defense’s work, and
broaden Brady beyond its dictate of disclosure to include a requirement as to the
manner of the disclosure.

                                          -8-
        The State complied with Brady by fully turning over to Odem’s counsel prior to
trial all the exculpatory documentation. Because we rule that no Brady violation took
place, we need not reach the materiality issue.

                         C. Ineffective Assistance of Counsel

      To establish a claim of ineffective assistance of counsel the defendant has to
show (1) that counsel’s actions were outside the wide range of professionally
competent assistance, and (2) that this deficiency was so serious as to deprive the
defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also Bolder v. Armontrout, 921 F.2d 1359, 1362 (8th Cir. 1990).

       Odem raised ineffective assistance of counsel in addition to his Brady claim.
The district court did not consider the claim that Odem’s trial counsel’s failure to
connect the two disclosures concerning the jacket constituted ineffective assistance of
counsel because it granted relief based on a Brady violation. The record before this
Court, including the parties’ briefs, is too scant for a proper determination of this issue
and is thus remanded to the district court.

                                    CONCLUSION

       Accordingly, we REVERSE the district court’s finding of a Brady violation and
the granting of Odem’s habeas corpus petition. We REMAND to the district court for
a determination of Odem’s ineffective assistance of counsel claims.



LOKEN, Circuit Judge, concurring.

      The ineffective assistance alternative ground on which we are remanding was
not explicitly argued to the district court. Indeed, the State contends it was not even
alleged in the district court. Based upon my review of Odem’s amended petition for

                                           -9-
a writ of habeas corpus, that may be a serious issue, particularly since any amendment
to the petition at this time might arguably be successive or abusive. Moreover, even
if this specific ineffective assistance issue was raised in the district court, there is the
additional question whether it was rejected on the merits when the court stated in its
November 19, 1998, order: “The Court is persuaded that trial counsel was unable to
make, and should not reasonably have been expected to make, the connection between
the red jacket seized from Odem’s brother and the red jacket which bore a head hair
of Kim Smith given the manner in which this information was provided.” I do not reach
the merits of these questions, or any other question relating to this theory of ineffective
assistance, because they are better left for further consideration by the district court on
remand.


A true copy.

       Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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