In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1558

Michael A. Newell,

Petitioner-Appellant,

v.

Craig Hanks,

Respondent-Appellee.

Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. TH 97-127-C-M/F--Larry J. McKinney, Chief Judge.

Argued February 14, 2002--Decided March 12, 2002


  Before Flaum, Chief Judge, and Bauer and
Evans, Circuit Judges.

  Flaum, Chief Judge. On April 24, 1997,
Michael Newell filed a petition for writ
of habeas corpus under 28 U.S.C. sec.
2254. The district court dismissed the
petition as untimely, or alternatively
for lack of merit, and Newell appeals. We
vacate the judgment and remand the case
for further proceedings.

I.   Background

  In 1990 Newell was convicted in the
Superior Court of Knox County, Indiana,
of dealing cocaine, Ind. Code sec. 35-48-
4-1, and was sentenced to 30 years’
imprisonment. The evidence at trial had
showed that an individual named Fred
Wells, driving one of Newell’s vehicles,
met police officer Richard McGee and
confidential informant Brad Foote at a
Quickstop gas station in Vincennes,
Indiana, where he sold McGee a bag of
cocaine for $950. McGee testified that
when he asked whether the substance was
"Newell’s stuff," Wells replied, "Yea, I
just came from there."

  The sale had been preceded by the
following telephone conversation between
Newell ("Mike") and Foote ("Brad"),
recorded and corroborated at trial by
police officer Dennis Holt:
MIKE: Hello.

BRAD: Mike?

MIKE: Yes.

BRAD: Hey, how’s it going?

MIKE: Okay.

BRAD: I’m sorry to take so long, but I’m
back with you.

MIKE: Uh huh.

BRAD: So, can ah . . . can you take off
and meet me at the, ah, out by the
Executive or something?

MIKE: What about the place . . . ah, being
Bobe’s?

BRAD: Well, we can go over there, but like
I said I’m here right now.

MIKE: Well, he doesn’t want to go there,
he wants to go to Bobe’s.

[MIKE]: Yeah, and . . . ah, are you going
to be by yourself, you know, he’s kind of
paranoid, you got to understand why.

BRAD: Yeah, I can understand that.

MIKE: But it’s all together, everything,
right . . . is everything right on your
end?

BRAD: Yeah, yeah.

MIKE: For sure?

BRAD: For sure.

MIKE: Okay, how about Quickstop in twenty
minutes?

BRAD: Quickstop in twenty minutes?
MIKE: Yeah.

BRAD: Okay, what kind of car do you . . .
is he coming up in?

MIKE: Ah, probably my red pickup truck.

BRAD: The one with the back window out?

MIKE: Yeah, either that or the other one.

BRAD: Okay, I’ll recog . . . I’ll
recognize that, I just want to make sure
it’s somebody I know cause I just hate
standing around, hanging around.

MIKE: It’s Freddy. Okay, I’ll see ya.

BRAD: Okay, it’s be all right, bye.

The audiotape and transcript of this
conversation, together with the testimony
of officers McGee and Holt, were
apparently the only pieces of evidence
linking Newell to the charged
transaction. Neither Wells nor Foote
testified at Newell’s trial.

  On April 24, 1997, Newell (through his
attorney) filed his first sec. 2254
petition, in which he principally alleges
that the state violated Brady v.
Maryland, 373 U.S. 83 (1963), by
concealing pretrial communications that
took place between prosecutor Lee
Hoefling and Wells. To support his claim,
Newell presented the transcript of a
deposition taken from Wells on May 30,
1996, during which Wells testified that,
before Newell’s trial date, Wells met
with prosecutor Hoefling and officers
Holt and McGee and told them that the
cocaine he sold McGee did not belong to
Newell but instead to an individual named
Doug Jackson. Wells further testified in
his deposition that he told Hoefling that
he would not testify against Newell.
Hoefling then allegedly proposed the
following deal: if Wells took the stand
at Newell’s trial and refused to testify
on Fifth Amendment grounds, Wells would
receive only six years for the cocaine
charge pending against him. Wells
accepted this agreement, which was
communicated to him by his lawyer, and
invoked his Fifth Amendment rights, first
at a pretrial deposition scheduled by
Newell’s trial attorney and then again at
Newell’s trial. He later received a six-
year sentence, but not for the drug
charge./1 Wells stated in his
deposition that, had he testified at
trial, he would have denied having told
McGee that the cocaine was Newell’s.

  According to Newell’s petition,
prosecutor Hoefling failed to disclose
any of the above information, not even in
response to discovery requests that would
have required its production. Newell’s
petition further claims that Hoefling
affirmatively concealed the existence of
Wells’s cooperation agreement, going so
far as to "cause[ ] the records of the
Knox Superior Court Division 1 to reflect
the State’s objection to Wells’s Motion
for Bond Reduction (which was granted)
when, in fact, the State had
affirmatively agreed to his release on
the date of his cooperation." Moreover,
Newell claims, Hoefling told the jury
during his opening statement that he had
subpoenaed Wells but could not predict
whether he would testify, and argued that
the out-of-court statement submitted
through McGee’s testimony was not hearsay
because Wells was under subpoena, "there
by implying that he believed Wells would
testify and be subject to cross-
examination." Newell also alleges that
Hoefling pointed out in his closing
argument that Newell did not challenge
Wells’s out-of-court statement "despite
the fact that Wells himself had not
testified and that, by virtue of the
State’s actions, Mr. Newell was deprived
of his opportunity to challenge that
statement by cross-examination."

  Newell’s petition raises a second Brady
argument: that Hoefling concealed
evidence of the state’s agreement with
Foote "governing his activities as a
confidential informant." Newell
elaborated on this claim in additional
pleadings before the district court,
alleging that Foote’s absence at trial
was in part the result of the state’s
assistance and that the state had the
ability to locate Foote at all times.
Hoefling, however, allegedly told the
jury during his opening statement that an
individual named David Schlomer had
threatened Foote, and later elicited
testimony to the effect that Schlomer was
a friend of Newell’s. Newell contends
that the implication of Hoefling’s state
ments was that Newell "had participated
in the transmission of threats to Brad
Foote and, thereby, contributed to his
absence at trial." But, according to
Newell, "[a]t the time he gave his
Opening Statement, [Hoefling] had no
basis for asserting that Foote had been
threatened by anyone including Mr.
Schlomer and, in fact, no such threats
were made."

  On December 31, 1997, the district
court, at Newell’s request, dismissed his
petition without prejudice on the ground
that he had presented a "’mixed’ petition
in the sense that some of his habeas
claims have been exhausted in the Indiana
courts, while other claims are now being
litigated in the Indiana courts through a
successive petition for post-conviction
relief." (More precisely, Newell had
pending a motion for leave to file a
successive state post-conviction
petition.) Judgment was entered on
January 5, 1998.

  On September 8, 1998, the Indiana
appeals court denied Newell’s motion for
leave to file a successive post-
conviction petition, stating that "having
examined the Petitioner’s Petition for
Successive Post-Conviction Relief [the
court] finds that the Petition
conclusively shows that the Petitioner is
entitled to no relief." Over two months
later, on November 20, Newell returned to
federal court and moved to "redocket his
Petition for Writ of Habeas Corpus,
amending said Petition only insofar as
the Petition contains references to the
procedural status and disposition of his
Petition for Successive Post Conviction
Relief before the Indiana Court of
Appeals." On November 25 the district
court granted the motion and ordered that
the "judgment entered on the clerk’s
docket on January 5, 1998, is vacated and
the clerk shall reopen the action on the
docket."

  After further proceedings, however, the
district court determined that Newell’s
amended petition was untimely and
accordingly dismissed the case with
prejudice. The court first reasoned that
Newell’s original filing on April 24,
1997, missed the cutoff date of the
Antiterrorism and Effective Death Penalty
Act ("AEDPA") by one day. Alternatively,
the court held that, even if Newell’s
original petition was timely, his amended
one was not because it could not "relate
back" to the earlier filing date. The
court also purported to reach the merits
of the case and held that irrespective of
untimeliness Newell was not entitled to
relief because "the decisions of the
Indiana Court of Appeals--and principally
its decision affirming the trial court’s
denial of Newell’s [first] petition for
post-conviction relief . . . reasonably
applies the law and principles applicable
to Newell’s claims as established by the
Supreme Court of the United States." In
January 2001 this court granted a
certificate of appealability on three
issues: (1) whether AEDPA’s one-year
grace period ended on April 23 or April
24, 1997; (2) whether the district court
erred in dismissing Newell’s original
petition and whether his amended petition
relates back to the earlier filing date;
and (3) whether Newell’s constitutional
rights were violated by the prosecutor’s
misconduct.

II.   Discussion

A. Timeliness

  AEDPA imposes a one-year statute of
limitations on habeas corpus petitions
brought by state prisoners, 28 U.S.C.
sec. 2244(d), but for prisoners whose
convictions became final prior to AEDPA’s
enactment on April 24, 1996, there was a
one-year grace period in which to file.
Lindh v. Murphy, 96 F.3d 856, 866 (7th
Cir. 1996), rev’d on other grounds, 521
U.S. 320 (1997). In holding that Newell’s
original filing on April 24, 1997, was
untimely, the district court relied on
the following language from Lindh, 96
F.3d at 866: "[W]e do not doubt that the
[Supreme] Court would give a plaintiff
who files after the enactment [of AEDPA]
a reasonable post-amendment time to get
litigation underway. . . . [R]eliance
interests lead us to conclude that no
collateral attack filed by April 23,
1997, may be dismissed under sec.
2244(d)." Later cases in this and other
circuits have also assumed, where the
date was not critical, that April 23,
1997, was the end of AEDPA’s one-year
grace period. E.g., Jones v. Bertrand,
171 F.3d 499, 500 (7th Cir. 1999);
O’Connor v. United States, 133 F.3d 548,
550 (7th Cir. 1998); Guenther v. Holt,
173 F.3d 1328, 1331 (11th Cir. 1999);
Brown v. Angelone, 150 F.3d 370, 375 (4th
Cir. 1998); Burns v. Morton, 134 F.3d
109, 111-12 (3d Cir. 1998); Calderon v.
U.S. Dist. Court for the Cent. Dist. of
Cal., 128 F.3d 1283, 1287 (9th Cir.
1997), overruled on other grounds by 163
F.3d 530 (9th Cir. 1998); United States
v. Simmonds, 111 F.3d 737, 746 (10th Cir.
1997).

  Notwithstanding Lindh, however, whether
AEDPA’s grace period ended on April 23 or
April 24, 1997, is still an open question
in this circuit. As we observed in United
States v. Marcello, 212 F.3d 1005, 1009
(7th Cir. 2000), the issue in Lindh (as
well as in cases from our sister circuits
proposing April 23, 1997, as the cutoff
date) was "not whether the deadline
should be April 23, 1997, or April 24,
1997, but rather whether prisoners whose
judgments of conviction had been
finalized well before the new law’s date
of enactment should be allowed to seek
collateral relief at all. None of these
cases discussed the rationale for setting
April 23 instead of April 24 as the
deadline." Our statement in Lindh that
the grace period ended on April 23, 1997,
was therefore dictum and does not control
our decision today.

  The general rule for computing time
limitations in federal courts is Federal
Rule of Civil Procedure 6(a), which
excludes from the computation "the day of
the act, event, or default from which the
designated period of time begins to run."
In Marcello we applied this rule to
AEDPA--specifically, to sec. 2255 para.
6(1), which provides that the one-year
limitations period for federal prisoners
will run in some cases from the date on
which the judgment of conviction became
final--and held that, for defendants who
try unsuccessfully to take their case to
the Supreme Court, the one-year time
limit begins to run the day after the
Court denies certiorari, thereby giving
defendants until the close of business on
the "anniversary date" of the denial to
file their habeas motion. Marcello, 212
F.3d at 1009-10; accord Bronaugh v. Ohio,
235 F.3d 280, 284-85 (6th Cir. 2000). We
have applied Rule 6(a) to calculate other
statutory time limits, e.g., Tribue v.
United States, 826 F.2d 633, 634-35 (7th
Cir. 1987) (Federal Tort Claims Act);
Pearson v. Furnco Constr. Co., 563 F.2d
815, 818-19 (7th Cir. 1977) (Title VII),
and in Marcello we hinted that it should
determine AEDPA’s cutoff date as well.
Marcello, 212 F.3d at 1009. We now
expressly hold what was implied in
Marcello: Rule 6(a) applies to the
computation of AEDPA’s grace period, and
so any habeas corpus petition filed on or
before April 24, 1997, is timely. This
step will bring us in line with every
other circuit that has directly addressed
the applicability of Rule 6(a) in this
context. Patterson v. Stewart, 251 F.3d
1243, 1245-46 (9th Cir. 2001); Hernandez
v. Caldwell, 225 F.3d 435, 438-39 (4th
Cir. 2000); Gould v. Jackson, No. 98-
1743, 2000 WL 303002, at *1 (6th Cir.
Mar. 14, 2000) (precedential under Sixth
Circuit Rule 28(g)); Rogers v. United
States, 180 F.3d 349, 355 & n.13 (1st
Cir. 1999); Moore v. United States, 173
F.3d 1131, 1133-35 (8th Cir. 1999);
Flanagan v. Johnson, 154 F.3d 196, 200-02
(5th Cir. 1998); Mickens v. United
States, 148 F.3d 145, 148 (2d Cir. 1998);
see also United States v. Cicero, 214
F.3d 199, 202 (D.C. Cir. 2000) (adopting
April 24, 1997, as cutoff date without
expressly discussing application of Rule
6(a)); Towns v. United States, 190 F.3d
468, 469 (6th Cir. 1999) (same).

  But this does not end the timeliness
inquiry. Anticipating that reasonable
jurists might differ as to whether
AEDPA’s cutoff date was April 23 or April
24, the district court went on to hold
that, even if Newell’s original petition
was timely, his amended petition filed on
November 25, 1998, was not. The district
court seemed to proceed along the follow
ing analysis: (1) assuming the original
petition was timely, its filing tolled
the statute of limitations from the
filing date (April 24, 1997) to the
dismissal date (December 31, 1997); (2)
the statute was running again from the
dismissal date to the filing date of the
amended petition (November 25, 1998); (3)
Newell’s motion for leave to file a
successive post-conviction petition was
not a "properly filed" application within
the meaning of sec. 2244(d)(2), see
Tinker v. Hanks, 172 F.3d 990 (7th Cir.
1999), vacated by 531 U.S. 987 (2000),
reinstated by 255 F.3d 444 (7th Cir.
2001); (4) Newell’s amended sec. 2254
petition therefore did not "relate back"
to the date of the original filing
because to hold otherwise would "permit a
person in Newell’s position to circumvent
the reasoning of Tinker"; and (5) even if
Newell’s original petition were deemed to
have been stayed rather than dismissed,
his "rearrival" in the case more than
sixty days after the state court denied
his motion for leave to file a successive
petition was impermissible.

  There are several problems with this
analysis. First, the district court
mistakenly assumes that the filing of a
case stops the running of the statute of
limitations even if that case is later
dismissed without prejudice. Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir.
2000) (if a case is dismissed without
prejudice, the statute of limitations is
deemed to have continued running from
whenever the cause of action accrued,
without interruption by the filing of
that case). The district court’s analysis
also incorrectly employs "relation back"
principles rather than tolling
principles. The court proceeds along the
assumption that Newell’s original
petition was dismissed, but if that is
the case, the "relation back" doctrine
simply does not apply. Neverson
v.Bissonnette, 261 F.3d 120, 126 (1st
Cir. 2001) ("relation back" doctrine
inapplicable where dismissal of initial
habeas corpus petition left nothing for
the new petition to relate back to); see
also Marsh v. Soares, 223 F.3d 1217,
1219-20 (10th Cir. 2000) (collecting
cases). Rather, if Newell’s first
petition was dismissed, the court should
have utilized tolling principles, as
discussed generally in Tinker, 174 F.3d
at 990-91.

  But these errors are of little import.
The crucial flaw in the decision is the
district court’s not recalling that, in
its November 25, 1998 order, it already
had vacated the judgment dismissing
Newell’s original petition and allowed
the amended petition to be redocketed
under the same cause number. And though
the state argued at oral argument that
the district court abused its discretion
in vacating its earlier dismissal, we
conclude that the court’s decision was
entirely proper. When dismissing Newell’s
first petition, the district court did
not have the benefit of our decisions in
Freeman v. Page, 208 F.3d 572, 577 (7th
Cir. 2000), and Tinker, 172 F.3d at 991,
which suggest that the federal action
should have been stayed, not dismissed,
while the Indiana court ruled on Newell’s
pending motion. See also Neverson, 261
F.3d at 126 n.3; Zarvela v. Artuz, 254
F.3d 374, 380 (2d Cir. 2001); Post v.
Gilmore, 111 F.3d 556, 557-58 (7th Cir.
1997). By vacating the dismissal, the
district court effectively converted it
into a stay; this could not have been an
abuse of discretion because we now know
that staying the action was the right
step to take in the first place.

  Because Newell’s initial filing was, in
effect, never dismissed, the tolling
principles discussed in Tinker are
inapplicable. Rather, we are left with a
much simplified situation: Newell filed
his original petition on April 24, 1997,
and with leave of the district court
amended that petition on November 25,
1998. The only question then is whether
the amended petition (which supersedes
the first, Kelley v. Crosfield Catalysts,
135 F.3d 1202, 1204-05 (7th Cir. 1998))
"relates back" to the initial filing
date. See Fed. R. Civ. P. 15(c).

  Rule 15(c) permits relation back where
the claims in an amended pleading are
based on the same core of facts advanced
in the original. Bularz v. Prudential
Ins. Co. of Am., 93 F.3d 372, 379 (7th
Cir. 1996). Here, Newell’s amended
petition is substantively identical to
his first--the only change reflecting the
disposition of his state-court motion--
and therefore falls within the scope of
the rule. See BCS Fin. Corp. v. United
States, 118 F.3d 522, 524 (7th Cir. 1997)
(amendments that merely correct technical
deficiencies in earlier pleading meet the
Rule 15(c) test and will relate back); 6A
Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure sec. 1497
(2d ed. 1990) (same). Granted, we have
not yet decided whether Rule 15(c)
applies to post-AEDPA habeas corpus
proceedings. We see no reason, however,
why it should not apply. Rule 11 of the
Rules Governing Section 2254 Cases in the
United States District Courts provides
that "[t]he Federal Rules of Civil
Procedure, to the extent that they are
not inconsistent with these rules, may be
applied, when appropriate, to petitions
filed under these rules." The sec. 2254
rules do not consider whether an amended
petition can relate back to the filing
date of the original; Rule 15(c) of the
civil-procedure rules therefore governs.
See Johnson v. United States, 196 F.3d
802, 805 (7th Cir. 1999) (because the
Rules Governing Section 2255 Proceedings
do not address amendments to motions for
collateral review, Federal Rule of Civil
Procedure 15(a) applies); Smith v.
Gilmore, 111 F.3d 55, 56 (7th Cir. 1997)
(Federal Rule of Civil Procedure 11
applies to sec. 2254 cases because
nothing in the Rules Governing Section
2254 Cases precludes its application).
Indeed, every other circuit that has
addressed whether Rule 15(c) should be
applied to post-AEDPA habeas corpus
proceedings has answered in the
affirmative. Woodward v. Williams, 263
F.3d 1135, 1142 (10th Cir. 2001); Fama v.
Comm’r of Corr. Serv., 235 F.3d 804, 814-
16 (2d Cir. 2000); Anthony v. Cambra, 236
F.3d 568, 576-78 (9th Cir. 2000); United
States v. Thomas, 221 F.3d 430, 435-36
(3d Cir. 2000); Mederos v. United States,
218 F.3d 1252, 1253-54 (11th Cir. 2000);
United States v. Pittman, 209 F.3d 314,
316-17 (4th Cir. 2000); United States v.
Craycraft, 167 F.3d 451, 457 & n.6 (8th
Cir. 1999).

B.   Procedural Default

  Newell’s petition is timely, but the
state maintains that, even so, dismissal
was proper because Newell procedurally
defaulted his claims. It is true that
Newell did not present his claims on
direct appeal or in his first state post-
conviction proceeding; he did, however,
present them during his second post-
conviction proceeding. According to
Newell the parties litigated his second
petition "through [Newell’s] portion of
an evidentiary hearing," before realizing
that he had failed to comply with Indiana
Post-Conviction Rule 1(12), which
requires leave from the Indiana Court of
Appeals before filing a successive
collateral attack. Newell accordingly
moved for leave in December 1996, but the
appeals court declined to authorize
filing, stating that "having examined the
Petitioner’s Petition for Successive
Post-Conviction Relief [the court] finds
that the Petition conclusively shows that
the Petitioner is entitled to no relief."
See Indiana Post-Conviction Rule 1(12)(b)
("If the pleadings conclusively show that
the petitioner is entitled to no relief,
the court will decline to authorize the
filing of the [successive] petition.").

  The state argues that the Indiana
appeals court’s statement that Newell’s
successive petition "conclusively shows
that the Petitioner is entitled to no relief"
was an "adequate and independent state
ground" that bars Newell from raising his
claims on federal habeas corpus review.
But even if Newell procedurally defaulted
his claims, he could undoubtedly show
"cause" for the default if he has
evidence to support his underlying
allegations. See Crivens v. Roth, 172
F.3d 991, 995 (7th Cir. 1999) ("We will
not penalize [petitioners] for presenting
an issue to us that [they] were unable to
present to the state courts because of
the state’s misconduct."). And in any
event, we conclude that there was no
procedural default because the Indiana
Court of Appeals’ order does not "clearly
and expressly" rely on a state procedural
bar as the basis of its ruling. Harris v.
Reed, 489 U.S. 255, 263 (1989); Braun v.
Powell, 227 F.3d 908, 912 (7th Cir.
2000); Jenkins v. Nelson, 157 F.3d 485,
491 (7th Cir. 1998). Although the Harris
presumption applies only "when it fairly
appears that [the] state court judgment
rested primarily on federal law or was
interwoven with federal law," Coleman v.
Thompson, 501 U.S. 722, 739 (1991), we
find that that is the situation here.
Given Newell’s allegations that the state
concealed evidence necessary to his
claims, it does not "fairly appear" to us
that the Indiana appellate court’s
decision was based on a procedural bar.
See Indiana Post-Conviction Rule 1(8)
(any ground for relief not raised in
original post-conviction petition is
waived and may not be the basis for a
subsequent petition "unless the court
finds a ground for relief asserted which
for sufficient reason was not asserted or
was inadequately raised in the original
petition"). Indeed, before realizing that
Newell had failed to request leave to
file his successive petition, the Indiana
trial court had allowed that petition to
proceed to an evidentiary hearing,
suggesting that at least one state court
did not view Newell’s claims to be
procedurally barred./2 Because we
therefore have "good reason to question
whether there is an independent and
adequate state ground for the decision,"
Coleman, 501 U.S. at 739, the Harris
presumption applies, and procedural
default does not bar federal review of
Newell’s claims. See Fama, 235 F.3d at
810-11 (state court’s reliance on local
law was not clear from decision stating
that defendant’s claims were "either
unpreserved for appellate review or
without merit"); Jones v. Stinson, 229
F.3d 112, 118 (2d Cir. 2000) (no default
where, although state court set forth
factual predicate for finding waiver, it
did not clearly state its intention to
rely upon that ground); Wilkinson v.
Cowan, 231 F.3d 347, 352 (7th Cir. 2000)
(by stating that it was affirming
dismissal of post-conviction petition
"after careful review," state court
rendered merits judgment as to each claim
raised in that petition even if it did
not identify or discuss individual
claims); Thomas v. Davis, 192 F.3d 445,
453-54 (4th Cir. 1999) (no default where
there was no indication of how state
court disposed of claim other than its
general announcement that the judgment
below had been "reversed"); Kappos v.
Hanks, 54 F.3d 365, 370 (7th Cir. 1995)
(no default where state court discussed
waiver principles but then proceeded to
address merits).

C.   Merits

  In a last-ditch effort, the state argues
that, even if Newell’s claims are timely
and are not defaulted, they are otherwise
without merit. Specifically, the state
contends that

Even if the State had entered into . . .
agreements with Wells and Foote, neither
Wells nor Foote testified at trial.
Newell fails to point to any Supreme
Court case to support his assertion that
the state’s agreement with person [sic]
who does not testify at trial is material
evidence. Such evidence would be relevant
only to show Wells’s and Foote’s bias.
Because neither testified, their
credibility was not at issue, and it
cannot be said that such evidence was
material to Newell’s guilt.

This argument is circular. In essence the
state contends that it can deny a
defendant the benefit of favorable
witness testimony and later use the
absence of that testimony as the reason
why there was no constitutional
violation.

  The district court also believed that
Newell was not entitled to relief on the
merits, specifically because "the
decisions of the Indiana Court of
Appeals--and principally its decision
affirming the trial court’s denial of
Newell’s [first] petition for post-
conviction relief . . . reasonably
applies the law and principles applicable
to Newell’s claims as established by the
Supreme Court of the United States." But
whether the Indiana Court of Appeals was
correct to affirm the denial of Newell’s
first post-conviction petition is not
relevant--it was not until his second
post-conviction proceeding that Newell
raised the claims he raises here.
  Contrary to the state’s assertions,
Newell has at least two colorable Brady
arguments: that the state failed to
disclose Wells’s pretrial statements
exonerating Newell and failed to disclose
evidence of Wells’s cooperation
agreement. The state’s case depended
almost entirely on officer McGee’s
testimony that Wells told him that he got
the cocaine from Newell. Had Wells
testified that he did not make that
statement and that the cocaine was not
even Newell’s, the state would have been
left with only the phone conversation to
link Newell to the charged transaction
(assuming Wells would have been found
credible). Thus, if Newell can prove his
allegations, we believe that he might
also be able to show a reasonable
probability that the result of his trial
would have been different if the
suppressed evidence had been disclosed,
which makes that evidence material for
Brady purposes. See Giglio v. United
States, 405 U.S. 150, 154-55 (1972)
(evidence of government’s cooperation
agreement with witness was material under
Brady where government’s case depended
almost entirely on that witness’s
testimony); Crivens, 172 F.3d at 996-99
(state violated Brady by failing to
provide criminal records of witness whose
testimony formed "heart" of state’s
case); Chavis v. North Carolina, 637 F.2d
213, 223 (4th Cir. 1980) (state violated
Brady by failing to disclose pretrial
statement of key state witness that
contained crucial impeachment material).

  Newell may also be able to establish a
due process claim based on state
interference with defense access
(sometimes couched as a Sixth Amendment
right to compulsory process). It is well-
settled that substantial government
interference with a defense witness’s
free and unhampered choice to testify
violates the defendant’s due process
rights. E.g., United States v. Vavages,
151 F.3d 1185, 1191 (9th Cir. 1998)
(prosecutor threatened to withdraw
witness’s plea agreement in her own
unrelated criminal prosecution if she
testified in support of defendant’s
alibi); Freeman v. Georgia, 599 F.2d 65,
69 (5th Cir. 1979) (police detective
concealed whereabouts of witness);
Lockett v. Blackburn, 571 F.2d 309, 314
(5th Cir. 1978) (prosecutor sent
witnesses out of state before trial);
United States v. Morrison, 535 F.2d 223,
225-28 (3d Cir. 1976) (prosecutor
repeatedly warned and intimidated
prospective defense witness about
possibility of perjury charges if she
testified falsely); see also Webb v.
Texas, 409 U.S. 95 (1972) (state trial
judge intimidated sole defense witness
about possibility of perjury charges).
Here, by offering to dismiss the cocaine
charge pending against Wells if he did
not testify in Newell’s defense, the
prosecutor effectively hampered Wells’s
free choice to testify at trial and
thereby infringed Newell’s right to have
Wells give evidence in his favor. And
Wells’s absence at trial might have been
material to the defense for the same
reasons discussed above in the Brady
analysis.

  Newell’s allegations regarding Foote
present a harder case. Potentially,
Newell could have a viable claim under
Webb and its supporting cases: that the
state violated his due process rights by
deliberately concealing Foote’s
whereabouts and sending him out of the
state before trial. But Newell has failed
to show how Foote’s absence at trial
prejudiced him in any way. That failure,
however, could be due to the fact that
the district court’s conclusion regarding
timeliness prevented Newell from
developing the factual bases of his
claims.

  In such circumstances the appropriate
step is to remand the case for further
proceedings (including an evidentiary
hearing, if necessary) so that the
district court can determine the merits
of Newell’s claims in the first instance.
See Rice v. Bowen, 264 F.3d 698, 702 (7th
Cir. 2001) ("Because the district court’s
conclusion with respect to timeliness had
the effect of cutting off further
development of the record and issues
there . . . the proper step is to remand
the case to that court for further
proceedings."); see also Lockett, 571
F.2d at 314 (finding due process
violation where state made witnesses
unavailable to testify and remanding for
district court to determine whether their
unavailability was prejudicial to
defendant). We note that sec. 2254(e)(2),
which circumscribes a federal court’s
ability to hold an evidentiary hearing if
the petitioner has "failed" to develop
the factual record in state court, does
not apply here because Newell’s claims
went undeveloped through no fault of his
own. Williams v. Taylor, 529 U.S. 420,
434-35 (2000) (opening clause of sec.
2254(e)(2) does not apply where claim was
undeveloped in state court because
prosecution concealed facts); Burris v.
Parke, 116 F.3d 256, 258-59 (7th Cir.
1997) ("To be attributable to a ’failure’
under federal law the deficiency in the
record must reflect something the
petitioner did or omitted. . . . [W]e
think that the word ’fail’ cannot bear a
strict-liability reading, under which a
federal court would disregard the reason
for the shortcomings of the record.").
III. Conclusion

  Accordingly, the judgment of the
district court is VACATED, and the case is
REMANDED for further proceedings
consistent with this opinion.

FOOTNOTES

/1 After he was released on bond on the cocaine
charge, Wells was arrested on new charges of
burglary and possession of stolen property. The
six-year sentence he received was for those new
charges, both Class C felonies; the cocaine
charge, a Class A felony, was dismissed. Wells
testified in his May 1996 deposition that Hoef-
ling was the prosecuting attorney at his sentenc-
ing hearing.

/2 The trial court did not issue a written decision
regarding Newell’s successive post-conviction
petition. This case therefore does not fall
within the ambit of Ylst v. Nunnemaker, 501 U.S.
797 (1991), in which the Supreme Court held that,
if there is a reasoned decision by a lower state
court clearly denying a petition on procedural
grounds, a subsequent ambiguous order of affir-
mance by the state supreme court will not lift
the procedural bar.
