                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1002
                                     ___________

Duane Thiel,                          *
                                      *
           Petitioner-Appellant,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of North Dakota.
Timothy Schuetzle,                    *
                                      *
           Respondent-Appellee.       *
                                 ___________

                              Submitted: October 20, 1999

                                   Filed: December 21, 1999
                                    ___________

Before WOLLMAN, Chief Judge, LAY, and LOKEN, Circuit Judges.
                             ___________

LAY, Circuit Judge.

       Duane Thiel (Thiel) was convicted by a jury for the murder of his brother,
Warren Thiel (Warren), and was sentenced to fifteen years minus 249 days for time
served at the North Dakota State Penitentiary. The Supreme Court of North Dakota
affirmed his conviction in State v. Thiel, 515 N.W.2d 186 (N.D. 1994). Thiel
petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, arguing
insufficiency of the evidence and alleging a due process violation based on alleged
perjury by one of the State’s witnesses, Michael Hunter (Hunter). Pursuant to the
magistrate judge’s1 recommendation, the district court2 denied the petition. Finding the
remaining evidence to be sufficient, the district court gave “little or no weight” to
Hunter’s testimony and held that, even if Hunter lied on the stand, there was not a
reasonable likelihood that it affected the outcome of the trial because his character was
effectively impeached.

       This court granted a certificate of appealability on the issue of the sufficiency of
the evidence. In this appeal, Thiel emphasizes comments made by the Assistant State’s
Attorney for Morton County, North Dakota, which suggest that Hunter’s testimony was
indispensable to the prosecution’s case because the rest of the evidence against Thiel
was circumstantial and less probative of guilt.3 Thiel contends that these statements,
along with the district court’s rejection of Hunter’s testimony and the alleged weakness
of the remaining evidence, require a finding that the evidence against him was
insufficient to support his conviction.

       Under the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d)(1)-(2) (Supp. 1999) (AEDPA), this court is restrained from granting a habeas
petition unless the adjudication “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court . . .” or “resulted in a decision that was based on an unreasonable


      1
       The Honorable Dwight C. H. Kautzmann, United States Magistrate Judge for
the District of North Dakota, presiding.
      2
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota, presiding.
      3
        These statements are found in the “Government’s Substantial Assistance Motion
and Sentencing Recommendation” submitted in support of a sentencing reduction for
Hunter in an unrelated case in the State of Washington. The crux of the motion was
that because Hunter was instrumental in Thiel’s conviction, he [Hunter] was entitled
to a sentence below the otherwise appropriate guideline range.
                                            -2-
determination of the facts in light of the evidence presented in the State court
proceeding.” Prior to the passage of the AEDPA, the standard of review for sufficiency
of the evidence in a habeas proceeding was “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). Under either standard, we find the evidence offered at trial was
sufficient to uphold Thiel’s conviction. Warren’s body was found covered with a
blanket, which was circumstantial evidence that the murderer was a family member or
friend. (Trial Tr. 86, 137, 183.) Thiel asked officers on the scene of the crime “who
shot my brother?” before the police had released the fact that Warren was shot. (Trial
Tr. 147, 170-71.) Thiel told an acquaintance in a bar that his brother was shot twice
three days before the police or coroner had made that determination.4 (Trial Tr. 501-
05.) He also told the medical liaison officer at the Morton County Correctional Center
“there is more going on than you know,” and “I ain’t the only one.” (Trial Tr. 442.)
Moreover, upon discovering that his brother was dead, Thiel reportedly showed no
remorse and started laying claim to his brother’s possessions shortly thereafter. (Trial
Tr. 93, 210.) Finally, after his detainment, Thiel reportedly confessed to the crime to
his cellmate, Michael Hunter. Hunter testified to this at trial. (Trial Tr. 356.)

       On appeal, Thiel argues, based on the district court’s rejection of Hunter’s
testimony, that Hunter perjured himself, and he asks this court to assume the same.
Thiel bases the assumption of perjury on the thorough impeachment of Hunter by his
prior record. Nevertheless, there was no finding by any court considering Thiel’s case
that Hunter lied on the stand. Hunter’s testimony regarding Thiel’s jailhouse
confession, along with impeachment testimony regarding Hunter’s prior criminal
record, was submitted to the jury, and the weight the jury gave to that evidence is


      4
       Warren was shot once in the head and once in the chest. However, the police
did not detect the chest wound until after the autopsy because of the profuse amount
of blood from the head wound. (Trial Tr. 228-29.)
                                          -3-
inherent in its verdict. As such, the federal district court was in error in giving little or
no weight to Hunter’s testimony. See Haymon v. Higgins, 846 F.2d 1145, 1147 n.4
(8th Cir. 1988) (rejecting insufficiency of the evidence claim based on inconsistencies
in testimony offered to jury, and stating that “[i]t is not the function of the reviewing
federal court to reweigh the evidence or determine questions of credibility”).
Seemingly, the district court assumed that Hunter lied but determined there was
sufficient evidence to convict Thiel independent of Hunter’s testimony. However, since
there was no finding by either the state trial or state appellate courts that Hunter’s
testimony was perjured as a matter of law, the district court lacks the authority to
assume such. Even a felon can tell the truth, and notwithstanding his impeachment, it
was for the trier of fact to determine whether his testimony was credible or not. The
North Dakota Supreme Court properly considered Hunter’s testimony, and we must
do the same in determining the sufficiency of evidence.

       The thrust of Thiel’s claim in this appeal is that the State should have disclosed
that Hunter would be given a reduction in sentence in exchange for testifying so that
Hunter could be further impeached. First, we note that this issue was not certified for
appeal. The only issue certified for appeal related to the sufficiency of the evidence.
Regardless, even if one could argue that Hunter’s impeachment was intertwined with
the sufficiency of the evidence, we would reject the claim. The prosecutor in North
Dakota neither promised nor delivered assistance with Hunter’s charges in Washington.
Similarly, the prosecutor had no duty to examine Hunter about any agreement he might
have with authorities in Washington. Any understanding between Hunter and the State
of Washington was collateral to the case at hand since there was no showing by Thiel
that the prosecutor had any involvement in the agreement. “While the government may
not turn a blind eye to doubts about the veracity of testimony presented by its
witnesses, there is no obligation to investigate every collateral matter raised by a
witness’s trial testimony.” English v. United States, 998 F.2d 609, 611 (8th Cir. 1993).
There is nothing in the present record that shows that the North Dakota prosecutor


                                             -4-
made a “deal” with Hunter before or after Thiel’s trial.5 Moreover, Thiel made no
attempt to inquire of the Washington authorities as to any negotiated plea bargain with
Hunter, despite the fact that the record shows both the prosecutor and defense counsel
knew of the Washington charges when Hunter was deposed before trial.6


      5
        Hunter pled guilty to the Washington charges approximately nine days after
testifying at Thiel’s trial. The government’s motion for reduction of the Washington
sentence was filed less than two months later. The assistant prosecutor’s statements
were received by the Washington authorities in the interim.
      6
      At Thiel’s trial, Hunter was cross-examined by Thiel’s attorney concerning the
Washington charges:

      Q. So you got on the streets here in North Dakota and you go back
      toWashington. What is the first thing you do? You make threats against
      a judge and prosecutor. That is an allegation that has yet to be proven?

      A. No, but it’s going to be no plea of guilty involved.

      Q. They’re going to drop it?

      A. That’s right.

      Q. We are supposed to take your word for it that you are not getting any
      assistance out there because of your testimony here?

      A. Federal authorities don’t care.

      Q. How about the federal authorities there? They’re just going to drop
      this threat against a judge and prosecutor for no reason?

      A. Because they don’t want to prosecute me.

      Q. Why?

      A. They don’t have a valid case as far as I am concerned.
                                           -5-
       While we agree that the jury witnessed a severe attack on Hunter’s character
during trial, and the attack negatively affected the value of his testimony, we cannot
dismiss Hunter’s testimony altogether. Thiel’s examination of Hunter regarding the
alleged negotiated deal in Washington merely added further grounds for impeachment.
See United States v. Saulter, 60 F.3d 270, 274-75 (7th Cir. 1995) (rejecting argument
that evidence was insufficient because it rested so heavily on severely impeached
witnesses); United States ex rel. Henderson v. Hardy-Hall, No. 95-C-0486, 1995 WL
387823, at *3 (N.D. Ill. June 28, 1995) (mem.) (rejecting challenge to sufficiency of
evidence based on inconsistencies between witness’ testimony and undisputed facts);
Rahman v. Reid, No. 85 Civ. 188, 1986 WL 10489, at *5 (S.D.N.Y. Sept. 12, 1986)
(rejecting challenge to sufficiency of the evidence based on inconsistencies in trial
testimony and noting that the inconsistencies were brought to the jury’s attention and
effectively acted as impeachment evidence). Thus, we find, as did the state and federal
courts that reviewed this issue before us, that another allegation of untruthfulness on
the part of Hunter would not have resulted in an acquittal for Thiel.

      In conclusion, based on the overall record, which includes Hunter’s testimony,
we find no constitutional error. Judgment AFFIRMED.




      Q. There has never been a valid case against you, has there been?

      A. There has been.

      Q. You have appealed everything you have ever had?

      A. Yah.

(Trial Tr. 370-71.)
                                          -6-
A true copy.

Attest:

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




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