                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 00-1407
                                    ___________

Tyrone Barnes,                           *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
David Dormire,                           *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 14, 2001

                                   Filed: May 31, 2001
                                    ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.

      Tyrone Barnes appeals from the district court’s1 denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We affirm.




      1
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
                                             I.

       Barnes was charged in June of 1991 with four counts of selling a controlled
substance. He filed a pretrial motion for the disclosure of the identity of the
confidential informant who had facilitated the sales of crack cocaine to two undercover
detectives that led to the drug charges. In support of the motion, Barnes argued that
he sought the identity of the confidential informant in order to contact him in support
of Barnes’s mistaken identity defense. In response to the motion, the State reported
that the informant was unavailable, having left the area after receiving threats from
unidentified individuals. The trial court denied the motion. At trial, Barnes highlighted
inconsistencies in the two detectives’ identifications of him and presented the testimony
of various witnesses who described Barnes’s personal appearance during the relevant
time, as well as his own testimony that a cousin had used Barnes’s name when selling
drugs.

       In December of 1991, Barnes was convicted by a Missouri jury on all four
counts and was subsequently sentenced as a prior offender to four consecutive fifteen-
year terms of imprisonment. Thereafter, the Missouri Court of Appeals issued an
unpublished memorandum affirming Barnes’s consolidated appeals from his conviction
and from the denial of his motion for post-conviction relief.

       Barnes’s petition for writ of habeas corpus alleged that the denial of the motion
for disclosure denied him the right to a fair trial. Following the district court’s denial
of the petition, we granted a certificate of appealability on the question whether the trial
court erred in denying the motion to disclose the identity of the informant.

                                            II.

       A federal court may issue a writ of habeas corpus under section 2254 only if the
state court’s adjudication of the claim “resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or . . . resulted in a decision that was based
on an unreasonable determination of the facts . . . . ” 28 U.S.C. § 2254(d). We must
affirm unless the state court’s application of Supreme Court precedent was “objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). We may not issue a
writ simply because we conclude that the state court decision constituted an erroneous
or incorrect application of the law. Id. at 411.

       Citing state cases that relied upon and engaged in the analysis outlined by
Roviaro v. United States, 353 U.S. 53 (1957), and its progeny, see, e.g., State v. Hall,
761 S.W.2d 691, 693-94 (Mo. Ct. App. 1988); State v. Yates, 442 S.W.2d 21, 25-26
(Mo. 1969), the Missouri Court of Appeals concluded that the state trial court did not
abuse its discretion in determining that the nondisclosure did not deny Barnes a fair
trial.

       In Roviaro, the Supreme Court considered the claims of a defendant who had
repeatedly requested the identity of an informant who had taken a material part in the
drug transaction for which the defendant was convicted and whose identity the
government had refused to disclose. Roviaro, 353 U.S. at 55. The Court noted that the
government is privileged to withhold the identity of informants to further and protect
the public interest in effective law enforcement. Id. at 59. This privilege is not without
its limits, however, for “[w]here the disclosure of an informer’s identity, or of the
contents of his communication, is relevant and helpful to the defense of an accused, or
is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-
61. Because “no fixed rule with respect to disclosure is justifiable,” the decision to
order disclosure varies with the particular circumstances of each case. Id. at 62.

       A defendant bears the burden of demonstrating that the disclosure of an
informant’s identity “is material to the outcome of his case; in other words, that
disclosure is vital to ensure a fair trial.” United States v. Gonzalez-Rodriguez, 239

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F.3d 948, 951 (8th Cir. 2001); United States v. Harrington, 951 F.2d 876, 878 (8th Cir.
1991) (“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.”) (alteration and citation omitted). The trial court should weigh all relevant
factors, including the crime charged, potential defenses, and the possible significance
of the informant’s testimony. United States v. Fairchild, 122 F.3d 605, 609 (8th Cir.
1997). Once a defendant shows that an informant is a material witness, the government
has a duty to make every reasonable effort to make that informant available to the
defendant to interview or use as a witness. United States v. Padilla, 869 F.2d 372, 376
(8th Cir. 1989).

       The Missouri Court of Appeals examined and balanced a number of factors,
including the State’s need to protect the informant, whose life had been threatened and
who was unavailable to either party; the informant’s possible testimony regarding
Barnes’s mistaken identity defense, which was undercut by his sister’s testimony that
his cousin did not look like Barnes; the informant’s role as an arranger who was
uninvolved in the actual transactions; and the testimony and in-court identifications of
the detectives who were involved in the drug transactions. After weighing these
factors, the court concluded that the disclosure of the informant’s identity was
immaterial and unnecessary.

        Barnes argues that the identity of the informant was highly material to his
defense because the two detectives’ descriptions of the seller as they remembered him
during the sales did not match Barnes’s actual physical characteristics and were thus
inconsistent with the detectives’ in-court identifications of Barnes as the seller. Barnes
also contends that he had an alibi for at least one of the transactions and recounts his
trial testimony that his cousin had used his name when conducting drug transactions.
Barnes asserts that the informant was therefore a crucial witness who could either
support or refute what Barnes characterizes as the detectives’ shaky identification.


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       Although the confidential informant was present during several of the
transactions, he acted only as a facilitator, introducing the detectives to Barnes, and did
not handle any of the money or drugs or become involved in the negotiations. Unlike
the situation in Devose v. Norris, 53 F.3d 201, 206 (8th Cir. 1995), in which the
officer’s testimony regarding his identification of the defendant was “‘fraught with
inconsistencies,’” both detectives identified Barnes as the seller, outlined the
transactions in detail, and described how they had spent a significant amount of time
during the transactions in good light observing Barnes at close range. Barnes’s defense
had already been seriously damaged by his sister’s testimony that he and his drug-
selling cousin were not similar in appearance. Accordingly, we cannot say that the
state court’s determination that the nondisclosure of the informant’s identity did not
deny Barnes a fair trial was objectively unreasonable, and thus the district court did not
err in denying the petition.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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