     Case: 17-30421    Document: 00514527089     Page: 1   Date Filed: 06/25/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                  No. 17-30421                      June 25, 2018
                                                                   Lyle W. Cayce
JOHN DAVID FLOYD,                                                       Clerk


              Petitioner - Appellee

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellant



                 Appeal from the United States District Court
                    for the Eastern District of Louisiana


                ON PETITION FOR REHEARING EN BANC

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:
      Appellant’s Petition for Rehearing En Banc is DENIED. This opinion is
substituted in place of the prior opinion, Floyd v. Vannoy, 887 F.3d 214 (5th
Cir. 2018).
      For two murders in New Orleans, Louisiana, in 1980, within days of, and
in close proximity to, each other and involving extremely similar facts, John
David Floyd was convicted in a state-court joint bench trial of the first, but
acquitted of the second, murder, with state post-conviction relief’s being denied
for the first time in 2011, but federal habeas relief’s being granted in 2017
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                                 No. 17-30421
because, after concluding the habeas application was not time-barred, the
district court concluded:   material evidence, favorable to Floyd, had been
withheld prior to trial; and the state courts’ contrary decisions had
unreasonably applied clearly-established federal law, as proscribed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). For the
State’s challenge to that relief, at issue is whether: Floyd established “actual
innocence” to overcome the statute of limitations for his application; and, in
denying Floyd’s claim that the State withheld favorable, material evidence, in
violation of Brady v. Maryland, 373 U.S. 83 (1963), the Louisiana state courts
unreasonably applied clearly-established federal law. AFFIRMED.
                                       I.
      On 26 November 1980, William Hines, a white male, was found nude,
stabbed to death inside the bedroom of his apartment on Governor Nicholls
Street, in the French Quarter. The apartment had no signs of forced entry or
evidence of burglary. One glass of alcohol was in Hines’ bedroom; another, in
his kitchen; and his wounds indicated he was stabbed while lying down.
      Detective   John   Dillmann,    the   lead    detective   for   the   murder
investigation, found the scene demonstrated a strong likelihood Hines was
murdered by a welcome visitor with whom he shared a drink and had sexual
relations. Accordingly, police dusted for fingerprints whiskey bottles, the glass
of alcohol in Hines’ kitchen, and the glass of alcohol on his nightstand.
      Along that line, a crime-scene photograph of Hines’ kitchen shows,
among other items, a wine bottle and two whiskey bottles on the kitchen table.
In addition, the crime-scene technician’s report states:
            TECH. T. SEUZENEAN DUSTED
            SEVERAL WHISKEY BOTTLES - Neg. RESULTS
                 DUSTED / - WHISKEY BOTTLE AND
            LIFTED – 2 PARTIAL LATENT PRINTS
                 DUSTED / - WHISKEY GLASS FROM

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             NIGHT TABLE IN BEDROOM - Neg. RESULTS
                 DUSTED / - WHISKEY GLASS FROM
             KITCHEN TABLE - Neg. RESULTS


      Accordingly, it appears the “DUSTED. . .WHISKEY GLASS FROM
KITCHEN TABLE”, but not shown in the photograph, was on the table where
the dusted whiskey bottles were located. (To repeat, and as emphasized by the
dissent at 5, no whiskey glass is visible on the table in the photograph. Myriad
items shown on the table prevent conclusively determining whether a whiskey
glass was there.       But, as shown above, the technician’s report states:
“DUSTED / - WHISKEY GLASS FROM KITCHEN TABLE”.)
      In any event, the relatively close proximity of the whiskey glass and the
dusted whiskey bottle from which two prints were lifted (the whiskey bottle) is
critical in our analysis.      This is especially true for Detective Dillmann’s
erroneous related testimony at trial, in which he: stated “there were two
highball glasses filled with a liquid on each side of the bed”; and made no
reference to the whiskey glass in the kitchen.
      Along that line, the dissent at 5 states “the majority has decided, because
it fits its narrative, to credit the tech over Dillmann”. The dissent’s conclusion
that the detective’s testimony and the technician’s report have comparable
credibility is contrary to the State’s narrative, not ours. The State, in its
opening brief at 16, acknowledges that the detective’s testimony about the
glasses, “rendered for the first time a full year and a half after the crime, [and]
directly contradicted by Crime Scene Tech Tim Suzeneau’s report”, is less
credible than the technician’s report. Likewise, at oral argument in our court,
the State maintained the technician’s report, “generated on the day of the
offense”, was more accurate than the detective’s testimony, “recollected at trial
. . . a little over a year after the incident”.

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      In the alternative, the dissent at 5 asserts a possibility the detective’s
testimony and contradictory technician’s report were both accurate because
there may have been one glass in the kitchen and two in the bedroom. But,
nothing in the record supports this theory of three whiskey glasses being
discovered at the Hines scene.
      In sum, in its opening brief and at oral argument, the State maintained
the crime scene technician’s report included a detailed list of all collected
evidence. Again, the report included only two whiskey glasses: one from the
kitchen and one from the bedroom.
      Police also collected hair, appearing to be a black person’s, from Hines’
bedsheets. But, because Hines had been dead for at least 24 hours prior to his
body’s being discovered, any evidence of seminal fluid or spermatozoa on, or in,
his body was undetectable.
      Following multiple interviews, Detective Dillmann learned Hines was
gay and frequented gay establishments in the French Quarter.              And, the
detective’s report, and subsequent testimony, provided that John Clegg, a close
friend of Hines and the last known person to see him alive, had advised the
detective that Hines “frequently had sexual relations with both black and
white males”.
      At 4:45 a.m. on 28 November, only two days after the discovery of Hines’
body, Rodney Robinson, a black male, was found dead at the Fairmont
Roosevelt Hotel in downtown New Orleans, just one mile from Hines’
apartment. In the hours preceding his death, Robinson had visited several
bars with his friend David Hennessy. After Robinson, according to Hennessy,
drove him to his home at around 3:15 a.m., Robinson said he was returning to
his hotel for the night. Just 90 minutes later, he was found nude, stabbed to
death, in a hallway in his hotel.


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                                 No. 17-30421
      In their investigation, officers found the locks on Robinson’s hotel-room
door functional; glasses containing alcohol remained on end tables next to his
bed; and articles of clothing were scattered about the room. Consequently, they
believed Robinson was murdered after sharing a drink and having sexual
relations with his killer. Detectives’ interview of Hennessey revealed Robinson
was gay.
      Police discovered physical evidence of: blood stains along the hallway
wall; a blood-stained blue-knit cap in the hallway relatively near Robinson’s
body; seminal fluid on a tissue discovered near his bed; and spermatozoa and
seminal fluid in his body. Additionally, police discovered a black person’s
hair—determined later not to be Robinson’s—on the blue-knit cap. Further,
hotel guests staying nearest Robinson’s room reported hearing screams and
rapid footsteps in the hallway; and a hotel security guard reported seeing a
black male running from the back door of the hotel shortly before the police
arrived. Detective Michael Rice, lead detective for the murder investigation,
believed the guard “witnessed the perpetrator . . . making good his escape”.
      Detective Dillmann considered the similarities in the Hines and
Robinson crimes—comparable defensive wounds, lack of forced entry, each
victim’s being gay, glasses of alcohol near each victim’s bed (again, for Hines’
murder, only one glass was near his bed; the other was in the kitchen, as was
the whiskey bottle), and evidence of sexual relations between the perpetrator
and victim—to conclude the same perpetrator was responsible for both
murders. Initially, investigators unsuccessfully pursued black, male suspects.
John Floyd, a white male, then 32, lived as a “drifter” in New Orleans at the
time of the murders. He was a heavy drinker and drug-user, and frequented
numerous bars in the French Quarter. On 29 November, one day after the
discovery of Robinson’s body, Detective Dillmann received a tip from Harold


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                                 No. 17-30421
Griffin that Floyd had recently made incriminating statements linking him to
Robinson’s murder.
      Griffin reported that, after drinking with Floyd at the Louisiana
Purchase Bar from 10:00 p.m. on 28 November (approximately 17 hours after
Robinson’s body was found) until 5:00 a.m. the next day, 29 November, Floyd
asked Griffin to accompany him to the detoxification center at Charity
Hospital. Griffin testified that, during their walk to the hospital, Floyd told
him “he heard that perhaps going to the Detox Center would be the next best
thing to keep from being held accountable for doing something wrong”; Floyd
then asked Griffin if he had “heard of the stabbing at the Fairmont”; and he
replied “No”.
      Later that day, Griffin learned of Robinson’s murder as covered in the 29
November morning edition of the Times Picayune, and reported his
conversation with Floyd to the New Orleans Police Department (NOPD),
finding it peculiar Floyd knew of the murder prior to the paper’s publication.
But, the paper had published a story on Robinson’s murder in its 28 November
evening edition, prior to Floyd’s statements to Griffin on the 29th.
      Following up on Griffin’s tip, Detective Dillmann questioned French
Quarter bar owner Steven Edwards, who advised that Floyd made
incriminating statements linking him to Hines’ murder.            According to
Edwards, in late November he encountered Floyd “drinking heavily” and
refused him service at the Mississippi River Bottom bar. Edwards testified:
he told Floyd, “you know you are barred from the f…ing bar”; Floyd then
threatened, “[d]on’t come f…ing with me.        I already wasted one person”;
Edwards asked, “Who? Bill Hines?”; and Floyd replied, “Yeah, on Governor
Nichol[l]s”.
      Based on these statements to Griffin and Edwards, Floyd was made a
suspect in the two murders. After receiving a positive identification from both
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                                 No. 17-30421
Griffin and Edwards, Detective Dillmann and a NOPD officer found Floyd
drinking at the Louisiana Purchase Bar. They purchased Floyd at least one
drink before arresting and transporting him to NOPD’s homicide office.
      There, Detective Dillmann began interrogating Floyd. He testified Floyd
initially denied any involvement in the two murders, but, within 30 minutes,
became very emotional about his drinking and drug-use, and confessed
verbally to killing Hines and Robinson.
      Following Floyd’s admissions, the detective called Detective Rice, and
they procured Floyd’s signed confessions to both murders. Detective Rice
witnessed Detective Dillmann take the Hines confession, and Detective
Dillmann did the same for Detective Rice’s taking the Robinson confession.
The confessions were taken on the evening of 19 January 1981, and had
markedly similar descriptions such as: drinking and having sexual relations
with the victims before fatally stabbing them in response to each man’s
wanting to “f… [him]”.
      Indicted on two counts of second-degree murder, Floyd waived his right
to a jury trial, and proceeded to a joint bench trial in Orleans Parish Criminal
District Court, maintaining a defense of third-party guilt.     For the Hines
murder the State presented: Floyd’s confession to murdering Hines; Detective
Dillmann’s testimony that the confession was credible; and Edwards’
testimony regarding Floyd’s threats to him. For the Robinson murder, the
State presented: Floyd’s confession to murdering Robinson; Detective Rice’s
testimony related to Floyd’s Robinson confession; Griffin’s testimony regarding
Floyd’s statements to him; and testimony by Byron Reed, Floyd’s acquaintance
and former sexual partner, that Floyd made an incriminating statement about
the Robinson murder to him.
      For the Hines charge, the defense presented NOPD criminalist Daniel
Waguespack’s testimony that Floyd was excluded from the blood and hair
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                                 No. 17-30421
discovered at Hines’ residence. (The hair from the Hines scene has since been
lost, preventing DNA testing.     It appears this was part of the evidence
destroyed during Hurricane Katrina in 2005, after Detective Dillmann took the
police files to use in writing a book about, inter alia, the investigation, as
discussed infra.) For the Robinson charge, the defense presented: NOPD
criminalist Alan Sison’s testimony, discussed infra, that the blood and seminal
fluid from the Robinson scene were not attributable to Floyd; testimony from
Patricia Daniels, the Parish of Orleans coroner’s office’s medical technologist,
that Floyd was excluded from all seminal fluid discovered in Robinson’s body;
and the Fairmont’s security guard’s testimony that she repeatedly attempted
to report seeing a black male running from the hotel on the night of the murder.
For both charges, the defense presented: Floyd’s testimony his confessions
were untrue and a result of Detective Dillmann’s “beating” him during the
interrogation; and testimony by Dr. Marvin Miller about Floyd’s susceptibility
to coercion.
      In short, the State did not present any physical evidence linking Floyd
to Hines’ murder. Rather, Detective Dillmann testified the evidence of the
glasses of whiskey discovered in Hines’ apartment (as discussed supra, the
detective erroneously testified the glasses were discovered “on each side of the
bed”; instead, the crime-scene technician’s report demonstrates one glass was
found in the kitchen, where the whiskey bottle was located, and one glass was
found in the bedroom), the placement of clothing in his residence, and the
position of Hines’ body corroborated “perfectly” the descriptions in Floyd’s
confession, and supported its credibility. For example, the detective testified:
Floyd’s statement in his confession that “[w]e were both drinking” was
consistent with the fact that investigators “found two drinking glasses in the
bedroom of the apartment”; and Floyd’s descriptions in his confession of Hines’


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                                  No. 17-30421
falling “on the floor next to the bed” after he stabbed him, corroborated the
“position of the body where it fell off the bed”.
      And, as noted, Edwards testified about Floyd’s incriminatory threats to
him. The trial judge found Floyd’s incriminating statements, including in his
confession, sufficient to support his guilt for Hines’ murder, and convicted him
of second-degree murder.
      Analogous to the Hines charge, the State did not present any physical
evidence linking Floyd to Robinson’s murder. To support his guilt, the State
presented evidence of Floyd’s confession, and of the incriminating statements
linking him to that murder.
      The defense presented physical evidence to contradict Floyd’s confession
to murdering Robinson after sexual relations. NOPD Criminalist Alan Sison
testified the seminal fluid discovered in Robinson’s hotel room was attributable
to an individual with type-A blood; medical technologist Daniels, the seminal
fluid found in Robinson’s body was also attributable to an individual with type-
A blood. Floyd, however, has type-B blood; Robinson had type-O. Further,
Sison testified the black person’s hair discovered in the blue-knit cap, found in
the hallway relatively near Robinson’s body, was “dissimilar” to Floyd’s long
blonde hair.
      Obviously, there was more exculpatory evidence to present for
Robinson’s murder than for Hines’, in part because Hines’ body was not
discovered until at least 24 hours after his death.                Although Floyd
contemporaneously confessed to murdering Hines and Robinson, and
investigators presumed the same perpetrator committed both crimes, the trial
judge found Floyd’s confession and alleged incriminating statements
insufficient to support his guilt for the Robinson murder.
      After Floyd was found guilty of Hines’ murder, but simultaneously
acquitted of Robinson’s, he was sentenced to life imprisonment without parole.
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                                  No. 17-30421
The Supreme Court of Louisiana affirmed his conviction and sentence. State
v. Floyd, 435 So. 2d 992 (La. 1983).
       From 1983 until 2006, Floyd wrote numerous letters to individuals and
organizations, asserting his innocence. In 2006, 23 years after his conviction
was affirmed by the Supreme Court of Louisiana, the Innocence Project of New
Orleans (IPNO) assisted Floyd in filing his first state-court application for post-
conviction relief. It was supported by newly-discovered evidence, including:
pre-trial fingerprint-comparison results from the Hines scene marked “NOT
JOHN FLOYD” and “NOT VICTIM”; pre-trial fingerprint-comparison results
from the Robinson scene listed “NOT DAVID HENNESSEY”, “NOT VICTIM”,
and “NOT JOHN FLOYD”; post-trial DNA-test results from hair discovered at
that   scene;   Clegg’s   post-trial   affidavit,   stating    Detective   Dillmann
misrepresented Clegg’s pre-trial statement that Hines had a distinct sexual
preference for black males (the Clegg statement); Detective Dillmann’s post-
conviction statements, including the statement in his 1989 book, Blood
Warning: The True Story of the New Orleans Slasher, that he showed Floyd
“two of the grisliest shots” in an attempt to “crack him”; evidence of the
detective’s subsequent mistreatment of suspects; and Floyd’s I.Q. score of 59,
discovered through tests not existing at the time of trial.
       In 2010, the Criminal District Court for the Parish of Orleans denied
relief from the bench, without providing reasons. Likewise, the Supreme Court
of Louisiana denied relief in a 4-3 decision, without providing reasons. Floyd
v. Cain, 62 So. 3d 57 (La. 2011). But, reasons were assigned in a detailed
dissent, which opined, inter alia, “the exculpatory value of the fingerprint
evidence is sufficient to undermine confidence in the outcome of Floyd’s trial,
thus satisfying the requirements for a new trial set forth in Brady”. Id. at 59.
(Johnson, J., dissenting).


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                                  No. 17-30421
      Following the state-court decisions, Floyd filed in 2011 for federal habeas
relief under 28 U.S.C. § 2254, maintaining, inter alia, the State withheld
favorable, material evidence in violation of Brady. But, in December 2012, the
district court adopted the magistrate judge’s report and recommendation
(R&R) to deny Floyd’s petition as untimely under AEDPA.
      Floyd’s January 2013 motion to alter and amend the decision was
considered in the light of the Supreme Court’s superseding McQuiggin v.
Perkins decision.    569 U.S. 383, 386 (2013) (holding AEDPA’s time-bar
overcome by a valid actual-innocence claim). To overcome the time-bar, Floyd
presented such a claim: in the light of newly-discovered exculpatory evidence
related to the Hines and Robinson murders, he was actually innocent of
murdering Hines. The district court vacated the denial and remanded the
petition to the magistrate judge for a R&R in the light of McQuiggin.
      The magistrate judge’s resulting R&R recommended: Floyd failed to
meet his burden to demonstrate actual innocence; and, accordingly, his petition
should be dismissed with prejudice, without considering the merits of his
constitutional claims. Floyd v. Cain, 2016 WL 4799093, at *26 (E.D. La. 14
Sept. 2016). But, in a 67-page opinion providing an exhaustive analysis of
Floyd’s actual-innocence claim, the district court concluded that, in the light of
the newly-discovered evidence, “any reasonable, properly instructed juror,
evaluating this case with the requisite caution and care, would reasonably
doubt Floyd’s guilt of the murder of William Hines”. Id. Having concluded
that Floyd had overcome the time-bar, the court remanded the petition to the
magistrate judge for a R&R on the merits. Id.
      Regarding     Floyd’s   constitutional   claims,   the     subsequent     R&R
recommended granting Floyd’s Brady claim.          Floyd v. Vannoy, 2017 WL
1837676, at *4 (E.D. La. 8 May 2017). In a 33-page opinion, the district court
approved and adopted the R&R, but added additional reasons for the decision.
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Id. at *1. For example, although the R&R did not find it necessary to consider
Clegg’s affidavit and his pre-trial statement in the light of the fingerprint-
comparison results’ being sufficient to support Floyd’s Brady claim, the district
court opinion considered them to conclude Clegg’s statement to Detective
Dillmann was additional Brady material. Id. at *12–16.
      The two district-court opinions, totaling 100 pages, provide far greater,
and much more graphic, factual detail than does this opinion. As with its
decision regarding the time-bar, the district court’s merits opinion provides an
exhaustive analysis of Floyd’s Brady claims and the unreasonableness of the
state courts’ contrary decisions. Id. at *5–16. In granting relief, the court
concluded: the State withheld favorable, material evidence in violation of
Brady (the fingerprint-comparison results from the Hines scene and the Clegg
statement); and the state-court decisions denying relief were an unreasonable
application of clearly-established federal law. Id. at *16. Accordingly, Floyd
was awarded habeas relief, with the State’s being ordered to retry, or release,
him within 120 days of the decision. Id. The district court stayed its order,
pending resolution of this appeal. Floyd v. Vannoy, 2017 WL 2688082, at *2–
4 (E.D. La. 22 June 2017).
                                       II.
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo.” Lewis v. Thaler, 701 F.3d
783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004)). The State claims: Floyd failed to meet the necessary actual-innocence
burden to overcome the time-bar for his habeas application; and, in the
alternative, the state-court denials of post-conviction relief were, pursuant to
AEDPA, neither “contrary to”, nor “involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States”. 28 U.S.C. § 2254(d)(1).
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      Accordingly, our review encompasses three legal standards. First, actual
innocence is established through demonstrating that, in the light of newly-
discovered evidence, “it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt”. Schlup v. Delo, 513
U.S. 298, 327 (1995); see also McQuiggin, 569 U.S. at 399. Second, Brady is
violated when: the State suppresses evidence; that is favorable to his defense;
and material to guilt or punishment. E.g., Brady, 373 U.S. at 87. And third,
a state-court decision is an unreasonable application of clearly-established
federal law only if fairminded jurists could not disagree that the decision was
inconsistent with Supreme Court precedent. E.g., Harrington v. Richter, 562
U.S. 86, 101 (2011).
                                        A.
      Floyd filed for state post-conviction relief in March 2006, over 23 years
after his conviction became final, and contrary to AEDPA’s requiring seeking
such relief within one-year of the conviction. 28 U.S.C. § 2244(d)(1). Moreover,
where, as here, the conviction preceded AEDPA’s 26 April 1996 enactment, the
limitations period expired one-year from that date. Flanagan v. Johnson, 154
F.3d 196, 200 (5th Cir. 1998) (citing United States v. Flores, 135 F.3d 1000,
1006 (5th Cir. 1998)).
      Nonetheless, in the “extraordinary case”, McQuiggin, 569 U.S. at 393
(quoting Schlup, 513 U.S. at 324), in which a prisoner asserts a “credible
showing of actual innocence”, he may overcome the time-bar, and have his
claims considered on the merits, id. at 392; House v. Bell, 547 U.S. 518, 537
(2006); Schlup, 513 U.S. at 316. In that regard, the district court concluded:
Floyd’s actual-innocence claim was valid; and, accordingly, his petition was not
time-barred. Floyd, 2016 WL 4799093, at *26.
      Of considerable note, in its reply brief on appeal, the State does not
expressly challenge Floyd’s innocence. Instead, it has offered him two pleas
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                                    No. 17-30421
during the pendency of his federal habeas application, and concedes “it does
not take issue with Floyd being permanently released from custody”. The State
also concedes it challenges the actual-innocence ruling only because of the
precedent it sets.    (A strong argument can be made that, for the actual-
innocence ruling, the State’s concessions constitute judicial estoppel,
precluding its being challenged.)
      In any event, the “fundamental miscarriage of justice exception” permits
prisoners    with    an    otherwise   untimely    application   to   pursue   their
constitutional claims.       McQuiggin, 569 U.S. at 392–93.       This exception’s
demanding standard requires “evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error”. Id. at 401
(quoting Schlup, 513 U.S. at 316). The standard is seldom met. House, 547
U.S. at 538 (citing Schlup, 513 U.S. at 327).
      An actual-innocence claim is only established when it is shown that, in
the light of newly-discovered evidence, “it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable
doubt”.     Schlup, 513 U.S. at 327; see also McQuiggin, 569 U.S. at 399.
Therefore, a credible claim must be supported by “new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial”. Schlup, 513
U.S. at 324. Actual innocence is then demonstrated only when the court
scrutinizes the likely impact on reasonable jurors of “the overall, newly
supplemented record”, House, 547 U.S. at 538, to conclude that, in the light of
all evidence—both the evidence presented at trial and that newly discovered—
“no juror, acting reasonably, would have voted to find [petitioner] guilty beyond
a reasonable doubt”, McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at
329). As re-stated in McQuiggin, the court must conclude “it is more likely
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                                 No. 17-30421
than not that no reasonable juror would have convicted [the petitioner]”. Id.
at 395 (quoting Schlup, 513 U.S. at 329) (alteration in original).
      Our court does not consider habeas relief based on “freestanding claims
of actual innocence”. In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009).
Instead, a successful actual-innocence claim provides a “gateway” for the
petitioner to proceed on the merits. House, 547 U.S. at 536. (Therefore, as also
discussed at length in the dissent at 1–2, Floyd’s successful actual-innocence
claim permits our considering the merits of his constitutional claim: the State
withheld favorable, material evidence, in violation of Brady. McQuiggin, 569
U.S. at 386. And, for review of the Brady claim and the concomitant AEDPA
unreasonableness standard for that claim, a great deal of the newly-discovered
evidence and the withheld evidence overlaps.)
      To establish actual innocence, Floyd presents substantial exculpatory
evidence related to both murders. As discussed supra, although he confessed
to murdering Hines and Robinson, he was convicted solely of Hines’ murder.
Therefore, his habeas petition centers on that conviction. But, the district
court concluded, and we agree, that, because Floyd’s confessions are
intertwined, evidence demonstrating Floyd falsely confessed to murdering
Robinson supports his assertions he likewise did so for Hines. Floyd, 2016 WL
4799093, at *2.     In other words, newly-discovered evidence further and
conclusively exculpating Floyd of Robinson’s murder—undermining both
confessions—is relevant to his actual-innocence claim because it supports
Floyd’s assertions his confessions were false.
      At trial, the State did not present any physical evidence linking Floyd to
either murder. His conviction for Hines’ murder was based solely on his
confession and threat to Edwards. Accordingly, Floyd’s actual-innocence claim
hinges on whether, in the light of the items he advances as newly-discovered
evidence, any reasonable juror could rely solely on the evidence presented at
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                                 No. 17-30421
trial—Floyd’s confession and threat to Edwards—to find Floyd guilty beyond a
reasonable doubt. McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329).
      The claimed newly-discovered evidence is:            fingerprint-comparison
results of fingerprints lifted from the Hines scene; fingerprint-comparison
results and DNA-test results from fingerprints and hair discovered at the
Robinson scene and on his vehicle; Detective Dillmann’s misconduct in later
interrogations and tests demonstrating Floyd’s susceptibility to coercion; and
an affidavit from Clegg.
                                       1.
      The fingerprint-comparison results exclude Floyd and Hines as
contributors of the fingerprints lifted from the whiskey bottle discovered at the
Hines crime scene.     In 2008, IPNO obtained an envelope containing the
fingerprints, and copies of the NOPD logbook chronicling them. The envelope
and logbook conveyed that police initially lifted the fingerprints from the Hines
scene, performed a fingerprint-comparison test, and logged the fingerprints
“NOT VICTIM” and “NOT JOHN FLOYD”. Although police possessed this
information at the time of trial, it was neither presented as evidence nor
disclosed to the defense.
      For the requirement that actual-innocence claims be supported by “new
reliable evidence”, Schlup, 513 U.S. at 324, the State’s assertion that this
fingerprint evidence is not “new”, and, therefore, cannot support Floyd’s claim,
distorts the clear meaning of the Schlup standard. Id. at 332–33, 339–40.
Although the fingerprint-comparison results existed at the time of the joint
bench trial, the results were not presented, were withheld from both the
prosecution and the defense, and could not, therefore, have affected the trial
judge’s analysis of Floyd’s guilt. Accordingly, because this information was not
presented at trial, and remained unknown to the prosecution, defense, and
trial judge throughout the trial, it is “new” evidence. Id. at 339.
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                                   No. 17-30421
      Along that line, the Court, in McQuiggin, held no threshold diligence
requirement applies to actual-innocence claims; the delay is simply a factor in
the court’s reliability evaluation. 569 U.S. at 399. Scientific-based evidence,
like the fingerprint-comparison results, is less susceptible to manipulation
and, therefore, is appropriately considered reliable evidence despite the time
lapse. See id. at 399–400.
                                         2.
      The Robinson DNA-test results and fingerprint-comparison results
exclude Floyd and Robinson as the contributors of the hair and fingerprints
discovered at the Robinson scene. Parallel to the Hines charge, the State did
not present physical evidence linking Floyd to Robinson’s murder, and his
defense centered on third-party guilt. The newly-discovered evidence of the
fingerprint-comparison results exclude Robinson, Hennessey, and Floyd as
contributors of the fingerprints lifted from the drinking glasses next to
Robinson’s bed and the passenger-side door of his vehicle.
      Although not presented at trial, police recorded the fingerprint-
comparison results of fingerprints lifted from the glasses as belonging to
neither Robinson, Hennessey, nor Floyd.          Additionally, police labeled the
fingerprints lifted from Robinson’s vehicle, “NOT . . . DAVID HENNESSEY”,
“NOT VICTIM”, and “NOT JOHN FLOYD”. Further, NOPD’s initial analysis
of hair lifted from Robinson’s bed concluded it belonged to a black male other
than Robinson; and Floyd presents the post-trial DNA evidence, further
excluding him as the source of that hair.
      Similar   to   the     earlier-discussed   newly-discovered    evidence    of
fingerprint-comparison results from the Hines scene, this evidence meets the
“new reliable” Schlup standard because: it is scientific-based evidence that is
not easily manipulated; was unknown to the defense at the time of the trial;


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                                  No. 17-30421
and was not presented at trial. McQuiggin, 569 U.S. at 400; Schlup, 513 U.S.
at 324.
      Regarding the requirement that evidence presented at trial must be
considered in the light of all newly-discovered evidence, House, 547 U.S. at 538,
any evidence exculpating Floyd of Robinson’s murder—undermining his
confession—supports his assertion he falsely confessed to, and is actually
innocent of, Hines’. Floyd confessed to killing Robinson after having sexual
relations with him. The physical evidence presented at trial by the defense,
however, refuted Floyd’s confession, and demonstrated a likelihood Robinson
was killed by a black male with type-A blood.          Floyd’s newly-discovered
evidence regarding Robinson further excludes him from the Robinson scene,
invalidates his confession, and links a third party to that scene.
      At trial, no physical evidence was presented to contradict Floyd’s
confession about Hines. Detective Dillmann testified the evidence discovered
at the Hines scene corroborated Floyd’s statements, and proved his confession
credible. Specifically, the detective testified the evidence of the “glasses filled
with a liquid on each side of the bed” corroborated Floyd’s confession to
drinking with Hines before killing him.
      But, as discussed supra, the testimony about the location of the glasses
is incorrect; one was found in Hines’ bedroom and one in his kitchen, where
the whiskey bottle was found. According to the detective’s testimony, these
glasses were one of the three details proving Floyd’s confession credible. Again,
however, his testimony was incorrect regarding the location of the glasses: one
of the glasses, which Detective Dillmann testified corroborated Floyd’s
statement that he and Hines had been drinking together, was found not by the
bed, but in the kitchen with the whiskey bottle, which had partial prints from
neither Floyd nor Hines but a third party.


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                                  No. 17-30421
      The newly-discovered evidence of the fingerprint-comparison results
from the whiskey bottle in Hines’ residence could be found by a reasonable
juror to refute Floyd’s confession, link a third-party to the crime scene, and
impeach the detective’s testimony.      (Although the dissent at 4 states the
murder scene excluded the kitchen, investigators considered Hines’ entire
apartment in their crime-scene investigation.          Moreover, police selected
multiple items from the kitchen to dust for prints, and Detective Dillmann
testified about the importance of the evidence of “two highball glasses filled
with a liquid”. Again, one of the glasses, according to the State and the crime
scene technician’s report, was discovered in Hines’ kitchen.)
      Confessions are generally considered strong evidence of guilt, and a
sound confession alone may significantly influence a juror’s decision. Murray
v. Earle, 405 F.3d 278, 295 (5th Cir. 2005). “Confession evidence (regardless
of how it was obtained) is so biasing that juries will convict on the basis of
confession alone.” Id. Nonetheless, the credibility of Floyd’s confession must
be evaluated in the light of the newly-discovered evidence excluding the
possibility Floyd committed the crimes to which he confessed. McQuiggin, 569
U.S. at 386 (citing Schlup, 513 U.S. at 329). It follows that, in the light of this
newly-discovered contradictory physical evidence, it is more than likely a
reasonable, informed juror would reasonably doubt the credibility of Floyd’s
confessions.
                                        3.
      Floyd testified at trial that Detective Dillmann “slapp[ed] [him] on the
side of the head”; “hit [him] a bunch of times”; “kick[ed] [him] on the side of the
head with his boots” and “threatened to put [his] head through the brick wall
and throw [him] out through the window”. He further testified he immediately
began agreeing to anything the detective asked of him after the detective told
him that he “could kill [Floyd] and get by with it”.
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                                 No. 17-30421
      In that regard, Floyd asserts newly-discovered evidence of, inter alia, the
detective’s abuse during an interrogation for a crime after the Hines and
Robinson murders, his later admissions to showing Floyd crime-scene
photographs, and Dr. Gregory DeClue’s related examination, discussed infra,
undermine the validity of Floyd’s confession, in support of his actual-innocence
claim.
      Floyd presents newly-discovered evidence of the detective’s subsequent
mistreatment of suspects. In State v. Seward, the Supreme Court of Louisiana
ruled a confession coerced, finding the State failed to prove the defendant was
not beaten during an interrogation led by Detective Dillmann. 509 So. 2d 413,
415–18 (La. 1987). The suspect testified to similar descriptions of being hit in
the head, kicked, and forced to the floor during the interrogation. Id. at 415.
      Further, at trial, the State asserted Floyd’s detailed descriptions of both
crimes proved his confessions credible. Now, Floyd asserts newly-discovered
evidence of Detective Dillmann’s subsequently published 1989 book, Blood
Warning: The True Story of the New Orleans Slasher, in which the detective
describes showing Floyd “two of the grisliest shots” of the Hines crime scene in
an effort to “crack him”.
      Along that line, the State asserted at trial that the credibility of Floyd’s
confessions was demonstrated through his volunteering specific crime-scene
details. These assertions are severely weakened by evidence that, during the
interrogation, detectives provided Floyd with significant details about the
crime scenes. Notably, Floyd’s descriptions regarding the position of Hines’
body do not accurately describe the scene as found by police, but, rather,
correspond to crime-scene photographs taken after Hines’ body was moved.
      Additionally, evidence of forensic psychologist Dr. DeClue’s 2009
examination of Floyd, employing methods not available at the time of trial,


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                                 No. 17-30421
found Floyd had an I.Q. of 59 and communication skills of a “second or third
grade[r]”, rendering him “extremely vulnerable” to police coercion.
      The credibility of Floyd’s confessions, and his trial testimony he was
coerced by Detective Dillmann, are appropriately considered in the light of the
newly-discovered evidence of: the detective’s conduct during a subsequent
interrogation; Floyd’s observing photographs of the crime scene; and Dr.
DeClue’s findings regarding Floyd’s susceptibility to coercion. House, 547 U.S.
at 538 (quoting Schlup, 513 U.S. at 327). Although jurors are likely to find
confessions compelling, our court must make a “probabilistic determination” of
the hypothetical jurors’ opinions of the newly-discovered evidence, and
voluntariness of Floyd’s confession. Id. (quoting Schlup, 513 U.S. at 329).
Considering the evidence as a whole, it is likely a reasonable juror would doubt
Floyd’s confession was “freely and voluntarily made”, State v. Trudell, 350 So.
2d 658, 661 (La. 1977), and, therefore, lacked credibility to alone establish his
guilt beyond a reasonable doubt, House, 547 U.S. at 538.
                                       4.
      The final newly-discovered evidence is presented through Clegg’s 2008
affidavit. According to Floyd, it undermines his guilt and casts doubt on
Detective Dillmann’s investigative practices. At trial, the State supported
Floyd’s guilt with the detective’s testimony that Clegg, a friend of Hines’,
stated Hines “frequently had sexual relations with both black and white
males”. But, in his 2008 affidavit, Clegg maintained: Hines’ preference was
for black males; pre-trial, he informed the detective of that preference; and
Clegg was “very surprised” when Floyd (a white male) was arrested.
      Regarding our court’s considering only “new reliable evidence” to support
a claim of actual innocence, Schlup, 513 U.S. at 324, Clegg asserts in his
affidavit that the detective manipulated Clegg’s initial statements. He was a
close friend of Hines’ and has no apparent connection to Floyd. The reliability
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                                    No. 17-30421
of this new evidence is strengthened by the unlikelihood Clegg, a friend of the
murder victim, would falsely assert a particular defendant did not fit the
profile of the likely killer, in order to support the defendant’s innocence. House,
547 U.S. at 551 (ruling witness’ disinterest in aiding defendant supports
credibility of post-conviction testimony). Further, reliability is not affected by
the passage of time as Clegg has neither died, nor otherwise become
unavailable for further questioning. E.g., McQuiggin, 569 U.S. at 399–400 &
n.4.
         The likely impact on reasonable jurors of Clegg’s pre-trial statements, as
presented at trial by the detective, is considered with the newly-discovered
evidence of Clegg’s contradictory affidavit. Id. at 386. It is more than likely
the evidence of the detective’s testimony, asserting a possibility Floyd’s profile
aligned with that of men with whom Hines frequently had sexual relations,
would have little persuasive value in the light of Clegg’s pre-trial statement
that he understood his friend to have a distinct preference for black males. In
other words, in the light of the newly-discovered evidence through Clegg’s
affidavit, no reasonable juror would have relied upon Clegg’s pre-trial
statement—that Floyd did not fit the likely profile of the perpetrator—to
adequately support Floyd’s guilt.
         Additionally, a statement from the victim’s friend, asserting the
defendant did not fit the profile of the likely killer, would more than likely
affect a reasonable juror’s analysis of Floyd’s guilt. In the light of the newly-
discovered evidence of the detective’s alleged misrepresentations, Clegg’s
stating Hines’ preference for black males casts doubt on Floyd’s guilt, and
supports his third-party-guilt defense.
         In sum, for the actual-innocence claim, Floyd’s guilt was contingent
solely on his confession and alleged threat to Edwards. And, the persuasive
impact of Floyd’s confessions must be scrutinized in the light of all the
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                                 No. 17-30421
evidence, presented at trial and new. Id. at 386 (citing Schlup, 513 U.S. at
329). Floyd overcomes the time-bar if, in the light of the newly-discovered
evidence, no reasonable juror would determine the confession and alleged
threat to Edwards were sufficient to establish Floyd’s guilt beyond a
reasonable doubt. Id. at 395 (citing Schlup, 513 U.S. at 329).
      In the light of the newly-discovered evidence of:          the fingerprint-
comparison analysis excluding Floyd from the Hines scene; the Robinson-
related fingerprint-comparison results and DNA tests further discounting
Floyd’s confession; Detective Dillmann’s improper interrogation techniques;
Floyd’s vulnerability to coercion; and Clegg’s affidavit maintaining Floyd did
not fit the likely profile of the perpetrator, no reasonable juror would find
Floyd’s confession and Edwards’ testimony about a threat sufficient to support
Floyd’s guilt beyond a reasonable doubt. Re-stated, because, in the light of the
newly-discovered evidence, no reasonable juror, considering the record as a
whole, would vote to convict Floyd of Hines’ murder, Floyd’s actual-innocence
claim is sufficient to overcome the untimeliness of his habeas application. Id.
at 386.
                                      B.
      Having opened the “actual innocence” gateway, we proceed now to
consider the merits of Floyd’s Brady claim. See Herrera v. Collins, 506 U.S.
390, 404 (1993) (holding that “actual innocence” is not a freestanding
constitutional claim but a gateway to assert otherwise barred claims). “[T]he
only question that matters under § 2254(d)(1) [is] whether a state court
decision is contrary to, or involved an unreasonable application of, clearly
established federal law.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Because
our own de novo view of the correctness—or incorrectness—of the state court’s
decision is a distinct question, see Richter, 562 U.S. at 101 (emphasizing that
correctness and reasonableness are different questions); Williams v. Taylor,
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                                  No. 17-30421
529 U.S. 362, 410 (2000) (“[A]n unreasonable application of federal law is
different from an incorrect application of federal law.”), “we do not reach the
question whether the state court erred and instead focus solely on whether
§ 2254(d) forecloses habeas relief,” Lockyer, 538 U.S. at 71. We conclude that
it does not.
      A state prisoner seeking federal habeas relief pursuant to 28 U.S.C.
§ 2254 carries the heavy burden of demonstrating entitlement to that relief.
Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009); Lockett v. Anderson,
230 F.3d 695, 707 (5th Cir. 2000); Orman v. Cain, 228 F.3d 616, 619 (5th Cir.
2000). Prior to Floyd’s seeking such relief, state-court post-conviction relief
was denied by both the Criminal District Court for the Parish of Orleans, and
the Supreme Court of Louisiana. Floyd, 62 So. 3d at 57. In granting relief, the
district court concluded: the State withheld material evidence in violation of
Brady, and the state-court contrary decisions were an unreasonable
application of clearly-established federal law. Floyd, 2017 WL 1837676, at *16.
In reviewing de novo the district court’s granting relief, we “apply[] the same
standards to the state court’s decision[s] as did the district court”. Lewis, 701
F.3d at 787 (quoting Busby, 359 F.3d at 713).
      When reviewing, as here, the reasonableness of an unexplained state-
court decision, our court applies the “look-through” presumption to examine
the last reasoned state-court decision, with the presumption that all later
unexplained (unreasoned) decisions “rest upon the same ground”. Hittson v.
Chatman, 135 S. Ct. 2126, 2127 (2015) (quoting Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991)). But, as discussed supra, in this instance the two state-court
denials are unexplained. Therefore, because there is no reasoned state-court
opinion, our court must hypothesize the reasons or theories that could have
supported the denial of relief. Id. (citing Richter, 562 U.S. at 98.)


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                                  No. 17-30421
AEDPA’s standards control the review of the state-court decision where, as
here, the petition was filed after its effective date. Williams v. Taylor, 529 U.S.
362, 402 (2000).     Under AEDPA, federal habeas applications centered on
claims “adjudicated on the merits in State court proceedings” are denied unless
the adjudication: (1) “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States”; or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding”.          28 U.S.C. § 2254(d).
Because Brady claims involve mixed questions of law and fact, § 2254(d)(1),
instead of subpart (d)(2), is applied. DiLosa v. Cain, 279 F.3d 259, 262 n.2 (5th
Cir. 2002) (citing Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir. 1999)).
      The Criminal District Court for the Parish of Orleans denied, without
reasons, Floyd’s petition from the bench; similarly, the Supreme Court of
Louisiana provided no explanation for its denial. Floyd, 62 So. 3d 57 (denial of
Floyd’s writ application in a 4-3 vote without assigning reasons). The only
state-court reasoning available on review is the dissent from the state-
supreme-court denial, with the dissent’s stating Floyd was entitled to a new
trial because the fingerprint evidence “undermine[s] confidence in the outcome
of Floyd’s trial”. Id. at 60.
      In any event, “[28 U.S.C.] § 2254(d) does not require a state court to give
reasons before its decision can be deemed to have been adjudicated on the
merits”. Richter, 562 U.S. at 100 (internal quotation omitted). “When a federal
claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in
the absence of any indication[,] or state-law procedural principles[,] to the
contrary”. Id. at 99. Therefore, where, as here, the state-court denial has no
explanation, we review the “ultimate decision” for reasonableness. Charles v.
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                                  No. 17-30421
Thaler, 629 F.3d 494, 501 (5th Cir. 2011) (quoting Neal v. Puckett, 286 F.3d
230, 246 (5th Cir. 2002) (en banc)).
      The state court’s “adjudication of the claim result[s] in a decision that
was   contrary    to,   or   involved   an unreasonable application of,       clearly
established Federal law, as determined by the Supreme Court of the United
States”, 28 U.S.C. § 2254(d)(1), when: it “reaches a legal conclusion in direct
conflict with a prior decision of the Supreme Court or . . . it reaches a different
conclusion than the Supreme Court based on materially indistinguishable
facts”, Miller v. Dretke, 404 F.3d 908, 913 (5th Cir. 2005).
      Because the state courts provided no explanation for their denial of post-
conviction relief, we must hypothesize the reasons that supported, or could
have supported, the denial consistent with Supreme Court precedent. Richter,
562 U.S. at 98, 102. The decision is an “unreasonable application” under 28
U.S.C. § 2254(d) only if, after this hypothetical inquiry, we determine there
was no reasonable basis for it. Id. at 98, 101.
      Under Brady and its progeny, due process requires that the prosecution
disclose evidence that is both favorable to the defendant and material to guilt
or punishment. 373 U.S. at 87. This duty to disclose exists irrespective of a
request from the defense, United States v. Agurs, 427 U.S. 97, 107 (1976), and
extends to all evidence known not just to the prosecutors, but “to the others
acting on the government’s behalf in the case, including the police”, Kyles v.
Whitley, 514 U.S. 419, 437 (1995).       The district court concluded that the
fingerprint-comparison results from the Hines scene, fingerprint-comparison
results from the Robinson scene, and Clegg’s pre-trial statement all satisfied
Brady’s three requirements of suppression, favorability, and materiality. Our
task now is to determine whether there is any reasonable theory, consistent
with clearly established federal law as determined by the Supreme Court, to
support the state courts’ conclusions to the contrary. Because the materiality
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                                No. 17-30421
of “suppressed evidence [is] considered collectively, not item by item”, Kyles,
514 U.S. at 436, we first separately consider Brady’s requirements of
suppression and favorability with respect to the fingerprint-comparison results
and the Clegg statement before collectively considering their materiality.
                                      1.
      Floyd’s first Brady claim stems from the State’s failure to disclose the
fingerprint-comparison results. Prior to trial, the State disclosed police and
crime-scene reports related to the two murders.       Additionally, the State
proffered a partial list of the evidence seized from each scene. As discussed
supra, the crime-scene technician report for Hines’ murder established an
NOPD evidence technician dusted for fingerprints the whiskey bottles, the
whiskey glass from the kitchen table, and the whiskey glass from the night
table in the bedroom, but simply listed the fingerprints as “Laboratory-Exam
– No”. Likewise, the crime-scene technician report for the Robinson murder
established an NOPD evidence technician dusted for prints: a drinking glass
containing alcohol on each of the nightstands in Robinson’s hotel room; the
passenger side of his vehicle; and a glass, a cup, and a whiskey bottle inside
the vehicle.   Like the fingerprints lifted from the Hines scene, these
fingerprints were marked “Laboratory-Exam – No”.
      However, the State did not disclose the logbook noting Floyd was
excluded from the fingerprints collected from both crime scenes, the envelope
registering the lifted fingerprints from the Hines scene as “NOT VICTIM” and
“NOT JOHN FLOYD”, and the envelope registering the lifted fingerprints from
the Robinson scene as “NOT VICTIM”, “NOT JOHN FLOYD”, and “NOT . . .
DAVID HENNESSEY”.
                                      a.
      First, we find no reasonable theory to support the conclusion that the
evidence at issue was properly disclosed.    Brady requires the prosecution
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                                 No. 17-30421
disclose evidence when it is “of such substantial value to the defense that
elementary fairness requires it to be disclosed even without a specific request”.
Agurs, 427 U.S. at 110.     The State’s assertion the fingerprint-comparison
results were effectively disclosed through the crime-scene report and list of
evidence distorts Brady’s requiring prosecutors to offer exculpatory evidence
absent a specific request by the defense. E.g., id. Floyd’s Brady claim does not
stem from the fingerprints themselves, but from the results of the State’s
fingerprint-comparison test.
      The State does not demonstrate compliance with Brady’s disclosure
requirement by asserting a possibility Floyd could deduce that, based on the
general evidence provided to him, additional evidence likely existed. E.g.,
Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008). To the contrary, the
State’s nondisclosure may have reasonably led the defense to conclude no
additional evidence existed. United States v. Bagley, 473 U.S. 667, 682–83
(1985). Further, the State’s assertions the evidence was not withheld because
Floyd could have conducted his own analysis are in direct contrast to clearly-
established Brady law rejecting the defense’s ability to conduct their own
analysis as justification for prosecutorial non-disclosure. Banks v. Dretke, 540
U.S. 668, 696 (2004) (holding “a rule thus declaring ‘prosecutor may hide,
defendant must seek’, is not tenable in a system constitutionally bound to
accord defendants due process”). Consequently, the state court could not have
reasonably relied on that theory to find the evidence was not suppressed.
                                       b.
      As for Brady’s favorability prong, it would be an unreasonable
application of Brady and its progeny to conclude that the withheld evidence
was not favorable. It was favorable because it supported Floyd’s third-party-
guilt defense, and impeached Detective Dillmann’s testimony that the “two
highball glasses filled with a liquid on each side of [Hines’] bed” corroborated
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                                 No. 17-30421
the details of Floyd’s confession.       (As noted repeatedly, the detective
erroneously stated the glasses were found in the bedroom; instead, one was
found in the bedroom and one was found in the kitchen, where the whiskey
bottle was also located.)
      “[T]he character of a piece of evidence as favorable will often turn on the
context of the existing or potential evidentiary record.” Kyles, 514 U.S. at 439.
Supreme Court precedent defines evidence tending to strengthen a defense as
favorable evidence under Brady. Cone v. Bell, 556 U.S. 449, 470 (2009). And,
again, the Court has held evidence impeaching a prosecution witness is
favorable Brady evidence. Bagley, 473 U.S. at 676. Any reason to support a
conclusion the evidence was not favorable to Floyd is contrary to Court
precedent, and, therefore, an unreasonable application of clearly-established
federal law. For example, the Kyles Court in 1995 held a withheld list of
license-plate numbers, which excluded defendant’s vehicle from the crime
scene—interestingly, the investigation was led by Detective Dillmann—was
exculpatory and impeachment evidence. 514 U.S. at 450.
            On the police’s assumption, argued to the jury, that
            the killer drove to the lot and left his car [at the crime
            scene] during the heat of the investigation, the list
            without [defendant’s] registration would obviously
            have helped [defendant] and would have had some
            value in countering an argument by the prosecution
            that a grainy enlargement of a photograph of the crime
            scene showed [defendant’s] car in the background.

Id. Likewise, the fingerprint-comparison results excluding Floyd from the
fingerprints lifted from the whiskey bottle “would obviously have helped
[Floyd] and would have had some value in countering” the detective’s
testimony and the State’s theory that Floyd shared a drink with Hines. Id.
Because, in the context of the detective’s testimony, this evidence is favorable
for impeaching the prosecution’s witness, it would be unreasonable to conclude
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                                  No. 17-30421
that it is anything other than favorable under Brady. Bagley, 473 U.S. at 676
(citing Giglio v. United States, 405 U.S. 150, 154 (1972)).
      Along that line, and as the dissent maintains at 4–5, the state court
could have concluded that the withheld fingerprint-comparison results from
the Hines scene do not impeach Detective Dillmann’s testimony because he did
not testify that the whiskey bottle, from which the prints were lifted,
corroborated Floyd’s confession. But that conclusion would be an unreasonable
application of Supreme Court law.
      First, the Court has been clear that favorability depends on context. The
detective testified that the whiskey glasses found at the Hines scene—one of
which was actually found in the kitchen, as was the whiskey bottle—
corroborated Floyd’s statement that the two were drinking together. Evidence
that a third person—neither Floyd nor Hines—touched the whiskey bottle
undermines Detective Dillmann’s testimony that the confession was credible
based on Floyd’s statement that he and Hines were drinking together. Second,
although the detective did not specifically reference the whiskey bottle, to
conclude that that negates the favorability of the fingerprint-comparison
results “confuses the weight of the evidence with its favorable tendency”.
Kyles, 514 U.S. at 450.
      The dissent also asserts at 5–6 that the state court could reasonably have
concluded that the fingerprints lifted from the whiskey bottle were only neutral
evidence. We disagree. The presence of a third party’s fingerprints at a crime
scene does not itself prove Floyd was not present; but, it is evidence that a third
party, not Floyd, touched an item that was singled out for dusting by
investigators and linked to the commission of the crime through Detective
Dillmann’s testimony. See id. (holding that a list of cars at the crime scene
that did not include the defendant’s car “would obviously have helped” the
defendant in countering investigator’s assumption, argued to the jury, that the
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                                  No. 17-30421
killer had driven to the scene and left his car there). Furthermore, although
the fingerprint-comparison results do not conclusively establish that Floyd was
not present at the Hines scene, any such contention would again confuse
weight with favorability, and also misapply the relevant standard for
materiality.   See id. at 434 (“[A] showing of materiality does not require
demonstration by a preponderance that disclosure of the suppressed evidence
would have resulted ultimately in the defendant’s acquittal . . . .”).
Accordingly, no reasonable theory supports the conclusion that the fingerprint-
comparison results were not favorable.
                                        2.
      Floyd’s second claimed Brady violation stems from Clegg’s 2008
affidavit.   The detective reported and testified that Clegg stated Hines
“frequently had sexual relations with both black and white males”. But, in his
2008 affidavit, Clegg maintained that “Bill[] [Hines’] taste was for black men”;
he knew “Bill’s taste was for black men”; he “saw Bill with black men on several
occasions”; “Bill was often attracted to rough-looking black men”; that he had
advised the detective that Hines preferred black men; and that the detective’s
report misrepresented his statements. (Although the dissent at 8–10 considers
this affidavit in its analysis of the reasonableness of the state courts’
application of Brady, only Clegg’s pre-trial statement to Detective Dillmann,
as presented in Clegg’s post-trial affidavit, not his entire affidavit, is properly
considered favorable, material evidence withheld by the prosecution in
violation of Brady. In short, and contrary to the dissent’s contention at 10 that
we “cherry-pick[ed] certain sentences from Clegg’s affidavit”, it is only those
portions of Clegg’s statement, as contained in the affidavit, that are favorable
to impeach the detective’s testimony that are relevant to our Brady analysis.)




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                                 No. 17-30421
                                       a.
      As with the fingerprint-comparison results, the State’s assertions the
Clegg statement was not suppressed is also counter to the Court’s Banks
decision. Id. The State contends the Clegg statement was effectively disclosed
through the detective’s report’s naming Thomas Bloodworth as a reporting
witness; Bloodworth identified Clegg and advised the detective to speak with
him. The State claims the Clegg statement was effectively disclosed because
“a reasonably diligent defense attorney would have similarly interviewed
Bloodworth and, through him, learned of Clegg” and interviewed him. As
discussed supra, the prosecutor’s Brady duty is not absolved through asserting
various opportunities available for the defense to have uncovered the evidence.
Banks, 540 U.S. at 696. Therefore, the state court was presented with no
reasonable theory for concluding the State did not withhold the Clegg
statement; nor were we presented with any; nor do we perceive any.
                                       b.
      In addition, it would be unreasonable to conclude that the Clegg
statement is not favorable.       Under clearly-established Supreme Court
precedent, evidence that could have been used to impeach a witness’s
testimony is favorable. Strickler, 527 U.S. at 281–82. Clegg’s statement, that
Hines’ sexual preference was for black males, could have been used to impeach
Detective Dillmann’s testimony that he “had learned that Mr. Hines’ sexual
preferences was not to any one race”. (The dissent at 8 asserts Detective
Dillmann’s testimony “suggests he relied on more than just one person” for his
determinations regarding Hines’ sexual preferences. Nonetheless, regarding
Hines’ sexual preferences, the detective’s report, in the record for this habeas
proceeding, states only that “Mr. Clegg stated that to his knowledge the victim
was homosexual and frequently had sexual relations with both black and white


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                                 No. 17-30421
males”.) Any assertion that Clegg’s knowledge of Hines’ sexual preferences
may not have been exhaustive again would go to weight, not favorability.
      The Clegg statement is also favorable evidence because the fact that the
statement was misrepresented in Detective Dillmann’s report could have been
used to impeach his testimony and call into question the “thoroughness and
even the good faith of the investigation”. Kyles, 514 U.S. at 445; accord id. at
446 (“A common trial tactic of defense lawyers is to discredit the caliber of the
investigation or the decision to charge the defendant, and we may consider
such use in assessing a possible Brady violation” (quoting Bowen v. Maynard,
799 F.2d 593, 613 (10th Cir. 1986))). Moreover, the Clegg statement could have
been used to impeach Detective Dillmann’s testimony that, despite the fact
that only hairs from a black person had been found at the Hines scene, he did
not “under the circumstances” think that investigators “ought to be looking for
a black” male because he “had learned that [] Hines’ sexual preference was not
to any one race”. No reasonable theory supports the conclusion that the Clegg
statement was not favorable.
                                       3.
      For the final prong, we consider whether any reasonable theory could
have supported a conclusion that the withheld evidence was collectively
immaterial. Kyles, 514 U.S. at 436. The materiality of Brady evidence is not
considered in the light of the probability of acquittal. Bagley, 473 U.S. at 680;
Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (“To prevail on his Brady claim,
Wearry need not show that he ‘more likely than not’ would have been acquitted
had the new evidence been admitted.”). Rather, evidence is understandably
material under Brady where it simply demonstrates “a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Youngblood v. West Virginia, 547 U.S.
867, 870 (2006) (quoting Strickler, 527 U.S. at 280). A reasonable probability
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                                 No. 17-30421
is a likelihood sufficient to “undermine confidence in the outcome”, Bagley, 473
U.S. at 682 (quoting Strickland, 466 U.S. at 694).         Accordingly, withheld
evidence is more likely material when the State presents a weaker case for
guilt, e.g., Smith v. Cain, 565 U.S. 73, 76 (2012) (eyewitness “testimony was
the only evidence linking [the petitioner] to the crime”, and, therefore, the
undisclosed statements contradicting this testimony were “plainly material”);
Agurs, 427 U.S. at 113 (“[I]f the verdict is already of questionable validity,
additional evidence of relatively minor importance might be sufficient to create
a reasonable doubt.”).
      Floyd was indicted for the second-degree murder of Hines and Robinson.
In the joint trial, Floyd’s incriminating statements (confession and threat to
Edwards) were the only evidence presented to support his guilt for Hines’
murder. And, that evidence was contradicted by the suppressed evidence at
issue, analogous to the evidence at issue in Cain. 565 U.S. at 76.
      The fingerprint-comparison results undermine Floyd’s confessions to
each murder, and impeach Detective Dillmann’s testimony for the Hines
murder that the “glasses filled with a liquid” (in fact, discovered in Hines’
bedroom and kitchen) corroborated Floyd’s confession.           The fingerprint-
comparison evidence contradicts the physical evidence purported to
corroborate Floyd’s confessions to each murder, such as the glasses containing
whiskey being on each side of Robinson’s bed, undermining “confidence in the
verdict”. Kyles, 514 U.S. at 435. Likewise, the Clegg statement impeaches the
detective’s testimony that Hines’ sexual preference was for black and white
males, and further challenges the credibility of Floyd’s confession. In the light
of the entire case, the fingerprint-comparison results and the Clegg statement
significantly impact the only evidence supporting Floyd’s guilt (his
incriminating statements, including, most especially, his confession),
rendering it material under Brady.       Id. In other words, the fingerprint-
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                                 No. 17-30421
comparison results and the Clegg statement create a “reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different”. Id. at 433 (quoting Bagley, 473 U.S. at
682).
        Any conclusion to the contrary would be an unreasonable application of
Supreme Court law. The state court could have concluded that neither the
fingerprint-comparison results nor the Clegg statement conclusively prove
Floyd did not commit the Hines murder.          But that would constitute an
unreasonable application of the Supreme Court’s holding that “a showing of
materiality does not require demonstration by a preponderance that disclosure
of the suppressed evidence would have resulted ultimately in the defendant’s
acquittal”. Id. at 434.
        The state court could also have concluded that, despite the withheld
evidence, the trial judge could still have convicted Floyd on the basis of his
incriminating statements to Edwards. But that, too, would be an unreasonable
application of Supreme Court law. “[M]ateriality . . . is not a sufficiency of
evidence test.” Id.
        Floyd “need not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not have been enough
left to convict”. Id. at 434–35. Where the proof on which a conviction was
based was thin to begin with, the Supreme Court has been clear that withheld
evidence undermining that proof is material. See Wearry, 136 S. Ct. at 1006;
Cain, 565 U.S. at 76; Agurs, 427 U.S. at 113. In short, while the trial judge
could have convicted Floyd of the Hines murder on the basis of Floyd’s
incriminating statement to Edwards, or could have continued to credit his
confession, there can be “no confidence that [the trial judge] would have done
so”, and that is all that Brady requires. Wearry, 136 S. Ct. at 1007 (quoting
Cain, 565 U.S. at 76).
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                                      No. 17-30421
        Materiality of the suppressed Hines evidence is further demonstrated by
the simultaneous acquittal at the bench trial for Robinson’s murder. After
considering the exculpatory physical evidence from the Robinson scene, the
trial judge found Floyd not guilty of that murder. Floyd, 435 So. 2d at 994
(1983). (“[Floyd] was found not guilty of the murder of Robinson (evidence
showed that Robinson’s assailant had been a black man with Type A
blood; Floyd is white with Type B blood”)). Because the trial judge determined
the physical evidence rendered Floyd’s incriminating statements, including his
confession, insufficient to support his guilt for Robinson’s murder, there is a
“reasonable probability” that, had the similarly favorable physical evidence
from the Hines scene been disclosed, “the result of the proceeding would have
been different”. Cain, 565 U.S. at 75 (quoting Cone, 556 U.S. at 469–70). Re-
stated, there is a “‘reasonable probability’ that the [trial judge] would have
been [similarly] persuaded by the undisclosed evidence” undermining Floyd’s
Hines confession. Id. at 77 (Thomas, J., dissenting) (citing Bagley, 473 U.S. at
682).
        In the light of the withheld evidence undermining the only evidence
supporting Floyd’s guilt for Hines’ murder, and the trial judge’s simultaneously
acquitting Floyd of Robinson’s murder after considering similar physical
evidence excluding Floyd from the Robinson scene, there is no sound theory,
considering the record as a whole, to support the conclusion that the evidence
of the fingerprint-comparison results and the Clegg statement were not
reasonably     likely   to   affect   Floyd’s   trial     for   Hines’   murder.     Id.;
Kyles, 514 U.S. at 435. Accordingly, any theory supporting the conclusion that
the withheld, favorable evidence was immaterial is an unreasonable
application of Brady’s materiality standard.
        In sum, “fairminded jurists could [not] disagree” that the state-court
denial of post-conviction relief was contrary to Supreme Court precedent.
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                               No. 17-30421
Richter, 562 U.S. at 88. Re-stated, “the state court’s application of clearly
established [Brady] law was objectively unreasonable”. Williams, 529 U.S. at
409.
                                    III.
       For the foregoing reasons, the judgment is AFFIRMED.




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                                       No. 17-30421
JERRY E. SMITH, Circuit Judge, dissenting:

      For the first time ever, this court finds a meritorious claim of actual inno-
cence under McQuiggin v. Perkins, 569 U.S. 383 (2013). But, given the panel
majority’s errant analysis under Brady v. Maryland, 373 U.S. 83 (1963),
I would reverse and deny habeas corpus relief. I therefore respectfully dissent
from the cogent and well-intended majority opinion.

      “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” 1 That “is [a] difficult [standard] to meet . . . [and]
it was meant to be.” 2 Meeting that standard can become even more unlikely
where, as here, a claim is adjudicated on the merits but lacks a written opinion
elucidating the state court’s reasons. Floyd “can satisfy the ‘unreasonable
application’ prong of [28 U.S.C.] § 2254(d)(1) only by showing that ‘there was
no reasonable basis’ for the [Louisiana] Supreme Court’s decision.” 3               “[A]
habeas court must determine what arguments or theories supported or, as
here, could have supported, the state court’s decision.” 4

      Though the majority recites the appropriate standards, its Brady meth-
odology fails to apply them rigorously. Instead, it allows its analysis to become
colored by the gateway question of whether Floyd proved actual innocence
under Perkins. This is one of the rare occasions where we must cope with the
tension between a meritorious gateway actual-innocence claim and the strong



      1 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
      2   Id. at 102.
      3Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (quoting Richter, 562 U.S. at 98)
(emphasis added).
      4   Richter, 562 U.S. at 102 (emphasis added).
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                                        No. 17-30421
deference AEDPA accords to a state court’s resolution of the underlying consti-
tutional claim—the latter being the only type of claim that can justify relief. 5

       To understand why it is possible to find a petitioner, such as Floyd, “actu-
ally innocent” while simultaneously denying him habeas relief, it is important
to recognize exactly what an actual-innocence claim is. First, it is a gateway
claim.       Neither this circuit nor the Supreme Court has recognized a
freestanding claim of innocence. Instead, a petitioner can assert actual inno-
cence only to overcome a procedural bar, such as limitations. 6 After establish-
ing actual innocence, the petitioner must still prove a meritorious consti-
tutional violation while overcoming § 2254’s mandated deference. Without a
meritorious constitutional violation, an actual-innocence claim is meaningless.

       Second, the postures in which we review the actual-innocence claim and
the underlying constitutional claim are different. Because an actual-innocence
claim is a gateway claim asserted to overcome some procedural barricade, it is
a claim that has not been reviewed by a state court and thus is accorded no
AEDPA deference. A federal court independently determines whether the
Perkins standard is met. Conversely, the Brady claims here were adjudicated
on the merits by the Louisiana Supreme Court and thus are accorded AEDPA
deference. We cannot independently determine whether the Brady standard
is met. Instead, we must add an additional layer and decide whether “‘there
was no reasonable basis’ for the [Louisiana] Supreme Court’s decision.” 7


       5 See Perkins, 569 U.S. at 392 (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence.”); United States
v. Fields, 761 F.3d 443, 479 (5th Cir. 2014) (“[O]ur caselaw does not recognize freestanding
actual innocence claims.”).
       6 Perkins, 569 U.S. at 386 (holding that “actual innocence, if proved, serves as a gate-
way through which a petitioner may pass whether the impediment is a procedural bar . . . or,
as in this case, expiration of the statute of limitations”).
       7   Pinholster, 563 U.S. at 188 (quoting Richter, 562 U.S. at 98) (emphasis added).
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                                      No. 17-30421
       Finally, but importantly, when reviewing Floyd’s Brady claims, we can-
not consider much of the new evidence presented in the actual-innocence anal-
ysis. Under Perkins, we can take into account old and new (reliable) evidence
alike. To determine materiality under Brady, however, we can consider only
the evidence presented at trial and the suppressed evidence. Thus, new and
arguably strong evidence favoring Floyd, such as the fact that he was shown
photos of the crime scene, cannot, as a matter of law, color our review of the
alleged Brady violations.

       I commend the majority for rectifying the bifurcation concerns originally
raised by my initial dissent. But, even without the initial taint of de novo
review, the majority still accords insufficient AEDPA deference to the state
court.“[C]lear error [does] not suffice” to show an “unreasonable application.”
White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal citation and quotation
marks omitted). 8      Instead, “‘the state court’s ruling on the claim being
presented in federal court [must be] so lacking in justification that there [is]
an error well understood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.’” Id. (quoting Richter, 562 U.S. at 103).

       When its decision is viewed in the proper light, the state court plainly
had a reasonable basis for denying relief under Brady. To prove a Brady viola-
tion, the petitioner must show that the evidence was withheld, favorable, and
material. 9 I agree in full with the majority’s analysis in regard to suppression.
Thus, I address only the other two Brady prongs, favorability and materiality.

       Floyd says that the following evidence is Brady material: analysis of



       8 See also Williams v. Taylor, 529 U.S. 362, 410 (2000) (“an unreasonable application
of federal law is different from an incorrect application of federal law”).
       9Strickler v. Greene, 527 U.S. 263, 281–82 (1999); see also United States v. Sipe,
388 F.3d 471, 477–78 (5th Cir. 2004).
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                                       No. 17-30421
fingerprints found on a whiskey bottle in Hines’s kitchen; analyses of finger-
prints lifted from two drinking glasses in Robinson’s hotel room, on the pas-
senger side of Robinson’s car, and on a glass, cup, and whiskey bottle in Rob-
inson’s car; and John Clegg’s statement concerning Hines’s sexual preferences.
The majority classifies the fingerprint analysis from the whiskey bottle as
favorable because the analysis could be used to impeach state witness Detec-
tive Dillmann. Of note, neither Floyd nor the district court ever contended that
the fingerprint analyses could constitute impeachment evidence. Those analy-
ses, however, could reasonably be viewed as not impeaching Dillmann.

       The majority avers that the analysis impeaches Dillmann because he
testified that the presence of glasses corroborated Floyd’s confession, in which
Floyd stated, “We were both drinking.” Dillmann, however, never mentioned
the whiskey bottle or even whiskey. Instead, he testified only that “there were
two highball glasses filled with a liquid on each side of the bed.” And, the
whiskey bottle was not found at the murder scene 10 but in the kitchen.

       The majority does not address these details with enough precision, 11 so
let me emphasize this: The unidentified fingerprints were found on the whis-




       10 Hines was murdered in his bedroom. No testimony or evidence was provided that
indicated he or the murderer ever entered the kitchen. The majority says that “Detective
Dillmann testified about the importance of evidence discovered in Hines’ kitchen.” As with
its discussion of the whiskey bottle, the majority again fails to address Dillmann’s testimony
with precision.
       Dillmann never even mentioned the kitchen. The one time the word “kitchen” was
used during his examination, it was by Floyd’s attorney asking whether Floyd’s confession
contained any specific details about the layout of the apartment, such as where the bedroom
and kitchen were located. Dillmann did not even reply because the court interrupted and
asked the attorney to allow Dillmann to finish his testimony on a previous line of questioning.
       11See, e.g., “Rather, Detective Dillmann testified the evidence of the glasses of whiskey
discovered in Hines’ apartment . . . corroborated ‘perfectly’ the descriptions in Floyd’s
confession, and supported its credibility.” (emphasis added).
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                                       No. 17-30421
key bottle, not the highball glasses, and Dillmann never mentioned the “whis-
key bottle” or “whiskey” generally. Reviewing with AEDPA deference, it is
easy to see that the presence of an unidentified third party’s partial prints on
a whiskey bottle located in the kitchen could reasonably be interpreted as not
impeaching Dillmann’s testimony that the presence of glasses in the bedroom
(the murder scene) corroborated Floyd’s confession that he and Hines shared a
drink. 12

       The majority also contends that the fingerprint analysis is “favorable
because it supported Floyd’s third-party-guilt defense.” Though the majority
is correct that evidence strengthening a defense can be favorable under Brady,
the majority again fails to view the issue through the proper lens.

       We must review whether it would be reasonable for the Louisiana courts
to conclude that the presence of an unidentified third party’s partial prints on
a whiskey bottle not directly connected to the murder scene does not
strengthen Floyd’s third-party defense. Without a stronger connection be-
tween the item containing the fingerprints and the crime, it is not unreasona-
ble for the Louisiana courts to conclude the evidence did not strengthen the




       12 The majority responds by claiming that Dillmann provided “erroneous” testimony,
given that he said there were two glasses in the bedroom. The majority points to a tech report
that says the tech dusted a glass in the bedroom and a glass in the kitchen. First, the majority
has decided, because it fits its narrative, to credit the tech over Dillmann. That is curious
because, as the majority admits, the photograph from the kitchen depicts two bottles of whis-
key but no whiskey glass (or glasses of any sort). Thus, the glass was not “with the whiskey
bottle” as the majority states. Second, it is possible for Dillmann and the tech report both to
be accurate, as maybe there were a glass in the kitchen and two glasses in the bedroom.
Third, even assuming Dillmann mischaracterized where the glasses were, that does not
undermine the fact that there is no evidence connecting the kitchen to the murder scene, and
Dillmann still never testified about “whiskey.”
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                                       No. 17-30421
defense 13 and thus was only neutral evidence of innocence or guilt. 14

       AEDPA deference requires us to test for any reasonable explanation.
And it is plausible to characterize the fingerprint analysis “as neutral
evidence.” Sipe, 388 F.3d at 487. Review of the fingerprint analysis rightly
ends here, on the favorability prong.

       Regarding the analyses of the fingerprints from the Robinson crime
scene, all of the prints on one glass in the hotel room belonged to Robinson,
while all others belonged to an unidentified person. Unlike the prints discov-
ered at the Hines crime scene, some but not all of the prints at the Robinson
crime scene were on items potentially connected to the murder. The prints on
the drinking glasses in the hotel room (the murder scene) certainly could serve
as exculpatory evidence—for the Robinson murder. Some may believe that
additional evidence exculpating Floyd of the Robinson murder could poten-
tially favor exculpation from the Hines murder. But it is also reasonable to
believe that evidence exculpating Floyd of one murder—a murder that he was
previously acquitted of because there was already evidence presented in the
joint case exculpating him of that murder—does not tend to show innocence of



       13See, e.g., Lines v. Terrell, No. CIV. A. 07-3532, 2009 WL 2870162, at *15 (E.D. La.),
report and recommendation adopted, No. CIV. A. 07-3532, 2009 WL 2929334 (E.D. La. 2009)
(“While evidence regarding the lack of petitioner’s fingerprints might have been helpful to
the defense, that is not the standard for required disclosure. Brady is not violated simply
because potentially helpful information is withheld. . . . [T]he negative fingerprint analysis
would not show that petitioner never handled the evidence, but rather only that there were
no fingerprints proving that he had done so. That information is not exculpatory and does
not put the whole case in such a different light as to undermine confidence in the verdict.”).
       14 See BLACK’S LAW DICTIONARY 675 (10th ed. 2014) (defining exculpatory evidence as
“[e]vidence tending to establish a criminal defendant’s innocence.”); United States v. Ruiz,
536 U.S. 622, 628 (2002) (“[E]xculpatory evidence is evidence the suppression of which would
‘undermine the confidence in the verdict.’” (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995))); United States v. Bagley, 473 U.S. 667, 676 (1985) (“Such evidence is evidence favor-
able to an accused, so that, if disclosed and used effectively, it may make the difference
between conviction and acquittal.” (internal quotation marks and citations omitted)).
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                                       No. 17-30421
the other murder.

       And, the prints from the vehicle suffer largely the same fate as the prints
at the Hines crime scene. The vehicle has never been directly connected to the
crime, and it would not be unreasonable for there to be numerous third-party
prints (including those of Robinson’s friend whom he drove home earlier in the
evening) within a vehicle. 15 Thus, the prints from the vehicle could easily be
classified as neutral, and, after we accord AEDPA deference, so too could the
prints on glasses found at the Robinson crime scene.

       Even if the fingerprints on the glasses should have properly been deemed
favorable, they would still fail the materiality prong. Throughout the joint
trials, the defense undermined Floyd’s confession to the Robinson murder with
numerous other pieces of evidence, such as the fact that though Floyd claimed
he wiped himself with a tissue after receiving oral gratification from Robinson,
that tissue actually contained semen that could not belong to either Floyd or
Robinson.

       So, ample evidence at trial indicated the presence of a third party and
undermined the credibility of Floyd’s confession. A state court could thus deem
any additional evidence to be cumulative and not material under Fifth Circuit
precedent. 16

       As for Clegg’s statement, I agree that it could only reasonably be labeled



       15 Accord Sosa v. Dretke, 133 F. App’x 114, 121–22 (5th Cir. 2005) (explaining that the
presence of other fingerprints in putative getaway car was not exculpatory because it “merely
shows . . . that others had been in the car at some point in time”).
       16    See, e.g., Sipe, 388 F.3d at 478 (“Thus, ‘when the undisclosed evidence is merely
cumulative of other evidence [in the record], no Brady violation occurs.’” (quoting Spence v.
Johnson, 80 F.3d 989, 995 (5th Cir. 1996))); Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir.
1999) (“When Brady evidence would have only a cumulative or marginal impact on the jury’s
credibility assessment, habeas relief is not in order because the evidence is not mate-
rial . . . .”).
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                                       No. 17-30421
as favorable, because it could be used to weaken Dillmann’s testimony that
during his “follow-up investigation, initially after the homicide,” he spoke “with
several people . . . [and] had learned that Mr. Hines’ sexual preferences was
not to any one race. He was involved with both black and white males, and he
was very indiscriminate . . . .” 17 Dillmann interviewed Clegg and reported that
Clegg stated Hines was indiscriminate in his tastes.                   Thus, Clegg’s con-
tradictory statement—that Hines had only ever pointed out black men the few
times Clegg and Hines went to gay bars together—would serve as impeach-
ment evidence.

       That statement, however, fails the final prong of Brady—materiality. As
the majority notes, under that prong we consider “the cumulative effect of all
[suppressed] evidence.” Sipe, 388 F.3d at 478. But, “[w]e include in this cum-
ulative materiality analysis only the evidence that survived Brady’s other
prongs . . . .” Id. at 491. As the only piece of evidence to clear the first two
prongs, the Clegg statement is correctly evaluated by itself. 18

       The state court could have reasonably concluded that Clegg’s statement
was not material. “[E]vidence is material only if there is a reasonable proba-
bility that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Bagley, 473 U.S. at 682. “A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.”
Id. “[T]he question is whether ‘the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence




       17 Of note, Dillmann’s testimony suggests he relied on more than just one person for
his belief that Hines had indiscriminate preferences.
        As previously explained, the Hines fingerprint analysis fails the favorability prong.
       18

The Robinson fingerprint analyses also fails it, or at the very least is cumulative of evidence
presented at trial.
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                                         No. 17-30421
in the verdict.’” 19 “‘The materiality of Brady material depends almost entirely
on the value of the evidence relative to the other evidence mustered by the
state.’” 20

       Clegg admitted he had limited knowledge of Hines’s sexual prefer-
ences. 21 The state court could conclude that Clegg’s statement does not signifi-
cantly dispel the possibility that Hines was open to relations with a white male
nor that a white male could have committed the murder. At least Thomas
Bloodworth, another good friend of Hines’s, testified he had never seen Hines
“socially in the company of a black person” other than one friend who had
moved away.

       Regardless, learning that Clegg (who had moved out of the state ten
years before and had been back only for visits) 22 had, in the few instances they
were at gay bars together, only heard Hines point out specific black men as
attractive, can easily be regarded as not throwing the case into a whole new
light or undermining confidence in the verdict. That is especially true in com-
parison to the value of the opposing evidence—Floyd’s separate confessions to
the police and to bar owner Steven Edwards. Thus, when we apply AEDPA
deference, the state court reasonably could have discounted Clegg’s




       19   Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435).
       20Sipe, 388 F.3d at 478 (quoting Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990),
vacated on other grounds, 503 U.S. 930 (1992)).
       21Clegg stated in his affidavit, “I was never, in fact, aware of the frequency of [Hines’s]
sexual relations with anyone.”
       22 In fact, Clegg’s statement implies that he and Hines had not visited a gay bar
together in ten years. That further illustrates why it would be reasonable for a state court
to determine that an opinion based on ambiguous statements made ten years before the
murder are not material.
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    Case: 17-30421       Document: 00514527089         Page: 47     Date Filed: 06/25/2018



                                      No. 17-30421
statement. 23

       In sum, we are bound by AEDPA and Brady. Under AEDPA, we accord
strong deference to the state court and test for any reasonable basis on which
its decision could rest. Under Brady, we look only at evidence presented at
trial and any allegedly suppressed evidence—but no more. For these reasons,
the district court erred, and I respectfully dissent.




       23 Even assuming the majority is correct―that we can only cherry-pick certain sen-
tences from Clegg’s affidavit instead of analyzing its reliability as a whole to determine
whether the differing statement “put the whole case in such a different light as to undermine
confidence in the verdict”―the fact that one friend believed Hines had a penchant only for
black men does not inarguably “undermine confidence in the verdict.” Strickler, 527 U.S.
at 290 (internal citations and quotation marks omitted).
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