                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0031p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                   X
        Petitioner-Appellee/Cross-Appellant, -
 KARL HARRIS,
                                                    -
                                                    -
                                                    -
                                                        Nos. 05-2104/2159
           v.
                                                    ,
                                                     >
                                                    -
       Respondent-Appellant/Cross-Appellee. -
 BLAINE C. LAFLER,
                                                    -
                                                   N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
              No. 03-74822—Bernard A. Friedman, Chief District Judge.
                                Argued: December 11, 2008
                           Decided and Filed: January 30, 2009
             Before: ROGERS, SUTTON and McKEAGUE, Circuit Judges.

                                    _________________

                                         COUNSEL
ARGUED: Janet A. VanCleve, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. John F. Royal, Detroit, Michigan, for Appellee.
ON BRIEF: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. John F. Royal, Detroit, Michigan, for Appellee.
                                 _________________

                                         OPINION
                                    _________________

        SUTTON, Circuit Judge. A jury convicted Karl Harris of violating several Michigan
criminal laws, including second-degree murder, and the judge sentenced him to 52 to 77
years in prison. His state-court efforts to obtain relief came to naught, and he filed this
federal habeas corpus petition, which the district court rejected in all respects, save one: It
granted relief on his Brady claim that the prosecution failed to disclose three statements
made by the police to the State’s lead witness before he testified. We affirm.




                                              1
Nos. 05-2104/2159                Harris v. Lafler                                      Page 2


                                              I.

        On the night of March 8, 1997, Harris and his friend Richard Ward were involved
in a fight at a Detroit-area nightclub. What began as a tussle between Harris and another
individual, Erwin Smith, escalated into a club-wide melee, which security guards eventually
brought to an end with the aid of pepper spray. After the club emptied out, Smith and six
of his friends piled into an SUV and drove away, heading east on I-96. Before long, Smith
noticed that he was being followed, and, not long after that, someone inside the pursuing
vehicle fired several rounds from an AK-47 assault rifle at the SUV. Two passengers in the
SUV were killed, and several others were wounded. No one in the SUV could identify the
gunman.

        The police arrested Ward and Harris about a month after the shooting. Ward gave
two statements to the police about the incident and testified at Harris’s preliminary
examination, stating that he drove the pursuing vehicle on the night of the shooting and that
Harris fired the AK-47 at the SUV. (Although Ward is paralyzed from the waist down, he
has the capacity to drive a car with hand-held controls.) At Harris’s jury trial, Ward invoked
his Fifth Amendment rights, after which the trial court allowed the State to introduce Ward’s
preliminary-examination testimony. Harris, for his part, did not testify, but he contradicted
Ward’s account of the evening through the testimony of his girlfriend, who said that she was
with Harris immediately after the fight at the club and that the two of them spent the
remainder of the night at Harris’s mother’s house. The jury convicted Harris on all eight
counts: two counts of second-degree murder, five counts of assault with intent to murder and
one count of possession of a firearm during the commission of a felony.

        When Harris filed a motion for a new trial, the trial court granted him an evidentiary
hearing, where three pieces of information came to light. First, Ward testified that, after the
police officers arrested him, they told him that if he gave a statement about the shooting they
would release Ward’s girlfriend, who had been arrested along with Harris and Ward. Ward
gave a statement, but the officers did not release his girlfriend because they “didn’t like the
statement.” JA 818. Ward admitted that he had not told “the complete truth” in the first
statement, then offered a second statement two days later, JA 99, after which the police
released his girlfriend. The key difference between the two statements was that Ward first
Nos. 05-2104/2159                Harris v. Lafler                                        Page 3


claimed that someone else was driving the vehicle on the night of the shooting and that he
and Harris were passengers, but he later admitted that he was the driver and that Harris was
the sole passenger. Ward pegged Harris as the shooter in both statements.

        Second, Ward testified that, on the day of Harris’s preliminary examination, a police
officer told Ward that if he testified consistently with his second statement the police would
release him. At the preliminary examination, Ward testified consistently with his second
statement, and the police released him later that day.

        Third, the same officer told Ward that if anyone asked him whether he had been
promised anything in exchange for his testimony, he should deny that any promises were
made. When Ward testified at the preliminary examination, Harris’s counsel asked him
several times whether the police had promised him anything in exchange for his testimony.
Ward denied that any promises had been made.

        Notwithstanding this evidence, the trial court denied Harris’s motion for a new trial,
including his claim that the State violated his due-process rights by failing to produce
exculpatory evidence. The Michigan Court of Appeals affirmed his conviction, and the
Michigan Supreme Court denied review.

        When Harris filed a federal habeas corpus petition, the district court sized up his due-
process claim differently. Relying on Brady v. Maryland, 373 U.S. 83 (1963), and its heirs,
the court concluded that the prosecutor’s failure to disclose these three exchanges between
Ward and the police violated Harris’s due-process rights. The district court denied Harris’s
other claims. The warden appealed the district court’s grant of the writ, and Harris, after
receiving a certificate of appealability, cross-appealed the denial of three of his other claims.

                                               II.

        Before addressing the merits of the district court’s decision, we must resolve a
threshold question of process. A federal district court, generally speaking, may not grant the
writ on a “mixed” petition, one containing claims that the petitioner has pressed before the
state courts and claims that he has not. See 28 U.S.C. § 2254(b)(1)(A); Rhines v. Weber, 544
U.S. 269, 273–74 (2005).
Nos. 05-2104/2159                Harris v. Lafler                                       Page 4


        At the district court, the State contended that Harris had not exhausted three of his
thirteen claims in the state courts and contended that the district court therefore had no
authority to address the merits of any of Harris’s claims, including his exhausted Brady
claim. Harris, as it turns out, raised one of these claims in the state courts, namely his claim
that the courts should have immunized Ward so that he could testify in person at Harris’s
trial. But the State was correct that Harris did not “fairly present” the other two claims to
the state courts: that the trial judge took inadequate steps to protect the jury from being
tainted by threatening comments made to two jurors during a trial recess, and that he
improperly led the jury to believe that it could not have trial testimony read back to it during
deliberations. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). For reasons never explained,
the district court did not address the State’s argument that the court lacked authority to
address any of Harris’s claims until they had all been exhausted or voluntarily dismissed.
The court instead proceeded to address the merits of each of Harris’s arguments and granted
relief on one of them. That was error. See Rhines, 544 U.S. at 273–74; 28 U.S.C.
§ 2254(b)(1)(A).

        The question is what to do about it. When faced with this predicament in the past,
we have vacated the order granting the writ and remanded the case to the district court so
that it could do one of four things: (1) dismiss the mixed petition in its entirety, Rhines, 544
U.S. at 274; (2) stay the petition and hold it in abeyance while the petitioner returns to state
court to raise his unexhausted claims, id. at 275; (3) permit the petitioner to dismiss the
unexhausted claims and proceed with the exhausted claims, id. at 278; or (4) ignore the
exhaustion requirement altogether and deny the petition on the merits if none of the
petitioner’s claims has any merit, 28 U.S.C. § 2254(b)(2). See Rockwell v. Yukins, 217 F.3d
421, 425 (6th Cir. 2000).

        That path normally is the correct one to take, and we would take it here but for the
fact that this case presents two additional wrinkles: Harris has agreed in his appellate briefs
(and at oral argument) to dismiss with prejudice any unexhausted claims, and the State in
response has not insisted that we remand the case to the district court before we address the
merits of the exhausted claims. Nothing prevents Harris (through his counsel) from agreeing
to dismiss some of his claims with prejudice, and nothing prevents us from holding him to
his promise. Nor does anything prevent the State from agreeing to allow us to review the
Nos. 05-2104/2159                 Harris v. Lafler                                        Page 5


exhausted claims or for that matter the unexhausted claims at this point. The exhaustion
requirement does not define the subject-matter jurisdiction of the federal courts. See, e.g.,
White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005). The requirement is designed to give
the States and the state courts a first look at a habeas petitioner’s claims, Rhines, 544 U.S.
at 273, and a State is free to waive that right when it wishes, see 28 U.S.C. § 2254(b)(3);
D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir. 2008).

        In the unusual setting of this case—where the district court apparently overlooked
unexhausted claims and the State on appeal has identified no interest supporting a remand
for dismissal of those claims or for that matter urged us to remand the case for that
purpose—there is good reason for permitting the parties to move immediately to the
substance of the dispute at the expense of its traditional form. As the district court’s decision
suggests, Harris’s Brady claim is a serious one. If Harris and the district court are correct
about the merits of this claim, he is entitled to a new trial, one that may give him what he
wants—a release from custody—a form of relief he no doubt wishes to secure sooner rather
than later. The State may perceive that its interests cut in the same direction. If Harris and
the district court are correct, the State has no interest in delaying that new trial, as time runs
the risk of making any evidence of guilt stale, if not non-existent. And if Harris and the
district court are wrong, the State has an interest in removing the threat of a new trial now
rather than later. The alternative—vacating the district court’s decision, remanding the case
to the district court, permitting it to dismiss Harris’s two unexhausted claims, allowing it to
re-enter its same order, then permitting the State to appeal again—thus serves no one in this
instance and neither party has argued otherwise. We therefore will permit Harris to abandon
claims ten and eleven, will proceed to the merits of Harris’s Brady claim and will direct the
district court on remand to dismiss claims ten and eleven of Harris’s habeas petition—his
two unexhausted (and now voluntarily abandoned) claims.

                                               III.

        Because Harris filed his habeas petition after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEPDA), we may grant relief on Harris’s Brady
claim only if the state-court rulings were “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
Nos. 05-2104/2159                 Harris v. Lafler                                     Page 6


United States.” 28 U.S.C. § 2254(d). To obtain relief on his Brady claim, Harris must
establish that: (1) the State suppressed relevant evidence; (2) the evidence was favorable to
him; and (3) there is a “reasonable probability” that the outcome of the trial would have been
different if the evidence had been disclosed. See Strickler v. Greene, 527 U.S. 263, 281–82,
289–90 (1999) (internal quotation marks omitted). The question, then, is whether the state
courts contradicted or unreasonably applied these requirements in rejecting Harris’s Brady
claim.

         There is not much to say about the first two requirements. As to the first, the police
made three pertinent statements to Ward: that his girlfriend would be released if they were
satisfied with his statement about the incident; that Ward would be released if he testified
at Harris’s preliminary examination consistently with his second statement to the police; and
that Ward should not tell anyone that the police had promised him anything in return for his
statements or testimony. The prosecution did not disclose these statements, and they plainly
were relevant to the credibility of Ward’s testimony. Contrary to the state court of appeals’
assumption, People v. Harris, No. 212870, 2001 WL 1004367, at *1 (Mich. Ct. App. Aug.
31, 2001), it makes no difference that the prosecutors did not know about the police officers’
statements.    The Brady obligation applies even to “evidence known only to police
investigators” and thus imposes upon prosecutors “a duty to learn of any favorable evidence
known to the others acting on the government’s behalf . . . including the police.” Strickler,
527 U.S. at 280–81 (internal quotation marks omitted). Brady thus applies to relevant
evidence in the hands of the police, whether the prosecutors knew about it or not, whether
they suppressed it intentionally or not, id., and whether the accused asked for it or not, id.
at 280; accord United States v. Agurs, 427 U.S. 97, 107 (1976).

         As to the second requirement, these statements amount to favorable evidence.
Because Brady applies not only to exculpatory evidence but also to impeachment evidence,
see United States v. Bagley, 473 U.S. 667, 676 (1985), and because Harris could have used
these statements to cast doubt on the credibility of Ward’s testimony, Brady covers the
statements. Harris, then, satisfies the first two elements of a Brady claim, and indeed the
State does not argue otherwise.
Nos. 05-2104/2159                 Harris v. Lafler                                     Page 7


          There is more to say about the third requirement, prejudice, and the state courts’
apparent conclusion—“apparent” because the state courts never specifically said anything
about this prong of the test—that the disclosure of this evidence would not have created a
reasonable probability that the outcome at trial would have been different. The district court
held that the state courts unreasonably applied this requirement, and so do we.

          Ward, to begin, was not a run-of-the-mill witness. He was the key witness for the
prosecution. Ward gave an eyewitness, on-the-scene account of the shooting that explicitly
identified Harris as the gunman. And this testimony not only implicated Harris, but it also
implicated Ward as an accomplice in the murder, giving the testimony a highly credible
veneer.

          Nor was Ward’s testimony one damning piece of evidence among many; it was the
only piece of eyewitness evidence that directly linked Harris to the shooting. Without
Ward’s testimony, the prosecution’s case was circumstantial: None of the other witnesses
could identify the gunman or place Harris at the scene, and there was no forensic or physical
evidence connecting Harris to the crime. Cf. Strickler, 527 U.S. at 293 (noting that failure
to disclose impeachment material was not prejudicial in part because “there was considerable
forensic and other physical evidence linking petitioner to the crime”). Appreciating the
importance of Ward’s eyewitness account, the prosecution featured it in closing arguments.
See Strickler, 527 U.S. at 290.

          In view of the State’s failure to produce the three statements, Harris’s counsel had
nothing to work with in challenging Ward’s credibility. There was no publicly filed
immunity deal; Ward’s testimony seemed credible on its face as he had implicated himself
as the driver in the crime spree; and Harris’s key witness could not challenge the details of
Ward’s testimony, except to suggest that Harris was somewhere else at the time of the crime.
Even though a transcript of the hearing shows that Harris’s counsel anticipated that Ward
must have been promised something in exchange for his testimony, he had no way to prove
it. Counsel asked Ward at least six times whether the police or prosecution had made him
any promises or offered him any kind of a deal, and each time Ward disclaimed any quid pro
quo for his testimony. Confronted with these denials, counsel’s efforts to impeach Ward fell
Nos. 05-2104/2159                Harris v. Lafler                                      Page 8


to identifying a minor inconsistency between Ward’s two police statements: whether Ward
was the driver or just a passenger in the car.

        That leaves us with a murder conviction in which Ward’s testimony was the
centerpiece of the prosecution’s case, the State submitted no other evidence directly linking
Harris to the crime, Harris presented a witness who denied that he was at the scene of the
crime and Harris had no basis (other than the suppressed Brady material) for meaningfully
impeaching Ward’s credibility. Under these circumstances, it is exceedingly plausible that
the disclosure of these three promises would have cast Ward’s testimony, and thus all of the
prosecution’s case, in a different light—so different, indeed, that it undermines our
confidence in the conviction and so different that the state court of appeals’ contrary
conclusion represents an unreasonable application of Brady. With these promises in hand,
Ward had every incentive to tailor his testimony in a way the police and prosecutors found
desirable. And without knowing about these promises, the jury had no basis for questioning
Ward’s account of events. Considerable authority from the Supreme Court and our court
indicates that a defendant suffers prejudice from the withholding of favorable impeachment
evidence when the prosecution’s case hinges on the testimony of one witness. See Banks v.
Dretke, 540 U.S. 668, 700–01 (2004); Giglio v. United States, 405 U.S. 150, 154–55 (1972);
Mathis v. Berghuis, 90 F. App’x 101, 107–108 (6th Cir. 2004); see also Bagley, 473 U.S. at
683; Napue v. Illinois, 360 U.S. 264, 269 (1959); Joseph v. Coyle, 469 F.3d 441, 471–72
(6th Cir. 2006).

        Nor were Ward’s statements too informal to “rise to the level of a promise to induce
Ward’s testimony,” as the state court of appeals concluded. Harris, 2001 WL 1004367, at
*1. Brady is not limited to formal plea bargains, immunity deals or other notarized
commitments. It applies to “less formal, unwritten or tacit agreement[s],” so long as the
prosecution offers the witness a benefit in exchange for his cooperation, see Bell v. Bell, 512
F.3d 223, 233 (6th Cir. 2008) (en banc); accord Wisehart v. Davis, 408 F.3d 321, 323–24
(7th Cir. 2005), so long in other words as the evidence is “favorable to the accused,” Bagley,
473 U.S. at 678; see also Giglio, 405 U.S. at 152–53. The three police statements satisfy that
requirement.
Nos. 05-2104/2159                Harris v. Lafler                                      Page 9


        The district court also had ample grounds for accepting Harris’s argument that the
police made these statements to Ward. After the trial, Ward testified at the state-court
evidentiary hearing that police officers had made these promises to him, and the State did
not offer then, and has not offered since, any evidence to the contrary. It makes no
difference that Ward ultimately gave three different versions of events: one at Harris’s
preliminary examination, one in an affidavit attached to Harris’s motion for a new trial and
one at the post-trial-evidentiary hearing itself. That Ward’s preliminary-examination
testimony differed from his affidavit in one respect—by disclosing the exchanges between
him and the police—is of course the whole point of his Brady claim and the central premise
of it. And the only difference between Ward’s affidavit and his testimony at the post-
conviction evidentiary hearing was trivial. In his affidavit Ward said that the prosecutor told
him on the day of Harris’s preliminary hearing that he would be released if he testified
consistently with his second statement (and that Ward should deny that any promises were
made to him), while at the post-conviction hearing he said that one of the police officers said
these things. That minor difference does not mandate rejecting Ward’s testimony, especially
when the State to this day has failed to present any testimony or evidence rebutting Ward’s
version of events.

        The State alternatively urges us to remand the case to the district court for an
evidentiary hearing at which the State can attempt to show that the promises/statements were
never made. But the State never made that request to the district court and thus has forfeited
it on appeal. See Enertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257, 261 (6th
Cir. 1996). And the State has no tenable basis for saying that it was surprised by this
evidence or its relevance to the conviction. Nearly eight months before the state-court
hearing, Harris filed a supplemental memorandum in support of his motion for a new trial
to which he attached an affidavit by Ward claiming that the police made these statements.
Having failed to challenge the factual accuracy of Ward’s testimony before the state courts
and the district court, the State cannot challenge it now. The time to submit evidence or seek
an evidentiary hearing is before factual allegations become the basis for a decision against
the State, not after. Because Harris is entitled to a new trial on his Brady claim, we need not
reach the arguments raised in his cross-appeal.
Nos. 05-2104/2159              Harris v. Lafler                                   Page 10


                                           IV.

       For these reasons, we affirm the district court’s assessment of Harris’s Brady claim
and remand the case to the district court to dismiss claims ten and eleven and to enter
judgment granting the conditional writ in favor of Harris.
