                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0251n.06

                                      Nos. 08-5583/08-5584                              FILED
                                                                                     Apr 20, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


WILLIAM LEWIS HOUSTON,                                  )
                                                        )         ON APPEAL FROM THE
       Petitioner-Appellee/Cross-Appellant,             )         UNITED STATES DISTRICT
                                                        )         COURT FOR THE MIDDLE
               v.                                       )         DISTRICT OF TENNESSEE
                                                        )
ROBERT WALLER, Warden,                                  )
                                                        )         OPINION
       Respondent-Appellant/Cross-Appellee.             )


BEFORE: NORRIS, ROGERS and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Warden Robert Waller appeals the district court’s

grant of a writ of habeas corpus to petitioner William Houston based on a violation of Houston’s due

process rights under Brady v. Maryland, 373 U.S. 83 (1963). Houston cross-appeals, arguing that

a second ground for habeas relief, premised on ineffective assistance of counsel, was erroneously

rejected by the district court. We AFFIRM the district court’s grant of habeas relief on Houston’s

Brady claim.

                                                 I.

A. Houston’s Arrest, Conviction, and Direct Appeal in State Court

       Houston was convicted in state court of selling cocaine in various amounts on six occasions,

facilitating the sale of cocaine on one occasion, selling counterfeit cocaine on one occasion, and

aggravated assault. The events leading to these convictions took place between February and May

1997. The drug purchases were made by Ted Watkins, a paid undercover agent, and monitored by
Nos. 08-5583/08-5584
Houston v. Waller

Officer Dan Miller (“Miller”) of the Giles County Sheriff’s Department, and Agent Pat Howell

(“Howell”) of the Tennessee Bureau of Investigation (“TBI”). Both Miller and Howell testified at

Houston’s trial in April, 1999. Houston received a sentence of seventy-two years.

       On direct appeal, Houston argued error on various grounds unrelated to the instant Brady

claim. On December 7, 2000, the Court of Criminal Appeals of Tennessee affirmed Houston’s

conviction, but reduced his sentence to forty-six years. The Supreme Court of Tennessee denied

Houston permission to appeal on May 8, 2001.

B. Howell Reveals His Cocaine Use

       TBI agent Howell had worked for the TBI from February 16, 1989 until April 9, 1998, and

again from November 2000, to September 18, 2001. Howell was the case agent on Houston’s case,

meaning he was in charge of the case and it was “his responsibility to organize the case, organize any

actions that take place in that case, keep a case file, and prepare the case for prosecution.” Howell

also would help fill in portions of the transcribed recordings from the wires that the confidential

informant wore that were unintelligible. Over a two-month period beginning in February 1997,

Howell supervised the controlled buys from Houston, took possession of the cocaine after the buys,

and was responsible for submitting the cocaine to the TBI. In five of the six buys, the amount of

cocaine submitted to the TBI evidence lab was less than the amount agreed on for the buy. In the

sixth and final buy, Howell determined, based presumably on experience of one sort or another, that

the substance the confidential informant had received was not cocaine, and Howell returned to

Houston’s home posing as an associate of the confidential informant and demanded his money back.


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Houston v. Waller

When confronted by Howell, Houston drew a gun on him. In response, Howell drew his own

firearm and Houston fled into the house. This incident was the basis for the aggravated assault

charge against Houston.

       On September 15, 2001, Howell called Roy Copeland, an officer with the TBI Drug

Investigation Division, and informed Copeland that he had been using cocaine. Copeland informed

others at the TBI of what Howell had told him, and Howell was put on leave pending an

investigation. Howell subsequently resigned.

       Howell has given conflicting accounts of when he began using cocaine and how frequently

he used it. In the course of a TBI investigation into Howell’s conduct, Howell admitted that he had

been dealing with depression for several years; that he had been hospitalized in Arizona for his drug

use during the time period between 1998 and 1999 in which he was not employed by the TBI; that

he had a psychological dependency on cocaine; that he used an escort service on more than one

occasion for sex; that he had on a couple of occasions used cocaine with women from the escort

service; and that he had taken cocaine from drug purchases that he had made while working for the

TBI, prior to their submission to the TBI, as well as from cocaine he had checked out from the TBI

Crime Laboratory for “reverse” operations, in which he would act as an undercover drug dealer. The

occasions where Howell obtained cocaine from amounts checked out from the TBI included at least

once in 1997 or 19981 , and once that produced the cocaine he had in his possession the night he


       1
         An agent who had been working with Howell on a separate investigation stated in a report
that on August 6, 1997, the quantity of cocaine Howell delivered to the agent was 13.3 grams less
than the quantity for which Howell had paid the target. In a statement, Howell also admitted that he

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Houston v. Waller

called agent Copeland.2 The TBI investigation only reviewed the evidence in cases that Howell had

worked on since his return to the TBI in 2000. That review showed that in six instances in the 21-

month period preceding his confession, Howell delivered to the TBI a lesser amount of cocaine than

that for which he had paid.

       In a sworn statement to the TBI, Howell stated that he first started using cocaine in 1998

while undercover, taking cocaine both from an undercover buy and from cocaine checked out for an

undercover operation. Howell stated that the next time he used cocaine was in July 2000, obtaining

“small amounts” of cocaine from purchases he would make, and that he did this three to four times

over a six-month period. Howell stated that at the beginning of 2001, he went for about ten weeks

without using cocaine, and then started using cocaine again approximately twice a week. Howell

recalled some of the specific cases in which he removed cocaine from buys, sometimes replacing the

amount with baking soda. Howell admitted that once in May or June of 2001, he used his own

money to purchase cocaine through a confidential informant, who was under the impression that it

was a “controlled buy.” On another occasion, Howell purchased cocaine using his own money from

an individual who was under investigation.


took amounts of cocaine from evidence checked out of the TBI lab “right before I left the bureau in
1998.” TBI Evidence Lab records show that Howell checked out kilograms of cocaine from the Lab
on September 4 and 15, 1997.
       2
        This is presumably the same amount that Howell admitted to obtaining on the occasion he
checked out drugs for a reverse operation on September 10, 2001. On that occasion, he admitted to
taking approximately 10 grams of cocaine from the original amount, and made up for the lost weight
with extra duct tape around the package. The TBI confirmed that 7.7 grams of cocaine was missing
from the package.

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Houston v. Waller

       On October 19, 2001, Howell was indicted on four counts of tampering with evidence, and

one count of possession of a controlled substance. On February 20, 2003, Howell pled guilty to two

counts of tampering with evidence. During the April 21, 2003, sentencing hearing in that case,

Howell took the stand. He first stated that he began using cocaine in 2000, but under cross-

examination admitted that he used cocaine for the first time in 1997.3 Howell stated that it was in

part because of his cocaine usage that he left the TBI in February 1998 and returned in November

2000. During this absence, Howell attended a treatment center in Arizona, Cottonwood de Tucson,

for a month of in-patient treatment. Howell testified that when he returned to the TBI, he did not

inform anyone that he had a cocaine problem. Howell received a sentence of three years probation.

       Howell testified at Houston’s trial in April 1999, during the window of time in which he had

left the TBI. Howell’s cocaine use was not mentioned on direct or cross examination, or at any other

point during Houston’s trial or direct appeal. Howell later testified at Houston’s post-conviction

hearing and in the district court, as further described below.

C. Houston’s Petition for Post-Conviction Relief in State Court




       3
         On November 10, 2003, Howell testified in a hearing on a Writ of Error Coram Nobis in a
different case where the defendants were similarly challenging their convictions based on the
subsequently revealed information that Howell, who testified against them at trial, had been using
cocaine. At the hearing, Howell stated initially that he “began using cocaine in - - about a year prior
to the Fall of 2001.” An attorney for the defendants then directed Howell to the statement he
provided to the TBI in which he stated he began using cocaine “again” in July of 2000. After
additional questioning, Howell admitted that he had used “on one occasion prior to that, years
before.” He then admitted that the “one occasion” was “a six-week period” in late 1997.

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Houston v. Waller

       On November 21, 2001, Houston filed a pro-se petition for post-conviction relief. The pro-se

petition made four claims for relief, including a claim premised on newly discovered evidence. In

the process of making his argument based on newly discovered evidence, Houston claimed, inter

alia, “that Howell tampered with and withheld evidence favorable to Defense,” “this newly

discovered evidence is such that it seriously impeaches the credibility of the undercover agent who

testified for the State,” “neither the defendant nor his counsel had knowledge of the alleged facts

(about Agent Howell) prior to trial,” “[t]he trial transcript indicates defense counsel had no concrete

facts that Howell was a crooked cop who tampers with evidence,” and “[t]he materiality of this

newly relevant evidence is such that would affect the outcome or would change the verdict in this

case.” Houston also cited, quoted, and discussed State v. Singleton, 853 S.W.2d 490, 496 (Tenn.

1993), which cites Cagle v. Davis, 520 F. Supp. 297, 309 (E.D. Tenn. 1980), aff’d, 663 F.2d 1070

(6th Cir. 1981). Houston argued that in Singleton, “The Court of Criminal Appeals ordered a new

trial on [the] basis of newly discovered evidence seriously impeaching the credibility of the

undercover agents who testified for the State.” Houston also discussed the exhaustion requirement

for federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) and concluded: “In this regard, the petition in this case suggests that the petitioner has

now presented his federal claim to the state courts for review.” After the appointment of counsel,

an Amendment to Petition for Post-Conviction Relief was filed, stating, inter alia:

       3. NEWLY DISCOVERED EVIDENCE

       That the TBI has an internal file with regard to TBI agent, Patrick Howells’ [sic][,]
       behavior. The petitioner, William Lewis Houston, spoke with other TBI agents

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Houston v. Waller

       regarding the behavior and statement of Patrick Howell. The petitioner, William
       Lewis Houston, has subpoenaed this internal file and upon receiving same will
       amend this petition accordingly.
       Further, TBI agent, Patrick Howell, has made incriminating statements to the TBI
       which if known at the time of William Lewis Houston’s trial would have been
       beneficial in his defense.

       Howell testified at Houston’s post-conviction hearing. Howell stated that he did not use

cocaine in 1997, and that in 1998 and 1999, before Houston’s trial, he was treated at a Tucson,

Arizona hospital for depression. Houston admitted he was being treated for depression at the time

he was working on Houston’s case, but claimed he was not using cocaine at that time and did not

take any drugs for his personal use from quantities purchased from Houston.

       On January 13, 2003, the court dismissed the petition for post-conviction relief. As to

Houston’s claim based on newly discovered evidence, the court held:

       Based on the testimony of Patrick Howell, and the reports filed by the Tennessee
       Bureau of Investigation, the Court finds that Patrick Howell neither used cocaine, nor
       tampered with evidence prior to the trial of the Petitioner. The Petitioner has failed
       to prove by a preponderance of the evidence that Mr. Howell’s post-trial conduct,
       which resulted in criminal charges being brought against Mr. Howell, caused any of
       Mr. Houston’s constitutional rights to be abridged at the trial. The Court further
       finds that there is no newly discovered evidence that would entitle Petitioner to post-
       conviction relief.

D. Houston’s Appeal of the Denial of Post-Conviction Relief in the State Court

       On, September 8, 2003, Houston filed an appeal from the denial of post-conviction relief in

the Court of Criminal Appeals of Tennessee. Relevant to the claim in the instant appeal, Houston

argued: “Whether Newly Discovered Evidence of Officer/Witnesses’ Wrong Doing and Character

Mandates a New Trial.” The “newly discovered evidence” argument addressed the “specific


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Houston v. Waller

requirements which must be met in order to grant a new trial based upon newly discovered

evidence.” The argument noted the centrality of Howell’s testimony to the case against Houston,

and that Howell had been indicted for the use or possession of cocaine. Houston identified a three-

prong test under Tennessee law that must be applied in order to determine whether a new trial is

appropriate on the basis of newly-discovered evidence. These prongs are that “the defendant has

been reasonably diligent in obtaining the evidence, the materiality of the new evidence is apparent,

and the evidence is likely to change the result.” Houston argued that the first prong was met because

the evidence of Howell’s cocaine use did not come to light until after Houston’s conviction, and

“[t]herefore, no counsel in the exercise of the greatest diligence would have been able to obtain the

evidence about Patrick Howell’s character and his wrong doings involving cocaine.” Houston next

argued that the information was material because it was “not only character evidence which could

have been used at trial to question the creditability [sic] of the TBI agent. It also goes to the real

evidence that was presented at trial.” In relation to the third prong, Houston argued that “the

testimony of a confidential informant bolstered by a law enforcement officer who subsequently is

indicted for tampering with evidence of the exact same nature [as] the evidence in the present case

would mandate that a jury would not return a verdict as favorable as that of the first trial.” Houston

included in his brief a citation to Cagle v. Davis, 520 F. Supp. 297, 309 (E.D. Tenn. 1980), aff’d, 663

F.2d 1070 (6th Cir. 1981).




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Houston v. Waller

       On June 16, 2004, the Court of Criminal Appeals of Tennessee affirmed the decision of the

post-conviction court. The court held that Houston was not entitled to post-conviction relief based

on the newly discovered evidence of Howell’s cocaine use:

       The Tennessee Bureau of Investigation agent, Patrick Howell, was the agent in
       charge of Petitioner’s case and handled the actions of a confidential informant. At
       the time of the post-conviction hearing, Agent Howell was under indictment for
       several counts of use or possession of cocaine, as well as[] evidence tampering for
       incidents during 2001. Petitioner argues that the later indictments of Howell raise
       questions of his credibility at petitioner’s trial.

       Tennessee Code Annotated section 40-30-103 sets out the grounds for relief under
       a petition for post-conviction relief. Tennessee Code Annotated section 40-30-103
       states, “[r]elief under this part shall be granted when the conviction or sentence is
       void or voidable because of the abridgment of any right guaranteed by the
       Constitution of Tennessee or the Constitution of the United States.” The discovery
       of newly-discovered evidence as to a witness’s credibility does not fall within these
       parameters. This Court has stated:

               It has been long established that issues concerning the sufficiency of
               the evidence, the guilt or innocence of the accused, and the
               competency or credibility of witnesses, who testified at the trial are
               not cognizable in post-conviction proceedings.

       Cole v. State, 798 S.W.2d 261 (Tenn. Crim. App. 1990). Clearly, the discovery of
       new evidence which calls into question the credibility of a witness at trial is not
       grounds for post-conviction relief. [Footnote: “The proper method of presenting
       arguments such as the one raised here is by a writ of error coram nobis. Tennessee
       Code Annotated section 40-26-105.”]

       Moreover, the indictments against Agent Howell center around allegations of
       criminal wrongdoing which occurred in 2001, four years after the incidents which
       form the bases of the petitioner’s convictions, and two years after the petitioner’s
       trial. To accept the petitioner’s argument that such a situation requires a new trial
       would mean that any trial witness who subsequently engages in criminal conduct
       creates grounds for re-opening long final convictions. We do not believe this to be
       the law.


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Houston v. Waller

        The Supreme Court of Tennessee denied Houston permission to appeal on October 4, 2004.

E. Houston’s Habeas Petition

        On March 15, 2005, Houston filed a pro se petition for a writ of habeas corpus in the district

court. Subsequently, Houston was assigned a federal public defender and filed an amended petition.

The Amended Petition claimed a violation of due process under Brady, based on the government’s

withholding of material exculpatory evidence from Houston regarding Howell’s cocaine use.

        As grounds for his violation of due process argument, Houston argued that the Tennessee

Court of Criminal Appeals erred in denying Houston’s petition for post-conviction relief, and that

it did so “in both its factual findings and legal conclusions.” He claimed the court erred in its factual

finding that Howell’s cocaine use did not occur until 2001. He claimed the court erred in its legal

finding that “issues concerning . . . the competency or credibility of witnesses, who testified at the

trial are not cognizable in post-conviction proceedings.” This holding was legal error, Houston

claimed, because the TBI “investigative reports [detailing Howell’s cocaine use] were not made until

September 2001, nearly three years after Mr. Houston’s trial and several months after the denial of

his direct appeal on May 7, 2001. Thus, Mr. Houston had no recourse but to raise the issue during

his post-conviction appeal.” Houston also claimed that his due process rights were violated because

the newly discovered evidence of Howell’s cocaine use was “material and exculpatory both as to Mr.

Houston’s conviction and sentence,” and that the prosecution had a constitutional duty to divulge

that information pursuant to Brady.




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Houston v. Waller

       The district court granted discovery and expansion of the evidentiary record, and held an

evidentiary hearing. Howell testified at the evidentiary hearing. In his testimony, he stated that the

“primary reason” he left the TBI in 1998 was because he “got a writing deal, a publishing deal.”

Howell testified that he began using cocaine around November or December, 1997, but stated he did

not use cocaine in 1998, and did not use cocaine again before November 1999, when he returned to

the TBI. Howell testified that he did not recall telling anyone outside of the TBI that he used drugs

in 1997, 1998, or 1999. He also stated that he did not tell any of the prosecutors with which he

worked that he used drugs in 1997, 1998, or 1999. He stated that the first time someone at the TBI

was aware of his drug use was when he called Copeland in 2001.

       The district court granted a conditional writ of habeas corpus on Houston’s Brady claim on

March 28, 2008. The district court found that “[t]he Tennessee appellate court . . . made findings

on the Brady claim based upon Petitioner’s ‘newly discovered evidence’ claim about the TBI agent,”

and held that “the state courts addressed the merits of this contention and even if defaulted, the

suppressed evidence is clearly material.” The district court found that the information of Howell’s

drug use was required to be disclosed to Houston under Brady because: Howell was a key witness

in Houston’s case; his use of cocaine impacts his credibility and recollection of events; and,

therefore, the information that he was using cocaine “at least during the period of Petitioner’s trial

is material impeachment evidence that could seriously affect issues as to amounts of cocaine actually

purchased.” The court found that, although the state-court record reflected that neither the TBI nor

the prosecution was aware of Howell’s drug use during Houston’s trial, the information was required


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Houston v. Waller

to be disclosed under Brady because “Brady extends to exculpatory or impeachment information that

is known by police officers assigned to the prosecution team.” The district court continued:

       Howell was involved in the Petitioner’s buys that gave rise to his trial. A key
       witness’s use of cocaine impacts the witness’s credibility and recollection of events.
       In that respect, the TBI agent’s usage of cocaine at least during the period of
       Petitioner’s trial is material impeachment evidence that could seriously affect issues
       as to amounts of cocaine actually purchased. This impeachment evidence leads this
       Court to have a lack of confidence in the verdict giving rise to Petitioner’s
       conviction. Although the Tennessee appellate court found that the TBI agent’s
       criminal charges did not arise until four years after the Petitioner’s trial and the
       evidence tampering occurred two years after Petitioner’s trial, the evidence in this
       Court is that the TBI agent’s cocaine use and his tampering with evidence began in
       1997 and 1998[. T]hat was prior to and during the same time period as the
       Petitioner’s criminal investigation and trial. The State courts’ findings on this issue
       are unreasonable because those courts lacked a complete review of the lead agent’s
       activities. The timing of the agent’s use of cocaine and tampering with evidence is
       the key, not the date of his conviction.

       The Warden timely appealed the grant of the writ on the Brady claim and Houston appealed

the denial of the writ based on an ineffective assistance of counsel claim.4

                                                 II.

       This court reviews the district court’s conclusions of law de novo and its factual findings for

clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).




       4
          The Government moved for a stay of the district court’s grant of the writ pending appeal on
May 6, 2008. Houston moved for his release pending appeal on May 19, 2008. On July 22, 2008,
the district court denied both motions, but allowed Houston to renew his motion if the state court had
not retried him within 120 days. On August 26, 2008, after the Warden filed a Notice of Appeal, the
district court granted Houston’s motion for release because it was concerned that “denial of release
pending the appeal will result in the confinement of Petitioner who is confined based upon an
unconstitutional conviction.”

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Houston v. Waller

        The district court’s opinion focused primarily on whether the evidence of Howell’s cocaine

use and evidence tampering was subject to disclosure under Brady. On appeal to this Court,

however, the Warden does not argue that the evidence of Howell’s cocaine use was not subject to

disclosure under Brady at the time of Houston’s trial, but rather limits his argument to whether the

Brady claim is barred by procedural default because it was not presented to the state courts. Houston

argues that he did adequately present his Brady claim to the state courts through his argument and

factual allegations, as well as his citation to relevant federal authority. The district court dispensed

with that argument briefly, stating that “as reflected earlier in this Memorandum, the state courts

addressed the merits of this contention and even if defaulted, the suppressed evidence here is clearly

material.”

        A habeas petitioner is generally required to exhaust state remedies by presenting the

substance of his constitutional claim to the state courts prior to seeking federal habeas relief. 28

U.S.C. § 2254(b)(1)(A)5. “The exhaustion-of-state-remedies doctrine, now codified in the federal

habeas statute, 28 U.S.C. [§§] 2254(b) and (c), reflects a policy of federal-state comity, an

accommodation of our federal system designed to give the State an initial opportunity to pass upon

and correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275

(1971) (internal footnotes, citations and quotations omitted). Federal courts “have consistently


        5
            28 U.S.C. 2254(b)(1)(A) states:

        An application for a writ of habeas corpus on behalf of a person in custody pursuant
        to the judgment of a State court shall not be granted unless it appears first that–the
        applicant has exhausted the remedies available in the courts of the States[.]

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Houston v. Waller

adhered to this federal policy, for it would be unseemly in our dual system of government for a

federal district court to upset a state court conviction without an opportunity to the state courts to

correct a constitutional violation.” Id. (internal quotations omitted).

        A petitioner’s failure to fairly present a claim to the state courts can lead to procedural

default:

        In situations in which a petitioner has failed to fairly present federal claims to the
        state courts, and a state procedural rule now prohibits the state court from considering
        them, the claims are considered procedurally defaulted. While in such situations the
        exhaustion requirement is technically satisfied because there are no longer any state
        remedies available to the petitioner the petitioner’s failure to have the federal claims
        considered in the state courts results in a procedural default of those claims that bars
        federal court review.

Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009) (internal citations omitted).6 The petitioner

has the burden of proving exhaustion. Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003).

        Once a federal claim has been “fairly presented” at the first possible opportunity within “one

complete round of the State’s established appellate review process,” the claim has been exhausted.

Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004); Caver, 349 F.3d at 346.7 This means,



       6
         While a petitioner may obtain relief on a claim that is procedurally defaulted by showing
either (1) cause and prejudice, or (2) that failure to adjudicate the defaulted claim would result in a
fundamental miscarriage of justice, Houston does not argue either of those possibilities here. Schlup
v. Delo, 513 U.S. 298, 321 (1995); Murray v. Carrier, 477 U.S. 478, 489 (1986).
       7
         A “complete round” requires a petitioner to also present the issues to the state supreme court.
O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999). The record does not contain Houston’s
petition to the Tennessee Supreme Court for permission to appeal the denial of post-conviction
relief, but the Warden does not contend that any issues raised in Houston’s appeal from denial of
post-conviction relief in the trial court were not also presented to the Tennessee Supreme Court.

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Houston v. Waller

broadly, “that the substance of a federal habeas corpus claim must first be presented to the state

courts.” Picard, 404 U.S. at 278. Determining when a claim has been “fairly presented” is

contextual and individual to each case. In some instances, simply presenting the facts, without also

presenting “the constitutional claim . . . inherent in those facts” is insufficient. Id. at 277. In others,

however, “the ultimate question for disposition will be the same despite variations in the legal theory

or factual allegations urged in its support.” Id. (internal quotations and citations omitted); Jells v.

Mitchell, 538 F.3d 478, 504 (6th Cir. 2008) (“To present a claim fairly, it is sufficient if the

substance of the claim was presented to the state courts, such that the ultimate question would have

been the same despite variations in the legal theory or factual allegations urged in its support.”). It

is “not enough . . . that a somewhat similar state-law claim was made,” Anderson v. Harless, 459

U.S. 4, 6 (1982), nor is it sufficient to raise general allegations of the denial of rights to a fair trial

and due process because they do not fairly present claims that specific constitutional rights were

violated. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see Katt v. Lafler, 271 F. App’x

479, 481 (6th Cir. 2008) (finding claim that admission of hearsay “violated the rules of evidence

[and] denied [the petitioner's] constitutional rights to due process and a fair trial. US Const, Ams

V, VI, XIV” not sufficient for fair presentation). This does not mean, however, that a petitioner need

have “recite[d] book and verse on the federal constitution.” Abshear v. Moore, 354 F. App’x 964,

967 (6th Cir. 2009) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)).




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Houston v. Waller

        Recognizing that “[a] claim may only be considered ‘fairly presented’ if the petitioner

asserted both the factual and legal basis for his claim to the state courts,” in McMeans, this Court

reiterated that there are

        four actions a defendant can take which are significant to the determination whether
        a claim has been “fairly presented”: (1) reliance upon federal cases employing
        constitutional analysis; (2) reliance upon state cases employing federal constitutional
        analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently
        particular to allege a denial of a specific constitutional right; or (4) alleging facts well
        within the mainstream of constitutional law.

McMeans, 228 F.3d at 681 (citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987)).

        In Franklin, 811 F.2d at 326, this Court quoted Daye v. Attorney General, 696 F.2d 186 (2d

Cir. 1982) (en banc), for the four factors to be considered in assessing whether there has been a fair

presentation. In Daye, after noting that “[t]he chief purposes of the exhaustion doctrine would be

frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was

substantially different from that asserted in state court,” the court explained:

        By the same legal “basis” or “doctrine,” we do not mean that there can be no
        substantial difference in the legal theory advanced to explain an alleged deviation
        from constitutional precepts. For example, constitutional doctrine forbids use of a
        confession against a defendant unless the confession was voluntary. A number of
        legal theories may be advanced as to why a confession was not voluntary. Yet all that
        is needed to alert the state courts to the constitutional nature of the claim is the
        exposition of the material facts and the assertion that the confession was not
        voluntary.

Daye, 696 F.2d at 192 n.4. The court in Daye continued its analysis:

                The more specific the description of the right in question- e.g., assistance of
        counsel, double jeopardy, self-incrimination-the more easily alerted a court will be
        to consider a constitutional constraint couched in similarly specific terms. The
        greatest difficulty arises when in the state court the petitioner has described his claim

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Houston v. Waller

       in very broad terms, such as denial of a “fair trial.” The concept of fairness embraces
       many concrete notions, ranging from such fundamental matters as the right of the
       defendant to know the charges against him, to such lesser interests as his right to
       have each count of the indictment charge him with no more than one criminal
       violation, or the right to have access to reports by informant witnesses to law
       enforcement officials, or the right to present information in mitigation of punishment
       before being sentenced after conviction. Obviously not every event in a criminal
       proceeding that might be described as “unfair” would be a violation of the
       defendant's rights under the Constitution. In order to determine, therefore, whether
       a claim that the defendant has been denied a “fair trial” involves a constitutional
       claim, one must look to the factual allegations supporting the claim. Some will be of
       patently constitutional dimension. If the defendant claimed that he was accused of
       one crime but convicted of an entirely different crime and hence was denied a fair
       trial, no reasonable jurist would doubt that the defendant's claim implicated his
       constitutional right to due process of law. In contrast, a defendant's claim that he was
       deprived of a fair trial because of the admission in evidence of a statement
       objectionable as hearsay would not put the court on notice that the defendant claimed
       a violation of his constitutional right to be confronted by his accusers.
               The general principle governing assessment of whether a fair trial claim is
       of constitutional dimension is that where the claim rests on a factual matrix that is
       well within the mainstream of due process adjudication, the state courts must be
       considered to have been fairly alerted to its constitutional nature. If, on the other
       hand, the claim is based on a fact pattern not theretofore commonly thought to
       involve constitutional constraints, there is usually little reason to believe the courts
       were alerted to its supposed constitutional nature.
               In addition, however, even if a particular matter is not treated generally as
       having constitutional dimension, if the courts of the state in question have themselves
       previously treated that fact pattern as appropriate for constitutional analysis, it
       would be unreasonable to suppose that they are not alert to constitutional
       considerations. Thus we consider that a defendant who cites state precedent that
       employs pertinent constitutional analysis has adequately put the state courts on
       notice of the constitutional thrust of his claim.

Daye, 696 F.2d at 193-94 (internal footnotes, citations, and quotations omitted; emphasis added).

       Houston argues that he satisfied the fair presentation requirement through three of the four

Daye factors adopted by this Court in Franklin: (1) phrasing the claim in terms sufficiently


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Houston v. Waller

particular to allege a denial of a specific constitutional right; (2) alleging facts well within the

mainstream of a due process constitutional violation based on Brady, which Tennessee state courts

would have recognized based on their prior application of Brady; and (3) citing federal authority

addressing Brady issues. We will address the first two factors together, and then proceed to the

third.

A. Phrasing the Claim in Terms Sufficiently Particular to Allege a Denial of a Brady Right,

and Allegation of Facts Well Within the Mainstream of a Due Process Brady Violation.

         In support of the first and second factors, Houston points to a number of statements from his

pro se post-conviction petition to the trial court. However, to be fairly presented any claim would

have to be made to “one complete round of the State’s established appellate review process.”

O’Sullivan, 526 U.S. at 845 (finding claims not presented to state supreme court for discretionary

review are not exhausted); Baldwin v. Reese, 541 U.S. 27, 31-32 (2004); Williams v. Anderson, 460

F.3d 789, 806 (6th Cir. 2006) (finding claim procedurally defaulted where, although raised in state

appellate court, not raised before state supreme court). Therefore, because the petition to the

Supreme Court of Tennessee is not part of the record, and there is no claim that it differed from the

petition before us, we will review the petition in Houston’s first appeal of the denial of post-

conviction relief.

         Houston stated in the facts portion of his post-conviction appellate brief:

         Since the trial of the petitioner’s case, there has been newly discovered evidence that
         the lead investigating agent was involved in criminal activity relating to drugs and
         evidence tampering. TBI Agent, Patrick Howell, testified that he was under
         indictment for possession and several indictments for tampering with the evidence.

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Houston v. Waller

          Agent Howell’s wrong doings did not come to light until September 2001 which was
          over two years after petitioner’s trial. The factual background of Agent Howell’s
          tampering with evidence and drug possession were not known to the petitioner or his
          counsel at the time of his trial; thus, he was not afforded an opportunity to question
          Agent Howell with regard to his wrong doings which may have been related to
          matters involving the petitioner’s case.

          In his argument premised on newly-discovered evidence, Houston quoted a state court case

for the proposition that newly-discovered evidence will support a new trial where “the testimony of

the witness who is sought to be impeached was so important to the issue, and the evidence

impeaching the witness so strong and convincing, that a different result must necessarily follow.”

The brief then noted that Howell was the case agent for Houston’s case, and argued that “his

testimony is absolutely imperative to placing the cocaine in the possession of the petitioner.” Later,

Houston described the evidence as “newly discovered impeachment evidence,” and stated that it was

“character evidence which could have been used at trial to question the creditability [sic] of the TBI

agent.”

          Brady and its progeny in the Supreme Court have phrased the rules regarding the

government’s obligation to disclose favorable information to defendants in slightly different ways.

See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”); Giglio v.

United States, 405 U.S. 150, 153-54 (1972) (“[S]uppression of material evidence justifies a new trial

irrespective of the good faith or bad faith of the prosecution. When the reliability of a given

witness281

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Houston v. Waller

may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls

within this general rule.” (internal citations and quotations omitted)); United States v. Bagley, 473

U.S. 667, 676, 682 (1985) (“Impeachment evidence . . . falls within the Brady rule. . . . [E]vidence

is material only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”); Strickler v. Greene, 527 U.S.

263, 281-82, 289 (1999) (“There are three components of a true Brady violation: The evidence at

issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued. . . . He must convince us that ‘there is a reasonable probability’ that the result

of the trial would have been different if the suppressed documents had been disclosed to the

defense.”)

       Houston did allege facts well within the mainstream of a Brady claim, and he phrased his

claim in terms sufficiently particular to a Brady claim. Houston presented a claim to the Court of

Criminal Appeals of Tennessee regarding “impeachment evidence” that was “newly discovered,”

i.e., undisclosed, regarding a state witness.8 He explained why the evidence was material and

favorable to Houston, and that Howell’s centrality to Houston’s case was such that he was likely

       8
         Houston’s argument does not explicitly allege withholding of the information by the state.
In other circumstances, this might be fatal to his claim. See Beach v. Moore, 343 F. App’x 7, 11-12
(6th Cir. 2009) (facts alleged in support of due process involuntary statement claim not within the
mainstream of constitutional law because they alleged coercion by petitioner’s lawyer, not by police).
However, in this case, where the withheld evidence was purportedly known only by the government
witness who testified and to whom Brady applies directly, there is no question that his failure to
divulge this information was a withholding by the government.

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Houston v. Waller

prejudiced by the failure to disclose the information such that “a different result must necessarily

follow.” Houston also made the point that not having the evidence of Howell’s cocaine use during

trial deprived him of “an opportunity to question Agent Howell with regard to his wrong doings

which may have been related to matters involving the petitioner’s case.” Thus Houston claimed that

he was denied the opportunity to cross-examine a crucial government witness, who was also a

government agent, regarding the credibility of his testimony because he was unaware at trial of the

government agent’s wrongdoing, and that because of the centrality of the government agent’s

testimony, a different result must follow.

        Prior decisions of this Court in regard to other constitutional claims indicate that Houston’s

allegations were sufficiently similar to a Brady claim to be well within its constitutional scope. For

example, in Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005), this Court held that an ineffective

assistance of counsel claim premised on a conflict of interest between trial and appellate counsel was

fairly presented to the state courts even though “the question of the alleged conflict of interest could

certainly have been made in a more specific and more emphatic manner,” where Michigan courts

were

        demonstrably very knowledgeable of federal law regarding ineffective assistance of
        counsel and claimed conflicts of interest, were made aware of the fact that Defendant
        was represented by the same attorney at trial and on appeal and, to the extent that this
        represented a conflict of interest, it was brought to the attention of the Michigan
        courts.




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Houston v. Waller

Id. at 615. Similarly, in West v. Bell, 550 F.3d 542 (6th Cir. 2008), this Court found that the facts

alleged in state court in support of a due process prosecutorial misconduct claim “were sufficiently

particular and well within the mainstream of constitutional law” where petitioner had

       specifically stated that the prosecutor’s comments . . . were “highly prejudicial and
       improper.” . . . Though this statement was not close to an invocation of the Supreme
       Court’s standard for judging prosecutorial misconduct, it was evocative of language
       that we articulated in United States v. Leon, 534 F.2d 667 (6th Cir. 1976). As we
       stated in Leon, we evaluate claims of prosecutorial misconduct using four factors,
       including “whether the remarks tended to mislead the jury or to prejudice the
       accused.” Id. at 679. . . . Indeed, in Leon, the court found that the remarks at issue
       were “improper and highly prejudicial,” Leon, 534 F.2d at 678, the very same phrase
       used by West.
Id. at 564; see also Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (assertion of facts that a

witness’s out-of-court statements were asserted for their truth and that she was unavailable for cross-

examination were well within the mainstream of Confrontation Clause violation); Jackson v.

Edwards, 404 F.3d 612, 619 (2nd Cir. 2005) (argument is fairly presented “when the substance of

the federal habeas corpus claim is clearly raised and ruled on in state court, although the federal

principle may initially be attached to a different label than the one ultimately affixed in federal

habeas proceedings” (internal citation omitted)).

       In Blankenship v. Estelle, 545 F.2d 510, 514-15 (5th Cir. 1977), the petitioner brought a due

process habeas claim based on Giglio v. United States, 405 U.S. 150 (1972) (finding government’s

failure to disclose alleged promise made to prosecution witness that he would not be prosecuted if

he testified violated Brady). The Fifth Circuit found the claim fairly presented even though it was

not raised as a Giglio claim in state court:


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Houston v. Waller

        Concededly, the particular case holding of Giglio was not called to the states courts’
        attention. However, the kernel of petitioner’s complaint is that he was convicted on
        perjured testimony, knowingly used by the prosecution; or, at the least, that he was
        deprived by the State of impeachment evidence helpful and material to his defense.
        Courts have long been on notice that such a conviction violates due process
        requirements. Brady v. Maryland, 373 U.S. 83 [](1963); Napue v. Illinois, 360 U.S.
        264 [] (1959); Pyle v. Kansas, 317 U.S. 213 [] (1942); Mooney v. Holohan, 294 U.S.
        103 [] (1935). Petitioner’s application in the state court proceedings clearly raised
        this issue; he is not required to cite to the state court “book and verse on the federal
        constitution,” Picard v. Connor, 404 U.S. 270 [] (1971), in order to adequately
        present his constitutional claim.


Blankenship, 545 F.2d at 514-15. The facts Houston presented to the state courts, as well as his

argument regarding the prejudice he incurred as a result of not being informed of Howell’s cocaine

use, were sufficient to alert the state courts of the constitutional dimension of his claim.

        Further, as Houston notes, Tennessee courts have dealt with multiple Brady cases using

similar language to that used in Houston’s brief, and thus may be presumed to be familiar with such

claims. See Daye, 696 F.2d at 194 (“if the courts of the state in question have themselves previously

treated that fact pattern as appropriate for constitutional analysis, it would be unreasonable to

suppose that they are not alert to constitutional considerations”); see, e.g., Register v. State, No.

01C01-9605-CC-00199, 1999 WL 333114, *4 (Tenn. Crim. App. May 26, 1999) (analyzing under

Brady where “petitioner claims that the state withheld exculpatory information . . . [and] . . . that he

is entitled to a new trial”); Eisom v. State, No. 02C01-9703-CC-00105, 1998 WL 195952, *1 (Tenn.

Crim. App. April 24, 1998) (analyzing under Brady where “the petitioner claims . . . that he should

be granted a new trial because the state failed . . . to disclose exculpatory evidence”).



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Houston v. Waller

        Therefore, these two factors support Houston’s claim that he fairly presented his Brady claim

to the state courts.

B. Citation of Federal Authority

        Houston also argues that his citation of federal authority in his post-conviction brief to the

Tennessee Court of Criminal Appeals supports his argument that the Brady claim was fairly

presented. See Fleming v. Metrish, 556 F.3d 520, 548 (6th Cir. 2009) (finding claim fairly presented

in part based on presentation of federal authority) (Clay, J., dissenting); West, 550 F.3d at 564

(same). For fair presentation purposes, the cited federal authority need not strongly support the

federal constitutional claim, as long as it makes clear “the federal law basis for [the] claim.”

Gonzales v. Wolfe, 290 F. App’x 799, 811 (6th Cir. 2008); cf. Beach v. Moore, 343 F. App’x 7, *11

(6th Cir. 2009) (where petitioner relied on four federal cases that discussed federal evidentiary rule,

but “[n]othing in the text of the rule refers to any constitutional right . . . [n]or do the cases

interpreting it employ any federal constitutional analysis,” citations did not support argument that

constitutional claim was fairly presented).

        In his post-conviction appellate brief, Houston cited “Cagle v. Davis, 520 [F]. Supp. 297, 309

(E.D. Tenn. 1980), aff’d 663 F.2d 1070 (6th Cir. 1981)” for the proposition that “when the verdict

is already one of questionable validity, newly discovered evidence of relatively minor importance

may be sufficient to create the probability of acquittal.” Cagle was a decision on a habeas petition

summarily dismissing two grounds for relief and discussing at length the third claim asserting a

“deni[al] of federal due process of law when the state of Tennessee suppressed evidence favorable

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Nos. 08-5583/08-5584
Houston v. Waller

to [petitioner] which had materiality on the issue of his guilt or innocence.” Cagle, 520 F.Supp. at

300. The court found that evidence that would have reflected on the reliability of a trial witness was

“directly material to [petitioner’s] guilt or innocence.” Id. at 308. The Cagle court noted that it was

conducting its analysis “on the bases that [the government] received no general request for

exculpatory material from [petitioner] within the meaning of Brady v. State of Maryland (1963), 373

U.S. 83.” Id. at 303. Cagle also relied on United States v. Agurs, 427 U.S. 97 (1976), which

addressed whether certain background information about a victim had to be supplied under Brady.

The Court granted the writ.

       Although Houston did not assert a Brady claim based on Cagle in so many words, Cagle is

directly relevant to a Brady claim, and discussed the requirements of Brady as well as the standard

for determining prejudice. This factor also supports a finding that Houston fairly presented his

Brady claim to the state courts.

                                                 III.

       At the evidentiary hearing on his post-conviction motion, Houston sought to establish,

through questioning Howell regarding the TBI reports and summaries, that Howell was involved

with cocaine at the time he was investigating Houston and at the time he testified at Houston’s trial.

Howell denied this, and the circuit court accepted Howell’s testimony, concluding that:

       Based on the testimony of Patrick Howell, and the reports filed by the Tennessee
       Bureau of Investigation, the Court finds that Patrick Howell neither used cocaine, nor
       tampered with evidence prior to the trial of the Petitioner.




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Houston v. Waller

We agree with the district court that this factual finding 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.9 The TBI reports clearly support that Howell was using cocaine well before Houston’s

trial.10 That the Tennessee courts made factual findings that led them to miss the Brady issue does


       9
        Ordinarily, under the AEDPA, federal courts may not grant habeas relief for claims
adjudicated on their merits in a state court proceeding unless the state court proceeding:

       (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).

         Apparently referring to the AEDPA, the district court found both that the factual finding that
Howell did not use drugs until after the trial was an unreasonable determination of the facts in light
of the evidence presented in state court and that the court “lacked a complete review of the lead
agent’s activities. The timing of the agent’s use of cocaine and tampering with evidence is the key,
not the date of his conviction.” Respondent makes much of this “lacked a complete review”
language. It is unclear whether the court was saying that the lack of a full record led to the
unreasonable conclusion or that the court’s decision lacked a complete review of Howell’s activities.
The district court conducted an evidentiary hearing at which Howell provided more testimony.
However, the impeaching information that supported a conclusion that Howell was involved with
cocaine at the time of trial was before the Tennessee courts. Therefore, the Tennessee courts’
finding was unreasonable based on the information before it, and appeared even more unreasonable
in light of the testimony before the district court.

        Thus, even if Houston’s Brady claim was adjudicated on its merits, the claim would survive
AEDPA deference because it resulted in a decision that was based on an unreasonable determination
of the facts regarding when Howell’s drug use began.
       10
            As the district court observed, the TBI report, which was before the state courts, stated:

       Reverse Operation in 1997 and 2000

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Nos. 08-5583/08-5584
Houston v. Waller

not negate that the issue was fairly presented. Had the courts found that Howell was involved in the

relevant activities at the time of trial, the import of his failure to disclose this involvement would

have been apparent.

                                                 IV

       Thus, Houston’s Brady claim was fairly presented to the Tennessee state courts, and we

AFFIRM the district court’s grant of habeas on this claim. Because we affirm the district court’s

grant of habeas on this basis, we do not address Houston’s cross-appeal arguing that he is entitled

to habeas relief due to ineffective assistance of counsel.




       SA Howell indicated that he did take an amount of cocaine from a kilogram of
       cocaine he had checked out from the TBI Crime Laboratory in either 1997 or 1998.
       Laboratory records indicate that SA Howell checked out kilograms of cocaine for
       reverse operations on September 4, 1997; September 15, 1997; and on September 29,
       2000.
       ....
       [] This investigation revealed that SA Howell had been a user of cocaine off and on
       for a period of time beginning in 1997 until present. He had supplied his cocaine
       habit by tampering with and stealing cocaine from purchases made while working as
       a law enforcement officer. He had also tampered and taken cocaine from drug
       evidence designated to be used in reverse operations. This theft and tampering with
       evidence occurred in several cases beginning in 1998 through [] September 15, 2001.

                                                - 27 -
