                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 May 6, 2013
                                        PUBLISH              Elisabeth A. Shumaker
                                                                 Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 MICHAEL ALLEN BROWNING,

               Petitioner - Appellee,
          v.                                           No. 11-5102
 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary, *

               Respondent - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. NO. CV-07-00016-TCK-PJC)


Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the briefs) Office of the Oklahoma Attorney General,
Oklahoma City, Oklahoma, for Respondent-Appellant.

Jack Fisher, Fisher Law Office, Edmond Oklahoma (Paul S. McCausland, Young,
Bogle, McCausland, Wells & Blanchard, P.A., Wichita, Kansas, with him on the
brief) for Petitioner-Appellee.


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.




      *
       Pursuant to Fed. R. App. 43(c)(2), Randall G. Workman was replaced by
Anita Trammell as Warden of the Oklahoma State Penitentiary on March 1, 2013.
      This appeal requires us to consider the conviction by an Oklahoma jury of

Michael Allen Browning for the heinous murder of Harry and Teresa Hye, the

parents of his girlfriend Cenessa Tackett. Browning received a death sentence as

punishment for these crimes. The Oklahoma Court of Criminal Appeals affirmed

this conviction and sentence on direct appeal, Browning v. Workman, 134 P.3d

816 (Okla. Ct. Crim. App. 2006), and denied post-conviction relief.

      What the jury did not know—and the defense attorneys also did not

know—was that Tackett, who became the most important witness at trial, had

been diagnosed with a severe mental disorder. According to records from her

psychiatrist that were in the State’s possession, Tackett blurred reality and

fantasy, suffered from memory deficits, tended to project blame onto others, and

had an assaultive, combative, and even potentially homicidal disposition.

      In subsequent federal proceedings, the contents of Tackett’s mental health

records came to light, prompting the federal district court to grant a conditional

writ of habeas corpus under 28 U.S.C. § 2254(d). The district court reasoned that

Tackett’s mental health records were favorable to Browning and material to his

defense, especially considering Browning’s trial strategy to paint Tackett herself

as complicit in the murders. The district court therefore ruled that the

Constitution obligated the State to disclose those records to Browning before trial

pursuant to Brady v. Maryland.

                                         -2-
      Given the central role Tackett played at trial and the severity of her mental

health diagnosis, we agree with the district court that the psychiatric information

was favorable to Browning and material to his defense, and that the Oklahoma

courts could not have reasonably concluded otherwise. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

                              I. Legal Background

      This case turns largely on principles the Supreme Court established in

Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an

individual’s constitutional right to a fair trial obligates the prosecution in a

criminal case to turn over evidence to the defense in certain circumstances. Id. at

87. Specifically, “[u]nder Brady, the State violates a defendant’s right to due

process if it withholds evidence that is favorable to the defense and material to

the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012)

(reversing conviction).

      Evidence is “favorable to the defense” if it is exculpatory or impeaching.

Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a

reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Smith, 132 S. Ct. at 630 (internal

quotation marks omitted). “A reasonable probability does not mean that the

defendant would more likely than not have received a different verdict with the

evidence, only that the likelihood of a different result is great enough to

                                          -3-
undermine confidence in the outcome of the trial.” Id. (internal quotation marks

omitted; alterations incorporated).

      Further, materiality “is not a sufficiency of the evidence test. A defendant

need not demonstrate that after discounting the inculpatory evidence in light of

the undisclosed evidence, there would not have been enough left to convict.”

Kyles v. Whitley, 514 U.S. 419, 434–35 (1995). Instead, the defendant must show

the “favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id. at 435.

      Difficulty arises, however, when the Brady obligation to disclose comes up

against the various legal privileges that protect sensitive information from

disclosure, such as the psychotherapist-patient privilege at issue here. In such a

situation, the Supreme Court has directed lower courts to review such information

in camera to determine whether it meets the Brady standard. Pennsylvania v.

Ritchie, 480 U.S. 39, 57–58 (1987). If so, the court must order the prosecution to

turn over that information to the defense. Id.

      How these principles played out in Browning’s prosecution is the focal

point of this case. With this context, we therefore turn to the facts.

                      II. Factual & Procedural History

      A. The Crime

      In the early morning hours of February 18, 2001, Harry and Teresa Hye,

residents of Glenpool, Oklahoma, were shot to death and their house burned to the

                                          -4-
ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and

managed to escape the burning house. Tackett soon identified two perpetrators:

her former boyfriend, Michael Browning, and another man named Shane Pethel.

      As explained in more detail below, Tackett believed that Browning wanted

to kill her because she was pregnant with his baby, and Browning did not want to

pay child support. Browning also needed to kill the Hyes because they knew that

Tackett had identified him as the father. Browning allegedly recruited Pethel to

help carry out his plans. The State arrested Browning and Pethel and charged

them with capital murder.

      B. Tackett’s Mental Health Records

      Pretrial proceedings in this case took nearly two years. About halfway

through that process, Tackett’s attorney (for unknown reasons) faxed two

psychiatric reports to the prosecution. **

      The first report, dated October 29, 2001, summarized a psychiatrist’s

conclusions after five recent visits with Tackett beginning on October 4,

2001—about eight months after the crime. According to the report, Tackett

displayed “magical thinking” and a “blurring of reality and fantasy.”

      **
         These records are sealed but the parties summarize them extensively and
sometimes quote them in their publicly filed briefs. See Aplt. Br. at 8, 14, 19;
Aple. Br. at 2, 3, 18, 40, 44, 46–48, 51. Having compared the publicly available
material to the sealed records themselves, we find that these summaries and
quotations fairly and accurately reflect the sealed material. In describing the
contents of Tackett’s mental health records, we therefore confine ourselves to the
portions already summarized or quoted by the parties.

                                             -5-
      The second report, dated November 26, 2001, contained even more

disturbing information. It described Tackett as manipulative, grandiose,

egocentric, and stated that she typically projected blame onto others. The report

noted memory deficits as well. It described Tackett as a “code type . . . rarely

seen except in inpatient facilities.” Most strikingly, according to the report, “An

assaultive, combative, or even homicidal potential must be carefully considered”

(emphasis in original).

       When the prosecution received these reports, it revealed their existence but

not their contents to the defense. Browning moved to compel production. The

prosecution then contacted Tackett’s lawyer, who replied with a letter saying her

office had mistakenly faxed the psychiatric reports to the prosecution and that

Tackett had not authorized release of those medical records to anyone. Tackett’s

lawyer therefore requested that the prosecution seal the reports and return them.

      After multiple hearings on the motion to compel, the trial court reached

three conclusions, none of them helpful to Browning. First, it found that

Oklahoma’s psychotherapist-patient privilege protected the psychiatric reports.

Second, it found that the privilege had not been waived through the mistaken

disclosure. Third, following the Brady framework, it concluded that the reports

contained no material exculpatory or impeaching information. It reached this last

conclusion by examining the reports in camera, as directed by the Supreme Court

in Ritchie. Accordingly, the trial court denied Browning’s motion to compel.

                                         -6-
      C. The Trial

      The trial court severed Browning’s case from that of his co-defendant,

Pethel. Browning’s case went to trial first.

             1. The 911 Calls

      Before Tackett testified, the State played recordings of her two 911 calls.

R., Trial Tr., Vol. VII at 1218–19. The tape of the second call features a police

officer arriving during the course of the call and having the following exchange

with Tackett:

             Q. What’s the suspect’s name? Who shot you?

             A. Mike Browning. And—I’m pregnant with his baby
             and he didn’t want me to have it.

             Q. [indecipherable] suspect [indecipherable]

             A. [indecipherable] I remember them [indecipherable]
             and I been shot right here.

             Q. Okay, who’s they?

             A. Mike—and his best friend Shane. But it wasn’t
             Shane because I know Shane.

             Q. How many people were in the house when you got
             shot?

             A. Me—[overlapping indecipherable conversation
             between officer and dispatcher]—Mike Browning—
             [overlapping indecipherable conversation between
             officer and dispatcher]—and this other guy. . . .




                                         -7-
R., State’s Trial Ex. 2 at 3:30–4:00 (audio cassette recording). ***

              2. Tackett’s Trial Testimony

        No direct evidence besides Tackett’s testimony connected Browning to the

crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness

testimony and its credibility. Tackett’s version of events is as follows.

        Tackett and Browning became romantically involved in the mid-1990s.

Early in the year 2000, they ended their relationship and both began seeing new

people, but they would still occasionally have sex with each other. One such

encounter took place in August 2000. Tackett soon learned she was pregnant.

        Tackett and Browning did not see or speak with each other again until

January 2001, when Tackett and Teresa Hye called Browning to tell him about the

pregnancy. Browning responded angrily and refused to pay future child support,

maintaining he did not believe the baby was his and would insist on a paternity

test.

        Tackett and Browning again did not see or speak with each other for

another month. Then, on February 18, 2001, Browning knocked on Tackett’s

door at around 3 a.m. Tackett was awake and watching television. She let


        ***
          The court reporter did not transcribe the tapes into the trial record. This
is our transcription of the relevant portion of the second call. Another
transcription—not materially different from our own—appears in the record as
part of Browning’s motion to the OCCA for an evidentiary hearing. See R.,
Browning v. State, No. D-2003-363 (Okla. Ct. Crim. App.), Appl. for an
Evidentiary Hr’g, Ex. 1B at 6 (filed June 21, 2004).

                                          -8-
Browning into the house along with a stranger, whom she later identified as

Shane Pethel. Tackett specifically remembered that Browning was wearing

“black pants, brown shoes, gray shirt, tan hat, and a camouflage coat.” R., Trial

Tr., Vol. VII at 1349.

      Teresa Hye soon woke up and joined Tackett, Browning, and Pethel in the

living room. A few minutes later, Pethel pulled out a gun and forced Tackett and

Teresa Hye to sit quietly while Browning bound and gagged them with duct tape.

The two men then retrieved Harry Hye from the bedroom and tied him up next to

his family. At some point, Browning told Tackett that she “should have kept

[her] legs closed.” R., Trial Tr., Vol. VII at 1365.

      While the Hye family sat tied up on the sofa, Pethel and Browning carried

the family’s valuables to a truck in the driveway. **** Browning and Pethel then

carried the three victims into an interior closet. Browning tried but failed to set

the closet carpet on fire. At Pethel’s suggestion, Browning then doused the

hanging clothes with lighter fluid and lit them instead.

      Pethel said, “It is time,” and shot Harry Hye in the head. Teresa Hye began

to scream and Pethel shot her as well. Finally, he shot Tackett. R., Trial Tr.,

Vol. VII at 1402.




      ****
         The truck turned out to be Pethel’s, and the property was later
recovered from Pethel and a friend.

                                          -9-
      Tackett was not killed—she received only a minor flesh wound to the soft

tissue on the top of her shoulder, and also a grazing wound on her neck that might

have been caused by the same bullet. Tackett nonetheless fell against her mother

and lay still, playing dead. Once the men left, she managed to remove her duct-

taped pants, find a phone, run outside, and call 911. Tackett then reentered the

house, found a blanket, exited the house, soaked the blanket with water from an

outdoor spigot, covered herself, reentered the house, and attempted to rescue

Harry Hye—who was critically injured but still alive. Tackett dragged Harry as

far as the kitchen. Leaving him there, she went back toward the closet hopefully

to get Teresa. At this point, however, the fire had grown too intense, forcing

Tackett to retreat outside. She called 911 again and first responders soon arrived.

      Teresa Hye died in the closet. Harry Hye was rescued from the kitchen and

transported to a hospital, but died there shortly afterwards. Tackett was also

transported to a hospital for treatment of her flesh wound. Police questioned her

at the hospital about what had happened. Tackett identified Browning as one of

her assailants. She picked Pethel out of a photo lineup and identified him as the

other assailant.

      By Tackett’s own admission, she told one lie to the police during this

questioning. Specifically, she told the police that Browning or Pethel had shot

her dog and set fire to her two birds. Tackett explained at trial that this never

happened, but she said it to the police anyway because she believed the

                                         -10-
accusation “would get [Browning and Pethel] in more trouble.” R., Trial Tr., Vol.

VII at 1416.

               3. Tackett’s Cross Examination

      The defense’s theory of the crime was that Tackett had a motive to kill her

adoptive parents because she stood to inherit some amount of money or valuable

property. In the defense’s view, Tackett and Pethel were not strangers, but had

met when Tackett attended softball games in which Browning and Pethel

participated. The defense believed Pethel and Tackett conspired to rob and

murder the Hyes and frame Browning. The defense further believed that Tackett

chose to frame Browning in retaliation for his relationship with another woman.

On cross, defense counsel attempted to bring out details supporting this theory.

      Counsel was only partially successful. Concerning the supposed motive to

kill her parents, Tackett confirmed that she spoke with the family’s probate

attorney not long after the crimes occurred, that the Hyes “[p]robably” had a will,

and that she expected to receive “a little bit of money out of [a] trust” established

by the Hyes. R., Trial Tr., Vol. IX at 1628. But she did not know when or how

much. Tackett also agreed with defense counsel that her relationship with Harry

Hye (although not Teresa) was sometimes strained and she had twice run away

from home—including once by commandeering a golf cart and driving it down

the highway. Tackett further confirmed that when she dragged Harry Hye to the




                                         -11-
kitchen, she dragged him directly past the front door—which was unobstructed—

instead of dragging him out of the door. *****

        Concerning a motive to frame Browning, Tackett agreed with defense

counsel that, after her breakup with Browning, she still cared for him and felt

some jealousy in light of his new relationship. Tackett confirmed that, sometime

after getting pregnant but before telling Browning, she telephoned Browning’s

new girlfriend and had a “pretty ugly” conversation. R., Trial Tr., Vol. VIII at

1447.

        As to Tackett’s previous acquaintance with Pethel, she consistently denied

ever having met him before, at softball games or otherwise. Notably, defense

counsel failed to use the second 911 call against Tackett, i.e., the call in which

she identified her assailants as “Mike—and his best friend Shane. But it wasn’t

Shane because I know Shane.” ******



        *****
            Tackett had elsewhere explained to police (although it apparently did
not come out at trial) that she avoided the front door out of fear that she might be
seen there if Browning and Pethel returned. See Aplt. Br. at 17 n.3. She testified
at trial, however, that she exited the front door at least twice before returning for
Harry—first to call 911, and again to soak the blanket in which she wrapped
herself before reentering. See R., Trial Tr., Vol. VIII at 1600–06.
        ******
            Later in the trial, an investigator who spoke with Tackett at the
hospital testified that Tackett said she had been attacked by Browning and “a guy
named Justin.” R., Trial Tr., Vol. X at 1974; see also Vol. XI at 1993, 2001–02.
Browning’s trial counsel’s failure both to use Tackett’s “I know Shane” words
against her and to point out the inconsistency with the “guy named Justin” story
prompted an ineffective-assistance-of-counsel argument that the district court did
not rule on. R., Vol. 1 at 111–15.

                                          -12-
      Finally, in a move intended to cast doubt on Tackett’s credibility generally,

the defense elicited an admission about Tackett’s initial reaction to the knock on

her door at 3 a.m. Tackett confirmed a prior statement to police in which she

reported that she first thought the ghost of a former occupant had made the

knocking sound.

                4. Other Relevant Evidence

      Despite defense counsel’s attempt to undermine Tackett’s testimony,

certain evidence corroborated at least parts of it. The police, for example, found

Browning about twelve hours after the crime wearing the clothing Tackett

described when she spoke with police shortly after the murders (although

Browning’s clothing did not smell of smoke or have any other signs of being near

a fire). See R., Trial Tr., Vol. IX at 1774; Vol. X at 1952–53; Vol. XI at

2121–24. In addition, three witnesses saw Browning in a bar with Pethel between

1 and 2 a.m. on the day of the murders (shortly before the crimes took place) and

one of those witnesses saw Browning and Pethel together soon after Tackett’s 911

call. ******* R., Trial Tr., Vol. IX at 1671–73, 1689–90; Vol. XII at 2321–22.




      *******
            Browning gave no explanation for these facts at trial, although in a
post-conviction affidavit he claims he spent the period when the murders were
committed passed out drunk in Pethel’s truck. R., Vol. 1 at 533–34. That,
according to Browning, is where Tackett saw him and learned what he had been
wearing that night. Aple. Br. at 60.

                                        -13-
             5. The Quashed Subpoena

      Late in the trial, the defense unexpectedly subpoenaed Tackett’s attorney,

who had also been the Hyes’ estate counsel. The defense intended to put the

attorney on the stand to provide evidence of just how much Tackett stood to

inherit. The attorney appeared as directed but argued that the information sought

by defense counsel remained protected by attorney-client privilege because the

inheritance would come through a trust and the terms of that trust had yet to be

made public through probate or similar proceedings. The trial court agreed and

quashed the subpoena.

             6. Closing Arguments & Verdict

      The prosecution used its closing argument to show the many ways it

believed independent testimony corroborated Tackett’s account, as well as to

argue for the improbability of the idea that Tackett would conspire to kill the

Hyes. Tackett, according to the prosecution, was a hero rather than a villain.

      The defense countered that, in its view, various bits of Tackett’s story did

not make sense. Counsel emphasized that Tackett was the only eyewitness, but

her testimony was “not very reliable,” citing her initial belief that a ghost made

the knocking sound she heard at 3 a.m.—which supposedly “shows the mindset of

somebody who might just not be very reliable or perhaps even a little unstable.”

R., Trial Tr., Vol. XIII at 2399. Counsel dwelled on the lack of corroborating

physical evidence, and that one of Pethel’s friends could have been the

                                        -14-
accomplice. Id. at 2413. Emphasizing inconsistent testimony, counsel argued,

             So the question now comes up, if Cenessa Tackett lied
             not once but twice to law enforcement simply,
             quote/unquote, to get Mike into more trouble
             supposedly, what else can you believe about her story?
             Do we get to pick and choose? . . . The State of
             Oklahoma wants you, as the jury in this case, to convict
             this young man on [the testimony of] an admitted liar.

Id. at 2418. Finally, counsel touched on Tackett’s testimony that the route she

chose when attempting to drag Harry Hye out of the house took her past the front

door but she did not exit with him there.

      The jury deliberated about four hours and convicted on all counts. The

next day, the jury heard the penalty phase evidence and arguments, deliberated,

and returned a sentence of death for the murders of Harry and Teresa Hye.

      D. Pethel’s Guilty Plea

      Less than a week after the conviction, Browning’s co-defendant, Shane

Pethel, pleaded guilty in exchange for avoiding the death penalty. Contrary to

Tackett’s testimony that Pethel himself had been the shooter, Pethel stated at his

change-of-plea hearing that Browning shot Tackett and the Hyes. But Pethel

otherwise corroborated most of Tackett’s story, including the perceived motive.

Pethel claimed that Browning came to his house four days before the crime and

explained that he wanted to “get [Tackett] out of the picture” because Browning’s

new girlfriend supposedly stated that she would leave Browning if a paternity test

identified him as the father of Tackett’s baby. R., Feb. 11, 2003 Hr’g Tr. at 14.

                                        -15-
Browning also worried that the baby would inherit a disease that runs in Tackett’s

family, thus increasing the likely child support costs. Pethel nowhere explained

his own motive for participating in the murders, although his account implies he

would get to keep the property stolen from the Hyes.

      E. Appeals and Collateral Proceedings

             1. The Ellis Affidavit

      On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA),

Browning moved for an evidentiary hearing under that court’s Rule 3.11. As part

of his motion, Browning attached an affidavit from a man named Steve Ellis who

claimed to have been Tackett’s live-in boyfriend from March to November

2002—after the crimes but before trial. Ellis says that, while living with her,

Tackett would sometimes talk about the death of the Hyes. In so doing, she

would first “get to talking about Michael Browning having a hand in it, then

switch to Shane Pethel. [Tackett] told me she met Shane Pethel through Michael

Browning.” Aple. Br., Attach. 1 at 1. According to Ellis, Tackett also exhibited

“serious mental problems” and “had to take medicine to stay sane.” Id. at 2.

      Further, Ellis claimed Tackett told him the details of her inheritance.

Specifically, says Ellis (and contrary to Tackett’s testimony about her inheritance

at trial), Tackett was already receiving monthly disbursements from the Hyes’

trust, including the cost of rent and $500 for living expenses. Tackett and her

brother also inherited 160 acres from the Hyes, which they hoped to sell for $1.6

                                        -16-
million. ********

                  2. The OCCA’s Decision

       Browning raised numerous arguments for reversal. As to the one issue

relevant here—the trial court’s refusal to compel production of Tackett’s mental

health records—the OCCA agreed with the trial court that Tackett’s records were

protected by Oklahoma’s psychotherapist-patient privilege and that Tackett never

waived that privilege. Further, said the court,

                  [We have] reviewed the sealed material to determine
                  whether it contained evidence favorable to Browning.
                  We determine that the documents contain nothing
                  material either to guilt or punishment. There is no
                  reasonable probability that, had this evidence been
                  disclosed, the result of the trial would have been
                  different. As there was no waiver, and the sealed
                  material contains nothing favorable to the defendant,
                  this [argument for reversal] is denied.

Browning, 134 P.3d at 837 (footnotes omitted).

       Browning then filed a post-conviction proceeding with the OCCA, raising

arguments not relevant here. The OCCA denied that application.




       ********
              Browning now claims that Tackett and her brother indeed sold that
land, “result[ing] in proceeds of nearly $1,000,000.00 to [Tackett].” Aple. Br. at
8. In support, Browning cites land records showing that Tackett and her brother
inherited and then sold at least some of the Hyes’ land. R., Vol. 1 at 371–85.
Those records do not contain the sale price, so the $1 million figure appears
unsupported. But a post-conviction affidavit from someone claiming to have been
Tackett’s roommate from 2004 to 2006 states that Tackett received “over
$900,000.00” from the Hyes. Id. at 368.

                                            -17-
            3. The District Court’s Decision

      Having exhausted state post-conviction remedies, Browning filed a

28 U.S.C. § 2254 petition in the Northern District of Oklahoma. Browning raised

several arguments, including that Tackett’s mental health records should have

been disclosed. Reviewing those records in camera, the district court disagreed

with the Oklahoma courts’ conclusion that the records contained nothing

favorable to Browning. It therefore ordered those records disclosed to

Browning’s habeas counsel—the first time any of Browning’s attorneys had seen

them—and called for further briefing on whether the OCCA’s treatment of this

argument 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).

      After further briefing, the district court concluded,

            The OCCA’s determination of this issue was an
            unreasonable application of clearly established federal
            law in two respects. First, the OCCA’s determination
            that the sealed material contained nothing favorable to
            Browning was an unreasonable application of Supreme
            Court law to the facts of this case. There is no
            reasonable argument or theory that could support the
            OCCA’s conclusion that the sealed material contained
            nothing favorable to Browning’s defense. Moreover, no
            fairminded jurist could review the sealed material and
            conclude the sealed material was not favorable to
            Browning. The sealed mental health records reflect that
            Tackett, the prosecution’s key witness, suffered from
            severe mental illness which could affect her ability to
            recount events accurately and she was also prone to

                                        -18-
             manipulate and blame others. The sealed mental health
             records also contain information that could support
             Browning’s theory that Tackett participated in the
             crimes with Pethel. This evidence is clearly both
             favorable impeachment and exculpatory evidence.

             Second, the OCCA’s conclusion that the sealed mental
             health records contain nothing material either to guilt or
             punishment was an unreasonable application of Supreme
             Court law to the facts of this case. Had the trial court
             ordered the disclosure of Tackett’s mental health records
             prior to his trial, Browning undoubtedly would have
             been able to cross-examine her with the content to create
             doubt as to her ability to perceive and tell the truth
             regarding his involvement in the crimes. In weighing
             the materiality of the records, the Court notes that in
             Browning’s trial, Tackett was not only the sole
             eyewitness but she was also a surviving victim. Her
             testimony was the only testimony directly linking
             Browning to the crime scene and the crimes. The guilty
             verdict in this case depended on Tackett’s testimony
             ....

R., Vol. 1 at 1133–34 (citation omitted). The district court therefore granted a

conditional writ of habeas corpus, requiring the State to retry Browning within

180 days or release him.

                                 III. Discussion

      A. Scope of Federal Review

      The Oklahoma courts found that Oklahoma’s psychotherapist-patient

privilege protects Tackett’s psychiatric reports from disclosure—a conclusion

beyond our review given that it is purely a matter of Oklahoma law. The

Oklahoma courts further recognized that Tackett’s psychiatric reports potentially


                                        -19-
comprised Brady evidence. The Oklahoma courts therefore examined Tackett’s

psychiatric reports in camera to determine whether they contain favorable,

material evidence that must be disclosed under Brady—just as Ritchie directs.

The Oklahoma courts saw no such evidence. Because that decision involved an

application of federal law, Browning applied for a writ of habeas corpus, asking

the federal district court to overturn the Oklahoma courts’ decision.

      But in the context of criminal proceedings such as these, a federal court’s

authority to overturn a state court’s decision is limited, even though the decision

involved a matter of federal law, to whether the decision “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).

Under the “unreasonable application” standard—on which Browning relies—the

federal district court cannot grant habeas corpus simply because it disagrees with

the state court. Rather, if “fairminded jurists could disagree on the correctness of

the state court’s decision,” then the federal court must defer to the state court.

Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011) (internal quotation marks

omitted).

      Browning argues, however, that his Brady claim was not actually

“adjudicated on the merits in State court proceedings,” and therefore we need not

defer to the Oklahoma courts’ decisions. See Cone v. Bell, 556 U.S. 449, 472

(2009) (confirming that a federal court may review a state court’s decision de

                                         -20-
novo if the state court “did not reach the merits of [the prisoner’s] claim”).

Browning derives his argument from the Ritchie decision.

      As noted, Ritchie held that courts should examine privileged material in

camera to decide whether it must be disclosed under Brady. ********* But the

defendant in Ritchie wanted more than that. He wanted the right to have his

lawyer “examine all of the confidential information, both relevant and irrelevant,

and present arguments in favor of disclosure.” Ritchie, 480 U.S. at 59. The

Supreme Court acknowledged that “the eye of an advocate may be helpful to a

defendant in ferreting out information,” id., but nonetheless rejected that request.

“We find that [the defendant’s] interest . . . in ensuring a fair trial can be

protected fully by requiring that the [privileged information] be submitted only to

the trial court for in camera review.” Id. at 60.

      Given that Ritchie excludes defense counsel from weighing in on what

should be disclosed, Browning contends that “there was no ‘adjudication’ [of his

Brady claim] as defined by American jurisprudence. The determination [that

Tackett’s psychiatric] records were not material resulted from an ex parte

proceeding more akin to an inquisitorial rather than adversarial proceeding.”


      *********
              Ritchie applies only where the state-law privilege is not absolute.
480 U.S. at 58 & n.14 (expressly disclaiming any opinion about how to treat
absolute privileges). An absolute privilege is one that contains no exceptions,
even for law enforcement or judicial personnel. See id. No party has argued that
Oklahoma’s psychotherapist-patient privilege is absolute, nor did the OCCA’s
decision raise the issue.

                                          -21-
Aple. Br. at 22–23 (footnote omitted; emphasis in original). Browning effectively

argues that Brady claims resolved through Ritchie are never “adjudicated” for

§ 2254 purposes (unless, perhaps, a judge allows defense counsel to inspect the

documents despite Ritchie). Thus, they would always be subject to de novo

review when raised in a § 2254 petition.

      Browning has not pointed us to any authority establishing that “adjudicated

on the merits” necessarily requires an adversarial proceeding. He does point to a

recent Supreme Court decision stating that “[a] judgment is normally said to have

been rendered ‘on the merits’ only if it was ‘delivered after the court . . . heard

and evaluated the evidence and the parties’ substantive arguments.’” Johnson v.

Williams, 133 S. Ct. 1088, 1097 (2013) (quoting Black’s Law Dictionary 1199

(9th ed. 2009)) (emphasis and ellipsis in original). We agree that this is what it

“normally” means to adjudicate a claim in the American legal system. But this is

not a normal situation.

      As noted, if we were to hold that “adjudicated on the merits” necessarily

means “adjudicated through an adversarial proceeding,” then all Brady-Ritchie

claims would presumptively fall outside the scope of § 2254(d)—as would any

other Brady claim where the trial court resolves a motion to compel by reviewing

the disputed evidence in camera. See 6 Wayne R. LaFave et al., Criminal

Procedure § 24.3(b) nn.71–74 (3d ed., Dec. 2012 update) (discussing in camera

review of potential Brady material in non-Ritchie situations). We see no

                                          -22-
basis—and Browning has given us none—for creating such a categorical

exclusion from the deference Congress plainly intended when enacting § 2254.

See, e.g., Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that “Congress

intended [§ 2254] to advance” “the principles of comity, finality, and federalism”

and to uphold a history of “careful . . . limit[s] [on] the scope of federal intrusion

into state criminal adjudications”). ********** We therefore hold that a Brady claim

resolved through the process established in Ritchie has been “adjudicated on the

merits” for purposes of § 2254(d).

      Given this holding, the district court was required to apply the deference

prescribed in § 2254(d). According to the State, it is not clear if the district court

applied such deference correctly. While initially in its order the district court

cited to and applied the proper standard to its favorability analysis, quoting

Harrington v. Richter, see R., Vol. 1 at 1126, 1133, it later stated with respect to

materiality that “[t]he OCCA’s decision was objectively unreasonable as a fair

minded jurist could determine the withheld favorable evidence put the whole case

in such a different light as to undermine confidence in the verdict,” id. at 1138.




      **********
               Courts have routinely applied § 2254(d)’s deferential standard to
Brady-Ritchie claims. See, e.g., Hawkins v. Coyle, 547 F.3d 540, 557 (6th Cir.
2008) (applying § 2254(d)’s standard where the evidence was reviewed in camera
and never disclosed); Rizzo v. Smith, 528 F.3d 501, 506 (7th Cir. 2008) (same).
But all of these decisions assume that deference applies without awareness of the
argument Browning raises here. Thus, strictly speaking, they are not on point.

                                          -23-
This sentence suggests that fair disagreement is reason to grant habeas relief,

whereas it is actually a reason to deny it. Richter, 131 S. Ct. at 785–86.

       In the end, however, it is irrelevant for our purposes whether the district

court committed a slip of the pen or actually misapplied the “fairminded jurists”

standard. Either way, “we review the district court’s legal analysis of the state

court decision de novo.” Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir. 2004).

Thus, we ask, like the district court, whether the Oklahoma courts’ decision

regarding Tackett’s psychiatric reports “involved an unreasonable application of[]

clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.

§ 2254(d)(1). ***********

       The State has not argued that the rights recognized in Brady and Ritchie are

anything but clearly established, so our inquiry reduces to the following: Did the

Oklahoma courts reasonably conclude that Tackett’s psychiatric records contained

nothing favorable to Browning or material to his defense? Given that neither the


       ***********
                  Browning does not argue that the Oklahoma courts acted “contrary
to . . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1). As for “a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented,” id. § 2254(d)(2), Browning claims that Tackett’s lawyer
was lying when she said that she had “inadvertently” disclosed Tackett’s mental
health records to the prosecution. Browning therefore argues that the OCCA
unreasonably determined otherwise. Browning provides little support for this
allegation beyond conjecture about what the prosecution may have been thinking,
which is not sufficient to overturn the factual finding of the state court. In any
event, it does not undermine the OCCA’s finding that, as a matter of state law,
Tackett’s lawyer had no right to disclose Tackett’s medical records without her
express permission.

                                         -24-
state trial court nor the OCCA gave any reasoned explanation of this conclusion,

we must “determine what arguments or theories . . . could have supported[] the

state court[s’] decision; and then [we] must ask whether it is possible fairminded

jurists could disagree” on the favorability and materiality of the withheld

evidence. Richter, 131 S. Ct. at 786.

       B. Scope of Evidence We May Consider

       In evaluating favorability and materiality, we must first resolve one more

preliminary question. Specifically, we must decide the universe of evidence we

may consider. The Supreme Court recently held that “review under § 2254(d)(1)

is limited to the record that was before the state court that adjudicated the claim

on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). But “the

record . . . before the state court” is not self-defining. Does it mean the record

before the jury? Or does it mean the entire record generated by the state trial and

appellate courts before the § 2254 petition was filed?

       This is a distinction with a significant difference in this case. If we may

consider everything that came before the OCCA—which included, e.g.,

Browning’s post-trial affidavits relating to Tackett’s mental health, Browning’s

evidence of Tackett’s inheritance, and Pethel’s confession inculpating

Browning—then our analysis may well differ from one limited to the evidence

available at trial.




                                         -25-
      Pinholster itself demonstrates that we cannot interpret “the record . . .

before the state court” necessarily to mean the record before the jury. Pinholster

involved an ineffective-assistance-of-counsel claim that the Supreme Court

reviewed on the record as developed in post-conviction proceedings in state court.

See id. at 1403–06. This was so because the state from which the habeas petition

originated, California, requires defendants to develop their ineffective-assistance

claims in post-conviction proceedings rather than on direct appeal. But in any

event, Pinholster shows that in certain types of cases, at least, “the record . . .

before the state court” includes materials not available to the trial court.

      In the Brady context, however, it is inappropriate to consider evidence

developed post-verdict. To do otherwise would contradict Supreme Court cases

applying Brady by analyzing how withheld evidence might have affected the jury

in light of all other evidence it heard. See, e.g., Strickler v. Greene, 527 U.S.

263, 290–96 (1999); Kyles, 514 U.S. at 441–53; see also United States v. Agurs,

427 U.S. 97, 103 (1976) (discussing materiality in the context of how Brady

evidence “could have affected the judgment of the jury”).

      In addition, the Supreme Court has emphasized that Brady “requires a

prosecutor to disclose material exculpatory evidence to the defendant before

trial.” Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68 (2009). In Osborne,

the Supreme Court faced a claim that a convicted defendant had a post-conviction

Brady right to access and test DNA evidence in the state’s possession—evidence

                                          -26-
his defense attorney knew about before trial. Id. The Court rejected this

argument, explaining that the defendant’s claim “is not parallel to a trial right, but

rather must be analyzed in light of the fact that he has already been found guilty

at a fair trial, and has only a limited interest in postconviction relief. Brady is the

wrong framework.” Id. at 69.

      If (as Osborne made clear) one’s Brady right is a pre-trial right, then our

analysis necessarily looks to what might have changed had the Brady evidence

been disclosed before trial—or at least disclosed soon enough to give the

defendant an opportunity to use it at trial effectively. See 6 LaFave, Criminal

Procedure § 24.3(b) (“lower courts agree that the Brady rule . . . requires only

that disclosure of exculpatory evidence be made in sufficient time to permit [the]

defendant to make effective use of that evidence at trial”). And if our analysis

necessarily looks to what might have changed had the Brady evidence been

disclosed before trial, then it would make no sense to account for evidence that

was not available before trial.

      Accordingly, we confine our analysis of favorability and materiality to the

record before the state trial court. We therefore cannot consider Pethel’s

confession and guilty plea, nor can we consider evidence Browning developed in

post-conviction proceedings that he believes favors his theory of the case.




                                          -27-
      C. “Favorable”

      As noted, evidence is favorable if it is exculpatory or impeaching. Banks,

540 U.S. at 691. At oral argument, counsel for the State conceded that the State

does not contest the favorability of Tackett’s mental health records to Browning’s

case—and indeed it is beyond question that those records contain both

exculpatory and impeaching evidence.

      On the exculpatory side, her records describe her as hostile, assaultive,

combative, and even potentially homicidal. Such evidence tends to show that a

person with a motive to kill might even have a disposition to kill.

      On the impeaching side, Tackett’s psychiatric evaluations evinced, among

other things, memory deficits, magical thinking, blurring of reality and fantasy,

and projection of blame onto others. This is classic impeachment evidence. “A

witness’s credibility may always be attacked by showing that his or her capacity

to observe, remember, or narrate is impaired. Consequently, the witness’s

capacity at the time of the event, as well as at the time of trial, is significant.” 4

Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

607.05[1] (Joseph M. McLaughlin ed., 2d ed. 2009); see also Gonzalez v. Wong,

667 F.3d 965, 983–84 (9th Cir. 2011) (recognizing impeachment value of mental

health evidence); United States v. Robinson, 583 F.3d 1265, 1272 (10th Cir. 2009)

(same); Wilson v. Beard, 589 F.3d 651, 666 (3d Cir. 2009) (same); United States

v. Butt, 955 F.2d 77, 82–83 (1st Cir. 1992) (same).

                                          -28-
      Accordingly, we agree with the district court’s disposition of the

favorability question: “There is no reasonable argument or theory that could

support the [Oklahoma courts’] conclusion that the sealed material contained

nothing favorable to Browning’s defense.” R., Vol. 1 at 1133. We therefore turn

to the question of whether Tackett’s mental health records would have been

material to Browning’s case.

      D. “Material”

             1. Materiality Generally

      Evidence is material if “there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have been different.”

Smith, 132 S. Ct. at 630 (internal quotation marks omitted). “A reasonable

probability does not mean that the defendant would more likely than not have

received a different verdict with the evidence, only that the likelihood of a

different result is great enough to undermine confidence in the outcome of the

trial.” Id. (internal quotation marks omitted; alterations incorporated); see also

Kyles, 514 U.S. at 435 (evidence is material for Brady purposes when it “could

reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict”). In determining materiality, there is no distinction

between exculpatory evidence and impeachment evidence. United States v.

Bagley, 473 U.S. 667, 676 (1985) (“This Court has rejected any . . . distinction

between impeachment evidence and exculpatory evidence [for Brady purposes].”).

                                         -29-
      By rejecting Browning’s materiality argument, the Oklahoma courts

necessarily concluded that Tackett’s mental health records—had they been

available for use at trial—could not have put the trial in a “different light” and

“undermine[d] confidence in the verdict.” Kyles, 514 U.S. at 435. The question

for our review is whether the Oklahoma courts reached that conclusion

unreasonably. We agree with the district court that the Oklahoma courts’

conclusion was unreasonable.

      Tackett was the prosecution’s indispensable witness, and all sides knew

that Browning’s fate turned on her credibility. In case that was not obvious to the

jury, the prosecution made it abundantly clear at closing argument:

             First of all, ladies and gentlemen, they put Cenessa on
             trial. They put Cenessa on trial. Everywhere outside
             this courtroom, ladies and gentlemen, that this story is
             told, she is a hero. And for someone to get up here, who
             has not faced that situation, with a mom and a dad and a
             fire, having a baby inside of you, and to criticize them,
             that is uncalled for. She is a hero everywhere except
             this trial by defense counsel. Everywhere else, but there
             she’s the villain. Make no mistake about it, that’s what
             the strategy is here, is let’s put her on trial.

R., Trial Tr., Vol. XIII at 2426.

      If, as the prosecution told the jury at the time, Browning’s only defense was

to discredit Tackett—and this was really the only possible defense in light of her

powerful eyewitness testimony—then it is difficult to see how the Oklahoma

courts could reasonably conclude there was nothing material about a recent


                                         -30-
diagnosis of a severe mental disorder that made her hostile, assaultive, combative,

and even potentially homicidal, or that Tackett was known to blur reality and

fantasy and project blame onto others.

             2. Corroboration

      The State argues, however, that other evidence substantially corroborated

Tackett’s story. “[E]vidence impeaching an eyewitness may not be material if the

State’s other evidence is strong enough to sustain confidence in the verdict.”

Smith, 132 S. Ct. at 630. But at least when the eyewitness testimony is “the only

evidence linking [the defendant] to the crime,” and the impeachment evidence

casts substantial doubt upon its reliability, it is material. Id. (emphasis in

original).

      In Smith, the eyewitness’s testimony was literally the only evidence linking

the defendant to the crime. Id. at 629. That is not the case here. Specifically,

two items of evidence against Browning did not rely solely on Tackett’s

testimony. First, when police contacted Browning several hours after the

murders, he was wearing the clothing described by Tackett in her initial statement

to police. Second, several witnesses saw Browning and Pethel together shortly

before the crimes and one witness saw Browning and Pethel together at 4:20

a.m.—not long after Tackett’s 911 call.

      We agree with the State that this evidence circumstantially corroborates

Tackett’s story. But the existence of some corroborating evidence for Tackett’s

                                          -31-
testimony does not necessarily vitiate the materiality of her mental health records.

Again, the Brady requirement of a “reasonable probability that, had the evidence

been disclosed, the result of the proceeding would have been different . . . does

not mean that the defendant would more likely than not have received a different

verdict.” Smith, 132 S. Ct. at 630 (internal quotation marks omitted). It means

“only that the likelihood of a different result is great enough to undermine

confidence in the outcome of the trial.” Id. (internal quotation marks omitted;

alterations incorporated).

      Given the obvious potential force of Tackett’s mental health records, the

Oklahoma courts could not reasonably conclude that the State’s corroborating

evidence was “strong enough to sustain confidence in the verdict.” Id. The thrust

of the psychiatric evidence is that Tackett is a very disturbed, perhaps even

homicidal person, with a tendency to blur reality and fantasy and shift blame to

others. That is the only evidence Browning could muster to place Tackett’s

testimony in a very different light, given the defense theory that she and Pethel

wanted to frame Browning. Indeed, more than any other evidence that actually

came out at trial, the mental health evidence would have given the jury reason to

consider seriously Browning’s theory of the case or at least to question Tackett’s

credibility.

      With such consideration, a notably different light shines on the

corroborating evidence. In particular, because Pethel and Browning were

                                        -32-
together not long before the crimes, Tackett could have learned from Pethel what

Browning had been wearing. That is consistent with Browning’s conspiracy

theory.

      What is inconsistent—or seemingly so—is how events played out as to

Pethel. Assuming Tackett and Pethel conspired, it is somewhat surprising that

Tackett nonetheless identified Pethel as one of the perpetrators. And it is

particularly surprising that Pethel, having been identified, would not point the

finger back at Tackett. But Pethel was not a witness at Browning’s trial and his

motives therefore remain in the realm of speculation.

      In any event, whether the jury necessarily would have reached an alternate

conclusion is not the appropriate inquiry. We only inquire whether the Oklahoma

courts could have reasonably decided that the mental health evidence would not

have mattered. The answer is no. This evidence would have mattered, even in

light of the State’s corroborating evidence.

             3. Causation

      The State further contends that Tackett’s mental health diagnosis— which

came eight months after the murders—is best explained as a result of this crime,

not a cause. But nothing in the record explains whether Tackett’s symptoms

could have resulted from living through a nightmare like that described here or

from some other earlier cause. Nonetheless, as demonstrated by the Supreme

Court’s recent Smith decision, that theory is not enough to undermine the

                                        -33-
materiality of Tackett’s mental health records.

      In Smith, the defendant was convicted of murder based on the eyewitness

testimony of a man named Boatner. Smith, 132 S. Ct. at 629. The defendant

learned after trial that, shortly after the murders, Boatner had informed a police

detective that he (Boatner) “‘could not ID anyone because [he] couldn’t see faces’

and ‘would not know them if [he] saw them.’” Id. at 630 (quoting appellate

record) (alterations in original). In habeas briefing, the prosecution argued that

such statements would not have been material because they could “be explained

by fear of retaliation.” Id. at 630. In granting relief to the defendant, the

Supreme Court rejected this argument, explaining that it “offers a reason . . . the

jury could have disbelieved Boatner’s undisclosed statements, but gives us no

confidence that it would have done so.” Id. (emphasis in original).

      Here, the State’s argument similarly gives us a reason only to think that the

jury could discount the significance of Tackett’s mental health, not that it would

discount it. Nevertheless, the State presses forward, arguing that the lack of

evidence showing Tackett suffered from psychiatric problems on the day of the

murders makes the evidence of subsequent psychiatric problems irrelevant. This

is actually an argument against favorability, not materiality. If, as the State

suggests, psychiatric evidence is irrelevant unless it shows impairment on the day

of the events testified to, then Tackett’s mental health records are not even

favorable, rendering the materiality question moot. But the State confirmed at

                                         -34-
oral argument that it does not contest favorability, and it cannot have it both

ways. And in any event, as already explained, impeachment evidence is favorable

evidence, and a witness’s condition both at the time of the events testified to and

the time of the testimony is relevant to impeachment. See Part III.C, supra.

                                 IV. Conclusion

      Brady evidence need not prove a defendant’s innocence. Rather, the

evidence need only “put the whole case in such a different light as to undermine

confidence in the verdict.” Kyles, 514 U.S. at 435. That circumstance exists

here, and the Oklahoma courts could not have reasonably concluded otherwise.

Browning’s only chance was to impeach Tackett’s credibility and portray her as a

participant in the crime. As the trial actually played out, there was little reason

for the jury to give Browning’s theory any credence. Indeed, the prosecution

encouraged the jury to take offense that Browning would propose such an idea.

But that dynamic would have been significantly curtailed had Browning been able

to inform the jury that Tackett blurs reality and fantasy, projects blame onto

others, and is perhaps even homicidal. A theory that might otherwise be

offensive suddenly must be taken seriously. That, if anything, is “such a different

light as to undermine confidence in the verdict.” Id.

      The district court’s grant of a conditional writ of habeas corpus is

AFFIRMED.



                                         -35-
