                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 14-6513


STEVEN A. WATKINS,

                 Petitioner - Appellee,

           v.

JIM   RUBENSTEIN,  Commissioner of   the   Division of
Corrections; BENITA F. MURPHY, Chairperson of the West
Virginia Parole Board; DAVID TOLER, Supervising Parole
Officer,

                 Respondents - Appellants,

           and

ADRIAN HOKE, Warden at Huttonsville Correctional Center;
MARVIN PLUMLEY, Warden, Huttonsville Correctional Center,

                 Respondents.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
District Judge. (2:12-cv-01309)


Argued:   January 29, 2015                 Decided:   September 23, 2015


Before TRAXLER,    Chief   Judge,    and   NIEMEYER   and   MOTZ,   Circuit
Judges.


Reversed by published opinion.      Judge Niemeyer wrote the
majority opinion, in which Chief Judge Traxler joined.  Chief
Judge Traxler wrote a concurring opinion.  Judge Motz wrote a
dissenting opinion.
ARGUED: Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Appellants.    Michael
Brian Hissam, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellee.    ON BRIEF: Patrick Morrisey, Attorney General,
Christopher S. Dodrill, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellants.




                               2
NIEMEYER, Circuit Judge:

      The district court granted Steven Watkins’ petition for a

writ of habeas corpus under 28 U.S.C. § 2254, finding that the

West Virginia prosecuting attorney had, after trial, admitted to

Watkins’ defense counsel that the victim of Watkins’ attempted

robbery crime told the prosecuting attorney before trial that

he, the victim, had not been put in fear by Watkins on the date

of   the   crime,     an   element      essential         to   conviction   under     West

Virginia law, and that the prosecuting attorney had failed to so

inform     Watkins.        Based   on    this       finding,     the    district      court

concluded that the state habeas court had unreasonably applied

the principles of Brady v. Maryland, 373 U.S. 83 (1963).

      On appeal, the West Virginia officials named in Watkins’

habeas     petition    (“the   State”)         claim      that   the    district      court

impermissibly found new facts and erred in failing to give the

appropriate        deference   to       the       state    habeas      court’s   factual

findings     and    conclusions      of       law    made      with    respect   to    its

adjudication of Watkins’ Brady claim.                      We agree and accordingly

reverse.

                                              I

                     A.    Underlying Criminal Proceeding

      On June 7, 2007, Steven Watkins entered Zimm’s Pharmacy in

Fayetteville, West Virginia, wearing a hard hat, sunglasses, and

a red bandana that masked his face.                       When Watkins entered the

                                              3
store, only the owner, Mike Zimm, and two female employees were

inside.     Watkins began to ask Zimm a question, but Zimm could

not   understand    it    and   asked     Watkins        to    repeat     the   question.

Watkins then “tried to move his mask, or his disguise . . . so

that [his speech] wouldn’t be muffled as much” and repeated his

question,   asking       Zimm   whether      he   had        “pushed    the    button”   to

activate the store’s security system.                        Even though he had not

done so, Zimm told Watkins that he had in fact activated the

system, which prompted Watkins to flee the store and to enter a

nearby apartment building.

      Watkins was eventually arrested and charged with “attempted

robbery in the second degree,” in violation of W. Va. Code § 61-

2-12(b),    which    punishes       “[a]ny      person        who . . .       attempts   to

commit robbery by placing the victim in fear of bodily injury.”

      At Watkins’ trial, Zimm testified on behalf of the State

and   explained     how   Watkins     had       placed       him   in   fear    of   bodily

injury:

      Q: You indicated that you were fearful of [Watkins];
      is that correct?

      A:   Yes, I was fearful.            I didn’t know what to expect
      for me or my employees.

      Q:   [W]as there anything going on . . . in your
      business community at this time that triggered that
      fear . . . ?

                                *           *            *

      A:   Yes, sir. There had been numerous robberies and,
      just recently before that, there had been a couple
                                            4
        robberies in the Beckley area, Raleigh County. . . .
        Pharmacies, pharmacists.

                              *          *         *

        Q:   And what thought went through your head when you
        saw this man approaching you dressed . . . in the
        manner that you saw that day?

        A:   I thought,     “It’s my turn.      They’ve             come    to
        Fayette County.”    That’s what I thought.

        Zimm’s testimony at trial was consistent with a statement

he gave to police officers on the day of the incident.                      It was

also corroborated by the trial testimony of one of the employees

in the store who observed Zimm:

     Q:   [C]an you tell me what came into your mind as to
     what was going on at [the time Watkins entered the
     store]?

     A:   Well, at first when he came in and he approached
     the counter, . . . I at first thought it was a joke,
     because we have several customers that would do that.
     And then I realized -- after he had asked [Zimm] about
     the alarm, [Zimm] had the look of, you know,
     something’s bad, something’s going on, and I knew it
     wasn’t a [joke] anymore . . . .

     At    the   conclusion   of   the       State’s    case,   Watkins    filed   a

motion for a judgment of acquittal, arguing that the evidence

was insufficient to demonstrate that Zimm had been placed in

reasonable fear of bodily injury, but the trial court denied the

motion.     And during closing argument, both Prosecuting Attorney

Brian     Parsons   and    defense   counsel           James    Adkins    presented

argument with respect to the “fear” element.




                                         5
      The jury found Watkins guilty of the offense as charged,

and the court sentenced him to a term of imprisonment of between

5 and 18 years.        The Supreme Court of Appeals of West Virginia

summarily    denied    Watkins’     appeal,   and     Watkins    did   not   seek

review by the Supreme Court of the United States.


                        B.    State Habeas Proceeding

      Watkins filed a petition for a writ of habeas corpus in

West Virginia state court, claiming, among other things, that he

had   been    denied    a    fair   trial   because    Prosecuting      Attorney

Parsons had failed to inform defense counsel Adkins that Zimm

had told Parsons that he, Zimm, might not have been afraid of

Watkins on the day of the attempted robbery.                    Watkins claimed

that this nondisclosure was a violation of Brady v. Maryland,

373   U.S.    83    (1963),    which    requires    the    prosecution,      upon

request, to provide the accused with evidence favorable to the

accused.     Specifically, Watkins’ petition stated:

      [Defense counsel Adkins] has provided a memorandum to
      habeas counsel indicating that he was present during
      a . . .   conversation   with    [Prosecuting Attorney
      Parsons] who allegedly uttered that the victim, Mike
      Zimm[,] told him that he was never afraid and
      [Parsons] responded [that] if that was the case then
      they should stop prosecuting at that time. If that is
      true . . . , then the State of West Virginia failed to
      provide that exculpatory evidence to the defendant
      herein[, in violation of Brady].

      In   the     State’s    written   response      to   Watkins’    petition,

Prosecuting Attorney Parsons admitted that he had had at least

                                        6
two discussions with Zimm before trial about the definition of

the “fear” element and exactly what had to be proved at trial.

But, as Parsons explained unequivocally:

     Mr. Zimm did not state that he was “never afraid,” but
     rather he sought a better understanding of what fear
     meant in the context of this case.

Parsons attributed Zimm’s questioning to a “certain amount of

bravado” that existed in his relationship with Zimm and to the

hesitation of one man to acknowledge fear to another.

     The     state    court    conducted      an   evidentiary     hearing   on

Watkins’ petition, and defense counsel Adkins testified at the

hearing that, at an unrelated court proceeding after Watkins had

been convicted, Prosecuting Attorney Parsons stated that Zimm

“might not have been scared of Mr. Watkins” at the time of the

incident.    Specifically, Adkins said:

     Q:     Do you recall . . . what was said at that time?

     A.   My contemporaneous note would probably be more
     accurate than my memory. . . .    [W]e were at another
     hearing, and Mr. Parsons had stated something to the
     effect that Mr. Zimm might not have been scared of
     Mr. Watkins on . . . the day of the alleged robbery.

(Emphasis added).        Prosecuting Attorney Parsons did not dispute

Adkins’     testimony.        Rather,   in     cross-examining     Adkins,   he

obtained    Adkins’   agreement    that      Parsons’   pretrial   discussions

with Zimm, during which they discussed the “fear” element, were

appropriate:

     Q:   [Y]ou would agree with me that, although the term
     “fear” or being afraid, has some sort of common sense
                                        7
     application or meaning, the term “fear” as it relates
     to a legal standard of being afraid is something that
     a person with an education such as Mr. Zimm might have
     a question about? Is that fair to say?

     A:   Yes.

     Q:   [I]sn’t it also a fair statement that, if Mr.
     Zimm was not afraid of Mr. Watkins, there’s really no
     sense in the case being prosecuted? Isn’t that a fair
     way to look at it from the State’s perspective?

     A:   [Yes].

     Q:   Do you have any problem with an attorney for the
     State saying to a victim that, “If you’re not afraid
     or you don’t feel that you were afraid, you need to
     tell me and we’re not going to take this case
     forward.”     Do   you  have   a   problem with  that
     question? . . .    Do you feel in your professional
     opinion that that is coaching a witness?

     A:   No.

     After receiving the evidence, the state habeas court denied

Watkins’ petition, issuing a written opinion that made findings

of fact and conclusions of law.        The court’s relevant findings

and conclusions were as follows:

     The   Court    FINDS  that,   during   trial,   State
     witness/victim Mike Zimm testified that he was afraid
     of [Watkins] based upon what [Watkins] said in
     Mr. Zimm’s store and upon [Watkins’] appearance.
     Mr. Zimm’s trial testimony was consistent with the
     statement he gave to police at the time of the
     incident.

     The Court FINDS that, at some time after the trial of
     this matter, [Adkins] was told that Mr. Zimm said he
     was not “afraid” at the time of the incident at issue.
     [Parsons] discussed with Mr. Zimm the definition of
     the word “fear” as it applied to the elements of the
     crime at issue, and that Mr. Parsons informed Mr. Zimm
     that if the element of fear did not exist, then the
     case could not be proven at trial.       The discovery

                                   8
       provided to the defense did not contain any reference
       to Mr. Zimm’s alleged statement that he was not
       “afraid” or to the above described conversation
       between Mr. Parsons and Mr. Zimm.

                            *           *         *

       The Court CONCLUDES that the State’s alleged failure
       to inform defense counsel of the conversation between
       Mr. Parsons and Mr. Zimm regarding the requirement of
       “fear” did not violate . . . Brady v. Maryland.

       Additionally, the Court CONCLUDES that Mr. Parsons’
       statements to Mr. Zimm with regard to the element of
       “fear” were an accurate way to describe elemental
       requirements to a lay person/witness and that there is
       no evidence that Mr. Parsons suggested or improperly
       influenced Mr. Zimm’s testimony.

       Watkins appealed the court’s ruling to the Supreme Court of

Appeals of West Virginia, and that court affirmed, adopting and

incorporating the state habeas court’s order as its own.


                     C. Federal Habeas Proceeding

       Finally,   Watkins   filed   a   petition       for   a    writ    of   habeas

corpus in the district court, pursuant to 28 U.S.C. § 2254.                        He

again asserted,     among   other   things,      that    he      was   “denied   his

right to Due Process under . . . the United States Constitution

when   the   Prosecution    knowingly       withheld    from     him     impeachment

evidence that was exculpatory,” in violation of Brady.

       By order dated March 29, 2013, the district court stated

that it could not “determine whether the state court improperly

found that no Brady violation occurred” because “the state court

never made a finding concerning whether or not Zimm stated that


                                        9
he was not in fear on the day of the subject incident.”                     The

court accordingly ordered a “plenary evidentiary hearing [to]

make   an   independent     factual    determination”       regarding   whether

Zimm had made the statement in question to Prosecuting Attorney

Parsons before trial.           Later, however, the court realized that

such an evidentiary hearing would not be consistent with the

Supreme Court’s holding in Cullen v. Pinholster, 131 S. Ct. 1388

(2011) (holding that federal court “review under § 2254(d)(1) is

limited     to   the   record   that   was   before   the   state   court   that

adjudicated the claim on the merits”), and instead, it simply

issued a final order dated March 28, 2014, granting Watkins’

petition for a writ of habeas corpus.

       In granting Watkins’ petition, the court stated:

       I found in a prior order that the state habeas court
       did not find whether Zimm had stated he “was never
       afraid.”     However, . . . there is an important
       distinction between proof of the substance of Zimm’s
       statement and proof that the State admitted that the
       statement was made.   I now FIND that the state court
       found the State had admitted that Zimm made this
       statement.   Put differently, the state court did not
       find that Zimm said he was not afraid; the state court
       found that the prosecutor admitted that Zimm said he
       was not afraid. In light of the clear admission that
       the State was in possession of Brady material, I also
       FIND the state court unreasonably applied clearly
       established Supreme Court precedent to the facts.

To support its conclusion, the district court relied on the key

factual finding made by the state habeas court.                  But in doing

so, the court assumed facts that supported a Brady violation,


                                        10
whereas the state habeas court had not assumed those facts and

found no such violation:

      I now conclude that the state habeas court found that
      Parsons . . . admitted to Adkins . . . that he, the
      prosecutor, was in possession of Brady material.    I
      quote from the state court’s findings:

                 The Court FINDS that, at some time after
            trial of this matter, trial counsel was told [by
            the prosecutor] that Mr. Zimm said he was not
            “afraid” at the time of the incident at issue.

      To justify its contrary conclusion, the district court had

to   assume,     making     an    implied        factual    finding,     that    Zimm’s

statement that he was not “afraid” was imputable to Prosecuting

Attorney Parsons before trial.               But the state habeas court had

found   only     that   the      pretrial    conversation        between    Zimm      and

Prosecuting      Attorney      Parsons   related       to    a   discussion     of    the

“fear” element, and it did not ascribe any particular importance

to   the   post-trial       conversation         between     Prosecuting       Attorney

Parsons and defense counsel Adkins, where Parsons observed that

“Zimm   might     not   have      been   afraid      of     Watkins.”      With      this

additional implied finding, the district court concluded, “Based

on the state court’s factual finding and the evidence in the

record, it would be ‘objectively unreasonable’ to conclude that

no Brady violation occurred.”

      The State filed this appeal, contending that the district

court   failed    to    give     the   necessary      deference     to   the    factual




                                            11
findings and legal conclusions of the state habeas court, as

required by 28 U.S.C. §§ 2254(d) and 2254(e)(1).



                                      II

      In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme

Court held 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.”

To prove a Brady violation, a habeas petitioner must show that

the evidence was (1) favorable to him; (2) material; (3) in the

possession   of        the   prosecution     before    trial;        and   (4) not

disclosed to him upon request.         See United States v. Stokes, 261

F.3d 496, 502 (4th Cir. 2001).         Stated otherwise, Brady mandates

the disclosure of favorable evidence when it “could reasonably

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

undermine confidence in the verdict.”                 Kyles v. Whitley, 514

U.S. 419, 435 (1995).          And, of course, the Supreme Court has

made clear that Brady only protects a defendant “before trial”

and that “nothing in [its] precedents suggest[s] that [Brady’s]

disclosure   obligation        continue[s]    after       the   defendant    [is]

convicted and the case [is] closed.”               District Att’y’s Office

for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69

(2009) (emphasis added).

                                      12
      In this case, Watkins contends that Prosecuting Attorney

Parsons violated Brady in failing to produce before trial the

fact that Zimm had admitted before trial that he was not afraid

at the time of the attempted robbery.               Of course, if that fact

were true, then the information would be favorable to Watkins,

and   its    nondisclosure     would   support     his   claim    that   a    Brady

violation occurred.         But Watkins’ claim is not supported by the

state habeas record or the state habeas court’s findings and

conclusions.

      Watkins relies entirely on an amorphous statement made by

Prosecuting Attorney Parsons to Watkins’ defense counsel Adkins

after   the   trial   had    been    completed.      The   record     shows    that

Prosecuting Attorney Parsons made a post-trial observation to

defense counsel Adkins “to the effect that Mr. Zimm might not

have been scared of Mr. Watkins” on the day of the attempted

robbery.       That   evidence,      however,    does    not   mean    that   that

information     or    belief    was    something     known       to   Prosecuting

Attorney Parsons before trial.           To the contrary, the post-trial

observation could have been based on something that some other

unidentified person had said to Parsons post-trial, or that Zimm

himself might have said to Parsons post-trial, or that amounted

to    mere    retrospective         speculation.         In    any     of     those

circumstances, as well as others, it could not be said that

Parsons possessed Brady material.

                                        13
       The only evidence of a pretrial conversation between Zimm

and Prosecuting Attorney Parsons related to Parsons’ explanation

to Zimm of what constitutes “fear” and the necessity of proving

“fear” as an element of attempted robbery.

       The state habeas court found on this record two distinct

facts.       First, “at some time after the trial of this matter,

[defense counsel Adkins] was told that Mr. Zimm said he was not

‘afraid’ at the time of the incident at issue.”                         And second,

that Prosecuting Attorney Parsons had a pretrial conversation

with   Zimm    during    which    Parsons      “discussed   with    Mr.       Zimm   the

definition of the word ‘fear’ as it applied to the elements of

the crime at issue, and that Mr. Parsons informed Mr. Zimm that

if the element of fear did not exist, then the case could not be

proven at trial.”

       The    district     court,       however,    failed    to        accord       the

appropriate deference to the state habeas court’s findings.                          The

district      court,    which    was    initially    inclined      to     conduct      a

plenary      evidentiary    hearing      but    ultimately    did       not    do    so,

nonetheless      restated       the    state    habeas   court’s     findings         to

conclude that Parsons “had admitted that Zimm made the statement

[that he was not afraid],” thereby imputing knowledge of Zimm’s

lack of fear to Parsons before the trial began.                          The record




                                          14
simply does not support such a leap. ∗               Section 2254 requires a

federal   court    conducting       collateral    review   of   a   state   court

adjudication      to   do   so    through    a   “highly   deferential      lens.”

DeCastro v. Branker, 642 F.3d 442, 449 (4th Cir. 2011); see also

28 U.S.C. § 2254(d).             To that end, § 2254(e)(1) instructs the

district court to defer to a state court’s factual findings:

     In a proceeding instituted by an application for a
     writ of habeas corpus by a person in custody pursuant
     to the judgment of a State court, a determination of a
     factual issue made by a State court shall be presumed
     to be correct. The applicant shall have the burden of
     rebutting the presumption of correctness by clear and
     convincing evidence.

28 U.S.C. § 2254(e)(1) (emphasis added); see also Conaway v.

Polk, 453 F.3d 567, 582 (4th Cir. 2006).



     ∗ The dissenting opinion also fails to recognize that the
state habeas court found two distinct conversations. The first
conversation that it found consisted of a statement made after
trial that Zimm said “he was not ‘afraid’ at the time of the
incident at issue.”   The second conversation that it found was
one between Zimm and Prosecuting Attorney Parsons before trial
that explored the definition of the “fear” element. There is no
evidence to support a conclusion that the pretrial conversation
included a statement by Zimm that he was not afraid, and the
state habeas court did not find that the pretrial conversation
included such a statement.     Indeed, the prosecutor testified
affirmatively that Zimm did not make such a statement in that
pretrial conversation -- “Mr. Zimm did not state that he was
‘never afraid,’ but rather he sought a better understanding of
what fear meant in the context of this case.”        The dissent
simply conflates the two conversations, as did the district
court, concluding without record support, that the post-trial
conversation referred to the pretrial conversation and not some
other post-trial conversation. The state habeas court found the
conversations to be historically and substantively distinct.


                                        15
     In the present case, the district court did not find the

state   habeas      court’s      factual     findings      “unreasonable . . .        in

light of the evidence presented.”                  28 U.S.C. § 2254(d)(2).           Nor

did the court find that Watkins had rebutted the state habeas

court’s factual findings with “clear and convincing evidence.”

§ 2254(e)(1).       On the contrary, the district court purported to

accept the state court’s factual findings.                   See J.A. 402 (“based

on   the    state      court’s    factual       finding . . .      ,    it   would    be

‘objectively        unreasonable’       to      conclude     . . .”).         Yet      it

nonetheless placed its own gloss upon the state court’s factual

findings,        impermissibly       altering        them     to       conclude      that

Prosecuting Attorney Parsons admitted to having been told by

Zimm before trial that he was not afraid of Watkins.                         The facts

in the state court record are to the contrary, and no state

habeas court finding can be read to support the district court’s

conclusion.

     We conclude that the state habeas court did not base its

decision on “an unreasonable determination of the facts,” see

28 U.S.C. § 2254(d)(2), and we note that Watkins did not attempt

to rebut the presumption of correctness by “clear and convincing

evidence,” see § 2254(e)(1).               Similarly, we conclude that based

on its entirely reasonable factual findings, the state habeas

court      did   not     apply    the      Brady    rule     in    an    “objectively

unreasonable” manner.            See Barnes v. Joyner, 751 F.3d 229, 238-

                                           16
39 (4th Cir. 2014) (holding that the federal court must defer to

the state habeas court’s legal conclusion, so long as it is not

“objectively unreasonable”); § 2254(d)(1).                      The facts found by

the state habeas court do not impute information to Prosecuting

Attorney Parsons before trial that Zimm had said he was not

afraid.    Without such a fact in the record and such a factual

finding by the court, there could be no Brady violation.

     To    be   sure,       the    state        habeas      court   did    find     that

Prosecuting     Attorney        Parsons    and     Zimm       had   had    a    pretrial

discussion about the definition of “fear” and the necessity of

proving “fear” at trial.           But that conversation was no more than

routine trial preparation.           As the state habeas court concluded,

“Mr. Parsons’ statements to Mr. Zimm with regard to the element

of   ‘fear’     were       an     accurate       way     to     describe       elemental

requirements      to   a   lay    person/witness         and    that   there      was   no

evidence   that    Mr.     Parsons    suggested        or     improperly       influenced

Mr. Zimm’s testimony.”

     The district court’s order granting Watkins’ petition for a

writ of habeas corpus is accordingly

                                                                               REVERSED.




                                           17
TRAXLER, Chief Judge, concurring:

     I concur in the majority opinion.        The West Virginia state

court’s rejection of Watkins’ post-conviction claim -- that the

state prosecutor, Brian Parsons, failed to disclose an alleged,

exculpatory “lack-of-fear” statement made by the victim, Mike

Zimm, in violation of Brady v. Maryland, 373 U.S. 83 (1963) –-

was not an unreasonable one in light of the evidence presented

in the state court proceedings.

     Watkins alleged in his state habeas petition that Parsons

told his trial counsel, James Adkins, that Zimm had told Parsons

prior to trial that he was not afraid of Watkins during the

attempted robbery.      In other words, Watkins alleged that Parsons

admitted to Adkins after the trial that an exculpatory statement

was made by Zimm prior to the trial.       In the written response to

the petition, Parsons denied Watkins’ allegation.            Watkins did

not call either Zimm or Parsons as a witness at the evidentiary

hearing   in   state   court.   Watkins   called   Adkins   as   his   sole

witness, but Adkins did not testify that Parsons admitted to him

that Zimm made the alleged Brady statement prior to trial or,

for that matter, after trial.      In sum, Watkins failed to elicit

testimony or present other evidence that supported his Brady

allegation.

     After the hearing, the state court issued a 17-page written

opinion addressing Watkins’ habeas claims, including his Brady

                                   18
claim.      The    opinion   contains    explicit      factual   findings   and

conclusions.      But not surprisingly, the state court did not find

that Zimm made the alleged Brady statement to Parsons.                      The

state court did not find that Parsons admitted to Adkins that

Zimm made the alleged Brady statement to him.                    And the state

court did not find that Parsons had knowledge of any such Brady

statement    prior    to   Watkins’   trial.        Consequently,    the   state

court did not address the question of whether the alleged but

unproven statement would have been material for Brady purposes

if Zimm had made it prior to trial.

     On federal habeas review, we are not at liberty to rewrite

state court findings of fact, or imply additional ones, in a

manner that is unsupported by the evidence in the state court

record   and      inconsistent   with        the   state   court’s   reasonable

rejection of a constitutional claim.               We must give deference to

the state court’s ultimate and reasonable adjudication of the

claim, and we must give the state court the benefit of the doubt

when doing so.        In this case, that deference is easily given.

The state court did not find the existence of a Brady statement

and the record does not compel that we do so.

                     I.    The State Habeas Proceedings

                     A.    The State Habeas Allegations

     In his state habeas petition, Watkins alleged the following

claim as his eleventh ground for relief:

                                        19
       [T]he State of West Virginia failed to inform the
       Defendant that the prosecuting witness/alleged victim
       [Zimm] had told them that he was not afraid of the
       Defendant.

J.A.   181.    Elaborating   upon   the    basis   for   this   allegation,

Watkins represented that his trial counsel, James Adkins, had:

       provided a memorandum to [state] habeas counsel
       indicating that he was present during a pre-hearing
       conversation with the Assistant Prosecuting Attorney
       who tried th[e] case who allegedly uttered that the
       victim, Mike Zimm told him that he was never afraid
       and the APA responded if that was the case then they
       should stop prosecuting at that time.

Id. (emphasis added).     “If that is true and the case,” Watkins

asserted, “then the State of West Virginia failed to provide

that exculpatory evidence to [him].”        Id.

       In its written response to Watkins’ habeas petition, the

state agreed that APA Parsons had discussed with Zimm prior to

trial the element of fear necessary to obtain a conviction for

attempted robbery under state law, but denied that Zimm made the

alleged   exculpatory   lack-of-fear      statement   to   Parsons   during

that pretrial discussion.    According to Parsons’ response:

       [I] spoke with . . . Mr. Zimm on at least two
       occasions prior to the trial of the matter . . . as a
       part of the trial preparation process.       I recall
       having a conversation with Mr. Zimm about the
       definition of the word “fear” as it applied to the
       legal elements requiring proof in the trial of the
       respondent. Mr. Zimm did not state that he was “never
       afraid”, but rather he sought a better understanding
       of what fear meant in the context of this case. (The
       Court should understand that a certain amount of
       bravado existed as to the relationship between counsel
       and Mr. Zimm and a reluctance to express fear months

                                    20
     after an incident is natural between two men.) I did,
     however, inform Mr. Zimm that if the element of fear
     did not exist the case could not be proven at trial.
     I believe this to be an accurate statement of the law
     and at no time did counsel pressure, suggest or
     influence Mr. Zimm to testify one way or the other.
     Mr. Zimm’s trial testimony was consistent with his
     statement given the day of the crime and in no way
     exculpatory.

J.A. 303-04 (emphasis added).            Parsons’ written account of this

pretrial conversation, including his explicit denial that Zimm

told him during that conversation that he was not afraid at the

time of the attempted robbery, is uncontroverted.

                    B.   The Omnibus Evidentiary Hearing

     The state habeas court held an omnibus evidentiary hearing,

providing    Watkins      the    opportunity        to   prove    his      allegation.

Watkins did not do so.

     Watkins    did      not    call   Zimm    or   Parsons      as    a    witness   to

substantiate    his      allegation     that    Zimm      made   the       lack-of-fear

statement to Parsons prior to trial.                     As a result, the state

court did not hear from the only two witnesses who had first-

hand knowledge of the pretrial conversation that had taken place

between them.

     Watkins did call his trial counsel Adkins as a witness,

presumably     to    substantiate       his    allegation        that      Adkins     had

“provided a memorandum to [state] habeas counsel indicating that

he was present during a pre-hearing conversation with [Parsons]

. . . who allegedly uttered that [Zimm] told him that he was

                                         21
never afraid.”   J.A. 181.   But Adkins did not do so.         Adkins’

testimony regarding the issue was as follows:

     Q: [by State Habeas Counsel]. [W]e have a contention
     in . . . this habeas proceeding, whereby it’s alleged
     that Mr. Parsons made some comments to the effect that
     Mr. Zimm had told him that he wasn’t afraid during
     this whole incident.   Were you ever present when Mr.
     Parsons spoke about that?

     . . . .

     A:   I don’t recall that.

    Q:   Were   you  ever   present  in  Judge  Hatcher’s
    courtroom at a time when it was perhaps yourself, Mr.
    Parsons, Mallory – I think her name was Farris – the
    court reporter, and a client of yours named Grasty
    when Mr. Parsons suggested that Mr. Zimm had told him
    he wasn’t afraid of Mr. Watkins?

     A:   I believe so, and I believe I may have made a
     contemporaneous note and either placed it in the file
     or . . . I think I might have given it to you.

    Q:   Yes, sir.   Do you recall what that -- what was
    said at that time?

    A:   My contemporaneous note      would   probably   be   more
    accurate than my memory.

     Q:   Okay.   Do you have any independent recollection
     of that conversation?

     A:   Something to the effect that -- something to the
     effect that -- yes, we were at another hearing, and
     Mr. Parsons had stated something to the effect that
     Mr. Zimm might not have been scared of Mr. Watkins on
     that -- on the date of the alleged robbery.

     Q:   Is that what Mr. Parsons -- as far as you recall,
     -- you said your recollection was fuzzy on some of
     this, but as far as you recall, is that what was said?

     A:   Like I said, I believe I made a contemporaneous
     note and retained a copy in my file. And I think when


                                 22
      I was aware that you were handling this on a habeas, I
      think I might have provided you with a copy of it.

      Q:   Do you recall who was present at the time that it
      was stated?

      A:   Other than me and Mr. Parsons, no.

      Q:   Did you -- do you recall responding at that time?
      Did you say anything?

      A:   No.     I was out of the case at that point in time.

      J.A. 194-96 (emphasis added).           Watkins did not call any of

the   other   persons    who    were   present    during   this   post-trial

conversation,      and   he    did   not    introduce   into   evidence   the

“contemporaneous note” that Adkins repeatedly referenced during

his testimony. 1



      1 As discussed in more detail below, Watkins plainly
misrepresented the substance of Adkins’ state court testimony
during the federal habeas proceedings.      In addition, Watkins
attached to his pro se federal habeas petition a typewritten
note that he now represents to be the “contemporaneous note”
mentioned by Adkins. This note references “chatter” amongst the
various persons during a sentencing hearing for an unrelated
defendant that occurred on April 1, 2008.        We cannot know
whether the “contemporaneous note” that surfaced during these
federal habeas proceedings is the “contemporaneous note” that
Adkins referenced in his testimony.      The place and time to
determine that was during the state court proceedings. But even
if we were to consider the note, it would create more problems
for Watkins.   The note that Watkins chose not to show to the
state habeas court, but now urges us to see, dates the
conversation as having occurred on April 1, 2008, after Watkins’
trial but prior to his sentencing.   Adkins was not “out of the
case” at that time, J.A. 196, and he would have necessarily been
aware of any alleged, exculpatory statement prior to the
conclusion of the state trial proceedings.      In other words,
Watkins’ Brady claim would most likely be procedurally barred,
see W. Va. Code § 53-4A-1(c), which may well explain why state
(Continued)
                                       23
      Accordingly,    the    evidence     presented    in   the   state   court

proceeding in support of Watkins’ “lack-of-fear” claim consisted

of:       (1) Parsons’ agreement (in the written response) that he

had a pretrial conversation with Zimm about the element of fear

that did not include the alleged lack-of-fear statement by Zimm;

(2)   Adkins’    testimony   that   he   did   not    recall   Parsons    making

“comments to the effect that Mr. Zimm had told him that he

wasn’t afraid during th[e] incident,” J.A. 194; and (3) Adkins’

sole “independent recollection of that conversation,” which was

that Parsons “had stated something to the effect that Mr. Zimm

might not have been scared of Mr. Watkins . . . on the date of

the alleged robbery,” J.A. 195, which is more opinion than fact

and says nothing about when Parsons developed this belief. 2




habeas counsel did not produce the note during the state habeas
proceedings despite Adkins’ repeated references to it.

      2 Watkins’ state habeas counsel might well have been
concerned about his ability to prove the existence of the
alleged lack-of-fear statement from the inception of the
evidentiary hearing.    Prior to presenting Adkins’ testimony,
Watkins’ counsel had instead described the eleventh claim as one
involving alleged improper “coaching” of the witness. See J.A.
191 (advising the state habeas court that the “eleventh
contention involves an allegation that Mr. Parsons essentially
coached Mike Zimm, the prime witness and alleged victim in this
matter”).   However, Adkins also provided no evidentiary support
for this more-recent claim. On cross-examination by the state,
Adkins testified that he did not “have any problem with an
attorney for the State saying to a victim that, ‘If you’re not
afraid or you don’t feel that you were afraid, you need to tell
me and we’re not going to take this case forward,’” and that he
(Continued)
                                     24
                     C.   The State Habeas Decision

     In its decision denying habeas relief, the state court made

the following findings of fact:

     (1) “[D]uring trial, [Mr. Zimm] testified that he was
     afraid   of  the   petitioner based  upon   what  the
     petitioner said in Mr. Zimm’s store and upon the
     petitioner’s appearance.”

     (2) “Mr. Zimm’s trial testimony was consistent with
     the statement he gave to police at the time of the
     incident.”

     (3) “[A]t some time after the trial of this matter,
     trial counsel was told that Mr. Zimm said he was not
     ‘afraid’ at the time of the incident at issue.

     (4) “Assistant Prosecuting Attorney Brian Parsons,
     esq. discussed with Mr. Zimm the definition of the
     word ‘fear’ as it applied to the elements of the crime
     at issue, and that Mr. Parsons informed Mr. Zimm that
     if the element of fear did not exist, then the case
     could not be proven at trial.

     (5) “The discovery provided to the defense did not
     contain any reference to Mr. Zimm’s alleged statement
     that he was not ‘afraid’ or to the above described
     conversation between Mr. Parsons and Mr. Zimm.”

J.A. 211 (emphasis added).

     With   regard   to   Zimm’s   alleged   “lack-of-fear”   statement,

therefore, the state court did not find that Zimm “had told

[Parsons] that he was not afraid of the Defendant,” as Watkins

had alleged.   J.A. 181.      Nor did it find that Adkins overheard

Parsons “utter[] that . . . Zimm told him that he was never



did not “feel in [his] professional            opinion   that   that   is
coaching a witness.” J.A. 201.


                                    25
afraid,” as Watkins had also alleged.                  J.A. 181.     The evidence

presented at the hearing did not warrant either finding.

       With     regard       to    the    element-of-fear      conversation      that

Parsons agreed had taken place between him and Zimm, the state

court’s       description         of   that    conversation    likewise    did    not

include a finding that Zimm’s alleged lack-of-fear statement was

a part of it.        Moreover, the state court continued to draw quite

an important distinction between the two things.                     Although the

court     referred      to    the      element-of-fear      conversation   as     the

conversation that it had just described, the court continued to

refer to the alleged, lack-of-fear statement as just that -- an

allegation.

       The state court’s conclusions of law also do not indicate

that    the     state    court         implicitly   found     that   the   pretrial

conversation included the alleged lack-of-fear statement.

       (1)    “The Court CONCLUDES that the State has an
       obligation to disclose to the defendant favorable
       impeachment or exculpatory [evidence] that is within
       its knowledge.”

       (2) “The Court CONCLUDES that the State’s alleged
       failure to inform defense counsel of the conversation
       between Mr. Parsons and Mr. Zimm regarding the
       requirement of ‘fear’ did not violate the dictates of
       Brady v. Maryland.”

       (3) “Additionally, the Court CONCLUDES that Mr.
       Parson’s statements to Mr. Zimm with regard to the
       element of ‘fear’ were an accurate way to describe
       elemental requirements to a lay person/witness and
       that there is no evidence that Mr. Parsons suggested
       or improperly influenced Mr. Zimm’s testimony.”

                                              26
J.A. 213-14 (emphasis added).                  Thus, the state court -- having

not found that Zimm made the alleged, exculpatory lack-of-fear

statement         to   Parsons      prior   to     trial,    or    that    the     alleged

statement was within Parsons’ knowledge prior to trial -- only

addressed         Watkins’        more-recently         raised    claim     that     Brady

required         Parsons     to     disclose      the     pretrial    element-of-fear

conversation that Parsons had described in the state’s response.

The      state     court    closely     reiterated         Parsons’       uncontroverted

account      of     that    conversation       and      reasonably    concluded       that

“there       [was]     no    evidence       that     Mr.    Parsons       suggested     or

improperly influenced Mr. Zimm’s testimony” during it.                                J.A.

214. 3


         3
       The dissent acknowledges that the state habeas court’s
“very wording closely mirrors that of the prosecutor’s response
to the habeas petition,” but does so as support for its view
that the state court must have “accepted and adopted Prosecutor
Parson’s uncontroverted account as to the timing of the alleged
fear statement.” Dissent at 5 (emphasis added). But this focus
on timing obfuscates the actual deficit in Watkins’ proof, and
confuses Watkins’ allegation regarding Zimm’s alleged “lack-of-
fear” statement with Parsons’ acknowledgment that he had a
conversation with Zimm about the requirement of fear that did
not include any such statement by Zimm.   Obviously, the timing
of the pretrial conversation between Parsons and Zimm, which
served as the basis for Watkins’ “coaching” allegation, is not
in dispute.      But the existence of Zimm’s alleged “fear
statement” during the pretrial conversation has always been in
dispute.    The dissent persists in conflating the two things,
even though the state court never did.   Thus, I agree that the
state habeas court appears to have “accepted and adopted
Prosecutor Parsons uncontroverted account” of the pretrial
conversation.    Id.   Indeed, it is the only account of that
conversation, because Watkins chose not to explore it or offer
(Continued)
                                             27
                                        II.

                                        A.

     Under    the    familiar    principles      of   the      Antiterrorism        and

Effective Death Penalty Act of 1996 (AEDPA), we may not grant

federal habeas relief from a state court conviction unless the

state court’s adjudication of the claim “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,”

or   “a   decision    that   was    contrary      to,     or     an    unreasonable

application    of”     Supreme     Court       precedent.             28   U.S.C.     §

2254(d)(1), (2).      Moreover, “a determination of a factual issue

made by a State court shall be presumed to be correct,” and

“[t]he    applicant    shall     have    the     burden     of    rebutting         the

presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1).

     Here, Watkins has not rebutted the state court’s factual

findings, as written, by clear and convincing evidence.                             Nor

does he assert that the state court’s denial of his Brady claim

was based upon an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.




any other evidence about it. However, we cannot ignore the fact
that this same “uncontroverted account” by Parsons of the
pretrial conversation includes Parsons’ explicit denial that
Zimm made the alleged lack-of-fear statement during it.


                                        28
Instead, he contends that we should imply a critical finding of

fact based upon evidence that he failed to present in the state

court    proceeding    --    a    finding      that    the    state    court   clearly

declined to make and that would be inconsistent with the state

court’s    reasonable       adjudication       of     his    Brady    claim.    AEDPA

deference does not allow us to do so.

       “By its plain terms, § 2254(d)(2) limits our review to the

evidence placed before the state PCR court.”                     Elmore v. Ozmint,

661 F.3d 783, 850 (4th Cir. 2011) (emphasis added); see also

Cullen    v.   Pinholster,        131    S.    Ct.     1388,    1400    n.7    (2011).

Accordingly, “[w]e consider whether the state PCR court based

its     decisions     ‘on        an     objectively          unreasonable      factual

determination in view of the evidence before it, bearing in mind

that factual determinations by state courts are presumed correct

absent clear and convincing evidence to the contrary.”                         Elmore,

661 F.3d at 850 (quoting Baum v. Rushton, 572 F.3d 198, 210 (4th

Cir. 2009)).        Under these highly deferential standards, we must

also give the state court decision “the benefit of the doubt.”

Burt v. Titlow, 134 S. Ct. 10, 13 (2013); Elmore, 661 F.3d at

850.

       In some situations, AEDPA deference allows federal courts

to infer from the state court’s “explicit factual findings and

conclusion[s] implied factual findings that are consistent with

its judgment although unstated.”                Hightower v. Terry, 459 F.3d

                                          29
1067, 1072 n.9 (11th Cir. 2006) (emphasis added); see Marshall

v. Lonberger, 459 U.S. 422, 433 (1983) (applying presumption of

correctness            to     implicit        finding       against        the        defendant’s

credibility,           where       that    finding    was    necessarily          part    of    the

court’s rejection of the applicant’s claim); LaVallee v. Delle

Rose,   410    U.S.         690,     692    (1973)    (per       curiam)       (same);    Lee    v.

Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1213 (11th Cir.

2013) (“[W]e afford AEDPA deference even where the state court’s

decision      is       a    summary       adjudication      or    engages        in    only    some

evaluation         because         ‘implicit    findings’         may     be    inferred       from

dispositive        rulings.”         (emphasis       added));      Blankenship          v.    Hall,

542   F.3d    1253,          1272     (11th    Cir.     2008)      (“We    have        previously

recognized         a       state    court’s     dispositive         ruling        may     contain

implicit findings, which, though unstated, are necessary to that

ruling.”      (internal            quotation    marks       omitted)(emphasis            added));

Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (“The

presumption of correctness not only applies to explicit findings

of fact, but it also applies to those unarticulated findings

which are necessary to the state court’s conclusions of mixed

law and fact.”); 9C Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure, § 2579 (3d ed. 2004) (“In some

cases if the court fails to make a finding on a particular fact

it has been assumed that it found against the party carrying the

burden of persuasion on that fact or that it impliedly made a

                                                30
finding consistent with its general disposition of the case.”)

(footnotes omitted).

       “In       such   cases,    we    make   the    common    sense    judgment    that

material factual issues were resolved by the [state] court in

favor of the judgment when it was reasonable for that court to

have done so in light of the evidence.”                       Hightower, 459 F.3d at

1072       n.9    (original      alterations        and   internal   quotation      marks

omitted); see also Marshall, 459 U.S. at 433 (Where “it was

clear under the applicable federal law that the [state] court

would have granted the relief sought by the defendant had it

believed the defendant’s testimony, its failure to grant relief

was    tantamount        to   an       express      finding    against    the   .   .   .

defendant.”); LaVallee, 410 U.S. at 695 (same). 4


       4
       The dissent asserts that this “is simply not the law,” but
points us to no contrary authority. Dissent at 13. In none of
the cases cited by the dissent did the court imply an
inconsistent finding of fact, afford it a presumption of
correctness, and place the burden upon the state to rebut it.
On the contrary, the Blankenship decision, which is also relied
upon by the dissent, made it clear that a state court’s
“‘dispositive ruling may contain implicit findings, which,
though unstated, are necessary to that ruling.’” Blankenship v.
Hall, 542 F.3d 1253, 1272 (11th Cir. 2008) (emphasis added).
Such “necessary” findings “can be inferred from its opinion and
the record,” and they “are entitled to deference under § 2254(d)
to the same extent as explicit findings of fact.”       Id.   But
nowhere did the Blankenship court indicate that inconsistent,
and by definition unnecessary, state court findings of fact can
be inferred based upon our interpretation of an explicit factual
finding or the state court record. Moreover, “while state court
findings of fact can be implied” from the state court’s
dispositive ruling, “‘they cannot be imagined from thin air.’”
(Continued)
                                               31
      Here,   however,    Watkins     urges     us    to     do    the   opposite.

Watkins contends that he is entitled to federal habeas relief

from his state court conviction because the state habeas court,

in the course of denying his Brady claim, found that “at some

time after the trial of this matter, trial counsel was told that

Mr. Zimm said he was not ‘afraid’ at the time of the incident at

issue.”     J.A. 211 (emphasis added).              But instead of having us

interpret that single finding of fact in a manner consistent

with the state court’s other findings and conclusions, as well

as   its   reasonable   disposition    of     the    claim    in   light   of   the

evidence presented, Watkins urges us to rewrite and add to the

finding in a manner that is inconsistent with them.

      Specifically, Watkins contends that the state court meant

to find, or impliedly found, instead, that “at some time after

the trial of this matter, trial counsel was told [by Parsons]

that Mr. Zimm said [to Parsons] that he was not afraid at the

time of the incident,” and that Zimm said this to Parsons prior

to Watkins’ trial.       To be sure, these additions to the state

court’s actual finding of fact are critical to any plausible

claim on Watkins’ part that a Brady violation occurred.                    But we



Id. at 1272 n.5 (quoting Cave v. Singletary, 971 F.2d 1513, 1516
(11th Cir. 1992)).    That is precisely what the district court
and the dissent would have us do here.         Neither points to
evidence that Parsons admitted to Adkins that Zimm made the
exculpatory statement to him, because it does not exist.


                                      32
cannot simply ignore the fact that the state court did not make

them or that, based upon the evidence presented, the state court

reasonably denied the Brady claim instead.                 Indeed, I do not see

how it had any other choice.

       The state court did not find that Zimm made an exculpatory

statement to Parsons prior to trial.                 The state court did not

find    that   Parsons      admitted      to    Adkins    that    Zimm    made    an

exculpatory statement to him prior to trial.                     And, of course,

the state court did not find that Parsons or the state had

knowledge of any exculpatory statement by Zimm prior to trial.

Watkins    does    not   point   to     any    evidence   that   would     directly

support,    much   less    compel,      these    modifications     to    the   state

court’s findings of fact.             Instead, he contends that we should

include them because the state did not produce evidence that

someone    other    than    Parsons     told     Adkins   that   Zimm     made   the

alleged, exculpatory statement, and because the state did not

produce     evidence      that   Zimm     made    the     alleged,      exculpatory

statement      after      the    trial.          This     reasoning      not     only

impermissibly reverses the burden of proof from Watkins to the

state to disprove his allegation, it turns AEDPA deference on

its head.

                                          B.

       Although I cannot know precisely why the state habeas court

phrased this single factual finding in the manner that it did,

                                          33
it is still entitled to a presumption of correctness, and the

state court’s decision on the merits of the Brady claim may not

be set aside unless it is an unreasonable one in light of the

evidence that was presented to the state court.                 One need only

read Adkins’ brief testimony about the whole matter to conclude

that it is not.

       Frankly, if I had been the state court judge, I would not

have found that anyone told Adkins that Zimm said to anyone at

any time that he was not afraid during the attempted robbery.

But I am not the finder of fact.                   My obligation is to give

deference to the state court’s reasonable adjudication of the

constitutional claim in light of the evidence presented to it,

and to give the state court the benefit of the doubt when doing

so.

       That   said,    there    could    be    any    number    of   reasonable

explanations for why the state court penned this single finding

as it did.      Maybe the state court simply made a mistake.                 Or

maybe the state court meant to say exactly what it did and

nothing more.      The state court record suggests that there were

other    persons      present   during       the   post-trial    conversation,

Adkins’ memory of the conversation was admittedly “fuzzy,” and

Adkins    was   not     allowed   to     refresh     his   memory    with   the

contemporaneous note to which he persistently referred.                     J.A.

195.     As the finding is written, therefore, the state court

                                        34
might well have decided to give state habeas counsel the benefit

of the doubt as to whether the Brady allegation had been made in

good    faith,     deserving     of    the     evidentiary    hearing       that     was

provided to Watkins to prove the claim.                 But it would not have

made a finding that was inconsistent with the balance of its

other findings and conclusions, unsupported by the evidence that

Watkins brought forth to support the allegation, or inconsistent

with its eminently reasonable decision to deny Watkins’ Brady

claim based upon that evidence

       The line of cases relied upon by the dissent also would not

allow us to translate a single, ambiguous finding of fact, or

even    a   mistaken     one,   into    an     inconsistent   one        that   is   not

supported by the evidence, in order to upset the state court’s

reasonable rejection of the constitutional claim.                          See, e.g.,

Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (noting

that    “‘[t]he     statute     compels      federal   courts       to    review     for

reasonableness the state court’s ultimate decision, not every

jot of its reasoning’” (quoting Santellan v. Cockrell, 271 F.3d

190, 193 (5th Cir. 2001) (emphasis added)); see also Santellan,

271    F.3d   at   193   (“[E]ven      where    a   state   court    [has]      made   a

mistake, . . . ‘we are determining the reasonableness of the

state court’s ‘decision,’ . . . not grading their papers.’”)

(quoting Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (second

alteration in original); Cruz, 255 F.3d at 86 (“Although sound

                                          35
reasoning       will     enhance      the     likelihood           that    a     state    court’s

ruling   will       be   determined         to   be     a     reasonable        application     of

Supreme Court law, deficient reasoning will not preclude AEDPA

deference, at least in the absence of an analysis so flawed as

to undermine confidence that the constitutional claim has been

fairly       adjudicated.”       (internal         quotation            marks    and     citations

omitted)).

       In the end, however, my interpretation of the state court’s

explicit finding of fact is irrelevant, for I am not at liberty

to pick it apart or rewrite it in the light most favorable to

Watkins.       See, e.g., Wainwright v. Goode, 464 U.S. 78, 85 (1983)

(per curiam) (holding that where the state court “record [wa]s

ambiguous,” “the Court of Appeals erred in substituting its view

of the facts for that of the [state court]”; Palmer v. Estelle,

985    F.2d     456,     459    (9th     Cir.         1993)     (“Where         the    record   is

ambiguous, [the state] court’s factual findings are deemed to be

‘fairly supported by the record.’” (quoting Wainwright, 464 U.S.

at    85).         Watkins     bore     the      burden       of     presenting        clear    and

convincing         evidence      that    the          state     habeas         court’s     factual

finding,      as    written,     was     not     entitled          to    the    presumption     of

correctness that AEDPA grants it.                       He has not done so.               Even if

he    had,    he    would      only    have      shown        that      this    single     factual

finding was either incorrect or incomplete, neither of which

would compel us to replace it with a factual finding that is

                                                 36
unsupported      by   the     evidence   and    inconsistent     with     the    state

court’s decision.           Watkins was required to show that the state

court’s     ultimate        rejection    of        his   Brady   claim        was     an

unreasonable one in light of the evidence presented to the state

court, see Winston v. Kelly, 592 F.3d 535, 555 (4th Cir. 2010),

and this he cannot do.

                  III.      The Federal Habeas Proceedings

     I    turn    now    to    the   district      court’s    decision,       and    the

troubling    factual      misrepresentations         that    Watkins    made    to    it

about the evidence of record.

                                         A.

     From the outset, Watkins represented to the district court

in his § 2254 petition that Adkins “testified that he heard

Prosecutor Parsons say (at an unrelated hearing) that at some

point before trial the alleged victim, Mike Zimm, told him that

he was not afraid on the day in question.”                    J.A. 235.        That is

untrue.

     Watkins then proceeded to further supplement Adkins’ actual

testimony    with       testimony    that     he    wishes    Adkins    had     given.

According to Watkins:

     At some point after the trial, [Adkins] was present at
     an unrelated hearing where [Parsons] was also present.
     At the unrelated hearing, Adkins heard Brian Parsons
     say that at some point before Watkins’ trial he met
     with the alleged victim, Mike Zimm, and during that
     meeting Zimm told Parsons that he was not in fear the
     day Watkins came to his store.        Parsons, in the

                                         37
     presence of Jim Adkins, then admitted that he then
     told Zimm that if he wasn’t in fear that day, then it
     was pointless to pursue the case as a robbery.    Mr.
     Zimm’s statement at that meeting with [P]arsons was
     the opposite of what he testified to at Watkins’
     trial.

     . . . .

          At Watkins’ Omnibus Habeas Corpus Hearing, Mr.
     Adkins did testify to all of this, and then gave his
     professional assessment that if he had known about
     Zimm’s contradictory statements before trial, it would
     have potentially affected the outcome. . . .

          Mr.   Parsons  does   not  deny  that   such                   a
     conversation between he and Mr. Zimm took place.                   In
     fact, he admits to it in the State’s Response                      to
     Watkins’ Petition.

J.A. 239-40.      Again, this is untrue.            If Adkins had actually

“testif[ied] to all of this,” id. at 240, Watkins might well

have had a plausible Brady argument.           But Adkins did not.

     Watkins’     summary    is   no   mere    “overstate[ment]”       of    “the

strength of Adkins’ testimony.”              Dissent at 8.    It is created

out of whole cloth.         Adkins did not testify that Parsons told

him anything about his pretrial conversation with Zimm, much

less that Parsons admitted to him that Zimm made an exculpatory

statement.     Instead, Watkins took selected portions of Parsons’

response to the state habeas petition, and put them into the

mouth of Adkins – except, of course, that most important portion

where Parsons denied that Zimm made the alleged, exculpatory

statement    to   him.      Parsons    did   not   deny   having   a   pretrial

conversation with Zimm about the element of fear, but he most


                                       38
certainly did “deny that such . . . conversation” included a

“contradictory statement” by Zimm that “he was not in fear the

day Watkins came to his store.”           J.A. 240.

     Unfortunately, the district court appears to have accepted

Watkins’    unsubstantiated        factual      narrative.       It     likewise

erroneously recounted Adkins’ testimony as follows:

     During   the  [omnibus   evidentiary]  hearing,  James
     Adkins, the petitioner’s trial lawyer, testified that,
     at an unrelated hearing after the petitioner’s trial,
     he overheard Brian Parsons, the prosecutor at the
     petitioner’s trial, describe a conversation he had
     with Zimm before the petitioner’s trial.   In Adkins’s
     presence, prosecutor Parsons stated that Zimm told him
     during this pretrial conversation that he had not been
     in fear on the day the petitioner entered his store.
     According to Adkins, the prosecutor said that his
     response to Zimm was that if he was not in fear, the
     case for attempted robbery could not proceed.   Adkins
     made a contemporaneous note of the conversation.
     Although the note was not admitted into evidence, its
     substance was discussed during the hearing and in the
     parties’ briefing.

J.A. 391 (emphasis added).           Again, no such testimony by Adkins

exists,    and    neither    the   “contemporaneous    note”     nor    anyone’s

summary    of    it   was   introduced   into   evidence     before    the   state

court.

     Proceeding from this incorrect evidentiary premise from the

outset, the district court found that “[t]here [was] no evidence

to controvert” Adkins’ nonexistent testimony, and it rewrote the

state court’s factual finding into the one that Watkins wanted:

     “[A]t some time after the trial of this matter, trial
     counsel was told [by the prosecutor] that Mr. Zimm

                                         39
       said he was not ‘afraid’ at the time of the incident
       at issue.”

J.A.     396   (alteration         of    state     court    finding    in     original)

(emphasis      added).       Having       made    this     unsubstantiated      factual

finding that Parsons admitted to Adkins that he had knowledge of

the alleged Brady statement, and operating under the additional,

assumption that Parsons had knowledge of it prior to trial, the

district court was then in a position to conclude that the state

court’s denial of relief in light of these implied findings was

unreasonable under 28 U.S.C. § 2254(d)(1).                   This was error.

       The district court’s extraordinary steps to its grant of

federal habeas relief have gone far afield from the “evidence

presented      in     the    State        court    proceeding,”        28     U.S.C.   §

2254(d)(2), and give inadequate deference to the state court’s

reasonable adjudication of Watkins’ Brady claim in light of that

evidence.

                                            B.

       On   appeal,    the    dissent       has    similarly    stretched       Adkins’

testimony into a version that does not exist.                     According to the

dissent, “Adkins identified Parsons, and only Parsons, as the

person      who     told     him        about     Zimm’s     alleged        lack-of-fear

statement.”         Dissent at 9.           But in actuality Adkins did not

identify Parsons even once as a person who told him after trial

that Zimm had said he was not afraid during the crime.


                                            40
       Simply put, Adkins was the only witness that Watkins called

to substantiate his allegation, and Adkins did not do so.                             There

is no need for us to interpret or add to Adkins’ testimony.                             Nor

is it within our province to do so.                      Adkins’ testimony speaks

for itself.

       When Adkins was explicitly questioned about Watkins’ Brady

allegation,     he    testified          that    he    did     not     recall    Parsons

“ma[king] comments to the effect that Mr. Zimm told him that he

wasn’t afraid during this whole incident.”                           J.A. 194.         When

pressed    by   state      habeas    counsel,         Adkins     testified      that     he

“believe[d] he recalled a conversation that took place after

Watkins’   trial     and    that    he    “may    have    made    a    contemporaneous

note” of the substance of that conversation.                          Id.   But Adkins

never agreed with state habeas counsel’s leading statement that

during this conversation “‘Parsons suggested that Mr. Zimm had

told him that he wasn’t afraid of Mr. Watkins.’”                        Dissent at 9.

Rather,    Adkins    immediately          and    repeatedly          referred    to     the

contemporaneous      note    that    he    believed       he   had    given     to    state

habeas counsel and he all but asked counsel to produce it to

him.

       When Watkins’ counsel instead asked Adkins to put in his

own words his “independent recollection of that conversation,”

Adkins did not testify that Parsons “suggested that Mr. Zimm had

told him he wasn’t afraid of Mr. Watkins.”                     J.A. 194-95.          And he

                                           41
did not identify Parsons even once as a person who told him that

Zimm       had    said   that   he    was   not       afraid   during    the   attempted

robbery.          On the contrary, Adkins testified, and only testified,

to his “independent recollection” and in his own words, that

“Parsons had stated something to the effect that Mr. Zimm might

not have been scared of Mr. Watkins on . . . the date of the

alleged robbery[,]” J.A. 195 (emphasis added), which is more

opinion than fact and offers nothing in the way of when or why

Parsons developed this belief about Zimm.

       Interestingly, the dissent seemingly acknowledges Watkins’

failure of proof, as it too points to no testimony that would

support          the   district      court’s        implied    factual   finding    that

Parsons admitted to Adkins that Zimm told Parsons that he was

not afraid of Watkins at the time of the robbery. 5                       Instead, the

dissent focuses upon the state’s case, faulting Parsons for not

denying Watkins’ allegations in the way it believes he should

have and criticizing the state for putting up what it deems to


       5In fact, the dissent acknowledges that “Adkins used
qualifying words and equivocal phrases about what, precisely, he
heard, and suggested that his ‘contemporaneous note would
probably be more accurate than [his] memory,’” Dissent at 8-9
(quoting J.A. 195) (emphasis and alteration in original), but
this only highlights the point.   Adkins simply did not provide
the requisite support for Watkins’ allegation that “he was
present during a pre-hearing conversation with [Parsons] who
allegedly uttered that [Zimm] told him that he was never
afraid.” J.A. 181.



                                               42
have    been     a    “lackluster          showing”        at    the    state       evidentiary

hearing.       Dissent at 10 n.2.

       For     example,       the     dissent         criticizes        Parsons          for     not

“challeng[ing]           Adkins’           recollection           of      his           post-trial

conversation with Parsons” and for not “suggest[ing] that Zimm

could have made the alleged statement after trial.”                                     Dissent at

5.     But, of course, this was not the state’s burden to bear and

the state had no obligation to make any showing at the state

evidentiary hearing.              It was Watkins’ burden to prove that Zimm

made    the    alleged,      exculpatory          statement,       that       he    made    it    to

Parsons,       and    that   he     made    it    prior     to    trial.           He    did   not.

Watkins       chose    not   to     call    Zimm      or    Parsons      as    a    witness       to

explore their pretrial conversations.                            Watkins chose to call

Adkins to prove his claim, but Adkins’ memory did not allow him

to     serve    that     role       and     Watkins        did    not     produce          Adkins’

contemporaneous note to refresh his memory.

       Indeed, why would Parsons have felt the need to challenge

Adkins’ recollection of the post-trial conversation?                                       And why

would he have endeavored to find and present evidence that Zimm

made    the    alleged       “lack-of-fear”           statement        after       trial    or    to

someone else?           Parsons had already denied that Zimm made the

alleged Brady statement to him and Adkins had not contradicted

this denial with testimony that Parsons had admitted to him that

the exculpatory statement was made.                         Little wonder, therefore,

                                                 43
that the state court did not find that Zimm made the alleged

statement to Parsons, did not find that Zimm made the alleged

statement to anyone else, and did not find that Parsons told

Adkins about the alleged statement.

     The dissent likewise criticizes the manner in which Parsons

denied Watkins’ allegation in the state’s response to Watkins’

state habeas petition.         Although the dissent admits that Parsons

denied     Watkins’     allegation,      it    urges        us        to     brush    this

inconvenient fact aside as well because, in its opinion, Parsons

“had every reason to minimize Zimm’s ‘lack-of-fear’ during the

robbery.”     Dissent at 10.       But the dissent points to nothing in

the record that supports this assumption about Parsons’ motives,

much less its implied finding that the state court was of this

unspoken view as well.

     The    dissent     also   creates   a     host    of    additional          implied

findings pertaining to Parsons’ denial.               The dissent has decided

that “Parsons attempted to finesse exactly what witness Zimm

said at their pre-trial meetings,” that he “parsed and qualified

their      exchanges”     during      these     meetings,              and     that     he

intentionally “le[ft] open the possibility that Zimm did say

something short of never being afraid but still not amounting to

the required not in ‘fear of bodily injury.’”                          Dissent at 11.

Again,     there   is   nothing    in    the    record           to    support       these



                                        44
accusations against Parsons, and the state court certainly did

not make any such adverse credibility findings against him.

      In effect, the dissent faults Parsons for not explicitly

denying     an   endless    variety        of    unspoken    but    theoretically

possible variations of the allegation that Watkins made and that

Parsons denied, all the while ignoring the fact that Watkins

could have explored any such suspicions about Parsons’ response

at the evidentiary hearing.            Parsons did not choose the words

that comprised the allegation against him.                  Watkins did.     And I

certainly    cannot   fault       Parsons       for   phrasing     his   denial    of

Watkins’ accusation by using the same accusatory words that were

used against him. 6

      In any event, such speculation about prosecutorial motives

during the pleading stage is misplaced given our deferential

standard    of   review    and    Watkins’      clear   failure     to   prove    his

allegation.      The question is whether the state court’s decision

to reject Watkins’ Brady claim was an unreasonable one in light

of   the   evidence   that       Watkins    presented       in   support   of     it.

Watkins cannot excuse his failure of proof by relying upon an


      6To the extent there is any confusion, the only “written
statement [submitted] to the state habeas court,” Dissent at 11,
was the state’s response to Watkins’ habeas petition, denying
Watkins’ sole claim that Zimm had made the alleged “lack-of-
fear” statement prior to trial.     Those pleadings, of course,
provide no basis for the implication that Parsons was engaged in
such word-play on the day of the evidentiary hearing.


                                       45
alleged “lackluster showing” by the state, nor can we.                   Dissent

at 10 n.2.       All agree that Watkins’ sole allegation in his

petition was that Zimm told Parsons prior to trial that he was

“never   afraid,”    J.A.   181,    and   all   agree   that   Parsons    denied

Watkins’ allegation.        As the dissent also acknowledges, Parsons

was in the courtroom.          Watkins could have called Parsons as a

witness to ask him, for example, whether Zimm “sa[id] something

short of never being afraid.”               Dissent at 11.       More simply,

Watkins could have just asked Parsons what Zimm said to him.

Watkins also could have called Zimm as a witness and asked Zimm

what he said to Parsons.         In short, Watkins was provided a full

opportunity     to   explore    any   and    all   pre-trial    conversations

between Zimm and Parsons.          Instead, Watkins did nothing, and now

wags his finger at the state for not disproving his unproven

allegation. 7


     7 As noted earlier, on the morning of the state evidentiary
hearing, Watkins changed the focus of his Brady claim from the
alleged “lack-of-fear” statement by Zimm (which was alleged in
the petition) to the “coaching” allegation against Parsons
(which was grounded in Parsons’ response to the petition).    On
cross-examination by the state, however, Adkins equally failed
to support this newly-raised claim and it too was rejected by
the state court.
      On federal habeas review, Watkins has attempted to change
the focus back to his original allegation.    But in order to do
so, he falsely represented Adkins’ testimony to the district
court and attempted to introduce for the first time the alleged
“contemporaneous note” authored by Adkins.   That note, however,
contradicts Adkins’ testimony that he was “out of the case” at
the time of this alleged “post-trial” conversation between him
(Continued)
                                      46
                                                 C.

       To conclude, Watkins’ arguments are plentiful, but they are

based    upon       summaries      of    evidence       that     does    not   exist.      The

district court’s implied finding that Parsons admitted the Brady

violation to Adkins is likewise built upon nonexistent evidence

and supposition.            Parsons did not agree in the state’s response

to Watkins’ state habeas petition that Zimm made the alleged

exculpatory          statement          during        their     pretrial       conversation.

Watkins points to no testimony by Adkins that Parsons admitted

that Zimm made the alleged exculpatory statement to him prior to

trial.       The state court did not find that Parsons admitted to

Adkins       that    Zimm     made       the     exculpatory          statement,    and    the

evidence      presented       in     the       state     court     proceeding      does    not

require us to imply a finding that would be contrary to the

state court’s reasonable adjudication of this claim.                               Even if I

were    at    liberty    to     review      Watkins’          state   habeas    petition    de

novo, I could find no basis upon which to grant relief on this




and Parsons, and places it as having instead occurred prior to
the conclusion of the trial proceedings.      By withholding the
note from the state court, Watkins deprived the state court of
the ability to address not only the substantive content of the
note but also the procedural implications that stem from it.
Hardly a better case could be made for why we must defer to the
state habeas court’s reasonable rejection of Watkins’ claim in
light of the evidence that was presented to it.



                                                 47
record.   I certainly cannot say that the state court’s decision

to deny relief was an unreasonable one. 8




     8 On appeal, the dissent seeks to write into the state
court’s decision yet another implied finding, i.e., that the
alleged, exculpatory statement was not material.       I do not
concede that the alleged but unproven statement by Zimm would
have been material under Brady if there was evidence that he
actually said it, much less that the state court would have been
unreasonable under AEDPA’s deferential standard of review if it
had found that the statement was not material. The state court
never found that Zimm made the alleged statement, or that
Parsons had knowledge of any such statement prior to Watkins’
trial, or that Parsons failed to disclose any exculpatory
evidence to Watkins in a timely manner. Consequently, it had no
reason to address materiality and it did not make any such
materiality finding.


                                48
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

     With respect, I dissent.             The district court understood and

deferred to the facts found by the state habeas court, and then

correctly concluded that the state court unreasonably applied

Brady     v.   Maryland,    373        U.S.    83     (1963),     to     those     facts.

Accordingly, we should affirm its grant of the writ of habeas

corpus to Steven Watkins.



                                          I.

     I agree with the majority that the state court did not base

its denial of habeas relief on an unreasonable finding of the

facts and that a federal court reviewing a state habeas ruling

must defer to the state court’s factual findings.                        But for these

very reasons, I cannot agree that the district court erred in

granting habeas relief.            For in holding that the district court

impermissibly     “placed        its   own     gloss    upon    the     state      court’s

factual    findings,”      the    majority       itself    does    precisely        that.

This move enables the majority to reconstruct the narrative of

this case to one more to its liking, but one that the state

court   never   found,     the    State       never    espoused,       and   the   record

simply does not support.

     A jury found Watkins guilty of the West Virginia crime of

attempted robbery in the second degree, which requires proof

that the would-be robber placed “the victim in fear of bodily

                                          49
injury.”      W. Va. Code § 61-2-12(b).             At the core of the majority

opinion is the erroneous conclusion that the state habeas court

did    not    find     that   before       trial    the     prosecution      possessed

evidence that the victim of the attempted robbery had made an

inconsistent statement about an element of the charged offense -

- i.e., that he had not been “in fear of bodily injury” during

the   attempted       robbery,    as   was    required      for    conviction.        The

concurrence      then    adds     some     equally     flawed      arguments     in   an

attempt to bolster this conclusion.

       On the basis of these mistaken theories, the majority holds

that the prosecutor’s failure to inform the defense about this

impeachment evidence did not violate Brady.                       But careful review

of    the    record    requires    the     contrary    conclusion.        The       state

habeas court did indeed find that before trial the prosecutor

had evidence of the critical witness’s lack-of-fear statement.

And    the    prosecutor’s       failure     to    inform   the    defense     of   this

evidence clearly violated Brady.

       The factual finding of the state court at issue here reads

in its entirety as follows:

       The Court FINDS that, at some time after the trial of
       this matter, trial counsel [Adkins] was told that Mr.
       Zimm [the witness] said he was not “afraid” at the
       time of the incident at issue.   Assistant Prosecuting
       Attorney Brian Parsons, [E]sq. discussed with Mr. Zimm
       the definition of the word “fear” as it applied to the
       elements of the crime at issue, and that Mr. Parsons
       informed Mr. Zimm that if the element of fear did not
       exist, then the case could not be proven at trial.

                                           50
       The discovery provided to the defense did not contain
       any reference to Mr. Zimm’s alleged statement that he
       was   not   “afraid”   or  to   the   above   described
       conversation between Mr. Parsons and Mr. Zimm.

J.A.   211.      The    state    court      found   that    after   trial,     Defense

Counsel      Adkins    was    told   that    the    victim-witness,       Mike    Zimm,

stated that he had not been afraid during the charged attempted

robbery.       The first sentence of the above paragraph makes that

clear.       Equally clear is that in the second sentence, the state

court found that before trial, Prosecutor Parsons and witness

Zimm had a conversation in which Parsons told Zimm that without

evidence of his fear during the alleged attempted robbery, “the

case could not be proven at trial.”                 And in the third sentence,

the state court indisputably found that the prosecution did not

turn over to the defense, prior to trial, any evidence about

this conversation or about any statement the witness, Zimm, made

during the conversation.

                                            A.

       The    majority       opinion   focuses      on     the   timing   of     Zimm’s

alleged lack-of-fear statement, holding that the district court

erred in concluding the state court found Zimm’s alleged lack of

fear statement to have occurred before trial.                       But it is the

majority that errs here.             The timing of Zimm’s alleged statement

has never been in dispute.               The State has never contended that




                                            51
Zimm made the alleged statement to the prosecutor after trial,

and does not do so on appeal before us.

      To the contrary, Prosecutor Parsons himself, in responding

to   the   habeas   petition   in   state   court,   recounted   that   the

conversation about the fear element took place prior to trial in

the course of a discussion about the necessity of proof of this

element at trial.      Thus, in the State’s written response to the

habeas petition, Parsons explained:

      [I] spoke with the [sic] Mr. Zimm on at least two
      occasions prior to the trial of the matter to [sic] as
      a part of the trial preparation process.      I recall
      having a conversation with Mr. Zimm about the
      definition of the word “fear” as it applied to the
      legal elements requiring proof in the trial of the
      respondent. Mr. Zimm did not state that he was “never
      afraid”, but rather he sought a better understanding
      of what fear meant in the context of this case. (The
      Court should understand that a certain amount of
      bravado existed as to the relationship between [me]
      and Mr. Zimm and a reluctance to express fear months
      after an incident is natural between two men.) I did,
      however, inform Mr. Zimm that if the element of fear
      did not exist the case could not be proven at trial.

J.A. 303-04 (emphasis added).        Absent from Parsons’ explanation

to the state habeas court is any suggestion that the contention

in the habeas petition as to the timing of Zimm’s alleged lack

of fear statement was wrong -- i.e., that the statement did not

take place before trial.       To the contrary, Parsons defended his

nondisclosure of evidence of Zimm’s statement by placing it in

the context of pre-trial witness “preparation” regarding proof

of the fear element at trial.

                                     52
       Moreover, Prosecutor Parsons took exactly the same approach

at the evidentiary hearing before the state habeas court.                                When

he     cross     examined        Defense     Counsel       Adkins,      Parsons       neither

challenged Adkins’ recollection of his post-trial conversation

with Parsons nor suggested that Zimm could have made the alleged

statement after trial.              See J.A. 200-01; 195.                Rather, Parsons

again sought to place Zimm’s alleged statement within their pre-

trial conversation about the fear element.                             In sum, the state

prosecutor’s consistent account -- in his written response to

the state habeas petition and at the evidentiary hearing before

the    state     court      --    was   that      Zimm’s    alleged       fear    statement

occurred before trial.

       It is clear from the state habeas court’s factual findings

that     the     court      accepted        and      adopted      Prosecutor         Parsons’

uncontroverted         account     as   to     the    timing      of   the    alleged    fear

statement.            Indeed,     the   state       court’s    very      wording      closely

mirrors        that    of    the    prosecutor’s         response        to    the     habeas

petition.         Compare        J.A.   211,      with     J.A.    303-04.        Thus,    in

context, there is only one way to read the first two sentences

of the state court’s factual findings:                            the initial sentence

describes       how,    after      trial,    Prosecutor        Parsons        told    Defense

Counsel Adkins that the witness, Zimm, stated he had not been

afraid; and the second sentence places this statement in the

context    of     a     pre-trial       conversation        between      prosecutor       and

                                               53
witness about the necessity of proof of the element of fear at

trial.      This conclusion, contrary to the majority’s suggestion,

does    not    conflate        the   conversation          between      Parsons     and       Zimm

before trial with the conversation between Parsons and Adkins

after    trial.         Rather,      it     recognizes         that    in   his    post-trial

conversation         with    Defense        Counsel       Adkins,      Prosecutor    Parsons

relayed the substance of his pre-trial conversation with Zimm.

       On     appeal    before       us,    the       State    repeats      this   very       same

version of the critical events for a third time.                               Its brief to

this court is utterly bereft of any suggestion that the district

court’s conclusion about the timing of Zimm’s alleged statement

is incorrect.          To the contrary, the district court’s view that

the state court found that the alleged statement occurred before

trial is one in which the State explicitly concurs.                                 Thus, in

its appellate brief, the State recounts:                              “After finding that

Mike    Zimm    [the     witness]          made    a    pre-trial       statement        to    the

prosecutor       that       he   was       not    ‘afraid’       during      the    attempted

robbery,       the     state     [habeas]         court       concluded     that    no    Brady

violation had occurred.”               Appellant Br. 13 (emphasis added); see

also id. at 20-21.

       In sum, the record offers no support for the majority’s

conclusion that the district court “impermissibly alter[ed]” the

state habeas court’s factual findings to conclude that Zimm’s

alleged statement to the prosecutor occurred before trial.                                    That

                                                 54
the state court found that Zimm’s alleged statement occurred

before trial -- a view espoused by the State itself -- is the

only reading that finds support in the record. 1

                                          B.

       The    concurrence      offers    some       additional     arguments      in   an

attempt      to     bolster   the     decision      to   deny    habeas      relief    to

Watkins.      None is convincing.

       First, the concurrence adopts the sole argument offered by

the State itself as to why the district court assertedly erred

in concluding that the state court had found that Prosecutor

Parsons told Adkins about Zimm’s alleged lack-of-fear statement.

Although      the    state    court   expressly      found      that   “at   some     time

after the trial of this matter,” Adkins “was told that Mr. Zimm

said he was not ‘afraid’ at the time of the incident,” J.A. 211,

the    concurrence      contends      that,    in   doing    so,    the   state     court

“clearly declined” to find that it was Prosecutor Parsons who

told       Adkins    this.      The     State       similarly      asserts    that     an


       1
       Indeed, if the state habeas court had found that the
alleged statement occurred after trial, that determination would
have been unreasonable.   The only evidence as to the timing of
Zimm’s alleged statement that was presented to the state habeas
court was Parsons’ account that it took place before trial. For
the state court to have disregarded this account and instead
concluded that the alleged statement occurred at some other time
would have been flatly contradicted by the record before it, and
thus a patently unreasonable finding of fact. Such unreasonable
fact findings, of course, provide the basis for habeas relief.
See 28 U.S.C. § 2254(d)(2).


                                          55
“unidentified           individual”      told     Adkins     “about        an     alleged

statement by Zimm.”            Appellant Br. 18.

       By using the passive voice, the state habeas court did not

identify by name the individual who, after trial, told Defense

Counsel Adkins that Zimm had said, prior to trial, that he was

not afraid.          And it may well be that in his federal habeas

petition, Watkins overstated the strength of Adkins’ testimony

describing        the      post-trial    conversation       in     which    Prosecutor

Parsons told him about witness Zimm’s statement.                           But we must

defer to the state court’s finding that Adkins “was told” that

Zimm stated he was not afraid at the time of the robbery, J.A.

211, in light of the evidence that was before the state court.

As the district court concluded, that evidence offers not even a

suggestion that anyone other than Prosecutor Parsons told Adkins

about      Zimm’s    alleged     statement.        Rather,       the    only    possible

conclusion to draw from the record is that Parsons is the person

who relayed this information to Adkins.

       To   be     sure,    Adkins    initially    indicated       that    he   did   not

“recall” a conversation in which Parsons told him that Zimm had

made     the      lack-of-fear       statement.      J.A.        194.      Immediately

thereafter, however, Adkins corrected himself and testified that

he   did    recall      this    conversation      with   Parsons.          Adkins     used

qualifying words and equivocal phrases about what, precisely, he

heard,      and     suggested     that    his     “contemporaneous         note     would

                                           56
probably be more accurate than [his] memory.”                                   J.A. 195.        But

despite      his    qualifications      about          what        was    said     during       this

conversation, Adkins was not at all equivocal about who said it.

It   was    the     prosecutor:        Parsons.              Id.         When    asked      whether

“Parsons suggested that Mr. Zimm had told him he wasn’t afraid

of Mr. Watkins,” Adkins responded in the affirmative.                                         Id. at

194.       Moreover, throughout the rest of his testimony, Adkins

identified Parsons, and only Parsons, as the person who told him

about      Zimm’s    alleged   lack-of-fear                statement.           Id.    at     194-95

(when      asked     about     his     “independent                recollection          of     that

conversation,”        responding     “yes     .        .    .    Mr.     Parsons      had     stated

something to the effect that Mr. Zimm might not have been scared

of Mr. Watkins;” and when asked if he recalled “who was present

at the time that it was stated,” responding “other than me and

Mr. Parsons, no.”).

       No evidence was presented at the habeas hearing that anyone

else    relayed      this    information          to       Adkins.         No     evidence       was

presented      to    suggest    that    it    was          not     Parsons       who   made      the

statement to Adkins.           And Prosecutor Parsons himself, appearing

as the State’s counsel at the habeas hearing, did not dispute

that it was he.         Thus, in finding that after trial, Adkins “was

told” that Zimm said he was not afraid during the attempted




                                             57
robbery, J.A. 211, the state habeas court necessarily found that

Prosecutor Parsons told Adkins this. 2

      Second,     the    concurrence       maintains      that   in    his    written

statement, Prosecutor Parsons asserted “that he had a pretrial

conversation with Zimm about the element of fear that did not

include the alleged lack-of-fear statement,” and “explicit[ly]

deni[ed]   that    Zimm    made    the    alleged       lack-of-fear     statement.”

(emphasis in concurrence).             But in fact Parsons, who the state

habeas court undoubtedly recognized had every reason to minimize

Zimm’s “lack-of-fear” during the robbery, nowhere asserted -- in

his   written     statement       or     orally    --     that   their       pre-trial

conversation      “did    not   include        [Zimm’s]    alleged     lack-of-fear

statement.”     Nor did Parsons “explicit[ly] den[y] that Zimm made

the alleged lack-of-fear statement.”                And Parsons never disputed

that he told Adkins, after trial, about Zimm’s alleged lack-of-

fear statement.         In other words, Prosecutor Parsons, although in


      2The concurrence finds it significant that Watkins could
have presented a stronger case to support this finding and
repeatedly argues that I have “shift[ed] the burden to the state
to   disprove   [Watkin’s]   allegations.”      These  arguments
misconstrue what is simply the proper deference due to a state
habeas court’s factual findings. Of course, Watkins’ case, like
most others, in retrospect could have been stronger.    But when
considered in conjunction with the prosecution’s lackluster
showing at the evidentiary hearing, Watkins certainly provided a
sufficient basis for the state court’s finding that Prosecutor
Parsons told Adkins about Zimm’s alleged statement.          The
critical fact remains that the state habeas court made this
finding, and AEDPA requires that we owe it deference.


                                          58
the courtroom when accused of a Brady violation, never denied

that he possessed during trial helpful impeachment evidence that

he failed to turn over to the defense.

       Rather, Parsons attempted to finesse exactly what witness

Zimm said at their pre-trial meetings.                           Thus, in his written

statement       to     the        state    habeas    court,      Parsons       parsed   and

qualified their exchanges.                  He did not explicitly deny that he

acquired exculpatory information at that time, nor did he deny

that Zimm had told him he might not have been afraid at the time

of the attempted robbery.                   Instead, Parsons simply stated that

Zimm “did not state that he was ‘never afraid.’”                                  J.A. 304.

These words, of course, leave open the possibility that Zimm did

say    something       short        of     never    being    afraid      but    still   not

amounting    to       the     required       not    in   “fear    of     bodily    injury.”

Prosecutor Parson’s statement is certainly not the categorical

denial one would expect from a prosecutor accused of a Brady

violation.

       Moreover,           Parsons        acknowledged      in     the     same     written

statement that “a certain amount of bravado existed as to the

relationship between [himself] and Mr. Zimm,” and thus Zimm had

“a    reluctance       to     express       fear    months    after”      the     attempted

robbery.     Id.      And Parsons conceded in his statement that he had

informed Zimm “that if the element of fear did not exist[,] the

case    could        not     be    proven     at    trial.”        Id.         Thus,    upon

                                               59
consideration of the entire record before it, the state habeas

court was certainly justified in making the factual finding that

it did; i.e., that “at some time after the trial of this matter,

[Watkins’] trial counsel was told that Mr. Zimm said he was not

‘afraid’ at the time of the incident at issue.”                            J.A. 211.       The

concurrence apparently disagrees with the finding, but we must

defer        to     a    state     habeas     court’s       factual       findings    unless

unreasonable.            28 U.S.C. § 2254(d)(2).              Nothing is unreasonable

about this finding.

     In           sum,    the     record      is    devoid        of    support     for    the

concurrence’s            suggestion     that       the    experienced      district       court

judge “rewrote the state court’s factual finding” in order to

conclude that it was Parsons who told Adkins that Zimm made the

alleged lack-of-fear statement.                     Based on the record before the

state     court,         the     only   possible         source    of    this   information

regarding Zimm’s alleged statement was Prosecutor Parsons, who

never denied that he had possessed exculpatory evidence prior to

Watkins’ trial.            There was, and is, no basis for the state court

to have found that Adkins “was told” about Zimm’s alleged lack-

of-fear       statement         without      also    finding      that    Parsons    is     the

person who told him about it.

                                               C.

        My    colleagues         seek   to    exploit      the    state    habeas    court’s

failure to more explicitly articulate factual findings that were

                                               60
unassailably        clear     from       the    record.        This    approach      fails       to

defer, as we must, to those implicit factual findings of a state

habeas    court,       which       are    compelled       by    its    explicit     findings:

i.e., it was Prosecutor Parsons who told Adkins, after trial,

that    Zimm    had     stated,      before         trial,     that    he   was    not    afraid

during the attempted robbery.

       The     concurrence          refuses      to     afford        deference     to     these

implicit factual findings because it maintains that they are

“inconsistent” with the state court’s decision to “deny Watkins’

Brady claim.”          Not so.       The finding that a prosecutor possessed

and    failed    to     disclose         to    the    defense     favorable       impeachment

evidence is not inconsistent with a denial of habeas relief.                                      A

prosecutor’s withholding of such evidence does not automatically

trigger a Brady violation.                     Rather, the evidence withheld must

also be material.              Brady, 373 U.S. at 87.                   Thus, in a given

case,     a    state     habeas          court       could     certainly     find        that     a

prosecutor had withheld exculpatory evidence, but conclude that

the evidence was not material, and so deny Brady relief.                                    That

apparently is precisely what the state court did here.                                          For

after    making       its    findings,         it     summarily       concluded     that        the

State’s       actions       “did    not       violate    the     dictates     of    Brady       v.

Maryland,” without specifying why this was so.                              This conclusion

--    that    the     prosecution         withheld       evidence       without     violating



                                                 61
Brady      --   is   not    logically          inconsistent       with     the   denial    of

Watkins’ Brady claim. 3

       Moreover,      even       were    the        state   court’s     factual    findings

somehow inconsistent with its judgment, we could not withhold

deference on that ground.                     The concurrence errs in suggesting

that we owe deference to implicit findings only when they are

“consistent with” or “necessary to” the state court’s judgment.

That       is   simply     not    the        law.      Rather,    the    presumption      of

correctness afforded to a state habeas court’s factual findings

broadly “extends not only to express findings of fact, but to

the     implicit      findings          of     the     state     court.”         Garcia    v.

Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); see also Taylor

v. Horn, 504 F.3d 416, 433 (3d Cir. 2007) (same); Lujan v.

Tansy, 2 F.3d 1031, 1035 (10th Cir. 1993) (same).                           Were the rule

otherwise,       federal     courts          could     read    ambiguities       into   state

habeas findings and then invent scenarios to resolve them that

justify denying habeas relief.                      AEDPA deference does not permit

this. 4


       3
       However, as explained below, the evidence withheld here is
material and so in this case the state court erred as a matter
of law in denying habeas relief.

       4
       Even when we review a state court’s summary adjudication
of a habeas claim, in which the court has made no explicit
factual findings to which we can defer, we infer implicit
findings “from . . . [the state court’s] opinion and the record”
of the state habeas court -- not from the judgment alone.
(Continued)
                                                62
      To be sure, as the concurrence notes, when appropriate, on

AEDPA review federal courts do imply factual findings that align

with the state court’s ultimate judgment.                            That is undoubtedly

the correct course in a case where “it can scarcely be doubted

from [the state court’s] written opinion that [the petitioner’s]

factual contentions were resolved against him.”                                 LaVallee v.

Delle    Rose,   410    U.S.        690,   692       (1973);     see     also   Marshall         v.

Lonberger, 459 U.S. 422, 433 (1983) (implying factual finding

from the judgment where state court’s “failure to grant relief

was     tantamount      to    an     express         finding        against     .     .    .    the

defendant”).         But     this    is    not       such    a   case.        Here,       “it   can

scarcely be doubted” from the state court’s “written opinion,”

LaVallee,    410     U.S.      at    692    (1973)          --   including      its       express

findings of fact and “the inferences fairly deducible from these

facts,”    Marshall,         459    U.S.    at       435    --   that    Watkins’         factual

contentions      were      resolved        in    his       favor,    notwithstanding            the

court’s ultimate judgment against him.

      In sum, when viewed in light of the evidence before it, the

state    court’s     factual         findings         compel     only     one       version     of




Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008)
(emphasis added).  As the concurrence concedes, implied factual
findings, even those that may be consistent with the state
court’s judgment, “‘cannot be imagined from thin air.’” Id. at
1272 n.5 (quoting Cave v. Singletary, 971 F.2d 1513, 1516 (11th
Cir. 1992)).


                                                63
events:        that     Parsons       told       Adkins,        after    trial,      that    Zimm

stated,       before    trial,        that       he     was     not     afraid      during     the

attempted robbery.             We cannot eschew a straightforward reading

of the state court’s factual findings simply because it renders

that       court’s   ultimate     judgment             unreasonable.          Rather,        AEDPA

expressly       instructs       that        we    grant         habeas      relief    in     such

circumstances.         See 28 U.S.C. § 2254(d). 5



                                                 II.

       Of course, Watkins cannot prevail on his Brady claim simply

by   proving     that,        prior    to    trial,           the   prosecution       possessed

favorable       impeachment       evidence             which    it    did    not     disclose. 6

Watkins       must     also     show    that           such     evidence      was     material,

       5The concurrence contends this approach “turns AEDPA
deference on its head,” but it is the concurrence that has it
backwards. The proper approach, of course, is to first examine
the state court’s factual findings and to accord them a
“presumption   of   correctness,”   deferring  to   them  unless
unreasonable.     18 U.S.C. § 2254(e)(1).       The concurrence,
however, on the basis of its evaluation of the strength of
Watkins’ evidence, assertedly gives the state court “the benefit
of the doubt” by reading that court’s factual findings to accord
with the concurrence’s own evaluation of the evidence.     It is
not surprising that, starting from the wrong premise, the
concurrence arrives at the wrong conclusion.

       6The State does not dispute that evidence of Zimm’s
statement regarding fear was favorable to Watkins.      And the
state habeas court expressly found that “[t]he discovery
provided to the defense did not contain any reference to
Mr. Zimm’s alleged statement that he was not ‘afraid’ or to the
above described conversation between Mr. Parsons and Mr. Zimm.”
J.A. 211. Thus, Watkins has satisfied these Brady requirements.


                                                 64
Strickler v. Greene, 527 U.S. 263, 281-82 (1999), and that the

state       court    unreasonably         determined            that     the        prosecution’s

failure      to     disclose       such    evidence         did        not     violate       Brady.

Harrington v. Richter, 562 U.S. 86, 97-98 (2011); see also 28

U.S.C. § 2254(d)(1).

       The     test    for     materiality           in      this        context       is     well-

established.          Undisclosed evidence is material if “there is a

reasonable probability that, had the evidence been disclosed [to

the    defense],      the     result      of   the        proceeding         would     have    been

different.”           Smith    v.      Cain,        132    S.     Ct.        627,    630     (2012)

(quotation marks and citation omitted).                          A court considering the

materiality of undisclosed evidence “need not be convinced to an

absolute[] certainty that proper disclosure[] . . . would have

resulted in a different verdict.”                     Monroe v. Angelone, 323 F.3d

286, 316 (4th Cir. 2003).                 For “[a] reasonable probability does

not mean that the defendant would more likely than not have

received a different verdict with the evidence,” but rather that

“the    likelihood      of     a    different         result        is       great    enough     to

undermine confidence in the outcome of the trial.”                                    Smith, 132

S. Ct. at 630 (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)

(quotation marks and alterations omitted)).

       In    this    case,    the    record     makes        clear       that       Zimm’s    trial

testimony that he had feared the defendant during the alleged

attempted robbery was fundamental to a successful prosecution.

                                               65
The record is also clear that the element of fear was fiercely

contested throughout trial.             Thus, the likelihood of a different

result had the prosecution disclosed evidence that Zimm stated

before trial that he had not been afraid during the alleged

attempted robbery is great enough to undermine confidence in the

outcome of the trial.

     Critically, at trial, Zimm was the State’s primary witness,

and the State’s only witness who testified to being in fear of

bodily injury from defendant Watkins.                       The jury was properly

instructed      that,    to    prove    attempted      robbery      in    the    second

degree, the State had to prove beyond a reasonable doubt that

Watkins committed an “assault that placed Mike Zimm in fear of

bodily harm.”         J.A. 130.        Prosecutor Parsons himself confirmed

Zimm’s   role    as     the   key   witness      on   the    fear   element      in    his

memorandum to the state habeas court, recounting that he had

“inform[ed] Mr. Zimm that if the element of fear did not exist

the case could not be proven at trial.”                J.A. 304.

     The   State      nevertheless       contends     that     evidence      that     Zimm

stated before trial that he had not been afraid was not material

because other evidence at trial suggested that Zimm had in fact

been fearful.         To this end, the State cites evidence that the

other    pharmacy     employees     knew    of    a   rash    of    recent      pharmacy

robberies in the area; that Watkins’ clothing “made clear” that

he intended to rob the pharmacy; that Watkins had his hands at

                                           66
his waistband, “where he could have had a weapon”; and that

another pharmacy employee described how Zimm’s facial expression

changed when Watkins entered the store, thereby “corroborat[ing]

Zimm’s   description     of   his    fear.”        Appellant   Br.   at   21-22

(emphasis in original).

      As the district court noted, however, all of this evidence

was   relevant    only   to   show    that    Zimm    was   credible   and    to

corroborate his trial testimony about being afraid.                  J.A. 402.

Of course, as the State suggests, the jury could have discounted

evidence of Zimm’s pre-trial lack of fear statement, even if the

State had disclosed it.       But this argument “merely leaves us to

speculate about which of [Zimm’s] contradictory declarations the

jury would have believed.”           Smith, 132 S. Ct. at 630.               Such

speculation does not render evidence immaterial.               For, although

“the State’s argument offers a reason that the jury could have

disbelieved” Zimm’s alleged lack of fear statement, it “gives us

no confidence that it would have done so.”                  Id. (emphases in

original).

      Not only was Zimm’s trial testimony that he was in fear of

the   defendant   literally    elemental      to   the   prosecution’s    case,

attacking the fear element was the sine qua non of the defense’s

trial strategy.     From opening statement to closing argument, the

defense repeatedly and vigorously contended that the evidence

did not demonstrate that an assault (requiring fear of bodily

                                      67
harm) had taken place.                 See, e.g., J.A. 14; 138-39.                     At the

close of the State’s case, the defense moved for a directed

verdict, relying in large part on the State’s failure to prove

fear.     Defense Counsel Adkins argued that because his client did

not    swing       at   Zimm,   did    not   brandish       a    weapon,       and   did    not

verbally      threaten       him,     Zimm   could    not       have    been    in   fear   of

bodily harm.            J.A. 98.       The State responded that during trial

Zimm “said that he was fearful,” that Zimm had also testified

that he was aware of several recent pharmacy robberies, and that

the defendant had been dressed and behaved in a way that caused

Zimm    to    “have       apprehension.”        J.A.   100-01.           In    denying      the

motion       for    directed      verdict,      the    state       trial       court    twice

remarked that “it’s a close call,” but ultimately determined

that “the jury may well find that Mr. Zimm was, in fact, under

assault and . . . feared for himself.”                  J.A. 104.

       Plainly then, evidence that Zimm had stated, before trial,

that Watkins had not caused him to be afraid would have been

crucial      to     the    defense.       The     defense       could    have    used      that

evidence to argue reasonable doubt, to reinforce other evidence

suggesting that Zimm was not afraid, or perhaps most critically,

to undermine Zimm’s credibility on the central issue of fear.

“[W]hen the witness in question supplied the only evidence of an

essential         element    of     the   offense,”     impeachment            evidence     is

frequently material, “especially if the undisclosed evidence was

                                             68
the only significant impeachment material.”              See United States

v.    Parker,   No.   13-4989,   slip    op.   at   16   (4th   Cir.   2015)

(quotation marks and citation omitted).             Indeed, we have noted

that when, as here, “the jury had to believe that [the witness]

was credible and that his version of events was in fact truthful

and accurate in order to support [the defendant’s] conviction,”

the    materiality    of   evidence      impeaching      that   witness    is

“manifest.”     See Wolfe v. Clarke, 691 F.3d 410, 424 (4th Cir.

2012) (quotation marks and citation omitted).

      Watkins established before the state habeas court a clear

Brady violation:      the prosecutor possessed and did not disclose

evidence that a witness said that he was not afraid during the

alleged attempted robbery; fear was an essential element of the

crime; that witness was the State’s key witness on the fear

element; and the fear element was hotly contested throughout the

trial.    Given the critical nature of the impeachment evidence

here, it was unreasonable for the state habeas court not to

conclude that the State had violated its Brady obligations.

      The district court properly granted habeas relief.                  The

majority’s contrary holding piles a further injustice on a man

already victimized by improper governmental action.




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